Langford v Lusted
[2005] TASSC 128
•19 December 2005
[2005] TASSC 128
CITATION: Langford v Lusted [2005] TASSC 128
PARTIES: LANGFORD, Shane Arron
v
LUSTED, Sargeant Gary Leslie
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 22/2005
DELIVERED ON: 19 December 2005
DELIVERED AT: Launceston
HEARING DATE: 8 December 2005
JUDGMENT OF: Crawford J
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Factors to be taken into account – Miscellaneous matters – Other matters – Delay – Whether delay in charging mitigating.
Prehn v R [2003] TASSC 55, followed.
Aust Dig Criminal Law [851]
REPRESENTATION:
Counsel:
Applicant: P O'Halloran
Respondent: P Sherriff
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 128
Number of paragraphs: 25
Serial No 128/2005
File No LCA 22/2005
SHANE ARRON LANGFORD v SARGEANT GARY LESLIE LUSTED
REASONS FOR JUDGMENT CRAWFORD J
2005
The applicant pleaded guilty in a Launceston court of petty sessions on 27 October 2005 to an aggravated burglary and stealing on 30 May 2003. He was convicted and sentenced to imprisonment for six months. He moved this Court to review the sentence on three grounds, namely that the sentence was manifestly excessive, that the learned magistrate erred in fact and/or in law in failing to investigate the circumstances occasioning the delay between the commission of the offence and the laying of the complaint and that the learned magistrate erred in law in rejecting the applicant's financial hardship at the time of offending as a relevant mitigating consideration.
The facts for sentence were that the applicant parked his vehicle at a Sandy Bay beach and set off on foot with the intention of finding a house into which he could break and from which he could steal money. At about 1pm he made his way to the rear of a house, smashed the glass in a door with a spade and gained access. He then searched for money, ransacking at least a bedroom and the kitchen. He stole $1,200 in cash and caused about $1,700 in damage. He forced open a filing cabinet, cutting himself as he did so. In the course of his search he removed meat from a freezer, spoiling it. He was disturbed by neighbours and presumably fled.
Over two years' later, on 3 August 2005, he was interviewed by police about the offences. A DNA analysis of blood left behind had identified him as the offender. He fully cooperated with the police, admitted the offences and was charged and bailed.
The applicant's counsel said to the learned magistrate that at the time of the offences the applicant lived with a woman in "a significant relationship of some 18 months' duration" and they had a one year old daughter. The applicant was unemployed, having lost his employment in April 2003. His counsel said that he committed the offences because he needed money for himself and his daughter. No other explanation was given concerning a specific need, although counsel said that he was instructed that the stolen money was spent on a telephone bill and on food and clothing for himself and his daughter. The learned magistrate pointed out he had established no vital need for the commission of the offences and certainly no need that was out of the ordinary. Counsel accepted that the claimed need for money did not amount to a reasonable explanation or any excuse whatsoever.
He was 31 years old at the time and entitled to no leniency on account of youthful circumstances. His prior record was significant. In 1998 he was sentenced in the Hobart Supreme Court to imprisonment for a total of four months for a burglary, an aggravated burglary and a stealing and to a total of six months' imprisonment, wholly suspended for two years, for two aggravated burglaries and two stealings. Later that year he was sentenced to three months' imprisonment for an aggravated burglary. Then in 2001, he was sentenced to three months' imprisonment for attempted aggravated burglary and on top of that, one month's imprisonment for secreting himself near a dwelling house. Although they were not offences of dishonesty, he also committed a number of offences against the Road Safety (Alcohol and Drugs) Act 1970 between 1998 and the present offences, and also after them, and was sentenced to imprisonment for nine of them.
These were not his only offences of dishonesty in 2003. A little over two months later, on 5 August 2003, he committed two aggravated burglaries of dwellings and stole property worth $1,210 and in August 2004 he was sentenced for them and a Road Safety (Alcohol and Drugs) Act offence to eight months' imprisonment, cumulative upon a sentence of six months' imprisonment, imposed in June 2004 for five offences under that Act and for failing to appear, and cumulative upon a sentence of three months' imprisonment imposed at the same time in June 2004 for (inter alia) three offences under that Act. According to the applicant's record, the two sentences that were imposed in June 2004 were concurrent with each other and both commenced on 29 June 2004. That conflicted with a statement by the applicant's counsel to the learned magistrate that the applicant had served nine months' imprisonment from 29 June 2004 and on top of that the eight months of imprisonment that was imposed in August. Allowing for a likely remission of three months of the imprisonment for good behaviour while in prison, it would appear likely, if it was a usual case, that the applicant served a total of 11 months' imprisonment from June 2004 until May 2005 and not 14 months' imprisonment as suggested to the learned magistrate by counsel for the applicant. However, counsel for the applicant informed me that he was instructed that the applicant was in fact imprisoned for 14 months from 29 June 2004 to 28 August 2005.
Accepting that it would be an "unusual course in relation to this matter", counsel for the applicant urged the learned magistrate to suspend all of the sentence of imprisonment that counsel anticipated would be made. He based his submission on the fact that the applicant had recently served the 14 months' imprisonment to which I have just referred. He did not amplify that submission.
Counsel submitted that there had been a significant delay (of 2 years 3 months) between the date of the offences and August 2005 when the police interviewed the applicant and charged him with them. It was not suggested by counsel that the delay was unreasonable or the fault of the police or prosecuting authorities. Counsel merely said that no explanation for it had been provided to the applicant's solicitor. The learned magistrate commented that it was probably accounted for by the fact that detection only resulted from a DNA match. Counsel appeared to submit to the learned magistrate that in the circumstances of the case, the delay was a mitigating factor, an issue with which I will deal in due course.
Counsel also submitted to the learned magistrate that the applicant's time in prison had allowed him to take significant steps towards rehabilitating himself. He had completed a six month TAFE course for a boilermaker/welder and only needed on-site practical training to be qualified. Counsel added that since his release he had obtained casual employment, although "it's very much up in the air". Counsel continued to be vague by saying that "he's already taken those significant steps and is making all the necessary arrangements to turn that into full on-site training so that he can now continue in the career".
In his comments on passing sentence the learned magistrate said:
"I take into account what is said on your behalf. I note that in July 1998 you were dealt with for various crimes of dishonesty including burglary, aggravated burglary and stealing and in relation to that it appears that you were sentenced to an effective term of four months with – yes four months to be served with apparently six months suspended. So you've had the benefit of suspended sentences in the past. Your [sic] then dealt with again in October 1998 for offences of aggravated burglary – two, two of them, and secreting near a dwelling house. You then didn't appear again in relation to offending in a dishonest way until the offences last dealt with in August 2004 when you were sentenced to a term of imprisonment to which your Counsel has referred. These offences were committed prior to that last appearance prior to those last offences having occurred. Now your Counsel said that you had committed these crimes as you needed money for your daughter well I thought I was going to be told something about some medical procedure or some vital need for money for her. It emerged that there was no vital need for money for your daughter whatever you simply needed money because you didn't have enough to so its[sic] put 'to get by' that is you and your daughter without stealing it from somebody. That is simply no justification. It is not a mitigatory factor at all. You violated this person's house. Anyone whose had their house burgled generally would feel a sense of violation and vulnerability and you left your calling card in the form of blood when – which was later analysed for DNA and you came to be identified and that's why you now appear in Court. You've had the benefit of a suspended sentence. This is a serious case. You went looking for a place to burgle and to find money in and you will go to gaol as you should. You are convicted and sentenced to a term of six months imprisonment."
Magistrate's duty to investigate a delay in prosecuting
The second ground for review is that "the learned Magistrate erred in fact and/or in law in failing to investigate the circumstances occasioning the delay between the commission of the offence and the laying of the complaint". No authority was cited by counsel in support of there being an error in point of law and I am unaware of any such authority. Clearly, there was no error in point of fact. Accordingly, the ground fails.
The burden of proving that delay should be taken into account in mitigation was on the applicant. R v Law, ex parte Attorney-General [1996] 2 Qd R 63 at 67. If he wished the magistrate to have regard to any mitigatory factor, the burden was upon him to establish it. R v Olbrich (1999) 199 CLR 270 at 281.
Even if it may validly be claimed that the learned magistrate should have enquired as to the reasons for the delay between the offences and the charging of the accused, nothing was put before this Court to suggest that if the enquiry had been made some mitigating factor would have been discovered. The ground of review smacks of theory but no substance. What mitigatory value the delay may have had remains a mystery. The learned magistrate expressed the thought that it was probably accounted for by the fact that detection only resulted from a DNA match, inferring that the match was likely to have been established only recently. The applicant has not shown that to be erroneous.
Financial need as a mitigating factor
The third ground for review is that the learned magistrate "erred in law in rejecting the applicant's financial hardship at time of offending as a relevant mitigating consideration". This ground was maintained notwithstanding that before the learned magistrate, counsel for the applicant, who was not the same counsel who appeared before this Court, conceded that the applicant's need for money was not a reasonable explanation or any excuse whatsoever. Before this Court, counsel submitted that the concession should not have been made.
No judicial authority was cited in support of the asserted error of law. However, counsel referred to Professor Warner's Sentencing in Tasmania 2 ed at 341, where in the context of stealing cases, the author states that "severe stress, illness or financial hardship is mitigating" and at 426, where in the context of cases of social security fraud, the author states that "whether the offence was motivated by need or greed is a relevant factor".
The majority of thieves who come before courts are unemployed and recipients of social welfare. In almost every such case they may be said to have been in financial need. However, the mere fact that an offender had a financial need is not alone a mitigating factor nor, as was asserted in this case, the fact that the offences "were motivated by a need to obtain money for himself and for his child in particular". If financial need is to be advanced as a mitigatory factor, counsel must be far more specific than was the case here. The learned magistrate thought the same, for he asked counsel: "Well you've mentioned a number of times that he needed money for his daughter, why?" The only response of counsel was to repeat that the applicant was unemployed and to add that "he was solely responsible for ... providing for his partner at that time". Counsel then conceded that the applicant's need of money was not a reasonable explanation and no excuse whatsoever. It is not surprising that in his comments on passing sentence, the learned magistrate said that he had expected to be told something about a medical procedure or some other vital need for money, but it had emerged that there was no vital need and that in the circumstances, the desire for money for the applicant's daughter was not a mitigatory factor. Having regard to the circumstances of the case and counsel's submissions, no error was made by the learned magistrate.
Whether the sentence was manifestly excessive
It was not submitted that six months' imprisonment was excessive. In fact it was conceded by the applicant's counsel that it was appropriate given the offences and the offender's record. The basis of counsel's argument was that all of the imprisonment should have been suspended because:
· there was evidence that the applicant had rehabilitated himself;
·the delay of two years five months between the commission of the offences and the sentencing orders was a mitigating factor; and
·to impose six months of actual imprisonment only about two months after the applicant had completed serving 14 months of imprisonment was crushing and excessive.
There was little evidence advanced by the applicant's counsel to demonstrate rehabilitation by the applicant since the offences. He had committed nine crimes or offences of dishonesty before in 1997, 1998 and 2001. He was in employment after them but committed the present offences on 30 May 2003. He committed three further offences of dishonesty in August 2003 and many offences against the Road Safety (Alcohol and Drugs) Act for which he was imprisoned until he was released about two months before the imposition of the sentence he is seeking to have reviewed. The only evidence relied on as demonstrating rehabilitation was that he had completed a six-month boilermaker/welder course while in prison and in the two months since release from prison "only relatively recently he's obtained casual employment and he continues to work casually – he worked some three days last week – it's very much up in the air". It was unconvincing evidence of rehabilitation in a real sense, partly because he had only been out of prison for two months and also because after previously being in employment he had seriously offended.
Undue delay between the commission of an offence and final disposition of a case is not in itself a mitigating factor. Prehn v R [2003] TASSC 55 at par21. It may, if lengthy, amount to a powerful mitigatory factor in an appropriate case. R v Schwabegger [1998] 4 VR 649 at 660; R v Todd [1982] 2 NSWLR 517 at 519 – 520; R v Law, ex parte Attorney-General (supra) at 66. Each case will depend on its own circumstances and considerations of fairness and justice. In this case, the delay was not shown by the applicant to be undue, and it was not shown to require leniency.
On its face, there might be thought to be some harshness in the circumstances that the applicant spent 14 months in prison, was released for two months and was then subjected to a further six months in prison for offences committed by him before the offences for which he served the earlier imprisonment. But a moment's reflection provides an explanation. He need not have applied for bail pending disposition of the charges for the offences presently before the Court. He must have known that imprisonment for them was likely and he certainly ought to have done so, yet he chose to have a short period of freedom until he was sentenced. He could instead have remained in prison on remand and the period in custody on remand would have been taken into account by the learned magistrate.
The only remaining question is whether six months' imprisonment for these offences, two months after his release from serving 14 months' imprisonment, was manifestly excessive because, so it was argued, it was crushing. The so-called totality principle has as its basis a requirement that if a series of sentences is imposed, the aggregate period of imprisonment should be just and appropriate as well as each individual sentence. Regard must be had to the total effect of the aggregate on the offender. Griffiths v R (1989) 167 CLR 372 at 393. It is often said that the total effect of all the sentences must not be crushing.
In this case, the principle may appropriately be addressed by asking whether, for an offender with the applicant's record, a total of 20 months' imprisonment was manifestly excessive because it was crushing, having regard to the fact that the total was imposed for the following crimes and offences committed on the stated dates:
30 May 2003 Aggravated burglary
Stealing ($1,200)
5 August 2003 Aggravated burglary
Stealing ($1,210)
30 September 2003 Unlicensed driver with alcohol in body (.057)
Drive while disqualified
25 October 2003 Drive while disqualified
Exceeding speed limit (83 kph instead of 60 kph)
15 November 2003 Drive while disqualified
29 December 2003 Drive while disqualified
Use unregistered motor vehicle on a public street
Use a motor vehicle with no insurance premium cover
14 January 2004 Fail to appear
29 January 2004 Drive while disqualified
14 April 2004 Drive while disqualified
Unlicensed driver with alcohol in body (.023)
Fail to comply with a motor vehicle defect notice
All of the offences of driving while disqualified were committed in breach of the Road Safety (Alcohol and Drugs) Act. Prior to the offences I have just listed, he had convictions for burglary (1), aggravated burglary (4), attempted aggravated burglary (1), secrete near dwelling house (1), stealing (3), failing to appear (1), unlicensed driver with alcohol in body (.081) and unlicensed driver (1). Sentences of imprisonment had previously been imposed.
The learned magistrate was entrusted by the law with a wide discretion. Whittle v McIntyre [1967] Tas SR (NC 6). It cannot be said that the sentence of six months' imprisonment was manifestly excessive nor that the total of 20 months' imprisonment for all of the above offences was manifestly excessive. The total was not crushing. The length of all of the imprisonment was appropriate having particular regard to the offences of dishonesty and the deliberate flaunting of court orders on six occasions by driving while disqualified.
Conclusion
For the above reasons the motion to review will be dismissed.
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