JONES v Police

[2004] SASC 269

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

JONES v POLICE

Judgment of The Honourable Justice Nyland

7 September 2004

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES

Appeal against sentence - appellant charged with numerous offences on seven separate complaints - pleaded guilty - convicted and sentenced in Magistrates Court - whether sentencing discretion miscarried - non-parole period not backdated to commence on same date as head sentence - principle of totality - discount for pleas - appeal allowed.

Criminal Law (Sentencing) Act 1988 ss 30(2)(b), 30(5), referred to.
Sherlock v SA Police (Judgment delivered 2 April 1996 S5549, unreported; Frank v Police [2000] SASC 245 (unreported), applied.
R v Shannon (1979) 21 SASR 442; Nixon v R (1993) 66 ACrR 83; R v Harris and Simmonds (1992) 59 SASR 300, considered.

JONES v POLICE
[2004] SASC 269

Magistrates Appeal: Criminal

1. NYLAND J:  This is an appeal against sentence.  The appellant was charged with a number of offences on seven separate complaints.  The appellant appeared before a stipendiary magistrate in the Christies Beach Magistrates Court on 25 March 2004 and pleaded guilty to offences charged on four files which related to offences of larceny, carrying an offensive weapon, dishonestly taking property, as well as two applications for enforcement of a breached bond.  On 18 June 2004 the appellant pleaded guilty to offences of unlawful possession and theft which were charged on the remaining three files.

2. On 24 June 2004, the learned magistrate sentenced the appellant with respect to all of the offences.  The magistrate imposed sentences with regard to each of the matters as follows:

File No.	Date of offence	Charge	Penalty imposed
03-5237	12/10/03	Count 1 – Theft of items from IGA store to value of $28.50	4 months backdated to 24/02/04
Count 2 – Driving on a reserve without due care	Convicted without penalty
03-6004	20/02/03	Count 1 – Carry offensive weapon	5 months – cumulative on 03-5237
Count 2 – Unlawful possession – security cameras, knife, tools, torch, mini bolt cutters	Penalty included in Count 1
04-56	29/12/03	Count 1 – Unlawful possession – cassette recorder	4 months – cumulative on 03-6004
04-1295	25/01/04	Count 1 – Unlawful possession – nails, cable, butchers knives, screws, vacuum cleaners etc	4 months – cumulative on 04-56
04-2041	13/03/04	Count 1 – Failure to comply with condition of bail	3 months – cumulative on 04-1295
18/03/04	Count 2 – Failure to comply with condition of bail	Penalty included in count 1
04-386	25/01/04	Count 1 – Dishonestly taking property without owner’s consent	4 months – cumulative on 04-2041
03-5815	Count 1 – Application for enforcement of a breached bond (failing to comply with supervision order)	Suspension not revoked
Count 2 – Application for enforcement of a breached bond (bond breached by committing further offences)	Suspension revoked – 3 months cumulative on 04-386

1. The accumulation of sentences resulted in a head sentence of 27 months which was directed to commence from 24 February 2004.  In considering the non-parole period, the magistrate noted that the appellant had already spent two periods in custody, the first being from 25 January to 24 February 2004, following which the appellant was released on home detention bail.  The appellant was taken back into custody and his home detention bail revoked on 25 March 2004.  He continued to remain in custody from that date until he was sentenced on 24 June 2004.  The magistrate indicated that he proposed to give the appellant a credit of four months for time spent in custody and then directed that a non-parole period of nine months commence from 24 June 2004. 

2. Before turning to the arguments presented on appeal, it is useful to expand on the particulars relating to the various charges which are referred to in the above schedule.

3. File 03-5237:

   The offence of dishonestly taking property was alleged to have occurred at the IGA Supermarket in Hackham on 12 October 2003.  The appellant was seen to place a jar of coffee in his trousers, and leave the store without paying.  Other items were subsequently discovered in his possession, including a bottle of coke, a carton of milk, two packets of cheese and a box of fruit juice.  The total value of the goods was $28.50.  After leaving the store without paying, the appellant drove away.  Attempts were made to prevent him from leaving the vicinity, but he drove over a kerb and along a walkway, on a reserve and then again on a walkway at 40 to 50 km/h.

4. The appellant pleaded guilty to the charge of theft on 25 March 2004 and to the driving offence on 18 June 2004.  Counsel for the appellant submitted that the appellant had no food, nor money with which to buy food, and that he stole the items of food and drink for his personal consumption.  For that offence, the appellant was sentenced to a period of four months imprisonment and a conviction without penalty was recorded with respect to the driving offence.

5. File 03-6004:

   The offences with respect to this matter arose out of a police attendance at an address in Itala Crescent, Hackham West, on 20 October 2003.  Following a search of the premises, a knife, two security cameras, some tools, a torch and mini bolt cutters were revealed, and the appellant was located in the rear yard of the premises.  The appellant was charged with carrying an offensive weapon and unlawful possession.  Counsel for the appellant told the court that the appellant had bought the knife a short time earlier for $5, and intended to use it for car restoration work.  It was said that the security cameras were given to him when he received visitors to his home.  The unlawful possession charges were said to be due to the appellant’s habit of hoarding goods, which he had developed during his work on building sites and at a local tip.  One sentence of five months imprisonment was imposed, to be served cumulatively upon that imposed in File 03-5237.

6. File 04-56:

   This offence of unlawful possession related to a cassette recorder that was discovered during a police search of the appellant’s home at 22 Shepherd Road, Christies Beach on 29 December 2003.  The appellant was sentenced to four months imprisonment to be served cumulatively upon the sentence imposed in File 03-6004.

7. File 04-1295:

   This also was a charge of unlawful possession.  It was alleged that at 10.25 pm on 25 January 2004, a police officer observed a male amongst vehicles at the Noarlunga Centre Interchange, and noticed that a vehicle had been broken into and ransacked.  A search of the area revealed the appellant hiding near a vehicle. The appellant attempted to run from the area but was apprehended and found to be in possession of nails, electrical cable, butchers knives, vacuum cleaners and screws. The appellant was arrested, and eventually released on home detention bail on 24 February 2004.  It was submitted on behalf of the appellant that the vehicle in question had already been interfered with and the door opened.  Seeing the open door of the vehicle, the appellant took the property.  He subsequently co-operated with police by indicating the place from whence the property had been taken.  The appellant was sentenced to four months imprisonment to be served cumulatively upon that imposed in File 04-56.

8. File 04-2041:

   This file relates to two counts of failure to comply with a term or condition of a bail agreement and relates to the home detention bail pursuant to which the appellant was released on 24 February 2005.  Count 1 was alleged to have occurred on 13 March 2004, when the appellant attempted to remove his electronic anklet.  Counsel told the court that he had attempted to re-fasten it, and in fact was just fooling around with it.  Count 2 arose out of a urine test conducted on 18 March 2004.  That tested positive for the controlled substance methylamphetamine.  The appellant was sentenced to one sentence of three months imprisonment to be served cumulatively upon that imposed in File 04-1295.

9. File 04-386:

   Although three counts were originally alleged on this file, two were subsequently dismissed for want of prosecution as a result of which the appellant stood charged only with one count of dishonestly taking property without the owner’s consent.  The property was allegedly taken from the vehicle that was ransacked at Noarlunga Interchange Centre on 25 January 2004.  It included toys, screwdrivers, multigrips, a torch and a bible to the value of about $100.  It was seized following a search of the appellant’s premises on 25 January 2004.  The appellant was sentenced to four months imprisonment to be served cumulatively upon the sentence imposed in File 04-2041.

10. File 03-5815:

    This file is concerned with two applications for enforcement of breach of a bond which had been entered into by the appellant on 7 August 2003.  On that occasion a sentence of three months imprisonment in relation to an offence of larceny was suspended on condition that the appellant enter into a bond in the sum of $50 to be of good behaviour for a period of 12 months.  It was alleged that the appellant breached the conditions of that bond by failing to comply with a supervision order, and further by committing offences of dishonesty.  The appellant admitted the breaches.  The magistrate did not consider the failure to comply with the supervision order trivial but he excused the breach as he considered that there were proper grounds to do so, namely the action he proposed to take with respect to the second breach which related to the commission of further offences.  The magistrate revoked the order for suspension in relation to that matter and ordered that the sentence of three months imprisonment be carried into effect, cumulative upon the sentence of imprisonment imposed in File 04-386.

11. On appeal, the appellant was represented by Mr Love of counsel, and Ms McLean appeared as counsel for the respondent. The first matter raised on appeal related to the backdating of the non-parole period. Section 30(2)(b) of the Criminal Law (Sentencing) Act 1988 (“Sentencing Act”) provides that where a defendant has been in custody in respect of the offence for which he is subsequently sentenced to imprisonment, the court may direct the sentence to have commenced on the day on which the defendant was taken into custody.  Section 30(5) deals with the fixing of a non-parole period where the sentence is backdated.  It provides that:

    “Where a court directs that a sentence of imprisonment is to be taken to have commenced on the day on which the defendant was taken into custody, any non-parole period fixed by the court in respect of that sentence will be taken to have commenced on that day.”

12. In this case, the learned magistrate’s manner of fixing the commencement date of the sentence and the non-parole period is confusing. The learned magistrate directed that the head sentence of 27 months commence from 24 February 2004, although that was a date on which the appellant was in fact released from custody on home detention bail. The appellant had, however, been in custody for a month prior to that date, viz from 25 January 2004 to 24 February 2004. The appellant was then returned to custody on 25 March 2004 where he remained until he was sentenced. As the appellant was in custody at the time of sentence, the decision by the learned magistrate to back-date the sentence, albeit to the date on which the appellant was released on home detention bail, suggests that he was intending to exercise his power pursuant to s 30(2)(b) of the Sentencing Act. On that basis, in accordance with s 30(5) of the Sentencing Act, the appropriate course was to backdate the non-parole period to commence on the same date. 

13. The learned sentencing magistrate did not, however, do that.  When fixing the non-parole period he indicated an intention to give the appellant a credit for four months spent in custody, that is, the period 25 January to 24 February 2004 and the period from 25 March to 24 June 2004.  The learned magistrate then directed that the non-parole period commence as from the date of sentence, that is, 24 June 2004.

14. Perry J was confronted with a similar situation in Sherlock v SA Police[1]. In that case, the magistrate also made an order that the head sentence be back-dated but directed that the non-parole period commence from the date upon which sentence was pronounced. Perry J referred to ss 30(2)(b) and 30(5) of the Sentencing Act and said (at p2):

    “It seems to me that the clear intent of the sub-sections when read together is that if the power to antedate the commencement of the head sentence is invoked, so that it commences from the day upon which the defendant was taken into custody, the commencing date of the non-parole period should be the same day.”

    [1] Judgment delivered 2 April 1996, S5549, unreported

15. In my opinion, that was the proper course for the magistrate to have taken in this case, and on the hearing of the appeal, Ms McLean did not argue against that being correct.  She suggested, however, that in this case the approach taken by the magistrate had not resulted in any injustice to the appellant as the non-parole period had been reduced by four months to allow for time served which was effectively the same result as if the magistrate had directed a 13 month non-parole period to commence from 24 February 2004. 

16. The learned magistrate went on to say, however that:

    “Having regard to everything I have said, I have reduced what would otherwise have been an 18 months non-parole period down to nine months and so it will be seen that the defendant will spend a further period in custody which reflects the period that he has already spent in custody in two parts and also will give another period of which with further behaviour remissions he can expect to be on parole for a period of 18 months.”

17. As the head sentence was 27 months, a parole period of 18 months would only apply if the learned magistrate intended the non-parole period of nine months to have been back-dated to commence on the same date as the head sentence, rather than 24 June 2004.  Mr Love submitted that these remarks, being the last comments made by the learned sentencing magistrate, were of some significance and were further indicative of error by the learned magistrate in fixing the commencement date of the non-parole period.  It must be remembered, however, that these were remarks delivered by an undoubtedly busy magistrate dealing with a large numbers of files and I think it is likely that the reference to the expected period of release on parole was merely a slip of the tongue.  Nevertheless, the reason for fixing a different date for the commencement of the sentence as opposed to the non-parole period remains unclear.

18. There is a further problem relating to the sentence which was imposed.  As I have mentioned, the appellant pleaded guilty to all of the charges against him.  In R v Shannon[2], King CJ said:

    “A plea of guilty may be taken into account in mitigation of sentence where -

    (a)it results from genuine remorse, repentance or contrition; or

    (b)it results from a willingness to co-operate in the administration of justice by saving the expense and inconvenience of a trial or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest, notwithstanding that the motive, or one of the motives, for such co-operation may be a desire to earn leniency,

    and where to allow the plea a mitigatory effect would be conductive to the public purposes which the sentencing Judge is seeking to achieve.”

    [2] (1979) 21 SASR 442 at 452

19. In this case, some of the pleas were entered on 25 March 2004, and others on 18 June 2004.  None of the matters had, however, been set for trial.  Ms McLean conceded that this was a case in which it was appropriate for the appellant to receive the benefit of the maximum discount.  Although there is no fixed tariff with respect to the discount which always remains the discretion of the judicial officer, a 25% discount has been approved as appropriate for an early plea of guilty[3], and discounts in the range of 15% to 20% are common. 

    [3] Nixon v R  (1993) 66 ACrR 83

20. In this case, the learned sentencing magistrate was clearly aware of the need to give a discount as he specifically referred to that matter when sentencing the appellant with respect to the first two files.  He did not, however, indicate the extent of the credit which he gave to reflect those pleas, despite the direction from the Court of Criminal Appeal that wherever possible, the judge should indicate the extent of the discount given to operate as a real incentive for guilty persons to plead guilty to charges against them and to have a clear idea of the amount of discount which will be made on that account[4]. 

    [4] R v Harris and Simmons (1992) 59 SASR 300 at 302

21. In this case, the sentencing remarks with respect to the first file suggest that the learned magistrate allowed a discount by refraining from imposing any additional extra penalty with respect to the driving matter for which he recorded a conviction without penalty. If that is what he intended, the extent of the amount of discount remains unclear. The magistrate indicated with respect to the second file that he proposed to exercise his powers pursuant to s 18A of the Sentencing Act  to impose one sentence with respect to both offences and thus give credit for his guilty pleas in relation to both counts.  When sentencing with respect to the other files, however, the learned magistrate did not mention the discount at all and it is difficult to glean from the penalties imposed whether he overlooked giving the appropriate credit or simply failed to mention that he had.

22. As Lander J remarked in Frank v Police[5]:

    “[t]he sentencing process must be transparent.  It must be so because the prisoner is entitled to know, when the prisoner has been sentenced to a term of imprisonment, exactly how the sentence has been constructed.  For example, the prisoner is entitled to know, if he or she has pleaded guilty, the credit which has been given in the sentencing process: R v Harris and Simmonds (1992) 59 SASR 300.

    So also, if a prisoner has spent time on remand for the offences for which the prisoner is to be sentenced, the prisoner is entitled to know, if the sentence is not backdated, whether the court has taken into account the whole or any part of the time spent in custody pending sentence.”

    [5] [2000] SASC 245 (unreported) at [55]-[56]

23. On the hearing of the appeal, complaints were also made about the failure of the learned magistrate to consider the principle of totality, as a result of which it was suggested that the sentence imposed by him was manifestly excessive, particularly when considering the sentences of four months imposed with respect to each of the unlawful possession charges in Files 04-56 and 04-1295.

24. It is unnecessary, however, to consider that aspect of the matter as the confusion which has arisen with respect to the failure to back-date the non-parole period and the issue with respect to the discount for the pleas of guilty are, in my opinion indicative of error which requires the sentence imposed to be set aside and for the sentencing discretion to be exercised afresh.

25. As I have mentioned, the offences charged against the appellant are contained on seven different files.  There is one count of carrying an offensive weapon and one count of unlawful possession both committed on 20 February 2003.  The next group of offences consists of the theft and driving offence on 12 October 2003 and then there are two charges of unlawful possession on 29 December 2003 and 25 January 2004 respectively.  The offence of dishonestly taking property was also committed on 25 January 2004 and the appellant then breached his bail on 13 March 2004 and 18 March 2004 respectively. 

1. In my opinion, it is appropriate to apply the provisions of s 18A of the Sentencing Act to impose one sentence for all of this offending, although in so doing I indicate that this is a case in which it would be appropriate to make some of the offences cumulative upon the others, although those committed on the same date would ordinarily attract concurrent sentences.

2. I would impose a sentence of 24 months with respect to all of this offending.  I would reduce that sentence by six months to reflect the appellant’s pleas of guilty.  I would revoke the order for suspension of sentence with respect to the breach of bond for committing further offences and direct the sentence of three months imprisonment to commence at the expiration of the sentence of 18 months imprisonment, but I would excuse the breach of bond with respect to failing to comply with the supervision order.  That would leave a head sentence of 21 months.

3. The appellant was last taken into custody on 25 March 2004.  In my view it is appropriate to direct that the sentence and the non-parole period commence from that date.  The appellant is, however, entitled to further credit for the one month in custody between 25 January and 24 February 2004, plus he should receive some (but not all) credit for the period during which he was subject to home detention bail.  I would allow two weeks with respect to that aspect of the matter.  I would therefore take a further six weeks off the head sentence.  That results in a head sentence of 18 months and two weeks.

4. In considering an appropriate non-parole period, the magistrate had regard to a report of Mr Balfour, who discussed the issue of the rehabilitation of the appellant.  Dr Balfour considered that without the assistance of a supervised structured rehabilitation program, the appellant’s prognosis to cease offending was poor as he had complex mental health problems, such as personality disorder, poor socialisation skills, excessive gambling and depression.  Mr Balfour thought that he would be prone to relapses of his drug addiction which would place him at risk of further offending.  He thought that he was motivated to rehabilitate himself but would have to work very hard to achieve that goal.  He thereafter went on to make a number of recommendations as to a supervised, structured rehabilitation program.

5. Although the appellant has a long history of offending, this appears to be the first occasion upon which he had been required to serve a custodial sentence in an adult correctional facility.  There is the possibility that with an appropriately structured program the appellant may be able to be rehabilitated.

6. I would fix a non-parole period of nine months after credit for the six weeks already served.  I indicate that I have considered the principle of totality with respect to the head sentence and non-parole period and do not consider that there should be any further reduction on that account.  The non-parole period will commence from the same date as the head sentence, namely 25 March 2004.

7. I would therefore allow the appeal and set aside the sentence imposed by the learned sentencing magistrate.  In lieu thereof I sentence the appellant to be imprisoned for a total period of 18 months and two weeks.  I fix a non-parole period of nine months.  Both the head sentence and the non-parole period will commence on 25 March 2004.