Groutsch v Police No. Scgrg-99-521 Judgment No. S274

GROUTSCH v POLICE
[1999] SASC 274

Magistrates Appeal: Criminal

DOYLE CJ. (ex tempore) This is an appeal against a sentence imposed by the Magistrates Court. Mr Groutsch was charged with eight counts of receiving property known to have been stolen and one count of unlawful possession. He pleaded not guilty. The trial continued for several days. Mr Groutsch then pleaded guilty to four counts of receiving. Other charges were then withdrawn.
The magistrate imposed a single sentence of imprisonment for four and a half years and fixed a non-parole period of two years. The appeal is against that sentence. It appears from the magistrate's remarks that the property came to Mr Groutsch from other persons. The value of the property was about $27,000 in all, so it was a substantial amount. By the plea of guilty Mr Groutsch admits that he knew the property was stolen. The maximum penalty for this offence is imprisonment for eight years on each count. The maximum sentence that the magistrate could impose was two years on each count, a total of eight years.
Mr Groutsch says that he was minding the property for an acquaintance and received no benefit himself. The magistrate did not refer to that matter. I proceed on the basis that he accepted the claim, as I will. Apart from this, there is nothing by way of mitigation in the circumstances of the offence, subject to one matter to which I will refer later.
The magistrate reduced the sentence by 10% on account of the plea of guilty. In light of the stage at which it was entered, there can be no complaint about that.
I turn to Mr Groutsch's personal circumstances, on which the appeal largely turns.
Evidence was given to the magistrate by Dr Le Page, a psychiatrist. Mr Groutsch is 41 years of age. He had an unfortunate and disturbed childhood. His family was abandoned by his mother when he was young. He suffered physical abuse from his father. At a young age he manifested anti-social behaviour and spent some time in children's homes. While there he was further mistreated. Mr Groutsch himself has a history of alcohol and other drug abuse. Dr Le Page expressed the view that Mr Groutsch suffers from a dysfunctional personality disorder, attributable to his childhood, and from what seems to be chronic depression.
Mr Groutsch is very dependent on his wife and children for emotional support. He is also easily influenced by others and that appears to have played a part in the commission of the offence. Imprisonment will mean for Mr Groutsch a loss of his family support. Because of his dependent personality, that will be particularly significant for him. Imprisonment will of course, unfortunately, affect his family as well. In addition, Mr Groutsch suffers from agoraphobia, causing him to feel anxious in a crowded situation. He is likely to suffer panic attacks in prison.
In summary, Mr Groutsch has had a very disturbed childhood. This has produced a personality disorder that has played a part in the offence, and also means that imprisonment will be particularly hard for him because of his condition.
The magistrate referred to these matters. He was also referred to a judgment of the Court of Criminal Appeal in an earlier case involving the appellant, where the fact that imprisonment would be more difficult for Mr Groutsch than for most people was accepted.
As far as I can tell, the magistrate referred to all relevant matters. I can find no fault in his general approach. The magistrate was influenced by Mr Groutsch's record. It is not a good one. Mr Groutsch has a number of traffic and minor convictions. In November 1991 he was convicted on five counts of receiving. He was sentenced to imprisonment for 33 months, with a non-parole period fixed on appeal of nine months. I have read the judgment of the Court of Criminal Appeal dealing with that appeal.
In July 1992 he was convicted of unlawful possession and sentenced to imprisonment for three months. That sentence was suspended upon him entering into a bond to be of good behaviour for three years. I mention that that offence was committed before he was sentenced for the earlier receiving offences, but after those offences were actually committed. Mr Groutsch therefore has convictions that are directly relevant. As well, two of the offences to which he has now pleaded guilty were committed not a long time after the bond on his suspended sentence had expired. Unfortunately, previous imprisonment has not deterred Mr Groutsch from offending again.
I turn now to the points made in support of the appeal.
The first point is that Mr Groutsch received virtually no benefit from the offence. He was simply minding the property for a friend. The magistrate does not refer to this. I doubt whether he overlooked it. In any event, it is a relatively minor matter. Mr Groutsch provided a safe warehouse for the main offenders and so has given them significant assistance.
Next it is submitted that the magistrate should have sentenced Mr Groutsch on the basis that he was persuaded to commit the offences by another person, who was a somewhat dominating personality and that Mr Groutsch's susceptibility to influence by others, identified by Dr Le Page, played a part in this. This matter was put to the magistrate and not disputed by the prosecutor at the time. I do not think that the magistrate overlooked this matter. The magistrate's approach was that Mr Groutsch had to learn that he could not allow others to persuade him to offend. The magistrate was right to take that view. Mr Groutsch's vulnerable personality is a mitigating factor, but it cannot become an excuse for offending at the request of others. I am not satisfied that the magistrate was wrong in this respect. I mention as well, that the very same factor was put to the Court of Criminal Appeal in 1992. Mr Groutsch cannot expect the same extent of leniency when he fails to face up to his own failings. Nevertheless, this is a factor to be considered.
It is also submitted that the magistrate erroneously assumed that the evidence of Dr Le Page about Mr Groutsch's state was similar to the information put before the Court of Criminal Appeal. The point is made that Dr Le Page's evidence was more detailed. I am referring here in particular to the fact of Mr Groutsch being easily influenced and to him suffering more from a term of imprisonment than others would, because of his psychiatric problems. I do not think that the magistrate misunderstood what Dr Le Page was saying, and therefore I do not accept this submission.
Nor do I agree that the magistrate gave undue emphasis to Mr Groutsch's record in a general sense. It was an important factor.
Mr Tothill, appearing for Mr Groutsch, who said everything that could be said, criticized the magistrate's remark that the sentence imposed on this occasion should be greater than the sentence of 33 months imposed in 1991. There is force in that criticism. First of all, the earlier sentence was imposed at a time when remissions were available. That makes the process of comparison not a straightforward one. Secondly, the appropriate sentence depends on all the circumstances. On the other hand, in a very general sense, Mr Groutsch can hardly expect more lenient treatment for a later offence, which seems to have involved very similar personal considerations to the earlier offence.
I consider that this observation by the magistrate is indicative of error. Mr Groutsch could not expect the court to ignore his prior offending and to treat him as a first offender. As I said a moment ago, he could not expect the same weight to be given to the circumstances of mitigation. But there can be no rule of thumb that the sentence had to be increased. All of the circumstances had to be considered afresh. If, as seems to be the case, Mr Groutsch's mental condition continues to play a part in his conduct, then proper allowance still has to be made for that. It follows that to say that sentence must increase, is to some extent to ignore that matter. I realize that the magistrate's sentencing remarks were made ex tempore and that one has to be careful not to examine them too critically. However, I consider that in this respect, the sentencing discretion has miscarried.
Next, emphasis is put upon the effect of imprisonment on the appellant, because of his psychiatric condition. The magistrate considered that matter and I am not satisfied that his approach to it was wrong. The result is that while I do not accept most of the criticisms advanced, I consider that one of them succeeds and so I must re-sentence Mr Groutsch.
In considering the submissions on appeal I have canvassed the relevant matters. The offences are quite serious. This is also an offence that is fairly prevalent. The fact that Mr Groutsch has been in prison before for the same offence, makes it more difficult for me to extend leniency to him, than would otherwise be the case. A sentence that reflects the need to deter Mr Groutsch and others from this sort of offence is called for. There is also the fact that four offences are involved on this occasion. This is not an isolated incident. On the other hand, I also take into account that there has been a period during which Mr Groutsch has not offended. There is also the successful completion of his suspended sentence. I also accept that Mr Groutsch's dependent personality played a real part in the offence, but he simply has to learn that he cannot give in to others. Punishment is a crude way of teaching him that, but it must be used at times. I also take into account the effect of imprisonment on Mr Groutsch and on his family. I refer here to the evidence given by Dr Le Page. But once again, for a repeat offender, these things begin to carry less weight than they otherwise would. At a certain point, more emphasis has to be given to deterrence, although that need not be the only factor considered. I also take into account Mr Groutsch's plea of guilty and I likewise would allow a discount of about 10 per cent.
Under all the circumstances, I consider that a single sentence of imprisonment for three years and six months is called for. In relation to that head sentence, I fix a non-parole period of 18 months. The non-parole period is lower than would usually be the case. I fix it on the basis of Dr Le Page's evidence and to give Mr Groutsch one more chance to demonstrate that he can learn from experience. I hope that Mr Groutsch will be given such assistance as can be given to him while he is in prison and after he has been released, to grapple with what are obviously genuine, mental, problems. The orders of the court therefore are:
1.     that the appeal is allowed.
2.     that the sentence imposed by the Magistrates Court is set aside.
3...... that there is substituted a single sentence of imprisonment for three years, six months. I fix a non-parole period of 18 months. The head sentence and non-parole period are to run from 19 February 1999.
4.     that there be no order as to the costs of the appeal.

[1999] SASC 274

1 July 1999