MADDEN v Police - [2005] SASC 304

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MADDEN v POLICE
Judgment of The Honourable Justice White
10 August 2005
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - CUMULATIVE OR CONCURRENT SENTENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE
Appeal against sentence imposed by Magistrate - appellant pleaded guilty to multiple offences dating from February to October 2004 - appellant on parole at time offences committed - Magistrate fixed a single sentence of two years imprisonment pursuant to s 18A of Criminal Law (Sentencing) Act 1988 - Magistrate ordered sentence to be served at expiry of unserved period of parole from previous sentence - whether inability of appellant to participate in Mental Health Diversion Program and Drug Court Program was a relevant consideration in sentencing process - held sentence was not manifestly excessive - fact that offences were committed on parole was an aggravating factor - appeal dismissed.
Criminal Law Consolidation Act 1935 s 85, s 134, s 169; Criminal Law (Sentencing) Act 1988 s 18A; Summary Offences Act 1953 s 41; Bail Act 1985 s 17; Correctional Services Act 1982 s 75, referred to.
R v Bartels (1986) 44 SASR 260; R v Czubak [2005] SASC 287; R v Slater (1984) 36 SASR 524; R v Malesevic [1999] SASC 321, (1999) 204 LSJS 32; R v Allen [1999] SASC 346; R v Nguyen [2004] SASC 405; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; Wessling v Police [2004] SASC 72, (2004) 88 SASR 57; R v Tran [2000] SASC 431, (2000) 211 LSJS 479; R v Becker [2005] SASC 186; R v Delphin [2001] SASC 203, (2001) 79 SASR 429; R v Smith [2002] SASC 330, (2002) 224 LSJS 134; R v McFarlane [1999] SASC 129; R v Creed (1985) 37 SASR 566; R v Bruce and Hollick [1998] SASC 6831, applied.

MADDEN v POLICE
[2005] SASC 304
Magistrates Appeal

WHITE J: This is an appeal against a sentence imposed in the Magistrates Court on 23 June 2005.
The appellant was sentenced to imprisonment for a period of two years for a number of offences committed in 2004. The appellant had been on parole at the time of each offence. The unserved portion of the previous sentence in respect of which the appellant was on parole was one year, nine months and 22 days. Thus the effect of the sentence of the Magistrate was that the appellant had to serve three years, nine months and 22 days in prison. The Magistrate fixed a non-parole period of two years and six months.
There is one ground of appeal only, namely, a complaint that the sentence fixed by the Magistrate is manifestly excessive.
The Offending in 2004
Following a sentence imposed on the appellant in the Holden Hill Magistrates Court on 20 January 2003, the appellant was released on parole on 23 December 2003. The offending for which the appellant was sentenced by the Magistrate commenced approximately seven weeks later.
On the night of 5 February 2004, the appellant smashed the front window of a medical clinic and entered it. He stole a safe valued at approximately $500, together with the contents of the safe ($1,200 in cash and approximately $1,800 in cheques). Although each of the cheques was cancelled and no loss was occasioned thereby, no recovery was made of the cash. In addition, significant damage was caused to the clinic.
Two nights later, the appellant stole two surveillance cameras from a branch of the Commonwealth Bank. The surveillance cameras were valued at approximately $3,500 and were later found in the appellant’s home.
One week later (on 16 February 2004), the appellant broke into some crash repair premises. He then stole two vehicles, one valued at $2,000 and the other at $28,000. In addition, the appellant stole some keys. Both vehicles and the keys were later recovered.
On 17 February 2004, whilst investigating the theft of the two surveillance cameras from the Commonwealth Bank, police found in the appellant’s possession a Bank SA Visa card in the name of another person, a black cash box which had been smashed open, together with another box and some cash. Although initially claiming that the cash had been won on a poker machine, the appellant later pleaded guilty to the unlawful possession of each of those items.
The appellant was arrested on 17 February 2004 and remained in custody until 23 March 2004. On that day, he was released on bail under home detention conditions.
The appellant’s next offending occurred on 28 September 2004. He committed a breach of the home detention conditions of his bail by being present, without lawful excuse, at premises other than his home. The appellant was detained in custody from 28 September to 1 October 2004, when he was again released on home detention bail conditions.
Next, the appellant committed three offences on 6 October 2004. The appellant was observed kicking and punching a Telstra public telephone box in Hindley Street causing damage to it. He was arrested and taken to the City Watch House, where he was placed in a padded cell because of an assessment that he was at risk of hurting himself. Whilst in the cell, he behaved violently, damaging the cell itself. In respect of the damage to the Telstra telephone box, and to the cell in the City Watch House, the appellant pleaded guilty to the offences of unlawful damage, contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (“CLCA”). In addition, the appellant’s presence in Hindley Street constituted a further breach of the home detention conditions of his bail.
The appellant committed a further breach of his home detention bail conditions on 31 October 2004 by attending at the premises of Foodland at Henley Beach. The appellant was then arrested and remained in custody until sentenced by the Magistrate on 23 June 2005. He pleaded guilty to each of the offences which I have outlined above.
The Appellant’s Criminal History
The appellant has an extensive criminal history as an adult. On 5 March 1999 he was fined $500 and $200 respectively in respect of two offences of breaching bail conditions.
On 17 January 2000, the appellant appeared again in the Adelaide Magistrates Court in respect of 11 offences. Those offences included three offences of breaking and entering a building and committing an offence, one offence of driving a motor vehicle without the owner’s consent, two offences of providing a false name and address to the police, one offence of assaulting police with the intention of resisting lawful apprehension, two offences of unlawful possession, one offence of larceny and one offence of unlawfully damaging property. Those offences occurred over an 11-month period between November 1998 and October 1999. The appellant was sentenced to imprisonment for three years with a non-parole period of 14 months, each of which was to be taken to have commenced on 10 October 1999.
The appellant was also convicted at that time of two offences of carrying an offensive weapon, one offence of unlawful possession, one offence of damaging property unlawfully and one offence of providing a false name and address to the police, but no penalty was imposed in respect of those offences.
It appears that the appellant was released on parole shortly after 10 December 2000. Shortly after his release he committed seven further offences for which (with an earlier offence of damaging property unlawfully) he was sentenced in the District Court on 28 August 2001 to imprisonment for three years. That offending included two offences of aggravated serious criminal trespass in non-residential premises, one offence of larceny, one offence of driving a motor vehicle without the owner’s consent, two offences of unlawful possession and two offences of failing to comply with the terms of a bail agreement.
On 20 January 2003, the appellant was sentenced in the Holden Hill Magistrates Court for another offence of non-aggravated serious criminal trespass in non-residential premises. That offence had been committed on 22 January 2001 but had not been included in the offences for which he was sentenced by the District Court. The appellant was sentenced to imprisonment for 10 months for this offence. His non-parole period was extended. As already noted, the appellant was released on parole on 23 December 2003.
Appellant’s Personal Circumstances
The appellant was born in August 1980. He was therefore aged 23 and 24 at the time of the offending for which the Magistrate was sentencing him on 23 June 2005. He left school after completing Year 9. His last employment was at the age of 17 years.
The Magistrate was provided with three reports on the appellant assessing his suitability for the Magistrates Court Diversion Programs. The authors of those reports assessed the appellant as being unsuitable for participation in either the Mental Health Diversion Program or for management in the Drug Court Program.
The reports before the Magistrate showed that the appellant had a history of use of illicit drugs. It appears that much of his offending may have been related to the use of those drugs. It is also apparent that the appellant suffers from a number of mental illnesses which have been diagnosed variously as drug induced paranoid psychosis, adjustment disorder and bi-polar defective disorder. He has had numerous hospital admissions for drug induced psychoses.
Earlier in 2005, two other Magistrates determined that the appellant was not suitable for referral for participation in the Mental Health Diversion Program or in the Drug Court Program. Although the Magistrate was not asked by the appellant’s counsel to re-visit those decisions, the Magistrate did re-consider the question. He described the appellant as “a poor candidate for meaningful participation in the Drug or Diversion Court Program”. The Magistrate reached this conclusion having regard, in particular, to the appellant’s history of breaching parole and non-compliance with conditions of bail. He considered it unlikely that the appellant would comply with the court ordered supervision which participation in those respective programs entailed. It was not suggested on appeal that the Magistrate’s conclusion in this respect was wrong.
The Sentence of the Magistrate
The Magistrate commenced his determination of an appropriate sentence by first determining notional sentences which would be appropriate in respect of each group of offences if a single sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, was fixed for that group. In fixing the notional single sentence, the Magistrate deferred consideration of a deduction on account of the appellant’s pleas of guilty.
In respect of the offending on 5 February 2004 (the serious criminal trespass into the medical clinic, in contravention of s 169(1) of the CLCA; the larceny of the safe, cash and cheques, in contravention of s 134(1) of the CLCA; and the damage to the clinic, in contravention of s 85(3) of the CLCA) the Magistrate said that a single sentence of 18 months imprisonment would be appropriate.
In respect of the theft of the two surveillance cameras from the Commonwealth Bank on 7 February 2004, in contravention of s 134(1) of the CLCA, the Magistrate said that a single sentence on nine months imprisonment would be appropriate.
In respect of the offences committed on 16 February 2004, (the serious criminal trespass into the crash repair premises, in contravention of s 169(1) of the CLCA, the theft of the keys and two vehicles, in contravention of s 134(1) of the CLCA) the Magistrate said that a single sentence of 24 months imprisonment would be appropriate.
In respect of the three offences of unlawful possession of the items found in the appellant’s possession on 17 February 2004, [1] the Magistrate considered that a sentence of six months imprisonment would be appropriate.
[1] Summary Offences Act 1953, s 41(1).
In respect of the two offences of damaging property on 6 October 2004,[2] the Magistrate considered a single sentence of imprisonment for one month was appropriate.
[2] Criminal Law Consolidation Act 1935, s 85(3).
Finally, in respect of the three offences of failing to comply with bail agreements,[3] the Magistrate considered a sentence of imprisonment of two months to be appropriate.
[3] Bail Act 1985, s 17.
The Magistrate considered that each of those notional sentences of imprisonment should be served cumulatively. He did so because he considered that each represented either a separate incursion into crime or was a discrete group of offences. It was not submitted that the Magistrate was wrong in this respect. The aggregate of the notional sentences was 60 months imprisonment. The Magistrate reduced that notional sentence to 48 months on account of the appellant’s pleas of guilty. The Magistrate then said:
The sentence of 48 months in my view is a disproportionate sentence when the totality of your offending is examined. I reduce that to three years and three months.
Before determining the final sentence, the Magistrate reduced the period of three years and three months still further on account of the periods which the appellant had spent in custody and on home detention bail since 17 February 2004. It was appropriate for the Magistrate to take account of the periods spent in custody. As the offences committed by the appellant in 2004 had been committed whilst he was on parole, the appellant became liable, upon imposition by the Magistrate of a sentence of imprisonment in respect of those offences, to serve the unexpired portion of the sentence in respect of which he was on parole.[4] That portion was to be calculated by reference to the earliest date on which an offence for which the appellant was being sentenced had been committed.[5] That was 5 February 2004. It was agreed before the Magistrate that the unexpired portion of the earlier sentence as at 5 February 2004 was one year, nine months and 22 days. That period could not be reduced on account of the period spent in custody by the appellant since 5 February 2004.[6] However, account had to be taken in some way of the period which the appellant had spent in custody at various times in 2004 and 2005 in respect of the 2004 offending[7] and it was open to the Magistrate also to take account of the period which the appellant had spent on home detention bail.[8] Hence, it was appropriate for the Magistrate to take account of the period in custody and, in his discretion, the periods which the appellant had spent on home detention bail.
[4] Correctional Services Act 1982, s 75(1).
[5] Ibid, s 75(1).
[6]Correctional Services Act 1982, s 75(1); R v Bartels (1986) 44 SASR 260; R v Czubak [2005] SASC 287.
[7]R v Slater (1984) 36 SASR 524 at 530, per King CJ; R v Bartels (1986) 44 SASR 260 at 267, per White J.
[8]R v Malesevic [1999] SASC 321 at [8], (1999) 204 LSJS 32 at 33, per Doyle CJ; R v Allen [1999] SASC 346 at [16], per Duggan J; R v Nguyen [2004] SASC 405 at [38], per Bleby J.
The Magistrate calculated that the appellant had spent a total of nine months and four days in custody and seven months and six days on home detention bail. On account of those periods, he reduced the period of three years and three months to two years imprisonment. In effect, the Magistrate gave the appellant credit for nearly the whole of the period spent on home detention bail. This was very favourable to the appellant as ordinarily it is not appropriate to equate periods on home detention with periods spent in custody.[9] The sentence of two years was imposed on the appellant as a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act.
[9] R v Allen [1999] SASC 346 at [16], per Duggan J.
The Magistrate declined to suspend that sentence. He said:
You have an appalling criminal record and your prospects for rehabilitation are not good.
The Magistrate ordered that the sentence of two years imprisonment should commence at the expiry of the unserved period of the previous sentence. Hence the total period to be served by the appellant in custody was three years, nine months and 22 days.
The Magistrate fixed a non-parole period of two years and six months. In that respect he said:
As far as your non-parole period is concerned I take into account all the personal factors that I have mentioned already. I also have to take into account, of course, the gravity of your crimes. Your prospects for rehabilitation are not good, but I do take into account your aspirations to do better and as well as that in my view a substantial period of supervision in the community is called for. Again, I am mindful of the fact that you have spent time in custody and on home detention which I took into account in fixing the head sentence. A non-parole period of course has to be fixed in relation to the head sentence taking into account all the matters that I have mentioned, including time in custody and on home detention. In this regard I adopt the approach sanctioned in R v Malesevic[10]. …
[10] [1999] SASC 321, (1999) 204 LSJS 32.
The Submissions on Appeal
It is of course well established that this Court interferes with the exercise of the sentencing discretion only when it is satisfied that the sentencing court has acted upon some wrong principle, or allowed irrelevant considerations to influence it, or has failed to have regard to a relevant consideration, or alternatively, when even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion fully.[11]
[11]House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 324-5 [3]-[4], per Gleeson CJ and Hayne J; Wessling v Police [2004] SASC 72 at [19], (2004) 88 SASR 57 at 60-1.
Mr McFarlane, who appeared for the appellant, made five principal submissions in support of the appeal. First, it was submitted that the description by the Magistrate of the appellant’s criminal record as “appalling” was inapt and had coloured his approach to the sentence. Whilst the appellant accepted that he had an extensive criminal record as an adult, it was submitted that it did not warrant the adjective “appalling”. I do not consider that there is any merit in this submission. In a colloquial sense, the word “appalling” is used as a synonym for “very bad”. That, in my opinion, was an appropriate description of the appellant’s record. It seems likely that the Magistrate was using the word “appalling” in that sense. Earlier, he had referred to the appellant’s criminal history as “extensive”. In my opinion, no error of the Magistrate is shown in this respect.
Secondly, it was submitted that the Magistrate had failed to place any or sufficient weight on the fact that the authors of the reports concerning the appellant’s suitability for participation in the Mental Health Diversion Program had considered him unsuitable for participation on the grounds that he was then on parole. That being so, he did not meet the criteria for participation and had been denied the opportunity to participate in that Program. As I understood it, the submission was that this should have been reflected in some way in the Magistrate’s sentence. In my opinion, that submission should be rejected. The Magistrate made it quite plain that he did not regard himself as bound by the reports of the assessors, or, for that matter, by the earlier decision of another magistrate in relation to participation in the Mental Health Diversion Program and considered the matter for himself. Having considered the matter afresh, the Magistrate concluded that the appellant was a poor candidate for meaningful participation in the Program. Thus, this was not a case of the appellant being denied participation in a program simply because he was on parole at the time of his assessment. In the circumstances of this case, the inability of the appellant to participate in the Mental Health Diversion Program was not a relevant consideration in the sentencing process.[12]
[12]R v Tran [2000] SASC 431at [29], per Olsson J, at [40] per Debelle J, (2000) 211 LSJS 479 at 483-4, per Olsson J, at 485 per Debelle J; R v Becker [2005] SASC 186 at [43]-[48].

The appellant was also assessed as being unsuitable for participation in the Drug Court Program. It was not submitted that the conclusion of the Magistrate in that respect was wrong, but again, it seemed to be submitted that account should have been taken in some way in the fixing of his sentence of his lack of eligibility to participate in that Program. This submission has no merit. In the circumstances of this case, the appellant’s lack of suitability for the Drug Court Program was not a relevant consideration to the sentencing decision.[13]
[13] Ibid.
Thirdly, it was submitted that the Magistrate was in error in considering that the appellant’s conduct constituting one of the offences of breach of a bail term included the removal by him of the home detention electronic monitoring device. With the consent of the respondent, I was provided, on the appeal, with a copy of a Bail Inquiry Report dated 30 September 2004. It is not clear whether this report was before the Magistrate at the time of sentencing. The Bail Inquiry Report indicates that because of the appellant’s compliance with the home detention conditions, the electronic monitoring had been removed on 22 July 2004. Thus, it was submitted that the Magistrate was in error in considering that the appellant had himself removed the device.
I consider this mistaken apprehension by the Magistrate to be of small moment. It is unlikely to have influenced his decision. The conduct relied upon by the prosecution for each of the breaches of bail was the appellant’s absenting himself, unlawfully, from the premises at which he was required, by the terms of each bail agreement, to remain and not the removal of the electronic bracelet. The Magistrate considered each breach to have been deliberate with each of the last two offences occurring after the appellant had been granted fresh bail following his arrest for the first breach of bail. I do not consider that the Magistrate’s decision can be impugned on this account.
The submission that the head sentence imposed by the Magistrate for the offending in 2004 was manifestly excessive was argued somewhat faintly. I reject the submission. It cannot be said that the individual sentences proposed by the Magistrate for each group of offences was excessive. The most serious of the offences were the offences of serious criminal trespass committed on 5 February 2004 and 16 February 2004. The maximum penalty for the offence of serious criminal trespass in a non-residential building is 10 years imprisonment.[14] The maximum penalty for the offence of theft is also 10 years imprisonment.[15] Even making full allowance for the appellant’s personal history, the circumstances of the offending, and the appellant’s criminal record required significant sentences of imprisonment to be imposed for those offences alone.[16] There were, in addition, the other offences for which the appellant was sentenced. It was not to be overlooked that each of the offences was committed whilst the appellant was on parole. That was an aggravating factor.[17]
[14]       Criminal Law Consolidation Act 1935 s 169(1).
[15]       Criminal Law Consolidation Act 1935 s 134(1).
[16]R v Delphin [2001] SASC 203, (2001) 79 SASR 429; R v Smith [2002] SASC 330, (2002) 224 LSJS 134.
[17]       R v McFarlane [1999] SASC 129 at [10], per Doyle CJ, (1999) 105 A Crim R 121 at 123.
The Magistrate gave comprehensive remarks on sentencing. He did not overlook any of the circumstances which were favourable to the appellant. The Magistrate said:
… You have had a difficult childhood and adolescence. It appears that you may have had ADHD and Tourette’s syndrome as a child, although they appear to have been resolved, as well as learning difficulties. It seems to me that in all the circumstances you may not have developed the necessary skills to resist the temptations to abuse substances, the necessary skills to secure gainful employment, the skills to develop long-term relationships and the skills to develop insight into what is required by way of appropriate behaviour. In this regard I take into account everything that is said in the reports to which I have referred. There appears to me to be an element of diminished responsibility about your behaviour and I take that into account. What you have become, that is to say, a repeat offender, may not entirely be of your own making. Temptations to offend in your case may not be all that easily overcome. I take that into account. I also take into account your counsel’s earnest submission that you should be allowed to make something of your life. You have a supportive mother. If you acquire the necessary determination to develop insight into your drug problems, stay on prescribed medication and to meaningfully undergo and accept supervision, then you may make something of your life. You also seem to have a determination to educate yourself in matters relating to conversation and to use that skill in due course in an employed environment.
In addition, the Magistrate made an appropriate allowance for the principle of totality. Further again, the Magistrate gave the appellant credit for almost the whole of the period during which he had been on home detention bail, even though not required to do so.[18] As already noted this was very favourable to the appellant. In my opinion, the sentence imposed by the Magistrate for the 2004 offending was well within the range of acceptable sentencing discretion. If anything it was moderate.
[18]R v Bruce and Hollick [1998] SASC 6831; R v Malesevic [1999] SASC 321 at [8], (1999) 204 LSJS 32 at 32-3, per Doyle CJ.
Finally, it was submitted that the non-parole period of two years and six months was too high. I have already set out the Magistrate’s explanation for fixing a non-parole period of that length. In this case, the non-parole period had to take account of the gravity of the appellant’s conduct.[19]
[19]R v Creed (1985) 37 SASR 566; R v Malesevic [1999] SASC 321, (1999) 204 LSJS 32 at 37, per Doyle CJ.
For the reasons given by the Magistrate, the appellant does appear to be a poor candidate for rehabilitation. Put slightly differently, the Magistrate was entitled to consider that the appellant’s rehabilitation would not be promoted by early release into the community. In this respect, it is again relevant to note that the offending in 2004 occurred whilst the appellant was on parole, that this was not the first occasion upon which he had committed offences whilst on parole and that the 2004 offending included non-compliance with the terms of bail agreements. These factors militated against a shorter than usual non-parole period. I do not consider that any error in the Magistrate’s decision in this respect has been shown.
Conclusion
In my opinion, none of the submissions made by the appellant on the appeal should succeed. The appeal should be dismissed.