Morrison v Police - [2007] SASC 386

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MORRISON v POLICE
[2007] SASC 386
Judgment of The Honourable Justice Sulan
5 November 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appellant pleaded guilty to theft - appellant was sentenced to imprisonment for four months - Magistrate did not suspend sentence because previous suspended sentence had been revoked - held, allowing the appeal, discretion to suspend a sentence is unfettered even where previous bonds have not been complied with - Magistrate gave insufficient weight to appellant's prospects for rehabilitation.
Criminal Law Consolidation Act 1935 s 134, referred to.
Dinsdale v R (2000) 202 CLR 321; Drewent v Rowbottom (1987) 139 LSJS 468, applied.

MORRISON v POLICE
[2007] SASC 386
Magistrates Appeal: Criminal

SULAN J: The appellant, Ernest Morrison, pleaded guilty to the offence of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935. The definition of “theft” encompasses receiving stolen goods.[1]
[1] Section 134(1) Criminal Law Consolidation Act 1935.
The particulars of the offence are that on 4 July 2006 at Clearview the appellant committed theft by obtaining or receiving jewellery to the value of $6200, the property of Menzies Jewellers, dishonestly and without the owner’s consent, intending to deprive the owner permanently of the jewellery.
The appellant failed to attend at two hearings of the Magistrates Court on 30 April 2007 and 15 May 2007. He pleaded guilty to two counts of breach of bail. He also pleaded guilty to two counts of hindering police on 1 May 2007 and 29 June 2007.
On 24 July 2007, the appellant was sentenced at the Holden Hill Magistrates Court to imprisonment for four months. The Magistrate took into account that the appellant had spent three weeks in custody and that he had pleaded guilty. She indicated that, but for his plea of guilty, she would have sentenced the appellant to imprisonment for six months.
As to the two offences of hindering police and the two offences of failing to comply with a bail agreement, the Magistrate took into account that the appellant had spent three weeks in custody, and she discharged him without further penalty.
The appellant contends that the learned Magistrate erred in not suspending the sentence of imprisonment. The appellant abandoned the ground of appeal that the sentence was manifestly excessive.
The facts
The appellant lived at premises at Clearview with his partner and children. He is 24 years of age. In the early hours of the morning of 4 July 2006, a jewellery shop at Modbury was broken into and a large amount of jewellery was stolen. Police, who were responding to the alarm which had been activated, observed a white Holden sedan travelling at high speed in a south‑westerly direction along North-East Road at Modbury. They were unable to pursue the vehicle. The abandoned vehicle was later observed about one kilometre from the appellant’s premises. Some property which was identified as having been removed from the jewellery owner’s premises was found in the vehicle.
Police attended the appellant’s premises later that morning. The appellant and his partner were present. Substantial quantities of jewellery were located in various locations within the house. Items were found in the bedroom in which the appellant and his partner slept.
The jewellery found outside the bedroom was not the subject of the charge. The prosecution accepted that the appellant was not aware of the jewellery which had been hidden in various parts of the house. Only the jewellery located in the bedroom was the subject of the charge. The total value of jewellery taken was about $80,000. The value of the jewellery found in the bedroom was about $6200, although the appellant claimed that he was unaware that it was worth $6200. The appellant was arrested and charged.
Submissions to the Magistrate on penalty
Counsel for the appellant did not challenge the facts. As to the offence of theft, he submitted that the appellant was charged as a receiver of stolen goods. It was agreed by the prosecution that the appellant was unaware of the circumstances of the break-in of the jewellery shop and he first became aware of the theft of the jewellery when a group of approximately ten youths, the thieves, arrived at his home in the early hours of the morning, seeking refuge. Some of the group were known to the appellant, and he unwisely felt obliged to help them. They offered him some items of jewellery, which he took on the spur of the moment, and which he hid in his bedroom. He realised it had been stolen. He was not aware that there were numerous other items of jewellery which the thieves had hidden in different locations around the house. He made a momentary decision to accept the items which were offered to him. He thought their value was approximately $100.
The prosecutor did not contest the appellant’s version. It was accepted that he did not instigate the offence, and that the offending was impulsive. The prosecutor accepted that the defendant was not to be regarded as a professional or an habitual receiver of stolen goods.
The appellant’s antecedents
The appellant had appeared in the Youth Court on 19 January 2006 and pleaded guilty to offences of non-aggravated criminal trespass in non‑residential premises committed on 23 February 2001. He was convicted without penalty. On 1 April 2003, he pleaded guilty in the Port Adelaide Magistrates Court to two counts of aggravated serious criminal trespass, one count of larceny, one count of aiding and abetting an assault on a police officer, and one count of hindering the police, the offences having been committed in May and June 2002. He was sentenced to imprisonment for eight months, which was suspended upon him entering into a bond to be of good behaviour for 18 months.
On 22 July 2003, he pleaded guilty in the District Court to two counts of hindering police, one count of non-aggravated serious criminal trespass in a place of residence, one count of larceny and assault, all the offences having been committed on 12 November 2002. The appellant acknowledged that he had breached the bond he received on 1 April 2003. The suspended sentence was revoked and he was sentenced to imprisonment for a total of two years and six months, with a non-parole period of imprisonment for 12 months.
Before me, counsel for the respondent informed me that the appellant had appeared in the Adelaide Youth Court in November 2000, when he received a nine-month detention order, which was suspended, for a series of offences which included burglary.
On 27 June 2002, he appeared in the Adelaide Magistrates Court and pleaded guilty to assault and hindering police. He was sentenced to a period of imprisonment for six months, which was suspended upon him entering into a bond for two years. The expiry of that bond would have been 27 June 2004. However, that bond was estreated in July 2003 when he pleaded guilty to the offences in the District Court. That was when he received the sentence of imprisonment for two years and six months, with a non-parole period of 12 months.
Counsel for the respondent accepted that there had been a cluster of offending in 2002 and early 2003 but that, since that time, the appellant had not committed any offences.
Counsel for the appellant submitted to the Magistrate that the appellant came from an unstable home. As a youth, he was often in trouble with the police. That behaviour continued and escalated until July 2003 when he received the sentence of imprisonment for two and a half years. Since the appellant’s release from custody on 21 July 2004 he had completed his period of parole, which ended on 21 January 2006. Until this offence, the appellant had not had any further trouble. It was submitted that this period of good behaviour demonstrated that he had good prospects of rehabilitation. He was living with his de facto wife and children. At the time he appeared before the Magistrate he had arranged to participate in the Independent Living Skills Program. He was involved in playing with an Aboriginal football team.
The sentence
The Magistrate referred to the circumstances of the offence and to the personal circumstances of the appellant. She considered whether good reason existed to suspend the sentence. She stated that the defendant had committed an offence within a fairly short time of being released on parole. This was an error. It was approximately six months after the completion of his parole that the offence was committed.
The Magistrate noted that a previous suspended sentence had been revoked. She considered that a period of imprisonment should be imposed. She stated her reason for not suspending the sentence as being that the last time the appellant had received a suspended sentence it was revoked. That was correct, but it should be noted that the failure of the appellant to complete the period of the bond occurred in 2003 when the appellant was 20 years of age and when he had embarked on a course of offending. Since he had completed his prison sentence and until this offending, he had not offended.
Submissions of counsel on the appeal
Mr Charles, who appeared for the appellant, submitted that the Magistrate appears to have concluded that, because the appellant had previously received a suspended sentence, that was a reason that she should not suspend the sentence. He submitted that she did not give sufficient weight to the fact that the appellant had successfully completed his parole and had abstained from offending after completing his parole. He submitted that the appellant had not set out to offend. The thieves came to him. The appellant considered that he had an obligation to allow them into his house and to give them shelter. This was misguided loyalty. He then made a momentary decision to accept a part of the stolen property. The offence was not premeditated.
Mr Charles submitted that the Magistrate was in error in concluding that this offence was committed within a short period of his release on parole. He, in fact, completed his parole in January 2006 without offending, and the offences occurred in July 2006. Mr Charles submitted that the Magistrate had fettered her discretion by concluding that, because the appellant had a previous suspended sentence, she should not suspend the sentence. He submitted that the Magistrate had failed to give sufficient regard to the circumstances of the offence, the relative youth of the appellant, and his efforts to live a productive life after he had completed his parole. These matters were relevant to the consideration as to whether the sentence ought to have been suspended.
Ms Powell for the respondent referred to the appellant’s prior history of convictions. It is evident that between 1999 and 2002 the appellant committed a series of offences. The year 2002 was a particularly bad year for the appellant. Ms Powell conceded that, in respect of this offence, his role was passive. She conceded that the Magistrate appeared to have placed undue emphasis on the appellant’s antecedents and not given sufficient weight to other factors and, if that was so, the Magistrate had fallen into error. She informed the Court that the prosecutor had not opposed a suspended sentence before the Magistrate.
The Magistrate does not appear to have considered that the appellant had good prospects of rehabilitation or, if she had, she had failed to give that sufficient weight.
Conclusion
If a magistrate has failed to give sufficient weight to relevant factors or placed too much weight on a factor in exercising his or her discretion not to suspend a sentence, then this amounts to an error. In those circumstances, the appeal court will exercise the discretion afresh.[2]
[2] See Dinsdale v R (2000) 202 CLR 321 per Gleeson CJ and Hayne J [3] and [4].
In Drewent v Rowbottom,[3] White J observed that the sentencing discretion to grant further bonds, even in circumstances in which an offender has failed to comply with prior bonds, is an unfettered discretion. Clearly, if an offender continuously does not comply with conditions of bonds, there comes a point at which the law would be held in disrepute if the court continue to grant an offender further bonds, but there can be no blanket policy as to when that point may have been reached.
[3] (1987) 139 LSJS 468.
That point had not been reached in this case. The appellant had good prospects of rehabilitation. This had been accepted by the prosecutor before the Magistrate, who had not opposed a suspended sentence. Although the attitude of the prosecution can never be determinant of the decision of a court, if the prosecution does not oppose a suspended sentence then that is a factor to which the court should have regard when considering whether to exercise the discretion to suspend the sentence.
In my view, the Magistrate failed to have regard to the appellant’s efforts to rehabilitate himself, after he had been released from prison. She did not give sufficient weight to the fact that he had not offended for a considerable time, that he appears to have matured and that this offending occurred on the spur of the moment out of a sense of misguided loyalty and through a failure of the appellant to resist accepting some of the stolen goods. Having regard to the factors to which I have referred, I conclude that the discretion exercised by the Magistrate miscarried. I therefore set aside the sentence.
In considering the sentence, I have regard to the matters referred to by counsel who appeared before the Magistrate. In deciding whether good reason exists to suspend a sentence, the Court will often be required to weigh up competing factors, such as punishment, general and personal deterrence, and the seriousness of the offending against factors personal to the defendant. If a person has demonstrated that they are making a real effort to become a useful member of the community, then that is a factor to which a court should give consideration. The imposition of an immediate custodial sentence is a last resort. In this case, the offending was not premeditated. The appellant had exhibited a genuine attempt not to revert to criminal conduct.
In my view, there were good reasons in this instance to suspend the sentence.
The appeal is allowed. The sentence is set aside. I consider that the period of imprisonment of four months imposed by the Magistrate, having taken into account the appellant’s plea of guilty, is reasonable. However, I would suspend the sentence upon the appellant entering into a bond in the sum of $100 to be of good behaviour for two years and to be under the supervision of a Community Corrections Officer for a period of one year.