Martin v Police No. Scgrg-99-392 Judgment No. S202
[1999] SASC 202
•13 May 1999
MARTIN v POLICE
[1999] SASC 202
Magistrates Appeal: Criminal
PERRY J. (ex tempore) This is an appeal against sentence.
The appellant pleaded guilty in the Magistrates Court sitting at Elizabeth to charges of illegal use of a motor vehicle, driving under the influence of liquor or drugs, driving without a licence and carrying an offensive weapon, namely a pocket knife, all relating to an incident which occurred on 11 July 1998.
A separate charge on the same complaint of driving with the prescribed concentration of alcohol was, upon the appellant's plea of guilty to the charges to which I have just referred, withdrawn.
The appellant was also before the court on an application to estreat a bond upon which he had been released on 29 January 1998 on a charge of damaging property, which I had been told was a graffiti offence. On that occasion the appellant was convicted and placed on a bond in the sum of $150 to be of good behaviour for a period of 18 months and to perform 100 hours of community service within six months from the date of the bond. It appears that he performed the community service in accordance with the condition of the bond but he not only then failed to co-operate with the supervision, but he breached it with the offences committed on 11 July 1998.
The learned sentencing magistrate estreated the bond and ordered payment of the sum of $150. With respect to the other charges, exercising his powers under s18A of the Criminal Law (Sentencing) Act, he imposed one penalty, that is to say, six months' imprisonment, commencing forthwith.
He also disqualified the appellant from holding or obtaining a licence for 12 months with respect to the charge of illegal use, and imposed a similar disqualification, that is, 12 months concurrent with the other period of disqualification, on the driving under the influence charge.
The learned sentencing magistrate also ordered forfeiture of the knife.
It appears from the affidavits of the police officers responsible for presenting the case in the court below that the learned sentencing magistrate was informed that on the night before the offence the victim of the illegal use charge parked his car in the driveway of his house at Kent Town, only to find the next morning that it had been stolen. It was the next night that the police on uniform patrol duty apprehended the appellant in the car. When searching him they found on his person the pocket knife.
He was given a breath analysis test which resulted in a reading of .062. His gait, however, was very badly affected and it seems likely that he had not only been drinking, but that he was affected by consumption of marijuana to which he was addicted.
At all events, when questioned by the police he said that he had found the vehicle at the service station near Munno Para shops. On finding that it was unlocked, he took it for a drive, intending to dump it in a paddock.
It does not appear that the passage of driving was for long. When recovered, the vehicle was damaged to the extent of $100 to $150, being the estimate cost of repair to the ignition lock.
The learned sentencing magistrate had the benefit of a pre-sentence report prepared by a probation and parole officer, and also a psychiatric report prepared by Dr Seidel.
When first before the court the appellant was released on bail, but his bail was revoked when he failed to cooperate in the preparation of both of the reports to which I have referred. The magistrate thereupon revoked bail and the reports were then prepared while the appellant was in custody.
The learned sentencing magistrate was very critical of the author of the pre-sentence report, in my opinion unfairly. His criticism was pronounced in such extreme and intemperate terms that it gives me cause to think that the learned sentencing magistrate was distracted by his concern about the terms of the report, or at least the language in which it was expressed, at the expense of the proper consideration of the matters relevant to sentencing.
Be that as it may, both reports confirm the situation of the appellant, which is that he is a 22 year old young man, who, towards the end of last year, formed a relationship with a young woman. In about June this year, she is due to give birth to their child. The appellant has a record of prior convictions, but none of them appear to me to be very serious. They commence in 1995, with an offence of travelling without paying the appropriate fare, then a year later riding a push-bike with no safety helmet, and then two graffiti offences committed in 1997 and 1998. It was the second of those offences which resulted in the imposition of the good behaviour bond, which was estreated by the learned sentencing magistrate.
Likewise it seems to me, for the reasons which I have indicated, that the subsequent offence upon which he was sentenced and from which he now appeals was, itself, not so serious within its class, as many instances of illegal use which come before the courts. As I have indicated, the passage of driving was not long and there was relatively minor damage to the car.
The maximum penalty for illegal use is two years imprisonment.
The learned sentencing magistrate took an unusual course with respect to the period of imprisonment - about five weeks - which the appellant served in between the date upon which his bail was revoked and the date upon which he was sentenced. As to that aspect of the matter, the learned sentencing magistrate said:
“The fact that you have been in custody for the last five weeks is entirely your doing, it is a result of your failure to co-operate with what is an important process. namely, the preparation of these reports, particularly the pre-sentence report.”
Later he said:
“I decline to have any regard to the time you have spent in custody. As I say, that is a consequence of your failure to co-operate with the probation authorities in the preparation of the report I require. Your liberty has been deprived as a direct result of your non co-operation.”
It was perfectly proper for the learned sentencing magistrate to take into account the non co-operation of the appellant with respect to the preparation of the reports in considering whether the appellant was a good candidate for rehabilitation, an opportunity for which might have been secured by a further bond, but it was not proper to penalise the appellant for that failure. A proper exercise of the sentencing discretion should have resulted in an antedating of the sentence of imprisonment which was imposed to the date upon which he was taken into custody.
In the events which have happened, he was incarcerated as from 12 February 1999 and has, therefore, served three months in custody pending the hearing of the appeal.
In my opinion, this was a case in which the learned sentencing magistrate overlooked his duty carefully to consider all options short of a custodial term of imprisonment.
While the appellant has not performed very well with respect to the bond upon which he was released last year, the fact of the matter is that he is still a young man; that he performed 100 hours of community service in compliance with that bond; that he is about to father a child; that there are indications that the relationship which he has entered into might offer some hope of stabilising his existence. The welfare of the unborn child is, likewise, a matter which ought to be taken into account.
In all the circumstances, I am driven to the conclusion that the learned sentencing magistrate erred in failing to give the appellant a further chance to prove himself. In my opinion, a proper exercise of the sentencing discretion should have resulted in the suspension of the term of imprisonment which was imposed.
As to the length of that term, six months was substantial, but I do not think that it was manifestly excessive. Looking at the matter as from now, however, the appellant has served three months in custody. In those circumstances, the justice of the case would be met if he is sentenced to three months imprisonment but is now released upon a bond to be of good behaviour for a period of two years; during that time to be under the supervision of a probation officer; and to comply with all directions of the probation officers as to counselling and treatment for his drug abuse.
I have already been given to understand that the appellant is prepared to enter into a bond in those terms.
The appeal is allowed. I substitute for the order under appeal an order that the appellant be sentenced to imprisonment for a period of three calendar months, as from today, and that the sentence of imprisonment be suspended upon the entry by the appellant into a bond in the sum of $2,000, on the terms which I have indicated.
The disqualification orders imposed by the learned sentencing magistrate will remain in full force and effect, and they will date from the date upon which the learned sentencing magistrate pronounced those orders, that is, as from 17 March 1999.
The order for forfeiture of the knife and the order for court fees and victim of crime levy will also be affirmed.
ADJOURNED 3.13 PM.
RESUMING 3.25 PM.
HIS HONOUR: Do you understand that I am prepared to give you a chance? It is a course which not all the judges might have been prepared to follow. Do you understand the remarks that I made, before coming to that view?
PRISONER: Yes.
HIS HONOUR: Do you understand that if you sign this bond, which I will put in front of you in a moment, it takes effect in this way: that for two years from now you have to be of good behaviour. That means you must not commit any offences. If you commit an offence of any kind you forfeit the amount of $2,000, which is the amount of the bond, and you are liable to be imprisoned for three months. Do you understand that much?
PRISONER: Yes, I do.
HIS HONOUR: Then the bond obliges you, during the period of two years, to be under the supervision of a probation officer and to obey the lawful directions given by the probation officer, particularly any directions as to counselling and treatment for drug abuse. Do you understand that?
PRISONER: Yes, I do.
HIS HONOUR: Are you willing to have a serious go at trying to get rid of your drug problem?
PRISONER: Yes.
HIS HONOUR: I encourage you to take advantage of the opportunity to do so, and you will find you get some help from the probation officers in that respect.
Knowing those things, are you happy to sign this bond?
PRISONER: Yes, I am.
HIS HONOUR: You fully understand what the consequences will be if you break it?
PRISONER: Yes, I do.
BOND ACKNOWLEDGED
HIS HONOUR: You take one copy, another will be left with us, and you have to go to the Department of Correctional Services at Elizabeth, at the address shown, within two working days. So make sure you do that.
Mr Gibbons, you might have a word with your client about the obligations of the bond, would you?
MR GIBBONS: Yes.
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