Lawrie v Director of Public Prosecutions
[2008] SASC 21
•8 February 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LAWRIE v DIRECTOR OF PUBLIC PROSECUTIONS
[2008] SASC 21
Judgment of The Honourable Justice Kelly
8 February 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appeal against sentence - appellant convicted and sentenced to 10 years imprisonment with a non-parole period of 4 years suspended upon the appellant entering into a good behaviour bond for 3 years - whether the magistrate failed to take into account the time spent in custody and on home detention bail, participation in the Drug Court Program, the early pleas of guilty and the fact that the appellant is of Aboriginal descent - whether the sentence imposed by the magistrate was manifestly excessive. Held: appeal allowed - the sentencing remarks of the magistrate were brief, did not identify a clear starting point of the penalty, nor the extent of any discount given for the early guilty pleas and time spent in custody - the sentence imposed by the magistrate was manifestly excessive - appellant sentenced afresh to 6 years 6 months with a non-parole period of 3 years suspended upon the appellant entering into a bond in identical terms and conditions to those imposed by the magistrate.
Bail Act 1985 s 17; Magistrates Court Act 1991 s 42, referred to.
Fox v Police [2005] SASC 208; R v Place (2002) 81 SASR 395, applied.
LAWRIE v DIRECTOR OF PUBLIC PROSECUTIONS
[2008] SASC 21Magistrates Appeal
KELLY J: This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991, against sentence.
The appellant was charged on information with numerous counts of theft, deception, attempted deception, illegal use, driving while unlicensed and breaching bail conditions. He was also charged with one count each of: assault, non-aggravated serious criminal trespass, giving a false name, property damage and illegal interference. All of the offences were committed between 12 October 2004 and 21 July 2007. None of the offences were aggravated. A table containing details of all the offences appears at the end of this judgment.
The majority of the theft, deception and attempted deception offences occurred on twenty separate days over a period of approximately six months between September 2005 and February 2006. Generally, the theft, deception and attempted deception offences were similar in nature, with the appellant stealing victims’ credit cards and using these to obtain goods, including alcohol, cigarettes, clothing, taxi fares and other small items. These purchases ranged from a $9.95 taxi fare to clothing valued at $526.30, with the majority of items being around $100 or less. On 11 October 2005, the appellant attempted to use a stolen credit card to purchase $1019.35 worth of clothing. However, this transaction was denied.
The appellant was also charged with failing to comply with bail conditions contrary to s 17 of the Bail Act 1985 for conduct on 7, 8, and 9 December 2005, between 2 May to 10 May 2007, and on 21 June 2007.
The appellant pleaded guilty to all of those offences. It was accepted that all of the pleas of guilty were entered at an early stage and entitled the appellant to a full discount for the pleas.
On 13 December 2006 the appellant was admitted as a participant in the Drug Court Program and granted home detention bail. The appellant participated in the program for approximately eight months and was moved into phase two of the program. However, the appellant was terminated from the Drug Court Program on 8 August 2007 as he breached the conditions of his home detention bail.
The magistrate sentenced the appellant on 18 October 2007. He commenced his sentencing remarks with the following comments:
Given the profligacy of Mr Lawrie’s offending, the best approach to sentencing him is elusive. My preferred approach is to concentrate on what is inherently the most serious offending, that is residential trespass on 9 March 2005, together with the offences on the 43 count information committed between 14 September 2005 and 8 February 2006. I agree there are a number of other legitimate approaches, and if on appeal a better approach is discovered, I just respectfully defer.
There followed a brief discussion by the magistrate of the merits of immediately imprisoning the appellant for a further period as opposed to the merits of releasing him and allowing him to continue with his rehabilitation. It was observed that the appellant does have the potential for rehabilitation notwithstanding the frequency of his offending and had arrived at a point in his life where he could embark upon a process of genuine redemption.
His Honour concluded the sentencing remarks by saying:
Opinions will differ as to what, the court should do when sentencing Mr Lawrie, but I now announce the sentence that I intend to impose…
He then sentenced the appellant to a period of 10 years imprisonment with a non-parole period of 4 years suspended upon the appellant agreeing to enter into a bond to be of good behaviour for a period of 3 years.
The appellant is a 24 year old Aboriginal man who had a difficult upbringing and was raised by extended family members. He was sexually abused between the ages of 10 and 12, but has never received formal treatment to address the consequences of that abuse. He has been in a relationship with a woman for about eight years and has three children aged six, five and four.
The appellant abused alcohol and marijuana, then left school at age 15 years and continued to abuse drugs, turning to heroin and amphetamines. He recently completed eight months on the Drug Court Program from late 2006 to August 2007.
Grounds of Appeal
The appellant appeals against the sentence on the basis that:
- the sentence is manifestly excessive;
-the learned sentencing magistrate failed to properly take into account the appellant’s participation in the Drug Court Program;
-the learned sentencing magistrate failed to take into account the time that the appellant has spent both in custody and on home detention bail;
-a discount should be applied to both the head sentence and non-parole period, not only to the non-parole period;
-the learned sentencing magistrate failed to make allowance for the fact that the appellant is of Aboriginal descent.
At the hearing of the appeal counsel for the appellant pointed to the brevity of the magistrate’s remarks as a whole, pointing out in particular, the fact that he failed to mention, what, if any, discount had been applied for the early guilty pleas, whether and what period of time had been deducted on account of the time already spent in custody and on home detention bail and to the fact that his Honour’s references to the Drug Court Program and the appellant’s background were of a cursory nature only.
The appellant’s submissions in a nutshell were that this court could not be satisfied that the magistrate had taken into account the discount for the early guilty pleas and the time spent in custody by the appellant. Alternatively if he had, then the starting point for the head sentence must have been well in excess of 10 years and was manifestly excessive.
Counsel for the respondent submitted that the magistrate’s remarks as a whole demonstrate that he did take into account all of the material before him, including the quite extensive pre-sentence report dealing with the appellant’s participation in the Drug Court Program and all of the factors in the appellant’s background leading up to his current incarceration. It was contended that the failure to identify specifically what the discount was for the amount of time spent in custody and home detention bail was not in itself an error. The sentence as a whole was reasonable and well within the range available to the magistrate.
Analysis
The remarks of the learned magistrate were brief, however, generally speaking that is not necessarily a criticism of them. It is true however that he did not stipulate if or how much credit he gave for the pleas of guilty. Although he did advert at one stage in his sentencing remarks to the time Mr Lawrie has spent in custody reflecting upon his life and his hopes for the future, he did not refer specifically to the 8 months spent in custody prior to sentencing.
This court has repeatedly emphasised that it is desirable that judicial officers identify how much credit is given for a plea of guilty. However, a failure to identify specifically how much credit has been given for a plea of guilty does not necessarily amount to an error of law R v Place (2002) 81 SASR 395.
Where a defendant has spent time in custody prior to sentence, that period should as well, generally speaking be taken into account in fixing the sentence. Fox v Police [2005] SASC 208
The difficulty which arises in this case, if the respondent’s submission that the magistrate did take into account all relevant matters is correct, is, that it must then follow that the starting point for the head sentence must have been somewhere in the region of 13 years and 6 months. It is impossible to be more precise than that because the magistrate simply did not identify what discount was applied or how much had been deducted for the time spent in custody. Correspondingly, if the appellant’s submission that the learned magistrate simply failed to take any account of the pleas of guilty and of the time spent in custody is accepted, then in those circumstances I consider the magistrate has fallen into error. I have reached the conclusion that in the context of this case the magistrate’s failure to identify the extent of the discount combined with his failure to refer to the period of 8 months which the appellant spent in custody prior to sentencing has led the magistrate into error. On either view the sentence imposed is manifestly excessive.
If the magistrate had taken the time to identify the discount and the amount of time spent in custody, then I consider it is likely that it would have occurred to him that a starting point for the head sentence for this appellant in the range of 13-14 years is quite simply too high. Alternatively if he simply forgot about those matters and failed to take any account of them, an error is demonstrated.
As Vanstone J said in Fox at 7:
Whilst I am mindful of the heavy workload of magistrates and also conscious of the long experience of many of them in sentencing matters, it is important that all efforts are made to provide a degree of transparency in the way in which sentences are arrived at, at least in respect of allowance in pleas of guilty and time spent in custody. Revealing the process can be of assistance to the sentencing court itself, as well as to an appellant court. Moreover it demonstrates to the defendant that matters having a marked impact on his penalty have not been overlooked.
(the underlining is my own)
As the sentence is manifestly excessive in the circumstances it is necessary for me to reconsider the matter and sentence the appellant afresh.
Although the appellant pleaded guilty to a large number of offences, it is a notable characteristic of most of the appellant’s offending that no violence was involved. All of the offences of deception appear to have been opportunistic, spur of the moment offending committed in the main over a 6 month period between 2005 and 2006.
There were, as the magistrate observed, compelling circumstances of mitigation. The appellant’s background was traumatic and unstable. He suffered sexual abuse at the hands of an adult male relative by the time he was 10 or 12 years. During the hearing of this appeal I was told that the appellant has now taken positive steps to confront his past by giving a statement to the Mullighan Inquiry as a result of which the alleged perpetrator has now been charged. The appellant’s unfortunate relapse after spending 8 months on the Drug Court Program occurred in circumstances where he had been attending daily an inquest into a death in custody involving the death by suicide of his young cousin. Nevertheless the fact that he managed to complete 8 months of the 12 month course is noteworthy, in the light of his background.
The appellant is still a very young man. I consider as the magistrate did that there is still a potential for rehabilitation and that the sentence should be as short as the interests of justice permit. I intend to impose a non-parole period therefore which will give the opportunity to the appellant to demonstrate the claim in his most recent letter to this court that he is now ready to embark on a genuine program of rehabilitation.
It is appropriate to utilise the provisions of s 18A of the Criminal Law (Sentencing) Act1988 in relation to all of the offences which attract a sentence of imprisonment. For the offences of driving unlicensed, driving a vehicle with inadequate lights and refusing to submit to a breath analysis the appellant is convicted without penalty. He is disqualified from holding or obtaining a driver’s licence for a period of 12 months.
For all remaining offences, after applying a discount of 25 percent for the plea of guilty and allowing a period of 12 months in respect of the 8 months spent in custody and the extensive period spent on home detention bail, I impose a head sentence of 6 years and 6 months.
The non-parole period will be 3 years. The sentence is to be suspended upon the appellant entering into a bond to be of good behaviour. The terms and conditions of the bond will be identical to the bond imposed in the Magistrates Court .
TABLE OF OFFENCES
Offence No. Date of Offence /
Date Pleaded GuiltyOffence Summary of Facts Maximum Sentence 1 Offence date – 12/10/2004
Guilty plea entered –
30/10/2006Theft The appellant stole alcohol from Liquorland. Theft
Maximum Penalty – Section 134(1) Criminal Law Consolidation Act 1935
Imprisonment for 10 years.2 Offence date – 13/10/2004
Guilty plea entered –
18/08/2005Illegal Use The appellant stole a car from the car park of the Castle Plaza Shopping Centre at Edwardstown.
Illegal Use of a Motor Vehicle
Maximum Penalty – Section 86A Criminal Law Consolidation Act 1935
First offence – 2 years imprisonment.
Subsequent offence – imprisonment for not less than 3 months and not more than 4 years.
The court must order that the person be disqualified from holding or obtaining a driver’s licence for 12 months3 Property damage
Property Damage – less than $2500 damage
Maximum Penalty – Section 85(3) Criminal Law Consolidation Act 1935
Imprisonment for 2 years.4 Drive Unlicensed Drive Unlicensed (never held a licence)
Maximum Penalty - Section 74(2) Motor Vehicles Act 1959
First offence – fine of $2500Subsequent offence - $5000 or imprisonment for 1 year.
5 Inadequate Lights 6 Refuse Breath Analysis Refuse Breath Analysis
Maximum penalty – Section 47E (3) Road Traffic Act 1961
For a first offence – a fine not less than $700 and not more than $1200. Disqualification from holding or obtaining a driver’s licence for a period of not less than 12 months.7 Offence date –
9-10/03/
2005Guilty plea entered -13/11/2006
Non-aggravated Serious Criminal Trespass (Place of Residence) The appellant broke into residential premises in Salisbury North. The occupants were not at home at the time of the offence. Serious Criminal Trespass in a place of residence
Maximum Penalty for a non-aggravated offence
Section 170(1) Criminal Law Consolidation Act 1935
Imprisonment for 15 years.8 Illegal Use of a Motor Vehicle He stole the car keys from the house and took the occupant’s vehicle. 9 False name Upon arrest, the appellant refused to give his correct name to the police. False Name
Maximum Penalty – Section 74A(3) Summary Offences Act 1953
$1250 fine or 3 months imprisonment.10 Offence date –
14/09/2005Guilty plea entered –
26/09/2006Theft
The appellant stole a handbag containing credit cards, money and mobile phone, totalling approximately $500 from a victim at the London Tavern on North Terrace. Deception – basic offence
Maximum Penalty –
Section 138 Criminal Law Consolidation Act 1935
Imprisonment for 10 years.11 Deception
The appellant used a stolen credit card to purchase a return flight to Sydney, costing $455.40. 12 Attempt Deception The appellant attempted to use a stolen credit card to purchase goods worth $20. Attempt Deception
Maximum Penalty –
Section 270A Criminal Law Consolidation Act 1935
The penalty for an attempt to commit an offence shall not exceed a maximum of two thirds of the maximum penalty prescribed for the offence.
Maximum penalty for deception 10 years.13 Deception
The appellant used a stolen credit card to purchase goods to the value of $23.60. 14 Deception
The appellant used a stolen credit card to purchase $155 worth of goods. 15 Deception
The appellant used a stolen credit card to purchase $78.08 worth of goods. 16 Deception
The appellant used a stolen credit card to purchase a $24.09 taxi fare. 17 Deception
The appellant used a stolen credit card to purchase a $14.43 taxi fare. 18 Deception
The appellant used a stolen credit card to purchase $219.80 worth of clothing. 19 Deception
The appellant used a stolen credit card to purchase $399 worth of goods. 20 Deception
21 Offence date –
26/09/2005Guilty plea entered –
13/11/2006Theft The appellant stole a purse containing mobile phone and cash to the value of $560 from a patron at the Gepps Cross Hotel. The victim’s husband apprehended the appellant and the purse was returned to the victim. 22 Offence date –
10/10/2005Theft
The appellant stole a purse from a victim at the Tea Tree Plaza Shopping Centre. 23 Guilty plea entered –
13/11/2006Deception
The appellant used a stolen credit card to purchase goods to the value of $486.98. 24 Deception
The appellant used a stolen credit card to purchase clothing valued at $299.65. 25 Deception
The appellant used a stolen credit card to purchase clothing, worth $526.30. 26 Deception
The appellant used a stolen credit card to purchase electronic goods to the value of $499. 27 Attempt Deception
The appellant attempted to purchase clothing valued at $1019.35 using a stolen credit card. The transaction was denied. 28 Theft The appellant stole a Myer Card from a victim. 29
Offence date –
11/10/2005Guilty plea
Theft
The appellant stole a purse, containing $200 and credit cards from a victim at the Modbury Shopping Centre. 30 entered –
13/11/2006Attempt Deception
The appellant twice attempted to use the stolen credit cards to purchase various goods from a bottle shop. 31 Attempt Deception The appellant twice attempted to use the stolen credit cards to purchase various goods from a bottle shop. 32 Offence date –
20/10/2005Guilty plea
Drive Unlicensed
The appellant drove unlicensed. He had never been authorised to drive a motor vehicle. 33 entered –
13/11/2006Theft The appellant stole alcohol to the value of $165.97 from the Enfield Hotel. 34
35
36Offence date –
7/12/2005Guilty plea entered –
30/10/2006Breach Bail
Breach Bail
Breach BailThe appellant breached the conditions of bail by consuming alcohol, cutting off his home detention electronic monitoring bracelet and leaving the residential premises. Breach Bail
Maximum Penalty – section 17
(1) Bail Act 1985
$10,000 fine or imprisonment for 2 years.37 Offence date – 8/12/2005
Assault
The appellant assaulted a victim by using force to push her. Assault - basic offence
Maximum penalty – section 20 Criminal Law Consolidation Act 193538 Guilty plea entered –
26/09/2006Theft He then stole her purse, containing bank cards and cash totalling approximately $120. Imprisonment for 2 years
39 Attempt Deception
The appellant then attempted to use the credit card to purchase goods to the value of $258.84. 40 Breach Bail
41 Offence date – 9/12/2005
Guilty plea entered –
30/04/2007Breach Bail 42 Offence date –
10/12/2005Theft
The appellant stole a wallet containing a credit card and driver’s licence. 43 Guilty plea entered – 26/09/2006 Theft
The appellant stole a motor vehicle from North Terrace. 44 Deception
The appellant used a stolen credit card to purchase $243.91 worth of goods. 45 Deception 46 Theft
The appellant stole a mobile phone worth about $700 from a patron at the Adelaide Casino. 47 Deception
The appellant used a stolen credit card to purchase $75.15 worth of goods. 48 Attempt Deception The appellant attempted to purchase goods valued at $133. 49
50Deception
DeceptionThe appellant used a stolen credit card to make two separate purchases at a service station, with a total value of $91.40. 51 Deception
The appellant used a stolen credit card to purchase $200 worth of goods. 52 Deception
The appellant used a stolen credit card to purchase $120.20 worth of goods. 53 Theft
The appellant stole a Mobil fuel card worth $20. 54 Deception
The appellant used a stolen credit card to purchase $88.35 worth of goods. 55 Attempt Deception
The appellant used a stolen credit card to purchase a $100 mobile phone card. 56 Offence date –
30/12/2005Theft
The appellant stole a mobile phone, wallet, cash and credit cards, totalling approximately $400. 57 Guilty plea entered –
26/09/2006Deception
The appellant used the stolen credit card to purchase a $9.55 taxi fare. 58 Deception
The appellant used the stolen credit card to purchase $140.90 worth of goods. 59 Deception
The appellant used the stolen credit card to purchase a $18.95 taxi fare. 60 Deception
The appellant used the stolen credit card to purchase an $18.95 pair of sunglasses. 61
62
Attempt Deception
Attempt DeceptionHe then attempted to use the credit card a few minutes later to purchase a $99 mobile phone card. This transaction was denied.
The appellant attempted to purchase approximately $130 worth of goods.63
64
Offence date –
06/01/2006Guilty plea entered –
26/09/2006Theft
Property Damage
The appellant stole a motor vehicle
The appellant damaged the electric security gates of property of CHU Underwriters. The damage amounted to more than $2500, but less than $30,000.Property Damage – more than $2500 but less than $30,000 damage
Maximum Penalty – Section 85(3) Criminal Law Consolidation Act 1935
Imprisonment for 3 years.65
66
Offence date –
07/02/2006Guilty plea entered –
26/09/2006Illegal Interference
TheftThe appellant interfered with a motor vehicle and stole the credit cards and driver’s licence of the victim. Illegal Interference
Maximum Penalty – Section 86A Criminal Law Consolidation Act 1935
For a first offence – imprisonment for 2 years.
For a subsequent offence – imprisonment for not less than 3 months and not more than 4 years.
67 Offence date –
08/02/2006Guilty plea
Deception
The appellant used a stolen credit card to purchase goods at a service station totalling approximately $197.67. 68 entered –
26/09/2006Deception
The appellant used a stolen credit card to purchase goods valued at approximately $259.29. 69 Deception
The appellant used a stolen credit card to purchase $40.21 worth of items. 70 Deception The appellant used a stolen credit card to purchase $127.83 worth of items. 71
72
73Offence dates -
2/05/2007
05/05/2007
10/05/2007Guilty plea entered –
23/05/2007Theft
Breach Bail
Breach BailThe appellant stole alcohol from the Buckingham Arms Hotel.
The appellant twice breached the curfew conditions of bail by not being home between the hours of 17:00pm and 10:00am.74 Offence date –
21/06/2007Guilty plea entered –
08/08/2007Breach Bail The appellant breached the conditions of the Home Detention Bail imposed by the Drug Court Program. There was a condition not to consume alcohol or drugs not medically prescribed. On arrest, the appellant appeared under the influence of alcohol and was not at the correct residing address.
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