MUNRO v Police - [2014] SASC 166

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MUNRO v POLICE
[2014] SASC 166
Judgment of The Honourable Justice Blue
7 November 2014
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
Appeal against sentence imposed by a Magistrate.
The defendant pleaded guilty to one count of serious criminal trespass in a non-residential building and one count of theft. The defendant also pleaded guilty to one count of driving a motor vehicle without holding a driver's licence and thereby admitted that he breached a good behaviour bond entered into in respect of a suspended sentence of imprisonment for three months. The defendant was sentenced to 12 months imprisonment with a non-parole period of six months.
The defendant appeals against sentence on the basis that the Magistrate erred in failing to suspend the term of improsnment, there being good reason to do so.
Held (dismissing the appeal):
1. The discretion to determine whether there is “good reason” to suspend a sentence of imprisonment may only be interfered with on appeal if a Magistrate acts upon a wrong principle, mistakes the facts, takes into account an irrelevant matter or fails to take into account a relevant matter or imposes a sentence that is unreasonable or plainly unjust (at [20]).
2. The mere fact that the Magistrate remanded the defendant in custody before imposing penalty does not indicate pre-judgment on the part of the Magistrate on the question of suspension (at [22]).
3. The Magistrate had proper regard to the defendant's circumstances and prospects of rehabilitation and it was open to the Magistrate to make the assessment of the defendant’s prospects of rehabilitation that he did (at [24]-[25], [29]).
4. The Magistrate properly took into account deterrence and punishment as matters to be weighed in the scales when considering whether there was good reason to suspend (at [26]-[27]).
5. The defendant has not established any of the grounds of appeal. The appeal is dismissed (at [31]).
Criminal Law Consolidation Act 1935 (SA) ss 134(1), 169(1); Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 19(3)(a), 38(1); Motor Vehicles Act 1959 (SA) s 74(2), referred to.
House v The King (1936) 55 CLR 499; Van Lammeren v Police (1998) 28 MVR 549, applied.

MUNRO v POLICE
[2014] SASC 166
Magistrates Appeal (Criminal):
BLUE J:

This is an appeal by the defendant against sentence imposed by a Magistrate.
The defendant pleaded guilty to one count of serious criminal trespass in a non-residential building[1] and one count of theft from the building of a laptop computer[2] committed on 12 December 2012. The defendant also pleaded guilty to one count of driving a motor vehicle without holding a driver’s licence[3] committed on 15 December 2011. The defendant admitted that he thereby breached a bond to be of good behaviour for 12 months entered into on 11 May 2011 in respect of a suspended sentence of imprisonment for three months for driving a motor vehicle while disqualified on 28 February 2011.
[1]    Criminal Law Consolidation Act 1935 (SA) s 169(1).
[2]    Criminal Law Consolidation Act 1935 (SA) s 134(1).
[3]    Motor Vehicles Act 1959 (SA) s 74(2).
The Magistrate sentenced the defendant for the offences committed on 12 December 2012[4] to a term of imprisonment of 12 months with a non-parole period of six months. The Magistrate declined to suspend the term of imprisonment. The Magistrate convicted the defendant without imposing further penalty for the offence committed on 15 December 2011. The Magistrate refrained from revoking the suspended sentence imposed on 11 May 2011 and took no further action with respect to the breach of bond.
[4] Utilising s 18A of the Criminal Law (Sentencing) Act 1988 (SA).
The defendant appeals against the sentence for the offences committed on 12 December 2012 on the ground that the Magistrate erred in failing to suspend the term of imprisonment imposed, there being good reason to do so.
Background
On 12 December 2012, the defendant broke into the office of a builder at Gawler South and stole a laptop computer. The maximum penalty for serious criminal trespass in a non-residential building is imprisonment for 10 years and the maximum penalty for theft is imprisonment for 10 years.[5]
[5] The maximum sentence that could be imposed by a Magistrate is imprisonment for 5 years for one offence or imprisonment for 10 years for two or more offences: Criminal Law (Sentencing) Act 1988 (SA) s 19(3)(a).
The defendant was born in 1976 and is 38 years old. He had a dysfunctional childhood with a violent alcoholic father and an abandoning mother. He left home at the age of 14 and left school at the age of 15. He has worked as a garbage runner and general labourer but has been unemployed for most of his working life. His last employment was before 2000.
The defendant commenced using cannabis at the age of 16 and alcohol at the age of 17. He ceased using alcohol at the age of 25 when he was convicted of assault occasioning actual bodily harm in April 2001. He commenced using amphetamine at the age of 27 in 2003. He was severely addicted to amphetamine until he was imprisoned in August 2007.
The defendant has numerous prior convictions, the first in 1993 in the Children’s Court for driving a motor vehicle without consent and without holding a driver’s licence. In September 2000, he was sentenced to imprisonment for two months for assault, which was suspended upon his entering into a 12 month good behaviour bond. In April 2001, he was sentenced to imprisonment for 12 months with a non-parole period of six weeks for two counts of assault occasioning actual bodily harm and one count of damaging property committed in November 1999. In August 2007, he was sentenced to imprisonment for four years with a non-parole period of 18 months for 38 offences including serious criminal trespass, theft and driving a motor vehicle while disqualified. He was released on parole in January 2009. In May 2011, he was sentenced to imprisonment for three months, suspended upon his entry into a 12 month good behaviour bond, for driving while disqualified in February 2011. That offence was committed in breach of his parole, but no steps were taken to revoke his parole.
The defendant undertook drug and alcohol rehabilitation programs while in prison and on parole. More recently, he completed certificates 1 and 2 in Logistics to qualify him for working in that field.
The defendant has a 12 year old daughter who commenced residing with him during the last year. He had not previously had a father-daughter relationship with her. Since 2008 or 2009, the defendant has been in a de-facto relationship with Nicole. They have a four year old son and Nicole has three children from a previous relationship aged between six and 12 years old.
The defendant relapsed into amphetamine use in October or November 2012. This adversely affected his relationship with Nicole, who moved out of their home taking the children with her two or three weeks before 12 December 2012. The Magistrate accepted that the defendant committed the offences on 12 December 2012 to pay for Nicole’s continuing accommodation.
The defendant was assessed by a psychologist, Mr Balfour, who provided a report dated 24 July 2014. Mr Balfour did not find any clinical evidence to suggest that the defendant suffers from a psychotic illness, intellectual disability or brain injury. However, he considered that the defendant has developed a personality disorder. He considered that, following his last release from prison, the defendant had dramatically improved his life, largely due to being in a stable de-facto relationship for the last six years. He referred to the defendant’s relapse of his amphetamine addiction which ultimately led to the commission of the offences on 12 December 2012. He referred to remorse expressed by the defendant. He expressed the opinion that, with the assistance of a supervised, structured rehabilitation program, the defendant’s prognosis to cease offending was fair (on a scale of poor, fair and good) for reasons that he set out in his report. He made recommendations concerning a supervised, structured rehabilitation program for the defendant.
The Magistrate’s remarks
In his remarks on penalty, the Magistrate outlined the circumstances of the offending, the defendant’s criminal record and his history and personal circumstances. He summarised Mr Balfour’s report in detail in the following terms:
Your lawyer has provided me with a report from Mr Richard Balfour, psychologist, of 24 July 2014. I have read and taken into account all that Mr Balfour has to say. He records that you had a dysfunctional childhood, an alcoholic father and what he described as an ‘abandoning mother’. You left school during Year 10. You have worked as a garbage truck driver and a labourer but mostly you have been unemployed. You have been in a defacto relationship for the past six years. You and your partner have a nine year old child together and you have a twelve year old child from a previous relationship. You have a history of alcoholism and cannabis and amphetamine use. Mr Balfour could find no evidence of a psychotic illness, intellectual disability or acquired brain injury. He thought you suffer a personality disorder, characterised by mixed traits which have been made worse by alcohol and by drugs. He says that following your last term of imprisonment, you had dramatically improved your lifestyle, mostly due to your stable defacto relationship that is, until you recommenced drug use. You expressed to Mr Balfour and I accept through your plea, that you are sorry for your offending and you expressed to Mr Balfour, awareness of the effects of your crime. Mr Balfour commented that any potential mental health problem which might come as a consequence of an immediate gaol term, could be adequately managed by the prison mental health service. He noted you had previously successfully completed parole. He made the observation that ‘When combined with a comprehensive rehabilitation program, I believe his fear of incarceration could be used as an effective personal deterrent against further offending’. He made the observation that you have a 12 year old daughter who has regrettably been subjected to sexual abuse – not at your hands but at the hands of somebody else. She has since been living with you and your partner whilst that matter is investigated. He comments that an immediate term of imprisonment will impact on her welfare psychologically. I take account of the fact and submissions made by your lawyer in relation to that. Mr Balfour assesses as fair, your prognosis to re-offend given the assistance of a supervised rehabilitation program. It makes various recommendations in that regard.
The Magistrate then determined to impose no further penalty for the offence committed on 15 December 2011 and not to revoke the suspension on the three month sentence of imprisonment which had been imposed in May 2011. He sentenced the defendant for the offences committed on 12 December 2012 to imprisonment for 12 months with a non-parole period of six months.
The Magistrate then addressed the question of suspension in the following terms:
I turn to the issue of suspension. Mr Katsaras has made a sincere plea that I ought to find there to be good reason to suspend that gaol term. He has said all that there is to say. I take into account all that he has said. He has, amongst other things, emphasised the gap between the offending and the offending the subject of the gaol terms imposed in 2007, the fact that until 12 December 2012 you have not been dealt with for like offending, the fact that your capacity for rehabilitation is previously demonstrated by successful completion of parole and the remarks made by Mr Balfour in his report and the effect that an immediate term of imprisonment is likely to have upon your 12 year old daughter.
I have carefully considered all of Mr Katsaras has put however, you have had every opportunity to permanently rehabilitate. Still, you have re-offended. This is despite the sentence imposed in 2007. The consequences of your actions must have been apparent to you. I find myself unable to conclude that there is good reason to suspend the gaol term and I decline to do so. The sentence and the non-parole period will date from 30 July 2014.
Arguments on appeal
The defendant contends that on 30 July 2014 the Magistrate pre-judged the question whether there was good reason to suspend a sentence of imprisonment. On that day the Magistrate revoked the defendant’s bail upon his entry of the guilty pleas before the Magistrate heard submissions on penalty which were scheduled for 6 August 2014.
The defendant contends that the Magistrate failed to give proper consideration to the defendant’s circumstances, namely that after his release on parole in January 2009 he had turned his life around, the December 2012 offending happened after a sustained break in offending when he relapsed into amphetamine addiction, he had recently assumed care of his 12 year old daughter, he was genuinely remorseful and Mr Balfour considered his prognosis to cease offending to be fair.
The defendant contends that the Magistrate was unduly concerned with deterrence and punishment at the expense of the defendant’s circumstances and prospects of rehabilitation.
The defendant contends that Magistrate set the bar too high in stating “you have had every opportunity to permanently rehabilitate”.
Good reason to suspend
The defendant accepts that the question whether there is “good reason” to suspend a sentence of imprisonment within the meaning of section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) involves a discretionary judgment.[6] The exercise of the discretion is only amenable to interference on appeal if a Magistrate acts upon a wrong principle, mistakes the facts, takes into account an irrelevant matter or fails to take into account a relevant matter or imposes a sentence that is unreasonable or plainly unjust.[7]
[6] Van Lammeren v Police (1998) 28 MVR 549 at [23], [25] per Olsson J (Millhouse and Debelle JJ agreeing).
[7] In accordance with the general principles for review of discretionary judgments identified by the High Court in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
Pre-judgment of whether there was good reason to suspend
On 30 July 2014, the defendant pleaded guilty to the December 2012 offences. The Magistrate indicated that he intended to remand the defendant to 6 August 2014 so that the file relating to the breach of bond could be obtained and submissions on penalty could be made. Counsel indicated that he would submit that there was good reason to suspend a term of imprisonment. The Magistrate then heard from the defendant’s counsel whether bail should continue. The Magistrate indicated that, now that the defendant had pleaded guilty, he considered that whether bail should be continued was in his general discretion. After hearing submissions, the Magistrate remanded the defendant in custody.
The defendant accepts that it is not unusual for a Magistrate to remand a defendant in custody after hearing submissions on penalty and before imposing penalty[8] and that in such cases it is not uncommon for a Magistrate to impose a suspended sentence taking into account that the defendant had spent a short time in custody. The defendant accepts that the mere fact that a Magistrate remands a defendant in custody before imposing penalty does not indicate pre-judgment on the part of the Magistrate on the question of suspension. However, the defendant contends that, because the Magistrate in this case remanded him in custody before hearing submissions on penalty, that indicates that the Magistrate had already determined not to suspend a sentence of imprisonment.
[8] No suggestion is made that this entails a miscarriage of the bail discretion in such cases or in the present case and hence that question does not arise on this appeal.
I reject the defendant’s contention. There is no more reason to believe that a Magistrate has pre-judged the question of suspension when a Magistrate remands a defendant in custody pending the hearing of submissions on penalty than when a Magistrate does so after hearing submissions. There is no reason to apprehend that the Magistrate had on 30 July 2014 made any decision whether there was good reason to suspend and objectively the Magistrate was in no position to do so given that he had not yet heard submissions on the question. I reach that conclusion without regard to the Magistrate’s subsequent conduct. If the Magistrate’s subsequent conduct is taken into account, the fact that he reserved his decision on 6 August 2014 for six days before imposing penalty and his detailed remarks on penalty, and in particular those relevant to suspension, indicate that he approached the question of suspension with an open mind.
Failure to give proper consideration to personal circumstances
The defendant contends that the Magistrate failed to give proper consideration to the defendant’s circumstances, namely that after his release on parole in January 2009 he had turned his life around, the December 2012 offending happened following a sustained break from offending when he relapsed into amphetamine addiction, he had recently assumed care of his 12 year old daughter, he was genuinely remorseful and Mr Balfour considered his prognosis to cease offending to be fair.
I reject the defendant’s contention. The Magistrate identified each of these matters in his remarks on penalty in the paragraph extracted at [13] above. It is apparent from the further paragraphs extracted at [15] above that the Magistrate took each of these matters into account.
Undue concern with deterrence and punishment
The defendant contends that the Magistrate was unduly concerned with deterrence and punishment at the expense of the defendant’s circumstances and his prospects of rehabilitation.
I reject the defendant’s contention. The defendant does not dispute that deterrence and punishment are matters to be weighed in the scales when considering whether there is good reason to suspend a sentence of imprisonment. The Magistrate said that he had regard to all of the matters relating to the defendant’s circumstances and prospects of rehabilitation identified by the defendant’s counsel and by Mr Balfour and he summarised those matters extensively. There is no reason to consider that the Magistrate did not have proper regard to those matters when considering whether there was good reason to suspend that sentence of imprisonment.
Bar too high in assessing prospects of rehabilitation
The defendant refers to the passage from the Magistrate’s remarks in which he said “you have had every opportunity to permanently rehabilitate. Still, you have re-offended.” The defendant contends that the defendant had rehabilitated himself before the offending on 12 December 2012 and that he returned to his law abiding ways after the offending. The defendant contends that it would be impossible for a person during the course of his or her life to demonstrate that he or she had permanently rehabilitated because there would always be the possibility of relapse and that accordingly the Magistrate set the bar too high in his assessment of the defendant’s prospects of rehabilitation.

If the defendant were correct in his construction of the Magistrate’s remarks, it would evidence an erroneous approach on the part of the Magistrate. However, in context, it is apparent that, by his reference to “permanently”, the Magistrate was referring to a sustained rehabilitation, such as to give sufficient confidence in the defendant’s future prospects of rehabilitation as may have led to the conclusion that there was good reason to suspend the sentence of imprisonment. Given that the defendant had committed the offence of driving while disqualified in February 2011 whilst still on parole, had committed the offence of driving without a licence in December 2011 in breach of the bond imposed in respect of the earlier driving offence, had relapsed into amphetamine use in October or November 2012, and had committed the offences of serious criminal trespass and theft in December 2012, it was open to the Magistrate to make the assessment of the defendant’s prospects of rehabilitation which he did.
Conclusion
I conclude that the Magistrate did not make any of the errors in approach submitted by the defendant, nor did he take into account an irrelevant matter or fail to take into account a relevant matter. It cannot be said that, regardless of the approach adopted by the Magistrate, the outcome of declining to suspend the sentence was manifestly unreasonable or plainly unjust.
The defendant has not established any of the grounds of appeal. I dismiss the appeal.