Gary Trevor Rawlins v Stephen Gerd Schulze No. SCGRG 92/2697 Judgment No. 3819 Number of Pages 5 Criminal Law and Procedure

[1993] SASC 3819

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT CHRISTIES BEACH COX J

CWDS
Criminal law and procedure - particular offences - offences against property - Appeal against sentence - Illegal use - appellant, 18, convicted of illegal use - of fence committed nine days after his release on bond for receiving - sentence of three months' imprisonment, unsuspended, not of itself manifestly excessive - co-offender in similar circumstances but with worse record given six months' sentence, suspended, after spending six weeks in custody before hearing - appellant's sentence reduced to one month by reason of disparity.

HRNG ADELAIDE, 10 February 1993 #DATE 10:2:1993
Counsel for appellant:         Mr John A English
Solicitors for appellant:     Mr John A English
Counsel for respondent:        Mr S Gupta
Solicitors for respondent:     Crown Solicitor

ORDER
Appeal allowed for the purpose of substituting for the sentence of three months' imprisonment a sentence of one month's imprisonment. In other respects the conviction and orders of the summary court are affirmed.

JUDGE1 COX J. This is an appeal by a young man who was eighteen when he was convicted in the Magistrates Court at Christies Beach on 12 November 1992 on a charge of illegally using a motor vehicle. He received a sentence of three months' imprisonment. He appeals on a number of grounds, the chief of which are that the sentence was excessive, because it was not suspended, and that there is a serious disparity between the sentence that the appellant received and a sentence imposed upon a co-offender who was dealt with by the same Magistrate on a later occasion. 2. The circumstances of the offence itself were unremarkable. It appears to have been a typical case of illegal use. There was no excuse for it at all. The appellant, accordingly, faced imprisonment, by virtue of s.86a of the Criminal Law Consolidation Act, for not more than two years. That is because it was his first offence. There were available to the Magistrate, of course, avenues by which that statutory penalty could be mitigated, but it is noteworthy that Parliament considers the starting point, at any rate, for this offence in these circumstances to be a term of imprisonment. 3. The offence itself was committed on 24 September 1992. Only nine days earlier the defendant and his co-accused, one Warburton, had been before the court for receiving cigarettes. The appellant was convicted of one receiving offence, and he was given a bond to be of good 2 behaviour for six months. Warburton was dealt with for two receiving offences that day: one at least involved the cigarettes, but it is not clear what the facts were on the other count. For one of his receiving convictions Warburton was fined; for the other he, too, was released on a bond. Then, as I said, within a few days of that appearance, before the ink on the bonds was dry, the two young men are jumping into someone else's car and using it without permission. 4. Only the appellant came before the Special Magistrate on 12 November because Warburton had disappeared. He was arrested on a warrant some time later. 5. The Magistrate was understandably disinclined to be very lenient with the appellant in those circumstances. He referred to the leniency that had been extended to him earlier in the same month, and spoke of the appellant's exploiting that leniency some nine days later. He referred to what he called the ludicrous prevalence of offences of this kind, and, while he would like to think that he could fashion an order to give priority to and promote the appellant's rehabilitation, the fact was that the appellant had shown on 24 September what he thought of court orders designed to give priority to his rehabilitation. Accordingly, the Magistrate revoked the bond for the receiving offence and substituted a fine of $300 with costs, and he sentenced the appellant to three months' imprisonment for the illegal use. He disqualified the appellant from holding or obtaining a driver's licence for 12 months, and that was, I think, the minimum disqualification period under 3 the legislation. He expressely declined to suspend the prison sentence. 6. Because it is an important part of the appellant's case that the sentences imposed upon the appellant and Warburton for the illegal use were markedly disparate, I should say what happened to Warburton. He, it seems, was arrested on 23 November, and he was remanded in custody to 5 January 1993. He then came before the same Magistrate and pleaded guilty to the charge of illegal use. 7. Unlike the present appellant Warburton had a number of convictions. In November 1990 he was before the Childrens Court on two charges of illegal use, although the record shows that these were dismissed without conviction. I infer from that particular formula, however, that they were found proved but that the court exercised its discretion not to record convictions. I think that is made more probable by the circumstance that, on the same day, Warburton was also dealt with for the serious crime of attempted robbery with violence. For that he was given a sentence of two months' imprisonment, but the sentence was suspended upon his entering into a bond for six months. That is not all. In February 1992 he came before the court at Christies Beach - and by this time, I infer, it was an adult court - on a charge of disorderly behaviour. For that he was ordered to do 90 hours community service. 8. In the light of these circumstances the learned Magistrate sentenced Warburton to six months' imprisonment, but he suspended that sentence upon his entering into a $100 good behaviour bond for three years. The Magistrate 4 expressly said that he was giving Warburton a bond because he had been held in custody for a period of six weeks (obviously because he was not regarded as a suitable candidate for bail) and, also, because his previous offences had been committed whilst he was a child. According to the prosecutor's affidavit, the Magistrate also said that the present appellant, Rawlins, would actually be serving a period of imprisonment equivalent to about six weeks, being the same period that Warburton had been in custody. 9. There are two things to be said about that last observation of the Magistrate. It does show that he had in mind the sentence he had imposed on Rawlins on November 12 for the same offence of illegal use. Any disparity between the two sentences cannot be explained, then, on the footing that the Magistrate had overlooked the earlier hearing. Secondly, there is a problem about the reckoning of the appellant's sentence of three months' imprisonment as predictably resulting in his actual incarceration for something of the order of six weeks. As I understand it, and counsel I think accept this, there are no remissions available to a prisoner who is serving a three months sentence. It is well known, I think - perhaps 'notorious' is the right word - that by the free use of a real or supposed executive authority prisoners have frequently been released before their sentences have expired. However, I do not think it right to approach the appellant's case on the assumption that he will be the beneficiary of any such informal reduction in his particular sentence. I know too little about the reputed practice to know whether it is in 5 fact still the practice and, if so, whether it is applied uniformly or in precisely what circumstances. The only proper way of judging the effect of the present sentence is to treat it at face value; in other words, to assume that, if the sentence stands, the appellant will be in custody for three months. 10. The first ground of appeal is that the sentence was excessive and that this is plainly the case, irrespective of the sentence passed on Warburton. Mr English argued that all the authorities compel the conclusion that, with a young man of 18, with no juvenile record and only a single offence of receiving against him, the prison sentence for illegal use should have been suspended. More than that, it was simply not within the range of a proper sentencing discretion for the Magistrate to refrain from suspending it. 11. I do not accept that argument. It is true that the courts are very reluctant to send young people to prison, especially if they have no previous record. However, there is nothing absolute about this general practice. Everything depends on the circumstances. It would be unfortunate, given the epidemic proportions of the offence of illegal use in this community, if the view were firmly fixed in the minds of those prone to commit this kind of offence that they had nothing really to fear from detection for the first offence or two, because they could confidently expect that some graduated range of sentences would be progressively applied that would virtually guarantee their continued circulation in the community until they had at least run up 6 a couple, possibly more, such convictions. There is no such invariable rule. 12. To have refrained from suspending this sentence, had the appellant no previous convictions at all, would have been severe indeed, and I do not know what I might have done in those circumstances. However, I do not have to reckon with that problem because the appellant had an important previous conviction and he showed, very eloquently, what he thought of the leniency that had been extended to him on that occasion, only a few days before he joined in the taking of this motor car. To say that he is a slow learner is an understatement. He treated the court's earlier order with contempt and he is in no position to complain about a sentence that is designed to impress upon him in a way he will understand that need to leave other people's property alone. 13. The Magistrate took the view, as he was practically compelled to do, that the appellant needed to be brought up sharply, not just for the protection of the community, but also for his own good. 14. For these reasons I reject the argument that the sentence of 3 months' imprisonment was, on the face of it, manifestly excessive. 15. That leaves the disparity argument, and I think there is considerable force in it. I have described the differences between the appellant's background and Warburton's. The prison sentences of three months and six months, respectively, reflect those differences. I have no 7 criticism to offer about the prison sentences themselves. The difficulty lies in the disparity as to suspension. The Magistrate properly took into account the fact that Warburton had spent six weeks in custody between his arrest and his conviction. The result, however, is that, looking at the matter broadly, Warburton has spent six weeks in prison as a result of his offence while the appellant faces a custodial sentence of three months. 16. I have been referred to the standard authorities on this subject, Kite 2 SASR 94, Lowe, 154 CLR 606 and MacGowan 42 SASR 580. 17. I think in all the circumstances that the disparity between the sentences was substantial and that the appellant would be justified in having a sense of grievance because of it. Of course, it is not every undesirable, even indefensible, disparity between the sentences passed upon co-offenders that will lead to interference by an appellate court. Mr Gupta, for the Crown, said that the difference here, at the most, is only three months and that, in comparison with the circumstances of other cases, there is no warrant here for interfering with the appellant's sentence. I think the proportion aspect needs to be considered as well. So far as the actual time spent or to be spent in prison is concerned, the effective difference between the two sentences is something like 100%. In my opinion, it would be unjust to allow the appellant's sentence of three months' imprisonment, unsuspended, to stand. 18. 8 Mr English submitted that the only proper solution is to suspend the sentence; then there will be a substantial conformity between the sentences imposed on the appellant and his co-offender after one has made proper allowance for the difference in the two men's records. I was urged to ignore the six weeks that Warburton spent in prison; all that one may relevantly have regard to is the actual sentence passed by the court. 19. I do not accept this submission. I think, as the learned Magistrate plainly thought, that the period that Warburton spent in custody was relevantly taken into account in deciding what should happen to him, and I think it ought to be taken into account when comparing the sentences and their effective result in the case of the two offenders. 20. I do not think it possible to produce an ideal sentence now for the appellant. Simply to suspend his sentence would result, in my judgment, in an inadequate punishment for a serious offence committed whilst on a bond, and so soon after receiving the bond. Some period in custody is required. That means that the appellant will lose the benefit which a bond and supervision for a period of two or three years would provide but, on balance, I think that is the less unsatisfactory of two inadequate solutions. 21. The appeal will be allowed for the purpose of substituting for the sentence of three months' imprisonment a sentence of one month's imprisonment. In other respects the conviction and orders of the summary court are affirmed.