Ilee v Police - [2005] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ILEE v POLICE
Judgment of The Honourable Justice Gray
18 February 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appeal against sentence imposed by magistrate - appellant pleaded guilty to charges of damage property, unlawfully on premises, theft, unlawful possession and breach of bond - the charge of damage property related to an incident involving the appellant kicking a gate of premises he previously leased - other charges related to the appellant attempting to remove electrical cabling from a carpark - the appellant was sentenced pursuant to section 18A to three months' imprisonment.
On appeal appellant submitted that the magistrate misdirected himself as to the facts, incorrectly understood the appellant's prior criminal record and ought to have suspended the sentence of imprisonment.
Consideration of circumstances of offending - consideration of appellant's criminal antecedents - held magistrate erred in treatment of the circumstances of the offending, the appellant's prior convictions and failure to suspend sentence - appeal allowed.
Appellant re-sentenced - consideration of personal circumstances of appellant - consideration of section 38(1) Criminal Law (Sentencing) Act 1988 (SA) - appellant sentenced to three months' imprisonment suspended on the entry into a two year supervised bond to be of good behaviour with conditions.
Criminal Law Consolidation Act 1935 (SA) s 85(3), s 134 and s 270C(1); Summary Offences Act 1953 (SA) s 17(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38(1), referred to.
Anderson v R (1993) 177 CLR 520; Weaver v Samuels [1971] SASR 116; R v Wacyk (1996) 66 SASR 530; Stephens v Police [2002] SASC 187, considered.

ILEE v POLICE
[2005] SASC 54
Magistrates Appeal
GRAY J
Introduction

This is an appeal against sentence.
On 3 December 2004 Phillip John Ilee, the appellant, pleaded guilty in the Magistrates Court to charges that:
-on 3 May 2002 he damaged property such damage amounting to not more than $2000;[1]
-on 29 March 2004:
.        he was unlawfully on premises at 176-186 Wakefield Street;[2]
.        he attempted to commit theft;[3]
.       he was in possession of articles in suspicious circumstances intending to use them to commit an offence of theft.[4]
[1] Section 85(3) of the Criminal Law Consolidation Act 1935 (SA)
[2] Section 17(1) of the Summary Offences Act 1953 (SA)
[3] Section 134 of the Criminal Law Consolidation Act 1935 (SA)
[4] Section 270C(1) of the Criminal Law Consolidation Act 1935 (SA)
Mr Ilee also admitted a breach of a good behaviour bond entered into on 17 July 2003 with respect to offending on 6 March 2003. The offences to which that bond related were property damage, larceny and unlawful possession. Mr Ilee was released on an unsupervised good behaviour bond. No term of imprisonment was fixed. It was a term of the bond that in the event of breach Mr Ilee was to be re-sentenced for that offending.
The learned sentencing magistrate convicted Mr Ilee of all offences. He imposed the one penalty of three months’ imprisonment pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).
Background
The offence of damage property on 3 May 2002 occurred when Mr Ilee was asked to leave premises that he had been sharing. He refused to do so and the other tenant put Mr Ilee’s property on the street. Mr Ilee arrived home to find that some of his property had been stolen. Upset by this, he kicked the gate to the premises, thus causing damage. He later compensated the other tenant for that damage.
The offences committed on 6 March 2003 related to the taking of aluminium window frames and screens from commercial premises.
The offences of unlawfully on premises, attempted theft and possess article in suspicious circumstances on 29 March 2004 occurred when Mr Ilee with another person walked past a public car park and noticed some electrical cabling hanging from the roof of the car park. He formed the intention to steal the cable in order to exchange it for money. He climbed onto a wheelie bin intending to cut the cable down. How far the attempt progressed is unclear.
At trial, counsel for the prosecution submitted that Mr Ilee had cut the cable loose. However, this was not the subject of evidence before the magistrate. Mr Ilee denied causing any damage to the cabling.
Mr Ilee ceased his attempt when he realised that he was being observed. The witness, a security officer, telephoned his employer. The employer arrived a short time later with another security officer. Mr Ilee was detained until police arrived. On arrival, the police searched the area, located a hacksaw on top of the wheelie bin and a small torch, pair of pliers and two pairs of gloves in Mr Ilee’s possession. The police then arrested Mr Ilee.
Magistrate’s Remarks
The magistrate’s remarks on penalty were as follows:
I take into account all the matters I am required to under the Sentencing Act. These charges of taking property, window frames and screens and electrical cable, from commercial premises no doubt resulted in causing substantial inconvenience and expense to the owners.
You were placed on a bond to be of good behaviour and that was on 17 July 2003 for two years. In March you were in commercial premises again trying to take electrical cable for money. I am sympathetic to the fact that on $360 a fortnight and rent of $300 you obviously do not have enough money, so it is a very bad situation.
You have a prior record for larceny offences and indeed were jailed for a year. I have been urged to suspend any period of imprisonment that I impose. There is also a relatively minor offence of an argument with you [sic] co-tenant and you kicked the door when they threw your property out. You have now paid them back, so that is now little more than a civil dispute.
I impose a global penalty pursuant to Section 18A of the Criminal Law Sentencing Act for the unlawful possession and unlawfully on the premises and larceny file charges of 6 March 2003 that I am called upon to sentence you for and also for the breach of bond on 29 March this year.
In view of your prior record, the relative seriousness of these offences involving damage to other’s property, in my view a gaol sentence is required. As for suspending the gaol sentence in view of the fact that the second offence was a breach of bond imposed on an offence within a year on a two year bond, in addition with your record means it is not appropriate for me to suspend it and I will gaol you for 3 months to serve.
Issues on appeal
Counsel for Mr Ilee contended that the magistrate had misdirected himself as to the facts. The first and second paragraphs of the magistrate’s sentencing remarks were said to show that the magistrate had proceeded on the basis that there had been a taking of electrical cable from commercial premises on one occasion and that later Mr Ilee had been apprehended “in commercial premises again trying to take electrical cable for money”. In fact, there had been only one incident involving electrical cable and the occurrence of damage to that cable was disputed.
Counsel further contended that the magistrate had incorrectly understood Mr Ilee’s criminal record. It was said that Mr Ilee’s criminal antecedents disclosed only one prior immediate custodial sentence. It was said that the magistrate paid no or insufficient regard to the fact that this sentence related to offences committed more than 25 years earlier.
Counsel also submitted that Mr Ilee’s difficult personal circumstances called for a compassionate approach. It was said that he needed support and supervision. These matters, it was contended, were given insufficient weight by the magistrate.
Consideration of the Issues
Did the magistrate misdirect himself as to the facts?
The magistrate was bound to take the view of the offences most favourable to the accused or otherwise resolve any dispute by the calling of evidence.
In Anderson v The Queen, Deane, Toohey and Gaudron JJ observed:[5]
If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance. It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely beyond reasonable doubt. If the Crown fails to establish the disputed circumstance of aggravation to that standard of proof, the offender must be sentenced on the basis that the circumstance of aggravation has not been shown to exist.
[5] (1993) 177 CLR 520 at 536
In Weaver v Samuels, Bray CJ said:[6]
The rule is that if the defendant desires to dispute circumstances of aggravation alleged in sworn evidence for the prosecution, he must do so by sworn evidence from himself or someone else; but if the aggravating matter is not sworn to, but is only alleged on the one hand and denied on the other in an unsworn form, then it is the duty of the court “to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused” [Maitland’s Case [1963] SASR 332 at 335].
[6] [1971] SASR 116 at 119
On the one hand, the court should be slow to dismiss any plausible explanation for the magistrate’s choice of language. The references to “substantial inconvenience” and “damage” may have related to the offences in respect of which Mr Ilee was being re-sentenced. The word “again” in the sentence “In March you were in commercial premises again trying to take electrical cable for money” may possibly refer to Mr Ilee’s presence on commercial premises for unlawful purposes rather than the taking of electrical cable.
The reference to the taking of electrical cabling and “substantial inconvenience and expense” in the same sentence, the use of the word “again” in the second paragraph of the magistrate’s remarks and the magistrate’s comment as to “the relative seriousness of these offences involving damage to other’s property” give considerable force to counsel’s contention that the magistrate proceeded mistakenly as alleged. In the circumstances, the magistrate misdirected himself as to the circumstances of the offences.
Magistrate’s treatment of Mr Ilee’s Criminal Antecedents
The case for concluding that the magistrate has erred in the exercise of his discretion is made compelling by his treatment of the accused’s record.
The magistrate took the view that the offending in light of Mr Ilee’s criminal antecedents made an immediate sentence of imprisonment appropriate. The magistrate referred to the fact that Mr Ilee had been jailed for a year.
However, Mr Ilee’s antecedents disclosed that the term of imprisonment of one year had been imposed more than 25 years ago.
The fact that the magistrate saw Mr Ilee’s “prior record for larceny offences” as a principle consideration for concluding that it was not appropriate to suspend the sentence indicates that he had overlooked that the dishonesty offending that led to the order of imprisonment occurred more than 25 years ago.
Mr Ilee had been sentenced to suspended terms of imprisonment for offences of assault. Again these were well in the past. Mr Ilee’s record suggests that he responded well to the bonds entered into on those occasions.
Personal Antecedents
Mr Ilee is a 47 year old single man. He has a 17 year old son with whom he currently has no contact. Mr Ilee’s childhood has been described as “difficult”. His father lost mobility at a young age due to numerous strokes. At the age of two Mr Ilee suffered severe burns to a significant proportion of his body. This restricted Mr Ilee’s ability to work as he has significant pain in his arms and fingers. Mr Ilee has received a disability support pension since the age of 16. He is currently unemployed.
Mr Ilee lives alone. It was said that his accommodation expenses caused financial difficulties in that he pays $300 rent per fortnight and only receives $360 a fortnight disability pension. To supplement his income he collects cans from rubbish bins around the city of Adelaide for recycling. Counsel for Mr Ilee described the incident the subject of the 29 March 2004 charges as a case of “overzealous scavenging”.
It appears that the magistrate failed to consider that if he imposed an immediate term of imprisonment of three months, Mr Ilee would be left without ongoing supervision from the Department of Correctional Services. This was a matter relevant to the exercise of the magistrate’s discretion to suspend the term of imprisonment, particularly when regard is had to Mr Ilee’s personal antecedents.
In all these circumstances the magistrate’s sentencing discretion miscarried.
Re-sentencing
When re-sentencing Mr Ilee it is important to have regard to his personal antecedents and his account of the circumstances giving rise to the charges.
Mr Ilee has pleaded guilty to damaging property, being unlawfully on premises, attempted theft and possession of articles in suspicious circumstances. In addition, Mr Ilee’s offending resulted in a breach of a good behaviour bond. The gravity of Mr Ilee’s offending and his prior dishonesty convictions gives rise to the need to impose a sentence of imprisonment. A reduction in the order of 25% to the otherwise appropriate sentence on account of his pleas, his contrition and his remorse should be made. The sentence of three months’ imprisonment imposed by the magistrate was appropriate, however, it is necessary to consider whether this sentence ought to be suspended.
The Sentencing Act allows the court to suspend a term of imprisonment where “good reason” exists for doing so. Section 38(1) provides:
Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
The requirement of “good reason” is not circumscribed by any particular formula and is to be determined on the circumstances of the particular case.[7] In the present case, there were limited aggravating features to Mr Ilee’s offending and it has been said that his actions were influenced by his dire financial situation. Account must be taken of his contrition and remorse. It is in the interests of the community and Mr Ilee that he be rehabilitated. Although Mr Ilee has been subject to a good behaviour bond in the recent past, he did not receive supervision as a condition of a bond. This is a relevant factor to be considered in light of the time that has elapsed since his imprisonment more than 25 years ago and of his personal circumstances.
[7] R v Wacyk (1996) 66 SASR 530; Stephens v Police [2002] SASC 187
Good reason to suspend the sentence of imprisonment has been established. The appropriate order is to suspend the sentence of three months’ imprisonment on the condition that Mr Ilee enter into a supervisory two year bond.