HURST v POLICE - [2014] SASC 52

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HURST v POLICE
[2014] SASC 52
Judgment of The Honourable Justice David
15 April 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence - appellant pleaded guilty to two counts of serious criminal trespass in a place of residence with intent to commit theft and two counts of theft – appellant entered two residences and stole property, including cash and a television- appellant sentenced to 11 months imprisonment, 9 months of which was suspended upon the appellant entering into a bond to be of good behaviour for nine months – the appellant was required to serve two months of the sentence immediately.
Whether magistrate erred in not wholly suspending the term of imprisonment imposed.
Held: Magistrate has erred by failing to consider the question of the appropriate length of the head sentence independently of any questions of suspension – magistrate has erred by tailoring the head sentence to allow for the operation of section 38(2a) of the Sentencing Act – appeal allowed – sentence of magistrate set aside – appellant resentenced to a head sentence of 11 months, which sentence is wholly suspended on the appellant entering into a two year good behaviour bond in the sum of $750.
Criminal Law Consolidation Act 1935 170(1); Criminal Law (Sentencing) Act 1988 s 38, referred to.

HURST v POLICE
[2014] SASC 52
Magistrates Appeal: Criminal
DAVID J:
Introduction

This is an appeal against sentence.
The appellant pleaded guilty to two counts of serious criminal trespass in a place of residence with intent to commit theft, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (CLCA) and two counts of theft contrary to s 134 CLCA.
The four offences related to two separate incidents:
(a)On 10 August 2012 the appellant entered a home at Elizabeth Park. While at the property he stole a television. That offending was the subject of one count of serious criminal trespass and one count of theft.
(b)On 13 August 2012 the appellant entered a home at Craigmore. Whilst at the property he stole $600 in cash and a number of items. That offending was the subject of the second count of serious criminal trespass and the second count of theft.
On 1 November 2013 he pleaded guilty to all four counts and submissions were made on his behalf. On 22 January 2014 the Sentencing Magistrate imposed a single penalty pursuant to s 18A of the Criminal Law Sentencing Act 1988 (Sentencing Act) of 11 months imprisonment, back-dated to 6 January 2014, nine months of which were suspended upon the appellant entering into a bond to be of good behaviour for nine months. Two months were required to be served immediately.
The appellant was incarcerated for a period of time between 6 January 2014 until 22 January 2014 when he was sentenced, but has not served the two months as he was granted bail pending appeal.
The appellant appeals on the single ground that the Magistrate erred in not wholly suspending the term of imprisonment imposed. There is no appeal against the length of the sentence.
At the time of sentence the appellant was 24 years of age and was married with two young children. He was at that time, and is now, employed. In 2005 he was dealt with in the Adelaide Youth Court for a number of counts of aggravated serious criminal trespass. He was then 15 years of age and no convictions were recorded. Since that time, he has no relevant convictions as an adult.
Appeal
Mr Mead of counsel, on behalf of the appellant, argues before me that the Magistrate in her reasons erred in a number of ways in her approach to sentence. In order to better understand his arguments, I set out s 38(2a) of the Sentencing Act, which reads as follows:
(2a) However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order—
(a) direct that the defendant serve a specified period (being not less than one
month) of the imprisonment in prison; and
(b) suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
Mr Mead argues that the Magistrate erred by not setting a definite term of imprisonment before turning to considerations as to whether that term should be either suspended pursuant to s 38 of the Sentencing Act or partially suspended pursuant to s 38(2a).
Mr Mead argues that the following passage in the learned Magistrate’s sentencing remarks indicates an error of approach.
...
I have been talking with your lawyer about the various options and I have come to the conclusion that I do not need to make an order that would involve a non-parole period, because I think given the discounts for your plea of guilty and the fact that you are a very young person, that the sentence do not need to go over 12 months imprisonment. I think I would rather have an order that is a guarantee as to what is going to happen as opposed to a non-parole period where there are no guarantees.
Mr Mead argues that rather than setting a definite period of imprisonment before then turning to the question of either full or partial suspension, the Magistrate has tailored the term of imprisonment to allow for the application of s 38(2a). He further points out that discussions between counsel and the Magistrate as to various options should be discouraged and that a definite term of imprisonment should be set before the question of the exercise of discretion to suspend either partially or wholly is considered.
In essence, Mr Mead submits that by partially suspending the Magistrate has pre-determined that she wants to set a term of imprisonment to actually be served and has tailored the sentence to use s 38(2a) as distinct from the setting of a non-parole period. He submits that the learned Magistrate has done this so as to place no reliance upon the Parole Board as to when the appellant would be released. He submits that by doing this the learned Magistrate has erred by treating the decision whether or not to suspend and the decision whether or not to set a low non-parole period as alternatives.
Ms Schwarz for the respondent submits, quite straightforwardly, that if Mr Mead’s interpretation of the Magistrate’s sentencing remarks is correct, then it would evince error. She however does not agree with Mr Mead’s interpretation and further argues that the sentence was a moderate one and the Magistrate’s exercise of the discretion to use s 38(2a) does not indicate any substantial error.
Conclusion
I have considered the learned Magistrate’s sentencing remarks carefully and interpret them in a similar manner to that of Mr Mead.
In my view, it was incumbent upon the Magistrate to consider the question of the length of the sentence quite independently of any questions of suspension. The Magistrate has erred in not doing that. Although she considers the general question of whether the term of imprisonment should be less than 12 months, that was obviously for the purpose of considering the option of the use of s 38(2a). Such consideration should only have been considered after the term of imprisonment has been set. If the term was too great so as to preclude the use of s 38(2a) then the Magistrate would have to consider whether it was appropriate in the circumstances to suspend the sentence fully, pursuant to s 38(1).
In the difficult task of sentencing I do not want to discourage vigorous discussion between counsel and the bench, but it appears to me to be a dangerous and inappropriate practice if it descends into a position of bargaining about sentencing options. Without further information I do not say that has occurred here and the material that I have before me is such that this cannot be a basis for my present decision. However, if that is a practice that has developed, it should be discouraged.
I find that the Magistrate has erred in her sentencing approach and the exercise of her discretion flawed. I allow the appeal and set aside the sentence.
I turn to the question of re-sentencing.
Re-Sentencing
Both counsel indicated to me that if I were to allow the appeal all submissions on re-sentencing have been made. I take into account that the appellant is in full employment, is still a young man of 24 years and has a family. I also take into account that his last serious relevant Court appearance was when he was a youth some nine years ago. In exercising my discretion, allowing for the short period of time he spent in prison, I would set one term of 11 months imprisonment for all four offences pursuant to s 18A of the Sentencing Act and I would wholly suspend that pursuant to s 38 of the Sentencing Act on entering into a good behaviour bond in the sum of $750 for a period of two years. The term of sentence will commence from today.