Maurizio Crisa v SA Police No. SCGRG 96/338 Judgment No. 5570 Number of Pages 6 Criminal Law and Procedure

[1996] SASC 5570

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law and procedure - appeal against sentence - unlawful entry upon mine and larceny of opal - Appeal against a sentence of 12 months imprisonment imposed on admitted charges of being unlawfully in a mine at Coober Pedy and stealing opal from it - observations as to the importance of giving weight to the view taken by an experienced local Magistrate as to what penalty was necessary in a mining community to operate as a general deterrent against the commission of crimes which were difficult to detect and could easily lead to violence - the sentence imposed on a co-offender was suspended - observations as to the appropriateness of distinguishing between co-offenders having regard to their respective degrees of culpability and differences in their individual circumstances - appeal dismissed. Mining Act 1971 s51; Criminal Law Consolidation Act 1935s152a, referred to. R v MacGowan (1986) 42 SASR 580, considered.

HRNG ADELAIDE, 18 April 1996 #DATE 18:4:1996 #ADD 20:5:1996

Counsel for appellant:     Mr S MacFarlane

Solicitors for appellant:    Rainford and Associates

Counsel for respondent:     Ms J Olsson

Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed.

JUDGE1 PERRY J The appellant appeals against the sentence imposed upon him following his plea of guilty in the Magistrates Court sitting at Coober Pedy to three counts in a complaint which asserted a total of some seven counts of being unlawfully on a precious stones claim and larceny from a precious stones claim.

2. Two of the counts to which the appellant pleaded guilty alleged that on two separate occasions between 28 September 1995 and 20 October 1995 he entered upon a precious stones claim without authority, in breach of s51 of the Mining Act 1971.

3. The third count to which he pleaded guilty was that between 19 and 20 October 1995, at Coober Pedy, he stole precious stones, namely opals, from land comprised in a mine the property of another person, contrary to s152a of the Criminal Law Consolidation Act 1935. The remaining four counts were withdrawn.

4. In the court below the appellant was represented by counsel who made submissions on his behalf.

5. The learned sentencing Magistrate imposed a penalty of 12 months imprisonment with a non-parole period of nine months. He declined to accede to a submission that he should suspend the sentence.

6. In his notice of appeal the appellant complains that the learned sentencing Magistrate erred in law by imposing a sentence "which was of greater severity than a sentence imposed by him on a co-offender in respect of the same offence" and that in the circumstances, the sentence was manifestly excessive.

7. The reference to the sentence imposed on a co-offender is a reference to the sentence imposed by the same Magistrate earlier on the same day on one Benjamin Bernhardt, who pleaded guilty to a charge corresponding with the charge against the appellant of larceny of opals from the mine in question. In addition, Mr Bernhardt was sentenced for a driving offence relating to the same occasion as that upon which the other offences were committed.

8. In the case of Mr Bernhardt, he was given a sentence of imprisonment of nine months with respect to the larceny charge, but that sentence was suspended upon his entry into a bond to be of good behaviour for a period of three years.

9. The circumstances in which the offences were committed are outlined in an affidavit of the police prosecutor Mr Semmens. Other details of the course of events in the court below are given in the affidavit of Mr Proud, who was counsel for the appellant before the learned sentencing Magistrate.

10. It appears that the appellant came to the mine in question on the night of 19 October 1995, in company with Mr Bernhardt and a third man. He left the scene but returned a short time later. During the intervening period the police arrived, keeping at a distance and observing the mine in a clandestine fashion.

11. The appellant then entered the mine with the third man, leaving Mr Bernhardt in his vehicle, that vehicle having been used to transport the three men to the mine site. Charges were put into the mine, which were blasted, and a quantity of opal of the value of $115 was taken and placed in the vehicle. The three men left in the vehicle. Police followed in other vehicle and a high speed chase ensued. Following that, the appellant was apprehended. He was co-operative with the police and made full and frank admissions, not only as to what had occurred that night, but also to the effect that he had been on the mine on two previous occasions without lawful authority. The appellant also gave some other assistance to the police with their investigations.

12. The appellant is aged 27, and is a married man with two young children. At the time in question he was an unemployed miner, in receipt of unemployment benefits. The submission was made by his counsel to the learned sentencing Magistrate that he was driven to commit the offences in question by reason of his poor financial position. It was put that the three men were jointly involved in the offences, and that there was no ringleader.

13. The appellant has a record of prior offending, a report as to which was before the learned sentencing Magistrate. He was convicted in 1988 of possessing equipment to administer a drug, and possessing a drug for sale, and also in the same year for disorderly behaviour. Later in 1988 he was convicted of offensive language and resisting the police.

14. In September 1988 he appeared before the court on a number of charges, including escaping lawful custody, driving without due care, failing to comply with a bail agreement and driving in a reckless or dangerous manner.

15. In October 1988 there were other traffic offences, and in December 1988 a traffic offence coupled with offensive language and assaulting police. In 1989 he was convicted of carrying an offensive weapon, and in 1990 of further drug offences. In the same year, that is 1990, he was convicted of larceny from a dwelling house and in 1995, further traffic offences.

16. During the course of his sentencing remarks the learned sentencing Magistrate commented on some of the unique features of Coober Pedy and of the fact that offending of the kind in question was there regarded seriously. He commented on what he described as "an emphatic need to deter other moonlighters", and drew attention to the potential for violent responses towards such people if the owners of claims caught them in the act. He observed that the appellant admitted to setting the charges in the mine shaft and playing an active role in removing the opal.

17. He went on to refer to what he regarded as grounds of distinction between the circumstances of the appellant and those of the co-offender Bernhardt. In that respect, he said "The circumstances of the involvement of the co-offender Bernhardt and his antecedent are distinguishable from those of this defendant, and the sentencing remarks I have made in relation to him (that is Bernhardt) make the difference apparent". In short, the prosecution accepted that Bernhardt went to the scene with the two co-offenders without prior knowledge of what was to occur there. When he did find out what the others intended he took no active role, but simply remained in the motor vehicle and waited. The learned sentencing Magistrate commented further that Bernhardt was in fear of his safety, and furthermore Bernhardt "came before the court without previous convictions of any nature". His reasons for suspending Bernhardt's sentence are set out in the sentencing remarks which he made when dealing with Bernhardt, a copy of which he attached to his sentencing remarks with respect to the appellant.

18. On the hearing of the appeal Mr MacFarlane, who appeared for the appellant, contended that there was no valid reason to distinguish between the two co-offenders, and that the disparity in the sentences given to the appellant on the one hand and Bernhardt on the other, called for intervention in favour of the appellant.

19. In my opinion, there was every reason to distinguish between the two, and there is no error demonstrated in the action of the learned sentencing Magistrate in taking the course which he did.

20. There has been no challenge during the course of the appeal to the factual accuracy of the remarks from which I have just quoted in which the Magistrate was at pains to draw attention to the different level of involvement between the two men in the larceny offence. Furthermore, it appears that Bernhardt had no criminal record whereas the appellant had a record encompassing the matters to which I have already referred.

21. Mr MacFarlane suggested that the appellant's only relevant previous conviction was that for larceny in 1990. But I tend to think that in sentencing the appellant, and also in considering whether or not there was "good reason" to suspend the sentence within the meaning of s38 of the Criminal Law Consolidation Act, it was incumbent upon the learned sentencing Magistrate to have regard to the whole of the appellant's criminal history.

22. True it is that some of the offences of which he had been previously convicted are relatively minor. But the consistency of the prior offending and the fact that it went on over a long period of time was unquestionably a matter to be taken into account.

23. Mr MacFarlane went on to suggest that in any event the level of the penalty imposed was too high. He attempted to draw an analogy with the penalties imposed with respect to shoplifting offences.

24. With respect to Mr MacFarlane, I can see no basis whatever for making any sort of comparison between shoplifting offences and offences committed in the dead of night in the bottom of a mine shaft at Coober Pedy, involving unlawfully blasting into a mine owned by someone else and removing opals. The maximum term of imprisonment under s152a is a term of imprisonment not exceeding five years. The penalty imposed in this case, compared with the statutory maximum, could not be said to be excessive.

25. Mr MacFarlane went on to suggest that the learned sentencing Magistrate placed too much weight on the need for general deterrence at the expense of giving proper weight to the factors personal to the appellant.

26. I do not read the learned sentencing Magistrate's remarks as to penalty as suggesting that he committed any error in that respect.

27. In the first place, he was entitled to give appropriate weight to general deterrence. Furthermore, the law has long recognised the advantage held by local Magistrates in understanding the need in their own bailiwick, as it was once called, to deal appropriately with offences prevalent in the area, or which, because of local considerations, should be regarded as more serious than otherwise might be the case.

28. This Magistrate was experienced in dealing with the problems facing the community at Coober Pedy. His view that the particular nature of the offence, given the local situation and the peculiar conditions associated with a mining community, called for an appropriately severe penalty which would emphasise the need for general deterrence, was one to which due weight must be given on appeal.

29. There is the added factor that offences of this kind are difficult to detect.

30. It is not insignificant that the appellant has not challenged the accuracy of any of the comments made by the learned sentencing Magistrate, either as to matters of fact or as to any question of principle, except to suggest the learned special Magistrate placed too much weight on some matters at the expense of others.

31. As to factors personal to the defendant, there is nothing to suggest that the learned sentencing Magistrate failed to take into account all of the matters that had been put to him in that respect by the appellant's counsel. The question whether or not the sentence was to be suspended was entirely a matter for the discretion of the learned sentencing Magistrate, bearing in mind the obvious differences between the circumstances, both personal and as to the commission of the offence, attaching on the one hand to the appellant and on the other to Bernhardt. No error is demonstrated by reference to the fact that Bernhardt's sentence was suspended whereas this appellant's sentence was not.

32. As Ms Olsson pointed out in her submissions made on behalf of the respondent, in sentencing co-offenders it is appropriate to make such distinctions in the sentences imposed as may "fairly reflect differences in the respective degrees of culpability" and such as may also take account of differences in the individual circumstances of the co-offenders: see R v MacGowan (1986) 42 SASR 580 per King CJ at 583. Either in comparison with the sentence imposed on Mr Bernhardt, or viewed discretely, I am unable to discern any error in the process of reasoning adopted by the learned sentencing Magistrate which led him to impose the sentence under appeal.

33. The appeal is dismissed.

34. (FOLLOWING DISCUSSION AS TO THE MANNER IN WHICH THE APPELLANT WAS TO SURRENDER HIS BAIL)

35. I order that the appellant surrender himself within seven days of today by appearing in the Magistrates Court for the purposes of being taken into custody to serve out the term of imprisonment. I further direct that he may comply with that order by appearing in any Magistrates Court sitting in any place which may be convenient for that purpose.

36. No order as to costs.