KI-COLGATE v Police - [2007] SASC 448

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KI-COLGATE v POLICE
[2007] SASC 448
Judgment of The Honourable Justice David
18 December 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Magistrates appeal - appeal against sentence - offences of being on premises without lawful excuse, serious criminal trespass, dishonestly taking property, breach of bail and aggravated assault against a police officer - guilty plea - time spent in custody and on home detention bail - sentence of 38 months imprisonment with a non-parole period of 20 months.
Held: Appeal allowed - magistrate erred in imposing penalty above maximum penalty which could be imposed for offence of being on premises without lawful excuse - sentence of two years and eight months imprisonment with a non-parole period of 14 months imposed - no good reason to suspend sentence.
Summary Offences Act 1953 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) s 20, s 134(1), s 169(1); Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

KI-COLGATE v POLICE
[2007] SASC 448
Magistrates Appeal: Criminal
DAVID J.

This is an appeal against a sentence imposed by a magistrate on 26 September 2007. The appellant appeals on the ground that the sentence imposed is manifestly excessive.
Background
The appellant was charged with seven offences, namely:
·being on premises without lawful excuse (pursuant to s 17(1) of the Summary Offences Act 1953 (SA));
·two counts of serious criminal trespass on a non-residential premises (pursuant to s 169(1) of the Criminal Law Consolidation Act 1935 (SA));
·two counts of dishonestly taking property without the owner’s consent (pursuant to s 134(1) of the Criminal Law Consolidation Act);
·breach of bail (pursuant to s 17 of the Bail Act 1985 (SA)); and
·aggravated assault against a police officer (pursuant to s 20(3) of the Criminal Law Consolidation Act).
It was alleged that on 15 November 2005 the appellant was located in the staff room of the Anglicare Child Care Centre at 26 Daphne Road, Prospect, when he did not have permission to be in the child care centre. It was also alleged that at around 6.20 pm on 19 June 2007 the appellant entered a private area in the Tiny Tots Academy at 96 Main South Road, Morphett Vale, and stole approximately $1,000 cash. The appellant was on bail at the time of this alleged offending. He was therefore charged with breaching his home detention bail agreement, as he was absent from his home address, without authority, at around the time of this offending. In addition, it was alleged that on 21 June 2007 he entered the premises of the Onkaparinga Lodge at 28 Liddell Drive, Huntfield Heights and stole an employee’s purse, the purse containing approximately $150.
On 22 June 2007 police attended at the appellant’s house. When they attempted to arrest the appellant, he endeavoured to run out of the house, and in doing so he grabbed a police officer and attempted to push her through a window. This incident resulted in the accused being charged with aggravated assault.
The appellant pleaded guilty to all seven charges.
With respect to the initial offence of unlawfully being on premises, committed on 15 November 2005, the magistrate imposed a sentence of nine months imprisonment. It appears that the magistrate then imposed one sentence for the remaining charges, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA). This is appropriate given that the offences appear to be part of a course of conduct. For these six offences, the magistrate imposed a penalty of three years imprisonment, to be served cumulatively with the first sentence. The total sentence was therefore 38 months imprisonment. The magistrate set a non‑parole period of 20 months imprisonment.
Section 17(1) of the Summary Offences Act provides the maximum penalty for unlawfully being on premises in the following terms:
Where the unlawful purpose is the commission of an offence punishable by a maximum term of imprisonment of 2 years or more – imprisonment for 2 years.
In any other case - $2,500 or imprisonment for 6 months.
The offence of unlawfully being on premises, committed on 15 November, 2005, was not committed in conjunction with any other offence. The maximum penalty was therefore $2,500 or six months imprisonment. The magistrate imposed a penalty for this offence which is outside the maximum penalty that should have been imposed. On the hearing of this appeal the respondent therefore conceded that the sentence for this offence should be set aside. As one non‑parole period was set in relation to all offences, the respondent also conceded that the appeal should be allowed.
Sentencing Remarks
Where an appeal against sentence is allowed, an appellate court can re‑sentence the appellant or remit the matter back to the Magistrates Court. The parties agreed that, in this case, it would be appropriate for this Court to re‑sentence the appellant.
The appellant is 28 years old. He has a long history of committing similar offences. In 1995 he was convicted for robbery and eight counts of assault. In 1997 he was again convicted of assault, and was also convicted of break and enter, and unlawfully being on premises. In 1999 he was convicted of attempted larceny, unlawful possession, and five counts of larceny. In 2000 he breached bail and in 2001 was convicted of 67 counts of stealing. In 2002 he was convicted of larceny and two counts of unlawfully being on premises. In 2003 he was convicted of resisting arrest, breaching bail, unlawful possession, three counts of non-aggravated serious criminal trespass, five counts of larceny and four counts of unlawfully being on premises. For these offences he was sentenced to three years imprisonment. In 2003 he again breached his bond. Over the years he has also been convicted of a number of driving offences. Since 1998 he has served four separate sentences of imprisonment.
I have received two pre-sentence reports, dated 18 July 2007 and 24 September 2007. These set out the appellant’s background. His father left when he was a young child and he was primarily raised by his mother, but he has maintained regular contact with his father. He is the elder of two children from that marriage, but his mother also had two children from a prior marriage. The family struggled financially while he was growing up. While at school, the appellant fell into a negative peer group and began to abuse drugs and alcohol. He left school when he was 16 years old, and he left home shortly after that. For some period of time the appellant had limited contact with his mother, however they are now in regular contact.
The appellant has had limited employment. He indicates that his Centrelink benefits are regularly cancelled, which leads him to behave in a desperate manner, particularly at times of heavy substance abuse.
The appellant has a child, who is one year old. He was in a long-term relationship with the child’s mother, who also has two children from a previous relationship. All three children are currently in foster care, on a voluntary basis, arranged through Families SA. Families SA became involved because of the couple’s substance abuse problems. From the pre-sentence reports it is unclear whether the appellant is still in a relationship with his child’s mother, however I note that she was in court for the hearing of his appeal.
The appellant submits that his substance abuse is the cause of his offending, both now and in the past. He indicates a desire to put his life back on track. He wishes to reunite with his child. He says that he is committed to a drug free future.
Counsel for the appellant submitted that time spent in custody is particularly onerous for the appellant, as his mother is employed as a prison officer and other prisoners are aware of this. Counsel also asked me to take into account the fact that the appellant has not had access to rehabilitation programs. The appellant has been held in the Adelaide Remand Centre, since being taken into custody on 22 June 2007, because there is currently no place available for him in a mainstream gaol. As such, he has not had access to the rehabilitative programs run in our gaols.
In the present case, the maximum penalty for unlawfully being on premises, as already stated, is a $2,500 fine or six months imprisonment.[1] The maximum penalty for the offences of serious criminal trespass on a non-residential premises (in non-aggravated circumstances) and dishonestly taking property is ten years.[2] Breach of bail carries a maximum penalty of $10,000 or two years imprisonment,[3] and aggravated assault against a police officer carries a maximum penalty of three years imprisonment.[4]
[1]    Summary Offences Act 1953 (SA) s 17(1).
[2]    Criminal Law Consolidation Act 1935 (SA) s 134(1), s 169(1).
[3]    Bail Act 1985 (SA) s 17.
[4]    Criminal Law Consolidation Act 1935 (SA) s 20(3)(b).
For the six offences committed in 2007 I feel it is appropriate to sentence the appellant to one penalty, pursuant to s 18A of the Criminal Law (Sentencing) Act. The magistrate stated in her sentencing remarks:
It is worth noting … that the attacks that you have made on the property of people in all cases were either [against] the very young and vulnerable, in other words, child care centres, or the very old and vulnerable in the case of the Onkaparinga Lodge, the nursing home, and it is in my view part of the seriousness of the offending that those were the potential targets for your attacks and thefts.
I agree with this statement. The appellant breached his home detention bail conditions in order to commit the offences, and when approached by police officers assaulted one of them in an attempt to escape. In addition, he has previously been sentenced to a lengthy term of imprisonment for similar offending, and this has not deterred him from further offending.
In all the circumstances, my view is that a sentence of four years imprisonment is appropriate for the six offences committed in 2007. However, as the appellant pleaded guilty at an early stage, the sentence will be reduced to three years imprisonment. I set a non-parole period of 18 months, which is half of the head sentence.
The appellant has been in custody in relation to these charges since 22 June 2007. It is therefore appropriate that any sentence imposed should be backdated to commence on 22 June 2007. However, the appellant has also spent additional time in custody and on home detention bail. In the lower court, the appellant’s sentence was reduced by one month for time spent on home detention bail and three months for time in custody. The respondent has conceded that, in addition to the sentence being backdated, this is an appropriate reduction for time in custody and on bail. I therefore reduce both the head sentence and the non‑parole period by four months, resulting in a head sentence of two years and eight months, and a non-parole period of 14 months.
In the lower court, the respondent applied for a compensation order in relation to these offences. The magistrate declined to make any such order. Given that the appellant will be in gaol for a long period of time, he is unlikely to be able to make any compensation payments. I therefore also decline to make any compensation order in respect of these offences.
In my opinion, the offence of unlawfully being on premises, committed in 2005, is a relatively minor offence. Given the long period of imprisonment that the appellant faces for the other offences, and his presumed inability to pay a fine, I would record a conviction for this offence, but would not impose any further penalty.
The appellant did not make any submission that the sentence should be suspended. The appellant has previously had the benefit of a suspended sentence, upon entering into a good behaviour bond. He committed further offences while on that good behaviour bond. I can see no good reason for suspending the term of imprisonment.
Conclusion
The appeal is allowed. The appellant is sentenced to two years and eight months imprisonment, with a non-parole period of 14 months, to commence on 22 June 2007.