Lindsay v Police No. Scciv-03-1124

[2003] SASC 339

LINDSAY v POLICE
[2003] SASC 339

Magistrates Appeal: Criminal

1. MULLIGHAN J               The appellant appeals against the non-parole period of six years and six months fixed by a learned Magistrate on 14^th July 2003 following sentences of imprisonment imposed on the ground that it is manifestly excessive.

2. It is necessary to mention the history of the offending of the appellant relevant to the issue of this appeal. On 5^th December 1996 the appellant was sentenced by a learned Magistrate to imprisonment for six years upon being convicted, upon his pleas of guilty, of 58 offences of breaking and entering premises and committing offences, and attempting to break and enter premises to commit offences, as such offences were then described.  Three of these offences occurred in 1995 and the remainder occurred between 2^nd January 1996 and 10^th July 1996. A non-parole period of three years to commence on 7^th August 1996 was fixed.  The appellant was then aged 20 years.

3. On 30^th October 1997 the appellant escaped from Cadell Prison.  He had been serving his sentence for a period of 1 year, 2 months and 23 days. Between 19^th December 1997 and 22^nd January 1998, he committed eight offences of breaking and entering whilst at large.  He was returned to custody on 10^th February 1998. On 27^th August 1998, he was sentenced in the District Court to imprisonment for a further period of five years for these offences, and for the offence of escaping from custody. This sentence had to be served cumulatively upon the unexpired portion of his previous sentence, which was a few days less than four years and three months. A new non-parole period of three years to commence on 27^th August 1998 was fixed.

4. The appellant was released on parole on 24^th August 2001. At that time the unexpired part of his sentence was six years and 17 days.

5. The appellant committed many offences during the period from 29^th April 2002 to 23^rd September 2002. He was charged with having on 29^th April 2002 committed an offence of receiving property to the value of $2,200, and also the offences of failing to comply with a request of a police officer to stop a motor vehicle, driving a motor vehicle at a speed and in a manner dangerous to the public, driving a motor vehicle on a road in contravention of a condition endorsed upon his driver’s licence and failing to truly answer questions of a police officer.

6. At about 8.30 pm on that day, police officers observed a motor vehicle at Mile End. The appellant was sitting in the driver’s seat. The police officers stopped their vehicle alongside this vehicle. The appellant drove away and did not stop upon the request of the police. A high speed chase followed during which the appellant disobeyed stop signs and speed limits, and failed to give way to another vehicle. He eventually lost control of the vehicle and collided with a kerb and a sign post.

7. The police approached the driver’s side of the vehicle. The appellant reversed the vehicle, spinning the wheels. The police officers had to jump out of the way to avoid being struck. The appellant drove the vehicle along a suburban street with the police officers in pursuit. The front driver’s side tyre was deflated and thick smoke and sparks emanated from the wheel. The appellant disobeyed a stop sign, drove on the wrong side of the road, travelled at not less than 90 kilometres per hour, failed to give way to other vehicles and drove in a dangerous manner. The vehicle came to rest after colliding with a kerb and the appellant was apprehended. Property found in the vehicle was the subject of the receiving charge. The appellant was arrested and released on bail the following day.

8. On 13^th May 2002 the appellant breached a bail agreement in that he had not complied with a residence condition in the agreement and he was charged with the offence of breaching the bail agreement.

9. He was also charged that on 21^st May 2002 he committed offences by entering at a residence at Cherry Gardens and stealing a considerable amount of property to the value of $14,501. He was further charged that on 25^th September 2002 he committed offences by entering a residence at Aberfoyle Park and stealing $12 in cash and property to the value of $427.00.

10. The appellant was charged that between 21^st May 2002 and 17^th September 2002 he committed seven serious criminal trespass offences in residential premises. It was alleged that in each case he smashed or forced open a window to gain entry to the premises. Property amounting to $44,166 was stolen from these premises. At one of the premises, the appellant stole a set of car keys.

11. He returned to those premises and stole the motor vehicle to which the keys related. This vehicle was located on 20^th September 2002 and DNA matching the accused was found on bloodied bandages taken from the vehicle.

12. The appellant was also charged with entering a residence at Trott Park as a trespasser on 10^th September 2002 and stealing property to the value of $600, and on 13^th September 2002 entering a residence at Trott Park as a trespasser and stealing cash to the amount of $120 and property to the value of $3,230.96.

13. At about 5.00 am on 23^rd September 2003, the appellant was caught in the act of breaking into a motor vehicle outside a residence. There was a struggle between the appellant and the son of the person who found him breaking into the vehicle. The appellant made threats and caused injuries to the son. The police were called and the appellant was arrested. He had travelled to these premises in a stolen vehicle which had been repainted and fitted with stolen motor vehicle registration plates. He was charged with one count of interfering with a motor vehicle, one count of larceny of property to the value of $955, two counts of assault, one count of receiving a motor vehicle to the value of $5,500 and one count of receiving two registration plates to the value of $40.

14. On the evening of 22^nd September 2002 police officers raided the house where the appellant was living at Reynella. Stolen property to the value of about $50,000 was found at these premises most of which was locked in the appellant’s bedroom. The appellant was charged with 16 counts of receiving, which related to some of this property, and was of the value of about $11,000.  All of this property had been stolen during serious criminal trespass offences in residential premises, the majority of which occurred in August and September 2002.

15. Matters of aggravation are that the appellant was on parole when he committed these offences and when many of the offences were committed he was on bail.

16. On 29^th May 2003 the appellant pleaded guilty to 26 criminal offences and on 14^th July 2003 he pleaded guilty to the 16 counts of receiving, the serious driving charges and some other offences. Upon his pleas of guilty, the prosecution did not proceed with other charges. He co-operated with the police and the learned Magistrate accepted that he was genuinely remorseful and contrite.

17. The learned Magistrate sentenced the appellant to a total head sentence of imprisonment for four years and eight months. He gave considerable weight to the totality principle. In R v Delphin (2001) 79 SASR 429 the Full Court held that in the ordinary case of a single serious criminal trespass in a residence where the intention upon entry is larceny, generally a penalty for a first offence should be in the order of 20 to 24 months upon a plea of guilty. In all, the appellant committed seven such offences. Obviously a sentence of 20 to 24 months for each offence to be served cumulatively would be disproportionate to the totality of the appellants’ offending. With respect to the 16 offences of receiving, the learned Magistrate imposed a total sentence of imprisonment for 12 months. In his remarks on sentencing, he acknowledged that he had applied the totality principle and that if he had imposed sentences which each offence justified to be served cumulatively, the consequence would have been a crushing sentence from which the appellant would be unlikely to recover. The learned Magistrate convicted the appellant without further penalty for some offences. For some groups of offences he imposed one sentence of imprisonment. He also imposed fines and ordered that the appellant be disqualified from holding or obtaining a licence to drive a motor vehicle, which is not relevant to this appeal.

18. The learned Magistrate made it clear that the sentences imposed reflected a 20 per cent discount. He also took into account the period of nine months which the appellant had already been in custody. The sentence is to be served at the expiration of the unexpired sentence of five years, four months and 12 days, resulting in a total sentence of 10 years and 12 days.

19. A pre-sentence report from a Community Corrections Officer of the Department for Correctional Services was before the learned Magistrate. The appellant has had a troubled life. He was forced by his mother to leave home when he was aged 16 years and he has had no contact with her ever since. He has had no contact with his stepbrothers or grandparents.

20. While at large after escaping from prison, the appellant formed a relationship with a young woman which continued for some years, even after he returned to prison, but this ended some years ago.  The appellant completed year 12 after leaving home and has completed computing courses whilst in prison. He had periodic employment from time to time when not in prison. At one stage, after his escape from prison, he abused particular drugs. When the appellant was on parole his response to his parole officer was very good. He did not miss appointments and cooperated appropriately. Of course, during this time he committed many offences unbeknown to the parole officer.

21. The community service officer reported that the appellant had accepted responsibility for his offending and that he understood the effect of his trespass offences upon the victims.

22. Prior to committing the offences for which he was sentenced and which relate to this appeal, the appellant had a long history of offending. It is unnecessary for present purposes to set out all of his past offences. It is sufficient to say that his offending commenced in 1995 and he had progressed to breaking and entering offences which he committed frequently when not in prison. His past record includes over 60 convictions for breaking and entering or attempted breaking and entering offences.

23. The learned Magistrate said that he found the fixing of a new non-parole period a difficult exercise. He took into account the time which the appellant had spent in custody and fixed a non-parole period of six years and six months to commence on the day of sentencing, namely 14^th July 2003. He should be eligible to apply for parole on 15^th January 2010 when he will be 34 years of age.

24. It was submitted that the non-parole period is manifestly excessive. Since he was imprisoned on 7^th August 1996, he will have been serving sentences for 12 years and one month by the time he may apply for parole. It is further submitted that in consequence of his repeated offending and the long terms of imprisonment, there is a serious risk that he will become institutionalised to the extent that there will be no hope of rehabilitation.

25. I have mentioned features of his background which may provide a reason for his extensive criminal conduct.

26. In fixing the non-parole period, the learned Magistrate had to consider the minimum period of time which the appellant must spend in prison in order to satisfy the punitive, deterrent and preventative purposes of punishment: The Queen v Stewart (1984) 35 SASR 477. As was also observed in that case, general deterrence is an important factor in fixing the non-parole period.

27. The past record of offending by the appellant is appalling. There is a real need to protect the community from the conduct of the appellant. Rehabilitation is a matter which must be balanced with the principles of sentencing which I have mentioned, but in a case such as the present case, it cannot be the dominant consideration.

28. There is no reason to conclude that the non-parole period is excessive. The head sentences are lenient in all the circumstances. The total of them is less than five years. The non-parole period had to be fixed in the context of the substantial period of the unexpired sentence.

29. Whilst it may readily be understood that a person in the position of the appellant at his age may feel a sense of hopelessness at having to spend the next six years or so in prison, should still be a relatively young man when released and will have the opportunity of living a useful life. Hopefully, he will use his time in prison usefully by obtaining qualifications of skills which should be useful to him upon his release.

30. The non-parole period fixed by the learned Magistrate was fully justified and, in my view, on the lenient side in all the circumstances. I dismiss the appeal.