Newband v Police No. Scgrg-99-949 Judgment No. S385

[1999] SASC 385

NEWBAND V POLICE

[1999] SASC 385

Magistrate’s Appeal

1. MARTIN J.  (Ex tempore)  The appellant pleaded guilty to seven offences of illegal use, five of larceny, and one of false pretences. 

2. The learned special magistrate imposed one sentence of three years imprisonment and fixed a non-parole period of two years and six months.  In addition, on each count of illegal use, he disqualified the appellant from holding or obtaining a driver's licence until further order and ordered that the appellant pay a total of $4 128 in compensation.  His Honour fixed four years and six months as the period within which the compensation was to be paid. 

3. The appellant appeals against the sentence on a number of grounds.  It is said that both the head sentence and the non-parole period were manifestly excessive, and that his Honour erred in declining to suspend the sentence. 

4. In addition, the grounds contend that his Honour erred in not backdating the head sentence and in not reducing both the head sentence and the non-parole period by the time already spent in custody.  It is said that the magistrate erred in imposing a period of disqualification which was manifestly excessive and also in making an order for compensation which was manifestly excessive.  The appellant also submitted that an order for compensation should not have been made because the appellant would be unable to comply with the order:  see s 3 of the Criminal Law (Sentencing) Act 1998. 

5. Finally the appellant complains that his Honour erred in imposing penalties which were grossly disparate when considered against those imposed upon a co-offender. 

6. The appellant and his co-offender engaged in what the magistrate correctly described as “a crime spree” from 18 March 1999 to 23 March 1999.  His Honour correctly rejected the submission that the offending arose through “impulsive behaviour”.  He remarked that the offending involved “wanton damage and very significant interference with the rights of a number of individuals whose property had been damaged or destroyed”. 

7. His Honour expressed the view that imprisonment was the appropriate penalty and said he had no doubt that it was not an appropriate case in which to suspend the sentence.  In fixing a sentence of three years imprisonment commencing on that day, his Honour said he took into account the period of four months that the appellant had spent in custody. 

8. The appellant's co-offender was a person who was three years older and, at the time of the offending, was on parole.  He had an extensive criminal history.  The co-offender had been living with the appellant and the appellant's partner.  While the appellant was very depressed because of family difficulties, he was led into the offending by the co-offender.  Nevertheless, the appellant’s offending was serious and considerable damage was done to the various vehicles involved. 

9. His Honour had the assistance of a pre-sentence report.  The appellant is now 21 years of age.  He had a traumatic childhood involving abuse by both parents.  While he was a teenager, his father was incarcerated on sexual assault charges relating to his biological sister and, in his words, his mother had kicked him out of home.  At the time of the offending, he had been in an established relationship with a woman for approximately 12 months.  He and his partner planned to marry in January 2000.  She continues to support him and has made it clear that, if he even contemplated re-offending in the future, she would evict him from the house and terminate their relationship.  The probation officer preparing the report expressed the view that the appellant's partner presented as an assertive and mature individual with a clear and decisive demeanour. 

10. The appellant attended high school, reaching year 10.   He has only been intermittently employed since leaving school.  When he is released from custody he has the opportunity to take up employment with the father of his partner, although details of that employment are uncertain.  He has undertaken three courses during his period on remand, and hopes to pursue further education at a higher level when he is released.

11. The appellant told the officer preparing the report that because of a recent breakdown in the relationship with his father, at the time of the offending he felt he had little in life to lose.  He and the co-offender began to drink and smoke marijuana.  He said he can remember little of the events and maintained he did not damage any property, but sat in the back of the vehicle. 

12. The probation officer expressed concern that “peer pressure in situations of negativity could weaken Mr Newband's resolve not to re-offend”.  She expressed the hope that he would find stability with his partner and her children.  She assessed that he now appears to be aware of the seriousness of his offending behaviour and his period of incarceration has been one of reflection and forward planning.  He has expressed the wish to seek out the victims of his offending and apologise. 

13. One of the difficulties facing the magistrate was the appellant's unfortunate record of prior appearances.  They date back to 1993.  There are a number of offences of dishonesty and minor drug offences as well as numerous offences of illegal use.  The appellant has breached bonds on more than one occasion. 

14. It is not surprising that the magistrate took a dim view of the appellant's offending.  A sentence of imprisonment was required and there was ample basis upon which the magistrate was entitled to refuse to suspend that sentence.  However, the Crown has conceded that the length of the head sentence is manifestly excessive and his Honour erred in not backdating that sentence to 25 March 1999 when the appellant was taken into custody.  Similarly, the Crown has conceded that the length of the non-parole period was manifestly excessive.  It comprised a high percentage of the head sentence.  The appellant is obviously a person who has shown a degree of promise and contrition since being incarcerated.  He will require the assistance of a period on parole in order to adjust to returning to the community and to establish himself on the path of rehabilitation. 

15. The other matter of concern is the question of disparity.  The Crown has conceded that the magistrate has erred in imposing penalties which were grossly disparate to those imposed on the co-offender.  His Honour was aware that the co-offender had pleaded guilty to seven offences of illegal use and eight offences of larceny.  He was sentenced on 11 June 1999 to a period of two years and six months imprisonment to be served cumulatively with the unexpired portion of a non-parole period which was nine months.  With respect to a total head sentence of three years and three months, a non-parole period of two years was fixed.  No order was made with respect to compensation.

16. His Honour referred to the sentence imposed on the co-offender and to the fact that the co-offender was three years older, with an extensive prior history as an adult.  His Honour was aware that the history included spending a lot of time in adult institutions.  He described the sentence imposed on the co-offender as a “useful and relevant indicator”.  Having made that observation, his Honour imposed a head sentence which was six months longer than the co-offender’s sentence for the same offending and only three months shorter that the total sentence to be served by the co-offender.  In addition, he fixed a non-parole period for the appellant which was six months longer than the non-parole period fixed for the co-offender. 

17. In my opinion, the concessions made by the Crown with respect to the head sentence and non-parole period were properly made.  The sentencing discretion miscarried.  It appears likely that the discretion miscarried because of the undue weight that his Honour gave to questions of general deterrence and a lack of sufficient weight to the factors in mitigation and the period spent in custody. 

18. During the course of his Honour's sentencing remarks, he referred to views expressed to him by members of the community about offending of this type.  He said he had been spoken to by a number of members of the community in that very week in which sentence was imposed and that those members of the community had independently expressed outrage at the extent of the type of offending in the community.  He said it was useful information for him to take into consideration in a general way in making an assessment as to the appropriate penalty.  His Honour said he believed this type of offending in Port Lincoln was prevalent and that there was a need to focus on the question of deterrence predominantly.

19. There is no doubt that the aspect of general deterrence was important, but it had to be balanced against other relevant factors.   In my opinion, while it was entirely appropriate for his Honour to take into account, in a general way, that offending of this type is prevalent within the community generally, and in Port Lincoln in particular, his remarks about the individual expressions of concern and outrage of persons with whom he had been communicating at about the time of imposing sentence were inappropriate.  Ultimately, however, it appears that his Honour used the information as a general guide to issues of prevalence and the need for deterrence which was an appropriate use. 

20. As to the order for compensation, the only information placed before the magistrate was that the defendant was prepared to pay the full amount of compensation. In those circumstances, it is not surprising that his Honour made an order with respect to compensation. However, in view of the length of the sentence of imprisonment that he imposed, notwithstanding what had been said to him, in my opinion his Honour erred in this regard. Section 13 of the Sentencing Act is quite specific. 

21. In all of the circumstances, I find that the sentencing discretion miscarried.  The sentences and orders imposed by the special magistrate are set aside. 

22. Both counsel for the appellant and for the Crown have suggested it is appropriate for me to impose sentence rather than to remit the matter back to the Magistrates Court.  Bearing in mind the period that has been spent in custody, I acceded to that application. 

23. I impose a sentence of 13 months’ imprisonment,  I fix a non-parole period of five months.  Both the head sentence and non-parole period are to commence on 25 March 1999.  The appellant is disqualified from holding or obtaining a driver’s licence for a period of two years commencing at 12.01 a.m. on 11 September 1999.