Mullen v Police No. Scciv-02-705

[2002] SASC 245

MULLEN  v  POLICE
[2002] SASC 245

Magistrates Appeal

1. DUGGAN J.         The appellant has appealed against sentences imposed in the Port Adelaide Magistrates Court for a series of admitted offences.  The principal ground of appeal is that the sentences are manifestly excessive.  Other grounds complain that the magistrate failed to give effect to the principle of totality and that he did not attach sufficient weight to the appellant’s psychological condition.

2. The offences, the police allegations in relation to them and the penalties imposed may be summarised as follows:

   The first information

3. On 6 November 2000 at Semaphore South the appellant drove a motor vehicle without first obtaining the consent of the owner.  On the same occasion he drove without due care and failed to stop when requested by a member of the police force to do so.

4. The appellant was observed by police officers as he was driving the vehicle and a high speed chase followed.  Eventually the vehicle collided with the kerb and stopped.  The appellant ran from the vehicle but was located a short time later by police officers.

5. The appellant was sentenced to a global penalty of imprisonment for eight months on the three charges and his driving licence was disqualified for a period of two years.

   The second information

6. On 6 February 2001 at Grange the appellant entered a non-residential building as a trespasser with the intention of committing larceny.  He also stole a quantity of goods valued at $40.00 which were in the building.

7. The appellant and three co-offenders broke into a snack bar at Grange and stole the abovementioned items.  The damage to the front glass door was repaired at a cost of $1,090.  The appellant made full admissions to these offences and stated that he wanted the property for his own consumption and use.

8. A global sentence of 14 months was imposed.

   The third information

9. The appellant was found in possession of an inflatable dinghy valued at $3,000.  He gave a false story when asked to account for his possession of the dinghy.  The dinghy had been stolen from a yacht club.  The appellant’s counsel told the magistrate that the appellant acquired the dinghy from a man who owed him money.  The dinghy was given to him in lieu of the money.

10. A sentence of imprisonment for six months was imposed.

    The fourth information

11. On 11 February 2001 at Kidman Park the appellant, without reasonable excuse, failed to comply with a term of a bail agreement entered into by him.

12. Under the terms of the bail agreement the appellant was required to reside at a particular address.  On one occasion when the police called at the address the appellant was not there and had not been seen since 11.00 am on the previous day.  When questioned about this the appellant said that the person with whom he had been staying had harassed his (the appellant’s) partner and the appellant had decided to leave.

13. A penalty of imprisonment for two months was imposed.

14. Cumulative effect was given to each of these sentences so that the head sentence was imprisonment for 30 months.  The magistrate imposed a non-parole period of 10 months.

15. Although not made a ground of appeal, the respondent conceded that the magistrate had erred in imposing a global sentence in respect of the offences referred to in the first information. A custodial penalty was not available in respect of two of the offences. Accordingly, they could not be dealt with by way of a global penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. (Hermel v Police (2000) 76 SASR 336). As a result of this error, both the appellant and respondent submitted that I should exercise the sentencing discretion afresh in respect of all matters. In my view, this is an appropriate course to adopt. Whilst the error could be said to be confined to the offences referred to in the first information, the non-parole period was imposed in respect of the combined total of the individual sentences. Furthermore, the magistrate made no reference to credit being given for the pleas of guilty. Whilst this, of itself, does not necessarily require interference on appeal, it is a matter to be taken into account along with the other matters to which I have referred, in deciding whether to consider the matter afresh.

16. The appellant was 23 years of age at the time of sentencing on 16 May 2002.  He completed Year 11 at school and has worked for a time since then.  His various appearances before the courts date back to 1995.  He has three convictions for driving motor vehicles without the consent of the owner.  The last two offences took place in 1996.  The appellant was sentenced to imprisonment for six months on each of the last two offences, but the sentences were suspended.  He also has convictions for driving in a reckless or dangerous manner, driving under the influence, resisting police and possession of implements of housebreaking.

17. The appellant’s counsel tendered a psychological report at the hearing of the appeal.  The report was not made available to the magistrate, although some aspects of it were referred to in submissions before him.  The report is extensive and the psychologist concludes that the appellant has a marked personality disturbance with related psychopathology.  He suffers from a severe paranoid personality disorder.  I have taken full account of the submissions made by the appellant’s counsel in relation to this material.  However, it seems to me that the appellant’s condition is of limited relevance to the commission of these particular offences.  Although the disorder is significant, it does little to displace the element of general deterrence which is of importance in the case of these offences (R v Wiskich (2000) 207 LSJS 454).

18. I set aside the sentences imposed by the magistrate.

19. I take into account the pleas of guilty in these matters and I have allowed for a reduction of 25 per cent in respect of each custodial sentence.

20. I impose the following sentences:

    On the charge of illegal use the appellant will be convicted and sentenced to imprisonment for six months.  The appellant will be disqualified from holding or obtaining a driver’s licence for a period of two years from 16 May 2002.  The appellant will be convicted on the counts of driving without due care and failing to obey the directions of a police officer.  The latter convictions will be without penalty.

    On the charge of unlawful possession, the appellant will be sentenced to imprisonment for six months.

    There will be a global penalty imposed in respect of the offences referred to  in the second information.  The appellant will be convicted and imprisoned for 12 months on these offences.

    Finally, the appellant will be convicted and sentenced to imprisonment for one month for the breach of bail condition offence.

    All sentences will have cumulative effect.

21. The total head sentence, therefore, will be imprisonment for 25 months.  The principle of totality does not require that this sentence be further reduced.

22. In my view the non-parole period of 10 months imposed by the learned magistrate was particularly lenient.  In the light of the number of offences, their nature and the fact that the appellant has offended regularly I do not think that it is appropriate to reduce the non-parole period below that which was set by the magistrate.  Accordingly I set a non-parole period of 10 months.  The head sentence and the non-parole period will commence on the date on which the magistrate imposed sentence, namely, 16 May 2002.