Mayfield v Police No. Scgrg-99-141 Judgment No. S204

MAYFIELD v POLICE
[1999] SASC 204

Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the sentence imposed upon him following his plea of guilty in the Magistrates Court sitting at Elizabeth to a charge that on 9 September 1996 at Hillbank he received a walkman, a beanie and two cameras, together of the value of about $350, knowing them to have been obtained in circumstances amounting to an offence contrary to s196(1) of the Criminal Law Consolidation Act 1935. Upon the appellant's plea of guilty to that count, three other counts of theft, break and enter and unlawful possession were withdrawn.
At the same time, the appellant pleaded guilty to charges of disorderly behaviour, that offence having been committed on 7 May 1998, and of resisting arrest, that having occurred on 27 October 1998.
He also admitted a breach of the bond imposed on 18 June 1998, that breach being the resist arrest count to which I have just referred.
So far as the receiving offence is concerned, the Court was informed that the goods in question were stolen from a house at Davoren Park, and the items were found in the appellant's possession about a fortnight later. The appellant admitted that he had obtained the property from other persons knowing it to have been obtained unlawfully.
The prosecutor in the court below informed the court that on the day of the break-in, a witness had seen two male persons who were otherwise unidentified carrying property from the victim's home and getting into a sedan parked nearby. The registration number was noted and led the police to the defendant's mother, who was the registered owner of the car. That brought the police in turn to the appellant's home. He admitted driving the car on the day in question, but denied that he was in the street where the victim lived and suggested other persons may have been using the car at the time without his knowledge.
The appellant, through his counsel, admitted the offences to which I have referred and submitted that his client was in no way involved with the offences of larceny and breaking and entering the house of the victim and that he had come into possession of the items after some acquaintances of his had attended his house on 8 September 1996. After those friends had left, he saw the items in his car and in a room. He suspected that the property may have been stolen, given his knowledge of the acquaintances. He made no further inquiries of the acquaintances and did not turn his mind to considering the consequences of the possession. According to his counsel before the learned sentencing magistrate, he had not made up his mind about what he was going to do with the property, at the time the police apprehended him.
The appellant is a young man aged 24 years. Despite his youth, he had a shocking record of prior convictions extending over some 21 pages. They involved offences of dishonesty, some street offences, a number of drug offences and offences involving violence.
It appears that he was dealt with in the Adelaide Magistrates Court on 9 June 1995 for seven dishonesty offences, for which he was sentenced to 35 months and 25 days' imprisonment. At least, that was the total head sentence after allowing for other unexpired sentences. Against that head sentence of virtually three years, he was given a non-parole period of 12 months.
At the time of the offending now in question, the appellant was on parole, and furthermore, at the date of the commission of the offence, there was one year, 11 months and one day left unexpired of the earlier prison term.
Against that background, the learned sentencing magistrate imposed a sentence of six months' imprisonment on the receiving count, to be served cumulatively upon the balance of the sentence upon which he had been released on parole, to which I have just referred. That gave a head sentence of two years, five months and one day. The learned sentencing magistrate separately ordered that the appellant serve a term of two months' imprisonment on the disorderly behaviour charge, but he ordered that it be served concurrently with the other sentences. He convicted the appellant without penalty on the charge of resisting arrest.
As to the breach of bond, the learned sentencing magistrate ordered that the appellant serve the term of imprisonment which had been suspended upon his entry into the bond, namely, a period of four months' imprisonment, but directed that that term be served concurrently with the terms of imprisonment which he had otherwise ordered. In the result, the head sentence remained at two years, five months and one day.
Against that head sentence, the learned sentencing magistrate set a non-parole period of six months.
In his amended grounds of appeal, the appellant complains that the learned sentencing magistrate erred in imposing sentences which were manifestly excessive; in failing to suspend the periods of imprisonment imposed upon the appellant; and in failing to give sufficient weight to the appellant's age and his prospects of rehabilitation.
It was his prospects of rehabilitation which loomed large in the very helpful and comprehensive submissions which were advanced by Mr Tothill on behalf of the appellant on the hearing of the appeal. He drew attention to the fact that it was on 18 June 1998 when the appellant was released on a bond; that the learned sentencing magistrate on that occasion took the view that notwithstanding the appellant's record of prior offending, it was appropriate to release the appellant on a bond, and at the same time he refrained from activating the balance of the sentence of imprisonment upon which the appellant had previously been released on parole.
There is no question that that was a merciful course, no doubt well considered by the magistrate at the time.
Mr Tothill from that point argued that the effect of the sentence under appeal imposed on 11 March 1999 was effectively to frustrate the opportunity for rehabilitation which had been created by the learned sentencing magistrate who dealt with the appellant in June last year.
That argument has a lot of force. This court has long recognised the undesirability of a subsequent sentencing court imposing a sentence which frustrates an opportunity for rehabilitation that has been created by a court which has dealt with the offender on an earlier occasion. The leading authority which deals with the matter is Power v French.[1] However, as Mr Ahern for the respondent pointed out during the course of argument, that case may, in one sense, at all events, be distinguished on the footing that there, a carefully constructed sentencing package created by a judge of this court was frustrated by the imposition of a custodial term by a magistrate sitting in judgment upon the offender on a later occasion. It is clear from the judgment of Bray CJ in that case that he took the view that even if the sentencing judge in this court had been aware of the circumstances of the offending dealt with by the learned sentencing magistrate on the later occasion, that would not have affected the sentence which was imposed in this court.
[1] (1973) 6 SASR 100.
One of the problems with this line of argument is that there are frequently occasions when offenders are not dealt with on the same occasion. This is regrettable. It would have been much better, for example, in this case, if the appellant had been dealt with both for the offending upon which he was released on a bond in June of last year and the offending now in question, upon which he was dealt with some nine months later, on the one occasion. Tensions arise when there are successive sentences pronounced some months apart, and in such circumstances the arguments which found favour in Power v French will invariably be put forward.
Mr Tothill for the appellant contended vigorously that the sentencing magistrate who dealt with the appellant in June last year would not have acted any differently and would have given the appellant the benefit of a bond had he dealt with all of the matters at that time, including the receiving and other charges now in question. But to make that assertion involves a good deal of speculation, and I am not prepared to accept it at its face value.
The fact of the matter is that when a defendant comes before the court on a later occasion, having been dealt with leniently on an earlier occasion by the imposition of a non-custodial term of imprisonment, it does not always follow that the second court's hands must necessarily be tied and that, in situations such as those which apply here, the subsequent court must necessarily avoid the imposition of a custodial term. Some offences cannot properly be dealt with other than by a custodial term, even if the defendant has been given the benefit of a bond upon a less serious offence on an earlier occasion and the bond is still current at the time when he is subsequently sentenced on another charge. Circumstances will vary enormously. The best solution is to sentence the offender on one occasion. Courts of summary jurisdiction should do their best to arrange their lists so that that is what occurs.
In advancing those remarks, I do not imply any criticism of the listing procedures which resulted in the fact that the appellant was dealt with on two separate occasions by differently constituted courts, as I do not know the circumstances in which it was that he was so dealt with. But the fact remains that it is much better for people to be dealt with on one occasion so that these arguments and the suggestion that there is some incompatibility between the sentences, does not arise.
However, it falls for me to determine the matter on the basis of the history as it has unfolded and by addressing the question whether the sentences under appeal are manifestly excessive, bearing in mind the manner in which the appellant was dealt with on the earlier occasion in June 1998.
One of the aggravating circumstances is that the appellant was on parole at the time the offences now in question were committed. That is a matter of no little moment in the context of the very weighty submission put forward by Mr Tothill that there are indications that this appellant may have a realisation that he would benefit from rehabilitation, and may be a better prospect for rehabilitation than might have been the case in the past. Mr Tothill emphasised, quite properly, that the sentence in this case was imposed quite some time after the offending and that, in the meantime, the statistics in so far as they appear from the antecedent report indicate what might be described as a thinning out in the frequency and seriousness of the appellant’s offending.
Those are matters which must be taken carefully into account, but it seems to me, on closely considering the matter and on a perusal of the extended, albeit ex tempore, remarks made by the learned sentencing magistrate, that the latter did have in mind the desirability of rehabilitation, but did not see his way clear to deal with the appellant other than on the basis of a custodial term of imprisonment.
Mr Tothill has said everything which could possibly be said in favour of the appeal, but at the end of the day, I am unable to perceive any error in the approach adopted by the learned sentencing magistrate, even though it might be the case that others may have adopted another approach.
Furthermore, the non-parole period of six months, against the overall head sentence in this case, was very short indeed. It may be that it was deliberately fixed at a short period compared with the head sentence in order to give the appellant a substantial period of time when he will be on parole with the benefit of the supervision by parole officers. If, as Mr Tothill suggests, the appellant is mending his ways and is a better candidate for rehabilitation than he has demonstrated in the past, he will have every opportunity to demonstrate that during the lengthy period upon which he will be released on parole after completing the sentence under appeal.
I did consider whether or not the activation of the suspended sentence of four months was unduly harsh, given the disparity between the offence upon which the sentence was pronounced and the activating offence. However, it seems to me that the appellant would be no better off if I disturbed that, as that would then leave the appellant with a four-month sentence of imprisonment still hanging over his head. In all the circumstances, I think it better to leave that aspect of the matter as it is, so that when he is released from gaol at the expiration of the non-parole period of six months the appellant can start life afresh.
In all the circumstances and for those reasons, the appeal is dismissed.

JUDGMENT CITATION

1. (1973) 6 SASR 100.

[1999] SASC 204

14 May 1999