Michelle Lea Chandler v R No. SCCRM 94/231 Judgment No. 4639 Number of Pages 4 Criminal Law and Procedure

[1994] SASC 4639

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), PRIOR(2) AND PERRY(3) JJ

CWDS
Criminal law and procedure - sentence - six housebreaks involving property to value of $9,000 and one attempted housebreak over period of 4 months - two larcenies and 13 false pretences of property to value of $10,000, three attempted false pretences, two forgeries of prescriptions, one assault, one unlawful possession in same period of 4 months - offences committed while on parole - balance 9 years 6 months of previous sentence to be served - appeal against sentences of 6 years for breaks and attempted break and 4 years for the other offences cumulative and cumulative on balance of previous sentence with non-parole period of 7 years - crushing nature of total head sentence - on appeal sentences for current offences made concurrent and adjustment made for time spent in custody before sentence, thereby reducing total period of 15 years 2 months - non-parole period affirmed.

HRNG ADELAIDE, 22-23 June 1994 #DATE 23:6:1994

Counsel for appellant:     Mr D F Stokes

Solicitors for appellant:    David Stokes and Associates

Counsel for respondent:     Mr S A Millsteed

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed.

JUDGE1 KING CJ This is an appeal against sentences imposed in the District Court for a series of crimes and against a non-parole period fixed by the District Court judge.

2. On 23 September 1992 the appellant was on day leave from prison. She entered a house. When challenged by the lady occupant of the house on her return she claimed that she had been the victim of a sexual assault and wished to seek help from the Crisis Centre. The woman occupant of the house offered to ring the police, but that offer was declined. When after some further conversation the occupant insisted, the appellant assaulted her and stole her handbag. That is the first of the crimes for which she fell to be sentenced.

3. On 1 April 1993 the appellant was released on parole. Six days later on 7 April 1993 she committed the first of a series of crimes which were committed over the ensuing period of about four months. The learned sentencing judge summarised this course of offending in the following words:
    "You have pleaded guilty to this massive offending. I
    think some seven housebreaks or attempted housebreaks.
    Goods removed in the order of some $9,000. Two
    larcenies, 13 false pretences and three attempted false
    pretences. When I add up the false pretences or the
    attempted false pretences they are somewhere in the
    region of $20,000. Two counts of forging prescription,
    one of common assault and one for unlawful possession."

4. When the first of those crimes was committed on 7 April 1993 the unexpired portion of the sentence in respect of which the appellant had been released on parole was nine years and six months. The learned sentencing judge imposed a sentence of six years imprisonment for the six housebreakings and one attempted housebreaking. He imposed a sentence of imprisonment of four years for the false pretences offences, and he ordered that the sentences of six years imprisonment for the housebreakings be concurrent with one another. He ordered that the four sentences for the false pretences be concurrent with one another cumulative upon the six years. That made a total sentence of ten years. He imposed no penalty in respect of the other offences. The total period of imprisonment to be served in consequence of those orders was nineteen years and six months and one day. His Honor fixed a non-parole period of seven years. Mr Stokes, who appeared for the appellant before us, has challenged the head sentence imposed by the judge and also the non-parole period fixed with respect to the total period of imprisonment.

5. The appellant is a woman who was aged 29 years at the time of the commission of these offences. She has had an extremely bad record beginning at the age of 17 years. There has been a history of offending which has been virtually continuous during the periods when she has been at liberty, and for the most part involving dishonesty. It includes a number of breaking and entering offences and many false pretences offences. There have been at least two breaches of parole.

6. The appellant, it appears, had a sad and unfortunate childhood. She experienced abuse as a child and suffered adverse psychological consequences as a result of that. She acquired a drug habit in her teens and became dependent on heroin. She says that she was raped as a young woman and that played a big part in her subsequent dependence upon heroin. She also claims that on the day of the first of the housebreaking offences, namely 23 September 1992, she was raped and that that produced an adverse psychological reaction.

7. It is a difficult case. It is difficult because the crimes for which the appellant had been sentenced are many and serious and fully merited the total sentence of ten years imprisonment, especially having regard to the appellant's record of offending. The sentence, however, produces as its end result a total head sentence or period of imprisonment to be served which is so long as to approach the point of being crushing.

8. In Queen v Rossi 1988 142 LSJS 451 speaking for the Court of Criminal Appeal and applying the Queen v Margetson (CCA, 16 October 1987, unreported), I pointed out that although the unexpired portion of the previous sentence could not be taken into account strictly on the principle of totality it was nevertheless part of the personal circumstances of the offender which the court ought to take into account in considering a sentence which was to be imposed. When one considers the ultimate result of the sentence imposed by the learned sentencing judge one is forced to the conclusion that His Honor did not have regard to that personal circumstance, or did so to an extent which was less than the circumstance warranted. I think that if proper weight is given to the fact that the sentence imposed must be cumulative upon an unexpired sentence of nine years and six months the sentence actually imposed is seen to be manifestly excessive. I think, therefore, that this court should intervene to reduce the length of the head sentence.

9. There is a limit to the extent to which it can be reduced. The crimes committed were, as I have said, numerous. They were serious and they were committed as part of a course of conduct extending over a period of four months. And they were committed against a background of an appalling record of prior offending. No matter how that prior offending is mitigated or excused by the appellant's unfortunate history, the fact remains that she has persistently offended in the past and as soon as she had the opportunity on her release from prison she carried on a course of offending. I think the most that can be done by way of adjusting the head sentence imposed by the learned sentencing judge is to make the four years imposed for the false pretences crimes concurrent to the six years imposed for the housebreaking.

10. A further adjustment needs to be made. The learned judge backdated the sentence to commence from 17 February 1994. Because the sentences were imposed for crimes committed whilst the appellant was on parole and which resulted in her having to serve the unexpired portion of that sentence they could not be backdated, and the total period of imprisonment which she has to serve therefore commences on 28 April 1994. In those circumstances the judge ought to have taken into account the period spent in prison prior to that date. Being somewhat generous perhaps to the appellant, but allowing for the fact that she is not eligible for good conduct remissions with respect to that period spent in prison prior to sentencing I think an adjustment of four months should be made to the sentence of six years. The result would be that the sentence for the housebreaking offences would be reduced to five years and eight months to commence at the expiration of the unexpired portion of the previous sentence, and the sentence of four years for false pretences would be served concurrently with that sentence. The total period of imprisonment would therefore become 15 years and two months and one day running from 28 April 1994.

11. Mr Stokes has also urged us to reduce the non-parole period. However, in my view the non-parole period is the very lowest which could properly be fixed even with the reduced head sentence. It is less than half of that sentence, and I think that the judge in fixing that seven year non-parole period extended as much mercy and leniency to the appellant as he possibly could having regard to the seriousness and number of the offences and her previous record.

12. In my opinion therefore, the appeal should be allowed. Sentence appealed from should be varied by reducing the sentence for the housebreaking offences to five years and eight months to be served concurrently with one another. The sentences for the crimes of false pretences should be affirmed but should be ordered to be served concurrently with the five years and eight months for the housebreaking crimes. The non-parole period should be affirmed but run from 28 April 1994.

JUDGE2 PRIOR J I agree.

JUDGE3 PERRY J I agree.