Hole v Police No. Scgrg-99-272 Judgment No. S153

[1999] SASC 153

HOLE V POLICE

[1999] SASC 153
Magistrates Appeal
1 MARTIN J.  (Ex tempore)           This is an appeal against penalties imposed in the Elizabeth Magistrates Court for the offences of larceny of a motor vehicle and illegal use of a motor vehicle.
2 On 14 October 1998, the appellant was sentenced in the District Court to six years imprisonment for the offence of robbery committed on 15 December 1997.  A non-parole period of 30 calendar months was fixed.  On 11 February 1999 the magistrate imposed a sentence of 14 months for the offence of larceny and ordered that it be cumulative upon the sentence being served for the robbery.  A further period of nine months imprisonment was imposed for the illegal use to be served cumulatively upon the 14 months for larceny.  In effect, the head sentence of six years being served by the appellant was increased by 23 months.  The magistrate then increased the existing non-parole period of 30 months by 18 months. 
3 The appellant is 29 years of age, he has a long record of prior convictions dating back to 1983.  They include a number of assault and theft of motor vehicle offences.  In 1989 the appellant was convicted of attempted robbery, and in 1992 of robbery and burglary.
4 The most recent offending by the appellant cannot be ignored.  On 16 April 1997 he was sentenced to three months imprisonment for the offence of larceny.  The sentence was to date from 16 January 1997.  On 5 August 1997, a few months after his release, the appellant committed the offence of larceny of a motor vehicle for which he was sentenced to 14 months imprisonment by the magistrate.  He was not charged with that offence however, until 12 December 1997.  In the meantime on 27 October 1997 he was sentenced to 12 weeks imprisonment, commencing on 6 August 1997, for the offences of illegal use and interfering with a motor vehicle. 
5 It is apparent, therefore, that the appellant had been out of prison only a matter of weeks, when on 15 December 1997 he committed the crime or robbery for which he was sentenced in the District Court as previously mentioned.  On the same day, he committed the offence of illegal use for which he was sentenced by the magistrate. 
6 The appellant was legally represented.  Counsel advised the magistrate that the appellant had always intended to plead guilty to the charge of illegal use and, for that reason, the charge was transferred to the District Court to be dealt with by the judge who sentenced him for the robbery.  Apparently, however, the presence of two other charges of assaulting police with intent to resist lawful apprehension to which the appellant intended to plead not guilty resulted in the judge remitting the charges of assaulting police and the charge of illegal use back to the Magistrates Court.  Ultimately, the prosecution withdrew the assault with intent to resist lawful apprehension charges, and the matter proceeded by way of a plea of guilty to the offence of illegal use.  It is in this way, unfortunately, that the one sentencing court did not impose sentence for all offences. 
7 The magistrate was provided with a copy of the pre-sentence report prepared for the District Court and the sentencing remarks of the District Court judge.  As mentioned, the offence of illegal use was committed for the purposes of carrying out the robbery.  The appellant grabbed a female employee of a service station as she was walking to the bank with takings in excess of $30,000 and demanded the money.  He yanked the bag from the victim and ran to the vehicle which was the subject of the illegal use charge.  After a trial, the appellant was convicted by the jury of the robbery.
8 The sentencing judge referred to the appellant's difficult background and his history of substance abuse.  In view of the appellant's long criminal record, his Honour was of the view that personal deterrence must be of primary consideration in addition to general deterrence.  His Honour acknowledged that counsel had informed him that the appellant had reached the stage at which he had "seen the light" and wished to "turn the page".  However, his Honour did not make a finding to that effect but noted that it was up to the appellant to prove that he had reached that point when he was released from custody. 
9 The magistrate gave the appellant credit for his plea of guilty.  In doing so, he said the plea was the only feature in favour of the appellant.  Counsel for the appellant in this court has referred to the appellant's very difficult upbringing, which included physical abuse by his father, and his expressed willingness and wish to be rehabilitated.  He has also pointed out that he is relatively young.  I would hesitate to find that in this particular respect the magistrate fell into error, but it is an indication of his general approach to the matter.
10 Counsel for the appellant has challenged the individual sentences of 14 months for the offence of larceny and nine months for the offence of illegal use.  The maximum penalty for larceny was five years imprisonment and, in my opinion, given the appellant's history of offending and the most recent offending in 1997, it cannot be said that viewed in isolation the period of 14 months imprisonment was manifestly excessive. 
11 As to the illegal use, the minimum penalty was three months imprisonment and the maximum four years by reason of the appellant’s prior offending in this regard.  Again, in my opinion the sentence of nine months imprisonment was not manifestly excessive in itself. 
12 The offences of larceny and illegal use were totally separate offences.  In ordinary circumstances it would be appropriate to make the sentence of nine months cumulative upon the sentence of 14 months.  Similarly, as a matter of principle, it was appropriate to commence with a view that the sentences of 14 months and nine months should be cumulative upon the sentence imposed with respect to the robbery. 
13 The authorities recognise that in some situations it may be appropriate for a judge sentencing for a robbery to order that the sentence be concurrent with a sentence imposed for some other offence committed in order to carry out the robbery, but that is a matter for the discretion of the sentencing judge. It was pointed out in the Attorney General v Tichy (1982) 30 SASR 84 at 85 that if the sentences are made consecutive there must be no overlapping of the factors brought into account in determining the length of each sentence and, similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence. In this particular matter, given that the judge remitted the charge of illegal use back to the Magistrates Court for trial, his Honour clearly did not take into account the circumstances of the illegal use in fixing the penalty for the robbery.
14 The magistrate was obviously required to bear in mind the sentence and the non-parole period fixed by the District Court.  Counsel for the appellant submits that the existence of that sentence and non-parole period renders the ultimate result manifestly excessive both as to the head sentence and non-parole period. 
15 The appellant started, after being sentenced by the District Court, with a sentence of 72 months and a non-parole period of 30 calendar months. He finished with a sentence of seven years and 11 months with a non-parole period of 48 months. The magistrate was clearly required to consider the totality in accordance with the principles discussed by the High Court in Postiglione v R (1997) 189 CLR 295. In particular in the judgment of McHugh J at 308 it is made clear that a court in the position of the magistrate must consider the total criminality involved, not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence.
16 The Crown concedes that the total head sentence imposed is severe.  There can be no doubt that an increase of 23 months for the less serious charges on a head sentence of 72 months for the major charge is substantial and severe.  The critical question is whether it can be said to be manifestly excessive and thus indicate an error in the sentencing process.  There does not appear to be any express error in that process by the magistrate. 
17 The same question must be asked with respect to the non-parole period.  The increase of 18 months on the existing non-parole period of 30 months was very substantial. 
18 While it is not surprising that the magistrate took a very adverse view of the appellant given his record of offending, in my opinion his Honour has failed to stand back and take the last look at the totality as required by Postiglione and other authorities.  It is obvious that the mere failure to mention that matter is not a sufficient basis to conclude that the magistrate did not consider the issue,  but the length of the increases and a total reading of his Honour's sentencing remarks leaves the clear impression that his Honour considered the appellant had received treatment from the judge that was too lenient and that his Honour failed to take that last look at the matter of totality. 
19 It was important for his Honour to give proper consideration to the relationships between the head sentence and non parole period imposed by the judge and the increases that he intended and was obliged to impose.  Consistency in punishment is an important element in the administration of the criminal law. 
20 The head sentence of 72 months was a reasonable and moderate sentence in the particular circumstances of the offending and the appellant's background.  Counsel for the appellant referred to authorities concerning the tariff for armed robbery by way of comparison, but as counsel for the Crown has pointed out the discussion centred on offenders who plead guilty.  This appellant could not claim the benefit of a plea.  It might be said that the non parole period of 30 months was too low, bearing in mind the plea of not guilty and the inability of the respondent to call in aid any significant matters which would justify such a low non parole period.  But that particular period is not under challenge and the Crown did not institute an appeal against it.  The magistrate was obliged, therefore, to give careful consideration to the relationship between the periods he was imposing and those imposed by the judge and to the total result that was achieved. 
21 As I have mentioned, it is in this area that in my opinion his Honour fell into error.  It may be that his Honour was unduly influenced by his different assessment of the appellant in comparison with that made by the District Court judge.  The judge found that it was up to the appellant to prove that he had reached a stage at which to make a decision as to his future lifestyle, whereas the magistrate concluded that the appellant had "well and truly passed that stage" and had made a decision, in effect, to be a persistent offender. 
22 It is not easy to fashion the appropriate order.  There will necessarily be a degree of distortion if the totality principle is applied and a degree of mercy exercised.  In my opinion the individual sentences of 14 months and 9 months should not be disturbed.  I would direct that the period of 14 months be served cumulatively upon the 72 months imposed for the robbery in the District Court and that, in respect of the 9 month sentence for the illegal use, 4 months of that be served cumulatively upon the sentence imposed for the larceny.  In essence that means that of the total sentence of 23 months for those two offences, 18 months will be served cumulatively on the 72 months.
23 As to the non parole period, it seems to me that considerable weight should be given to the approach taken by the District Court judge who sentenced for the robbery.  He was anxious to give considerable opportunity for parole and, as I mentioned, consistency is an important element.  In all the circumstances, and this is exercising a considerable degree of leniency, the non parole period will be increased by a period of 10 months, making a total of 40 months non parole period that the appellant must serve. 
24 The appeal will be allowed for the purposes of imposing sentences of 14 months and 9 months for the offences of larceny and illegal use respectively with an order that the period of 14 months be cumulative upon 72 months and that four months of the nine months be cumulative again on the 14 months for the larceny, making a total of 90 months to be served.  The non-parole period will be extended by 10 months to 40 months. 
25 I order that the respondent pay the appellant’s costs of this appeal fixed at $150.