Moreshead v Police

[1999] SASC 162

MORESHEAD v POLICE
[1999] SASC 162

Magistrates Appeal - Criminal

Debelle J (ex tempore)

1. On 23 February 1999, at Mount Gambier, the appellant was convicted by a magistrate of the offence of illegally interfering with a motor vehicle contrary to s86A of the Criminal Law Consolidation Act 1935. He was sentenced to a period of three months imprisonment. The appellant appeals against both the conviction and sentence.

2. Mr Henshelwood and his wife operate a shop in Mount Gambier which sells games, including computer games.  The prosecution case was that, on 20 April 1998, Mr Henshelwood had parked his Nissan motor car in the front yard of his house.  He left it there at about 6 p.m.  He locked it.  The next morning, at about 9.30 a.m., he went to his car to drive to work.  He noticed that someone had interfered with his motor car.  He saw that two doors had been opened.  He saw also that the contents of the glove box and a tray in the dashboard was strewn over the floor and seats of the motor car.  Nothing had been taken from the car. 

3. Three pieces of paper were later removed from the front seat and were examined for fingerprints.  One was a facsimile copy of a price list.  It was not disputed that the price list bore a thumb print identical with the print of the appellant's left thumb.   That thumb print was at the centre of the prosecution case that it was the appellant who had interfered with Mr Henshelwood's motor car.  The prosecution case was that the only explanation for the fingerprint being upon the price list was that the appellant was the person who had illegally interfered with the car. 

4. The price list was regarded by Mr Henshelwood as a confidential document.  The prosecution led evidence from Mr Henshelwood concerning the practices he and his staff adopt in his shop to ensure that confidential documents are not seen or handled by customers.  His evidence also concerned the location of the facsimile machine in the shop and the practices concerning other documents.  The effect of his evidence was the price list would not be left in a place where it could have been handled or touched by any customer.  In the course of cross-examination of Mr Henshelwood, Mr Smith, who appeared for the appellant, suggested it was possible that the price list may have been in a position where it could have been inadvertently touched by the appellant.  Mr Henshelwood denied that.  Mr Smith did not, however, point to any specific instance when the appellant might have touched the document. 

5. The appellant also gave evidence.  The effect of that evidence was that he was a frequent customer at Mr Henshelwood's shop.  He did not give evidence that he might have touched the price list when in the shop. It is common ground that the effect of his evidence has been accurately summarised by the magistrate.  The magistrate said that the appellant was not able to suggest that he had any specific memory of a time when he could have innocently touched the price list and put his thumb print on it.  All that he said was that it could have happened on one of those occasions when he was visiting or a customer at the shop.  In cross-examination, the appellant said that he had never leaned over the counter and touched any paperwork in the facsimile machine.  He said that he did not know where the facsimile machine was located.  He could not explain why his thumb print was on the price list found in the car.  He acknowledged that he did not go to the back of the shop premises where Mr Henshelwood's office is located. 

6. Mr Smith submitted to the magistrate that the appellant was such a frequent customer at Mr Henshelwood's shop that he might have inadvertently touched the price list while it was lying on the counter. 

7. The case against the appellant was circumstantial.  Accordingly, before the appellant could be convicted of the charge, it was necessary for the prosecution to exclude any reasonable hypothesis consistent with innocence.  In other words, the magistrate had to find that, if the magistrate was to find the appellant guilty, he had to be satisfied not only that guilt was a rational inference, but it was the only rational inference that could be drawn from the circumstances: Peacock v The King (1911) 13 CLR 619 and Plomp v The Queen (1963) 110 CLR 234. In this case, the appellant's thumb print on the price list was critical to the conclusion that the appellant had broken into the car. Given that the appellant was a frequent customer at Mr Henshelwood's shop, it was necessary to find beyond reasonable doubt that the appellant had not touched the price list when he was in the shop: Shepherd v The Queen (1990) 170 CLR 573 at 579. In other words, the magistrate had to be satisfied that it was not a reasonable possibility that he had touched the price list when in the shop.

8. The magistrate concluded his ex tempore reasons in these terms:

   “I find that the defendant was not such a frequent visitor of the premises as he now says.  I find that the possibility of him having innocently touched the document P3(A) and thereby leaving his fingerprint on it is so remote as to be fanciful.  I reject the defendant's evidence that he did not interfere with the car.  On my view of the evidence, any reasonable hypothesis consistent with the defendant's innocence has been excluded by the prosecution evidence.  I find the charge to be proved.”

Those remarks show that the magistrate had correctly directed himself.  He was aware that the prosecution had to exclude any reasonable hypothesis consistent with innocence.  He was satisfied that it had. 

1. The magistrate's conclusion was clearly open to him.  The prosecution had proved the practices adopted by Mr Henshelwood and his staff in running the shop.  This price list was a confidential document which would not be left in a place where it could be seen, let alone touched, by customers.  The magistrate accepted Mr Henshelwood's evidence.  It was highly unlikely that the appellant could have inadvertently and innocently touched the price list.  Furthermore, a thumb print suggests more than a mere inadvertent brushing against the document.  Instead it points to the price list being held between the thumb and fingers. 

2. The magistrate rejected the appellant's evidence.  In any event, the appellant had not adduced any evidence to show how he might have innocently touched the price list.   The appellant did not, of course, have to prove anything but it is relevant to note that there was no evidence from the appellant on that issue.  In short, the magistrate was justified, on those facts, to conclude that there was a reasonable possibility that the appellant had innocently touched the price list.  The effect of the appellant's case required that there be some contact with the price list in the shop. The appellant's evidence does not seriously allow for that possibility.  The appellant's case required that, of all the paperwork which was generated in the shop business, it was this price list which came to be in the vehicle and that it was the very price list which the appellant had touched.  That is a long line of coincidence, so long that it stretches human credulity to breaking point. 

3. The magistrate was, in my submission, correct to conclude that the explanation offered was fanciful. He was justified in concluding that the prosecution had excluded any reasonable hypothesis consistent with the appellant's innocence. 

4. Mr Smith, who appeared for the appellant on this appeal, submitted that the magistrate had erred in that he had treated the evidence of the accused as hypothetical and, on that basis, had wrongly rejected it on that ground alone.  He relied on the observations of Fullagar J in Giles v Dodd (1947) VLR 465 at 468 to 469. That was a case depending on its own facts. Furthermore, the magistrate's reasons indicate that he relied on other grounds. He was not prepared to accept the evidence of the appellant. The explanation of innocent touching had not been supported by evidence and he was entitled to reject it as fanciful. The appeal against the conviction must, therefore, be dismissed.

5. I turn to the appeal against sentence. When he was sentenced, the appellant was aged 24 years.   He lived with his de facto wife and their child aged one and a half years.  This was his first offence for interfering with a motor vehicle.  However, he has a number of previous offences, including two offences of breaking and entering buildings in 1996 and in 1997, one offence of unlawful possession, and four offences in relation to controlled substances.  He has one serious driving conviction and some other minor traffic offences to which I do not have regard.  In 1996, he received a suspended sentence of six months imprisonment for manufacturing a controlled substance.  The sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of three years.  He received a suspended sentence of five months imprisonment in 1996 for breaking and entering a building.  In February 1997, he was sentenced to a period of imprisonment for 12 months with a non-parole period of four months for having breached the bond.  That is the only period of imprisonment he has served. 

6. The appellant's record indicates that he is not willing to reform his conduct despite the opportunities which have been given to him. The offence was committed within eight weeks of his being released from prison. The magistrate did not accede to Mr Smith's submission to suspend any sentence or to make some other order which did not involve serving an immediate sentence of imprisonment.  In his view, the appellant, by his previous convictions and breaches of bonds, had forfeited any entitlement to leniency.  The magistrate said:

   “You have a significant past history for one so young.   I have the full record before me.  You have served a period of imprisonment before when you were in breach of a bond.  You have been out and about, having served that period of imprisonment, for some seven weeks or so before you committed this offence ...  it is true, of course, that you are not to be punished for your past offending, but because you have that past offending you are not in the position where you can say to the court "Please extend leniency to me because I've not offended before".  You have.”

It is apparent from these remarks that this experienced magistrate had regard to the appellant's prior record only for the purpose of determining how he should approach the sentencing task and whether the appellant was entitled to be treated leniently. He was not, as was submitted, fettering the sentencing process by adopting a sentence based on severity of sentences for earlier offending. 

1. The magistrate then had regard to the personal circumstances of the appellant and the circumstances of the offence.  He expressed the view that the sentence should reflect elements of personal as well as general deterrence.   Despite the fact that little if any damage was caused to the car and nothing was taken, he ordered a period of  imprisonment for three months.  The sentence is severe for an offence of this kind but I do not think it is outside the reasonable range of penalties for this offence or that the magistrate's sentencing discretion has miscarried. As Mr Smith stressed in his submissions, this court has emphasised from time to time that even where an offender has a significant record of prior offending, the correct approach to the exercise of the sentencing discretion is to consider all sentencing options and only impose a sentence of imprisonment when all other sentencing options have been eliminated.  If upon adopting that approach the circumstances require a sentence of imprisonment, consideration must then be given as to whether it should be suspended in the circumstances of the particular case.  Those are well settled principles and they were recently reaffirmed in Walker v SA Police (1993) 61 SASR 159 at 162. For reasons I have earlier expressed, I do not think that the magistrate has departed from them. He had regard to the appellant's prior record only for the purpose of determining whether he could extend some leniency and suspend any sentence of imprisonment. Furthermore, probably have regard to the fact that despite having just served a gaol sentence, the appellant has offended again. He has obviously learned nothing from his period of imprisonment. He is not willing to comply with the law or respect the property of others.

2. Given that the offence is at the lower end of the scale of offending, a lesser period of imprisonment might have been considered by others to have been a sufficient deterrent.  However, the task I must determine is whether the penalty is manifestly excessive.  The penalty is, as I have said, within the bounds of a proper sentencing discretion for this offence.  I am not satisfied that the penalty was manifestly excessive. 

3. In the course of his submissions, Mr Smith submitted that the magistrate had erred in his understanding of the facts.  In his sentencing remarks the magistrate said when speaking of the offence:

   “It represents an invasion of a citizen's rights for you to enter, firstly property, and thereafter to enter a vehicle on that property notwithstanding that little if any damage was done to the car and nothing was taken.”

Mr Smith suggested that the magistrate had erred in approaching the matter on the footing that the appellant had entered Mr Henshelwood's property.  The fact of the matter is that the appellant had entered his property.  The car was parked in the front yard of Mr Henshelwood's premises.  The magistrate was plainly not punishing the appellant for that offence but only referring to it as an aggravating feature of the offence.  The submission made by Mr Smith must, therefore, be rejected. 

1. For all of these reasons, the appeal against sentence is also dismissed.  The order will be appeals dismissed.