Morzanj v Police No. Scgrg-98-339 Judgment No. S6669

[1998] SASC 6669

MORZANJ V POLICE

Magistrates Appeal

Mullighan J (ex tempore)

This is an appeal against sentence.  The appellant pleaded guilty to breaking and entering a house property and stealing jewellery to the value of $1,060, the property of the lady who lived in that house.  He committed that offence on 20 October 1997.  He was detected by neighbours in the course of committing the offence and was restrained by them until the police arrived at the premises and arrested him.  He came before the Magistrates Court at Elizabeth on 22nd December 1997 and entered a plea of guilty.  He was remanded in custody and was sentenced on 24 December. 

The appellant is a young man aged 19 years.  He has a significant record of prior offending.  On 7 September 1995 at the Port Adelaide Youth Court, he was convicted of interfering with a motor vehicle and of larceny and was placed on what is known as 12 months' obligation.  His licence to drive a motor vehicle was disqualified for a period of 12 months and he was also ordered to perform 120 hours of community service within a period of six months.   On 18 April 1996 at the same court, it appears that he pleaded guilty to the offences of being unlawfully on premises, larceny and failure to comply with the bond of obligation which I have mentioned.  With respect to the first and third of those offences, he was convicted without penalty.  With respect to the larceny charge, he was convicted and sentenced to six days' detention, which was suspended upon his entering into a bond of obligation to be of good behaviour for a period of 12 months.  On 1 September 1997 at the Port Adelaide Magistrates Court, he was convicted of breaking and entering and larceny and sentenced to imprisonment for 12 months with a non-parole period of six months.  This sentence was suspended upon his entering into a bond to be of good behaviour for a period of three years and to be under the supervision of a probation officer.  Prior to that date, he had been remanded in custody for a period of about five months.  Not long after his release, he committed the subject offence.

The learned Magistrate took a very serious view of the appellant's offending.  He noted that the offence for which he was to be sentenced was committed only about one month after the appellant was released on the suspended sentence for a similar offence.  He correctly took the view that the only appropriate penalty was immediate imprisonment, despite the age and personal circumstances of the appellant.  He sentenced him to imprisonment for 14 months.  The suspended sentence was revoked with the consequence that the appellant had to serve the sentence of 12 months imprisonment.  The sentence of 14 months was made cumulative upon the sentence which had been suspended with a consequence that the appellant had a total head sentence of 26 months imprisonment which commenced from 22 December 1997.  The learned Magistrate fixed a non-parole period of 18 months. 

At the hearing before the learned Magistrate the appellant was not represented.  He was given the opportunity to obtain legal representation and to do whatever was necessary to do justice to himself but he chose to get on with the matter in order to have it completed quickly.  The learned Magistrate asked him if he wanted to say anything and he responded by admitting his guilt and expressing his sorrow for what he had done.  He said that he was living with his parents, that he came from a good family, all members of his family had employment and they lived together in a stable environment.  He said that he had employment as a part-time cleaner at a shopping centre in Salisbury and that he worked with his father as a fencing contractor.   Earlier in the year he commenced a course in graphic design at a TAFE college and had borrowed money from the Department of Social Security to pay the fees for that course.  He told the learned Magistrate that the course was for a period of four years.  He had a loan of $3,500, taken out to enable him to purchase a motor vehicle.  He was not asked to elaborate on any of these matters and was not asked any questions.  After he had made his submissions the learned Magistrate imposed sentence. 

Initially the appeal was against the head sentence as well as the non-parole period on the sole ground that both of them were manifestly excessive.  At the hearing of the appeal, the appeal against the head sentence was abandoned and, if I may say so, correctly so.  It could not, in all the circumstances, be said that the head sentence was itself manifestly excessive or that the decision to make it cumulative upon the sentence to be served upon the revocation of the suspended sentence was wrong in principle. 

The complaint on appeal is that the non-parole period is manifestly excessive but, perhaps more specifically, the complaint is that the learned Special Magistrate failed to take into account adequately, if at all, the personal circumstances of the appellant and to give emphasis to the rehabilitation of the appellant given his age. 

This matter is not free from difficulty.  The appellant is a young man with a very bad record.  On two previous occasions he has been given leniency by courts and the opportunity to make something of his life.  He had had a solid taste of prison whilst on remand which should have been a salutary lesson to him as to what was likely to happen should he re-offend.

Having been in prison for that period of time he was then given the suspended sentence which was an opportunity to make good in his life.  As the learned Magistrate observed within a very short period of time he committed the subject offence, which in itself is a most serious breach of the criminal law. 

When a non-parole period is fixed a court is making a decision as to what period of the total sentence should be served in custody and what period should be served at liberty in the community under the strict conditions of parole.  In this case the learned Magistrate had to make a judgment bearing in mind all of the relevant principles of sentencing which include adequate punishment, personal deterrence, general deterrence, the need to protect the community and rehabilitation.  Plainly he gave emphasis to the first four of those five matters. 

Whilst his sentencing remarks are very brief, it may be accepted that he was well aware of the principles to be applied when reaching a just sentence in this matter.  The question is whether he has given insufficient weight to the age of the appellant and therefore his stage in life and his development, and the prospects of rehabilitation. 

The learned Magistrate was informed by the appellant in person that he was contrite.  His plea of guilty suggests as much and there were signs that he was doing something about his life.  He had the stability of a sound family life, he had employment and he had embarked upon tertiary education.   His employment and the tertiary education, along with his plea of guilty and his statement of contrition are positive indicators of rehabilitation.  The disturbing feature is that during the course of these matters, which may be described as positive indicators of his rehabilitation, he committed the subject offence.

What contributes to the difficulty in this matter is the brevity of the sentencing remarks because it is not possible to say what regard, if any, was paid to the age, personal circumstances of the appellant and his prospects of rehabilitation.  I appreciate that the learned Magistrate had to deal with this matter in the course of a busy list but he did not mention the matters that had been urged upon him by the appellant.  That is not to say that he disregarded them, but the weight that he gave to them cannot be discerned from his sentencing remarks which, as I say, adds to the difficulty.

Standing back and looking at the matter in its entirety, I am inclined to the view that the learned Magistrate did not give due regard to the age and personal circumstances of the appellant, and his prospects of rehabilitation.  A consequence of such a long non-parole period is the possible destruction of those prospects of rehabilitation, which is not only contrary to the interests of the appellant, but also contrary to the interests of the community. 

I hesitate to interfere in the exercise of the sentencing discretion of an experienced magistrate but I think in the present circumstances it is clear that he erred in not giving adequate emphasis to those matters. 

In the circumstances the non-parole period is, in my view, manifestly excessive for the reasons which I have mentioned. 

The dictates of adequate punishment, personal deterrence, general deterrence and community protection may be adequately served by a lesser non-parole period, given that the appellant would be required to serve the balance of his sentence under strict conditions of parole.  A shorter non-parole period is very likely to preserve the prospects of rehabilitation such as they now exist and perhaps even to enhance them if the appellant realises that rehabilitation is a better option than a life of crime. 

The enhancement of the prospects of rehabilitation is not contrary to the other aspects of sentencing provided the correct balance is achieved. 

As I have said, the total head sentence is 26 months.   Given the error in the exercise of the sentencing discretion which has been detected, it remains to exercise that part of the sentencing discretion afresh.  In doing so the non-parole period must reflect appropriate punishment as well as give appropriate emphasis to the other principles which I have mentioned.

I allow the appeal but only with respect to the non-parole period which I set aside.