Myers v Police No. Scciv-01-1729

MYERS v POLICE
[2002] SASC 26
Magistrates Appeals: Criminal

PERRY J. (ex tempore) The appellant appeals against sentences imposed upon him in the Magistrates Court sitting at Christies Beach on a number of charges to which he had pleaded guilty.
He was charged with two shoplifting counts, both committed on 24 July 2001 at Noarlunga Centre. He was further charged with illegal use of a motor vehicle, which was alleged to have taken place on 25 August 2001, with failing to comply with a term or condition of a bail agreement, and with unlawful damage of a home detention bracelet which was in his possession pursuant to conditions of bail. The damage to the home detention bracelets was alleged to have occurred on 15 and 16 September 2001.
The learned sentencing magistrate first held that there was no good reason to excuse the breach of the suspended sentence bond. That involved a suspended sentence of two months. He ordered that sentence to be served, the commencing date being the date upon which the appellant was taken into custody, that is to say 16 September 2001.
He dealt with the two counts of larceny together, and imposed single sentence of one month’s imprisonment to be served cumulatively upon the sentence imposed on the breach of bond.
As for the charge of illegal use, this was a second offence of its kind. The appellant was liable to serve a minimum of three months and a maximum of four years imprisonment. The learned sentencing magistrate imposed a sentence of eight months, to be served cumulatively upon the other orders for imprisonment. In addition he ordered a 12 month disqualification of licence.
Finally he ordered that there be a conviction recorded on the charges of breach of bail and the two counts of property damage, as to which he ordered that the appellant serve a further term of one month’s imprisonment, again to be served cumulatively upon the other sentences which he imposed.
In result, the total sentence imposed was 12 months against which he set a non-parole period of six months.
In his notice of appeal the appellant complains that the learned sentencing magistrate erred in failing to give to the appellant credit for his pleas of guilty; in failing to give due weight to the rehabilitative prospects of the appellant and his personal circumstances; and in failing to give effect to the principle of totality. The appellant further complains that the sentence is manifestly excessive, and that the learned sentencing magistrate should have either wholly or partially suspended the period of imprisonment.
The appellant is a young man of 20 years of age who, according to a pre-sentence report which was before the learned sentencing magistrate, has had an unfortunate childhood, his parents divorcing when he was 4 years old. It is clear that he fell into substance abuse from an early age, more particularly as to drugs and alcohol.
He accumulated an extensive record of prior offences which were detailed in an antecedent report. The offences commenced in 1998 when the appellant was sentenced in the Children’s Court on a variety of offences which included six counts of larceny, counts of damaging property, and receiving. A similar pattern of offending characterised the other offences which he accumulated, up to the time when he was before the Magistrates Court on the occasion in question.
The upshot of this long history of offending despite his youth prompted the probation officer responsible for the pre-sentence report to suggest that the appellant gave every indication of being institutionalised.
So far as the immediate circumstances of the offending now in question are concerned, these are described in an affidavit filed by the police prosecutor, Mr Cocks.
With respect to the two shoplifting counts the appellant was detected in a K-Mart store where he was found to be in possession of a bottle of cologne and a box of chocolates which he had not paid for. He subsequently produced another bottle of cologne which was identified as having been stolen from Harris Scarfe. The appellant made full admissions.
As for the illegal use, the vehicle was detected by an unmarked police car which followed it. The car was driven into a tree and the occupants, who included the appellant, fled the scene. As a result of information given by the other occupants of the car a little later, the appellant was found nearby at his home address and arrested. Again he made full admissions. The car was damaged to the extent of $1,000.
As for the bail related offending, the appellant was placed on home detention bail on 13 September 2001, one of the conditions being that he wear a bracelet. On 15 September he was detected removing the bracelet from his ankle. It was reattached, but the next day he was again detected removing it. When the police attended at his home he was found to be extremely intoxicated. The bracelet was found in the premises. The appellant admitted having drunk half a bottle of rum and smoking marijuana. He stated that he had removed the bracelet because it was hurting his ankle.
The appellant was represented by counsel in the court below, Mr Clarke, who also appeared on the hearing of the appeal.
The learned sentencing magistrate gave ex tempore sentencing remarks in which he explained that he viewed the offences as serious. After setting out the various penalties which he imposed, he indicated that he was prepared to set a shorter non-parole period than might otherwise have been the case in recognition of the fact that the appellant had the potential to benefit from a reasonable period on parole.
During the course of his somewhat lengthy sentencing remarks, the learned sentencing magistrate did not refer to the fact that the appellant was entitled to credit for his plea of guilty and did not indicate the extent of any credit which he might have allowed by reason of that circumstance. At the outset of his submissions on the hearing of the appeal Mr Clarke submitted that the learned sentencing magistrate had erred in failing to give to the appellant credit for his pleas of guilty.
The difficulty with that submission is that it is impossible to tell from the sentencing remarks whether or not the learned sentencing magistrate in fact gave credit or not. Of course the law is and has been established for many years that a sentencing court should give credit for a plea of guilty and should indicate in the sentencing remarks the extent of the credit given. However, in my opinion, the failure expressly to refer to those matters is not an error of law which, standing alone, entitles an appellate court to reassess the penalty.
As was said by King CJ in R v Sutherland:[1]
“It does not follow of course that merely because the learned judge did not indicate the extent to which he took the plea of guilty into account that he would not give it appropriate weight. That can only be judged by assessing what would have been a reasonable sentence if there had been no plea of guilty and comparing it with the sentence actually imposed.”
[1] Judgment No S3705, 16 November 1992 (unreported).
As I put to Mr Clarke in arguendo, in circumstances in which it is impossible to tell whether or not an appropriate discount has been given for a plea of guilty the court is more or less driven to consider simply whether or not the sentence actually imposed has been shown to be manifestly excessive. Whether or not a sentence is manifestly excessive depends upon a qualitative and quantitative assessment by the appellate court of the sentence imposed against the nature of the offending and all other relevant circumstances. When a sentence is found to be manifestly excessive this will usually be in circumstances in which a specific error on the part of the sentencing court cannot be identified, but having regard to the sentence imposed the appellate court is led to the view that there must be some unidentified error which has given rise to an unduly heavy sentence.
That seems to be the case here, in the sense that consideration of this appeal pivots upon the complaint that the sentence is manifestly excessive.
Mr Clark has put every possible argument in favour of the allowance of the appeal on that score. In his most helpful submissions, he emphasised the need to give to the appellant every chance to rehabilitate himself. He submitted that there would have been a greater opportunity for that if the magistrate had approached the matter on the basis that the appellant has already served 2½ months in custody before he came to be sentenced, and if the magistrate had then imposed a suspended sentence thereafter.
One difficulty, however, in approaching the matter in that way is that if it was proper for the learned sentencing magistrate to activate the suspended term of imprisonment, then it would not have been possible to suspend any other sentence which have been imposed cumulatively upon it. Having regard to the terms of s 38(2) of the Criminal Law (Sentencing) Act 1988, Mr Clarke’s answer to that problem was to suggest that it would have been proper for the magistrate to indicate that the activation of the suspended sentence might be regarded as having been fulfilled by the 2½ months already spent in custody, and to then proceed in the way which Mr Clarke suggested.
Mr Clarke also submitted that the learned sentencing magistrate should have considered exercising his powers under s 38(2a) of the Criminal Law (Sentencing) Act and ordered that the appellant serve a short sentence of imprisonment and suspended the balance on a bond.
The court leans in favour of endeavouring to maximise the opportunity for rehabilitation of any offender, particularly a young offender. One cannot help feeling sympathy for the appellant who has given every appearance of drifting into a life of crime at an early age, exacerbated by substance abuse. There can be no doubt that his unfortunate personal circumstances which have effectively lost any real semblance of family support, have contributed significantly to that situation.
However, there is no warrant for this Court to interfere with the sentence under appeal unless error can be demonstrated. The argument advanced by the respondent was that the appellant cannot demonstrate error. Ms Richardson, who appeared for the respondent, submitted that the penalty imposed on the illegal use count was well within the appropriate range of sentences and that the offending overall was in breach of two bonds, the first of the offences having been committed very soon after the release of the appellant on the suspended sentence, namely within about two months. She referred also to the appellant’s antecedents, which she submitted gave no support for the view that the appellant, despite his age, was a good candidate for rehabilitation.
I have given careful consideration to the arguments advanced in support of the appeal, but at the end of the day I am unable to detect error in the approach adopted by the learned sentencing magistrate and in my view the appellant has failed to demonstrate that the sentence imposed was manifestly excessive.
The appeal is dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
[1] Judgment No S3705, 16 November 1992 (unreported).

[2002] SASC 26

30 January 2002