GRECO v POLICE

[2015] SASC 145

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

GRECO v POLICE

[2015] SASC 145

Judgment of The Honourable Justice Vanstone (ex tempore)

16 September 2015

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OBTAINING PROPERTY BY DECEPTION - SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE

Appeal against sentence - appellant pleaded guilty to illegal use of a motor vehicle, six counts of deception and theft - offending was in breach of parole - magistrate imposed sentence for new offending of ten months, reduced from starting point of 12 months for guilty pleas - sentence ordered to be served cumulatively on balance of appellant's unexpired sentence, leaving total sentence of two years, eight months and seven days imprisonment - whether sentence manifestly excessive - whether the magistrate's starting point of 12 months was too high - whether the discount applied by the magistrate for the guilty pleas (17 per cent) was insufficient in all the circumstances.

Held:  appeal allowed - in the absence of an explanation or an apparent reason for not allowing the discount of 30 per cent available for the pleas of guilty, the full discount or close to it should have been given - appellant re-sentenced.

GRECO v POLICE
[2015] SASC 145

Magistrates Appeal
Criminal

1. VANSTONE J (ex tempore):         This is an appeal against a sentence imposed in the Magistrates Court.  On 15 July 2015 the appellant pleaded guilty to illegal use of a motor vehicle, six counts of deception and theft, all offences being relatively minor ones.  The spate of offending, which took place during the days 23 and 24 March 2015, triggered a breach of the appellant’s parole.  When he first appeared in court for these offences, on 22 April, 2015, the appellant had already gone back into custody on account of breach of parole conditions. 

2. The appellant was sentenced on the day he entered his pleas of guilty.  After hearing submissions from counsel, the magistrate imposed a period of ten months imprisonment for the new offending.  That term was reduced from a starting point of 12 months on account of the appellant’s guilty pleas.  That reduction amounted to about 17 per cent.  (The appellant was entitled to up to 30 per cent.)  The sentence was ordered to be served cumulatively upon the balance of the appellant’s unexpired sentence as at 23 March 2015, being one year, ten months and seven days, after deduction for time in custody.  This left a total head sentence of two years, eight months and seven days imprisonment, with the magistrate setting a non-parole period of 13 months.  Both the total head sentence and the non-parole period were ordered to commence on the day of sentence.  The magistrate further ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 14 months.

3. By notice of appeal dated 31 July 2015, the appellant seeks to challenge the sentence imposed.  The appellant’s overarching ground of appeal is that the sentence imposed was manifestly excessive.  That ground encompasses two distinct submissions, being that the magistrate’s starting point of 12 months imprisonment was too high, leading to an excessive head sentence for the new offending, and that the discount applied by the magistrate for the guilty pleas was insufficient in all the circumstances.

4. As the magistrate noted, the appellant is still a young man – being 22 years of age – and because of the breach of his parole he faces another substantial sentence.

5. As I mentioned, his early pleas of guilty could have attracted a discount of up to 30 per cent.  No reason was given by the magistrate for not allowing the full discount.  In the absence of an explanation, and there being no apparent reason for not allowing the full discount or close to it, and even though the difference between 17 per cent and 30 per cent did not make a large difference to the final sentence, I think that aspect of the sentence needs to be corrected.  I therefore propose to re-sentence.

6. The starting point of 12 months for these fairly minor examples of this offending was substantial;  particularly when the new sentence was to be added to the lengthy unexpired balance.  I would not have found the sentence to be manifestly excessive, but since I am to re-sentence I plan to reduce it a little.

7. In addition, I propose to adjust the way the magistrate dealt with the unexpired sentence.  His Honour allowed for time in custody and had the total sentence commence on the day of sentence.  I prefer to back-date the commencement of the unexpired sentence to the day when the appellant returned to custody.  That date is not absolutely clear but it is very close to 24 March 2015.  That works a little in the appellant’s favour, as well as making the record of the matter clearer.

8. In the end, the adjustment I shall make to the period before which the appellant might be paroled is only about four months.  That is a function of the necessarily long sentence the appellant received for the serious offences he committed in late 2013, for which he was on parole.

9. The orders I make are:

   1.     allow the appeal;

   2.     set aside the sentence imposed in the Magistrates Court;

   3.in its place impose a single sentence for the March 2015 offending of seven months imprisonment.  Record convictions on all eight offences;

   5.the appellant is to serve the balance of the sentence for which he was on parole being two years, one month and 23 days.  That term is deemed to have commenced on 24 March 2015.  The new sentence of seven months imprisonment is to be cumulative upon the balance of the previous sentence;

   6.a non-parole period of 13 months is set in respect of the total period of imprisonment, and that, too, is to date from 24 March 2015;

   7.the appellant is disqualified from holding or obtaining a driver’s licence for a period of 14 months, to take effect today, 16 September 2015.