Jiannis v Police No. Scgrg-98-1695 Judgment No. S36

[1999] SASC 36

JIANNIS v POLICE
[1999] SASC 36
Magistrates Appeal
Nyland J

1 This is an appeal against sentence.  The appellant was charged with the larceny of a bottle of Grange Hermitage wine valued at $275 from Mac’s Liquor Store on 16 April 1998 and a further charge of larceny of a motor vehicle part valued at $115 from Rocca Bros on 9 July 1998.  This latter offence breached a bond which had been imposed in the Adelaide Magistrates Court on 29 May 1998 with respect to yet another offence of larceny which had been committed on 28 November 1997. 
2 On 20 November 1998, the appellant appeared before a stipendiary magistrate in the Adelaide Magistrates Court and pleaded guilty to the two larceny charges and he admitted the breach of bond.  The magistrate sentenced the appellant to imprisonment for a period of three months in respect of the larceny offence of 28 November 1997, which had been the subject of the bond, and he also imposed a sentence of three months imprisonment for each of the other two larceny offences.  He ordered the sentences to be served cumulatively.  They were also to be cumulative upon a sentence then being served by the appellant which had been imposed in the District Court on 29 September 1998.  That sentence had a head sentence of 17 months.  As a result of the sentence by the magistrate the appellant was then subject to a total head sentence of 26 months.  The magistrate fixed a non-parole period of 18 months. 
3 On the hearing of the appeal, Mr Boylan for the appellant submitted that the magistrate had erred by failing properly to take into account the appellant’s age, the pattern of his offending history and the fact that he was serving a sentence of imprisonment for the first time.  He further submitted that the magistrate had erred by taking into account the fact that the District Court judge had ordered that two sentences for earlier offences be served concurrently.  In addition, he argued that both the aggregate of nine months imprisonment and the extension of the earlier non-parole period by six months offended against the totality principle and were therefore manifestly excessive.
4 In order to understand the argument presented on appeal, it is necessary to have regard to the appellant’s offending history.  Between 1959 and 1964, the appellant appeared before the then Children’s Court on seven occasions with respect to charges of larceny.  Thereafter, apart from an irrelevant matter, his next appearance was in the District Court on 17 April 1996.  On that occasion he was charged with producing cannabis between January 1992 and August 1992.  The appellant was sentenced to be imprisoned for a period of 15 months with a non-parole period of 12 months.  The sentence was suspended on condition that he enter into a bond in the sum of $1,000 to be of good behaviour for 12 months.  His next appearance in court was on 18 April 1997.  On that occasion, on a charge of false pretences committed on 30 January 1996, he was sentenced to four months imprisonment which was suspended upon his entering into a bond in the sum of $1,000 to be of good behaviour for a period of three years.  On 25 August 1996 the appellant committed the offence of driving an uninsured and unregistered vehicle.  On 21 October 1996 in the Adelaide Magistrates Court he was fined the sum of $30 and disqualified from holding a driver’s licence for a period of four days.  On 10 March 1997, the appellant committed a further larceny offence for which he received a fine in the Adelaide Magistrates Court on 15 September 1997.  Each of these offences breached the District Court bond dated 17 April 1996.  In addition, on 12 April 1997, the appellant committed the further crimes of larceny and driving without due care.  He pleaded guilty to those matters in the Magistrates Court but as they also breached the bond of 17 April 1996, those matters were remitted to the District Court for sentence.  The appellant committed two further offences of driving an unregistered and uninsured vehicle on 26 and 29 May 1997 respectively.  On 15 September 1997 in the Adelaide Magistrates Court he was fined sums of $50 and $75 respectively.  On 29 May 1998, he was placed on a further bond with respect to a charge of larceny and stating a false name and address, committed on 28 November 1997.  Each of these matters breached the bond imposed in the Adelaide Magistrates Court on 18 April 1997.
5 When the appellant appeared before the District Court judge he admitted the two bond breaches.  The learned judge then considered whether it was appropriate to revoke the orders for suspension of sentence with respect to the two bond matters, as well as imposing sentence with respect to the larceny and driving charges.  The counsel who appeared for the appellant in the District Court was, at that time, unaware of the larceny offences which were eventually dealt with in the Magistrates Court.  This was regrettable as it led to the problem which has now arisen.  If the District Court judge had been aware of those other matters there is no doubt that he would have ordered that they be referred to him so that all matters could be dealt with at one time. 
6 The District Court judge carefully considered whether it was appropriate to revoke the orders for suspension of sentence. He concluded that there were no proper grounds to excuse the appellant’s failure to observe the conditions of each bond, nor were there any special circumstances justifying him in reducing the term of either sentence. He declined, however, in the circumstances and in the exercise of his discretion to direct that either suspended sentence be served cumulatively. He made an order that those sentences be served concurrently but directed that the previously suspended sentence of 15 months imprisonment be cumulative upon the sentence of imprisonment for larceny which he was about to pronounce. He then imposed a sentence of two months imprisonment with respect to that offence and imposed a fine with respect to the offence of driving without due care. This meant that the appellant had a total head sentence of 17 months imprisonment. Pursuant to the provisions of s32(1)(b) of the Criminal Law (Sentencing) Act 1988, the judge then reviewed the non-parole period which had been fixed by another District Court judge on 17 April 1996. He ordered that it be extended by one day, making a total non-parole period of 12 months and one day.
7 It was against that background that the magistrate, approximately two months later, was obliged to sentence the appellant with respect to the three additional charges of larceny to which I have referred.  The magistrate was not in any sense bound by the approach taken by the District Court judge, but in view of the proximity of that sentence and the overlapping of some of the offending, it was nevertheless a relevant matter.  It is obvious from his sentencing remarks that the District Court judge looked at the whole of the offender’s history.  He had regard to the fact that the offences which breached the initial bond were of a different nature to the original offence, and he took into account that two of the offences occurred towards the end of the first bond period.  Bearing all those matters in mind, he made the order revoking the order for suspension of sentence.  He did not, however, direct that the sentences arising out of the two bond breaches be served concurrently.  His decision only to extend the non-parole period by a nominal amount indicates that he considered that the appellant was capable of being rehabilitated.
8 The tenor of the magistrate’s remarks, however, strongly suggests that he believed the learned District Court judge had taken an unduly lenient view of the appellant’s offending.  In reference to the carefully considered order that the two suspended sentences be served concurrently, the magistrate said:
"At the end of the day, the four months imprisonment which had been imposed in the Magistrates Court was lost in the wash ..."
9 He said that the District Court judge had imposed a "term of only two months imprisonment" for the offence which he said had been committed on 10 March 1997, relating to the larceny of goods to the value of about $1,000 from Harris Scarfe’s.  He said that the judge had "showed a great deal of compassion and mercy in imposing such a short period of imprisonment" with respect to that offence, particularly considering the appellant’s antecedents.  In fact, the sentence imposed by the District Court judge of two months related to the larceny of some groceries on 12 April 1997.  The larceny offence on 10 March 1997 had been dealt with in the Magistrates Court on 15 September 1997 by the imposition of a fine of $100.
10 Each sentence of three months imposed by the magistrate, if looked at in isolation, may well have been appropriate.  The magistrate was, however, obliged to consider the principle of totality.  In so doing, he should have had regard to the whole of the sentence, which included the sentence regime which had so recently been put in place by the District Court judge. 
11 The appellant is now 51 years old.  He has never been subject to a supervision order.  As a result of the orders of the District Court judge he is serving his first custodial sentence.  His offending history is unusual in that, having offended as a child, he stayed out of trouble for about 30 years.  He has therefore demonstrated an ability to lead a productive life.  His re-offending appears to have occurred in a situation of marriage breakdown and business failure which ended in bankruptcy.  In my opinion, in approaching the matter as he did the learned magistrate gave insufficient weight to the personal history of the appellant which included the sentencing package designed by the District Court judge which was intended not to be crushing.  To add nine months to a sentence of 17 months and effectively to extend the non-parole period by six months, offends against the principle of totality and resulted in a sentence which, in my view was manifestly excessive.  In those circumstances, it is open to me to exercise the sentencing discretion afresh.
12 The appeal will be allowed.  I do not propose to interfere with the order for imprisonment of three months with respect to each of the larceny offences but I will order that those offences be served concurrently.  That will make a head sentence of 20 months in all.  I review the non-parole period previously fixed in the District Court and I extend it by one month.