GRAHAM v Police - [2008] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GRAHAM v POLICE
[2008] SASC 122
Judgment of The Honourable Justice Kelly
5 May 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence - appellant sentenced to one year one month and four days imprisonment for theft contrary to s 134 of the Criminal Law Consolidation Act 1935 and aggravated impede in a threatening manner contrary to s 20(1)(e) of the Criminal Law Consolidation Act 1935 - whether magistrate erred in declining to suspend sentence - whether sentence manifestly excessive.
Held: no error by magistrate - circumstances of the offences were serious - appellant had numerous prior convictions for violence and dishonesty - head sentence and non parole period well within an appropriate range - notwithstanding prosecutor's attitude to suspension, the decision not to suspend was within the magistrate's discretion - appeal dismissed.
Criminal Law Consolidation Act 1935 s 20(1)(e), s 134, referred to.
Ienco v Kraft and Modra (1990) 53 SASR 40; R v Nemer [2003] 87 SASR 168, discussed.

GRAHAM v POLICE
[2008] SASC 122
Kelly J
Introduction

This is an appeal against a sentence imposed in the Adelaide Magistrates Court on 22 January 2008. The appellant pleaded guilty to one count of theft contrary to Section 134 of the Criminal Law Consolidation Act 1935 and one count of aggravated assault contrary to Section 20(1)(e) of the Criminal Law Consolidation Act 1935. The maximum penalty for theft is 10 years and the maximum penalty for aggravated assault is 3 years.
The circumstances of the offending accepted by the learned magistrate were, that about 6.00am on 21 April 2007, the appellant, in company of two others, including a woman named Ms Taylor, confronted the victim who had just left the Adelaide Casino and was walking across North Terrace up to Bank Street. Ms Taylor asked the victim for any small change which he had. When he declined to give her any small change, Ms Taylor took his wallet and the contents from him. The appellant pleaded guilty to that theft on the basis that he was party to a joint enterprise to steal. He stood in the path of the victim and stopped him from leaving and did so in a threatening manner. The police were called, the appellant was identified and arrested nearby.
The magistrate, after taking into account the plea of guilty and a period of 1 month and 27 days for time already spent in custody, imposed a head sentence of 1 year 1 month and 4 days. He declined to suspend the sentence. As the appellant was on parole at the time of the offences, he thus had to serve the outstanding balance of the unexpired parole in the total amount of 1 year 3 months and 14 days. Effectively therefore, the overall sentence imposed by the magistrate was a total head sentence of 2 years 4 months and 18 days. He fixed a non parole period of 15 months.
Grounds of Appeal
The appellant appeals on the basis that the head sentence and non parole period are both manifestly excessive and the magistrate erred in failing to find a good reason to suspend the sentence of imprisonment.
It was contended on appeal that the magistrate had specifically erred by failing to recognise the significance of the appellant’s mental illness, by placing too much emphasis on deterrence in the light of the appellant’s circumstances, by failing to exercise compassion and an appreciation of the particular vulnerability of a young schizophrenic Aboriginal man from a tragic family background, by forming an erroneous view of the appellant’s prospects for rehabilitation and failing to take into account the necessity of rehabilitation and addressing the proper management of the appellant’s mental health.
It was contended that good reason to suspend the sentence could be found in the appellant’s prospects for rehabilitation and the need to supervise and address his mental health issues.
Background
The appellant is a 22 year old Aboriginal man originally from Point Pearce, Yorke Peninsula. He has numerous convictions for offences of dishonesty and violence, including both assault and assault occasioning actual bodily harm, and other behavioural offences.
On 14 April 2004 the appellant was sentenced for an offence of carrying an offensive weapon and assault. On that occasion the appellant was placed on a bond to be of good behaviour for 2 years. On 13 May 2004 the appellant was convicted for the offence of occasioning actual bodily harm and sentenced to 2 months imprisonment which was suspended on condition that the appellant enter into a bond to be of good behaviour for 2 years and accept 12 months supervision.
Later that year on 14 October 2004 the appellant was sentenced for a number of counts of breaching bail and another offence of driving or using a motor vehicle without consent. For those offences he was sentenced to 3 months and 2 weeks imprisonment and again given the benefit of a suspended sentence to be of good behaviour for a period of 12 months. On 4 October 2006 the appellant was dealt with for a total of twenty two offences including three of assaulting police, one of assault and two charges of theft. The offending in respect of which the appellant was sentenced on 4 October 2006 breached all of the previous bonds which the appellant had entered into. On that occasion he was sentenced to 2 years imprisonment with a non parole period of 6 months. On 12 February 2007 he was sentenced for carrying an offensive weapon at night in or near licensed premises and was sentenced to a further period of 1 month imprisonment.
On 10 April 2007 the appellant was released on parole. 11 days later he committed the offences for which he was dealt with by the magistrate.
The appellant was originally charged with major indictable offences. As a result of negotiations between the solicitor employed by the Director of Public Prosecutions and the appellant’s solicitors, a fresh complaint alleging the current offences, was laid in the Adelaide Magistrates Court and the matter was listed for hearing on 18 October 2007. The matter was not finalised on that day, as Mr Grasso SM, the magistrate then assigned to the matter, refused to accept the factual basis which had been negotiated by both parties. The matter was therefore remanded off for further negotiations to occur.
Eventually the matter came on again for hearing before the sentencing magistrate on 17 January 2008. The prosecutor then appearing on behalf of the respondent, supported a suspended sentence of imprisonment.
Analysis
The appellant’s main submission on appeal was that the starting point of 18 months for the head sentence was, in all of the circumstances, too high. Counsel for the appellant pointed to the minor role played by the appellant in the decision to steal the victim’s wallet, the fact that the offence was not pre-meditated and to the fact that the appellant himself offered no direct physical violence to the victim.
That submission needs to be evaluated in the light of all of the circumstances surrounding the offending. It could be said that no direct physical violence was in fact necessary, given that there were three offenders present who accosted the victim as he walked home alone in a relatively deserted street early on a Sunday morning. The fact of the joint enterprise itself provided the necessary intimidation to the victim to hand over his wallet.
Notwithstanding the downgrading of the charges by the prosecution during the course of negotiations, the two charges for which the appellant was to be sentenced were correctly categorised by the magistrate as both serious and prevalent. Moreover the appellant had an extensive antecedent record which included prior convictions for offences of both violence and dishonesty.
Notwithstanding these matters, the appellant submitted that the magistrate gave inadequate weight to his age, physical and mental condition and in particular, to the possible effects of the mental illness which the appellant was later found to be suffering.
All of these matters were dealt with in a pre-sentence report which was before the magistrate. The author of that report commented on the appellant’s previous alcohol and drug use, including both cannabis and amphetamines.
It is evident from the pre-sentence report that on 31 May 2007 whilst incarcerated at the Adelaide Remand Centre the appellant exhibited symptoms of a mental health illness. He was diagnosed with Schizo Affective Disorder and was prescribed anti-psychotic and mood stabilising medication.
It is clear from the remarks of the magistrate that he took into account this fact. However, he could hardly ignore the conclusions expressed in both the pre-sentence report and the report from the Parole Board, neither of which were positive as to the prospects of rehabilitation.
The author of the pre-sentence report concluded that although the appellant was motivated to make changes, in practice, he found it difficult to follow through on tasks set and agreed upon during periods of supervision. The author’s opinion was that despite intensive supervision and the close oversight of the Parole Board, the appellant would find compliance with his parole conditions challenging.
The report from the Parole Board bears out the concerns expressed by the author of the pre-sentence report. In particular, the author of the Parole Board report noted that it was unfortunate that whilst previously incarcerated in Mobilong Prison, the appellant had not had the opportunity to complete an Alcohol and Other Drugs Program and an Anger Management and Domestic Violence Program that he had started to undertake, because there was insufficient time for him to complete those courses during his incarceration. In that context it is noteworthy that within 11 days of release from that particular period of incarceration, the appellant committed the current offences. All of this material was before the magistrate and I do not accept that he has overlooked any of it.
It is a well established principle that an appellate court will not interfere with a magistrate’s sentence merely because it considers that the sentence is more severe or less severe than the sentence which the appellate court would have imposed.
In this case, I consider that the sentence arrived at by the magistrate was well within the range available to him. Apart from the complaint that the starting point for the sentence for the two offences was manifestly excessive, no specific error has been identified. It is clear that the magistrate applied a discount for the early plea of guilty and deducted the time spent in custody from both the head sentence and non parole period. The magistrate was faced with an additional complicating factor in that any immediate custodial sentence imposed by him would activate the unexpired balance of parole from the previous sentence.
The appellant complains that the magistrate erred in failing to find good reason to suspend the term of imprisonment he imposed. It was submitted that the factors personal to the appellant, including his quite tragic background, his age and his subsequently diagnosed mental illness, were all factors which amounted to good reason to suspend.
Those factors were relevant, both to the imposition of the non-parole period and to the discretion to suspend. However, there is no suggestion that the disorder from which the appellant was found to be suffering after the offences were committed, had any impact on the appellant’s ability to appreciate the gravity and significance of his conduct at the time of the offences. In fact there was no material before the magistrate which suggested any causal relationship between the appellant’s mental difficulties and the commission of these offences.
Moreover, there is no suggestion that the magistrate ignored or overlooked the contents of both of the reports dealing with those issues. In his remarks the magistrate specifically referred at some length, to the material contained in the reports.
He was faced with a difficult dilemma. The circumstances of the offending were serious. Although the appellant is still, at 22 years, a young man, he has a bad record. The reports tendered during the sentencing process were less than positive as to the appellant’s prospects of rehabilitation and his ability to comply with supervision and parole conditions. He had previously breached a number of bonds and he had been on parole for a period of only 11 days before committing these two further offences.
The appellant also complained that the prosecutor’s support for a suspended sentence was a relevant and important factor which had not been accorded sufficient or any weight, by the magistrate.
It is true that at the hearing before the magistrate, the prosecutor did support a suspended sentence. Upon the hearing of this appeal counsel then appearing for the respondent, conceded that this concession was “generous”.
Some reliance was placed on the comments of Olsson J in Ienco v Kraft and Modra (1990) 53 SASR 40. Those comments concerning the weight to be given to a joint suggestion by both the prosecution and defence, that leniency be extended, must now be read in the light of more recent decisions of the Court of Criminal Appeal.
In R v Nemer [2003] 87 SASR 168 at 173, Doyle CJ said:
In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision acting in the public interest: Malvaso v The Queen (1989) 168 CLR 227 at 233 (Malvaso). The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director’s attitude to a given case a matter that should influence the court: R v Malvaso (1989) 50 SASR 503 at 509-510 per King CJ. The court must make its own decision, acting according to law and in the public interest. In particular, the court is not bound by any agreement or arrangement reached between counsel for the offender and the Director in the course of the sentencing process. As Mason CJ, Brennan and Gaudron JJ said in Malvaso (at 233)
The court’s sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea bargaining agreement.
Although the Chief Justice was in the minority in that case as to the disposition of the appeal, the court was in agreement as to that statement of general principle.
Obviously there will be cases where a submission by the prosecution supporting a suspended sentence will be accorded great weight. In other cases such a submission may not carry much weight at all. It all depends on the circumstances.
In this case I consider that it was open to the magistrate to conclude, as he must have, that none of the circumstances either alone or in combination, amounted to good reason to suspend.
In the light of the reports, there appears to have been a very good reason why the magistrate structured a sentence which would give the appellant sufficient time in custody to complete some of the rehabilitation programs offered whilst in custody but at the same time allow for a lengthy period of parole under supervision, to serve the balance of his sentence.
In conclusion, the head sentence and non parole period imposed by the magistrate were well within an appropriate range. Notwithstanding the mitigating circumstances including the appellant’s unfortunate background and psychological difficulties, it was open to the magistrate to conclude that the exercise of the discretion to suspend the sentence was not appropriate in this case.
He had careful regard to all of the material before him and no error has been identified which would justify this court in interfering with the sentence he imposed. I would add that in the light of the appellant’s previous breaches of bonds, his prior record and the fact that he was on parole for other offences of violence and dishonesty, the prosecutor’s concession that a suspended sentence was appropriate, was not only generous, but surprising.
For these reasons the appeal will be dismissed.