Kurvers v POLICE
[2004] SASC 312
•30 September 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KURVERS v POLICE
Judgment of The Honourable Justice Anderson
30 September 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT
Appellant pleaded guilty to seven offences - appellant involved in rehabilitation program for his drug habit - the Magistrate gave the appellant credit for his guilty plea - he imposed a sentence of imprisonment of eighteen months with a non-parole period of six months - non-parole period low so as not to interfere with rehabilitation program - appellant's licence disqualified for twelve months - Magistrate took into account psychiatric report provided by appellant's treating doctor - appeal on grounds that: Magistrate should have suspended any sentence or imposed a bond with conditions, sentence imposed is manifestly excessive. Held: Magistrate entitled to order term of imprisonment as offences were serious and appellant had lengthy previous offending record - appellant has prospects for rehabilitation - sentence was manifestly excessive. Appeal allowed - head sentence of fourteen months and non-parole period of four months substituted and suspended upon appellant entering into terms of bond.
KURVERS v POLICE
[2004] SASC 312
JUSTICE ANDERSON The appellant, Lars Sigvald Kurvers, appeals from the sentence imposed by a Magistrate on 5 August 2004. Mr Kurvers had pleaded guilty to seven counts including being on premises for an unlawful purpose, a number of larceny offences, two offences of interfering with a motor vehicle without the consent of the owner, and one of unlawful possession.
The learned Magistrate gave Mr Kurvers credit for his pleas of guilty. Unfortunately Mr Kurvers has a very bad record, and the Magistrate correctly dealt with this by indicating that he was not sentencing Mr Kurvers for that past offending but it had to be taken into account in considering leniency, at [2].
The learned Magistrate imposed a sentence of imprisonment of eighteen months. He fixed a non-parole period of six months because he did not wish to postpone a rehabilitative program which Mr Kurvers was involved in. Unfortunately Mr Kurvers had a drug habit which was responsible to some considerable extent for the offences which he had committed in the past. In 1996 alone he was sentenced to imprisonment for twenty-one offences including offences involving larceny, illegal interference of a motor vehicle, and breaking offences.
The learned Magistrate took account of a medical report provided by Dr Zammit who expressed the following view, at [4]:
“I do believe that imprisonment may be disheartening, viewed as failure and a backward step in his self-imposed rehabilitation. A bond which included as a condition regular medical reviews for methadone maintenance with a view to withdrawal over the intermediate term of say a year or two would I believe give Mr Kurvers the best chance of rehabilitation.”
As I have indicated, the learned Magistrate took this into account in fixing a lower than normal non-parole period. In addition to the sentence of imprisonment, the Magistrate imposed a period of licence disqualification of twelve months.
Dr Zammit gave evidence before me to say that he is still concerned that the term of imprisonment is a backward step in Mr Kurvers’ rehabilitation.
It is Dr Zammit’s view that although Mr Kurvers is receiving his methadone whilst in prison, the circumstances of imprisonment from a psychological point of view are not in his best interests for rehabilitation.
The appellant pleaded guilty at the first opportunity. It is said that the learned Magistrate did not indicate what the appellant would have received had he not pleaded guilty, and in addition gave insufficient credit for the plea of guilty at the earliest opportunity.
It was argued that any sentence of imprisonment should have been suspended, or alternatively there should have been no sentence of imprisonment with a bond and appropriate conditions.
I do not agree that this is a case in which the learned Magistrate should have refrained from ordering a term of imprisonment. The offences were serious and against a background of the appellant’s serious offending in the past. However, as his counsel pointed out, there has been nothing much of consequence that has happened for a number of years, in fact since about 1996, for any serious offences.
It was submitted to me that Mr Kurvers does have realistic chances of employment but that he is in a position of being in arrears of rent and likely to lose his tenancy unless he is released from prison in the very near future.
In my view, the learned Magistrate was certainly aware of the importance of Mr Kurvers’ rehabilitation program but thought that that rehabilitation would be best achieved by fixing a short non-parole period which turned out to be six months.
The learned Magistrate described Mr Kurvers’ efforts to control his drug addiction as “most earnest and most successful since 24 February of this year”, at [4]. That was when he went to see Dr Zammit and asked for help. People like the appellant who have taken the important step of ‘self-help’ should be encouraged, in my view, to continue their attempt at rehabilitation in the most productive environment. I consider this would be in Dr Zammit’s care and not in prison.
It is my view that in the circumstances the sentence imposed was manifestly excessive. I would therefore impose a head sentence of fourteen months because of the time spent in custody, and I would also reduce the non-parole period to four months for the same reason.
I consider that the sentence should be suspended so that Mr Kurvers’ rehabilitation program can be advanced under the guidance of Dr Zammit. Mr Kurvers of course has already spent about two months in custody as I have indicated.
This suspension is on the terms of the appellant entering into a bond, and I will discuss those terms with counsel. The appellant is required to be of good behaviour for a period of two years and to follow all directions relating to his drug rehabilitation from Dr Peter Zammit. He will be under the supervision of a community corrections officer for two years.
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