MCDONALD v POLICE No. SCGRG-97-1701 Judgment No. S6525

[1998] SASC 6525

McDONALD v POLICE

Magistrates Appeal
Olsson J

The appellant appeals against a single custodial sentence imposed on him on 28 November 1997, by a stipendiary magistrate, pursuant to the provisions of section 18A of the Criminal Law (Sentencing) Act, 1988.  He complains that such sentence is manifestly excessive in all the circumstances.

Timely pleas of guilty were entered by the appellant to six separate charges preferred against him.  These related to three offences of housebreak, enter and larceny and three offences of false pretences.

The housebreak offences were all committed against a single victim, between 20 August and 8 October 1997.  The door of the victim’s then unoccupied house property at Bolivar was forced and goods to a total value of $9,337 were stolen.  Only some of these items were recovered and returned to the victim.  Although there were, technically, three offences, the practical situation was that, following the initial break in, the appellant simply made two additional trips to remove items from the property.  In reality it was a single, continuing offence.

The other three offences related to the purported sale to Gepps Cross Cash Converters, between 23 September and 7 October 1997, for a total sum of $250, of chattels stolen by the appellant.  Some, if not all, of these were the product of the larcenies charged.

When questioned by the police the appellant made full and frank admissions concerning the offences.  He said that, whilst out walking, he came across the victim’s unoccupied house property, forced an old door on the side of the house and made several trips to take contents from it.  He conceded attempts to sell or pawn various items.  Other items were thrown away by him into an industrial waste bin.

At the time of sentencing the appellant was serving a pre-existing custodial sentence of 21 months for offences of larceny, possessing housebreaking implements and receiving.  His non parole period in respect of those offences was six months, commencing on 9 October 1997.  The offences were committed to support the appellant’s then continuing drug abuse habit.

The learned magistrate imposed a composite additional head sentence of three years in respect of all six counts to which the appellant pleaded guilty, cumulative upon that then being served.  He fixed a new non parole period of two years and six months and also made compensation orders - $4,000 in favour of the victim of the breaking offences and $200 in favour of Gepps Cross Cash Converters.

The appellant’s antecedent record was tendered to the learned magistrate.  It disclosed that he was a man 25 years of age who had a substantial record of convictions for offences dating back to mid 1987, many of them being offences involving dishonesty.  Some convictions were in respect of drug offences.

The appellant was not represented by counsel before the learned magistrate.

Submissions made by the appellant in mitigation revealed the following information:-

.he was a married man with two young children.  Until imprisoned he had been in regular employment in the tree industry.  The sentence imposed on him in October 1997 was the first custodial sentence that he had ever served.

.he had been addicted to amphetamines for about three years and all of his more recent offending up to and including October 1997 had been to get money to satisfy his addiction.

.he asserted that “weak” penalties imposed on him as a juvenile had encouraged him to offend as an adult.

.he stated that work was available to him on release.  [This has subsequently been confirmed in affidavits sworn by himself and his solicitor and a letter from a potential employer.]

.he had had no place of abode since the age of 13.  His parents had separated when he was 6 years old and he had remained with his mother until he was 13.  However, she had lived with several husbands, who were alcoholics.

.when he was about 23 years of age he was having problems with his girlfriend.  A friend introduced him to amphetamines and this led to his addiction.  Earlier drug offences in 1993 related to marijuana and amphetamines.

In the course of his sentencing remarks the learned magistrate said that he regarded the repeated breaking offences as particularly serious, particularly having regard to the impact of repeated offences on the victim and the fact that offences of that type were rife in his magisterial area.  He drew attention to the appellant’s previous record of dishonesty and the fact that he had offended whilst on bail in respect of earlier offences.

The learned magistrate considered that an immediate and substantial period of imprisonment was the only appropriate penalty.  However, he stated that, in fixing the term actually imposed, he gave credit for the pleas of guilty by reducing the term of imprisonment by one third i.e. his notional commencement point was a custodial sentence of 4½ years.

In an affidavit tendered at the appeal the appellant deposed that the crimes for which he was sentenced by the learned magistrate were not designed to support his drug habit.  He was in debt to the extent of $13,500 for loans, outstanding rent and fines and knew that he was likely to be going to gaol for earlier offences.  His wife was left in dire financial circumstances, having to survive on a pension of $590 per fortnight and support three very young children.

The appellant further deposes to the fact that his earlier custodial sentence has “served to snap me out of my foolish way of thinking”.  Whilst in gaol he has been involved in computer studies and has joined a Christian Fellowship.  He says that all he now desires is to be a good father and a good husband.  He expresses his confidence in becoming a productive member of society.  He asserts that, when he appeared before the learned magistrate, he had served 1½  months of his earlier sentence and this had already had a profound affect on him, in terms of rehabilitation.  However, this, seemingly, made little impact on the learned magistrate.

The appellant’s current release date is not until 8 April, 2000, on the basis of the sentence now appealed against.  It is said that this will occasion considerable hardship to his wife and children and impede, rather than further, his rehabilitation.

The appellant asserts that his background has had a lot to do with his offending.  At age 13 he was placed in a community welfare home, where he socialised with delinquents, used drugs and offended.  He claims that he no longer has a drug problem and has good job prospects on his ultimate release, due to his acknowledged expertise in tree lopping and felling.

In his outline of submissions Mr Dadds, of counsel for the appellant, specified a formidable list of complaints.  In my view it is not necessary to traverse all of them in detail.  I shall simply refer to several key aspects.

At the outset Mr Dadds complained that, given that the appellant was unrepresented, the learned magistrate ought, at the very least, to have sought a pre-sentence report and pointed out to him, in fairly forceful terms, that a substantial custodial term was potentially in prospect and he should definitely seek legal representation.  In this regard he made reference to what was said in McFadzean v Hayes (1986) 133 LSJS 142 at 144-5 and Kenchington v Shepherd (Olsson J, 12 January 1990, S2051, unreported).

I think that there is force in that contention.  The matters put by the appellant to the learned magistrate plainly demanded some consideration if he was contemplating a very substantial head sentence.  It was a situation in which more than the somewhat inarticulate submissions of the appellant in person were highly desirable, as a matter of common fairness.

As I said in McFadzean v Hayes (supra) and reiterated in Kenchington v Shepherd (supra), even given the pressure under which courts of summary jurisdiction are frequently asked to operate, great care needs to be taken to explain to an offender the very real dangers of imposition of a substantial custodial sentence (where these exist) and the pressing need for legal representation - as well as securing a comprehensive pre-sentence report, except in the clearest of cases.  I adopt my comments in the former case to the effect that:-

“... it is a grave mistake to assume that lay offenders, in the unfamiliar environment of the dock, are likely to have any real appreciation of what ought to be said by them to ensure that the Court is truly in a position to impose penalty having regard to all relevant circumstances and considerations.

Where, as here, the Court was contemplating imposition of a [substantial] custodial sentence it is simply not satisfactory merely to say to a defendant at the outset of the hearing - if that was said - that matters of the type in question are serious and can attract a [substantial] custodial penalty.”

By any standard a potential head sentence of 4½ years is a matter of grave moment in almost any court.  It ought not to be in contemplation unless a summary court has ensured that all reasonable steps have been taken to examine all relevant aspects of the situation.  In some instances a comprehensive pre sentence report may be the only practical means of so doing, if legal representation is not forthcoming.  The obligation of care above referred to by me does not disappear simply because an ill-advised offender intimates that he or she does not wish to seek legal representation.

The second point raised by Mr Dadds is that a perusal of the sentencing remarks expressed by the learned magistrate suggests that he allowed general considerations, not germane to the specific facts of the case, inappropriately to influence his thinking.  He drew attention to these comments:-

“Offences of house breaking and entry and larceny I regard as particularly serious - having regard firstly to their prevalence - they are absolutely rife in this State to the point that burglar alarms are probably one of the few growth industries in the State - they are particularly prevalent in this court area.  They are serious also having regard to their very nature - I can think of few things more distressing to a person than to come home and find the security of their premises having been breached.  They create not only fear in the victim but also in the wider community - there are many people in this community today who are fearful of even leaving their homes at all having regard to the prevalence of this type of offending.”

I agree with Mr Dadds’ submission that there was a danger of allowing such generalisations to obscure the relevant issues in the instant case.

These were undoubtedly serious offences which cannot possibly be condoned or minimised.  However, the fact remains that the subject house was patently unoccupied at the time and no fear was generated in the mind of anyone.

Next it was said that a review of the remarks of the learned magistrate readily reveals that inadequate consideration was given by the learned magistrate to the true motivation for the offences, the deterrent and rehabilitative affects on the appellant of the custodial sentence already being served by him, the hardship likely to be inflicted on the appellant’s family by a long custodial sentence and the then existing signs of rehabilitation which had already manifested themselves.

All that need be said in that regard is that the remarks expressed by the learned magistrate seem to focus exclusively on factors adverse to the appellant.  No mention is made of those features above identified which ought to have been taken into account in mitigation, as well as the relatively young age of the appellant.

Each of the foregoing matters is of concern in this case, but it seems to me that a final point made by Mr Dadds transcends all of them, in terms of relative importance.

The obvious commencement point of a notional head sentence of 4½ years is highly suggestive of a sentencing approach which, not only seems to have paid scant regard to the totality principle, but also appears, prima facie, to have treated the three breaking offences on the same cumulative basis as three breaks of quite separate premises, i.e. it appears to ignore the single continuing course of conduct which was obviously involved.

Bearing in mind the combined impact of all of these matters I consider that the sentencing process miscarried and that the appellant has demonstrated error which requires that I re-examine the issue of sentence de novo.

Whilst the seriousness of the offending and the aggravating circumstance of the appellant being on bail at the time should be accorded their proper significance, so also should be the other circumstances favourable to the appellant, to which reference has already been made.  I think that there are now some positive signs of rehabilitation, which ought to be recognised and fostered.  They ought not to be discouraged by the imposition of a truly crushing sentence.  The punishment meted out by the learned magistrate was simply too draconian, by any objective test.

The appeal will be allowed and the sentence imposed set aside.  In lieu there will be an order that there be substituted for that sentence an order that the appellant be imprisoned for twenty months, cumulative upon the sentence which was already being served by the appellant at time of sentencing.  There will be a revised non parole period of 19 months, to run from 9 October 1997.  In arriving at that result I have allowed the same tariff discount as the learned magistrate for the timely pleas of guilty.