McCloud v Police - [2005] SASC 257

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCCLOUD v POLICE
Judgment of The Honourable Justice Layton
13 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED - POSSESSION OF PROPERTY STOLEN OR SUSPECTED TO BE STOLEN OR UNLAWFULLY OBTAINED
Appellant pleaded guilty to offence of unlawful possession -s 41 Summary Offences Act 1953 (SA)- magistrate sentenced appellant to period of 8 months imprisonment -suspended on entering a 30 month good behaviour bond-appellant appeals on grounds sentence manifestly excessive-consideration of penalties other than imprisonment- whether too much weight placed on prior criminal record- whether sufficient weight given to circumstances of offending and personal circumstances of appellant- whether magistrate erred in considering elements of the offence for theft and the offence of unlawful possession.
Sentence within penalties envisaged by Parliament for offences of this kind - prior offending relevant to the sentencing process-appropriate weight given to prior offences, the circumstances of offending, the personal and financial circumstances of appellant in deciding the appropriateness of sentences other than imprisonment- no error in consideration by magistrate of the elements of unlawful possession-sentencing an exercise of judicial discretion-Appeal dismissed.
Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 13, referred to.
Dinsdale v R (2000) 202 CLR 321; Elliott v Harris (No 2) (1976) 13 SASR 516; House v R (1936) 55 CLR 499; Godfrey v SA Police [2003] SASC 294; Markarian v The Queen [2005] HCA 25; R v Doecke (1999) 205 LSJS 304; R v O'Keefe [1969] 2 QB 29; Veen v The Queen [No 2] (1988) 164 CLR 465; Wittwer v Police [2004] SASC 226, considered.

MCCLOUD v POLICE
[2005] SASC 257
Magistrates Appeal

LAYTON J: This is an appeal against sentence.
On 8 March, the appellant, Aaron McCloud pleaded guilty to the offence of unlawful possession and was sentenced to a period of 8 months imprisonment which was suspended upon him entering a 30 month good behaviour bond. The learned Magistrate declined a financial penalty being imposed and ordered only that the court fees, levy and counsel appearance fees be paid by the appellant.
The particulars of the complaint were:
On the 19^th day of July, 2004 at Christie Downs in the said State had in his possession personal property namely an overhead projector which either at the time of such possession, or at a subsequent time before the making of this complaint in respect of such possession, as reasonably suspected of having been stolen or obtained by unlawful means.
The relevant statutory provisions of the offence under the Summary Offences Act1953 (SA) (“the Summary Offences Act”) are:
41—Unlawful possession of personal property
(1)A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2)It is a defence to a charge for an offence against this section to prove that the defendant obtained possession of the property honestly.
(3)If personal property is proved to have been in the possession of a person, whether in a building or otherwise and whether the possession had been parted with before the hearing or not, it will, for the purposes of this section, be taken to have been in the possession of that person.
Preliminary issues
There were two preliminary issues, first, an extension of time in which to file the Notice of Appeal, and secondly substituting amended grounds of appeal. With regard to these issues, I granted an extension of time in which to appeal and I also granted liberty to amend the Notice of Appeal in the terms set forward in the Proposed Amended Grounds of Appeal dated 5 June 2005 (hereinafter referred to as the Grounds of Appeal).
Grounds of Appeal
Five grounds were contended, namely,
1.The Magistrate erred in failing to consider penalties other than imprisonment.
2.The Magistrate erred in considering that the fact that the appellant did not commit the theft of the projector provided a basis for reduction in sentence.
3.The Magistrate erred in placing too much weight on the Appellant’s prior criminal record.
4.The Magistrate erred in failing to give sufficient weight to the following factors:
4.1    The circumstances of the offending.
4.2    The personal circumstances of the Appellant.
5.     The sentence was manifestly excessive.
Counsel for the appellant submitted that the major ground was Ground 5, namely, that the sentence was manifestly excessive and the four previous Grounds were relied on in support of his contention that the sentence was manifestly excessive.
Background
The background facts appear from affidavits sworn as to the matters before the Magistrate at the time of sentencing. The first is an affidavit of Andrew Heffernan sworn on 20 May 2005. The second being an affidavit of Kathryn Nicole Waite of 1 June 2005.
These two affidavits reveal that the Magistrate was informed that at the time of the offence the appellant was a 36 year old man with full time custody of his two children, aged nine and six years and that he received a Supporting Parents Pension and resided in a South Australian Housing Trust home with his children. The appellant, through his counsel, submitted to the Magistrate that the appellant’s former partner had brought the projector into the home and that he did not question its origin as his partner told him that she had obtained it through “some deal with the school”. The appellant also acknowledged “with the benefit of hindsight, that he had reason to be suspicious of the origin of the projector… particularly given the lack of purchase receipt or other indicia of legitimate sale.”[1] The appellant indicated to the Magistrate that when his partner left the house she left a number of personal belongings including the projector and that he continued to use the projector.
[1] Affidavit of K N Waite, solicitor for the appellant, filed 1 June 2005.
The prosecutor submitted to the Court that approximately a year after the overhead projector was stolen from the Lonsdale Heights Primary School on 29 May 2003, the police received information which led them to attend the home of the appellant on Monday 19 July 2004, where they located an overhead projector. The police ascertained that the projector was the property of the Lonsdale Heights Primary School because the identification engraving on the projector was scratched out and that the appellant could not produce receipts for its purchase. The prosecutor stated that the appellant was generally found to be polite and cooperative with the police.
Counsel for the appellant, who was also counsel before the Magistrate, indicated that the appellant had spent some hours in custody as a result of being apprehended on a warrant following his non-appearance in court for this offence.
In submissions, counsel for the appellant highlighted the mitigating circumstances of the offence, drawing attention to the fact that the offence was in the lower end of the spectrum for offending, the only other relevant offence was eight years prior. She also submitted it was unlikely the appellant would offend again given his embarrassment over the current offence and because he had the fulltime custody of his children.
Issues on Appeal
Sentences other than imprisonment
Counsel for the appellant submitted that the Magistrate erred in not having regard to a sentence other than imprisonment, for example, a fine, a bond or community service. Further, reliance was placed on the case of R v Doecke[2]. In particular the counsel contended that imprisonment is a penalty of last resort and that the Magistrate did not give a true consideration of such alternatives.
[2] (1999) 205 LSJS 304.
In addition, counsel for the appellant argued that in proceeding to impose an imprisonment term which was suspended, paragraph 6 of the sentencing remarks suggest that the refusal to proceed by way of a fine but instead proceeding to impose a suspended period of imprisonment, seemed to be based solely on the prior record of the appellant. In the alternative, it was submitted that the Magistrate placed too much weight on the appellant's prior criminal record. The previous conviction was for unlawful possession of a neighbour's motorcycle for which the appellant, on 26 June 1997, was convicted and sentenced to six-months imprisonment which was suspended for a period of two years on the condition that he paid compensation.
Counsel for the respondent in response to these submissions pointed to paragraph 6 of the Sentencing Remarks of the Magistrate in which he submitted the Magistrate specifically addressed the contention made before him that he should proceed by way of a fine, and then concluded that it would be inappropriate to do so. Paragraph 6 reads as follows:
[6] I am asked to proceed by way of a fine. I think that in the circumstances where you have been found in possession of an article of some not inconsiderable value that your relevant court appearances, although less than eight years earlier, is nevertheless a relevant matter for consideration. You were sentenced some seven years earlier so I take that period into account. One cannot simply turn a blind eye to being in possession of things that one has suspicions about. It provides encouragement for others to commit offences although I am not suggesting that you were responsible for taking the projector. I think it would be inappropriate to proceed by way of a fine.
Counsel for the respondent also submitted that the Magistrate did consider other options other than imprisonment and that s 11 of the Criminal Law (Sentencing) Act1988 (SA) (“the Sentencing Act”) was relevant. Section 11 indicates that a sentence of imprisonment may only be imposed if one of a number of enumerated factors is made out and one of factors is that the appellant “has previously been convicted of an offence punishable by imprisonment”. It was submitted by counsel for the respondent that the appellant was such a person by virtue of s 11(1)(a)(iii), and therefore imprisonment was an appropriate consideration. In addition it was submitted that the Magistrate was entitled to conclude that any other sentence, in particular a fine, "would be inappropriate" having regard to the gravity and circumstances of the evidence pursuant to s 11(1)(a)(iv) of the Sentencing Act.
In considering these arguments I have regard to the following matters.
First, that the pre-requisite criteria which may found imprisonment was made out as the appellant “has previously been convicted of an offence punishable by imprisonment” in accordance with s 11(1)(a)(iii).
Second, it is not necessary for the Magistrate to expressly set out each of the mitigating factors which he considered. There is nothing in the reasons which suggests that the Magistrate did not consider the mitigating factors, even though he did not refer to all matters put to him in his reasons for decision.[3] As counsel for the respondent submitted, it was not necessary for the Magistrate to set out each and every combination of potential penalties if he was satisfied that any penalty, such as a fine or similarly a bond or community service, was inappropriate.
[3] Godfrey v South Australian Police [2003] SASC 294 at [15] per Doyle CJ.
Third, in relation to the imposition of a fine, the Magistrate expressly deals with that issue in paragraph 6 of his reasons. It is significant that the Magistrate declined to order any financial penalty and limited any payment by the appellant to court fees, a levy and the prosecutor’s appearance. Bearing in mind the appellant's financial circumstances, due to him having given up his previous employment as a linesman to be a full-time primary caregiver with full custody of his two children and that he was in receipt of a Supporting Parents Pension, it is not surprising that the Magistrate did not consider a fine to be appropriate for that reason alone.[4]
[4] Note also the provision of s 13 of the Criminal Law (Sentencing) Act1988 (SA).
Fourth, the imposition of a sentence of imprisonment was within the penalties envisaged by Parliament in the Summary Offences Act for offences of this kind.[5]
[5] s 41 Summary Offences Act 1953 (SA).
Fifth, the reasoning of the Magistrate does not suggest that it was the prior conviction alone which was the factor which led to his Honour’s conclusion that it was appropriate to order a suspended sentence of imprisonment. Paragraph 6 of his reasons, in conjunction with matters referred to in paragraphs 3 and 7 of his reasons refer to a number of matters other than the previous court appearance almost eight years earlier. The matters which are specifically expressed in those paragraphs include, the “not inconsiderable value” of the projector, the circumstances giving rise to the appellant being in possession of the projector and concern about general deterrence and the need to avoid encouragement to other persons to commit offences.
Sixth, in relation to the argument that the Magistrate had placed too much weight on the prior offending of the appellant, I note that a longer history of prior offending was presented to the Magistrate by the Police Prosecutor (set out in an affidavit of Andrew Heffernan sworn 20 May 2005), for various offences of breaking and entering and unlawful possession dating back to 1984 which included the imposition of fines, suspended sentence bonds and community service. These matters were not considered by the Magistrate who expressly indicates in his reasons for decision in paragraph 5 that the appellant had "one relevant previous court appearance on 26 June 1997". Prior offending is plainly relevant to the sentencing process as the High Court has noted in the case of Veen v The Queen [No 2],[6]
…to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows… a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.[7]
[6] (1988) 164 CLR 465.
[7] Veen v The Queen [No 2] (1988) 164 CLR 465 at 477-478.
The High Court in Veen also rejected the argument that criminal history was relevant only to a claim of leniency. It was also appropriate to be considered as a circumstance, indicating in effect an aggravating circumstance, and that it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties for that not to be so.
There is nothing contained in the Magistrate’s reasoning which suggests that there was too much weight placed on the appellant's prior court appearance on 26 June 1997, instead it was appropriately regarded by his Honour as one of many factors which he took into account.
Finally, I turn to the submissions by the appellant as to the case of R v Doecke.[8] This case concerned an appeal against sentence imposed for unlawful possession. The appellant in that case was charged with two offences of larceny and sentenced to one month imprisonment suspended upon entering a two year good behaviour bond. The appeal challenged the sentence on the basis of the inappropriateness of a suspended sentence, the failure to consider alternative options to imprisonment and the consideration of prior offences of unlawful possession.[9] Mullighan J, in writing the lead judgment in the case before the Criminal Court of Appeal referred to the words of Lord Parker in the case of R v O’Keefe[10] on the correct approach to sentencing.
…it seems to this court that before one gets to a suspended sentence at all, the court must go through the process of eliminating other possible course such as absolute discharge, conditional discharge, probation order, fines and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, should be: is immediate imprisonment required, or can a suspended sentence be given?
[8] (1999) 205 LSJS 304.
[9] R v Doecke (1999) 205 LSJS 308 at 3 per Mullighan J.
[10] [1969] 2 QB 29 at 32.
In stressing the seriousness of a suspended sentence[11], the court in Doecke held that the sentencing judge gave too much weight to the prior offences of unlawful possession and given that the appellant was influenced to commit the crime by her abusive partner, the sentence of imprisonment, even if suspended, was manifestly excessive. In re-sentencing the appellant, by ordering a good behaviour bond for 18 months and an order that she undertake community service, the Court of Criminal Appeal allowed the appeal.
[11] Elliott v Harris (No. 2) (1976) 13 SASR 516 at 527.
However, the Doecke case differs from the case at bar as to the facts and the approach taken by the Magistrate. In this case the Magistrate’s remarks indicate that he considered the financial circumstances of the appellant and the submissions by the appellant that his former partner had brought the projector into the home. Unlike Doecke, the appellant in this case was not influenced by any abusive partner to commit the crime and the Magistrate did not appear to give undue consideration to the 1997 offence.
For the above reasons, I do not consider that the Magistrate in deciding to impose a suspended sentence disclosed error in his reasoning, as submitted by counsel for the appellant.
Rejecting theft was not a proper basis for reduction in sentence
Counsel for the appellant argued that there were two passages of the sentencing remarks of the Magistrate which demonstrated that he had wrongly blurred the elements of the offence of theft with the elements of unlawful possession, so that in accepting that the appellant was not guilty of theft, he wrongly used that finding in the sentencing process. It was submitted that the theft of the property was an entirely different offence and should not have been a consideration at all in imposing sentence.
The relevant passages complained of by the appellant are in paragraph 6, in which the Magistrate says:
…It provides encouragement for others to commit offences although I am not suggesting that you are responsible for taking the projector.
And further at paragraph 7 of the sentencing remarks, his Honour states:
…All other things aside, I would have imposed a period of 12 months imprisonment on you but in view of the fact that it goes in your favour which includes the fact that I am not suggesting that you took the projector, I reduce that to a period of eight months.
In my view, the paragraphs complained of do not indicate that the Magistrate has wrongfully taken into account elements of another offence and then used the absence of those elements, as a matter in mitigation of sentence. It is clearly relevant for the Magistrate to have regard to the circumstances by which the appellant came to be in possession of the projector. His Honour, in paragraph 3 of his reasons, accepts that it was the appellant's former partner who brought the projector into the home and that it remained in the home in the possession of the appellant by reason of her having left that object together with other objects with the appellant, when she left the house. The Magistrate did not appear to be confusing two separate offences. Instead the Magistrate, in the context in which he stated this situation, was simply adverting to the fact that the appellant was not responsible for the fact that the projector was brought into his home. I agree with the submission made by counsel for the respondent that in using the phrase "taking the projector" the Magistrate was not referring to theft but rather to the fact that it was not the actions of the appellant which led to the projector being in his possession, rather it was the actions of his former partner. I therefore reject this as reflecting any error on the part of the Magistrate.
Manifestly Excessive Sentence

For the offence of unlawful possession, the Summary Offences Act requires that the maximum penalty be a fine of $10,000 or two years imprisonment.[12]
[12] Summary Offences Act 1953 (SA) s 41.
The appellant argued that in all of the circumstances, the starting point of 12 months was too high and that the resultant reduction to eight months was manifestly excessive.
An imposition of a sentence is an exercise of judicial discretion and an appellate court interferes with such an exercise of discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or has allowed irrelevant considerations to influence him or her, or has failed to have regard to a relevant consideration or that the sentence is so obviously unreasonable or unjust that it can be concluded that there must have been a failure to exercise the discretion properly.[13]
[13] See Markarian v The Queen [2005] HCA 25 at [25]; House v R (1936) 55 CLR 499 at 505; Dinsdale v R (2000) 202 CLR 321at 324-325; Wittwer v Police [2004] SASC 226 at [16].
In deciding not to impose a term of imprisonment of 8 months, and then to suspend the term, was well within the sentencing discretion of the Magistrate. The appellant had a previous conviction not just for any offence but in particular the offence of unlawful possession. He was not a youth but was aged 36 at the time of the commission of this offence. The previous offence having occurred when he would have been 28 years of age. He also acknowledged his guilt in the terms set out in the affidavit of Ms Waite.
It is arguable that another magistrate or judge considering the same circumstances, may well have taken a more lenient view and a lesser sentence may have been imposed, bearing in mind that the offending was of a lower order and that the only previous relevant conviction was some eight years earlier. However, that is not the test as to whether a sentence is manifestly excessive. I do not consider that this ground is made out.
Time in custody
Counsel for the appellant submitted to the Magistrate that the time spent in custody should be counted towards penalty and further that a fine would be an appropriate penalty. On the appeal before me, this ground was not strongly argued, and in my view quite rightly. I consider that the time spent in custody in this case is not relevant to be considered as an appropriate aspect of mitigation when that time spent in custody resulted from the appellant's own failure to attend court on a previous occasion thereby leading to him being arrested on a warrant and as a result spending time in custody.
Further, as counsel for the respondent admitted, even if it was to be the case that a few hours were to be taken into account, this would not have in any event significantly affected an outcome of a suspended period of eight months imprisonment.
In summary, I consider that notwithstanding that counsel for the appellant put all that could have been said on behalf of the appellant in a detailed argument, none of the grounds of appeal can be sustained. This appeal is therefore dismissed.