McPharlin v Police No. Scgrg-99-266 Judgment No. S190

McPHARLIN v POLICE
[1999] SASC 190

Magistrates Appeal
Nyland J

This is an appeal against sentence. The appellant was charged on complaint with two counts of intentionally or recklessly damaging property, contrary to s85 of the Criminal Law Consolidation Act 1935. It was alleged that on 29 August 1998 at Smithfield Plains he intentionally or recklessly, without lawful authority, damaged a motor vehicle the property of Janice Lisa Marsh (count 1) and a wooden door, a screen door, door frame and latch, driveway gates and posts the property of the South Australian Housing Trust (count 2).
The matter came on for hearing before a stipendiary magistrate in the Elizabeth Magistrates Court on 18 September 1998. At that time the appellant appeared in person. He pleaded guilty to both counts and was remanded for sentence. The magistrate requested that a pre-sentence report and a psychiatric report be prepared before sentencing. The matter was then adjourned until 26 November 1998. On that date, Ms O’Leary appeared as counsel for the appellant. There were some further adjournments until 26 February 1999 when the magistrate heard submissions as to penalty and imposed sentence. During the period of the adjournment an issue arose with respect to the ownership of the damaged vehicle which was the subject of count 1. Consequently, upon the application of Ms O’Leary, the magistrate struck out the plea to count 1 and dismissed the charge. The magistrate then sentenced the appellant on the second count to three months imprisonment which was not suspended. He also ordered the appellant to pay $875 by way of compensation to the victim. The sole ground of appeal against sentence is that it was manifestly excessive.
The circumstances surrounding the commission of this offence are set out in the affidavit of Francis Ranger, the police prosecutor, as follows:
“... a witness in this matter is Janice Marsh. At about 10.30pm on Saturday the 29th of August, 1998 she was sitting in her kitchen at her home with two friends making coffee. She heard a car pull up into the driveway and collide with her vehicle that was parked in the driveway. She heard a male voice yelling something. The male was the [appellant]. The [appellant] banged on the front door wanting to get inside. He wanted to enter to speak to a male inside. Marsh went to ring the police, and could still hear banging on the front door and also pulling on the front security screen door. She then heard the [appellant’s] car start up, and a car drove into the rear of her vehicle, which was pushed through the side fence of the premises. She could hear the side fence fall down. She then hard the vehicle reverse out of her driveway and leave her address. There was $875.00 damage to the property which is owned by the South Australian Housing Trust. Compensation is sought in that amount.”
The prosecutor then provided the magistrate with a copy of the appellant’s criminal history which is extensive.
Ms O’Leary made submissions on behalf of the appellant. She told the court that the appellant had worked for Mr Wood and that Mr Wood has supplied the appellant’s partner with “speed”, to which she had become addicted, that she had ceased to be addicted, that Mr Wood had made the appellant work long hours for him digging trenches and that he had not been paid for it. He invited the magistrate to have regard to the explanation provided by the appellant. Dr Raeside’s psychiatric report which was before the court, was to the effect that the appellant had been repeatedly told at a party that Mr Wood had the intention to “iron bar” him. The appellant told Dr Raeside that he then went to Wood’s house to confront him and have the matter “sorted out”. The appellant had consumed some alcohol that night but claimed he was not intoxicated and was aware of his actions. In hindsight he realised that he was “stirred up” at the party and should not have reacted in the way he did.
Ms O’Leary further submitted to the magistrate that the appellant had changed his habits and had assisted another man to come off heroin, despite the dangers to himself and he had remained drug free. Ms O’Leary also referred to the pre-sentence report which had been ordered by the magistrate.
The pre-sentence report states that the appellant’s childhood was characterised by his parents’ alcohol abuse and severe physical abuse inflicted upon him by his step-father. The appellant left both home and school halfway through Year 9 and lived on the streets. Since leaving school he had held a variety of positions of an unskilled nature and had also been unemployed for lengthy periods. The appellant is the biological father of two children, but also regards their mother’s two elder children as his own. He now resides alone in Housing Trust accommodation at Smithfield Plains.
The appellant has a long history of alcohol abuse, commencing at the age of 15. At times he has also used other drugs excessively. The report states that most of the appellant’s previous offending can be attributed to his alcoholism. It says that his response to supervision by a probation officer as well as his participation in the community service program has been very positive and he has successfully completed all his court and parole orders.
The report states that “should the court impose a custodial sentence for the current court matters ... [the appellant] will lose his house and access to his children, thus losing his reasons for stability”.
The report foreshadows the possibility of the appellant entering into a good behaviour bond. It says that the appellant “has been identified as being in need of ongoing counselling in the areas of substance abuse, anger management and cognitive skills. He may also benefit from psychological counselling. ... These services are being offered by our office and could be made part of a good behaviour bond, should this be the court’s decision.”
The psychiatric report prepared by Dr Raeside describes the appellant’s history of alcohol and drug dependence. In discussing the appellant’s current psychiatric state, Dr Raeside reports that the appellant “appeared to have reasonable insight into the nature of his past and current problems. He expressed concern that should he be given a custodial sentence he may lose access to his children as well as his house which he believed had been a major stabilising factor in his life in recent times.” Dr Raeside concludes that should the appellant “receive a custodial sentence then it is likely that this will have a significantly detrimental effect on his relationship with his children as well as current stability. However, should he receive a non-custodial sentence then I think it would be important for him to have close supervision by an experienced probation and parole officer with psychiatric assessment as needed, but not necessarily as a mandatory condition. Abstinence from alcohol and illicit drugs would also be beneficial.”
The magistrate, when imposing sentence, referred to the pre-sentence and psychiatric reports. He mentioned Dr Raeside’s recommendation that close supervision by an experienced probation or parole officer might be beneficial. He commented that if the appellant were to be sent immediately to prison the consequences for the appellant were likely to be very serious. However, he went on to say:
“... your criminal record is a matter of great concern. In 1984 you were given the benefit of a suspended sentence for a building break matter at Port Adelaide. (The defendant says that was his brother who uses his name occasionally, but agrees he served 9 months imprisonment for assault police in 1988 and 6 months for assault police in 1990).
In terms of property damage matters that come before the court, the recitation of the facts of this case place it in the more serious category. It is a rare situation one hears of such violent outbursts that causes sustained damage to the residence itself, the gates on the property, to the fencing on the property as a consequence of your very violent outburst. In the circumstances here there will be an order for conviction and you will be sentenced to 3 months imprisonment. It is not appropriate to order that the sentence be suspended.”
On the hearing of the appeal the appellant was represented by Mr Ward of counsel. Mr Ward submitted, by comparison with the maximum scale of $2,000 applicable to property damage cases dealt with in the Magistrates Court, that this case was not in the most serious category as designated by the magistrate.
Ms Martin who appeared on behalf of the respondent, however, submitted that the seriousness of the offending behaviour in this case was illustrated, not so much by the monetary value of the damage caused (although that was a relevant factor) but by the totality of the circumstances of the offending. She pointed out that the appellant had reacted disproportionately to the catalyst for the offence, that is, what he heard at the party. Any spontaneity that might be claimed on his behalf was undermined somewhat by the fact that he got into his car and drove to the property where the offence was committed. The appellant’s behaviour was extremely violent and had the effect of putting the two people in the house in a position of great fear. I agree with Ms Martin’s submissions as to this aspect of the matter. This was a serious offence and I consider that the penalty of three months imprisonment imposed by the magistrate was appropriate. The more difficult issue arises as to whether, in light of all of the circumstances, the failure of the magistrate to suspend that sentence rendered it manifestly excessive.
Mr Ward submitted that the magistrate had failed adequately to take into account the appellant’s prospects for rehabilitation. This he said was evidenced by the magistrate’s treatment of the pre-sentence report and the appellant’s offender history. Although he acknowledged that the magistrate mentioned in the course of his remarks that he had taken the pre-sentence report into account, Mr Ward submitted that the fact that the magistrate did not allude specifically to any of the significant issues raised by the report, suggested that he had not sufficiently taken those issues into account, particularly the issue of rehabilitation. This, he argued, amounted to a fundamental error.
Ms Martin, however, referred to the comments of the Court of Criminal Appeal (Hogarth, Zelling and Wells JJ) in R v Ciccone (1974) 7 SASR 110 at 113 wherein they said:
“... there are four general aspects of punishment: retribution, deterrence, prevention and reformation; and it is for the sentencing judge addressing himself to the accused, and having considered the matters put in mitigation and other matters including the prevalence of the offence, the accused’s past conduct, his age, and the likelihood of his responding to reformative process, to decide in the exercise of a sound judicial discretion what ought to be done in the case of that particular accused. It is to be hoped that the deterrent effect of a term of imprisonment will itself be a step towards the reformation and rehabilitation of the prisoner. Imprisonment is not necessarily to be regarded as the antithesis of rehabilitation.”
Although a person is not to be punished twice for past offences, this appellant has a truly appalling history of offending which cannot be ignored. Since 1982 he has committed 65 offences. This averages out at about four per year or almost five per year between the years 1982 and 1996. It is obvious that this record had a substantial influence upon the magistrate in fixing penalty. The unusual aspect of this case, however, is that notwithstanding this record, there is a break of about two and a half years between the commission of the present offences and those previously committed. A gap of that amount after such a long history of offending is encouraging and suggests that there has been some progress with respect to the appellant’s rehabilitation. This is the thrust of the comments in the pre-sentence report as well as the psychiatric report. Accordingly, taking into account all the circumstances of the matter, I believe that it is appropriate to construe this particular piece of offending as an isolated aberration during an otherwise successful period of rehabilitation. I have finally concluded therefore that the learned magistrate gave insufficient weight to matters personal to the appellant which indicated that it would be appropriate to suspend the sentence in order to foster his ongoing rehabilitation and that as a result he imposed a sentence which was manifestly excessive in all of the circumstances.
I therefore propose to allow the appeal to the extent that I order that the term of imprisonment imposed by the magistrate be suspended on condition that the appellant enter in a bond in the sum of $200 to be of good behaviour for a period of two years. The conditions of the bond will require the appellant to be under the supervision of a probation officer throughout the period of the bond and undertake such counselling in the areas of substance abuse, anger management and cognitive skills and psychological counselling as the probation officer may recommend from time to time.

[1999] SASC 190

14 May 1999