GALPIN v POLICE No. SCGRG-98-1497 Judgment No. S7015

GALPIN v POLICE
[1998] SASC 7015

Magistrates Appeal: Criminal

MULLIGHAN J This is an appeal against the sentence imposed by a learned Magistrate on 1st October 1998 upon the appellant having been convicted, upon his plea of guilty, of seven counts of breaking, entering and larceny, twelve counts of false pretences, two counts of unlawful possession and one count of larceny.
On the charges of breaking, entering and larceny and false pretences, the sentence imposed was imprisonment for three years and six months with a non-parole period of six months. The learned Magistrate declined to suspend the sentence. On the charges of larceny and unlawful possession, the appellant was ordered to perform 150 hours of community service within fifteen months and it was ordered that he report to the Department of Correctional Services for that purpose within two days of his release from prison.
Upon the hearing of the appeal, it was correctly conceded by Mr Press, who appeared for the appellant, that the head sentence of three years and six months is within the proper exercise of the sentencing discretion and the appeal that it is manifestly excessive was not pressed. However, he contended that the learned Magistrate erred in not suspending the sentence and in making the order for community service.
This case has unusual features. At the time of the offending the appellant was aged 39 years. He had no previous convictions. He had lived a hard working and industrious life. He was a person of good character.
All of the offending occurred within a period of about four weeks from 18th July 1997 until 19th August 1997. The appellant broke into seven dwelling houses and stole various items from each house. He knew some of the owners of the houses. He took the items stolen to various second-hand outlets and pawn shops and falsely pretended that he was the owner of them. He pawned them for money which he retained. As suddenly as he commenced this course of conduct, he ended it voluntarily. He had no reason to suppose that he was under supervision by the police or anyone else. Police made usual enquiries of certain shops selling second-hand goods. They became aware that the appellant was pawning items and some of the goods were traced to six of the premises which had been broken into and from which goods had been stolen. The police were eventually able to link this criminal conduct with the appellant.
On 6th September 1997 police attended at the appellant’s house at Blair Athol and spoke to him. He allowed them to search the premises. He was arrested and taken to the Holden Hill Police Station where he was questioned and charged with various of the offences. Police then went to the house of the parents with his wife and her brother. They searched the motor vehicle used by the appellant and found some of the goods which had been stolen and a pawn docket.
Initially the appellant said that he knew nothing about the crimes or the pawning of any property taken from any of the premises. He told a false story about his motor vehicle and some personal identification having been stolen. The reason for those false denials was so that his wife would not leave him. The appellant then made full and frank admissions to the police and assisted them with their enquiries and investigation. This assistance included accompanying a police officer to the various properties which he had broken into and by making a list of all of the goods which he had stolen. It may be accepted that this co-operation was of benefit to the police and shortened the investigation and saved expense. The total value of the goods stolen by the appellant was $15,068.90. The persons from whom the goods were stolen have been almost totally compensated by insurers although the appellant is not to be given credit for that matter. He pawned or sold the goods at well below their true second-hand value and so it is likely that the pawnbroker and second-hand dealers have not suffered any loss.
There are personal circumstances of the appellant which excite sympathy and are of significance. The learned Magistrate was informed that the appellant could not explain his criminal conduct during that period of four weeks, but there was a combination of circumstances which could afford a reason.
I mention the personal circumstances of the appellant. He was educated to year eleven and thereafter had stable employment with one firm rising to a position of responsibility. He was retrenched due to the financial circumstances of the employer. He soon obtained other employment. He was required to work long hours.
In 1994 he married a woman with whom he had lived for three years. He is 10 years older than his wife. They suffered the disappointment of not being able to have children. In 1996 the wife of the appellant became severely depressed and her behaviour placed a great strain on the relationship. At times, she refused to leave the house. She became very critical and demanding of the appellant. The appellant and his wife wanted to join the Invitro Fertilisation Programme. They could not afford the cost of the programme and the appellant changed his employment to earn a greater income. The wife of the appellant obtained employment at his place of work and came into dispute with management which caused embarrassment and difficulty for him. He resigned and found new employment as a sales representative. Within a short time, his motor vehicle which he required for work, was stolen. As he did not have a motor vehicle, he was dismissed in May 1997. This was the first time he was without employment. He could not find work and was greatly distressed. His wife became more demanding and threatened to leave him if he did not find work and earn money.
Earlier in 1997, the father of the appellant entered a nursing home due to severe dementia which placed strain on the family. The elderly mother of the appellant visited him regularly. When the appellant lost his employment, he played an increasing role in the care of his mother as his two sisters were in employment. It may be that the plight of his father and its effect upon his mother contributed to his mental state. He began to suffer panic attacks and it may be accepted that, unbeknown to him at the time, he began to suffer depression. His wife had, by this time, also became ill. Information as to her condition was not available to the appellant or to the learned Magistrate but the appellant described her as having suffered a breakdown which manifested itself in complete inactivity on her part and inability to adequately care for herself. On 18th July 1997 the appellant went to the home of his parents to seek financial assistance. By that time his financial circumstances had reached the point of crisis. His wife was earning a small amount of income in part-time work, but there was insufficient money to meet basic expenses. His mother was not home and he then committed the first offence in a state of desperation. Thereafter he committed the various offences over that relatively short period of time. The appellant wanted to keep his marriage together but could not find employment.
It is against that background that he committed the offences.
Upon being discharged on bail after his arrest, he returned home to find that his wife had left, taking almost all of the furniture and other items from the home. The marriage had irretrievably broken down.
The appellant sought assistance from Dr Turner, a general medical practitioner. She had been his doctor since 1991 and had treated him for familiar day to day health problems. He saw Dr Turner on 26th September 1997 and she took a history from him substantially in accordance with the matters of background. She concluded that he was suffering depression and prescribed medication. His condition continued.
The appellant made a serious attempt upon his life in January 1988 but that is an isolated incident.
The appellant remains unemployed and lives with his mother. He continues to take medication and suffers panic attacks.
The charges were not before the learned Magistrate until about thirteen months after the appellant was arrested. He did not again offend during that time. There has not been any explanation for that delay. Initially the appellant was remanded in custody. He remained in custody for ten days before being released on bail. Upon his release, he has remained at home. He is deeply ashamed of his conduct and fears being recognised should he leave the house. He pleaded guilty at an appropriate time to attract favourable consideration of that matter in the sentencing process. It may be accepted that he is genuinely contrite and remorseful because of his conduct.
All of these matters were placed before the learned Magistrate. He heard lengthy submissions in mitigation of sentence. It appears from his remarks on sentencing that the learned Magistrate accepted the matters personal to the appellant which have been mentioned. However, he appropriately took a serious view of the offending because of the invasion of private homes. Such conduct usually causes great distress to the occupants of the premises and a sense of personal violation of security and safety. An aggravating feature of the appellant’s crimes is that some of the victims were friends or neighbours who have a sense of betrayal at his conduct towards them. The learned Magistrate had regard to that matter. The Victim Impact Statements describe the feelings of the victims in various ways. It is sufficient to say that the offending has had a significantly deleterious effect upon them.
Having imposed the sentence of imprisonment for three years and six months, the learned Magistrate went on to say:
“I now turn to the important question as to whether I should suspend the sentence and the non parole period. I must impose a penalty which is not only a deterrence to the defendant but a deterrence to other people who may offend in the same way. We cannot excuse offending of this type by the fact that a person has a demanding wife and therefore I have come to the conclusion, with some hesitation I must say, that I am unable to suspend the sentence. Be that as it may, there are very good reasons why I should impose a non-parole period and make that relatively short. Firstly, the defendant is a first offender and any period of imprisonment will have a greater effect upon him than say a person who offended before. I therefore impose a relatively short non-parole period of six months.”
The grounds of appeal are, in essence, that the learned Magistrate erred in refusing to suspend the sentence of imprisonment, in giving undue weight to general and personal deterrence and in failing to take into account adequately the matters personal to the appellant, his pleas of guilty and co-operation with the police and the effect of the sentence upon his parents.
In my view, there is substance in this appeal. Suspension of the sentence of imprisonment could easily be justified in all the circumstances. The reasons for the offending are unusual. They do not afford justification, but they do explain why the appellant behaved in a manner which is starkly out of character. The reasons are sadly pathetic. The combination of various factors, each of significance in itself, permits the conclusion that the motivation of the offending was not the usual reason of greed or simply to get something for nothing, but a misguided method of trying to preserve a failing relationship.
The evidence before the learned Magistrate indicated that there was no need to emphasise personal deterrence in the sentencing process. The offending was confined to a relatively short period and had not been repeated. There was no reason to suppose that the appellant was likely to again offend. Of course, general deterrence is an important factor. It was reflected in the head sentence but it could not exclude all other relevant matters.
I do not regard it as necessary to resort to authority to support that proposition. Reference to Police v Cadd (1997) 69 SASR 150 and the cases referred to in the various judgments state the relevant principles of sentencing and there is no need to repeat them. I mention only the well known dicta in two cases. In Webb v O’Sullivan [1952] SASR 65 Napier CJ said at p66:
“The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.”

King CJ in Yardley v Betts (1979) 22 SASR 108 said at p112:

“The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in future, the protection of the community is to that extent enhanced.
To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes. But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations ...
The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so.”

The good character, antecedents, reasons for the offending and prospects of rehabilitation were all matters of considerable importance in the exercise of the sentencing discretion. They could not be entirely overshadowed by deterrence. In my view, that is what has happened, and is an error. The error is not that the learned Magistrate did not consider these matters at all, but that he gave insufficient weight to them. It was clearly established that it is unlikely that the appellant will again break the law. Immediately following the out of character criminal spree, he resumed a law abiding life. The pressures which caused him to offend have been removed. In my view, the basis to interfere with the sentencing discretion has been established and the discretion must be exercised afresh.
It was argued that the learned Magistrate also erred in his approach to the non-parole period. It appears that he may have decided to fix a short non-parole period having decided not to suspend the sentence of imprisonment. It seems to me that the correct approach is to decide if a sentence of imprisonment is necessary and if so to fix that sentence and the non-parole period. It is then that the exercise of the discretion to suspend the sentence must be considered. When a sentence is suspended, it must be borne in mind that it may have to be served. It would be wrong in principle to increase a non-parole period beyond what is appropriate because the sentence is suspended. If that observation is correct, it follows that it would seem wrong in principle to reduce a non-parole period merely because the sentence is not to be suspended. However, it is not necessary to consider whether an error in that regard was made as other grounds for interference with the sentence have been established.
On the material before the learned Magistrate, giving due emphasis to the relevant principles of sentencing to suspend the sentence of imprisonment accords with the proper exercise of the sentencing discretion.
Ms David, correctly in my view, acknowledged that the learned Magistrate should not in the circumstances have imposed additional punishment of community service on the charges of larceny and unlawful possession to be undertaken upon the appellant being released from prison. Conviction without penalty would suffice. I think that approach is also appropriate upon the sentence of imprisonment being suspended, particularly as the appellant should, in my view, undertake community service as a term of the bond.
I allow the appeal. The sentence of imprisonment is confirmed but is suspended upon the appellant entering into a bond in the sum of $100 to be of good behaviour for a period of three years and to observe the following conditions, namely that he be under the supervision of a probation officer, that he obey the reasonable directions of the probation officer as to residence, employment and medical, psychological or psychiatric treatment, that he undertake 150 hours of community service within six months and that he report to the Adelaide Office of the Department of Correctional Services within two working days from this date.
I think the non-parole period of six months is very lenient but on this appeal I do not think it appropriate to interfere with it even though the sentence is now to be suspended. The non-parole period is confirmed.
I have not found it necessary to consider the material which the appellant wished to adduce on this appeal as to his condition and circumstances since sentence was imposed.

[1998] SASC 7015

22 December 1998