Kells v Police

[2007] SASC 224

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

KELLS v POLICE

[2007] SASC 224

Judgment of The Honourable Justice David (ex tempore)

18 June 2007

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY AND LIKE OFFENCES - SENTENCING

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - TIME SPENT IN CUSTODY

Appeal against sentence – non-aggravated serious criminal trespass – theft – whether notional head sentence of 40 months imprisonment manifestly excessive – whether credit should be given for time on home detention bail – decision whether to give credit for time on home detention bail is discretionary – appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 134(1), s 170(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Delphin (2001) 79 SASR 429; R v Richards [2006] SASC 142, discussed.

KELLS v POLICE
[2007] SASC 224

Magistrates Appeal

DAVID J.  (ex tempore)

Introduction

1. This is an appeal against sentence. The appellant pleaded guilty to three counts of non‑aggravated serious criminal trespass, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) and three counts of theft, contrary to s 134(1) of the Criminal Law Consolidation Act. These offences were committed on three separate occasions, namely 29 April 2005, 5 May 2005 and 25 May 2005.

   Facts

2. On 29 April 2005 the appellant broke into residential premises at Hindmarsh whilst a female accomplice was waiting outside, and stole goods to the value of $7,000. On 5 May 2005 he again broke into residential premises, this time at Linden Park, and stole various items to the value of $6,800. On 25 May 2005 he broke into a residence at North Adelaide and stole various items to the value of $1,875. These three occasions were the basis of the three charges of non‑aggravated serious criminal trespass in a place of residence and theft.

3. The sentencing magistrate had before him a psychologist’s report, a psychiatric report and also an antecedent report. At the time of offending the appellant was aged 30 and his history indicates that for some years he has had problems with drugs whereby he was placed in the Drug Court Program. Unfortunately his participation in the program was terminated due to further offending. The appellant also has an extensive criminal record, including convictions interstate for breaking and entering, having been sentenced to terms of imprisonment on at least nine separate occasions.

4. It was agreed that the offending was carried out for the purpose of obtaining money to purchase illicit drugs. It was also undisputed that the appellant had spent 7 months and 22 days in custody, and 8 months and 10 days on home detention bail.

5. In fixing a penalty the magistrate set one head sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). He started with a notional sentence of 40 months imprisonment, reduced that to 34 months imprisonment to allow for the appellant’s pleas of guilty, and reduced that by a further 8 months for time spent in custody. He therefore set a head sentence of 26 months and fixed what could only be described as a lenient non‑parole period of 11 months imprisonment.

   Grounds of Appeal

6. On appeal the appellant argues that the notional head sentence of 40 months imprisonment was manifestly excessive and that the magistrate should have given some allowance for time spent on home detention bail. There was no argument presented that the magistrate erred in any other aspect of fact or principle.

   Conclusion

7. In my view, the starting point of 40 months imprisonment was clearly within the magistrate’s discretionary range and was correct in principle. Counsel referred to R v Delphin[1] and R v Richards[2] in which Doyle CJ said that a sentence of two years imprisonment after allowing for pleas of guilty was the least that could properly be imposed for this type of offence. In the present case we have three distinct occasions of offending, some element of planning, and each concerned with the theft of a not insubstantial amount of property. In my view, the head sentence was well within the appropriate range.

   [1]    R v Delphin (2001) 79 SASR 429

   [2]    R v Richards [2006] SASC 142

8. The magistrate gave the appellant credit for time spent in custody, rounding up the 7 months and 22 days to 8 months. No mention was made of time spent on home detention bail. However, the authorities have made it clear that the decision whether to give credit for time spent on home detention custody is a discretionary matter. In my view, there was no error in not taking into account time spent on home detention bail. It is to be noted that the non‑parole period in this case is well under half the head sentence.

9. I would dismiss the appeal.