Godfrey v Police

[2014] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

GODFREY v POLICE

[2014] SASC 190

Judgment of The Honourable Chief Justice Kourakis

11 December 2014

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

The appellant was sentenced on 30 November 2013 in the Adelaide Magistrates Court for a myriad of offences, largely of dishonesty. The appellant was sentenced to imprisonment for 41 months and two weeks with a non-parole period of 18 months. Credit was given for time spent in custody and on home detention. The appellant appealed against the judgment by the Magistrate and each of the sentences imposed.

Held:

The Magistrate erred in several respects of the sentence, making it appropriate to re-sentence the appellant.

The Magistrate improperly imposed two sentences consisting of an individual sentence on each offence and an overall s 18A Criminal Law (Sentencing) Act 1988 (SA) sentence (at [4]-[6]).

The sentence imposed for the offence of serious criminal trespass of non-residential premises is manifestly excessive in light of the appellant’s personal circumstances and explanation of the offending (at [10]).

The sentence imposed for the offences of unlawfully on premises and property damage are manifestly excessive as the offending arose out of one incident and therefore the sentence should have been concurrent (at [12]).

The head sentence did not adequately reflect the personal circumstances of the appellant.

The appellant was entitled to a discount of up to 40 per cent pursuant to s 10B(2)(b) Criminal Law (Sentencing) Act 1988 (SA).

The appellant is re-sentenced.

Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 10B, referred to.
R v Sevo (2006) 94 SASR 403, applied.

WORDS AND PHRASES CONSIDERED/DEFINED

"manifestly excessive"

GODFREY v POLICE
[2014] SASC 190

Magistrates Appeal:   Criminal

1. KOURAKIS CJ:    On 30 November 2013, in the Adelaide Magistrates Court, the appellant was sentenced for a long list of offences, largely of dishonesty.  Ms Godfrey was sentenced to imprisonment for 41 months and two weeks with a non-parole period of 18 months.  Credit was given for time spent in custody and on home detention bail.  The Magistrate ordered that the sentence commence on 21 August 2013.  Ms Godfrey is due to be released on 21 February 2015.  A list of the offences appears in a table at [26] of this judgment.

2. Ms Godfrey’s appeal first proceeded to hearing before another Judge of this Court.  The matter was relisted before me when that Judge found it necessary to recuse herself.

3. I have concluded that the Magistrate erred in several respects in the sentence she handed down and that as a result Ms Godfrey must be re-sentenced.  It is more convenient to re-sentence in this Court than to remit the matter.

4. The first error is one which affects the structure of the sentence imposed.  The Magistrate appeared to impose a sentence of imprisonment on each of the offences.  The formula adopted by the Magistrate in her sentencing remarks was to record “a notional head sentence” which she would have imposed but for the appellant’s plea of guilty and then to announce that that notional sentence would be reduced to a lesser one reflecting the reduction by reason of the plea of guilty.  I will refer to the sentence as adjusted for the guilty plea as “the adjusted sentence”.  The general formula used may be expressed as follows:

   As to the [X offence] of [date], I commence with a notional head sentence of [Y weeks] reduced to [Z weeks] on account of your plea.

   After announcing the adjusted sentence for each offence in that way, the Magistrate continued:

   The sentences total four years and 10 months.  I believe that that sentence would be crushing and reduce the sentence for totality to four years.  I give you full credit for your time in custody and partial credit for the time on home detention and the credit I give you is six and a half months.  That reduces your sentence to 41 months and two weeks.

   The Magistrate then fixed a non-parole period of 18 months.

5. Reading the sentencing remarks as a whole, it is reasonably clear to me that the Magistrate was indicating the individual sentences she would have imposed on each of the offences by way of explanation for the overall sentence which she then fixed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA). On the assumption that the Magistrate did intend to proceed in that way, there is much to commend her Honour’s approach. It exposes for consideration by both the public and the defendant, and any court of appeal, her Honour’s reasons. If her Honour had simply proceeded to impose the head sentence of 41 months and two weeks without that explanation, her reasons would for all practical purposes have been inscrutable.

6. Unfortunately, in actual form, her Honour’s sentence appears to impose two sentences; an individual sentence on each offence and an overall s 18A CLSA sentence.  The certificate of record of the Magistrates Court proceeds in the same way.  It sets out in one column the offence of which the appellant was convicted and then in a column to the right records the sentence imposed in months or weeks.  Immediately beneath those columns appears the notation:

   HEAD SENTENCE 3 YEARS 5 MONTHS AND 2 WEEKS DEEMED TO HAVE COMMENCED ON 21.08.13 WHEN DEFENDANT WENT BACK INTO CUSTODY... NON-PAROLE PERIOD OF 18 MONTHS DEEMED TO HAVE COMMENCED ON 21.08.13.

7. If the question were free of authority, I would have found that her Honour had simply imposed a single sentence pursuant to s 18A of the CLSA and that the certificate of record required correction to reflect the use of that power.

8. However, I am bound by authority to decide otherwise.  In R v Sevo[1] this Court considered the validity of sentences imposed on multiple charges in the District Court by a Judge who deployed a similar approach to the Magistrate in this matter.  Doyle CJ, with whom Bleby and White JJ agreed, said:[2]

   This approach was not open to the Judge having regard to the provisions of the Sentencing Act, and in particular to the provisions of s 18A.

   If the Judge’s wish was to impose separate sentences in respect of particular offences or groups of offences, as the Judge purported to do, any reduction for a plea of guilty or on account of considerations of totality, had to be reflected in those separate sentences. It is not possible under the Sentencing Act to impose separate sentences, as the Judge did, to aggregate those separate sentences, and then use s 18A of the Sentencing Act to reduce the aggregate. That results in more than one sentence for a given offence. For example, the court records show that for a particular offence of non-aggravated serious criminal trespass (non residential) and theft the court imposed a sentence of imprisonment for one year six months. But the court record also purports to record an aggregate head sentence of 18 years 10 months for this and other offences. That cannot be done.

   This is a case in which it was convenient to make use of s 18A.  There is no reason why the Judge should not have imposed a single sentence under s 18A for all offences, provided that they were offences that attracted a sentence of imprisonment.  But the proper approach was to indicate the sentences that would have been appropriate for individual offences if they were being dealt with individually, or as it has sometimes been said, to determine notional sentences, and in the course of doing so to decide whether, had s 18A not been utilised, it would have been appropriate for those indicative or notional sentences to operate concurrently with or cumulatively upon other indicative or notional sentences.  In this manner the appropriate aggregate sentence, to be imposed under s 18A, could be determined.  This would result in only one sentence of imprisonment being imposed in respect of all offences, that being done under s 18A, and being the aggregate of the indicative or notional sentences.

   That is quite different from imposing individual sentences, as the Judge did, and then imposing a further single sentence in respect of all offences under s 18A.

   …

   However the determination of a sentence in exercise of the power conferred by s 18A is approached, it is necessary to observe the distinction between indicative or notional sentences (that indicate how the single aggregate offence is determined), and sentences actually imposed (some of which might involve the use of s 18A) resulting in an aggregate sentence that is not imposed under s 18A, but is simply the sum of separately imposed sentences.  That is the distinction that the Judge has failed to observe.

   The failure to observe that distinction invalidates the sentences that have been imposed.  As I have said, the sentencing remarks and the court records indicate that the Judge has purported to sentence Mr Sevo twice in respect of each offence.  He has imposed a sentence in respect of individual offences and sometimes groups of offences, and then purported to impose a further single sentence under s 18A in respect of all of the offences.

   [1] (2006) 94 SASR 403.

   [2] (2006) 94 SASR 403 at [14]-[17], [20]-[21].

9. I am bound, therefore, to find that there has been an error which invalidates the sentence imposed by the Magistrate.  It is, therefore, necessary to proceed to re-sentence the appellant.  However, it is as well that I also record that there were other errors which, in my view, called for the appellant to be re-sentenced. 

10. I hold that the sentence imposed for the offence of serious criminal trespass of non-residential premises, committed on 19 December 2011, is manifestly excessive.  Ms Godfrey’s explanation for the offence is as follows.  The appellant’s husband, Mr Godfrey, after cutting off his home detention bracelet, and in contravention of an intervention order, sought out the appellant and made her “go bush” with him.  The appellant, who was on crutches, was left by Mr Godfrey at Tailem Bend.  The appellant went to the police station to seek assistance but it was about to close.  Instead, the appellant walked to a nearby real estate premises in order to find a place to sleep the night.  It was raining and the appellant was cold.  She broke a window of the premises and climbed inside.  Ms Godfrey stole by consuming food and alcohol.  She was found lying on the office floor, intoxicated and incoherent.

11. The apprehension report for that offence recorded that Ms Godfrey was found at the real estate agency lying on the floor of the office and that she had defecated in several locations within the office.  Police attempted to speak with her but she appeared intoxicated and incoherent, so instead she was conveyed to the Bridge Clinic and then to the Murray Bridge Soldiers’ Memorial Hospital.  Ms Godfrey was required to pay compensation to the value of $450.

12. I also hold that the sentences imposed for the offences of unlawfully on premises and property damage, committed between 15 and 18 July 2012, of 9 weeks and 1 month to be served cumulatively, are manifestly excessive.  Ms Godfrey went to a house which was under construction, and broke a window.  Counsel for the appellant submits that the sentences for breaking the window and property damage should be wholly concurrent as they arose out of the one incident or course of offending.  I accept that submission.

13. The offences of December 2011 and July 2012 are the product of the quite desperate circumstances then faced by the appellant, which I outline in [21]–[25] below. The Magistrate’s adjusted head sentences of 18 months and 13 weeks respectively do not adequately reflect those circumstances.

14. Finally, the respondent concedes that the appellant was entitled to a discount of up to 40 per cent pursuant to s 10B(2)(b) CLSA with respect to the offending of 17 April 2013 and 7 May 2013. The Information with respect to those offences was filed on 8 May 2013, the appellant appeared and entered guilty pleas on that day. The Magistrate’s adjusted sentences reflected reductions of no more than 33.3 per cent.

15. For all of the above reasons it is necessary to re-sentence the appellant. Before doing so I mention some unusual features of the course taken by this appeal.  As mentioned previously, this matter was referred to me by a Judge of this Court on 28 August 2014.  I heard this matter on 24 September 2014 and again on 9 October 2014.

    Bail Applications

16. On 13 October 2014, and before finally determining the appeal, I released the appellant on bail to reside at Catherine House.  I did so because of the tentative view which I had formed about the prospects of success on appeal having regard to the errors to which I have referred. 

17. Unfortunately, there was no available place for Ms Godfrey at Catherine House on 13 October 2014.  Rather than making contact with a Community Corrections Officer, Ms Godfrey attended at another address where she remained on bail[3] until 15 October 2014.  On that same day, Ms Godfrey failed to appear in Court.  Bail was revoked and a bench warrant issued for her apprehension.  Ms Godfrey was again granted bail on 20 October 2014 on conditions similar to those set out in the bail agreement dated 13 October 2014.  Ms Godfrey was once again bailed to reside at Catherine House.

    [3]    The appellant’s conditions of bail were altered by order of this Court on 14 October 2014 to reflect her residing at the new address.  A home detention bail enquiry report was subsequently ordered for this address. 

18. Catherine House would not accept Ms Godfrey on home detention bail which rendered the bail agreement of 20 October 2014 unworkable.  A Judge of this Court revoked bail and issued simple bail, which was entered into by the appellant on 23 October 2013 to allow her the opportunity to continue to reside at Catherine House.  A condition of that bail agreement was that Ms Godfrey was to appear before me in Court on 27 October 2014.  Ms Godfrey again failed to appear, bail was revoked and a warrant for her apprehension was issued. On 3 November 2014 Ms Godfrey was arrested on a bench warrant and an order made that she be returned to custody.

    Personal Circumstances

19. Ms Godfrey is a 45 year old woman who attended school until year 10, after which she obtained work in retail and hospitality.  Ms Godfrey has four children whom are no longer in her care.

20. Ms Godfrey has a lengthy antecedent history, commencing in 1989.  It includes offences of dishonesty, assault, breach of bail, assault with intent to rob, drink driving and damage property.  Ms Godfrey has breached a number of bonds, and received sentences including fines, community service, suspended sentences and immediate imprisonment.  The Magistrate correctly observed that “it shows that [Ms Godfrey’s] problems with honesty, drug taking and disregard for court orders are longstanding and not a recent phenomenon.”

21. Ms Godfrey has been involved in several disastrous relationships with men who were controlling, violent and drug addicted.  She also has problems with binge drinking.  Much of Ms Godfrey’s offending occurred whilst she was in a haze of drugs, and alcohol and during an extremely stressful time, at a time she was being abused by her husband.  Ms Godfrey has been a victim of domestic violence that has caused her significant physical harm.  Ms Godfrey has spent much time moving around with and away from Mr Godfrey.  She had much difficulty extracting herself from this destructive relationship.

22. It is of note, that in many of the Police Incident Reports it is recorded that Ms Godfrey has little recollection of what she has done or where she has been.  Dr Holmes, a psychiatrist on whose report the appellant relied, observed:

    Her mental health history is suggestive of an individual recently prone to drug induced psychotic states where she has acted, according to her own beliefs, in relatively out of character ways.  Yet her offending history is fairly replete with examples of similar behaviour.  … Overall, this may therefore suggest that she tends to act in these impulsive and disinhibited ways in the context of her drug use and perhaps with little recollection of these events thereafter.  With consistent and persistent speed usage individuals do tend to show an increased propensity for psychotic-like states in the context of continuing usage due to the effects of age related decline and brain related changes due to the effects of damage to the cortex. 

23. Counsel for Ms Godfrey argued that her mental state explains and mitigates her offending.  He puts that Ms Godfrey must have been in extremis mentally when she committed the offences.  There is much force in that submission. 

24. The report of Dr Holmes also revealed that whilst there may be few ongoing signs of a major metal illness, he considered that Ms Godfrey was likely to suffer from the effects of substance withdrawal.  Dr Holmes opined that some of Ms Godfrey’s more recent offending occurred whilst under the influence of drugs and alcohol.  Dr Holmes also observed some clear signs and symptoms of underlying post traumatic stress associated with past mistreatment by her partners and as a consequence of the violence perpetrated on her.  That condition comprises intrusive memories and thoughts, efforts to avoid thinking about these events, physiological arousal and anxiety and nightmares.  Dr Holmes opined that Ms Godfrey would benefit from psychological treatment and intensive drug rehabilitation.

25. A recent report of psychologist, Dr Begg, dated 13 November 2014 reveals that he saw no signs of psychosis present in Ms Godfrey but that there are features of post traumatic stress disorder.  Dr Begg also stated that whilst there has been excessive drug use, itself a problem, it is also likely that Ms Godfrey has abused drugs in order to suppress abnormal feelings including Ms Godfrey’s inability to tolerate the anxieties associated with her personality.

    The Offending

26. The following table sets out the file numbers, the charges, the date guilty pleas were entered, the notional and adjusted sentences identified by the Magistrate and the maximum penalty for each offence.  The final column of the table shows the sentences which, in my view, might appropriately have been imposed if Ms Godfrey were to be sentenced for the offences individually (the indicative sentence).   Lest it be suggested that I too am committing the error identified in R v Sevo, I make it clear that I am not ordering the imposition of those sentences on each count.  I intend to exercise the power conferred by s 18A CLSA.

Date	Charge	Guilty plea entered	Magistrate’s Adjusted Sentence	Maximum penalty	Indicative sentence
1	2.6.10	Theft – stole three chicken rolls from Caltex	30.10.13	6 weeks reduced to 1 month	10 years’ imprisonment*	2 weeks
2	14.10.11	Theft – stole cosmetics from Coles	30.10.13	6 weeks reduced to 1 month	10 years’ imprisonment*	3 weeks
3	19.12.11	Property damage – Broke window of First National Real Estate, Murray Bridge	30.10.13	2 months reduced to 6 weeks+	10 years’ imprisonment*	4 weeks
19.12.11	Serious criminal trespass (non-residential) – Entered the property	30.10.13	2 years reduced to 18 months+	10 years imprisonment*	12 months
19.12.11	Theft – stole and consumed food and alcohol	30.10.13	(as above – concurrent)	10 years’ imprisonment*	(as above, concurrent)
19.12.11 – 21.12.11	Breach bail – not residing at bail address – not residing at bail address	30.10.13	10 days reduced to 1 week+	2 years’ imprisonment or $10,000 fine	1 week
4	14.10.11	Breach bail – not residing at bail address	14.8.13	10 days reduced to 1 week	2 years’ imprisonment or $10,000 fine	1 week
5.1.12	Breach bail – not residing at bail address	14.8.13	10 days reduced to 1 week	2 years’ imprisonment or $10,000 fine	1 week
5	6.3.12	Assault – together with co‑accused abused the complainant at Woolworths, followed complainant to escalator, grabbed him complainant around the neck, and punched him in the face. Complainant suffered small cut to nose, bruising to face and was treated by ambulance officers.  Appellant and co-accused left the scene.	30.10.13	3 months reduced to 9 weeks	2 years’ imprisonment	9 weeks
6	6.3.12	Aggravated Assault	Withdrawn 30.10.13
7	2.7.12 6.7.12 11.7.12 11.7.12	Breach bail (x4) – breaches of home detention bail related to consuming alcohol and leaving address without permission	14.8.13 14.8.13 14.8.13 14.8.13	1 week 1 week 1 week 1 week (all reduced from 10 days)	2 years’ imprisonment or $10,000 fine per charge	1 week 1 week 1 week 1 week
11.7.12	Possession a prescribed drug without prescription – found in possession of Xanax (43 tablets) without a prescription	14.8.13	1 month reduced to 3 weeks	2 years’ imprisonment or $10,00 fine	1 week
8	15.7.12 – 18.7.12	Unlawfully on premises – attended a house under construction	30.10.13	3 months reduced to 9 weeks	2 years’ imprisonment	6 weeks
15.7.12 – 18.7.12	Property damage – broke window	30.10.13	6 weeks reduced to 1 month	10 years’ imprisonment*	(as above – concurrent)
9	19.7.12	Theft – stole a bottle of whiskey from Dan Murphys	14.8.13	6 weeks reduced to 1 month	10 years’ imprisonment*	4 weeks
10	21.7.12	Serious criminal trespass (residential) – broke into a residential property	30.10.13	2 years reduced to 18 months++	15 years’ imprisonment*	15 months
21.7.12	Theft – cooked food in kitchen and consumed	30.10.13	(as above – concurrent)	10 years’ imprisonment*	(as above – concurrent)
21.7.12	Provide false personal details – provided police with false personal details on arrest	30.10.13	Convicted with no further penalty	$1,250 fine or 3 months’ imprisonment	Convicted with no further penalty
21.7.12	False details on bail application – provided false information on bail application	30.10.13	Convicted with no further penalty	$1,250 fine	Convicted with no further penalty
21.7.12 21.7.12 13.7.13	Breach bail (x3) – breaches of home detention bail by consuming alcohol, not residing at bail address and failing to wear electronic monitoring device.	30.10.13	3 weeks++ 3 weeks++ 3 weeks++ (all reduced from 1 month)	2 years’ imprisonment or $10,000 fine per charge	3 weeks concurrent on all offences
11	17.8.12	Theft – stole a bottle of liquor from Dan Murphys	14.8.13	6 weeks reduced to 1 month	10 years’ imprisonment*	4 weeks
12	20.8.12	Theft – stole underwear	14.8.13	6 weeks reduced to 1 month++	10 years’ imprisonment*	2 weeks
20.8.12	Unlawful possession – found in possession of three bags of clothes in new condition with tags attached	14.8.13	4 months reduced to 3 months++	$10,000 or 2 years’ imprisonment	4 weeks
20.8.12	Breach bail – consuming alcohol	14.8.13	10 days reduced to 1 week++	2 years’ imprisonment or $10,000 fine	1 week
13	2.10.12 19.10.12	Breach bail (x2) – failed to return home	22.10.12 22.10.12	3 weeks++ 3 weeks++ (both reduced from 1 month)	2 years’ imprisonment or $10,000 fine	2 weeks
14	3.11.12	Theft – stole food from Foodland	14.8.13	6 weeks reduced to 1 month	10 years’ imprisonment*	3 weeks
15	21.2.13	Breach bail – in breach of curfew	14.8.13	6 weeks reduced to 1 month	2 years’ imprisonment or $10,000 fine	1 week
16	12.3.13	Theft – stole costume jewellery from Diva	30.10.13	6 weeks reduced to 1 month	10 years’ imprisonment*	4 weeks
17	9.4.13	Theft – stole number of bottles of alcohol from Liquorland	14.8.13	6 weeks reduced to 1 month	10 years’ imprisonment*	4 weeks
18	7.5.13	Aid and abet breach of bail – located with ex-husband who was on bail for alleged offending against her	8.5.13	1 month reduced to 3 weeks	$10,000 fine or 2 years’ imprisonment	1 week
17.4.13	Theft – stole alcohol from Dan Murphys	8.5.13	6 weeks reduced to 1 month	10 years’ imprisonment*	4 weeks
19	1.7.13	Unlawful possession – found in possession of quantity of cosmetics	14.8.13	6 weeks reduced to 1 month	$10,000 fine or 2 years’ imprisonment	4 weeks
1.7.13	Possession of a controlled drug – possession of methylamphetamine	14.8.13	Convicted with no further penalty	$2,000 fine or 2 years’ imprisonment or both

*The sentencing Magistrate was limited to imposing a sentence of two years imprisonment by virtue of s 5(2)(ba) of the Summary Procedure Act 1921 (SA) and s 19(3) of the CLSA.

⁺Each sentence to be concurrent with one another, but cumulative on other sentences.

⁺⁺Each sentence to be served concurrently.

Re-sentencing

1. The individual sentences imposed by the Magistrate, if accumulated, total four years and ten months.  The Magistrate reduced that notional total to a sentence of four years for totality.  The Magistrate then gave the appellant credit of six and a half months for time spent in custody and on home detention, resulting in a head sentence of 41 months and two weeks.

2. In arriving at the indicative sentences I would have imposed on each of the individual offences, I have taken into account questions of concurrency and overall totality, having regard to the common underlying causes of the offending and, in particular, Ms Godfrey’s mental health.  That approach explains in a  large part why my indicative sentences are generally lower than the Magistrate’s adjusted sentences.  It also means that there is no need for any further reduction for totality in fixing the overall sentence pursuant to s 18A of the CLSA.  I have also sentenced at a slightly lower level because I would place greater weight on the appellant’s distressed circumstance than the Magistrate appears to have.   It would not be thought, however, that the Magistrate was wrong to give those matters the weight she did.  It is in the nature of the sentencing discretion that different judicial assessments of such matters might be made.  Of course the indicative sentences on those offences with respect to which I concluded that the sentences imposed by the Magistrate were manifestly excessive are substantially lower.  Nonetheless Ms Godfrey’s repeated offending calls for reasonably strong specific deterrence and a sentence which gives some respite to the community.

3. The total of my indicative sentences is three years, eight months and one week.

4. Even though it is unduly beneficial to Ms Godfrey, I would allow her the same reduction, six months and two weeks, for time spent in custody and on home detention as the Magistrate.[4]  I also allow Ms Godfrey the additional benefit of her short, interrupted and troubled release on bail during the course of appeal.  I, therefore, impose a single sentence on all offences pursuant to s 18A of the CLSA of three years, one month and three weeks. 

   [4]    Calculations made by counsel for the DPP and accepted by defence counsel show that the appellant had spent 109 days in custody before 21 August 2013 (the date to which the sentence was backdated) and not 177 days as thought by the Magistrate. The longer period put to the Magistrate included time spent in custody between 21 August 2013 and the date on which Ms Godfrey was sentenced being 30 October 2013. Similarly, time spent on home detention was only 54 days and not 73 days.

5. I fix a non-parole period of 17 months.  The sentence will commence on 21 August 2013.

6. I acknowledge that the non-parole period is a higher proportion of the head sentence I have imposed than the proportion the non-parole period fixed below bears to the head sentence her Honour imposed.  However, in my view, and in particular, having regard to the appellant’s conduct when released on bail in this Court, the appellant’s prospects for rehabilitation on parole are relatively low.

7. Finally, I observe that the history of Ms Godfrey’s offending whilst on bail shows that she and the community may have been better served if a stricter approach had been taken to her release on bail.