HENDRY v POLICE

[2005] SASC 6

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HENDRY v POLICE

Judgment of The Honourable Justice Anderson

21 January 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - REHABILITATION

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FIRST OFFENDERS - SUSPENSION OF SENTENCE

Appellant pleaded guilty to non-aggravated serious criminal trespass and theft - the learned sentencing Magistrate ordered that the appellant be imprisoned for fifteen months and set a non-parole period of eight months - the sole ground of appeal is that the sentence should have been suspended - Magistrate identified the rehabilitation of the appellant as a relevant consideration but found that there was a lack of information on the prospects of rehabilitation - appellant was twenty-eight, it was his first offence, and he had undertaken a vocational training course while in custody - held: Magistrate did not sufficiently take into account those factors which were clearly before him and amounted to positive indicators towards rehabilitation - appeal allowed.

Criminal Law Consolidation Act 1935 (SA); Criminal Law (Sentencing) Act 1988 (SA), referred to.

HENDRY v POLICE
[2005] SASC 6

Magistrates Appeal

1. ANDERSON J In this matter the appellant pleaded guilty in the Adelaide Magistrates’ Court to the offence of non-aggravated serious criminal trespass contrary to s169(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), and also to theft contrary to s134(1) of the Act.

2. The learned Magistrate ordered that the appellant be imprisoned for fifteen months and set a non-parole period of eight months.  The sole ground of appeal is that the sentence of imprisonment should have been suspended.  The learned Magistrate, in his remarks, summarised all of the relevant matters which he had to take into account for the purpose of sentencing the appellant.

3. Mr Braithwaite, who appeared as counsel for the appellant, argued that there was an error demonstrated by the Magistrate in his reasons in his consideration of the appellant’s rehabilitation.

4. The learned Magistrate correctly stated that because these were the first offences of the appellant, his rehabilitation was an important consideration.  His Honour, however, was clearly troubled by what he called ‘the dearth of information’ on the prospects of rehabilitation.  In particular, the learned Magistrate said that counsel, who then appeared for the appellant, had not supported  the submission regarding suspension of the sentence, with a great deal of information concerning the personal circumstances of the appellant or his prospects of rehabilitation.

5. Mr Braithwaite argued that the following factors, at the very least, were relevant in relation to rehabilitation, and did not need any further clarification.  They were first that the appellant was twenty-eight years of age, secondly, it was his first offence, and thirdly, he pleaded guilty. 

6. In addition to those matters, the learned Magistrate had information which he mentioned in his sentencing remarks to the effect that the appellant had successfully completed courses designed to enhance his employment prospects, including a bar and waiting course, and an aged-care and disability course.  In addition, he had undertaken a vocational training course whilst in custody.

7. It is my view that, taking account of the appellant’s age of twenty-eight years, the fact that it was his first offence, his guilty plea, and his efforts at rehabilitation as acknowledged by the learned Magistrate, it was not correct for the learned Magistrate to say that there was a dearth of information.  In my view, there was sufficient information to enable the Magistrate to consider the question of suspension of the sentence.  It is obvious that it was that aspect of a perceived lack of information which dominated the thinking of the learned Magistrate when he said at [15]:

   “In the absence of any information concerning your prospects of rehabilitation, I am not satisfied that good reason exists for suspending the sentence, even though these are first offences.”

8. That, in my view, demonstrates an error. It is my view that, having regard to the provisions of s11 of the Criminal Law (Sentencing) Act 1988 (SA), the sentence should have been suspended. The appellant was not a person to whom s11(1)(a)(i), (ii) or (iii) were relevant. He did not come within those subsections.

9. I appreciate that I am interfering with a sentencing discretion.  I am doing so because, in my view, the sentencing discretion has miscarried.  The learned Magistrate did not sufficiently take into account those factors which were clearly before him and amounted to positive indicators towards rehabilitation.

10. I would therefore allow the appeal, and suspend the sentence of imprisonment, provided the appellant enters into a bond to be of good behaviour for two years.  I will discuss with counsel any other appropriate conditions of the bond.