Lawrie v Police - [2015] SASC 98

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LAWRIE v POLICE
[2015] SASC 98
Judgment of The Honourable Justice Sulan
9 July 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence. Appellant pleaded guilty to interfering with a motor vehicle without consent and attempted interfering with a motor vehicle without consent. He was sentenced by a Magistrate to six months' imprisonment to be served cumulatively upon an existing sentence of two years and nine months imposed in the District Court. The appellant's non-parole period was extended by four months to 20 months. The appellant contended that the Magistrate erred in failing to have sufficient regard to the principle of totality resulting in a sentence that was manifestly excessive. Counsel for the respondent submitted that the Magistrate adequately considered mitigating circumstances and no error can be demonstrated in arriving at the final sentence. The Magistrate had proper regard to all relevant factors and imposed an appropriate sentence in all circumstances.
Held: Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 86A, s 270A(1); Criminal Law (Sentencing) Act 1988 (SA) s 9, referred to.
R v Becker (2005) 91 SASR 498; Cross v Police [2001] SASC 47; Hodgson v Police [2002] SASC 35; Corak v Police [2006] SASC 172; Frank v Police (2007) 98 SASR 547; Leslie v Police [2001] SASC 270; Jones v Police (2009) 263 LSJS 7; Bugmy v The Queen (2013) 249 CLR 571; Attorney General v Tichy (1982) 30 SASR 84; R v Copeland (No 2) (2010) 108 SASR 398; R v Place (2002) 81 SASR 395; R v Knight (1981) 26 SASR 573; R v Rossi (1988) 142 LSJS 451, considered.

LAWRIE v POLICE
[2015] SASC 98
Magistrates Appeal: Criminal

SULAN J:             This is an appeal against sentence. The appellant and defendant, Charles Ronald Lawrie, pleaded guilty to interfering with a motor vehicle without the owner’s consent[1] and attempted interfering with a motor vehicle without the owner’s consent.[2] The two offences were committed in October 2012 within 24 hours of each other. As to the first offence, the maximum penalty is four years’ imprisonment, and a minimum of three months’ imprisonment for a second or subsequent office. The maximum penalty for the second offence of attempt is 16 months’ imprisonment.
[1]    Criminal Law Consolidation Act 1935 (SA) s 86A.
[2]    Criminal Law Consolidation Act 1935 (SA) s 270A(1) and s 86A.
At the time of sentence on 1 April 2015, the defendant was serving an existing sentence of two years and nine months’ imprisonment with a non‑parole period of 16 months, imposed by Judge Davison in the District Court on 24 February 2015, for the offences of aggravated serious criminal trespass on 9 November 2013, and attempting to pervert the course of justice whilst in custody. He had attempted to convince the victim of the serious criminal trespass offence to provide a false statement exonerating the defendant. He was convicted of the offences after a trial by Judge alone. He received two years’ imprisonment for the former offence and nine months’ imprisonment for the latter, to be served cumulatively.
The defendant had also pleaded guilty to theft and using a motor vehicle without consent. He received 10 months and 24 days’ imprisonment for the offence of theft, to be served concurrently with the sentence referred to above. Judge Davison imposed a sentence of four months and two weeks’ imprisonment for the offence of using a motor vehicle without consent, to be served concurrently with the other sentences she imposed. In addition, the defendant pleaded guilty to hindering police, for which he was convicted without penalty, and driving while disqualified on a separate occasion, for which he was sentenced to four weeks’ imprisonment, to be served concurrently with the previously referred to sentences. In addition, the defendant was disqualified from driving for 12 months from the date of his release.
The total sentence for the offences dealt with by Judge Davison was two years and nine months’ imprisonment, with a non-parole period of 16 months’ imprisonment, to commence on 23 November 2014 (“the previous sentence”). It is unclear why the two offences the subject of this appeal were not transferred to the District Court to be dealt with by Judge Davison at the same time. Neither counsel on the appeal could assist me with why that had not occurred.
For the subject offending, the Magistrate imposed a single sentence of six months’ imprisonment, reduced from nine months on account of the guilty pleas, to be served cumulatively upon the previous sentence. The Magistrate extended the non-parole period to 20 months, commencing on 23 November 2013. The Magistrate further disqualified the defendant from holding or obtaining a driver’s licence for a period of 12 months once released from custody, which is to be cumulative upon the disqualification period already imposed as part of the previous sentence.[3]
[3] Criminal Law Consolidation Act 1935 (SA) s 86A(2).
The defendant contends that the Magistrate’s decision to impose a sentence of imprisonment cumulative upon the previous sentence and to extend the non‑parole period is manifestly excessive.
Background
The first offence of interfering with a motor vehicle without the owner’s consent occurred some time between Sunday, 14 October 2012 and Monday, 15 October 2012. The owner had parked his car, a 1985 Ford Telstar, in the driveway of his property in Blair Athol. At 9.00 am on 15 October, he discovered that it was missing. Police eventually recovered the car at West Lakes Shore. Mr Beaton, the owner, had significant mobility problems as a result of suffering crushed discs and a fractured vertebrae. Without the car, he found it very difficult to visit his fiancé who was hospitalised at the Flinders Medical Centre. After being discharged, Mr Beaton’s fiancé had a fall at home which ultimately resulted in her death. Mr Beaton was unable to get home in time to offer assistance. Mr Beaton estimates that he had spent approximately $8000 restoring the car prior to the offence. It took him 18 months to save the money to purchase a replacement car. Since the incident, he has felt anxious about being a target of future criminal behaviour.
The second offence occurred between 5.30 pm and 11.45 pm on 15 October 2012 at West Lakes Shore. The defendant attempted to drive a Holden utility which was parked in the owner, Mr Wheaton’s, driveway. The ignition barrel and plastic column covering it were destroyed. Mr Wheaton had the barrel repaired at a cost of $150, but could not obtain a replacement column. Mr Wheaton could not get to work, had little money for the repairs and has since moved house out of concerns for his safety. The offence has caused him great inconvenience.
On 9 May 2014, Police attended Yatala Labour Prison and arrested the defendant.
Personal circumstances and antecedents
The defendant was 20 years of age at the time of offending. He is Aboriginal and has experienced a difficult upbringing. He spent most of his childhood with his grandparents. Both his parents have spent considerable periods of time in custody. He has had a dysfunctional family life.
The defendant is now 24 years of age. He first appeared before the Children’s Court at the age of about 12. His offending has been continuous from that time until the present. He has numerous convictions for illegal use and for other driving offences. As a youth, he was sentenced to detention on 11 November 2008 for offences of driving or using a motor vehicle without consent and aggravated theft. In December 2011, he was sentenced to 13 months’ imprisonment with a non-parole period of eight months, to commence on 20 March 2011, for offences of aggravated assault, resist police, unauthorised person driving a motor vehicle, and failure to comply with a bail agreement. In January 2012, he was convicted of driving a motor vehicle without consent. He was sentenced to four months’ imprisonment, which was suspended upon him entering into a bond to be of good behaviour for nine months. In February 2013, he was convicted of a number of offences including driving or using a motor vehicle without consent, aggravated driving dangerously to escape a police pursuit, and two counts of driving whilst disqualified. He was sentenced to 13 months and two days’ imprisonment, with a non-parole period of six months, commencing on 18 October 2012.
The defendant has numerous other convictions of driving whilst under disqualification. He has failed to comply with bail agreements. In the case of the offences before Judge Davison he was on parole at the time that the offences were committed. He had served all but one week of his parole period.
The sentence
The Magistrate referred to the sentencing remarks of Judge Davison. She referred to the defendant’s background and personal circumstances:
You were 20 years of age when you committed these offences. Judge Davison has set out your family background, the instability. Your mother was in and out of prison and you had little contact with your father and from the age of 10, you spent much time in correctional institutions before eventually being placed in Yatala.
Your history shows that on many occasions you have been before the court for; serious dishonesty, for acts of violence, many damage property charges and you have been appearing over the last 10 years or so for interfering with motor vehicles. There was a Family Conference in 2003 for that offence. You were before the Childrens Court in 2004 again for the same offence. In 2004 you were convicted of the same offence and again in 2005. Thereafter you were sentenced in the District Court for a number of offences, including aggravated theft and illegal use and you were sentenced on 16 September 2009 to three years imprisonment with a non-parole period of two years and nine months. Having completed that sentence and being back in the community, in 2010 you were before the Port Adelaide Court for driving without a licence and without proper number plates. Thereafter you find yourself before this court, again on similar offences.
...
I take into account the comments of Mr Fugler’s report. He considers you have a conduct disorder; you display consistent unlawful behaviour, deceitfulness, impulsivity, aggressiveness, consistent irresponsibility and you have limited resource. You are dealing with the problems associates [sic] with methamphetamine use and in particular, its tendency to exacerbate impulsive or mal-adaptive behaviour. Given your age, your previous lengthy periods of imprisonment, the harm that you cause to the community, your prospects of rehabilitation at this stage do not look bright.
Grounds of appeal
The grounds of appeal upon which the defendant relies are:
(a)Failing to reflect Her Honour Judge Davison’s attempt to avoid a “crushing” sentence.
(b)Failing to give sufficient weight to the risk of the appellant becoming institutionalised.
(c)Taking into account the fact that the appellant was not in a position to pay any compensation.
Submissions
Mr Redford, who appeared as counsel for the defendant, submitted that the Magistrate erred in ordering that the sentence she imposed is to be served cumulatively upon the sentence imposed by Judge Davison. Counsel’s contention is that the Magistrate erred in declining to order that the sentence she imposed be served concurrently with the sentence which the defendant was then serving. In support of his contention, counsel relies upon the following. First, it is contended that the Magistrate failed to have sufficient regard to the principle of totality and, therefore, the overall sentence and non-parole period is a crushing sentence. Second, she failed to have regard to the defendant’s youth and the risk that the defendant will become institutionalised. Third, that without adequate counselling and support, the defendant has limited prospects of rehabilitation. It is contended that the Magistrate did not have sufficient regard to the defendant’s aboriginality.
Mr Redford submitted that the Magistrate failed to give adequate reasons for her decision to make the sentence she imposed cumulative with the sentence imposed by Judge Davison. In particular, he points to the failure of the Magistrate to address the following matters. First, the defendant had almost completed a non-parole period without further offending. Second, the Magistrate failed to address Judge Davison’s concern that any sentence should not be crushing and whether the added sentence and increased non-parole period would deprive the defendant of hope and have a negative effect upon him. Third, Mr Redford complained that the Magistrate did not give adequate consideration or give reasons addressing the defendant’s prospects of rehabilitation. Fourth, he complained that the Magistrate did not adequately address the defendant’s youth and the risk of him being institutionalised.
Counsel for the respondent submitted that there was no error in the sentence imposed and that the Magistrate gave proper consideration to the defendant’s mitigating circumstances. Counsel referred to the defendant’s significant history of offending, including the subject offence, and the need for the sentence to provide specific deterrence and the protection of the community.
Consideration
The requirement that sentencing judges and magistrates give adequate reasons has been addressed in a number of authorities.[4]
[4] R v Becker (2005) 91 SASR 498; Cross v Police [2001] SASC 47; Hodgson v Police [2002] SASC 35; Corak v Police [2006] SASC 172; Frank v Police (2007) 98 SASR 547; Leslie v Police [2001] SASC 270.
Section 9 of the Criminal Law (Sentencing) Act 1988 (SA) requires a court to provide reasons for sentencing. The section provides:
9—Court to inform defendant of reasons etc for sentence
(1)     A court must, on sentencing a defendant who is present in court (whether in person or by video or audio link) for an offence or offences, state the sentence that it is imposing for the offence or offences and its reasons for imposing that sentence, including (for example) any reason why a sentence that would otherwise have been imposed for the offence or offences has been reduced.
(1a)   Nothing in subsection (1) requires a court to state any information that relates to a person's cooperation, or undertaking to cooperate, with a law enforcement agency.
(2)     The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
The requirement to give reasons and its interaction with s 9(2) was discussed in Corak v Police by Vanstone J:[5]
The extent to which a magistrate must justify the disposition of a matter is a topic upon which fair minds may differ. (See, for example, Szewczuk v Police [2001] SASC 223 per Lander J; Hodgson v Police [2002] SASC 35 per Doyle CJ; Peters v Police [2004] SASC 284 per Nyland J.) But the provision of reasons is important from the viewpoints of the offender, the victim and the community at large and, further, helps to enable the appellate court to perform its role of reviewing the sentence.
[5] [2006] SASC 172 at [10].
In Jones v Police,[6] Gray J observed:
... Whilst a failure to comply with section 9(1) will not prevent the sentence delivered from standing as a valid and enforceable order of the Court, this does not preclude a separate challenge alleging that the otherwise valid order was reached by a faulty means such as an error of law or fact, and that it should be set aside.
This approach appears to recognise the different purposes for which reasons are delivered. Earlier decisions have considered that the primary purpose of giving reasons on sentence is for the benefit of the defendant. Later decisions have recognized the additional role of reasons in assisting an appellate court to perform its role of reviewing the sentence. The wording of section 9(1), particularly subsection (b), suggests that both section 9(1) and section 9(2) are concerned primarily with the former rather than latter purpose. In this context, the failure to comply with section 9(1) might be regarded as one of a number of procedural matters not affecting validity of the order of the Court, without precluding subsequent challenge in the event of an error of law or fact.
[6] (2009) 263 LSJS 7 at [37]-[38].
A failure to give adequate reasons will not in itself invalidate the sentence. However, a failure to give adequate reasons may amount to error.
In R v Becker,[7] the Court (Gray, Sulan and Layton JJ) observed that sentencing remarks are primarily spoken to and for the benefit of the defendant. The purpose of sentencing remarks is to explain to a defendant the reason why a particular sentence is to be imposed so that the defendant can understand why a judge or magistrate has arrived at a particular sentence, in the hope that such an understanding will assist the defendant and encourage him or her to change their lifestyle in the future.
[7] (2005) 91 SASR 498.
Sentencing remarks are required to assist appellate courts to understand how the sentencing court arrived at the final sentence.
In sentencing the defendant, the Magistrate referred to the defendant’s personal circumstances. She dealt with his antecedents. She referred in detail to the circumstances of the offences. She referred to Judge Davison’s sentencing remarks. She considered whether the sentence she imposed should be concurrent with the previous sentence. I reject the contention that the Magistrate failed to give adequate reasons.
The gravamen of the defendant’s complaint is that the Magistrate failed to have sufficient regard to the sentencing remarks of Judge Davison. In particular, the Judge’s observation that it was important not to impose a sentence upon the defendant that is a crushing sentence. Counsel submitted that there was insufficient weight placed upon a report of a psychologist, Mr Fugler.
I have earlier observed the Magistrate had considered Judge Davison’s sentencing remarks. The Magistrate also considered Mr Fugler’s psychological report. In his report, Mr Fugler referred to the defendant’s background and upbringing, and to his aboriginal heritage. Mr Fugler stated:
Your client told me has was born in Adelaide and that his grandmother removed him from his mother’s care shortly after his birth. Mr Lawrie said he has two brothers who were also being cared for by relatives of the family, and that his mother, Lydia Wanganeen has been in and out of prison for most of his life, including when found guilty of manslaughter and sentenced to 11 years 2 months imprisonment in 2006. Your client also told me he did not meet his father Charlie Lawrie until he reached the age of six or seven, he reporting that parent as also having had regular contact with the criminal justice system.
According to Mr Lawrie, he spent most of his childhood residing with his grandparents, aunt, and cousins at either Port Germain [sic] or Oak Valley, a small community in the Maralinga area of South Australia. He told me his grandparents would often go to that area for work and leave him in the care of his aunt. He also told me he would return to Adelaide for the Christmas holidays and would stay with his maternal grandmother at Osborne. He had little to do with his mother and said while his paternal grandparents taught him many bush related skills he came to resent them as a result of they not telling him the truth about his parents criminal activity, and their reluctance to allow him contact with his biological parents.
Your client told me it was when he was nine years of age and residing with his grandmother during the Christmas holidays that he began smoking cannabis with his uncle. His mother had been released from prison at that time and he discovered his grandparents had not been entirely honest with him, although he now has a better understanding of their motivation to shelter him from “bad stuff”. As it was he refused to return to their care and spent a period itinerant before being placed in a boys home, and later at SAYRC, Cavan, and Yatala Labour Prison. According to him, he has spent every birthday in custody since the age of nine. Mr Lawrie has limited contact with his biological parents and has completely eschewed that with his paternal grandparents.
Charlie Lawrie began his formal education at Port Germain [sic] Primary. He described having displayed disruptive behaviour and of having been involved in fighting with peers on a regular basis. He later attended Largs Bay Primary and school in institutional settings, he informing me he “dropped out” in Year Six at the age of 11. Your client has very limited literacy skills and usually requests the assistance of others to help him fill-in official forms. Mr Lawrie said he did undertake classes in numeracy and literacy skills while incarcerated at Mobilong Prison, but reported continuing to experience difficulties in both areas. He has not been employed in the general workforce and at the time of his arrest he was in receipt of New Start Allowance.

In my view, there is no substance in the defendant’s complaint that the Magistrate failed to give adequate consideration to the defendant’s background and youth.
As to the failure to have adequate regard to the defendant’s aboriginality, I observe that, other than a reference in the outline of submissions, the defendant’s counsel did not make oral submission on this question. In Bugmy v The Queen,[8] the plurality of the High Court confirmed that the mere fact of an offender being aboriginal is not a distinguishing factor from other defendants. They said:[9]
An Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender's sentence. In this respect, Simpson J has correctly explained the significance of the statements in R v Fernando:
“Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.”
[8] (2013) 249 CLR 571.
[9] (2013) 249 CLR 571 at [37].
The principles giving rise to the exercise of a court’s discretion to order sentences to be served concurrently, and how those principles apply to the principle of totality have been discussed in a number of authorities in this Court.[10] In cases of multiple incursions into criminal offending, the Court will consider the total sentence and ask whether, in all the circumstances, it is too great. In order to arrive at an appropriate sentence, the Court can order that the sentences for each offence be concurrent or partially concurrent.
[10] Attorney General v Tichy (1982) 30 SASR 84; R v Copeland (No 2) (2010) 108 SASR 398; R v Place (2002) 81 SASR 395 at 425; R v Knight (1981) 26 SASR 573.
Where there are separate incursions into criminal activity, particularly if they are separated in time, the starting position is usually that the sentences will be cumulative. The Court has a broad discretion in determining whether a sentence is to be cumulative, partly concurrent or concurrent.
If the sentencing judge or magistrate determines that the total sentence for the various crimes is too much so that it requires intervention, then the court will reduce the sentence. That result can be reached by making the sentences concurrent or partially concurrent.[11]
[11] R v Rossi, (1988) 142 LSJS 451; R v Place (2002) 81 SASR 395 at 426.
The offences for which the defendant was sentenced involved two motor vehicle offences. Mr Redford accepted that the sentence imposed by the Magistrate, taken on its own, is not manifestly excessive. He did not dispute that the offending was a separate incursion into criminal conduct from that dealt with by Judge Davison. It was, therefore, within the Magistrate’s discretion to order that the sentence be cumulative upon the sentence imposed by Judge Davison. No error in the Magistrate’s approach has been demonstrated.
Mr Redford submitted that the Magistrate erred in taking into account and punishing the defendant for not being in a position to pay compensation. The Magistrate referred to the victim impact statement of one of the complainants who claimed that the damage to his vehicle caused him loss of about $150. The complainant had very little money and had difficulty in attending work as a result of the loss of the use of his vehicle. In that context, the Magistrate correctly observed, “You are not in a position to make any compensation which is a factor I take into account in sentencing you”.
The failure to make a compensation payment is not a factor of aggravation. If compensation is paid, it demonstrates contrition and is a mitigating factor. It is submitted that the Magistrate’s reference to the defendant’s failure to make compensation was treated by her as an aggravating feature of his offending. That conclusion does not follow from the words she used. She correctly observed that the defendant was not able to make compensation.
No error has been demonstrated. The total sentence of three years and three months, with a 20-month non-parole period was well within the range of penalties for the offending.
The appeal is dismissed.