MADONNA v Police

Case •

[2012] SASC 123

•

24 July 2012

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MADONNA v POLICE

[2012] SASC 123

Judgment of The Honourable Justice Kelly

24 July 2012

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

Appeal against sentence - appellant pleaded guilty to multiple counts including traffic offences, aggravated assault and three counts of serious criminal trespass contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) - appellant participated in Mental Health Diversion Court Program - successfully completed - Magistrate sentenced the appellant to 24 months imprisonment with a non-parole period of six months - whether the Magistrate erred in failing to suspend the sentence either wholly or partially.

Held: Appeal allowed - although Magistrate considered all relevant factors and no error demonstrated in exercise of the discretion, Magistrate relied on material containing factual errors relevant to credit for time spent in custody and on home detention bail - error requires appellate court to sentence afresh.

Appellant resentenced - sentence imposed by the Magistrate confirmed – however good reason to suspend sentence – sentence suspended on appellant entering into bond to be of good behaviour for two years.

MADONNA v POLICE
[2012] SASC 123

Magistrates Appeal:   Criminal

  1. KELLY J. The appellant appeals a sentence imposed in the Adelaide Magistrates Court on 16 May 2012.  The sentence relates to 18 different court matters in respect of which the appellant had earlier pleaded guilty.  The charges range from traffic matters, various breaches of bail, an offence of aggravated assault and various dishonesty offences, the most serious of which included three counts of serious criminal trespass.  In respect of the less serious offences the Magistrate convicted the appellant without further penalty and/or ordered compensation to be paid.  In respect of the aggravated assault the Magistrate convicted the appellant and placed him on a bond to be of good behaviour for a period of two years to come up for sentence if called upon.  For the three offences of serious criminal trespass the Magistrate effectively imposed a head sentence of 24 months with a non‑parole period of six months which he declined to suspend.  The sole ground argued on this appeal is the failure of the Magistrate to suspend the sentence of imprisonment in relation to the three offences of serious criminal trespass.

  2. The chronology of the appellant’s offending and various court appearances is somewhat complicated.  Upon the hearing of the appeal a schedule of offences setting out the date of the offence, the date when each guilty plea was entered and the penalty imposed was tendered.  For convenience an accurate record of all the offences in respect of which the appellant was sentenced by the Magistrate is reproduced in Schedule A annexed to this judgment. 

  3. The appellant is now a 26 year old man.  His criminal history, while not lengthy, contains two significant episodes of offending.  The first episode led to his appearance in the Mental Health Diversion Program at the Adelaide Magistrates Court in 2006 and the second episode which led to his appearance in the same program in 2011.[1] 

    [1]    Schedule B: Antecedent History

  4. The Diversion Program interim and final reports about the appellant’s progress throughout the program in 2011 reveal a portrait of a young man with a history of methylamphetamine and ecstasy abuse, with some of the associated deficits commonly observed in such a person, namely limited coping skills, antisocial personality traits, and more recently a severe depressive episode exacerbated by grief response to the death of the appellant’s father in January 2011.  What is striking however in the appellant’s background is that his offending appears to have been clustered in two main episodes; 2006 and the second in 2011.  In respect of the offending in 2006, which also included a number of non-aggravated serious criminal trespass and other dishonesty offences, the appellant was sentenced to 16 months with a nine month non‑parole period.  That sentence was suspended on the appellant agreeing to enter into a bond to be of good behaviour for a period of two years.  Thereafter he appears to have stayed out of trouble until the offending in 2011 which began in March and continued until the end of October 2011. 

  5. The Magistrate’s remarks on sentence were detailed, careful and thorough.  Absent the error into which the Magistrate was led in respect of time spent in custody and credit for time on home detention bail, I consider that the appellant would have had a difficult task justifying any intervention by this Court.

  6. In the light of developments which occurred during the hearing of the appeal it is not now necessary to analyse in any further detail the remarks of the Magistrate when sentencing the appellant on 16 May 2012 because it emerged during the appeal that the Magistrate was led into error, inadvertently it would seem, in respect of the amount of credit afforded to the appellant for time spent in custody and for time spent on home detention.  Further research by counsel for the respondent revealed the error.  The time the appellant spent on home detention was in fact seven months and two days.  To the extent that credit was given by the learned Magistrate it was given on the basis that the appellant had spent four and a half months on home detention bail.  In respect of the time spent in custody the learned Magistrate sentenced on the basis that the appellant spent more time in custody than actually had been the case.  Once again this error was not the fault of the Magistrate but that is what counsel agreed at the time.  That error also led to uncertainty as to the manner in which the learned Magistrate apportioned credit for the time in fact spent in custody. 

  7. Counsel for the respondent conceded that the errors with respect to these two matters provides a proper basis for this Court to intervene.  I consider that concession is correct. 

  8. In my view there are a number of factors which justify a merciful approach in this matter.  First, the fact that the appellant is still a young man.  Second, his offending whilst serious on any view of the matter did not involve any of the aggravated elements which this Court often sees in respect of offences of serious criminal trespass.  In particular none of the serious criminal trespass offences committed by the appellant involved breaking into homes.  In addition there were quite extenuating circumstances surrounding the commission of the one offence of aggravated assault upon a family member.  Apart from that offence the appellant has not shown any propensity to be violent either before or since. 

  9. Third, I am impressed by the fact that after completing the Mental Health Diversion Program in 2006 the appellant did stay out of trouble for a period of four years.  There is no doubt that despite his offending in 2011 which led to repeat offending, cancellation of bail, and a period when the appellant was at risk of being excluded from the program, the appellant did successfully complete that course by the end of the year.  Furthermore there appears to have been a quite specific trigger for the appellant’s behaviour in 2011.  The reports document his decline into a major depressive episode after the death of his father in January 2011.  It cannot seriously be doubted that this was a major destabilising event for the appellant.

  10. Fourth, the appellant has the support of friends and family and the appellant has demonstrated, albeit belatedly, that he is committed to seriously addressing his behavioural issues.  Finally, I am mindful of the opinion of the author of the final report prepared for the Mental Health Diversion Program that it is imperative that the appellant remains engaged in the therapeutic process. 

  11. Even though the sentences imposed by the Magistrate were imposed on an incorrect factual basis there has been no complaint about the length of the sentences imposed by the Magistrate and I see no reason to adopt any different approach when sentencing afresh.

  12. In my view the interests of justice will best be served by giving the appellant another opportunity to demonstrate that his commitment to rehabilitation is genuine and that he has the capacity to maintain that commitment.  In all of the circumstances I consider there is good reason to justify suspension of the sentence of imprisonment imposed by the Magistrate. 

  13. To achieve that result I make the following orders:

    1The sentence of 24 months imprisonment and the non-parole period of six months is confirmed.

    2The sentence will be suspended upon the appellant agreeing to enter into a bond to be of good behaviour for a period of two years. 

    3The Magistrate’s sentences in respect of the other matters are undisturbed.

Schedule A

No Court Ref. Charges Date of
Offence

Date Guilty
Plea Entered

 Penalty

1.

 AMC-05-14659 Drive Disqualified 10.03.2005 08.02.2006

CWOP
2. AMC-11-3694 Serious Criminal Trespass 08.03.2011 23.06.2011

Convicted
8 months gaol
3. AMC-11-8596 Possess house breaking implement 03.04.2011 19.08.2011
4. MCHHL-11-5895 Unlawful Possession 03.04.2011 14.05.2012
5. AMC-11-3589 Carry Offensive Weapon 03.04.2011 17.06.2011 CWOP
6. MCHHL-11-1990 Breach Bail 08.04.2011 17.06.2011 CWOP*
7. MCHHL-11-2806 Aggravated Assault 27.05.2010 23.06.2011 Convicted
Good Behaviour Bond – 2 years
8. MCHHL-11-4015 Breach Bail 25.07.2011 14.05.2012 CWOP*
9. MCHHL-11-6941 Breach Bail 24.07.2011 29.02.2012 CWOP*
10. MCHHL-11-4075 Breach Bail 01.08.2011 14.05.2012 CWOP*
11. MCHHL-11-4982 1. Aggravated Assault
2. Breach Bail 		15.09.2011 14.05.2012 Withdrawn
12. AMC-11-11320 1. Serious Criminal Trespass
2. Theft
3. Unlawful Possession 		1. 19.09.2011
2. 19.09.2011
3. 29.10.2011 		14.05.2012 Convicted – 8 months gaol
Compensation $1,875.00
13. AMC-11-12157 Drive Disqualified 26.10.2011 14.05.2012 CWOP*
14. MCHHL-11-6692 Theft 11.10.2011 22.12.2011 CWOP*
Compensation $250.00
15. MCHHL-11-6706 Theft 18.10.2011 22.12.2011 CWOP*
Compensation $24.95
16. MCPAR-11-9724 1. Drive Suspended
2. Breach Bail 		11.10.2011 14.05.2012 CWOP*
17. MCPAR-11-10480 Serious Criminal Trespass 07.10.2011 14.05.2012 Convicted – 8 months gaol
18. MCPAR-12-2130 1. Drive Unregistered
2. Drive Uninsured
3. Drive Suspended 		07.10.2011 14.04.2012 CWOP
Licence disqualified 14 days
19. MCPAR-12-2907 Make off without Payment 08.10.2011 14.05.2012 CWOP
Compensation $83.70

*Sentencing Remarks refer to “time served”

Schedule B

Date Court Offence Outcome

Ref
28/6/2004 Family Conference

1. Assault police
2. Disorderly behaviour

 Undertaking FCREG-CRIM-04-483
6/9/2004 Christies Beach CC

1. Drive unregistered;
2. Drive uninsured;

3. Drive vehicle without licence

Convicted all counts; fined $100; Driver’s licence disqualified 1 month commencing 6/9/04

 MCCHB-CRIM-04-3861; ACC-CRIM-03-2462
6/9/2004 Christies Beach MC Dishonestly take property without owner’s consent

WOC; compensation ordered ($4.99)

 MCCHB-CRIM-04-3287
Driving while unauthorised

Convicted, fined $100; Driver’s licence disqualified 3 years commencing 6/9/04

 MCCHB-CRIM-04-3946
18/11/2005 Adelaide MC Estreatment of bail

Proven.
Estreatment $300

 AMC-CRIM-05-14539
5/3/2007 Adelaide MC

2. Drive vehicle contrary to defect notice

3. Drive unregistered;
4. Drive uninsured

Fined $250; Driver’s licence disqualified 2 weeks commencing 5/3/07

 AMC-CRIM-05-14659; MCCHB-CRIM-05-1823
27/4/2007 Adelaide MC

1. Non-aggravated serious criminal trespass (residential);

2. Dishonestly take property without owner’s consent;

3. State false personal detail;

4. Breach bail;

5. Non-aggravated serious criminal trespass (non-residential)

6. Dishonestly take property without owner’s consent;

7. Dishonestly take property without owner’s consent;

8. Driving without due care;

9. Driving while disqualified

Ct 4: CWOP

Ct 8: CWOP;
Driver’s licence disqualified 3 months commencing 27/4/2007.

All other counts:
16 months imprisonment.
NPP 9 months suspended $500
GBB 2 years;
compensation ordered ($205)

 AMC-CRIM-05-14658; MCCHB-CRIM-05-1291
1. Breach bail CWOP

MCCHB-CRIM-05-1838; AMC-CRIM-05-4321

1. Dishonestly take property without owner’s consent;

2. Dishonestly take property without owner’s consent

 CWOP AMC-06-2571; MCCHB-CRIM-05-6194
Dishonestly take property without owner’s consent CWOP

AMC-CRIM-06-4325; MCPAR-CRIM-05-11766
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