Leitner v Police No. Scgrg-98-29 Judgment No. S6589

[1998] SASC 6589

LEITNER  v  POLICE

Magistrates’ Appeal

Bleby J

This is an appeal against sentence. On 5 January 1998 the appellant pleaded guilty in the Magistrates Court to one count of simple larceny, contrary to s131 of the Criminal Law Consolidation Act 1935, and one count of attempting to obtain money by false pretences, contrary to s195 and s270A of the Criminal Law Consolidation Act.  A further count of alleging unlawful possession was withdrawn.  The particulars of the offences pleaded to were, in the first place, that on 3 November 1997 at Adelaide, the appellant stole a Sony DAT type tape deck to the value of $1,800 being the property of Cash Converters.  In respect of the second offence the particulars were that on the same day at Torrensville with intent to defraud, he attempted to obtain from Cash Converters, cash to the value of $400 by falsely pretending that he was the owner of a Sony DAT tape deck produced on application for a loan.  The attempt of course is an offence by virtue of the operation of s270A of the Act as it applies to s195. 

The maximum penalty for the offence of simple larceny is a term of imprisonment of five years.  The maximum penalty for the offence of attempting to obtain money by false pretences is a term of imprisonment of two years and eight months, that being two-thirds of the penalty for the principal offence as provided for by s270A, sub-s3, para (c) of the Act. 

Pursuant to s18(a) of the Criminal Law (Sentencing) Act 1988 the magistrate imposed one penalty for both offences. He sentenced the appellant to three months imprisonment. As the offences were committed while the appellant was on parole, the sentence was made cumulative upon the balance of a former sentence, amounting then to one year eight months and twenty-one days, which the appellant was required to serve, pursuant to s75 of the Correctional Services Act 1982. The net practical effect of that was that the appellant received a head sentence of one year, eleven months, and twenty-one days. The learned magistrate set a non-parole period of five months, to operate from the date of the sentencing, which was 5 January 1998.

The sole ground of the appeal alleges that the sentence is manifestly excessive.  There is no complaint about the head sentence itself.  The ground of appeal goes to the length of the non-parole period. 

With respect to the first count the brief undisputed facts were that at about 10.45 am  on Monday, 3 November, the manager of the Hindley Street Branch of Cash Converters observed the appellant walking out of the store carrying what appeared to be a black tape deck.  He assumed at that time that a legitimate purchase had been made.  However he was later informed by a fellow staff member that a Sony DAT tape deck of a particular model and bearing an identified serial number which was valued at $1,800, had been taken from the store without any permission being given, and without the appropriate payment having been made. 

The substance of the second count was that at about 12.25pm on the same day a sales assistant employed at the Torrensville Branch of Cash Converters was approached by the appellant, carrying the same DAT tape deck, and the appellant asked that a loan to the value of $400 be made in his favour against the security of the tape deck.  Following a request that he provide some identification the appellant handed the sales assistant a number of cards which included a Credit Union card bearing the name of Chris Leitner.  Shortly thereafter and whilst in the act of completing the necessary paperwork, the sales assistant was handed a fax which detailed the particulars of the theft of the tape deck from the Hindley Street branch.  He noted that the model and serial number on the tape deck which had been presented to him were the same as on the tape deck reported to have been stolen.  The police were notified and after some preliminary investigations had taken place, the appellant was conveyed to the Plympton Police Station for questioning.  He was arrested a short time later.  He was at all times cooperative with the police and he pleaded ‘guilty’ at the earliest opportunity. 

The appellant is a 39 year old man.  He was married in the late 1980s and has a child, although he and his wife separated in 1991.  He does not have an unblemished record, having five previous convictions for larceny, and two for false pretences.  He also has convictions for other offences, the most serious being for armed robbery.  Those other offences do the appellant no credit of course.  At the time that the earlier offences were committed the appellant was suffering from an addiction to heroin, having been apparently introduced to that drug in 1977, and it may well be that the need to service that addiction was responsible for some, if not all of that prior criminal behaviour.  However in recent times it seems that the appellant has made considerable progress towards overcoming his addiction and it seems that his most recent offences were not committed as a result of the need to obtain money to buy drugs. 

At the time the offences were committed the appellant had moved away from living with his sister because of a perceived threat that a person to whom he had, it was alleged, owed money for drugs from an earlier occasion, was attempting to recover that from him.  In the flat to which he moved he had recently been burgled with the result that he was left in a rather parlous financial position.  He did not apparently carry household contents insurance. 

He claimed, and the magistrate appears to have accepted, that he resorted to this crime with a view to overcoming the financial pressures that had been thrust upon him.  The appellant has a reasonably good work history, having commenced work at the age of 18.  It seems that he then enjoyed continuous employment until about November 1993, when his serious round of offending commenced.  Since that time he has either been imprisoned or been engaged in full time study.  In relation to the latter I note that in 1995 he successfully completed a Certificate in Community Services.  The appellant has also signalled an intention to undertake further study. 

Through his counsel he apparently acknowledged to the magistrate the stupidity of his actions, and was remorseful for them. 

The learned magistrate sentenced the appellant on the basis at least of one slight factual error which I will deal with first.  That is that he said that the appellant had attempted to sell the tape deck at the Torrensville shop, whereas the prosecution case was that he was merely seeking to borrow money on the security of the item.  However I do not think that that error is sufficient to vitiate the sentencing process, given other features relating to that process, and the argument that was addressed before me on the appeal. 

The appellant was sentenced on the basis that he had committed, in the words of the magistrate, a remarkably deliberate and cheeky crime, albeit one that was motivated by financial hardship. 

Deliberate and apparently cheeky it may have been, but it was remarkably stupid as it was almost doomed to failure, and was asking for immediate detection.  But it was one which the appellant committed whilst on parole, rendering it even more serious.  Indeed the magistrate noted that this was the third time that the appellant had offended whilst on parole. 

He said during the course of his remarks as to penalty:

“It is a serious matter when anyone commits further offences while on parole.  A person’s status while on parole is that they are under sentence of a court, but allowed back into the community to serve out part of their sentence under strict supervision and on the basis they commit no further offences.  If they commit further criminal acts as the defendant has done, they can expect to go back to jail again.” 

With that, I respectfully agree.  Indeed as the former Chief Justice, in delivering the judgment of the Court of Criminal Appeal said in the case of R v Ierace, (1990), 158 LSJS, 340 at 342:

“The fact that an offence is committed whilst the offender is on parole is a circumstance which a sentencing judge is entitled to take into account.  One of the purposes of punishment is to deter the particular offender from continuing to offend.  If previous punishments have failed to achieve that end, it may be necessary to increase the level of punishment for that purpose.  The fact that an offender is prepared to commit an offence notwithstanding that he is under the sanction of parole may lead the sentencing judge to the conclusion that a stiffer penalty than would otherwise have been imposed is necessary to operate as a deterrence to that particular offender.  It is important however, that a judge who is taking this factor into account should take care that the weight which he gives to the fact that the offender was on parole is no more than is necessary for the purpose of personal deterrence.  There should be no element of double punishment for the original offence, because the offender will have to serve the balance of the original sentence.”

The offences which the appellant committed and which are the subject of this appeal, were as I said, the third occasion on which the appellant committed offences whilst on parole.  That being the case, the factor of deterrence, both personal and general was, I agree, of some importance. 

The principal argument of the appellant on this appeal was that the non-parole period of five months determined by the magistrate was too long. 

The magistrate had accurately, apart from the one element which I earlier mentioned, summarised the circumstances of the offence and the outline of the prior history of the appellant.  Having pointed out that this was the third occasion on which he had committed a further criminal offence and having also pointed out that on the second occasion the court had imposed a non-parole period of three months, he then proceeded to sentence the appellant on this occasion to three months imprisonment, to which he added the then unexpired portion of the term of the previous sentence, that is of one year, eight months and twenty-one days.  He then said:

“In setting the non-parole period in my view, he should serve some slightly longer period of time as part of the non-parole period, to also reflect the concern of the sentencing court that he continues to offend whilst on parole.  In all the circumstances, I set a non-parole period of five months.”

He then proceeded to set it from the date of sentencing.  Precisely what the magistrate meant by the phrase, “A slightly longer period of time”, is open to some debate.  It was suggested by counsel for the appellant that the magistrate intended that the total non-parole period should be five months.  However, taking into account the fact that he had been in custody for some two months prior to sentencing, this meant that in fact the non-parole period was effectively seven months. 

It was suggested that the magistrate may have overlooked that and that he had in fact intended the total period to be five months.  I do not believe that it is possible to read that into the sentencing remarks of the learned magistrate.  In reciting his previous history the magistrate had specifically referred during his sentencing remarks, to the fact of the earlier occasion when the one month sentence of imprisonment had been imposed for larceny, and that a previous three month suspended sentence was also ordered to be served.  He referred to the fact that the sentences were to be served cumulatively upon the then outstanding balance of parole and that a new non-parole of three months had been set. 

He was therefore fully conscious of the fact that the previous non-parole period was three months.  He also specifically referred to the fact that the appellant had been in custody from 3 November 1997 to 5 January 1998, the date of the sentencing.  It would be unreasonable, I think, to suggest that having referred specifically to that period in custody, up to and including the day of sentencing, that the magistrate had, in some way, overlooked that in determining that the non-parole period should be five months from the date of sentencing. 

I therefore conclude that it was the magistrate’s intention, based on the sentencing remarks that he gave, that he should indeed, be subject to a non-parole period of five months from the date of sentencing, or if it was taken from the date of being taken into custody, a period of approximately seven months. 

I have already referred to the fact that a crime committed whilst on parole is a serious matter and will be dealt with more seriously by the courts.  I have referred to the view that the magistrate took of that, and that that is supported by other authority. 

The learned magistrate, however, besides taking into account the fact that it was the third time that this appellant had committed an offence whilst on parole, nevertheless took into account also, in the appellant’s favour, the fact that he had made real inroads into overcoming his drug problem, and also took into account the fact that the offending on this occasion, whilst not insignificant, did not represent what he called, “a reversion back to his serious offending in 1994, of armed robbery”.  It had quite different motivations. 

In my opinion, it was open to the learned magistrate to have imposed a heavier sentence and a heavier non‑parole period than he did, and still to have remained within the permissible range of the sentencing discretion.  In my opinion, the non‑parole period fixed was necessary, but still allowed some scope for the appellant’s continued rehabilitation, and I trust, and indeed hope, that that will continue.  But I cannot, in those circumstances, describe the sentence as being manifestly excessive.  Therefore in my opinion, the appeal should be dismissed. 

The order of the court will be that the appeal is dismissed and there will be no order as to costs.