GRANDINETTI v POLICE - [2008] SASC 239

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GRANDINETTI v POLICE
[2008] SASC 239
Judgment of The Honourable Justice David
29 August 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - CUMULATIVE OR CONCURRENT SENTENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - EFFECT OF PLEA OF GUILTY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - DISCRETION OF COURT
Appeal against sentence - appellant pleaded guilty to two counts of serious criminal trespass in a place of residence, two counts of theft, one count of illegal use of a motor vehicle, one count of serious criminal trespass (non-residential) and one count of deceiving another to benefit himself - offences all committed on 2 April 2007, three days after appellant was released on parole - magistrate sentenced appellant to 44 months and 24 days imprisonment with non-parole period of 40 months - offences grouped and separate sentence set for each grouping - sentences made cumulative - principle of totality applied before reduction for guilty pleas and time spent in custody, and addition for unexpired period of parole - whether magistrate erred by accumulating sentences - whether magistrate erred in applying principle of totality - whether magistrate erred in insufficiently crediting appellant for guilty pleas - whether magistrate erred in settting non-parole period.
Held: Appeal dismissed - magistrate carefully considered whether sentences were to be cumulative or concurrent and conclusion he came to was open to him - although magistrate erred in application of principle of totality, the error would have made little, if any, difference to sentence he set - reduction for guilty pleas well within range - although non-parole period high proportion of head sentence, no error identified.
Criminal Law Consolidation Act 1935 (SA) s 86A, s 134(1), s 139(a), s 169(1), s 170(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 31(2)(b); Magistrates Court Act 1991 (SA) s 42, referred to.
The Attorney-General v Tichy (1982) 30 SASR 84; R v Place (2002) 81 SASR 395; [2002] SASC 101, considered.

GRANDINETTI v POLICE
[2008] SASC 239
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against sentence.
The appellant seeks permission to appeal out of time in relation to a head sentence of 38 months and 22 days, cumulative upon an outstanding parole period of six months and two days, with a non‑parole period of 40 months. The appellant pleaded guilty to two counts of serious criminal trespass in a place of residence, two counts of theft, one count of illegal use of a motor vehicle, one count of serious criminal trespass (non‑residential) and one count of deceiving another to benefit himself. A magistrate imposed the sentence for the offences on 22 November 2007. A notice of appeal was filed in the Magistrates Court on 10 June 2008.
An appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) must be commenced within 21 days after the date of the judgment being appealed against.[1] The appellant was clearly out of time, and has asked for an extension of time. Having heard argument, and after having received an affidavit from Elizabeth Eleanor Masfield, the solicitor acting for the appellant, I believed there would be a miscarriage of justice if the time to appeal was not extended. Accordingly, I allowed an extension of time and heard the matter on its merits.
[1] Supreme Court Civil Rules 2006 (SA) r 283(1).
Background
I set out the first Information with the offences to which the appellant pleaded guilty:
1.On the 2nd day of April 2007 at Millicent in the said State, entered a place of residence of [the victim] as a trespasser with the intention of committing an offence to which this section applies namely theft.
Section 170(1) of the Criminal Law Consolidation Act, 1935.
…
2.On the 2nd day of April 2007 at Millicent in the said State, committed theft by taking a mug, two necklaces, jewellery bag and money to the amount of fifty dollars collectively of a value involving $2,500 or less the property of [the victim] dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.
Section 134(1) of the Criminal Law Consolidation Act, 1935.
...
3.On the 2nd day of April 2007 at Kongorong in the said State, entered a place of residence of [the victim] as a trespasser with the intention of committing an offence to which this section applies namely theft.
Section 170(1) of the Criminal Law Consolidation Act, 1935.
…
4.On the 2nd day of April 2007 at Kongorong in the said State, committed theft by taking compact discs, video cassettes, [a] portable video camera, four shopping bags and a pillow case collectively of a value involving $2,500 or less the property of [the victim] dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.
Section 134(1) of the Criminal Law Consolidation Act, 1935.
...
5.On the 2nd day of April 2007 at Lucindale and other places in the said State, drove a motor vehicle without first obtaining the consent of [the victim] the owner thereof.
Section 86a of the Criminal Law Consolidation Act, 1935.
...
6.On the 2nd day of April 2007 at Robe [in] the said State, entered a non‑residential building of Robe Foodland as a trespasser with the intention of committing an offence to which this section applies namely theft.
Section 169(1) of the Criminal Law Consolidation Act, 1935.
...
On a separate Information the appellant also pleaded guilty to the following offence:
…
2.On the 2nd day of April 2007 at Millicent in the said State deceived K & S Ampol Pty Ltd and, by doing so dishonestly benefited himself, the nature of the benefit being petrol of the value $25.00.
Section 139(a) of the Criminal Law Consolidation Act, 1935.
...
The offences all took place on the same day, namely 2 April 2007. The appellant had been released on parole three days earlier. Having been taken into custody for the offending, the Parole Board issued a warrant for the breach of a designated condition of parole committed on 2 April 2007, namely not to enter the township of Mount Gambier. That breach having been proved, the Parole Board ordered that the appellant serve a sentence of six months and two days, being the balance of his parole. Such a term was to start from 10 July 2007. I am told in relation to that breach, that he was due for discharge on 11 January 2008. Therefore, when sentencing, the magistrate had to order that the head sentence for the offences for which he was sentencing commence from the expiration of the period of the balance of parole, and that that total head sentence and the non‑parole period be deemed to have commenced from 10 July 2007. There was no argument about that approach. The magistrate also deducted the time the appellant had spent in custody, from 2 April 2007 (the date of the offending) until 10 July 2007 (the commencement date), from the sentence he set.
The Offending
The appellant broke into private premises at Kongorong and stole items valued at less than $2,500 (count two on the first Information). A female companion then drove him to Millicent where he stole a motor vehicle (count five on the first Information). He then went to a service station and pretending to be a friend of the owner of the vehicle he was illegally using, used that person’s identification to secure fuel (count two on the second Information). Before doing that, he broke into a private residence in Millicent and stole jewellery and money (counts one and two on the first Information). He then drove the vehicle to the township of Robe, where he entered non‑residential premises, namely the Foodland supermarket, with the intention of stealing, although he did not actually steal anything (count six on the first Information). The appellant admitted the offending, cooperated with the authorities and returned the stolen property.
Appellant’s Personal Circumstances
At the time of sentence, the appellant was 41 years of age and had an extensive criminal history. He had just been released on parole, having been sentenced in the Adelaide Magistrates Court to a head sentence of 34 months and 19 days, with a non‑parole period of 28 months and 17 days for offences of non‑aggravated serious criminal trespass and dishonestly taking property committed on 16 November 2005. Two months and two days of that sentence was also comprised of an unexpired period of parole, from a period of 10 months imprisonment for similar offences to which he was sentenced on 17 May 2005. Prior to that time his criminal history for like offences was extensive.
It was put to the magistrate that the offences, which are the subject of the appeal, were committed in the context of a relationship breakdown following the appellant’s release from a protracted period in custody. As a result of the breakdown, he turned to old friends and splurged on amphetamines and alcohol. He was under the influence of amphetamines at the time of the offending.
The Sentence
In dealing with the matter, the magistrate adopted the methodology of giving separate sentences for appropriate groupings of offences, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”), and making those cumulative. The magistrate then reduced the sentence under the “totality” principle, and then further reduced the sentence for the appellant’s guilty pleas. As earlier mentioned, the head sentence finally arrived at was reduced by three months and eight days for the time spent in custody between 2 April 2007 and 10 July 2007. The magistrate then added a period of six months and two days for the unexpired period of parole to be served.
Using that methodology, he gave the following sentence:
In relation to the first Information
·counts one and two - pursuant to s 18A of the Sentencing Act one penalty of imprisonment for 20 months;
·counts three and four - pursuant to s 18A of the Sentencing Act, one penalty of imprisonment for 20 months, cumulative upon counts one and two;
·count five - imprisonment for 18 months, with a licence disqualification of 12 months, cumulative upon the other counts; and
·count six - imprisonment for 15 months, cumulative upon all other counts.
In relation to the second Information
·a period of imprisonment of one month, cumulative upon all other counts.
This amounted to a total of 64 months, which at that stage of his sentencing the magistrate reduced by 12 months to allow for the totality principle, giving a total of 52 months. He then gave an allowance for the guilty pleas, reducing the head sentence by a further by 10 months, to bring the total head sentence to 42 months. The magistrate then went through the process of deducting three months and eight days for time already spent in custody, coming to a head sentence of 38 months and 22 days. He then added the period of six months and two days unexpired parole, pursuant to s 31(2)(b) of the Sentencing Act. As a result, the total head penalty was 44 months and 24 days. The magistrate then fixed a non‑parole period of 40 months, to be backdated to 10 July 2007.
Appeal
Mr Vadasz, counsel for the appellant, now argues that the sentencing process has miscarried for a number of reasons:
1.the magistrate erred in accumulating the sentences in the manner in which he did because the offending was a course of conduct;
2.the magistrate erred in applying the principle of totality before he had made a deduction for the appellant’s guilty pleas;
3.the magistrate did not sufficiently credit the appellant for his guilty pleas; and
4.the magistrate set a disproportionate non‑parole period.
I deal with those arguments.
Accumulation of sentences
In my view, the dictum of Wells J in The Attorney‑General v Tichy[2] bears considering:
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterised, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterisation rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
The magistrate in this case carefully considered whether and what sentences should be concurrent or cumulative. In his remarks, he stated:
True it is they all happened on the one day in a run of offending but they were in separated towns and separate locations and it seems to me this conduct was a process of separate decision making. I have made allowance for combining the penalties for offences were committed at the same moment in time.
He rightly came to the view that although the offending took place on one day, the offences were distinct and separate. The way he approached his sentencing task could not be said to be incorrect. I reject that argument.
[2] The Attorney‑General v Tichy (1982) 30 SASR 84, 92.
Principle of totality
Mr Vadasz argues that the magistrate applied the principle of totality at the wrong stage of the sentencing process. When sentencing, the magistrate said:
I now turn to look at whether 64 months imprisonment as a result of that aggregated process is harsh or oppressive and whilst I can justify each individual penalty when they are aggregated, I think 64 months is excessive in all the circumstances of offending on one day. So I have reduced that by 12 months for what is called the totality principle. That gives rise to 52 months imprisonment. I am now going to make due allowance for a guilty plea. The authorities applicable to me give me a discretion and I will reduce the imprisonment that he would other wise had to have served by 10 months by reason of his guilty plea, so that is 42 months.
As can be seen, the magistrate dealt with the question of totality before dealing with the question of an allowance for the guilty pleas. In R v Place the Full Court said this would be an erroneous application of the principle:[3]
In our opinion the sentencing judge erred in applying the principle of totality to the provisional sentence at which he had arrived before taking into account circumstances of mitigation, including the plea of guilty. Whether the error had any significant effect upon the ultimate sentence imposed is difficult to ascertain, but his Honour adopted a process which increases the risk of error.
[Emphasis added.]
The magistrate also considered the question of totality before he deducted the period of three months and eight days for time spent in custody, and also before he added the non‑parole period of six months and two days which had to be served. In that regard, the magistrate has, in the technical sense, erred. The question of totality must be looked at in the light of the final notional sentence.
[3] R v Place (2002) 81 SASR 395, 426; [2002] SASC 101.
In my view, such a mistake would have made very little, if any, difference. The magistrate obviously had the total sentence he was working towards in mind, and the head sentence could not be considered to be manifestly excessive.
Allowance for the guilty pleas
Mr Vadasz argues that an allowance of 10 months for the appellant’s guilty pleas is inadequate. I reject that argument. The allowance of about 19 per cent is well within the range of reduction for pleas of guilty showing contrition.
Proportionality of the non‑parole period
This argument has caused me some concern. On a total head sentence of 44 months and 24 days, a non‑parole period of 40 months appears to be a very high proportion. However, I have to bear in mind that the magistrate was faced with an offender who had an extensive criminal record for like offences, had previously breached another period of parole and had only been released on parole for three days when he committed a number of similar offences to those for which he had been released on parole. The protection of the community, and both personal and general deterrence were both paramount in the sentencing process. I cannot say the magistrate has erred in setting the non‑parole period.
Conclusion
For the above reasons, I dismiss the appeal.