LAZENBY v POLICE - [2004] SASC 347

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LAZENBY v POLICE
Judgment of The Honourable Justice Vanstone
9 November 2004
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
Appeal against sentence - pleas of guilty to a number of counts of theft, serious criminal trespass and other offences - sentence of 32 months imprisonment with non-parole period of 15 months - whether sentence should have been suspended - appeal dismissed.
R v Delphin (2001) 79 SASR 429, discussed.

LAZENBY v POLICE
[2004] SASC 347
Magistrates Appeal

VANSTONE J: This is an appeal against a sentence of imprisonment imposed in the Magistrates Court for dishonesty offences.
The appellant pleaded guilty to a number of offences which can be divided into four groups. The first of those was a theft of a camera from a home at Clovelly Park in August 2003 and an associated making of a false statement to a second-hand dealer. The next was a theft of electrical equipment from a home at Park Holme in October 2003, again associated with an offence of making a false statement to a second-hand dealer. There were also some driving offences which I shall not mention further. The next group was a serious criminal trespass in a place of residence in Somerton Park committed in September 2003, together with theft of various items valued in excess of $2,000. Finally there was an attempted serious criminal trespass in a place of residence at Park Holme in February 2004. The appellant was deterred from completing the last offence as the home owner was present and summoned the police. The appellant was arrested nearby.
The appellant was convicted of all the offences. The learned Chief Magistrate sentenced him to imprisonment for two months in relation to the first two groups of offences I mentioned, imprisonment for eighteen months in relation to the third group, that sentence to be served cumulatively, and imprisonment for twelve months in relation to the attempted serious criminal trespass, that sentence again to be served cumulatively. In relation to the total head sentence of thirty-two months a non-parole period of fifteen months was fixed.
No complaint is made in relation to the length of each sentence or their accumulation; nor as to the non-parole period. The sole ground of appeal complains of the failure to suspend the sentence.
The appellant was 35 years of age at the time of sentence. At the time these offences were committed he was unemployed, but about three months after his apprehension and charging on the last offence, he obtained work for a manufacturing company. He continues in that work currently, having been granted bail pending appeal.
The appellant has previous convictions for breaking offences. In October 1991 he was sentenced in the Adelaide Magistrates Court to twelve months imprisonment for two such offences. He acknowledged that prior to that time he had been convicted of offences in Victoria. In February 1993 he was sentenced for another breaking offence to twelve months imprisonment, but that sentence was suspended. The associated three year bond was apparently not breached. From that time until the commencement of the most recent spate of offending the appellant did not appear in court. During that period he was in a stable relationship and had largely controlled an earlier problem which he had with drugs and liquor. It was put to the Magistrate by the appellant’s then counsel that the relationship ended in the year 2000. About eighteen months or so after that the loss of the appellant’s employment led to a period of excessive drinking, poverty and commission of a number of offences.
It is clear from the Chief Magistrate’s remarks on sentence that the question of suspension of the inevitable sentence of imprisonment loomed large in his mind. In that connection he referred to the appellant’s antecedent history, to his long-standing problem with the use of liquor and to personal difficulties. He made particular mention of the secure job which the appellant had obtained since the offences. Reference was made to the decision in R v Delphin (2001) 79 SASR 429 as to the usual level of sentencing for offences of serious criminal trespass. Having determined the total sentence the learned Chief Magistrate said:
The question then is whether the sentence should be suspended. In my view, your history and the sequence of these matters, in any event, precludes such an approach. I am not prepared in the circumstances here to direct that this sentence be suspended.
Mr Mead, who appeared for the appellant before me, submitted that the use of the verb “to preclude” in the passage I have set out implies an error of approach. I do not consider that that is so. In my view it is plain from the sentencing remarks read as a whole that the Chief Magistrate was always alive to the option of suspending the sentence. I take his Honour to mean by use of that word that the factors he mentioned led him to characterise the offending as being of an order of seriousness such that good reason to suspend could not be found. These factors, being the appellant’s prior convictions and the repeated offending over a period of some six months were indeed the key matters militating against suspension.
Counsel further argued that since there was no specific reference to the period of a number of years between the earlier offending and the current offending and since there was no reference to the submission that the appellant had already embarked upon the process of rehabilitation – in having secured employment and contained his drinking problem – it could be inferred that insufficient weight was afforded to those matters. In my view no such implication arises from the remarks on sentence. Reference to those matters was not in the terms suggested by Mr Mead, but nor did it need to be. Indeed, as a general rule it is not necessary for a magistrate to refer to each and every factor which he or she takes into account. But, as I said, reference to the thrust of each of those matters was indeed made and no doubt those were the matters which led the learned Chief Magistrate to focus keenly on the question of whether good reason to suspend the sentence could be found.
In the end I am not persuaded that there was any error of approach to the sentencing process, nor indeed that the immediate custodial sentence imposed was other than appropriate. The discretion as to suspension of the sentence was for the Court to exercise. The course determined upon was entirely open in the circumstances of the matter.
The Notice of Appeal in this matter was filed a little after the relevant time period had expired. In the circumstances I grant an extension of time within which to appeal, but the appeal will be dismissed.