Naylor v Police No. Scciv-03-4

NAYLOR v POLICE
[2003] SASC 24
Magistrates Appeal: Criminal

PERRY J. (ex tempore) This is an appeal against sentence.
The appellant was found guilty following a trial before a magistrate constituting the Magistrates Court sitting in Adelaide of 16 offences of dishonesty relating to dealings with his bank account in the months of October and November 2001.
Separately, he was convicted following his plea of guilty to an offence of criminal trespass in a non-residential building and associated charges of theft and being in possession of stolen property, and also a breach of bail.
There was some 21 counts in all upon which he was convicted.
On the criminal trespass and related counts on 9 December 2002, the sentencing magistrate imposed a sentence of ten months imprisonment, backdated to commence on 6 August 2002.
On the offences relating to his bank account, which amounted to some 16 counts in all, the sentencing magistrate imposed one penalty, namely, one year and nine months imprisonment after allowing for three months spent in custody. He directed that that sentence be served cumulatively upon the sentence of ten months, giving a total head sentence of two years and seven months. Against that he fixed a non-parole period of one year and four months to run from 6 August 2002.
The appellant advances one ground of appeal, namely “that in all the circumstances the sentence of two years and seven months imprisonment head sentence, and one year and four months non-parole period is manifestly excessive”.
I turn to the circumstances of the offences.
The appellant is aged 34 years. He has a long history of prior offending, dating back to 1981. His prior convictions, which I am told amount to some 76, range from minor street offences to larceny, breaking and enter, and other offences of dishonesty, punctuated by offences relating to drugs.
As the sentencing magistrate pointed out, the appellant has spent a good deal of his adult life before courts and in prisons.
The bank account offences were committed after approximately $60,000 was paid into his bank account in error. It was intended for another account altogether, but the error occurred when there was a transposition of two of the digits in the account numbers.
The appellant’s response to this windfall was to proceed to make a number of withdrawals, in some instances for substantial amounts, over a period of nine days between 27 October and 5 November 2001. In all there were 13 withdrawals and three attempted withdrawals.
I have been given to understand that he took, in all, approximately $15,000, none of which has been recovered.
The appellant defended the 16 charges arising from those transactions. He gave evidence and said that he believed that the large deposit represented the payment to him of an inheritance from the estate of his late grandmother. He denied that he intended to steal or defraud.
In his reasons for judgment leading to the conviction on those 16 counts, the magistrate points to a number of factual inconsistencies and improbabilities which led him to reject the appellant’s account. He was undoubtedly correct in doing so. It was a fanciful story concocted in an attempt to avoid conviction.
In any event, there is no appeal from the conviction.
As for the other three charges, that is, the charges relating to criminal trespass, on 6 August 2002, the appellant, without authority to do so, gained access to a basement area of the Townhouse on Hindley Hotel/Motel where he stole a video cassette recorder. He was apprehended on leaving the building while coming out of the steps into the street. He cooperated with the authorities and the magistrate accepted that the offences were committed in order to support the appellant’s drug habit.
The sentencing magistrate had the benefit of a carefully prepared pre-sentence report. This indicates that the appellant began drinking alcohol at an early age, and later used illicit drugs, later again becoming addicted to heroin and amphetamines. Various efforts at rehabilitation have failed.
About ten years ago the appellant was diagnosed as suffering from schizophrenia.
In a report dated 6 February 2002, Dr Nambiar, a psychiatrist, reported that in addition to schizophrenia the appellant had “a somewhat anti-social personality disorder and has a very well established history of polysubstance abuse and addiction”.
Although the appellant explained to the author of the pre-sentence report that he would seek treatment through the Burdekin Clinic in Adelaide, she thought that his previous history suggested that he might not choose to do so when the time came. She further noted that the appellant’s recent criminal history as follows:
“In March 1998, the defendant was convicted of various offences and sentenced to 27 months imprisonment with a 15 month non-parole period. He was released on parole in June 1999 and the supervision of his parole was transferred to Sydney where, for a very brief time, he lived with his father.
A breach report was submitted to the SA Parole Board on 5 November 1999 after he had failed to report and changed his address without permission.
Mr Naylor told me in March 2000 he was convicted of a break and enter offence in Sydney and was sentenced to 12 months imprisonment.
An SA Parole Board warrant was issued on 21 March 2001. It was on 22 March 2001 that the defendant’s release on parole was cancelled and he served one month and 24 days imprisonment, being released on 15 May 2001.
In May 2001, following a conviction for larceny, he entered into a supervised good behaviour bond.
The defendant never reported so no referral to drug treatment, which was a condition of the bond, was made. The bond was estreated on 29 August 2001 and he served 21 days imprisonment.”
On the hearing of appeal Mr MacFarlane, who appeared for the appellant, has said everything which could be said in favour of the appeal.
He emphasised that the immediate circumstances of the bank account offences were unusual, in that his client was suddenly confronted with a large sum of money in his account, and that given his condition, and circumstances, his conduct in yielding to this temptation was understandable.
Mr MacFarlane complained that the sentencing magistrate had not taken into account sufficiently other options, apart from the custodial term of imprisonment which he ordered, more particularly, the possibility of suspension with conditions.
He referred to another paragraph of the pre-sentence report in which the author, Ms Israel, states:
“Despite his poor history of responsiveness his current attitude would appear to be more positive and he has expressed his willingness to become involved in any counselling/programs that would help him to make the necessary life changes to promote an offence free lifestyle.”
While there is a glimmer of hope in that part of the report, this has to be understood against the background of the appellant’s appalling record, and consistent failure to respond to the opportunities which previously have been created for him to rehabilitate himself.
The negative prospects of successful rehabilitation seem to me to be emphasised in the report of Dr Nambiar, who suggests that given the appellant’s past history his prognosis is poor. He further comments:
“It would be difficult to engage him in any formal management plan as his dislike of medication would result in non-compliance and I would suggest that any attempt to enforce compliance would result in his evading treatment altogether or even moving interstate.”
Furthermore, the passage which I have set out from the pre-sentence report, in which his most recent history, including his release on a supervised good behaviour bond in May of 2001, is given, gives no encouragement to think that there is any real prospect that the appellant would respond successfully to a suspended sentence with conditions of the kind suggested by Mr MacFarlane.
The negative prospects of successful rehabilitation were emphasised by Mr Williams, who appeared for the respondent, in his submissions.
He submitted that the sentences imposed were well within the exercise of the sentencing discretion and that no appealable error has been demonstrated. He submitted that the sentencing magistrate gave appropriate weight to the pre-sentence report.
Insofar as it was suggested by the appellant that his condition of schizophrenia is a mitigating circumstance which should have resulted in a lesser penalty, Mr Williams has submitted that the learned sentencing judge clearly took this into account. That it was a matter to be taken into account is undoubtedly true. But there is no reason to suppose that, together with the other mitigating circumstances which were urged on behalf of the appellant in the court below, it was not taken into account.
In all of the circumstances, in my opinion, the sentences imposed were well within the proper exercise of the sentencing discretion.
I would dismiss the appeal. I so order.
There will be no order as to costs.

[2003] SASC 24

31 January 2003