Mathew David Gibbons v SA Police No. SCGRG 93/1201 Judgment No. 4113 Number of Pages 5 Criminal Law and Procedure

[1993] SASC 4113

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - Appeal against sentence - larceny - magistrate ordered appellant to pay large fine and compensation - magistrate failed to have regard to totality principle and appellants financial position - magistrate failed to have regard to mandatory provisions in Criminal Law(Sentencing) Act sl3, sl4.

HRNG ADELAIDE, 11 August 1993 #DATE 18:8:1993
Counsel for appellant:     Mr B O'Reilly
Solicitors for appellant:    Brian O'Reilly
Counsel for respondent:     Ms I Baumanis
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 OLSSON J This is an appeal against a sentence imposed on the appellant, upon his conviction by a stipendiary magistrate of the offence of larceny. He complains that the sentence imposed upon him was manifestly excessive. 2. The appellant pleaded guilty to a charge that, on 13 August 1992 at Victor Harbour and other places, he stole a variety of items together of the value of $1,138. 3. The learned magistrate was told that the appellant (who was not represented by counsel) had admitted, in concert with a co-offender, to having taken a car which did not belong to him from the Woolworths' car park at Victor Harbour on the morning in question. The appellant and (presumably) his co-offender were apprehended with the vehicle at Paralowie that afternoon and he was charged with illegal use and driving without a licence. It was later found that the items in question were missing from the vehicle. He initially admitted to the police taking some, but not all, of them and was thereupon also charged with larceny. 4. The court was informed that the appellant had an earlier conviction for illegal use in 1991, in respect of which he had been fined $100. The learned magistrate was further informed that he had already been dealt with by another magistrate in relation to the illegal use of the vehicle taken at Victor Harbour and had been given a 6 month suspended sentence, upon entering into a bond to be of good behaviour for 18 months and performing 200 hours of community service. He was further disqualified from holding a driver's licence for one year, in respect of that offence. 5. It appeared that the co-offender was a juvenile and had separately been dealt with. 6. The learned magistrate did not express any remarks as to penalty. He simply fined the appellant $2,000 plus court fees and levy and allowed him 10 months within which to pay. He further ordered him to pay $569 as his share of compensation for the stolen items within three months. 7. The grounds of appeal relied upon by the appellant are:-
    "1. The Learned Special Magistrate erred in that the
    monetary penalty imposed was manifestly excessive.
     2. The Learned Special Magistrate erred in that he failed to
    give proper weight to the penalty imposed on the appellant on an
    earlier occasion for the related offence of the illegal use of a
    motor vehicle.
     3. The Learned Special Magistrate erred in that he failed to
have proper regard to Section 13 of the Criminal Law Sentencing
    Act 1988 and in particular the appellant's capacity to pay a
    compensation order and a fine.
     4. The Learned Special Magistrate erred in that he failed to
    have proper regard to the appellant's capacity to pay according to
Section 14 of the Criminal Law Sentencing Act, 1988 by imposing a
    fine prior to determining an amount for compensation." 8. The appellant is a young man who is now just 19 years of age. 9. In an affidavit sworn by him he deposed to what can only be described as a most undesirable procedural course of events. These may be summarised as under:-
     - On 6 November 1992 he appeared before Mr Edgecombe SM
     and was, at that time, represented by counsel supplied by the
    Legal Services Commission. He was dealt with in relation to
    charges of illegal use and driving whilst unlicensed, arising out
    of the taking of the motor vehicle on 13 August 1992, with the
    result that I have already recited.
     - The charge of larceny was initially called on on 16 March
    1993, but adjourned to 13 April 1993 to enable the appellant to
    obtain legal advice. He reappeared in court on the latter date
    and informed the magistrate that counsel who had represented him
    in relation to the earlier charges had been instructed to act for
    him. The matter was further adjourned to 18 May 1993.
     - On that date counsel appeared for the appellant and sought a
    further adjournment so that he could obtain instructions. The
    matter was stood over until 9 June 1993.
     - So far as I can determine all of the foregoing appearances
    were before the same magistrate, who, may well have been Mr
    Edgecombe SM -that is not clear.
     - The appellant next appeared on 10 June, he not having attended
    on the preceding day. It is not disputed that he mistook the
    date. Because a warrant had issued by virtue of his non
    attendance the previous day he was taken before Mr Liddy SM. He
    was unrepresented.
     - The appellant describes what thereafter transpired in these
    terms:-
     "My recollections of what transpired on that day are that His
    Honour Mr Liddy SM asked me if I had a lawyer. I responded that I
    had and it was Paul Bennett of the Legal Services Commission. His
    Honour Mr Liddy SM then asked what I intended to do with this
    matter. I said that I intended to plead guilty.
     The charge was then read out and I pleaded guilty unrepresented.
    The police prosecutor then provided his version of the facts. His
    Honour Mr Liddy SM asked if I agreed with those facts and I said
    that I did.
     His Honour Mr Liddy SM then remanded me in custody until 1.00pm
    on the 10th day of June 1993 (the same day). Upon my return in
    Court just prior to 1.00pm I recall that His Honour Mr Liddy SM
    said that the Magistrate who had previously dealt with the illegal
    use and drive unlicensed matters, had not dealt with those
    offences properly. I distinctly recall His Honour Mr Liddy SM
    saying further that I should have gone to prison for that offence.
    His Honour Mr Liddy SM further said that he was bound by the
    suspended sentence imposed by His Honour Mr Edgecombe SM and
    thereupon fined me in respect of the larceny count in the amount
    of $2,000 and ordered that I pay Court costs of $64.00 and a
    victim of crime levy of $20.00. I was given 10 months in which to
    pay the fine and costs. The prosecutor then raised the question
    of compensation for the property taken. His Honour Mr Liddy SM
    ordered that I be remanded in custody until 2.15pm in order that
    the co-offender file be brought into Court. At 2.15pm I was taken
    back into Court. His Honour Mr Liddy SM advised me that the
    codefendant was ordered to pay compensation in the amount of
    $569.00. I was then ordered to pay the sum of $569.00
    compensation within the next three months. I was then free to go.
    His Honour Mr Liddy SM did ask if I had a job, but made no enquiry
    as to the level of income. I do not recall His Honour Mr Liddy SM
    asking me whether I wished to seek an adjournment in order that I
    may contact Paul Bennett. I did not make an application for the
adjournment of this matter in order to organise representation." 10. The appellant further states that no issue was raised as to the need to view the larceny offence in the context of the charges which had already been disposed of and also to view the overall situation in light of the totality principle. 11. I am constrained to say that what occurred was most undesirable and predisposed to the situation which actually occurred. 12. All charges arose out of the one incident and it was, to say the least, highly desirable that, to ensure a consistent approach and the proper application of the totality principle, they were dealt with by the one magistrate unless this was simply impractical. To do otherwise was to lead to the possibility - which actually manifested itself - of two separate magistrates taking quite divergent views of the matter and approaching sentencing on a inconsistent basis. It also appears to have led to the unseemly criticising by one judicial officer of another. 13. Worse still, it was, in my opinion, quite inappropriate for the magistrate to have proceeded as he did, well knowing that counsel had been instructed to represent the appellant, without causing enquiries to be made of counsel as to his availability. It is no answer to such a criticism to say that a young lad, in the courtroom environment, who, presumably, had been taken into custody pursuant to the warrant and was, no doubt, feeling under considerable pressure, agreed to the matter going forward without proper representation. 14. The practical result, quite clearly, was that important matters which should have been raised as to sentencing approach were not ventilated, including the question of the operation of the totality principle. Furthermore, as I understand the material before me, the learned magistrate had little or no information as to the personal background of the appellant, his version of the part which he personally played in relevant events and any mitigating factors. He appears to have sentenced on the bare information from the prosecution brief and did not even descend to any sentencing remarks. It is also to be noted that he had virtually no information concerning the appellant's financial position, so as to consider the operation of sections 13 and 14 of the Criminal Law (Sentencing) Act, the terms of which are mandatory. In the event he imposed a massive fine and made an order for compensation in contravention of both sections 13 and 14 of that Act. 15. All in all it is small wonder that the appellant comes to this court with a sense of grievance and injustice. In all fairness, counsel for the respondent readily conceded that what was done by the learned magistrate could not be supported. 16. In my view the sentencing process before the learned magistrate plainly miscarried and it becomes necessary to consider sentence afresh. I do so having heard specific evidence from the appellant as to his financial position. He is, for the most part, unemployed but is currently actively looking for stable employment. At present he does some occasional, casual cleaning work for cleaning contractors, but this does not amount to more than an average of a few days per month. When he does this work he earns $12 per hour less 20% tax retention. In the main he exists on unemployment benefits of about $135 per fortnight. After paying a nominal amount of board to his parents, with whom he resides, and for clothing and other necessaries he only has $10-15 per week left. He has no significant personal assets. 17. Quite apart from the fact that the penalties imposed by Mr Edgecombe SM in relation to the associated offences were by no means in substantial (albeit, in my view, fair and appropriate) and the orders now appealed against were in clear breach of the totality principle, what the learned magistrate appears to have ignored is that the provisions of sections 13 and 14 of the Criminal Law (Sentencing) Act are expressed in mandatory terms, binding on all judges and magistrates. 18. They read as under:-
    "13. (1) The Court must not make an order requiring a
    defendant to pay a pecuniary sum if the court is satisfied that
    the means of the defendant, so far as they are known to the court,
    are such that -
     (a) the defendant would be unable to comply with the order;or
     (b) compliance with the order would unduly prejudice the welfare
    of dependants of the defendant.
     (2) The court is not obliged to inform itself as to the
    defendant's means, but it should consider any evidence on the
    subject that the defendant or the prosecutor has placed before it.
    Preference must be given to compensation for victims 14. Where a
    court considers -
     (a) that it is appropriate -
        (i) to make an order for compensation (under this Act or any
    other Act);
     and
        (ii) to impose a fine or make any other order for the payment
    of a pecuniary sum; but
     (b) that the defendant has insufficient means to pay the
    compensation and the fine or other pecuniary sum, the court must
    give preference to compensation." 19. It is at once apparent that, given that there is no indication that the appellant is likely to obtain early stable employment, he will be hard put to it to pay compensation over a lengthy period of time, let alone any substantial fine as well. Not only did the learned magistrate not delve into the financial position in reasonable depth, as he had a clear statutory duty to do, but it must have been painfully obvious to him that the appellant was, prima facie, a person of little financial means. 20. In the circumstances I allow the appeal and set aside the orders appealed against. 21. In lieu I order as follows:-
    1. That the appellant pay to the Clerk of the Magistrates
    Court at Elizabeth for and on behalf of Ernest Applebee, Bay
    Village, Phillip Avenue, Victor Harbour compensation in the sum of
    $569, such sum to be paid by such fortnightly or other payments of
    such amount as the said Clerk may from time to time approve but,
    in any event, the whole sum to be paid within 18 months of
    this day.
    2. That, in respect of the offence of which he has been
    convicted, the appellant further pay a fine of $200 plus $64 court
    fees and $20 levy, such sums also to be paid within 18 months of
    this day.
    3. The prescribed statutory default provisions are to apply.