Hillman v Police No. Scgrg-98-505 Judgment No. S6708

[1998] SASC 6708

GREGORY MARK HILLMAN V POLICE

Magistrates Appeal

LANDER J

This is an appeal from a sentence imposed upon the appellant on 18 March, 1998.  The appellant was originally charged on information with 23 counts of housebreaking and larceny; four counts of housebreaking with intent; three counts of shopbreak with intent; one count of unlawful possession; and 24 counts of receiving. 

The appellant pleaded not guilty to all of those charges, and the matters proceeded to trial.  After 2 days of evidence the appellant indicated to the complainant/respondent that he was willing to plead guilty to certain of those charges. 

As a result of negotiations, two fresh informations were laid, and on file no. 2788 of 1998 the appellant pleaded guilty to 17 counts of receiving and one count of being in possession of goods and money to the value of $5,790, which was reasonably suspected of having been stolen or obtained by unlawful means. 

It is agreed on this appeal that count 17 duplicated the last-mentioned count of being in possession of goods and money, and in those circumstances I ought to treat the appellant as having pleading guilty to only 16 counts of receiving and one count of being in possession of goods and money reasonably suspected of having been stolen or obtained by unlawful means. 

On the second information, file number 4707 of 1998 the appellant pleaded guilty to one count of being in possession of housebreaking equipment; two counts of receiving; one count of being in possession of a pistol which was reasonably suspected of having been stolen or obtained by unlawful means; and one count of being in possession of firearms without holding an appropriate firearms licence.  He maintained his plea of not guilty to a charge of receiving two pistols and ammunition, which had a combined value of about $3,000, and to a charge of resisting two police officers in the execution of their duty. 

The respondent informed the court that the appellant had been charged with receiving offences where it was possible to identify the owner of the goods, and had been charged with being in possession of goods reasonably suspected of having been stolen or obtained by unlawful means where it was not possible to identify the owner of the goods or where the identification of the property was inconclusive. 

The respondent informed the learned Magistrate that there had been a number of breaks in the area in which the appellant resided, and on 1 February 1998 the appellant was apprehended carrying four screwdrivers hidden in the pocket of his jeans, and a torch.  A house in the same street in which he was apprehended had been broken into just 2 weeks earlier.  The proceeds of the break from that house were found in his unit. 

The court was advised that the property the subject of the charges had been obtained from a number of different houses over a number of years since 1988.  The respondent submitted to the learned Magistrate that even though the appellant was not the person who had carried out the breaks, the circumstances suggested that he played an instrumental role in the breaking offences. 

The appellant pleaded guilty upon a limited and clearly defined basis.  He told the court that he had received the goods the subject of the various charges in the following circumstances: in late 1996 he wished to purchase a computer and had noticed an advertisement for someone who wished to sell computers on a notice board at the university.  He contacted the person identified and two people brought goods to his home.   They tried to interest him in purchasing further cheap electronic goods that they had in a van, but on that day he only purchased a computer. 

Some months later he saw the advertisement again and contacted the same people.  On this occasion they offered to sell him a number of electronic goods, which he purchased.  He subsequently contacted these two people two further times in early 1997.  On those occasions the people not only offered to sell him assorted electronic goods, but he purchased from them clothing, furniture, and other items.  At that time the people indicated they were moving to Sydney and they wished to dispose of as many items as possible before leaving. 

That is the factual basis upon which he entered the pleas.  He advised the court if the pleas were not accepted on that basis, the matter which had proceeded already for 2 days would need to proceed to a disputed facts hearing.   The pleas must have been accepted upon the basis propounded by counsel for the appellant.  If they were it has to be noticed that there were only four separate occasions of receiving over a period of only some few months before the time of his arrest.  The court was obliged to sentence him upon that basis. 

Before the learned Magistrate the respondent submitted that the appellant provided no assistance to the police, and so the person responsible for the breaks had not been apprehended.  That being the case, it was rightly submitted that the person or persons were still at large and the community still at risk.  The appellant tendered a psychological report from Dr Jack White, a registered psychologist with Optima Psychology.  The learned Magistrate indicated in her sentencing remarks that she regarded the psychologist's report as particularly valuable. 

The appellant admitted to previous offences, including a building break as a juvenile and six building breaks between 1980 and 1995 as an adult, and he admitted to two further convictions for larceny in 1983 and 1987. 

He admitted that for his most recent offence for building, breaking and entering in 1995 which was with respect to an offence in 1993, he was sentenced to be imprisoned for 10 months.  That sentence was suspended upon his entering into a bond for a period of 12 months.  He had previously been sentenced in relation to a breaking offence for a period of one year and nine months in 1980. 

The learned Magistrate took a very serious view of these offences.  It would seem that the Magistrate took into account the fact that these offences were alleged to have occurred over a period between 1991 and February 1997.  In that respect I think she was wrong.  She was only entitled to sentence the appellant upon the facts most favourable to him and which were advanced by counsel which were to the effect that these receiving offences occurred in the few months before his arrest in February 1998 and occurred in respect of only four transactions. 

The learned Magistrate took into account that the receiving offences involved a considerable amount of property worth a significant amount of money.  In that respect she was right.  She also had regard to the fact that the appellant's offending, as a receiver, kept those responsible for the breaks in business.  She had regard to the fact that the person who committed these breaks caused terror to the occupants of the house in the area.  She seemed to think that the circumstances of the breaks themselves were relevant for the purpose of sentencing this offender even though he was not a party to the breaks and acted only as a receiver.  In that respect I think she was also in error.  In her sentencing remarks she said: 

“In this case, there is no question as to whether or not any penalty other than imprisonment should be imposed.   It has in common with most higher court cases the feature that it is not a question whether to imprison; it is a question of how long.  That consideration applies to both the head sentence and to the non-parole period; the minimum period that the defendant will be required to serve before the sentencing purposes can be achieved.  All of the sentencing purposes.  Parole is not meant merely about “how long” before the defendant can go on to some sort of community-based rehabilitation programme.

Yet another feature in common with the higher courts is the sheer length of the potential maximum penalty for this offending.  I have not bothered to add it all up accurately, but on my rough calculations the offences the defendant has pleaded guilty to have a maximum totalling something over 140 years.  The effective limit in the Magistrates Court, the maximum penalty per charge is two years, by reason of the statutory limitation on the imprisonment power.  It means that the greatest sentence that a Magistrate could impose on the defendant is slightly in excess of forty years. 

It is very difficult to impose the same sentences as imposed on other similar offenders when this court is just not seeing people coming into court for sentencing who have pleaded guilty to charges that, should they receive the jurisdictional maximum, mean they were imprisoned for over forty years.”

I think with respect to those remarks, the learned Magistrate also demonstrates error.  The fact of the matter is that there were only four separate occasions when the appellant, on the facts he advanced to the court, received goods.  It would not be appropriate to sentence him on the basis that there were 20 separate occasions.  In that respect she has also fallen into error. 

After making those remarks, she sentenced the appellant in relation to the charges to which he had pleaded guilty on information 4707 of 1998 to twelve months imprisonment. In doing so, she exercised the power given to her under s18A of the Criminal Law (Sentencing) Act. 

In relation to information 2788 of 1998 she also proceeded pursuant to s18A and sentenced the appellant to nine years imprisonment which she made cumulative upon the first sentence of imprisonment. The total head sentence, therefore, was 10 years and she set a non-parole period of eight years. She did not say that she gave the appellant any credit for his guilty pleas. I do not think it is necessarily indicative of error that she omitted to mention any reference to the giving of credit in respect of the matters in relation to information 2788 of 1998 because those pleas in relation to that information do not really indicate remorse or contrition on the part of the appellant, but entered two days after hearing are probably no more than a recognition of the inevitable result in the prosecution.

In my opinion, the learned Magistrate was obliged to have regard to the early plea of guilty in respect of the charges in relation to information 4707 of 1998.  Those charges were not presently before the Court and the defendant was entitled to a recognition in the exercise of the sentencing discretion of his early plea of guilty.  The appellant appeals on the following grounds:

(1)      The sentences are manifestly excessive; 

(2)      The non-parole period is manifestly excessive; 

(3)      The cumulative sentences are manifestly excessive; 

(4)...... That the learned Special Magistrate erred:

(a)...... the offences having occurred over a number of years;

(b)in attributing to the appellant's responsibility for circumstances of aggravation involved in the offences which occurred when the goods were stolen. 

The Notice of Appeal was not lodged until 3 April 1998 and so the appeal is out of time.  The appellant seeks an extension of time within which to appeal on the grounds that the length of the delay is small and the delay has occurred without any fault on the part of the appellant. 

It is right, as the appellant claims, that the delay is not great.  Indeed, the appellant is only two days out of time.  The appellant was, at this time, in custody serving the immediate term of imprisonment and the delay in the filing and service of the Notice of Appeal cannot be attributed to him.  In those circumstances, it would be appropriate to extend the time in which the appellant is entitled to appeal until 3 April and I so order. 

The learned Magistrate was entitled to treat these offences as the more serious of their kind.  They involved at least four transactions of receiving and a large quantity of goods of a considerable value.  One of the charges involved a significant amount of money.  They were committed by a man with a significant criminal history.   The circumstances of the offences, the antecedents of the offender and the need for the personal and general aspects of deterrence, require that a significant penalty should be imposed.  The penalty had to be one of a lengthy and immediate term of imprisonment.  The appellant complained, however, that a sentence of 10 years with a non-parole period of eight years is manifestly excessive.  I agree.  I think that the sentence for the offences for which he pleaded is far too high. 

Notwithstanding the seriousness of these offences and the previous prior record of this offender, the sentence of 10 years imprisonment for receiving, in these circumstances, is manifestly excessive.  I think for that reason the sentencing discretion has miscarried.  In any event, the Crown conceded that the sentencing discretion had miscarried inasmuch as the learned Magistrate approached sentencing upon the basis that there was a number of different days upon which the appellant was guilty of the different counts of receiving over a number of years.  That approach was wrong because, as I have already said, the learned Magistrate had to proceed upon the basis that there were only four occasions upon which the appellant committed the offences of receiving.  She was wrong, as I have already said, to believe that she could have imposed a sentence of up to 40 years in respect of these offences.  In fact, the maximum sentence she could have imposed for the offences of receiving and being in possession of goods and money was 10 years.  That was the sentence she imposed.  For that further reason, I think the sentencing discretion has miscarried.  In a third respect, it has also miscarried inasmuch as she failed to take into account the appellant's plea of guilty, at least in relation to information 4707 of 1998.  It falls to me, therefore, to sentence the appellant. 

The appellant was born on 9 July 1959.  His parents separated when he was four, and he has had little contact with his father since that time.  He still has contact with his mother, who has supported him throughout his life and, in particular, during the time that he has spent in prison.   As a young person he had some facial deformities which significantly interfered with his interaction with his peers and with other persons.  He blames those facial deformities for his character development.  Those deformities were corrected by surgery in 1979 or at some later time. 

Some time between 1984 and 1986 he completed a Bachelor of Science degree at Adelaide University.  In 1987 he completed an Honours degree in Human Physiology.  He has also studied successfully for an Associate Diploma in Electronic Engineering.  He has had difficulty in obtaining work, but in 1991 obtained a research assistant position in the Flinders Medical Centre within the Department of Physiology.  He remained in that position for about 12 months but found the position stressful.  In 1992 he was reprimanded by his superior for a particular matter, as a result of which he felt persecuted and resigned from his employment.  In November 1993 he obtained a position as a voluntary worker within the Department of Haematology at the Flinders Medical Centre.  He remained in that position for only two months, and he has not worked since. 

The appellant apparently considers that society owes him a debt.  He told Dr White:

“Society had deprived me of the opportunity to get on in life”. 

He also apparently blames his family for not giving him the confidence they had given his brother and which he required.  He told Dr White that because the community would not employ him, he would obtain his needs through offending.  He said that he did not offend for the purpose of on selling the goods which he received but kept everything that he had received. 

The appellant is of above average intelligence, and his educational achievements bear that out.  He does, however, suffer from a paranoid personality disorder and a schizotypal personality disorder.  The paranoid personality disorder is characterised by an enduring pattern of distrust and suspiciousness of others.  The schizotypal personality is distinguished by interpersonal deficits as well as cognitive and behavioural eccentricities suggestive of problems with a schizophrenia spectrum.  Dr White reports that such people are not comfortable in social situations, more typically experiencing tension and anxiety, often associated with suspiciousness concerning the intentions of others.  Dr White reported as follows:

“In my opinion, Mr Hillman's offending pattern is more a characteristic of his personality and mental health problems, than one of greed and criminal gain.  The current assessment did not indicate that Mr Hillman had had in the past any comprehensive psychological assessment, and certainly, in my opinion, his bizarre pattern of behaviours suggest further examination is warranted.  Given his academic attributes, it is possible that Mr Hillman may be able to offer society a constructive contribution.   Unfortunately, his extremely poor social skills are likely to limit his prospects for employment.  He may potentially benefit from social skills training and relaxation training.

In my opinion, were Mr Hillman to obtain employment, suitable for his eccentric needs, then his likelihood of re-offending would be greatly reduced.  In my opinion, a term of imprisonment is unlikely to have any beneficial rehabilitation consequences for Mr Hillman.”

The appellant clearly has significant personal problems which, unfortunately, have interfered with his ability to interact socially and to obtain and keep employment.  However, as I have already said, the very breadth of his offending requires a significant and lengthy period of imprisonment.  Notwithstanding this I have already expressed a belief that the sentence of imprisonment given by the learned magistrate is, in its totality, far too high.   He should only be sentenced for that which he has pleaded guilty.  He has not pleaded guilty to breaking and entering and should not be sentenced on the basis that he had. 

I do not think that much credit can be given for his plea of guilty in relation to the counts on information 4707 of 1998.  In this case, it is a matter to which regard should be had but for which not much discount can be given.   In relation to information 2788 of 1998, some credit should be given for the plea because, as I have already said, those matters were not listed for trial at the time that he pleaded guilty. 

In relation to the offences on information 4707 of 1998 to which the appellant has pleaded guilty, being counts 1, 3, 4, 5 and 6, pursuant to s18A of the Criminal Law (Sentencing) Act, I impose one penalty: the appellant will be sentenced to be imprisoned for six months.  But for his plea of guilty, he would have been sentenced to eight months.  In relation to the 17 counts on information 2788 of 1998, again I impose one sentence, and that will be that the appellant is sentenced to be imprisoned for three years and six months.  That sentence will be cumulative upon the sentence of six months in relation to the first information.  The total head sentence is four years.  I set a non-parole period of three years.  The orders of the court will be: 

1. appeal allowed;

2. on information 4707 of 1998, a sentence of imprisonment for six months;

3. on 2788 of 1998, a sentence of imprisonment for three years six months, cumulative upon the first sentence of imprisonment;

4. a total head sentence of four years, a non-parole period of three years.