HUGHES v Police - [2012] SASC 183

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HUGHES v POLICE
[2012] SASC 183
Judgment of The Honourable Justice David
16 October 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
Appeal from Magistrates Court – appellant pleaded guilty to numerous offences committed over a period of 11 months – offences included non-aggravated serious criminal trespass, theft, property damage, attempted serious criminal trespass, illegal use and unlawful possession – appellant sentenced to five years and six months’ imprisonment with a non parole period of three years and three months – whether Magistrate erred in failing to take into account appellant’s plea of guilty.
Held: Appeal allowed – no inference can be drawn from the sentencing remarks that the Magistrate reduced the sentence by reason of the appellant’s plea of guilty – the appellant to be resentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

HUGHES v POLICE
[2012] SASC 183
Magistrates Appeal: Criminal

DAVID J: This is an appeal against a sentence imposed by a Magistrate. The appellant pleaded guilty to numerous offences over a period of about 11 months. Such offences involved stolen property to the total value of approximately $50,000.
The Magistrate imposed a head sentence of six years and six months imprisonment. He reduced that sentence by 12 months to allow for time spent in custody and on home detention bail, leaving a head sentence of five years and six months imprisonment. He ordered that the head sentence would be cumulative upon a period of 11 months and 17 days unexpired parole. His final sentence was therefore six years, five months and 17 days. The Magistrate set a non-parole period of three years and three months. The period of unexpired parole was deemed to start from the date of sentence, 15 February 2012.
The appellant argues that the starting point of six years and six months imprisonment is manifestly excessive. In particular, the appellant argues that the Magistrate did not make any form of allowance for her pleas of guilty.
Background
At the time of sentence, the appellant was 36 years of age. On 28 February 2011, she pleaded guilty to numerous offences that were committed over a period of about 11 months. The offences comprised:
·Six counts of non-aggravated serious criminal trespass with attended counts of theft and property damage;
·Three counts of attempted serious criminal trespass;
·One count of serious criminal trespass (residential);
·Six counts of theft;
·One count of illegal use of a motor vehicle;
·One count of unlawful possession;
·Lesser offences of breaching bail and giving false details, to which she pleaded guilty on 1 August 2011.
All of this offending occurred between 22 August 2010 and 4 July 2011.
The appellant has an extensive criminal history which is set out in an antecedent report.[1] When the appellant pleaded guilty on 28 February 2011 she was accepted into the Drug Court program. However, she failed to complete that program which was terminated on 29 August 2011. Her performance during the Drug Court program was accurately set out in the Magistrate’s sentencing remarks when he said:
[2]You were accepted on to the Drug Court program on 28 February 2011. Your first review was very good. By the end of your third review on 30 March 2011, you were placed back into custody for stabilisation because of your constant methamphetamine and cannabis use. You were released back on to the program on 13 April 2011 and your fourth review only disclosed one declared cannabis use and a number of home detention breaches. On your fifth review, there was a declared cannabis use and a failure to attend testing. You were charged with a theft on 28 February 201. On 15 April 2011 you were charged with a new serious criminal trespass residential and a theft from 5 May 2011. I released you back on to the program on 1 June 2011. The reason being that the serious criminal trespass residential and theft from 5 May 2011 was disputed. Your sixth review had a cold sample, a late attendance for testing and four more breaches of home detention. Your whereabouts was unknown from 4 July 2011 and you failed to attend three urine tests. There was a cold sample, again, on 29 June 2011.
[3]You were arrested in Port Augusta for fresh offending. I terminated you from the program on 29 August 2011 because of your fresh offending, your continual drug usage, your provision of substituted samples and the fact that you went missing without leave in breach of your bail. I remind myself that, whilst I can take into account a person’s achievements on an intervention program if it is successful under s 19(5) of the Criminal Law (Sentencing) Act 1988, you performed badly and made no satisfactory progress. I direct myself, in accordance with s 10(6) of the Criminal Law (Sentencing) Act 1988, that your failure to successfully complete a program at law is not relevant to the sentence I must impose. I, therefore, intend to treat you and sentence you on the basis as if you had not been on the Drug Court program.
There can be no argument that the Magistrate correctly approached the question of the appellant’s failure to successfully complete the Drug Court program when sentencing.
[1] Antecedent Report dated 21 October 2011.
The sentencing remarks
In his sentencing remarks, the Magistrate thoroughly and carefully canvassed in detail all of the offending and dealt carefully with the appellant’s difficult and unfortunate background. He said:
[18]However, in brief, your personal history is set-out in the psychological report. You were born in Nowra, New South Wales. You had four half siblings and three older sisters of whom to are now deceased and one brother. At age five your family relocated to Mildura and your father worked away for six months a year. Despite that your parents appeared to retain a relationship until you were about eight years old. Your father, then, admitted he had been having an affair with a 19 year old and was leaving your mother. However, instead, he tried to commit suicide in front of you by holding a gun under his chin and pulling the trigger. He survived but your mother became severely depressed and, as a result, your two sisters moved back with you to Nowra with an aunty because your mother was incapable of taking care of you. You, yourself, attempted to overdose with Valium after you were sent to your aunty’s at Nowra. You were taken away with your siblings and placed in an Aboriginal family group where, you report, you were subject to physical, emotional and sexual abuse. You continuously ran away to try and go back to your mother. Eventually you reported the sexual abuse but, you say, the police simply ridiculed your complaint.
[19]You were then made a Ward of the State and, at age 11, you were placed in a girls’ home for three months. During that time your mother managed to obtain custody back of all your siblings but was not allowed custody back of you. You were placed in foster care and was sexually abused by the family’s grandfather at age 11. As a result, you went back into the girls’ home where you continuously ran away. You refused to attend school regularly. You refused to follow rules and you had issues with authority.
[20]At age 12 you left the girls’ home and went to live on the street. You commenced working, to survive, for a drug dealer running speed and soon after you commenced using and found that amphetamine assisted your pain. Owing to your age and drug use you were often intoxicated as a result of the drugs and were raped on, at least, three occasions.
[21]You attended school spasmodically to about grade 5 and, then, only very infrequently until year 8 but you say you can read and write. When in prison you have completed a number of courses including Certificate I and II in business and Certificate I and II in hospitality as well as a barista’s course.
[22]You have limited work history having worked 10 years ago as a kitchenhand. At the time of your arrest your were on Newstart Allowance and were looking after your son, [E].
[23]You have had two significant relationships. The first being at age 15 years and that relationship led to the birth of your son, [H]. You, and your current partner, have been together for 13 years although he has spent 10 years in custody. You described having had casual flings whilst your partner was in custody resulting in the birth of your youngest child, [E].
[24]Your eldest son, [H], aged 18 lives in Mildura and he, and his girlfriend, are about to have a child next month. Your youngest boy is age 15. You probably, aptly, summarised it in the psychological report when you say the only thing you have are your two sons.
[25]You commenced amphetamine use at 13 and continued to 15. In some respects your first relationship, whilst unlawful at law with the person you referred to as ‘AJ’, at least led to you ceasing your amphetamine use until 24. However, you continued to use cannabis.
[26]The report suggests that you are a warm, friendly and sympathetic person. You realise your drug use is your problem and, whilst you say you were motivated to try and deal with it, as the program shows you were not able to do so. The report also indicates that you are assessed at being a high risk of re-offending in the future.
The Magistrate then set a head sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) of six years and six months. He reduced that by 12 months to allow for time spent in custody, making a head sentence of five years and six months to commence at the end of an unexpired parole period of 11 months and 17 days. He set a non-parole period of three years and three months.
Appeal
The appeal focussed initially on whether the starting point before any reductions or additions was manifestly excessive, however, as the argument developed on appeal it became confined to the question of whether the sentence imposed by the Magistrate miscarried as the Magistrate, in his sentencing remarks, made no mention of whether a reduction should be made because of the appellant’s pleas of guilty.
This has caused me some concern. It is most unfortunate that this fundamental question was not dealt with because the Magistrate, in his remarks, covered all appropriate aspects of the sentencing process and made no mistake in principle. However, not only has he not dealt with the question of a reduction for pleas of guilty, but nowhere in the sentencing remarks can it be inferred that he has made such a reduction.
As can be seen, there were pleas to a number of offences as a result of which the appellant was placed on the Drug Court program. Counsel for the respondent on appeal argues that, because the pleas of guilty were followed by being placed on the Drug Court program, in those circumstances there is no need to make a reduction for those pleas when finally sentencing. I reject that argument. There is no basis of principle to say that a plea in those circumstances should not have the benefit of a reduction as normally happens.
The absence of such a consideration demands that the sentence should be set aside and the appellant be resentenced.
Conclusion
I allow the appeal and set aside the sentence. I will hear the parties on the question of resentencing.