Gibson v Police No. Scgrg-98-1657 Judgment No. S49

[1999] SASC 49

GIBSON v SA POLICE

[1999] SASC 49

Magistrates Appeal
Nyland J

1 This is an appeal against sentence. The appellant was charged on information that on 24 September 1998 at Port Pirie he broke and entered a house and committed the offence of larceny of money to the value of $949, the property of John Lumbard Fitzgerald, contrary to the provisions of s 170(l)(a) of the Criminal Law Consolidation Act 1935.
2 On 11 November 1998, he appeared before a stipendiary magistrate in the Magistrates Court at Port Pirie in the said State and pleaded guilty to the charge.  The appellant was represented by Ms Heeley of counsel.  The circumstances surrounding the commission of this offence are set out in paragraph 3 of the affidavit of Jeffrey Wright, the police prosecutor who prosecuted the proceedings in the Magistrates Court against the appellant.  The prosecutor provided the magistrate with the appellant's antecedent report which is extensive.  It comprises approximately 29 pages which includes a total of 68 prior offences of dishonesty of which 28 are for break, enter and larceny.  A number of those offences relate to appearances in Children’s Courts, but there is nevertheless an extensive history of offending as an adult. 
3 The magistrate declined the invitation of the prosecutor to refer the matter to the District Court for sentence.  The magistrate believed that he could impose a sentence which was appropriate to his jurisdiction, commensurate with the seriousness of the offence and the prior record.  
4 The appellant had been in custody since the commission of the offence, that is, 25 September 1998.  The conviction for this offence, however, breached the appellant's parole and therefore it was not possible for the sentence to be back-dated.  The magistrate took into account the time spent in custody and sentenced the appellant to be imprisoned for a period of 21 months.  In accordance with the law, the sentence was ordered to be cumulative upon the unexpired portion of the appellant's parole, that being a period of one year, eight months and 18 days.  This resulted in a total head sentence of three years, five months and 18 days.  The magistrate then declined to set a non-parole period. 
5 The magistrate, in refusing to fix a non-parole period, gave three reasons: (1) the appellant had breached parole on three prior occasions; (2) the gravity of the offence which affected the breach of parole; (3) only a very short period had elapsed from the time the appellant was released on parole.  
6 On the hearing of the appeal, Mr Lang, who appeared for the appellant abandoned the first ground of appeal which asserted that the sentence was manifestly excessive.  He submitted, however, that the learned sentencing magistrate had erred in declining to fix a non-parole period as there were significant indications that the appellant had been making a concerted effort towards his rehabilitation.  In particular, matters were set out in the Parole Board report which showed that the appellant had applied himself to various courses and lifestyle modification programs.  There was also an observation that his behaviour had improved while in prison.  Mr Lang referred to the circumstances in which the present offending occurred as described in the affidavit of Ms Heeley, which indicated that the appellant was the subject of considerable stress at the time of the current offending.
7 Mr Lang referred to the decision of Flentjar v Wright (1986) 42SASR 246, in particular the judgment of Johnston J. Although that case was decided under a different legislative, scheme, it highlights the desirability of a period of allowing a prisoner a period of release on Parole. As Johnston J said (at 262):
"... it offers the opportunity of harmonising the perceived short-term interest of the public to have the prisoner removed from the society with the longer term interest of the prisoner in rehabilitation and the longer term interest of the public in his rehabilitation."
8 In that case, the court fixed a non-parole period, notwithstanding the prisoner’s long history of persistent offending and prior parole breaches.
9 In this case, the magistrate was, not surprisingly, influenced by the short period between the date on which the appellant was released on parole and the commission of the breaching offence.  Mr Lang submitted, however, that this was a breach of parole which took place after a period in which the appellant had shown a significant change in behaviour as demonstrated by the information contained in the report of the Parole Board which says inter alia:
"Although he has a long history of contact with the Correctional Services, it would appear since his last review that Mr Gibson has made a concerted effort to modify his offending behaviour.  He has participated in all identified programs and in addition is still carrying a reasonably heavy educational workload. 
Mr Gibson’s previously erratic behaviour pattern appears to have ameliorated, particularly since successfully completing the Black and White Consultancy Program ‘Reclaiming Our Future’ and is now occupied on a regular basis in a work environment where- he feels confident and competent."
10 Mr Lang described the current breach of parole as an unfortunate interruption with respect to the rehabilitation of the appellant which was explicable on two bases, firstly, his inability to access the parole system and secondly, the fact that he was suffering some stress at the relevant time.  It appears that upon the appellant's release from prison, he was not provided with any form of introduction or identification by the Correctional Services Department and the assigned parole officer was on holidays at the time that he attended at the department.  The appellant was therefore deprived of departmental support and assistance which he required and which he was anxious to receive. 
11 In addition, the appellant was informed just a few weeks after his release that his brother had been impersonating him and receiving Centrelink payments for the previous eight months.  Centrelink told the appellant that his payments therefrom would be frozen while an investigation into the fraud was undertaken.  This left the appellant without any income and no likelihood of income in the foreseeable future.  The appellant’s brother was subsequently charged in relation to the Centrelink fraud.  In an attempt to drown his sorrows in relation to these circumstances, the appellant became grossly intoxicated in the course of which he committed the present offence.
12 In this case, the appellant is subject to a lengthy term of imprisonment.  There is evidence that he has made some progress towards rehabilitation.  The Parole Board report comments on difficulties he experiences in coping with an organised life outside of the prison system, yet upon his release from prison, he appears to have been denied the essential support structures which had assisted in promoting his rehabilitation within the prison system.  The magistrate, understandably took a serious view of the appellant’s offending and his breach of parole but in so doing, in my view, gave insufficient weight to the unusual combination of circumstances which, on this occasion, affected the appellant upon his release from prison.
13 In all the circumstances, I propose to allow the appeal to the extent that I fix a non-parole period of two years to commence from 11 November 1998.