Hardwick v Police; McKray v Police No. Scgrg-99-518, Scgrg-99-517 Judgment No. S446

[1999] SASC 446

HARDWICK v POLICE;  McKRAY v POLICE
[1999] SASC 446

Magistrates Appeal:  Criminal

1. WICKS J This is an appeal against sentences imposed upon the appellants by a Magistrate for the offence of breaking and entering and larceny contrary to s 170 (1)(a) of the Criminal Law Consolidation Act 1935. By information dated 23 February 1999 the appellants, McKray and Hardwick, were jointly charged with breaking and entering a dwelling house and therein committing larceny of a video cassette recorder, a camera, two watches, a bracelet and 136 compact discs, together of the value of $6,150. The circumstances of the offences are as follows.

2. On 1 February 1999 the appellants went for a walk to buy some cigarettes.  They were both experiencing difficulties in their personal lives, the details of which I will expand upon later, and financial problems.  As they walked past the victim’s house they decided to break in and thereupon committed the above offences.  In addition to taking property to the value of $6,150 the appellants caused $50 damage to the fly screen of a window of the victim’s house.  No other damage was caused.  The breaking and entering was committed upon residential premises during the day and no-one was home at the time.  Counsel for the appellants submitted to the learned magistrate and emphasised before me that the decision to break into the victim’s house was made on the spur of the moment.  It was not premeditated.

3. Each of the appellants pleaded guilty and was given a sentence of imprisonment of eight months commencing on 3 May 1999.  The learned magistrate declined to suspend the sentence in each case.

4. A weighty consideration bearing upon the imposition of the sentences by the learned magistrate was the fact that the appellants had broken into someone’s home.  This was considered to be much more serious than breaking into commercial premises as it had the effect of making the victim and society in general feel unsafe in their own homes: see eg R v Halse (1985) 38 SASR 594 at 596 per King CJ. In declining to suspend the sentence, after having stated the general principles regarding suspension of sentence pursuant to s38 of the Criminal Law (Sentencing) Act 1988, the learned magistrate said:

   “The trend in recent years has been towards many alternative penalties apart from immediate imprisonment.  There is good reason for that, because of the downside that applies to serving imprisonment in many cases.  I have to say however, that in your case I am not persuaded that good reason exist (sic) for suspending the sentence.  I believe there are good reasons existing for me not suspending the sentence because of what I said about the significance of house breaking to the householder.”

In stating that good reasons exist for not suspending the sentence, the learned magistrate fell into error. This point was conceded by counsel for the Crown in the course of argument. The applicable test is as quoted in s 38 of the Criminal Law (Sentencing) Act which reads as follows:

“38(1) ..... Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond-

(a)     to be of good behaviour; and

(b)     to comply with the other conditions (if any) of the bond.”

(Emphasis added)

As appears from the section, the applicable test is that the sentence may be suspended if the court thinks that good reason exists for doing so.  As the learned magistrate has erred in principle, I must consider the sentence afresh.

1. To assist me in this task, counsel for the appellants drew my attention to R v Halse (cited above), a decision of the Court of Criminal Appeal.  It is generally accepted that Halse sets out the tariff for breaking and entering offences.  In Criminal Law South Australia, the learned author interprets the tariff as follows: where the break and enter is a minor indictable offence committed by a first offender the average sentence is 9 to 12 months imprisonment.  For previously imprisoned defendants the sentence should be 12 to 18 months imprisonment and for offences involving property of greater value tried in the District Court the sentence should be longer.  However, King CJ at p 595 emphasised that “suspension must be a serious option in the case of a first offender.”  I note in passing that the Full Court has subsequently hinted that perhaps the tariff in Halse is too low and should be reviewed, see eg R v Smith (1990) 54 SASR 518 at 521 and 522. However, this has not happened, so I intend to follow Halse to the extent that it assists me.

2. Halse concerned breaking and entering of commercial premises by a “multiple breaker” and larceny of goods worth $4,000.  The court held that the sentence of three and a half years with a non-parole period of two and a half years imposed by the District Court was manifestly excessive.  The sentence was set aside and a sentence of two and a half years with a non-parole period of one and a half years was substituted.  There are a number of differences between Halse and the case on appeal before me.

3. The appellant in that case had an exceptionally poor criminal record including multiple convictions for offences of dishonesty and he was on bail when he committed the offence the subject of the appeal.  However, the premises into which he broke were commercial and not residential premises, the latter being an aggravating factor.  On that issue White J said this at p 596:

   “It is true that breaking into premises and stealing therefrom is both serious and prevalent, and that suitable deterrents ought to be fixed in suitable cases.  Breaking into unoccupied shop premises at night is not, however, as serious in its criminality or its sequelae as breaking into occupied home premises at night in that the latter offences are aggravated by the facts that homes are places where people feel safe and are entitled to feel entirely safe, that breakers intrude into their safe and private surroundings and put them in fear, and sometimes in danger, of injury, and that depredations by intruders bring a special kind of harm or risk of harm through the loss of irreplaceable mementoes and treasured items of sentimental value.”

4. Counsel for the appellants were at pains to stress the unhappy personal circumstances of each appellant.  Mr Hardwick is 23 years of age and single.  He endured an unhappy upbringing with a drunk and abusive father.  From the age of 14 Mr Hardwick began running away from home for weeks at a time staying with friends or living on the streets.  At the age of 16 the welfare authorities placed him in a Housing Trust flat to live by himself.  I note that Mr Hardwick’s criminal record contains only one dishonesty offence, namely, a conviction for breaking and entering at the age of 16.  As he was a juvenile at the time I do not take this prior conviction into consideration.

5. Mr Hardwick left school at 15 and obtained his first job as a factory hand.  After working there for some 12 months he went to Queensland in search of employment.  Being unable to find employment there he returned a few months later to live with his mother in Port Pirie.  There he worked in various jobs and then became unemployed whereupon he moved to Adelaide.  Here he obtained employment and formed a de facto relationship.  Unfortunately in July 1998 his de facto partner was attacked by a pit bull terrier and she thereafter became difficult to live with.  In reaction to the strain of the difficult relationship and the stress of his job, Mr Hardwick left Adelaide to join a show circuit working as a show attendant.  However, having realised that he was simply running away from his problems Mr Hardwick returned to Adelaide to attempt to patch up the relationship.  Unfortunately this attempt was unsuccessful.  Mr Hardwick committed the breaking and entering at a very low point in his life.  Counsel for Mr Hardwick submitted that Mr Hardwick is now living with his mother, has part time work at the smelters and is trying to sort himself out.  He attends counselling once a week at the Port Pirie Regional Health Service to help him with his finances and relationships and to deal with some residual issues arising from his difficult childhood.

6. In contrast Mr McKray has had the benefit of a stable upbringing and his family remains supportive of him.  He has been consistently employed since the age of 16 and has a partner and two young children aged 2 and 5.  At the time of the offence he was separated from his partner as they had been experiencing difficulties in their relationship and financial hardship.

7. Whilst the personal circumstances of the appellants may explain their behaviour on 1 February 1999 it does not excuse it.  However, both appellants pleaded guilty at the earliest stage, have obviously taken responsibility for their actions and have showed genuine contrition.  Counsel for both appellants submitted that the appellants show potential for rehabilitation and that should they be given the benefit of a suspended sentence they will go on to live law abiding lives.  Both show good prospects for future employment and I am particularly impressed by Mr Hardwick having sought counselling.

8. As recognised by the learned magistrate, breaking and entering a residence is a very serious offence and it is part of the function of the courts to protect the public from such offending.  However in Yardley v Betts (1979) 22 SASR 108 King CJ said the following at pp112-113:

   “To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm.  Times and conditions change, and the approach of judges to their task must be influenced by contemporary conditions and attitudes.  But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations.  They are summed up, in the aspects relevant to the present discussion, by Napier C.J. in Webb v O’Sullivan [1952] SASR 65 at p66:

   ‘The courts should endeavour to make the punishment fit the crime and the circumstances of the offender, as nearly as may be.  Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy.  We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.’

   The protection of the public must remain our first concern, but if, consistently with that, we can, in our compassion, assist another human being to avoid making ruin of his life, we ought surely to do so.”

9. I am of the view that there are good prospects of rehabilitation for the appellants and that they are likely to benefit from an exercise of the court’s clemency:  R v Kruger (1977) 17 SASR 214 at p221. I consider that each of the appellants should be treated as a first offender.

10. I am of opinion that, in the circumstances, the sentences imposed by the learned magistrate were manifestly excessive in one respect and that arose from his declining to suspend them.  In view of the fact that this is a first offence in respect of each of the appellants, I would be prepared to order suspension of the sentence.  In R v Buckman (1988) 47 SASR 303, King CJ said at p 304:

    “[A suspended sentence] is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non law-abiding ways.”

11. I propose to make no change to the term of imprisonment imposed by the learned magistrate.  I do, however, propose to order that the sentence of imprisonment be suspended on certain conditions.

12. For all of these reasons, I allow each appeal only to the extent necessary to enable me to order that the sentence of imprisonment imposed by the learned magistrate be suspended in each case on the appellant concerned entering into a bond to be of good behaviour for two years, requiring him to be under the supervision of a community Corrections Officer for a period of two years, requiring him within two working days of having signed the bond to report at the offices of the Department for Correctional Services at Angas Street, Adelaide and requiring him to perform 160 hours of community service within 18 months from the date of the bond and I so order.  In all other respects, I confirm the orders made by the learned magistrate.