Martin v Police - [2007] SASC 402

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
MARTIN v POLICE
[2007] SASC 402
Judgment of The Honourable Justice Sulan (ex tempore)
12 November 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
Appellant pleaded guilty in the Magistrates Court to attempting to deceive in order to benefit two other persons - Magistrate imposed a sentence of imprisonment which was to be cumulative upon a sentence received in the District Court - Magistrate extended non-parole period - Magistrate did not have before her the sentencing remarks delivered in the District Court - Magistrate did not have psychological report - held, allowing appeal, sentencing discretion miscarried as sentencing Magistrate did not have before her material relevant to the sentence.
C, GM v Police [2007] SASC 310; Holder & Ors v Lewis (2003) 231 LSJS 431; Kroon v Police [2005] SASC 70, considered.

MARTIN v POLICE
[2007] SASC 402
Magistrates Appeal

SULAN J (ex tempore): The appellant, Jaymark Delgado Martin, pleaded guilty in the Holden Hill Magistrates Court to attempting to deceive Daniel Nelson, an employer of Insurance Australia Group and by so doing enable Scott Robert McKenzie-Campbell and Tracey Anne Oliver to benefit. The offence was committed between 14 November 2005 and 16 November 2005 at Modbury.
On 9 August 2007, the Magistrate imposed a sentence of nine months imprisonment and ordered that the sentence be served cumulatively upon a sentence of imprisonment for four years and six months that the appellant had received in the District Court on 2 May 2007, after pleading guilty to various offences. The Chief Judge, who sentenced the appellant in the District Court, ordered him serve a non-parole period of two years. The Magistrate extended the non-parole period to two years and four months.
The circumstances of the offending were that on 14 November 2005 the appellant telephoned Mr McKenzie-Campbell and indicated to Mr McKenzie‑Campbell that he was prepared to go ahead and assist Mr McKenzie-Campbell in relation to an offence that Mr McKenzie-Campbell intended to commit by submitting a false claim to an insurance company that his car had been stolen. The appellant’s role was to take the car after Mr McKenzie-Campbell had provided the keys and to get rid of it.
The role that the appellant played was to assist in the pretence that the car had been stolen. Two other people also assisted. It is not necessary in these reasons to go into the detail of their conduct.
At the time that the offence was committed the appellant was consuming drugs. He was also involved in selling ecstasy. He had a significant drug problem.
He appeared in the District Court before the Chief Judge on 2 May 2007 and pleaded guilty to a number of drug offences. The Chief Judge observed that there was evidence of the appellant dealing in drugs over a period of about three months. He was dealing in drugs both before and after the date of this offence.
The Chief Judge had regard to a psychological report from Mr Balfour. The Chief Judge said:
You suffered depression brought on by your stepfather being diagnosed with leukaemia and your girlfriend having a miscarriage. This caused you to rely more heavily on ecstasy and with that you needed to sell more. Mr Balfour also suggested that you were tempted by the undercover police officer’s requests to become involved in selling large quantities of ecstasy. That may be so to the extent that you wanted to sell to that police officer but the plain fact of the matter is that as can be seen from the telephone taps you were already in that league. You knew there was money to be made from dealing and you wanted it.
The court has been told that since being apprehended you have got yourself off illicit drugs and as assessed by Mr Balfour you have matured considerably and now have insight into the danger of being involved in this sort of offending and even in using illicit drugs. In Mr Balfour’s opinion you would in due course benefit from supervised structured rehabilitation.
The Chief Judge referred to a number of recommendations of Mr Balfour. The Chief Judge concluded that an immediate custodial sentence was required. The appellant was a first offender. He considered that a shorter than usual non-parole period was appropriate having regard to the fact that the appellant had made substantial inroads into ceasing his drug abuse and ceasing his involvement in drugs.
Returning to the offence with which the Magistrate was dealing, the main offender, Mr McKenzie-Campbell, had a drug problem. The appellant’s involvement in the offending related back to his involvement with drugs.
The Magistrate in sentencing McKenzie-Campbell and the other offenders imposed suspended sentences in respect of each of them. Mr McKenzie‑Campbell was sentenced to 18 months imprisonment, which was suspended upon him entering into a three-year good behaviour bond. His involvement in the offence was much greater than the appellant. As to the other two offenders, who were less involved than McKenzie-Campbell, one received a sentence of 10 months imprisonment, which was suspended. He was the person who burnt the car. The fourth person who was involved in helping to destroy the car was released without conviction.
The appellant would, if he had not been serving a sentence of imprisonment at the time he appeared before the Magistrate, have received a suspended sentence if the Magistrate had been consistent in her sentencing. I have no reason to believe that she would have been other than consistent. However, it was inappropriate for her to suspend the sentence because the appellant was in custody serving a lengthy term of imprisonment. The Magistrate did not have the sentencing remarks of the Chief Judge. Nor did she have the full report of Mr Balfour, although she had been informed by Mr Martin’s counsel about the Balfour report.
The Magistrate did not have the opportunity to have regard to the Chief Judge’s remarks when he set a non-parole period which was much less than would normally be fixed. The Chief Judge considered that the appellant had embarked on a program to overcome his drug habit and that he had taken steps towards rehabilitation. Mr Barklay, who appeared for the respondent, conceded that it was a relevant factor for the Magistrate to have been provided with the Chief Judge’s sentencing remarks. He conceded that it was, therefore, appropriate for me to reconsider the sentence and re-sentence the appellant. I observe that this is an appeal by way of rehearing. If the Court considers that relevant material was not before a magistrate and that material may have influenced the magistrate’s decision, then this court can re-sentence in those circumstances.[1] In my view, Mr Barklay’s concession was appropriate.
[1] See, C, GM v Police [2007] SASC 310, [37]-[43]. See also, Holder & Ors v Lewis (2003) 231 LSJS 431, 432[12]-[15] (Doyle CJ); Kroon v Police [2005] SASC 70, [29]-[41] (Gray J).
I have regard to the psychological assessment and to the Chief Judge’s remarks, in particular his observation that the appellant has ceased using drugs and now has an insight into his offending. The sentence should be consistent with the approach of the Chief Judge. The appellant is a first-time offender. He is serving a relatively lengthy period of imprisonment. He has demonstrated a desire and willingness to overcome his drug problems. He received nothing for his role in this offence. He became involved because of his association with others who were also involved in drugs. The personal circumstances of the appellant and his relatively minor role in the offence calls for a merciful sentence.
In my view, having regard to the appellant’s lesser role in the offence, a sentence of nine months imprisonment for a first offender was at the higher end of the scale. I reduce that sentence to six months imprisonment. I extend the non- parole period, as I am required to do, for a period of one month. I order that the sentence of six months be served cumulatively upon the sentence imposed by the Chief Judge.
I set aside the sentence of the learned Magistrate and I substitute a sentence of six months imprisonment, to be served cumulatively on the sentence imposed by the Chief Judge. The total head sentence is increased to five years imprisonment. I extend the non-parole period by one month which means that the non-parole period is extended to two years and one month. The sentence and non-parole period are to commence on 18 April 2007, the date upon which the appellant was taken into custody prior to being sentenced in the District Court.