JULIE Joan Manning v.POLICE No. SCGRG 92/2784 Judgment No. 3794 Number of Pages - 5 Magistrates Appeals (1993) 65 a Crim R 382 (1993) 59 Sasr 427

[1993] SASC 3794

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J.

CWDS
Magistrates Appeals - Appeal against penalty - appellant complained on appeal at failure by magistrate to refrain from revoking suspended sentence of 15 months imprisonment - 18 months good behaviour bond imposed on the appellant, an 18 year old Aboriginal woman, convicted on admitted charges of breaking and entering and larceny - two months later, the appellant committed 'graffiti' offences and impulsive theft of clothing from a shop window broken by another youth - magistrate hearing the charge of theft arising out of that incident revoked the suspended sentences and ordered further three months imprisonment, giving total head sentence of 18 months - held that magistrate erred in refusing to order a psychological report under 5.8 of the CriminalLaw (sentencing) Act on being informed that a number of people who had dealt with the appellant, including Aboriginal Legal Rights lawyers, considered that she suffered intellectual deficit - psychological report expressing opinion that appellant's intellectual functioning was that of a 9 year old western child admitted on appeal - sentencing discretion exercised afresh in the light of that report - order refraining from invoking the suspended sentences and conviction without further penalty on larceny charge, the appellant having been in custody for over 3 months. R v Buckman (1988) 47 SASR 303 and Wilson v Rowbottom (unreported) (1988) (Judgment No. 1227) referred to. Criminal Law Sentencing Act s8, s58(3) and
(4).

HRNG ADELAIDE, 12 January 1993 #DATE 12:1:1993
Counsel for appellant:         Ms P Trezise
Solicitors for appellant:     Aboriginal Legal Rights Movement
Counsel for respondent:        Mrs A V Mclean
Solicitors for respondent:     Mr B M Selway, Crown Solicitor

ORDER
Orders made.

JUDGE1 PERRY J. The appellant, who is a 19 year old Aboriginal woman, appeals against the sentence imposed upon her by a Special Magistrate constituting the Magistrates Court at Holden Hill on 25 November 1992. 2. On that day she appeared before the court in answer to an information that on 6 October 1992 at Prospect she stole clothing of the value of $209.85, the property of "Witchery", and separately, that she broke and entered a shop of the same name and stole the clothing the subject of the information to which I have just referred. 3. She was also charged on complaints alleging that on 6 October 1992, she was on premises at Sefton Park for an unlawful purpose, that she unlawfully wrote upon a building, namely the Sefton Plaza Shopping Centre, and two other buildings or structures, namely the Sizzlers Restaurant and play equipment at Hungry Jacks. 4. She also appeared in answer to a charge that on 19 July 1992 at Adelaide, without reasonable excuse, she failed to comply with a condition of a bail agreement obliging her to remain at the OARS Hostel, Prospect, between sunset and sunrise. 5. When the matter was called on, the breaking and entering charge and the charge of being unlawfully on premises were withdrawn by consent. The appellant pleaded guilty to the remaining offences. 6. After hearing the prosecutor and counsel for the appellant the learned magistrate ordered that on the larceny charge the appellant be sentenced to imprisonment for three months. He convicted the appellant, but without imposing any further penalty, on all of the remaining charges. 7. That, however, was not an end to the matter. The convictions operated as breaches of a bond which had been imposed on 13 August 1992 in the Adelaide Magistrates Court. On that date the appellant was sentenced to two concurrent terms of six months imprisonment and a further nine month term to be served cumulatively, giving a total head sentence of 15 months, on admitted offences of shop break and enter, building break and felony and attempted shop break. The sentences of imprisonment were suspended upon the appellant entering into a bond to be of good behaviour for a term of 18 months. 8. The application by the prosecutor before the learned sentencing magistrate at Holden Hill, that in view of the convictions recorded before him, the suspended sentences be activated, was responded to by counsel for the appellant, by a submission that he should either refrain from revoking the suspension of the earlier sentences pursuant to his discretion under s.58(3) of the Criminal Law (Sentencing) Act, or that he should, if the suspensions were revoked, reduce the term of the sentences under s.58(4). The learned magistrate declined to accede to either submission, and revoked the suspensions. 9. In doing so, he held that there were not proper grounds to excuse the failure of the appellant to comply with the conditions of the bonds within the meaning of s.58(3), and further that there were no special circumstances justifying reduction of the suspended sentences within the meaning of s.58(4). In the result, the suspended head sentence of 15 months imprisonment was carried into effect, and the sentence of three months imprisonment on the charge of larceny, which was to be served cumulatively, brought up a new head sentence of 18 months. With respect to that head sentence, the learned magistrate fixed a non-parole period of 12 months to commence from the date upon which the appellant had been taken into custody, that is to say, from 6 October 1992. 10. The notice of appeal complains that the learned magistrate erred in failing to exercise in favour of the appellant one or other of the powers conferred on him under s.58(3) or (4). There is also a complaint that the learned special magistrate erred in not ordering a psychological examination "once the possibility of the defendant suffering from an intellectual impairment was raised". 11. That ground of appeal has its origin in matters which were put to the learned magistrate by the appellant's counsel during the course of her submissions for leniency. The counsel concerned, who was also counsel before me, Ms Trezise, has by affidavit deposed to the fact that she submitted to the learned magistrate that she had had discussions with a number of people, whom she named, and which included other solicitors in the office of the Aboriginal Legal Rights Movement who had represented the appellant in previous court actions. 12. The result of those conversations, as she put it to the magistrate, was that her client was variously described as "slow", "having learning difficulties", "being unable to grasp conceptual matters", and "being unable to understand what was going on". According to her affidavit, she submitted to the learned magistrate that the appellant suffered from a degree of intellectual disability, and she urged him to take the view that if he otherwise was disposed to impose a term of imprisonment, he should adjourn the matter until proper testing could be undertaken to confirm the possibility of intellectual impairment or deficit. 13. This the learned magistrate declined to do, notwithstanding the fact that under s.8 of the Criminal Law Sentencing Act he had the ability to order the preparation of a pre-sentence report on the physical or mental condition of the appellant. 14. Before this court Ms Trezise has proffered a document headed "Psychometric Evaluation", which is a report from a psychologist who examined the appellant on 5 January 1993, that is while the appellant was in custody serving the term of imprisonment. It is clear from the report that the author, one Robyn Freeman, conducted a thorough psychological examination of the appellant and applied various tests. She concludes: "Overall, Ms Manning has above average cognitive ability, however, her current level of intellectual functioning is quite different from her actual intellectual potential and appears to fall within the developmental capacity of a nine year old western child." She went on to say: "Whilst she may have little or no difficulty working through problems presented to her in a rational fashion and appears quite intellectually alert, her results suggest that her ability to interpret more symbolic abstract problems is quite limited and immature." 15. When the psychological report was first proffered with a request that it be received in evidence on the hearing of the appeal, in deference to the objection Mrs McLean, counsel for the respondent, I deferred consideration of that question until Ms Trezise had developed the substantive arguments on the appeal. In my opinion, with the benefit of those arguments, it is proper to receive the report in evidence. Although Ms Trezise advanced arguments as to the propriety of the refusal by the learned magistrate to refrain from revoking the suspensions under s.58(3) of the Criminal Law Sentencing Act, with particular reference to the observations which fell from the Court of Criminal Appeal in R v Buckman (1988) 47 SASR 303, the appeal may be disposed of without the necessity of examining the correctness of the learned special magistrate's decision as to that aspect of the matter. In my opinion, the appeal should be allowed on a narrower basis, that is, by reference to the exercise of the discretion under s.8 to order the preparation of a pre-sentence report. 16. It is true that I observed in the case of Wilson v Rowbottom (unreported)
(1988) (Judgment No.1227) that in courts of summary jurisdiction, as distinct from the Supreme Court, the discretion as to the obtaining of a pre-sentence report may be exercised against a defendant more readily. However, it seems to me that in a case where there is an unchallenged assertion that solicitors who have represented the defendant on a number of occasions have reached the view that she is suffering from intellectual deficits, that is a matter of some substance and importance, which in this case should have led the learned special magistrate to order the preparation of an appropriate report. This is particularly so bearing in mind the age of the defendant, and also having regard to the fact that the learned magistrate had before him a pre- sentence report furnished by the Department of Correctional Services which had been prepared for the Adelaide Magistrates Court hearing in August 1992, which spoke of the defendant's disadvantaged upbringing and emphasised what appeared to the author of that report to be her immaturity. 17. In the circumstances, in my opinion the discretion to order the preparation of such a report miscarried, with the result that the appeal should be allowed on that ground, which in turn obliges this court to exercise the sentencing discretion afresh, after taking into account the content of Ms Freeman's report. 18. I should refer briefly to the circumstances of the offending which brought the appellant before the court below. 19. In the early hours of the morning of the day in question, that is 6 October 1992, the police located the appellant and a co-accused on the rooftop carpark of the Sefton Plaza Shopping Centre. 20. Following investigations, it appeared that shortly beforehand, the appellant, in the company of the co-offender, had joined in with the activities of two youths who were decorating various structures with graffiti. At one stage, she dared the co-offender to break the window of a shop and "bet" that she could not break the window with a stone "as she was too weak". The challenge was taken up, and the co-offender broke the window of the Witchery clothing store by throwing a stone. Subsequently, the appellant stole the items of clothing the subject of the larceny charge, through the broken window. After continuing with their application of graffiti to some other premises, the appellant and the co-offender were apprehended by the police in the circumstances to which I have referred. The stolen items were there and then recovered. 21. Having considered the facts of the matter and further submissions put to this court by Ms Trezise, and bearing in mind the psychological report, in my opinion she correctly characterises the offending in question as "juvenile" and "opportunistic". 22. When read together with the contents of the psychological report, the material before me indicates that in all the circumstances, the appellant's mental condition and the immediate circumstances of the offending amounted to proper grounds within the meaning of s.58(3) to refrain from revoking the suspension. 23. For these reasons, the orders of the learned special magistrate will be quashed and in lieu thereof, acting pursuant to s.58(3), the court refrains from revoking the suspension of the sentences imposed in August 1992. 24. The sentence of imprisonment on the charge of larceny will likewise be quashed and in lieu thereof there will be a conviction without penalty upon that charge. In so ordering, I have taken into account the fact that the appellant has already served in custody a term of some three months or so. The convictions without penalty on the other charges will remain. 25. I have considered the question whether or not it would be proper in the circumstances to extend the period of the bond. In my opinion, as there is still something in excess of a year to run, no order should be made extending the term of the bond. 26. There will be no order as to the costs of the appeal.