Hewish v Police - [2019] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HEWISH v POLICE
[2019] SASC 82
Judgment of The Honourable Justice Bampton
24 May 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appeal against sentence of a Magistrate – where appellant pleaded guilty to one count of theft by receiving, nine counts of unlawful possession and one count of possession of a prohibited weapon – where appellant admitted a breach of a good behaviour bond – whether appellant was sentenced on an erroneous factual basis – whether insufficient weight given to references and letter of apology – whether sentencing Magistrate erred in not suspending the sentence.
HELD, in allowing the appeal, setting aside the sentence, and resentencing the appellant to a term of imprisonment to be suspended upon the appellant entering into a bond to be of good behaviour for 12 months – the appellant was sentenced on an erroneous factual basis.
Criminal Law Consolidation Act 1935 (SA) s 134; Summary Offences Act 1953 (SA) s 41; Sentencing Act 2017 (SA) s 26, s 96, referred to.
R v De Simoni (1981) 147 CLR 383, applied.

HEWISH v POLICE
[2019] SASC 82
Magistrates Appeal: Criminal

BAMPTON J: Luke Hewish pleaded guilty in the Magistrates Court on 14 June 2018 to one count of theft by receiving, nine counts of unlawful possession and one count of possession of a prohibited weapon. All offending was committed on 28 September 2017. Mr Hewish also admitted that his commission of the theft by receiving offending breached a good behaviour bond that he had entered into on 29 September 2016. I will refer to all this offending collectively as the “admitted offending”.
Mr Hewish’s bail was revoked during sentencing submissions on 31 October 2018. He was sentenced on 21 November 2018 to a head sentence of 12 months and 42 days’ imprisonment with a non-parole period of four months. The sentence was ordered to be served immediately and backdated to the day he was taken into custody.
Mr Hewish appealed the sentence on 28 November 2018 and was granted bail on 4 December 2018 in the Magistrates Court pending the appeal.
Mr Hewish appeals the sentence on grounds that he was sentenced on an erroneous factual basis, that insufficient weight was given to the references he tendered and that the letter of apology he had written from custody was not accepted demonstrated by the Magistrate stating in her remarks: “You wrote me a letter. I am not sure why prisoners think this is a good idea. Your letter does not show contrition or remorse. You try and tug at a heart string”.
Mr Hewish also complains that the Magistrate erred in not suspending the sentence or, alternatively, imposing an intensive correction order or, alternatively, ordering that the sentence be served on home detention.
For the reasons that follow, I would allow the appeal, set aside the sentence and resentence Mr Hewish.
The background to the offending
The 2016 offending underlying the good behaviour bond
On 21 August 2016, Mr Hewish and two other men were apprehended for stealing a roof truss and 70 treated links of timber from a building site. Mr Hewish pleaded guilty on 29 September 2016 to one count of theft and one count of unlawful possession. He was convicted and released upon entering into a bond to be of good behaviour for 12 months to appear before the Court for sentence if he breached a condition of the bond.
The 2017 offending – theft by receiving and unlawful possession
In early 2017, building fixtures, hardware, and cabinetry were stolen from the interiors of the houses being constructed by Hickinbotham Homes in Paralowie. In mid-2017, there was a sudden spike in theft of Willplay branded play equipment from metropolitan playgrounds.
On 27 September 2017, police searched Mr Hewish’s home and located significant amounts of building fixtures, hardware, and cabinetry (“the cabinetry”), and a knuckleduster. Police also located a significant amount of Willplay equipment (“the playground equipment”). A subcontractor who installed Willplay equipment in playgrounds attended at Mr Hewish’s home and identified the playground equipment as equipment that had been stolen from playgrounds at Parafield Gardens, Tennyson, Surrey Downs, North Haven, Modbury, and Modbury Heights.
A Hickinbotham Homes representative, who was supplied with photographs of the cabinetry by police, identified certain of the cabinetry as cabinetry that had been stolen from the interiors of houses under construction in Paralowie.
Mr Hewish was subsequently charged with the offence of theft by receiving in relation to the cabinetry and other hardware items belonging to Hickinbotham Homes valued at $7,809.87. He was charged on separate information with nine counts of unlawful possession and possession of a prohibited weapon. The first count of unlawful possession related to cabinetry the property of Fairmont Homes valued at approximately $1,000. The second count related to cabinetry and carpet valued at approximately $3,000. The remaining seven counts of unlawful possession related to the playground equipment valued at approximately $27,900. The count of possession of a prohibited item related to the knuckleduster.
The sentencing submissions
Following Mr Hewish’s guilty pleas on 14 June 2018, the Magistrate ordered a pre-sentence report. The report, which was provided to the Court on 21 September 2018, made reference under the heading “Analysis of Offence” to the admitted offending. It also referred to “the offences for Traffic (Type Unknown) In A Controlled Drug and Possess Prescription Drug”. It appears by reference to an apprehension report provided to the Magistrate, as detailed in [16] of these reasons, that following the entry of his guilty pleas Mr Hewish’s home was searched by police acting on information that he and his partner were dealing in drugs. It is to be noted that illicit drugs formed no part of the prosecution case against Mr Hewish with respect to the admitted offending and he had no history of drug offending.
Mr Hewish’s solicitor, Hugh Meyer, deposed in his affidavit sworn on 12 February 2019 that he made submissions to the Magistrate on 31 October 2018 regarding errors in the pre-sentence report including “the suggested disillusionment of the appellant was due to a then drug habit”. Mr Meyer deposed that the Magistrate made remarks during submissions regarding not accepting Mr Hewish’s version of events and indicated strongly that she was not happy with the reference materials that had been tendered on his behalf. Mr Meyer stated that the Magistrate requested that the police prosecutor obtain confirmation of the relationship between Mr Hewish and a business owner, who had provided a reference, and details of what was meant by the term “casual labourer” in the reference. Mr Meyer deposed that the Magistrate also sought provision of the declarations concerning the trafficking matters referred to in the pre-sentence report notwithstanding that Mr Hewish was not to be sentenced for this alleged offending and notwithstanding that a charge determination and provision of declarations was not expected until late January 2019.
The police prosecutor, Joanna Davis, deposed in her affidavit sworn on 21 February 2019 that she appeared for the respondent on 31 October 2018. Ms Davis said that the Magistrate requested further details of the admitted offending and “an outstanding matter … (which was not before [the] Court for sentence) but which the learned Magistrate had requested to view”.
Mr Hewish’s bail was revoked and he was taken into custody at the conclusion of the hearing on 31 October 2018. Sentencing submissions were adjourned to 12 November 2018 (which date was administratively adjourned to 21 November 2018) with an order that the prosecution was to produce further details and declarations.
Following the hearing on 31 October 2018, Ms Davis forwarded to the Magistrate’s chambers the apprehension reports and details in relation to the admitted offending. Ms Davis also provided the apprehension report in relation to “the outstanding matter” which detailed offending alleged to have been committed by Mr Hewish and his partner at their home on 27 July 2018. I will refer to offending on this apprehension report as the “alleged offending” which includes two counts of trafficking, three counts of unlawful possession, and two counts of possession of prescription medication without an appropriate prescription. One count of unlawful possession relates to a “large stack of money” totaling $9,864.25 found by police during their search of Mr Hewish’s home.
The sentence
The Magistrate referred in her sentencing remarks to Mr Hewish being a poor historian, whose account was unreliable and “[w]hen it suits his purpose, he is prepared to create a veneer of falsehoods to paint himself in a more favourable light. Originally, he did not cooperate with the Court’s direction to attend for preparation of a pre-sentence report. He slept in. Thereafter, he determined to make up a version of events that he thought would further his main objective, which is release from custody”. The Magistrate, in support of her assertion that Mr Hewish was a “poor historian”, referred “to some false assertions that he has made during the sentencing process”. The Magistrate referred to Mr Hewish informing the report writer of the pre‑sentence report that he is “a recreational and weekend user of methamphetamine”. The Magistrate rejected this statement as absurd because:
… later in the interview as reported in the report, he admitted to trafficking in a drug, explaining; ‘It just happened. It was to do with money. Everybody wanted drugs and it provided funds for my own use’. There is nothing recreational about that.
The Magistrate said that she rejected Mr Hewish’s assertion to the pre-sentence report writer that he came into possession of the playground equipment “because somebody knew someone” and because he wanted the best for his children. The Magistrate also rejected Mr Hewish’s report to police that the cabinetry had been retrieved from skip bins.
The Magistrate criticised the references from Mr Hewish’s father, his uncle, his employer, and the letter he had written whilst in custody. The Magistrate queried the reference confirming Mr Hewish’s current employment because she did not know what being a “casual labourer for Exquisite Concrete Developments” meant and she questioned the validity of the person and the company providing the reference. The Magistrate indicated that there was limited information available as to what work was done by Exquisite Concrete Developments, referring to a Google search which did not “appear to advertise whatever trade that it is involved with”. The Magistrate gave little weight to the reference material provided by Mr Hewish’s partner and his family on the basis that they must have, or should have, been aware of his offending.
The Magistrate dismissed Mr Hewish’s desire to return to work for his former employer, Refined Motor Body Repairs, as it was not available because of his criminal conviction. The Magistrate does not appear to accept other matters commented on in the reference from Mr Bryant of Refined Motor Body Repairs which indicated that Mr Hewish had developed the skills to be a valuable employee of any repair business. Mr Bryant said:
Luke Hewish was employed with us from Jan 2005 – April 2015. His leaving was based on his obvious changes of behaviour, which may at the time have been relatively innocent but transgressed to the seriousness this has become.
Luke Hewish was an exceptional employee who was held in high regard by us, and his time with us he showed true diligence in all he was tasked. (sic)
From his time with us we firmly believe there is a way out for Luke and righting his wrongs and becoming something he will be proud of will not be hard.
Our Business is one that stipulates all employees must have Zero Criminal history, but from the ability he’s attained he will not have any problem to be employable, and he will be a major asset to any Repair Business.
The Magistrate indicated that she took into account the extent to which Mr Hewish had shown remorse, having regard to whether he had provided evidence that he took responsibility for his actions and that he had not acknowledged loss or made voluntary reparation. In this regard, I note that the Magistrate referred to “much retrieval of both the building materials and also the playground equipment”. The Magistrate was disparaging of the letter Mr Hewish had written from custody prior to the imposition of the sentence where he stated:
… this was my first time in jail wich ive now relised my wrong doings … being separated from my children has had a devestating effect on me and has forced me to look hard at my life and bring down some hard reality in regards to my offending … I should have had the commen sense to realise the impact these actions had on others in the community … I am most sinserly apollagetic to anyone who was affected by me and I will willingly apoligese to anyone and everyone therfor I am sorry.
The Magistrate was critical of any prisoner who might provide a similar letter and assessed Mr Hewish’s letter as not demonstrating any kind of contrition or remorse.
Mr Hewish was sentenced to 11 months’ imprisonment reduced by 40 percent on account of his guilty pleas to six months and 18 days for the nine counts of unlawful possession. He was sentenced to eight months’ imprisonment reduced by 40 percent to four months and 24 days for the count of theft by receiving. A sentence of two months’ imprisonment was imposed for the offences of theft and unlawful possession underlying the good behaviour bond. The three sentences were ordered to be served cumulatively, resulting in a sentence of 12 months and 42 days’ imprisonment which was backdated to 31 October, the date Mr Hewish was remanded in custody pending sentence. A non-parole period of four months was fixed. No penalty was imposed for the offence of possessing a prohibited weapon.
The appeal
Mr Hewish complains that the Magistrate appears to have sentenced him for the offences of unlawful possession on the basis that he was responsible for the original theft of the items and that he had been “taking from others for at least three years”. The Magistrate stated in the sentencing remarks;
[17]Prosecution have shown that the defendant is someone who has been engaged in a chain of dishonest dealings in 2016, 2017 and by 2018 his home was raided for a drug bust.
The dishonest dealings in 2016 and 2017 relate to the admitted offending. The “drug bust” relates to the alleged offending. It is to be noted that at the time of the sentence the prosecution had not “shown” that the 2018 “drug bust” formed part of any chain of dishonest dealings involving Mr Hewish.
The Magistrate then made remarks which Mr Hewish asserts suggested that he was responsible for the original theft of the playground equipment:
[18]… The nine play equipment sites set up by councils were targeted and all the same playground equipment found itself to the defendant. There is nothing haphazard about that. It is targeted. Whoever was involved in it, and I do not know how close the defendant was, but he certainly was the main recipient. He knew somebody who had drugs, or help, or was prepared, probably under the cover of darkness, to organise to steal from public playgrounds in a planned fashion, given that bots, nuts and screws needed to resemble (sic) were retained as shown in photographs 24 and 25 of the bundle of photographs DD7. The equipment would need a truck or a trailer and, as I have said, would most likely be taken under the cover of darkness.
(Emphasis added)
In relation to the carpentry and cabinetry, the Magistrate said:
[20]All items were stolen from inside these homes between 13 April and 28 March 2017. This was pre-planned. I do not know how it was carried on but it definitely needed people that knew how to carry items and it all found itself to the defendant’s premises by the following September.
[21]This is serious, systemic crime. The defendant has been involved at some level in taking from others for at least three years that I know about.
(Emphasis added)
Mr Hewish’s role in the admitted offending committed in 2017 was to either receive property known to be stolen or to have possession of property that was suspected of being unlawfully obtained. He was not charged with taking any of the property in the first instance, nor was there any established connection between him and whoever was responsible. Yet, the Magistrate referred to Mr Hewish being involved at “some level in taking from others for at least three years that [she knows] about”. Mr Hewish reiterates that this conclusion was not open to the Magistrate as he not charged with taking property from any of the building or playground sites and the offending before the Magistrate spanned one year, one month and seven days.
The Magistrate referred to the offending as “serious” and noted that “There is something fundamentally wrong with a citizen who could steal from nine playgrounds … and a person who would collect $27,000 worth of playground equipment for very little reason”. Again, the Magistrate referred to the need to deter Mr Hewish from stealing: “You need to be deterred given you stole from a building site in 2016. You did it again in 2017” (emphasis added).
Mr Hewish says that the impact of this error is that it appears that the Magistrate has sentenced him for the offence of theft, not unlawful possession. He points out that theft, being an offence against s 134 of the Criminal Law Consolidation Act 1935 (SA), carries a maximum penalty of 10 years’ imprisonment, whereas unlawful possession, contrary to s 41(1) of the Summary Offences Act 1953 (SA), carries a maximum penalty of two years.
The respondent submits that the apprehension reports for the admitted offending before the Magistrate were not in dispute and that the sentencing remarks reflected the factual basis in the apprehension reports. In respect of this submission, I note that Mr Hewish was not prosecuted for a number of matters detailed in the apprehension reports.
The respondent concedes that the admitted offending before the Court spanned a period of just over one year; however, it is submitted that the reference to three years was either a reference to the number of years which the Magistrate found the appellant had been involved in dishonest dealings (including his antecedent 2009 offence for theft of an engine) or an error which, in the context of all of the materials before the Court and the balance of the sentencing remarks, did not demonstrate that the sentence discretion was exercised on an erroneous factual basis.
It is submitted that there is no factual error relating to the unlawful possession of playground equipment disclosed in the remarks demonstrated by the Magistrate remark that the “equipment found itself to the defendant” and “[w]hoever was involved in it, and I do not know how close the defendant was, but he was definitely the main recipient”. The respondent argues that the findings of the Magistrate were reasonably open to be made and it was open to find that the offending was serious and systematic in all of the circumstances. It is contended that the Magistrate’s reference to “stealing from playground sites” in the context of the whole of the remarks is not a reference to the charge of theft; it merely denotes the impact of the removal of that equipment from the victims. The respondent says it is clear that the sentence imposed in relation to the playground equipment related to unlawful possession demonstrated by the Magistrate describing Mr Hewish as “a person who would collect $27,000 worth of playground equipment for very little reason”. It is submitted that there is no factual sentencing error which has a meaningful impact upon the sentence imposed warranting interference by this Court.
Consideration

The sentencing remarks identified by Mr Hewish are interlaced with intimations that Mr Hewish was responsible for the theft of the items the subject of the unlawful possession charges. These remarks must be considered in the context of the sentencing remarks as a whole and the remarks identified by the respondent as indicating there was no factual sentencing error.
The sentencing remarks also record a number of references to the alleged offending and or the topic of illicit drugs as follows:
[11]To back my assertion that he is a poor historian, I will refer to some false assertions that he has made during this sentencing process. He told the report writer that he is a recreational and weekend user of methamphetamine. That statement is absurd given, later in the interview as reported in the report, he admitted to trafficking in a drug, explaining; ‘It just happened. It was to do with money. Everybody wanted drugs and it provided funds for my own use’. There is nothing recreational about that.
…
[17]Prosecution have shown that the defendant is someone who has been engaged in a chain of dishonest dealings in 2016, 2017 and by 2018 his home was raided for a drug bust.
[18]… He knew somebody who had drugs, or help, or was prepared, probably under the cover of darkness, to organise to steal from public playgrounds in a planned fashion, …
…
[27]I have to also take into account your prospects for rehabilitation. Up to the time of your remand in custody, your prospects were poor. You involved yourself in serious offending in 2016 and 2017. You did not stop committing offences until you were discovered and charged with drug trafficking offences. You have shown no wish to engage in full time employment since 2015 and there is little to explain how you live except it appears that you are content to suggest that you win things on the pokies or by internet betting, but you know the truth of your situation given the wads of cash that were taken out of your home.
I infer that the reference to the “wads of cash” is a reference to the alleged $9,864.25 seized during the search of Mr Hewish’s home on 27 July 2018.
[28]… if police raids are to be accepted in house with wads of cash and your admission that you involved in supplying drugs to others. …
…
[31]… Your partner cannot speak on behalf of the community. She, at this stage, is before a committal court jointly charged with you with trafficking, something that you admitted.
These comments must be considered against the remarks as a whole which include the following passages where the Magistrate states:
[27] … I am not prejudging the trafficking. That is none of my business your fabrications throughout these sentencing submissions have not done you any favour.
[31] … Your partner … is before a committal court jointly charged with you with trafficking, something that you admitted although it cannot be held against you, to a pre-sentence report writer.
I have considered the impugned remarks in the context of the whole of the remarks. Having regard to that context and the general tenor of the remarks, I have arrived at the view that the remarks complained about by Mr Hewish are sufficiently unclear as to raise a real doubt as to whether he was sentenced on the correct factual basis. It is also unclear as to whether the alleged offending was incorrectly taken into account in the sentencing for the admitted offending.[1]
[1] R v De Simoni (1981) 147 CLR 383 at 389.
Mr Hewish has made out his ground of appeal that he was sentenced on an erroneous factual basis. As such, it is not necessary to consider the other grounds of appeal.
Conclusion and resentence
I allow the appeal. I set aside the sentence imposed by the Magistrate and resentence Mr Hewish.
Mr Hewish’s pleas of guilty and his letter of apology demonstrate his contrition and remorse.
I accept that the 35 days Mr Hewish spent in custody, from 31 October2018 until he was released on bail on 4 December 2018, have had a salutary effect on him.
I take into account the references attesting to Mr Hewish’s work ethic, the support he has from his family, and the impact being in custody has had on him (having never served a custodial sentence).
Mr Hewish has a relevant previous conviction recorded in 2009 in relation to dishonestly taking property without consent and unlawful possession, for which he was fined $1,000. A conviction was imposed for the 21 August 2016 offending underlying the good behaviour bond for which he must now be sentenced. Clearly, personal deterrence is of significance in sentencing Mr Hewish.
The offence of theft carries a maximum penalty of 10 years’ imprisonment. The offence of unlawful possession carries a maximum penalty of two years’ imprisonment or a fine of $10,000. The offence of possessing a prohibited weapon carries a maximum penalty of two years’ imprisonment or a $20,000 fine.
For the offence of theft and unlawful possession underlying the good behaviour bond (noting that guilty pleas were entered and convictions recorded at the first appearance on 29 September 2016), I impose a sentence of two months’ imprisonment reduced by 40 percent on account of the guilty plea to one month and six days’ imprisonment.
For the offences of theft by receiving, the nine counts of unlawful possession and the possess prohibited weapon, I impose one penalty pursuant to s 26 of the Sentencing Act 2017 (SA) of 15 months’ imprisonment reduced by 40 percent on account of the guilty pleas to nine months.
The sentence of nine months and the sentence of one month and six days are to be served cumulatively resulting in a sentence of 10 months and six days. The sentence is reduced by 35 days on account of the time in custody leaving a head sentence of nine months and one day, backdated to 31 October 2018.
The sentence is to be suspended upon Mr Hewish entering into a bond to be of good behaviour for 12 months.