Martin v R No. SCCRM 95/170 Judgment No. 5157 Number of Pages 5 Criminal Law and Procedure

[1995] SASC 5157

COURT IN THE COURT OF CRIMINAL APPEAL OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ(1), DUGGAN(2) AND NYLAND(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - Sentence - factors to be taken into account - relative weight - rehabilitation prospects - not sufficiently strong - deterrence and protection of the community.

R v Hooper, unreported number 5043 (available on SCALE), Cox J; Pight v R unreported number 5046 (available on SCALE), Olsson J, applied.

HRNG ADELAIDE, 20 June 1995 #DATE 20:6:1995 #ADD 11:9:1995

Counsel for appellant:     Mr G F Barrett

Solicitors for appellant:    Caldicott and Co

Counsel for respondent:     Mr P J L Rofe QC

Solicitors for respondent: DPP (SA)

ORDER
Appeal dismissed

JUDGE1 DOYLE CJ This appeal is brought by the prisoner against sentences of imprisonment imposed upon him in the District Court on 6 April 1995.

2. The appellant pleaded guilty to three charges of false pretences and to one charge of larceny, which offences were committed on 11 December 1994. The appellant also pleaded guilty to a further charge of false pretences, which offence was committed on 10 December 1994.

3. The District Court judge imposed a sentence of one year's imprisonment for the crime of false pretences committed on 10 December 1994. His Honour imposed a single sentence for the several crimes committed on 11 December 1994, that sentence being imprisonment for two years. His Honour ordered that these terms of imprisonment be concurrent. The maximum sentence for the offence of false pretences was four years. At the time of the offence of larceny the maximum sentence was imprisonment for a term of ten years, although it has now been reduced to five years.

4. The appellant was on parole at the time of the crimes, and became liable to serve an unexpired portion of a sentence for an earlier crime. That was a period of three months and five days.

5. His Honour ordered that the sentences which he imposed should date from the expiration of that unexpired sentence which the appellant was required to serve. His Honour fixed a non-parole period of one year and three months commencing on the day on which he imposed the new sentence of imprisonment.

6. The judge decided that the sentence should not be suspended. He rejected a submission based upon an argument that in the past the appellant had not been given any or much assistance to rehabilitate himself. He did not accept that protection of the community could adequately be served by a suspended sentence, intended to allow the implementation of a programme of rehabilitation proposed by the State Prison Chaplain on behalf of the Salvation Army. It is clear that his Honour so decided, not because of any lack of confidence in the merits of the programme, but because of his conclusion that there were insufficient grounds to suppose that rehabilitation would succeed, and because his Honour was of the opinion that there were overriding considerations which required a custodial sentence.

7. As already mentioned, the appellant's crimes were committed shortly after he was released on parole. The offences involved the obtaining of food, a motor car, petrol, an umbrella and clothes.

8. The appellant appeals by leave to this Court. He argues that the sentencing judge erred in finding that there were no proper grounds upon which the sentence of imprisonment should be suspended. He complains that the sentence was manifestly excessive, having regard to the plea of guilty that was made at the first opportunity. In this respect he also relies upon the fact that the offences were not themselves of particular seriousness and upon his personal circumstances.

9. The appellant was 66 years of age at the time of sentencing. He has a very long criminal record. It dates back to 1950 and shows consistent and frequent offences of dishonesty with occasional other offences, sometimes involving driving offences and sometimes involving alcohol. His Honour was told that over the last 44 years the appellant has spent about 30 years in prison and, looking at his record, it seems that this is probably true. There have been no signs in recent years of the appellant's rate of offending abating.

10. The appellant was entitled to credit for his early plea of guilty, but in view of his very bad record, that plea cannot be taken as indicating much by way of contrition or remorse. Nevertheless, he was entitled to some credit for the plea. His Honour did not specify the amount of the discount, as he should have done. It is important that judges should do so. However, in the circumstances, he is unlikely to have overlooked it and, even allowing for a discount of about one quarter, the question remains of whether the sentence as imposed was excessive. I doubt whether a persistent offender could expect a greater discount than about one quarter.

11. The main basis of the appeal was the fact that the crimes were not particularly serious but, as already mentioned and most importantly, that the appellant now wishes to take advantage of the offer of assistance from the Salvation Army. The appellant told the probation officer who prepared the pre-sentence report that he now, for the first time, acknowledges that he has a drinking problem. There are some signs that the appellant may genuinely wish to turn over a new leaf.

12. However, as the probation officer remarks in her report, the long career of drinking and offending may prove a hard habit to break, despite the appellant's good intentions. In my opinion, that is true, and it is true despite the undoubted merit of the program proposed by the Salvation Army and despite the fact that his daughter still stands by him and is still willing to support him in his attempt to reform himself.

13. The story disclosed by the appellant's criminal record and by reports from the physician and psychiatrist who examined him, and from the pre-sentence report, is a sad and depressing one. It is a story of a life dominated by minor crime and alcohol. Now the appellant is experiencing the effects of age and excessive alcohol consumption.

14. Despite the appellant's claim that he never really has had assistance to face up to his problems, it seems to me that in the past the Courts have given him opportunities to redirect his life, and these were opportunities which he has not taken. He has had plenty of warning. Perhaps he has not had as much assistance as one might have wished, but that is the most that could be said.

15. Hopefully the appellant really does want to mend his ways now, but the imposition of a further term of imprisonment does not stop him doing so. His complaint really is that the judge erred in failing to suspend the sentence of imprisonment which his offences and his record certainly warranted.

16. There were other factors apart from factors personal to the appellant which his Honour had to consider. They are deterrence and protection of the community. His Honour also had to weigh up the likelihood that a sentence in which considerations of rehabilitation predominated would in fact be effective. Sadly, there is little basis for confidence that it would be effective. In truth, one could only hope. The fact that these offences were committed twelve days after release upon parole gives little cause for optimism.

17. His Honour considered all relevant matters, but his conclusion was that the prospects of rehabilitation succeeding, if that were made the overriding consideration, were not sufficient to warrant him taking the course of suspending the sentence of imprisonment. Or, to put it a little differently, the prospects of rehabilitation were not sufficiently strong to allow rehabilitation to be the predominant consideration.

18. In my opinion, his Honour took an approach which cannot be criticised and it is an approach which, had I been in his position, I would have been inclined to take myself. The need for deterrence in a case like this is particularly strong having regard to the record of the appellant. In this context I refer, in particular, to the previous decision of this Court in R v Hooper, judgment No. 5048 (1995) 64 SASR 480, judgment of Cox J at p13.

19. It seems to me that the sentences which his Honour imposed were moderate. The non-parole period of one year and three months was quite lenient. That reflects his Honour's desire to give the appellant yet another chance to take advantage of the assistance which is available to him. In my opinion, the decision not to suspend the sentence was, having regard to the appellant's record and the fact that there is no more than a hope that he will turn over a new leaf, an appropriate one.

20. While the abolition of remissions means that care must be taken in comparing this sentence with sentences previously imposed, and a reduction when the comparison is made will often be appropriate, no mathematical approach in this situation is possible, in my opinion.

21. I agree with the remarks of Olsson J given in the case of Pight v R, unreported, judgment delivered on 21 April 1995, judgment No. 5046 at p3. I agree with what Olsson J said there.

22. For my part, I decline on this occasion to embark upon any attempt to be more precise or to establish a formula for the reduction, such as one-third, as was suggested by Mr Barrett. In my opinion, apart from saying that there may well be, in a number of cases, a basis for reduction when the comparison is made, it is not appropriate to go any further than that. In the end, the question is whether, allowing for the fact that remissions are no longer available, the sentence is excessive. I have already remarked that, to me, the sentence seems quite moderate.

23. It should also be noted that his Honour did not refer to the impact of the truth in sentencing legislation and to the abolition of remissions, but the ultimate test is whether the sentence is excessive and, in my opinion, it is not.

24. It is now up to Mr Martin to take charge of his own life, if he can, supported by his daughter and the Salvation Army. For my part, I hope that he will do so but, in my opinion, the course which the sentencing judge took was an appropriate one under all the circumstances. Accordingly, I would dismiss the appeal.

JUDGE2 DUGGAN J I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

JUDGE3 NYLAND J I also agree that the appeal should be dismissed for the reasons given by the Chief Justice.