Le v Police - [2007] SASC 205

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LE v POLICE
[2007] SASC 205
Judgment of The Honourable Justice Anderson
20 June 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
Appeal from decision of a magistrate – appellant convicted of theft, failing to state full name to police and unlawful possession of identification cards – appellant’s offending history considered – frequency of appellant’s offending decreased after appellant recovered from a heroin addiction – sentence of 20 weeks imprisonment reduced to 15 weeks on account of guilty pleas – magistrate declined to suspend sentence – appellant served 62 days of sentence before being granted bail – whether sentence was manifestly excessive - whether magistrate erred in not suspending sentence.
Held: magistrate failed to adequately take into account reduced frequency of offending and appellant’s personal factors – magistrate erred in not suspending part or whole of sentence – sentence quashed – appellant re-sentenced to 40 days imprisonment to be suspended upon appellant entering into 18 month suspended sentence bond – appeal allowed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; Criminal Law Consolidation Act 1935 (SA) s 134; Summary Offences Act 1953 (SA) s 41 and s 74A, referred to.
R v Blocki (1991) 56 SASR 250; Wood v Samuels (1974) 8 SASR 465; Stewart v Collins (1992) 58 SASR 291, discussed.

LE v POLICE
[2007] SASC 205
Magistrates Appeals: Criminal
ANDERSON J.
Introduction

This is an appeal against a sentence imposed by a magistrate. The appellant pleaded guilty to, and was subsequently convicted of, one charge of theft, one charge of failing to state her full name and address to a police officer and one charge of unlawful possession of cards and identification reasonably suspected of having been stolen or obtained by unlawful means.
The magistrate sentenced the appellant to 20 weeks imprisonment, which he discounted to 15 weeks on account of the appellant’s guilty pleas.
The appellant is appealing on the grounds that the sentence is manifestly excessive and that the magistrate erred in not suspending the sentence.
Background
The appellant committed all three of these offences on 4 November 2005. The details of the charges to which the appellant pleaded guilty are as follows.
First, the appellant was witnessed stealing a pair of sunglasses and an electric sander from Harris Scarfe in Rundle Mall. It was later discovered that the appellant had also stolen two pairs of shoes and a spoon. The total value of the items stolen by the defendant amounted to $293.65.
The appellant was subsequently charged with theft under s 134 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this charge is 10 years imprisonment.
After being apprehended for this theft, the appellant was questioned by police. During the course of this questioning she provided the police with a false name and address.
She was charged with providing a false name and address to a police officer under s 74A of the Summary Offences Act 1953 (SA). The maximum penalty for this offence is a fine of $1,250 or 3 months imprisonment.
After searching the appellant, the police also discovered two bankcards and an RAA membership card in her possession. These cards were in same name as the false name that the appellant had provided to police. It was reasonably suspected that these cards had been stolen.
This resulted in the respondent being charged with unlawful possession of personal property pursuant to s 41 of the Summary Offences Act 1953 (SA). The maximum penalty for this offence is a fine of $10,000 or 2 years imprisonment.
On 24 April 2007 the appellant successfully applied for bail. By this date she had served 65 days of her 105 day sentence.
Magistrate’s reasons
In his reasons, the magistrate drew attention to the appellant’s long and detailed offending history, in particular in relation to dishonesty offences. Prior to this matter the appellant had been convicted either for larceny or unlawful possession on numerous occasions dating back to 1987.
Ms Misell, counsel for the appellant before the magistrate, submitted that the majority of the dishonesty offences had occurred during a period of time, which ended eight years ago, during which the appellant had been subject to a heroin addiction. At the time of committing the offences the appellant was affected by a mixture of several prescription drugs. The appellant has three children, two of whom are still living at home and one who was pregnant at the time of sentencing.
Having considered these submissions, the magistrate again referred to the appellant’s repeated history of dishonesty offences. The magistrate found that the court could no longer afford to be lenient in light of the appellant’s disregard of previous sentences. His Honour sentenced the appellant to 20 weeks imprisonment, which he then reduced to 15 weeks on account of the appellant’s guilty plea.
The magistrate also declined to suspend the whole of the sentence or a portion of it. His reason for this was the appellant’s history of dishonesty offences, and his view that a custodial sentence was required in order deter the appellant from committing similar offences in the future.
Submissions
In submissions, Mr Mead, counsel for the appellant, submitted that the magistrate erred by placing undue weight on the appellant’s criminal history as well as not fully taking into account the fact that the appellant had begun to rehabilitate herself. He argued that previous non-custodial sentences had assisted this rehabilitation process.
In regard to the appellant’s offending history, Mr Mead submitted that the magistrate had failed to fully appreciate the significant reduction in the frequency of the appellant’s offending since mid-June 1999, which is about the time that the appellant stopped using heroin. He pointed out that the appellant had been convicted of 30 dishonesty offences up until mid-June 1999, while since that time she had been convicted of only two such offences, not including the charges currently before the court.
Mr Mead put to me that the comment by the magistrate that “the main and relevant issue” in the appellant’s case was her “appalling record of dishonesty” supported his submission that the magistrate had become lost in the complexity of her offending history as a whole, rather than appreciating the significant reduction in offending frequency in the past eight years.
Mr Mead also emphasised the impact that the sentence was having on the appellant’s family. He submitted that the appellant’s eldest child had been forced to cease her employment in order to allow her to care for the appellant’s younger children during the appellant’s imprisonment. He referred to R v Blocki (1991) 56 SASR 250 where at 252 King CJ said that the court may take into account the impact that imprisonment may have on the prisoner’s children, and went on to say that it was also relevant to take into account that children may act as a motivation to rehabilitate, should a sentence be suspended.
Other factors raised by Mr Mead included the fact that the items stolen by the appellant had been recovered undamaged at the time of the appellant’s apprehension and the lack of premeditation combined with the fact that the appellant was affected by prescription drugs at the time of the offence.
Mr Lesses, counsel for the respondent, submitted that the sentence of 20 weeks, reduced to 15, was fair and moderate in light of the appellant’s offending history and having regard to the maximum penalty for this offence. He drew attention to the comments by the magistrate to the effect that continued leniency by the courts could not go on indeterminately.
Mr Lesses acknowledged the fact that the frequency of the appellant’s offending had decreased, but discounted the relevance of this and stressed that it was an unavoidable fact that the appellant’s history was littered with dishonesty offences.
In relation to the argument that the magistrate over-emphasised the appellant’s offending history, Mr Lesses submitted that it was not appropriate to break the appellant’s past history down into periods and analyse each period separately. He submitted that if analysed holistically the appellant’s history was of sufficient gravity to justify the magistrate’s concern that leniency by the courts had not sufficiently deterred the appellant from subsequent offending.
Mr Lesses referred to two cases, Wood v Samuels (1974) 8 SASR 465 and Stewart v Collins (1992) 58 SASR 291 to demonstrate why a suspended sentence is not appropriate in this instance. In Wood v Samuels, Walters J said at 468:
In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court’s clemency.
Mr Lesses submitted that this statement by Walters J, when applied to the appellant’s offending history, indicated that she is not an offender who would benefit from this clemency. He argued that the sentence was moderate and fair and accordingly that the magistrate had not erred in not suspending the sentence.
Conclusion
I acknowledge that the frequency of offences committed by the appellant has not been in recent years as regular as at times in the past, as submitted by Mr Mead. She has made considerable progress since she ceased taking heroin.
From my reading of the magistrate’s reasons, it is clear that His Honour placed a strong emphasis on the appellant’s offending history. It is my view that the magistrate did not adequately take into account the appellant’s improved behaviour in recent times, and her progress in rehabilitation.
I accept Mr Lesses’ submission that a sentence of 20 weeks imprisonment, reduced to 15 weeks, was a fair and reasonable sentence for this offence, and an appropriate sentence in the circumstances. The more difficult question is whether the sentence, or any portion of it, should have been suspended.
In my view the magistrate should have suspended either the whole or part of the sentence. I say that because the appellant had made considerable progress in rehabilitating herself following the cessation of her heroin addiction. I also take into account her personal circumstances.
As previously indicated, the appellant has already served 65 days of her 105 day sentence. It is my view for the reasons already given that the appellant has already served an appropriate custodial sentence but in the circumstances should be subject to a bond.
I intend therefore to quash the sentence under appeal and re-sentence the appellant for the balance of the previous sentence, namely, 40 days imprisonment. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), this sentence applies to all of the offences. I will suspend that sentence upon the appellant agreeing to enter into a suspended sentence bond for a period of 18 months.
The appeal is therefore allowed. I will discuss the terms of the bond with counsel.