Heal v Police No. Scgrg-98-1204 Judgment No. S6955

[1998] SASC 6955

HEAL v POLICE

[1998] SASC 6955

Magistrates Appeal

1 WICKS J The appellant was charged with attempted breaking and entering on 21 January 1998 contrary to s170 of the Criminal Law Consolidation Act 1935. He was also charged with being present on premises for an unlawful purpose contrary to s17 of the Summary Offences Act.
2 The attempted breaking and entering charge was withdrawn and the appellant pleaded guilty to the charge of being present on premises for an unlawful purpose.  The appellant came before the Magistrates Court at Holden Hill where a conviction was entered in relation to the charge of being on premises for an unlawful purpose.  The appellant was ordered to be imprisoned for three months, such sentence to be cumulative on the expiration of a term of 24 months’ imprisonment in relation to a breach of a bond to which I will next refer in these reasons.
3 There was also an application before the Court to enforce a breach of bond.  Details of this matter were that on 17 May 1995 the appellant appeared in the Magistrates Court charged with six counts of building breaking and entering and larceny.  He was convicted and sentenced to 24 months’ imprisonment suspended on his entering into a bond for $10 for three years conditioned on the appellant being of good behaviour.  A non-parole period of 21 months was fixed but this was reduced on appeal to 15 months.  The bond was breached on the appellant committing the offence of being on premises for an unlawful purpose on 21 January 1998.
4 On 8 July 1998, the bond was estreated and the sentence of 24 months’ imprisonment earlier imposed was ordered to be carried into effect forthwith.  This sentence carried with it a non-parole period of 15 months, to which I have already referred. 
5 Application was made on 23 February 1998 to the Magistrates Court alleging a breach of a Community Service Order.  A breach of the Order was admitted and on 8 July 1998 the appellant was sentenced to twelve days’ imprisonment which was ordered to be carried out forthwith.
6 The appellant was also charged with illegal use of a motor vehicle contrary to s86A of the Criminal Law Consolidation Act 1935. This offence carried a maximum penalty of two years’ imprisonment. He was also charged with driving a motor vehicle on a road without the appropriate licence contrary to s74 of the Motor Vehicles Act 1959. This offence carried a maximum penalty of $1250.
7 Pursuant to s18A of the Criminal Law (Sentencing) Act 1988, one sentence was imposed in respect of both counts of illegal use and driving without a licence. The appellant was convicted and imprisoned for a period of three months in relation to those charges, the term being cumulative on the sentence in respect of the offence of being on premises for an illegal purpose referred to earlier in these reasons. Also, for driving unlicensed, the appellant was disqualified from obtaining or holding a driver’s licence for 12 months.
8 The learned sentencing Magistrate purported to reduce the non-parole period in respect of the sentence to which the estreatment of the bond related. This is part of the original sentence of which the bond entered into on 17 May 1995 was part. In my view, power exists in subs32(1) and subs32(10) of the Sentencing Act to increase a non-parole period but no power exists to reduce it. Counsel for the appellant argued to the contrary, but in my view that argument cannot be accepted.
9 The grounds of appeal in this matter were that the sentences imposed were manifestly excessive and that the learned sentencing Magistrate erred in declining to suspend the sentences. 
Circumstances - On premises for an unlawful purpose

10 In relation to the offence of being on premises for an unlawful purpose, at about 11.21 pm on 21 January 1998 the victim was asleep in her bed when she heard noises at the front of her unit which sounded as if someone was tampering with the screens that were fitted to the front windows.  The victim got out of bed and went to the front door. She stated that she had been expecting her step-father to attend and collect some property, but when she looked through a small window to the left side of the front door she saw a male person bent over with his back towards her.  He was on the front porch.  She unlocked and opened the door and turned on the outside light and then saw the person who was not her step-father but a person she did not know.  The person concerned, a male, then ran towards the hallway which provided access to some upstairs units.  The victim then saw that someone had removed the wire screen from the front window of the lounge room and had placed it on the ground beside the window.  The window behind the screen was open as it had been hot and the victim was airing her unit.  The victim then went outside her unit and looked to an upper storey unit and saw a person through the unit’s window who was the same person she had seen outside of her own unit. 
11 Police were called and attended afterwards and found that the unit block concerned was a two storey type.  It had a rear fenced area right across the back of the units and a gate which opened to the car park area which faced towards the site of the units and alongside a set of stairs which led to the units upstairs, including unit 24.  After sighting the victim’s window and window screen, police knocked on the door of the unit concerned which was answered by a middle aged man who was spoken to.  Police were then shown to a bedroom and found the appellant in bed.  The appellant was then arrested and when spoken to he stated that he had been on his way home at about 11.20 pm and had got into the fenced area at the rear of unit 23.  He stated that he had used his fingers to push holes in the screen to unlock the chips holding it in place.  He had then taken the screen off to get into the flat.  He stated that he did not know what he was going to do once he got in but was only going to look around. 
Circumstances - Illegal use and driving without a licence

12 At about 12.30 pm on Wednesday 17 December 1997, the victim was approached by the appellant who enquired about cleaning her car.  The victim allowed this but advised the appellant not to drive the car.  She stated that a short time later the appellant approached her and stated that one of the tyres needed air and that he would take the vehicle to a service station.  The victim told him that she did not want him to take the vehicle to a service station and that he could park the vehicle across the road when he had finished cleaning it.  The victim stated that she then saw the defendant drive the vehicle around the car park and out into Cremorne Street towards Unley Primary School.  The victim stated that the defendant had gone for about 15 to 20 minutes. 
13 Some time around 1.45 pm the same day, a witness from the Unley Primary School at Malvern had her attention drawn to a beige coloured vehicle, which was the victim’s vehicle, outside the window of one of the office buildings in Rugby Street.  The vehicle was seen to be making sharp manoeuvres then coming to a sudden halt in front of the office window.  The witness said that the vehicle did this three times.
14 At about 6.40 pm on 19 December 1997, police spoke with the defendant who stated that he did clean the car concerned and that he had taken the car for a drive around the corner to wait for a park.  He stated that he was not the holder of a current driver’s licence.
15 The appellant has the following criminal history:
Criminal History

.      On the 6th December, 1996 at the Adelaide Magistrates Court on a charge of break and entering building and commit offence.  The defendant was convicted and ordered to perform 100 hours of community service within 9 months.

.        On the 28th of January, 1993 at the Holden Hill Court on a charge of common assault.  The defendant was convicted and sentenced to 2 months imprisonment which was suspended upon the defendant entering into a bond in the amount of $10.00 to be of good behaviour for a period of 2 years.

.        On the 27th of November 1995 at the Christies Beach Court for an application to enforce a breached bond.  The Court refrained from taking any action.

.        On the 6th of December, 1996 at the Adelaide Magistrates Court for an application to enforce the same breached bond, as mentioned above.  Again, the Court refrained from taking any action.

.        On the 17th of May, 1995 at the Holden Hill Court on 6 counts of break and enter building and commit offence.  The defendant was sentenced to 24 months imprisonment with a non-parole period of 15 months.  This sentence was suspended upon the defendant entering into a bond in the amount of $10.00 to be of good behaviour for  a period of 3 years.

.        On the 20th of December, 1994 at the Adelaide Magistrates Court on an application to enforce a breached bond.  The breach was found proved.

.        On the 16th of April, 1992 at the Adelaide Magistrates Court on an application to enforce a breached bond.  The breach was found proved and the defendant was ordered to pay $100.00.

The sentences imposed

16 I now turn to the question of whether the sentences imposed were manifestly excessive.  Looked at separately, the sentence for being on premises for an unlawful purpose is a very modest one and well within the learned Magistrate’s sentencing discretion.  This is particularly so having regard to the appellant’s criminal history.  Over the years he has been guilty of a number of offences, some of them quite serious, and appears to have been treated leniently and given every opportunity to amend his ways.  It is clear, however, that the messages given have simply gone unheeded.
17 For similar reasons I consider that the sentence imposed in respect of the conviction for illegal use and driving without a licence are not manifestly excessive.  A conviction for illegal use carries a maximum penalty of two years’ imprisonment.  The sentence in fact imposed was a light one.
18 In my view the individual sentences imposed for the offences to which I have just referred were not manifestly excessive having regard to the appellant’s criminal history, having regard to the fact that the offences were committed whilst the appellant was subject to a suspended sentence and having regard to the maximum sentence (and in one instance the minimum sentence) the court could have imposed.
19 In this case it would be entirely inappropriate for me to place the appellant on a bond in respect of the new offences which have been committed at the same time as the estreatment of an earlier bond is under consideration.
20 The difficulty so far as the appellant is concerned arises from the estreatment of the bond in respect of a conviction for building breaking and entering and larceny as a result of which the appellant has been required to serve a term of imprisonment of two years with a non-parole period of 15 months.  The non-parole period was originally fixed by the sentencing Magistrate at 21 months but reduced on appeal to 15 months. 
21 The next question is whether either subs58(3) or subs58(4) is open to me to reduce the sentence of 24 months or the non-parole period. It was implicit in the sentencing remarks of the learned sentencing Magistrate that the breach of the bond was not trivial, nor were there proper grounds upon which the breach could be excused: Criminal Law (Sentencing) Act 1988 subs58(3).
22 In R v Buckman (1988) 47 SASR 303, King CJ said at p304:
"                 There is a clear legislative policy ...  The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.

23 In considering whether "proper grounds" exist enabling the breach to be excused, regard should be had to the nature of the breach. In the circumstances here, there was a commission of a very serious offence. Also there had been numerous instances in the past where the appellant had failed to comply with conditions of bonds. The original offence of breaking and entering and larceny was serious and it would not be unreasonable for the sentence in respect of that offence to be activated in the circumstances: R v Buckman (ibid) per King CJ at 304. I do not think that subs58(3) of the Criminal Law (Sentencing) Act 1988 is applicable in this instance.
24 Sub-section 58(4) of the Criminal Law (Sentencing) Act enables the Court, on revoking the suspension of a sentence of imprisonment to reduce the term of the suspended sentence where it considers there are special circumstances justifying it in so doing.
25 I do not think that there are any special circumstances available in this case.  The only possibility would be the psychiatric and psychological evidence set out in various reports which are exhibits to affidavits before me. 
26 The report of Dr W E Lucas dated 16 May 1995 was before the court when the original 24 months sentence was imposed.  I am conscious of the fact that that advice was considered on an earlier occasion.  It appears that there has been an appeal in relation to it and that a judge of this court saw fit on that occasion to reduce the non-parole period from 21 months to 15 months. 
27 Additional psychological information has been placed before me and was placed before the learned sentencing Magistrate but as far as I can see, this additional information merely fleshes out Dr Lucas’ report and does not significantly add to the information available. 
28 I am of the view that in this case there are no "special circumstances" which would justify my invoking subs58(4) of the Sentencing Act
29 There remains the question of looking at the sentence as a whole and applying the principle set out in R v Smith and Shoesmith (1983) 32 SASR 219. In my view, that principle is not applicable here. The additional penalties imposed for what is clearly unrelated criminal behaviour from that which produced the original 24 months sentence when considered with that sentence produce a total sentence which is not unreasonable in the circumstances. I do not think any interference from me is warranted in relation to the application of the totality principle.
30 The appellant is 29 years of age.  He was abandoned by his mother at six months and subsequently was raised with a number of foster families as well as a children’s home run by a church organisation.  He has suffered a number of behavioural difficulties but has received treatment.  He is of lower than average intelligence and does not fit in with the mainstream of society, nor is his mental capacity such that he requires to be maintained in an institution.  There have been a number of threats of suicide.
31 Psychiatric advice is that the appellant would not fair well in prison.  He would be liable to be singled out for bullying and mistreatment at the hands of other prisoners.  None of this is new.  The information was available to the sentencing Magistrate and the sentencing Judge when the appellant was placed on a bond in the first place.
32 In this matter, in the absence of special circumstances within the meaning of subs58(4) of the Sentencing Act, I can see no way in which I can properly alter the custodial sentence brought about by the estreatment of the bond entered into in May 1995. It was not up to the learned sentencing Magistrate in 1998, nor up to me, to interfere with a sentence which someone else has imposed other than as allowed by the Sentencing Act.
33 In the circumstances, I allow the appeal.  I set aside the learned sentencing Magistrate’s purported reduction of the non-parole period of 15 months to 8 months but in all other respects I confirm the sentences imposed by him in respect of the appellant.