GRAY v POLICE No. SCGRG-98-1483 Judgment No. S6928

GRAY v POLICE
[1998] SASC 6928

Magistrates Appeal: Criminal

MULLIGHAN J This is an appeal against a sentence of imprisonment for three months imposed by a learned Magistrate on 22 September 1998 upon the appellant having been convicted of illegally interfering with a motor vehicle contrary to s.86A of the Criminal Law Consolidation Act 1935
On that day, the learned Magistrate also had before him an application for a breach of an order made by another Magistrate on 20 November 1996 that the appellant undertake 72 hours of community service within a period of 12 months upon his having been convicted of the offences of unlawful possession and failing to leave premises.
The appellant pleaded guilty to the charge of illegal interference with a motor vehicle and was sentenced to imprisonment for three months, which the learned Magistrate declined to suspend. He was ordered to pay $150 by way of compensation for damage which he had caused to the vehicle. He admitted the breach of the order for community service and was sentenced to imprisonment for five days to be served cumulatively upon the sentence of three months.
He appeals against these sentences on the grounds that they are manifestly excessive, and the learned Magistrate was in error in failing to exercise his discretion to suspend them.
The appellant is aged 24 years. The illegal interference with the motor vehicle occurred at about 7.30 pm. on Friday, 28 November 1997 at Gilbert Street, Adelaide. The appellant was running along that street. He stopped in the vicinity of the motor vehicle, he grabbed hold of a passenger side door handle with both hands and pulled it up several times in a hard, jerking motion, causing the handle to break off the door. He placed the handle on the roof of the vehicle and ran away. This conduct was observed by a witness and the matter was reported to the police.
Police officers arrived at the scene at about 7.55 pm., and after making brief inquiries and receiving information, they located the appellant in Holland Street, which is to the south of Gilbert Place. He was taken to the Adelaide Police Station and arrested. When questioned, he said that he broke the door handle because he was breaking into the motor vehicle “just for the hell of it”. He said that he had decided to do so on the spur of the moment.
He told the police that he was running along Gilbert Street to escape from persons who were chasing him and who were armed with shotguns. It is reasonable to accept that no such incident occurred. Certainly, no such incident was reported by the witness who had seen the offending by the appellant.
The learned Magistrate was informed of the extensive record of the appellant of past criminal offending. It is unnecessary, for present purposes, to set out all of those convictions and the sentences imposed. It is sufficient to say that his offending commenced in 1993 when he was aged about 19 years and involves drug-related offences of a minor nature, offences involving dishonesty, possessing a firearm without a licence, breaches of bonds, illegal interference with a motor vehicle, carrying an offensive weapon, breach of bail, traffic offences involving drinking and driving, and some minor offences.
The appellant has had a difficult and troubled life. He had a poor relationship with his father who was uncaring and dismissive of him, and, at times, a troubled relationship with his mother, but not in circumstances which attract any blame to her. He developed a serious drug habit in that he became addicted to amphetamines, which condition existed in 1997, and at times in 1998, and earlier. It may be seen from his past record and his general circumstances that he has had great difficulty in living in society generally and in progressing himself in any meaningful way in his life. In recent times he has been seen by a psychiatrist who has reached the conclusion that he has a borderline personality disorder with a depressive component and that he is a lonely man. Psychiatric treatment is indicated.
It is necessary to mention one aspect of his prior criminal offending in some detail. On 8 November 1996 the appellant pleaded guilty to 12 offences which had been committed at various times in 1994 and 1996, with the exception of one offence, that of false pretences, which had been committed in 1993. The remainder of the 12 offences were for breach of a bond, illegal interference with a motor vehicle, being unlawfully on premises, unlawful possession, larceny, driving a motor vehicle without consent of the owner, driving a motor vehicle whilst disqualified from holding or obtaining a licence, and driving a motor vehicle with a prescribed concentration of blood alcohol. He was sentenced to imprisonment for a total period of 13 months with a non-parole period of six weeks. Fines were also imposed with respect to some of the offences.
When the appellant was arrested for the present offence on 28 November 1997, there was a period of his parole of some nine days which had not expired. The appellant had been in breach of his conditions of parole, and proceedings were taken by the Parole Board in September 1997. Those proceedings were not resolved until after the appellant was arrested on the present charge. Then the Parole Board decided to finalise the matter on 22 December 1997. By that time, the appellant had been in custody for 25 days. The Parole Board treated that period as serving out the balance of parole and also as an adequate penalty for breach of parole conditions. The appellant was released on that date.
The present matter came before the Magistrates Court at Elizabeth on various occasions during the course of 1998, and it appears that the appellant did not attend. On 14 July 1998 he was taken into custody pursuant to a warrant of apprehension issued by the Court, and he remained in custody until 26 August 1998 when he was granted bail. He was at liberty until 22 September 1998 when he was sentenced. He remained in custody under sentence until 22 October 1998 when he was granted bail pending this appeal. He has been in custody in all for 75 days in respect of this matter, 44 of which were before he was sentenced by the learned Magistrate.
My attention has been drawn to an issue as to whether the learned Magistrate was in error in not having regard to the unexpired portion of parole as it was at the date of the offence on 28 November 1997, but I do not think it is necessary to resolve that issue in this matter as there are other reasons, not in contention, to interfere with the sentence.
The troubled life of the appellant has continued since his release on bail pending the appeal. He had a relationship with a woman which seems to have ended. He has been admitted to hospital at the direction of his general medical practitioner and is to be transferred today, or soon, to the Glenside hospital. If he had a suitable home, then his general medical practitioner would discharge him from hospital at this time, but that is not the view which has been taken by his psychiatrist. There has been some problems caused by prescribed medicines which the psychiatrist directed him to take, but those difficulties seem to now have been overcome.
As can be seen, I have related some matters which have occurred since the appellant was sentenced by the learned Magistrate. It is appropriate now to return to his sentence and the reasons which he gave for it.
Pursuant to s86A of the Criminal Law Consolidation Act 1935, the penalty for a second or subsequent offence of interfering with a motor vehicle is imprisonment for not less than three months and not more than four years.
Before the learned Magistrate, the appellant was represented by counsel who submitted that there were sufficient reasons to suspend the sentence of imprisonment which was to be imposed. Considerable information was placed before the learned Magistrate as to the background and antecedents of the appellant, which I have briefly described. The learned Magistrate was dismissive of that matter. He said:
“There is nothing overly substantial in that, there are persons who never offend who have had difficult upbringings.”

In my view the learned Magistrate erred in his assessment of the information which had been placed before him. The appellant had had a very difficult life and at times had made some effort to resolve the difficulties, particularly during 1998 when he had not been in trouble with the law since he committed the subject offence. The information placed before the learned Magistrate indicated that he was making an effort to resolve his problems, including by medical and psychiatric treatment. I think there was something substantial about these matters which distinguishes the appellant from many other persons who appear before the courts and who have had difficulty in their upbringing.

The learned Magistrate characterised the offence of the illegal interference with a motor vehicle as not being the most serious of the nature of that type of offending and, in my view, he was correct in that assessment.
Whilst the material before him and before me does not permit any finding, it raises the suspicion that his mental condition may well have played a large part in such impulsive and foolish behaviour which constituted the offence.
The learned Magistrate took the view that he had no discretion but to impose a term of imprisonment. Upon considering whether to suspend the sentence, he acknowledged that he had a discretion to do so, but went on to say that unless it was exercised lawfully and appropriately, it was a discretion that Parliament would soon remove. I do not know if by that he was referring to the minimum sentence which is imposed by s86A or some other matter, but clearly he had a discretion to exercise, not only as to the length of the period of imprisonment, but as to whether such a sentence should be suspended. The past record of the appellant dictated that some sentence of imprisonment was justified.
It appears from his remarks on sentencing that the learned Magistrate took the view that he could not impose a sentence below the minimum term of imprisonment.
I think it is fair to say that he imposed the minimum sentence because of the circumstances of the offending. As I have said, he appears to have been dismissive of the background of the appellant, and he paid no attention to one very important matter, and that is the length of time that the appellant had spent in custody in relation to this matter, the 44 days, a period of something like one and a half months.
Section 17 of the Criminal Law Sentencing Act 1988 provides that where a special Act, such as the Criminal Law Consolidation Act 1935, fixes a minimum penalty, the Court may reduce the penalty below the minimum if good reason exists for doing so having regard to the character, antecedents, age, physical or mental condition of the offender or any other extenuating circumstance. The power to reduce also exists where the offence is trifling, but that provision has no application in the present circumstances.
In my view, the learned Magistrate was entitled to apply the provisions of s17 if he saw fit to do so and was in error in taking the view that he had to impose the minimum penalty provided by s86A of the Criminal Law Consolidation Act. He was also in error, in my view, in his characterisation of the background of the appellant.
Those matters justify interference on this appeal. I allow the appeal and I quash the sentence.
The sentencing discretion must now be exercised afresh. In doing so, I may have regard to the matters which have occurred since the appellant was sentenced. Those matters are that he has served further time in custody by reason of this offending and that his prospects of rehabilitation have been enhanced by his submission to appropriate medical and psychiatric treatment. I am informed that the general medical practitioner is encouraged by the progress of the appellant, although that is not necessarily the view of the psychiatrist. Nonetheless, the appellant has set himself on a course of assistance and treatment in this regard which is indicative of reasonable prospects of rehabilitation.
Given the past record of the appellant and the penalty imposed for this offence by Parliament, a fresh sentence must be a sentence of imprisonment. Like the learned Magistrate, I think the sentence should be at the lower end of the scale but, unlike him, I think it should take account of the time that he has spent in custody. I do not see any reason to interfere with the sentence imposed by reason of the breach of the community service order. It is not necessary to be arithmetical in calculations. I think the sentence should be imposed so as to equate, in effect, with the minimum penalty under s86A less the period spent in custody. With the sentence of five days’ imprisonment for breach of the Community Service Order, the total period should be imprisonment for three weeks.
Separate sentences have to be imposed, so I sentence the appellant to imprisonment for 16 days on the charge of illegal interference with a motor vehicle, and I confirm the sentence of five days on the charge of being in breach of a Community Service Order and direct that they be served cumulatively.
Unlike the learned Magistrate, I think there are good reasons to suspend the sentence. The sentences are suspended upon the appellant entering into a bond in the sum of $10 to be of good behaviour for a period of 12 months. The conditions of the bond are that he be under the supervision of a probation officer that he obey the reasonable directions of the probation officer as to his place of residence, employment and treatment and that he report to the Adelaide Office of the Department of Correctional Services within two days from this date.
I will indicate that I am available today to have him attend and enter into the bond.
As I understand, there is no reason to interfere with the order for compensation made by the learned Magistrate and I decline to do so.

[1998] SASC 6928

9 December 1998