MCGEE v Police - [2017] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCGEE v POLICE
[2017] SASC 13
Judgment of The Honourable Justice Kelly
14 February 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES
Appeal against sentence. The appellant pleaded guilty in the Christies Beach Magistrates Court to failing to provide necessary accommodation, without lawful excuse, to a minor, over a period of eight months, between 1 January 2014 and 3 September 2014, contrary to s 30 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is a term of imprisonment not exceeding three years. The plea was entered on the day of the trial, thereby attracting a discount of 10 per cent by reason of his guilty plea. On 18 November 2016 the appellant was sentenced under the provisions of the Criminal Law (Sentencing) Act 1988 (SA) to eight months imprisonment, with four months of that sentence to be served, and the remainder to be suspended upon the appellant entering into a bond to be of good behaviour for two years.
The appellant appeals on three grounds that: (1) the sentence was manifestly excessive in that the penalty imposed by the Magistrate required the appellant to serve a period of four months imprisonment; (2) the Magistrate erred in failing to exercise the discretion to fully suspend the sentence of eight months imprisonment; (3) the Magistrate erred in failing to consider the application of s 33BB of the Criminal Law (Sentencing) Act 1988 (SA).
Held (dismissing the appeal):
1. Having regard to the serious nature of the offending, the sentenced imposed by the Magistrate was not manifestly excessive.
2. The Magistrate gave due consideration to the application of s 33BB of the Criminal Law (Sentencing) Act 1988 (SA) and in doing so considered that home detention was not a suitable sentencing option. No error was made by the Magistrate in this regard.
3. In deciding to partially suspend the sentence, the Magistrate gave due regard to the need to impose a sentence which would act as an effective deterrent but also provide the opportunity to the appellant, a first offender, to effectively rehabilitate after a short period of imprisonment. In properly exercising her discretion, the Magistrate did not err.
Criminal Law Consolidation Act 1935 (SA) s 30; Criminal Law (Sentencing) Act 1988 (SA) s 33BB, s 38(2a), referred to.
Carusi v Police [2002] SASC 240; Stenecker v Police (2014) 120 SASR 18, considered.

MCGEE v POLICE
[2017] SASC 13
Magistrates Appeal: Criminal
KELLY J.
Introduction

This is an appeal against sentence. The appellant pleaded guilty in the Christies Beach Magistrates Court to failing to provide necessary accommodation, without lawful excuse, to a minor, over a period of eight months, between 1 January 2014 and 3 September 2014, contrary to s 30 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is a term of imprisonment not exceeding three years.
The plea was entered on the day of the trial, thereby attracting a discount of ten percent by reason of his guilty plea. On 18 November 2016 the appellant was sentenced under the provisions of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) to eight months imprisonment, with four months of that sentence to be served, and the remainder to be suspended upon the appellant entering into a bond to be of good behaviour for two years.
The appellant appeals on three grounds: firstly, the appellant complains that the sentence was manifestly excessive in that the penalty imposed by the Magistrate required the appellant to serve a period of four months imprisonment; secondly, the appellant complains that the Magistrate erred in failing to exercise the discretion residing in her to fully suspend the sentence of eight months imprisonment; and thirdly, the appellant complains that the Magistrate erred in failing to consider the application of s 33BB of the Sentencing Act.
Background
The appellant was originally charged with an aggravated offence of endanger life and an aggravated offence of causing harm against a child. Those charges were eventually withdrawn and the prosecution accepted a plea to the charge of failing to provide accommodation to a minor contrary to s 30 of the Criminal Law Consolidation Act 1935 (SA).
The appellant, a 29 year old man, was in a relationship with the child’s mother at the relevant time. Upon commencing that relationship he became the step-father to the child and her younger sister. He later went on to have three children of his own with the mother.
Teachers at the child’s school became suspicious after they noticed the child’s poor personal hygiene. They also noticed that the child’s demeanour became closed and silent whenever the appellant was in the child’s presence at the school. The appellant regularly made disparaging reports to the child’s teacher about her behaviour. These allegations were contrary to what the teachers observed of the child’s behaviour. The teachers at the school also noticed that the appellant appeared to force the child to walk several paces behind him and her other siblings and that she was required to stay by the bins while her siblings were able to use the play equipment.
Eventually a school counsellor was engaged to discuss concerns. However in August 2014, after one of the child’s half-siblings disclosed to her own teacher that the child was required to stay in her room “all the time”, was not allowed to eat with the rest of the family or be spoken to, and that there was “poo and wee all through her bedroom”, the school caused a notification to be made to Families SA. Eventually after some delay which caused great concern to the school, Families SA sent two workers out to the home of the appellant. They were the first authorities to view the conditions in the child’s room. What they saw is set out in horrifying detail in the Magistrate’s remarks. Suffice to say the conditions in which the child was forced to live were unhygienic, disgusting and dangerous to her health.
When questioned about the state of the bedroom, the appellant claimed not to have been inside the room for over six months. He later attempted to justify some of the restrictions he had placed on the child’s movement in the home on account of supposed fear of the child’s behaviour. He claimed to the school principal that the child was dishonest, argued incessantly, stole food, stole or destroyed property and defecated on everything. It was plain to the workers who attended the home that the other children were in fact well-treated, well-dressed and accommodated. The child was only permitted to shower once a week and while the appellant claimed to have been unaware of the extent of the horror of the conditions in which the child was living, later admitted that he required the child to wear plastic shopping bags on her feet because they were so dirty.
The Magistrate’s reasons
The Magistrate gave detailed and extensive reasons for sentence. She acknowledged the appellant’s personal circumstances, his relatively young age and previous lack of any relevant prior criminal history. She also had regard to the fact that by his plea the appellant had avoided the child having to give evidence in an unpleasant trial, even though the guilty plea was not entered until the morning of trial.
The Magistrate also had regard to a psychological report of a clinical psychologist. That report was something of a two-edged sword for the appellant as he acknowledged to the psychologist that his behaviour towards the child had become weird and compulsive. The psychologist expressed the view that the appellant did not think he needed ongoing help with parenting nor did he understand the full extent of the psychological damage his behaviour had on all of the children. The psychologist assessed the appellant as being vulnerable to a repetition of this type of behaviour, possibly because of deficits in his own upbringing. In light of the material before her, the Magistrate correctly concluded that the appellant is likely to pose a potential risk were there to be any other step-children placed in his care, however he is unlikely to be a risk to any of his own children.
Discussion and conclusion
By any measure the facts in this matter make this an unusual case. The rather bland particulars asserted in the charge of failing, without lawful excuse, to provide accommodation to the child belie the very serious nature of the appellant’s offending. This was, as the Magistrate herself noted, not a case of neglectful failings by an incompetent parent who could not cope, but rather a sustained and targeted course of deprivation and abuse of a young child.
The extent of the appellant’s abuse of the child set out in detail by the Magistrate reveals the full extent of the cruel and inhumane treatment to which this unfortunate child was subjected to, for an extended period of over eight months. The Magistrate’s remarks about the facts make for very difficult reading.
This course of conduct only came to an end because of the intervention of some astute teachers and counsellors at the school where the child and her siblings attended.
Contrary to the appellant’s submissions, it is evident on the face of the Magistrate’s remarks that she very carefully considered the application of s 33BB of the Sentencing Act. She explicitly stated that she had regard to the contents of the report which had been provided pursuant to s 33BB(4) of that Act. That subsection relevantly sets out some of the matters which the court is required to take into consideration when determining whether or not to make a home detention order under the section. After explaining in some detail why, the Magistrate then found that there was no good reason to suspend the entire term of the sentence and concluded that it should not be served on home detention.
In my view the Magistrate was right to conclude that the sentence should not be suspended and that home detention was not a suitable option in all of the circumstances of this case. In sentencing the appellant to eight months imprisonment, I consider that the Magistrate was doing no more than her duty. In exercising the discretion to partially suspend four months of the sentence pursuant to the provisions of s 38(2a) of the Sentencing Act, the Magistrate gave due regard to the need to impose a sentence in this instance which will act as an effective deterrent but also provide the opportunity to the appellant to effectively rehabilitate after a short period of immediate imprisonment. That is the very purpose for which the discretion is given to the court in s 38(2a) of the Sentencing Act, as this Court has pointed out on a number of occasions.
In Carusi v Police,[1] Gray J considered circumstances in which it may be appropriate to partially suspend a sentence of imprisonment. His Honour said in relation to s 38(2a) of the Sentencing Act:[2]
… That section is an important provision that may be of particular utility when a first offender is to be sentenced to an immediate term of imprisonment. The magistrate should have considered this section. His failure to do so was an error. Using this section would have allowed him to impose a short period of imprisonment followed by a bond on terms devised to improve the appellant’s prospects of rehabilitation. The community had a real interest in the appellant’s successful rehabilitation. The magistrate did not consider that the appellant’s lack of self-control needed to be addressed. It is important that the courts address the underlying causes of a person’s offending. This was not done in this case. …
[1] [2002] SASC 240.
[2] Carusi v Police [2002] SASC 240 at [24].
In Stenecker v Police,[3] Kourakis CJ categorised the utility of s 38(2a) of the Sentencing Act as follows:[4]
The option of partially suspending a sentence of imprisonment is a very useful sentencing option in that it combines the specific and general deterrent effects of a period of imprisonment with a subsequent period of rehabilitation under supervision in the community. The utility of s 38(2a) of the Sentencing Act has been much enhanced by the capacity to impose a bond which extends beyond the length of the head sentence.
There is obvious utility in a partially suspended sentence for relatively young offenders who have not previously been imprisoned or subjected to a suspended sentence. Such a sentence usefully fixes both the deterrent and rehabilitative purposes of sentencing. …
[3] (2014) 120 SASR 18.
[4] Stenecker v Police (2014) 120 SASR 18 at [14]-[15].
It is a serious decision to sentence a person, even a relatively young one as this appellant is, to gaol for the first time. However courts must send the message to anyone who abuses a young child in the egregious and inhumane way that this appellant did, that they must, in the ordinary course, expect to receive an immediate custodial sentence. The decision in the exercise of the discretion given to the Magistrate under s 38(2a) of the Sentencing Act was an appropriate exercise of the discretion to ameliorate the harshness of requiring the appellant to serve the full term of imprisonment which it was necessary to impose.
I do not consider that the appellant has demonstrated any error in the Magistrate’s approach to sentence or the exercise of the discretion available to her. The Magistrate was correct to categorise this offence as well within the upper range of offences of this kind.
For these reasons the appeal must be dismissed.