HUBBARD v POLICE

[2004] SASC 377

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HUBBARD v POLICE

Judgment of The Honourable Justice White

30 November 2004

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

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - UNLAWFUL USER OR POSSESSION OF MOTOR VEHICLE

Appellant pleaded guilty to three counts of illegal use and one count of larceny - Magistrate sentenced appellant to twenty months imprisonment - Appellant also serving sentence imposed by District Court for similar offences - Failure of Magistrate to identify notional sentences for each offence when imposing single penalty not appellable error - Sentence not manifestly excessive when considered alone - Magistrate erred in failing to reduce sentence having regard to principle of totality - Sentences imposed by District Court also should have been considered under principle of totality - Appeal allowed - Sentence reduced to 15 months imprisonment.

Magistrates Court Act 1991, s 42; Criminal Law Consolidation Act 1935, s 86, s 131, s 134; Criminal Law (Sentencing) Act 1988, s 18A, s 53; Supreme Court Rules 1987, Rule 96C.02, referred to.
R v Major (1988) 70 SASR 488; R v Symonds [1999] SASC 217; R v LLK (2003) 231 LSJS 458; R v Place (2002) 81 SASR 395; R v Bruce and Hollick (1998) 71 SASR 536; Postiglione v The Queen (1997) 189 CLR 295, applied.
R v Kelly [2000] SASC 293; R v Elliott (2001) 121 A Crim R 254, considered.

HUBBARD v POLICE
[2004] SASC 377

Magistrates Appeal

WHITE J

Introduction

1. This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991 (SA), against a sentence imposed by a Magistrate on 25 March 2004.

2. The appellant pleaded guilty to three counts of illegal driving or use of a motor vehicle, contrary to s 86(a) of the Criminal Law Consolidation Act 1935 (the “CLCA”), and to one count of larceny, contrary to s 134 of the CLCA. The latter offence was wrongly described on the Magistrates Court Information as being against s 131 of the CLCA. No point was made about that error before the Magistrate or on the appeal.

3. The appellant was unrepresented in the Magistrates Court.  The Magistrate twice cautioned the appellant about the desirability of representation.  On each occasion the appellant indicated that he did not want to obtain legal advice or legal representation.  The appellant was represented by counsel on the appeal.

4. In respect of the four offences the Magistrate imposed, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, a single sentence of imprisonment for 20 months. That sentence was expressed to commence at the expiration of another sentence of imprisonment, being for six years, four months and 16 days, which had been imposed by the District Court on 23 December 2003. That sentence related to offences committed on and after 10 March 2002 ie, after the commission of the offences for which the appellant was sentenced by the Magistrate. It will be necessary to refer to these later, and to consider the relationship between the sentence of the District Court Judge, on the one hand, and that of the Magistrate, on the other. The Magistrate also extended the non-parole period fixed by the District Court Judge from two years, 11 months and 11 days to four years.

5. In relation to the offences of illegal use, the Magistrate also disqualified the appellant from holding a driver’s licence for a period of 12 months, to commence immediately. There is no appeal against that part of the Magistrate’s sentence. The Magistrate refused an application by the prosecution for an order of compensation under s 53 of the Criminal Law (Sentencing) Act, on the basis that, given the total term of imprisonment which the appellant was to serve, there was no realistic hope of repayment.  The Magistrate did impose court fees, victims of crime levy and prosecution costs.

   Circumstances of the Offending

6. On 21 December 2000, the appellant had been sentenced in the Holden Hill Magistrates Court for seven offences of illegal use or interference with a motor vehicle, seven offences of larceny, and two counts of receiving.  He was sentenced to imprisonment with a non-parole period of 15 months.  The applicant became eligible for parole and was discharged from gaol on parole, on 15 December 2001.

7. Only 13 days later, on 28 December 2001, the appellant committed the first of the offences of illegal use for which he was sentenced by the Magistrate.  The appellant in company with another stole a BMW sedan.  It was located later but with significant damage.  The Magistrate accepted that the appellant was not the driver of the vehicle on that occasion and that he had not been responsible for the theft of the BMW.  He sentenced the appellant for that offence on the basis that he had been conveyed in the vehicle as a passenger at a time when he knew that its use was unlawful.

8. Just under two months later, on 22 February 2002, the appellant committed the offence of larceny.  The appellant stole property valued at $7,781 from a vehicle which had been broken into.  It seems that none of that property has been recovered.

9. Then, five days later on 27 February 2002, the appellant committed two separate offences of illegal use of a motor vehicle.  The appellant, apparently in company with another, stole a locked Holden utility at Fullarton.  It was later found at Magill.  Later on the same day, the appellant took a Holden vehicle from the Queen Elizabeth Hospital.  It was later recovered, burnt out, at Golden Grove.

10. The sentences imposed in the District Court were for offences committed later, in March and April 2002, commencing approximately 14 days after the last of the offences for which the Magistrate was sentencing.  Those offences comprised one count of receiving, two counts of illegal use, three counts of larceny and one count of assault with intent to avoid arrest.  All of these offences related, in one way or another, to an enterprise of theft of vehicles (on many occasions Holden HSV vehicles) for the purpose of stripping and sale of their parts. 

11. It is unfortunate that the offences charged in the Magistrates Court were not transferred to the District Court so as to be dealt with at the same time as the offences for which the appellant was sentenced in the District Court.

    The District Court Sentence

12. In the District Court on 23 December 2003, Judge Kelly said that she would have imposed a sentence of six years before making any allowance for the appellant’s guilty plea.  Because of that plea, Judge Kelly reduced the head sentence to five years.  To that notional sentence, Judge Kelly added the period of unexpired parole as at 10 March 2002, viz., one year, five months and five days.  This gave a total head sentence of seven years, five months and five days but this was reduced to six years, four months and 16 days on account of the one year and 19 days which the appellant had spent in custody to the time of Judge Kelly’s sentence.

13. Judge Kelly then fixed a non-parole period of four years but reduced that on account of the time already spent in custody.  A non-parole period of two years, 11 months and 11 days was fixed.  Both the head sentence and the non-parole period were to commence on 23 December 2003.

    The Appellant’s Circumstances

14. Some of the appellant’s personal circumstances can be seen in what I have said above.  The appellant is now 29 years of age.  He has a long history of previous court appearances.  There are many offences of dishonesty, driving offences and property offences.  The appellant has had a number of previous custodial sentences.  His record of previous court appearances is both extensive and unfortunate.

15. A pre-sentence report did offer some hope for the future.  Some previous employers have given good reports regarding the appellant’s work ethic.  In addition, the appellant’s former partner has, since these offences, given birth to a daughter for whom it seems the appellant’s parents have principal care.  By virtue of the efforts of those parents, the appellant has been able to keep in contact with his daughter, even whilst in custody.  Insofar as he is able whilst in custody, the appellant appears to be demonstrating a responsible attitude to parenthood.  In addition, it is said that parenthood has caused him to reassess his attitudes to his behaviour.  He is attempting to escape his addiction to amphetamine.  The commission of many of the offences appears related to that addiction.  He also seems willing to embark on a number of other courses directed to his insight, anti-social behaviour and coping mechanisms.  In short, there are some circumstances which indicate that rehabilitation may be a possibility.

    Grounds of Appeal

16. The appellant identifies four separate grounds of appeal.  They may be summarised as follows:

    1.That the failure of the Magistrate to identify the notional sentences for each offence, which led him to fix upon a single sentence under s 18A of the Criminal Law (Sentencing) Act, had the effect that this Court, on appeal, is unable properly to exercise its jurisdiction;

    2.That the Magistrate erred in failing to apply the principle of totality to the sentence;

    3.That the Magistrate erred in failing to take into account, or in failing to give sufficient weight to, the sentence imposed by the District Court Judge; and

    4.That the sentence imposed by the Magistrate was manifestly excessive.

    Section 18A and the Identification of Notional Sentences

17. In this case, the Magistrate imposed, pursuant to s 18A of the Criminal Law (Sentencing) Act, a single sentence in respect of each of the four sentences.  The Magistrate did not identify individual notional sentences by which he reached the single sentence.  It is good practice for a sentencing Judge or Magistrate to identify the individual notional sentences used in order to reach the single sentence in fact imposed:  R v Major (1998) 70 SASR 488 at 490 per Doyle CJ and at 497 per Olsson J. There are cases in which identification of the individual notional sentences will not be appropriate: R v Symonds [1999] SASC 217 at [22]; R v Kelly [2000] SASC 293 at [9]-[10] per Prior J; R v Elliott (2001) 121 A Crim R 254 at 267-8 [80]-[84] per Gray J. It is also established that a failure by a sentencing Judge or Magistrate to identify the individual notional sentences is not a sentencing error which, by itself, will warrant interference by the appellate court: R v Symonds [1999] SASC 217 at [21] per Doyle CJ; R v L L K (2003) 231 LSJS 458 at 460 [18] per Doyle CJ.

18. In the present case, it was submitted that failure by the Magistrate to identify the individual notional sentences meant that it was not possible for the Court to exercise its appellate function in reviewing the appropriateness of the sentence. I do not agree. Where a single sentence is imposed pursuant to s 18A, an appeal against sentence is against that single sentence. It is not an appeal against the notional individual sentences which may have been imposed. Whilst a statement of the notional individual sentence makes the reasoning process adopted by the Magistrate transparent, the absence of such identification does not prevent the appellate court carrying out its function.

19. In this case, the Magistrate also omitted to state the discount which he allowed on account of the appellant’s plea of guilty.  Again, it is well established that good sentencing practice requires the sentencing Judge or Magistrate to state the amount of the discount:  R v Place (2002) 81 SASR 395 at 412-13 [42]-[46] and at 424-5 [80]-[83] per Doyle CJ, Prior, Lander and Martin JJ. At the same time, a failure to state the amount of the discount is not necessarily indicative of sentencing error warranting interference at appellate level: R v Place (2002) 81 SASR 395 at 425 [80].

20. Accordingly, this ground of appeal is not made out.

    The Severity of the Sentence

21. The next three grounds of appeal complain, in one way or another, of the severity of the sentence of 20 months and of the extension of the non-parole period from two years, 11 months and 11 days to four years.

22. In addition to the complaint based on the lack of transparency in the Magistrate’s reasons by reason of his failure to identify the notional individual sentences, and by his failure to state the discount allowed for the guilty pleas, it was submitted that the Magistrate had failed to apply, as he should have, the principle of totality; that he failed to consider the inter-relationship of his sentence with the sentence imposed by Judge Kelly in the District Court on 23 December 2003 and that the sentence was manifestly excessive.

23. I do not consider that the sentence of 20 months imprisonment, considered without reference to the District Court sentence imposed on 23 December 2003, is unduly severe.  As each of the offences of illegal use was a subsequent offence, the Magistrate was bound to impose a minimum period of imprisonment of three months in respect of each.  As each was a separate incursion into crime, it was appropriate for the Magistrate to accumulate those sentences.

24. With the possible exception of the offence committed on 28 December 2001, when regard is had to the appellant’s appalling history, the repeated offending by use of vehicles without the consent of the owners and the damage caused in particular to the Holden stolen from the Queen Elizabeth Hospital, sentences in excess of three months would have been appropriate in relation to each of these offences.

25. The sentence of larceny is also a serious offence.  The maximum sentence for that offence is five years.

26. If one assumes, in the appellant’s favour, that the Magistrate started with the notional starting point of 25 months (before discount for the plea of guilty) it can be seen that there are any number of notional sentences which might reasonably have been adopted by the Magistrate which would produce a notional starting point of 25 months or more.  This is particularly so having regard to the gravity of the appellant’s offending, and his history.  A reduction on account of the plea of guilty to 20 months would have been moderate.

27. On its face therefore, and considered in isolation, a sentence of imprisonment for 20 months for these four offences does not seem unduly severe.

28. However, the appellant submits that the principle of totality should have been applied in the circumstance that that period of imprisonment had to be served in addition to the period of imprisonment imposed as a result of the order made by Judge Kelly on 23 December 2003.  That is to say, the principle of totality had to be considered not only in relation to the sentences imposed by the Magistrate considered by themselves, but also by reference to that sentence considered together with the sentence imposed by Judge Kelly.  In particular, as Judge Kelly had said that the sentence which she imposed was reached by striking a balance between the need for deterrence, both person and general, on the one hand, and the need to give the appellant a chance to rehabilitate himself on the other, it was wrong, so the submission ran, for the Magistrate to impose a sentence which might interfere with that balance, or compromise the aims of the sentence fixed by Judge Kelly. 

29. I do not consider that there was any error by the Magistrate in imposing a sentence which meant that the appellant had to spend longer in custody than was contemplated by Judge Kelly even though the effect may be that the appellant was not able to commence his rehabilitation, on release, as soon as was contemplated by Judge Kelly.  The sentence fixed by Judge Kelly was fixed by reference to the facts and circumstances known to her.  It seems that Her Honour was unaware of the offences with which the appellant was charged in the Magistrates Court.  Her Honour’s sentence, and the approach which led to it, should not be read as impliedly excluding further penalties being imposed, with a longer non-parole period in respect of offences already committed but of which the District Court was unaware.  That is one of the risks of not having all offences referred to the one Court for sentencing consideration at the one time.  In short, the District Court sentence should not be regarded as inhibiting the fixing of appropriate sentences in respect of other offences which were not before the District  Court.  In saying that, I stress that I am not suggesting that the fact of the existing sentences is irrelevant.  It is of course a fact to which regard should be had by the later sentencing court.  In the present case, the Magistrate did plainly have regard to the sentence fixed by Judge Kelly.

30. The position is a little different in relation to the application of the totality principle.

31. The appropriateness of a sentence of 20 months imprisonment for the four offences with which the Magistrate was dealing had to be considered in the context that the appellant was already serving a period in custody and, what is more, a period in custody in relation to offences, some of which were of a like kind:  R v Bruce and Hollick (1998) 71 SASR 536. It was appropriate for the Magistrate to consider the totality of the sentences to be served by the appellant: Postiglione v The Queen (1997) 189 CLR 295 at 308 per McHugh J. It was submitted on the appellant’s behalf that the Magistrate had not considered the principle of totality in this way. It is true that there is nothing in his sentencing remarks to indicate that the principle of totality was so considered. The mere absence of any reference to this consideration in the sentencing remarks does not however mean that the Magistrate overlooked this consideration.

32. In this case, it was important, in my opinion, for the Magistrate to consider the principle of totality, given that he had the benefit of a pre-sentence report.  It does not seem that any like pre-sentence report had been available to the District Court Judge.  As noted above, the pre-sentence report did outline some matters suggesting that there were prospects of successful rehabilitation.  Some of the matters giving rise to those prospects were unlikely to be realised whilst the appellant remained in custody.  That is to say, those prospects would be more likely to be realised when the appellant is released.  I refer in particular to the appellant’s acceptance of his responsibilities as a parent.  I refer also to the attempts made by him to deal with his drug addiction. 

33. Given the gravity of the appellant’s offending, it is easy to understand why the Magistrate did not think it appropriate to make any reduction from the period of 20 months imprisonment which he had imposed.  However, I consider that two matters, in combination, do suggest that the principle of totality should have been applied in the present case.  Those two matters are the expressed desire by Judge Kelly in her sentence imposed on 23 December 2003 to fix a sentence which would provide the appellant with an opportunity for rehabilitation before he reached the age which should be regarded as the most productive years of his life, and secondly, the favourable indicators for rehabilitation contained in the pre-sentence report which was provided to the Magistrate to which I have referred.  These matters have not been mentioned by the Magistrate and I infer that they were not considered by him.  I do think it appropriate for me therefore to interfere with the Magistrate’s decision in this respect.

34. Applying the principle of totality, and considering the proposed sentence of 20 months together with the sentence imposed by Judge Kelly, I consider that it would be appropriate to reduce the sentence proposed by the Magistrate from 20 months to 15 months.  That sentence of 15 months is to commence to be served at the expiration of the sentence of six years, four months and 16 days fixed by Judge Kelly.

1. That means that there should also be some adjustment of the non-parole period.  The appellant should serve the unserved period of cancelled parole of two months and 13 days (being the period between 28 December 2001 and 10 March 2002), before the first of the offences for which the appellant was dealt with by Judge Kelly occurred.  Taking account of that period, and the reduced head sentence, I extend the non-parole period fixed by Judge Kelly to three years, nine months and 11 days, ie, an increase of nine months.

   Extension of Time

2. As noted above, the appellant was sentenced by the Magistrate on 25 March 2004.  His appeal was not instituted until 13 August 2004.  It was therefore instituted well outside the 14 day period fixed by SCR 96C.02.  The appellant has applied for an extension of time. 

3. As noted above, at the time of sentencing by the Magistrate the appellant was unrepresented.  On 3 April 2004 (whilst still within the 14 day appeal period) the appellant wrote from the Yatala Labour Prison to the Clerk of the Magistrates Court stating that he did wish to appeal and setting out some grounds of the proposed appeal.  He requested assistance in the lodgement of the appeal.  It is unclear what happened in relation to that request.  The appellant wrote again on 23 May 2004 to a Clerk of the Court.  Again it is unclear what happened in relation to that request.  In any event, it seems that in July 2004 or early August 2004 the appellant was granted legal aid and the notice of appeal was filed shortly thereafter.  Although the period of extension sought in this case is reasonably long, the appellant has provided a reasonable explanation for the delay.  The respondent has not alleged any prejudice as a result of the delay.  Having regard to the view which I have taken of the merits of the appeal, I do think it is appropriate for an extension of time to be granted.  I propose therefore to grant the appellant an extension of time in which to institute the appeal to 13 August 2004.

   Conclusion

4. For the reasons which I have outlined above, I propose to grant the extension of time.  I allow the appeal and will substitute for the sentence of imprisonment of 20 months imposed by the Magistrate a sentence of 15 months, which sentence is to commence at the expiry of the sentence fixed by the District Court on 23 December 2003.  I will set aside the non-parole period fixed by the Magistrate and substitute in its stead a non-parole period of three years, nine months and 11 days.

5. The orders of the Court are:

   1.Extension of time for institution of the appeal to 13 August 2004 is granted.

   2.The appeal is allowed.

   3.The orders of the Magistrates Court imposing a sentence of imprisonment of 20 months are set aside and in lieu thereof a sentence of imprisonment of 15 months is imposed.

   4.The order of the Magistrates Court extending the non-parole period to a period of four years is set aside and in lieu thereof an order fixing a non-parole period of three years, nine months and 11 days is imposed.

   5.The remaining orders of the Magistrate are to stand.