NGUYEN v Police - [2020] SASC 164

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NGUYEN v POLICE
[2020] SASC 164
Judgment of The Honourable Justice Nicholson
10 September 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - EVIDENCE NOT AVAILABLE AT HEARING
Appeal against sentence.
A Magistrate convicted the appellant of the offence of theft upon his plea of guilty. The appellant was sentenced to nine months imprisonment, five of which were to be served in custody and the balance suspended upon the appellant entering into a suspended sentence bond of 18 months duration.
The appellant has appealed against this sentence on grounds that, inter alia, the sentence is manifestly excessive and a ground based on fresh evidence. The respondent conceded that the appeal should be allowed based on the fresh evidence, however maintained that the sentence was nevertheless appropriate.
Held:
1. Appeal allowed.
2. The sentence imposed by the Magistrate is quashed.
3. The appellant is resentenced to a term of three months imprisonment, suspended upon the appellant entering in a bond to be of good behaviour for 18 months in the sum of $500.
Criminal Law Consolidation Act 1935 (SA) s 134, referred to.

NGUYEN v POLICE
[2020] SASC 164
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 23 April 2020, the appellant pleaded guilty to one count of theft in contravention of subsection 134(1) of the Criminal Law Consolidation Act 1935 (SA). According to the factual basis of the charge, the jewellery stolen had an approximate value of $5,300, rendering the offence charged a minor indictable offence.[1]
[1] Criminal Procedure Act 1921 (SA), s 5(3)(a)(iii)(D). The items the subject of the charge were one gold necklace and one gold ring.
On 16 June 2020, a Magistrate imposed a sentence of nine months imprisonment to commence on that date. Five months was to be served in custody with the remaining four months to be suspended upon the appellant entering into a bond to be of good behaviour for 18 months in the sum of $500.
The notice of appeal against sentence raised a number of grounds. However, at the hearing of the appeal the appellant was given permission to amend to add a further ground based on fresh evidence. The respondent, quite properly, conceded that the appeal should be allowed on the basis of the fresh evidence and it was agreed by both parties that I should proceed to resentence.
The factual basis of the offending
On 26 November 2019, the appellant attended at a jewellery shop in the central business district of Adelaide. He asked a staff member to show him various trays of jewellery. Footage from the closed circuit television cameras (CCTV) depicts the appellant looking at some rings. The appellant is seen to place a ring on his finger, to move his hand towards his pocket and then to deposit the ring in his right pants pocket. The CCTV footage also depicts the appellant collecting a number of other items whilst the sales assistant was not looking and placing them in his right pants pocket.
On 29 November 2019, the owner of the shop attended the Hindley Street Police Station having discovered jewellery items to be missing. He provided the CCTV footage to the police.
On 2 December 2019, the police arrested the appellant. They subsequently conducted a search of the appellant’s residence and seized several items, including: jewellery, tags from jewellery, and the jacket the appellant was seen to be wearing during the theft. The appellant was conveyed to the City Watch House where he was charged.
The Magistrate accepted that the appellant committed the offence in order to satisfy a drug debt. The Magistrate made the observation that retail outlets in the position of this jewellery shop are particularly vulnerable and susceptible to such conduct. His Honour also found that the appellant deliberately targeted the store with the intention of stealing from it.
The appellant’s personal circumstances
The appellant is a 44 year old Vietnamese man. He arrived in Australia as a refugee in 1980. He was raised by his grandmother from whom he has been estranged since the age of 18. The appellant completed his South Australian Certificate of Education (year 12) and was elected as school captain in his final year. He commenced a double degree at the University of South Australia, but withdrew after one year. The appellant is presently enrolled in a TAFE Visual Arts program, although he did not submit his final assessment work last semester because of his legal issues and subsequent imprisonment. His enrolment has been postponed to next year. Understandably, the appellant has been reluctant to explain his present situation to his lecturers.
The appellant has had previous employment in retail positions. However, he is not currently employed and is in receipt of a Centrelink JobSeeker payment. He was recently offered an interview for employment but was not prepared to explain his present situation to a potential employer. The appellant has done volunteer work including with the Salvation Army and Puddle Jumpers Inc.[2]
[2] A children’s charity.
The appellant told the writer of a pre-sentence report dated 11 June 2020 that he suffers from anxiety and depression, although he does not take medication for either. He has also described suffering from a post-traumatic stress disorder after being subjected to violent and abusive conduct. Approximately two years ago, the appellant underwent a Mental Health Care Plan assessment and saw a psychologist. More recently, he has been seeing his general practitioner although he has been reluctant to discuss his mental health issues. The appellant has engaged with Beyond Blue, reads self-help books and meditates.
The appellant started taking ecstasy when he was 18 or 19 years of age. From 22, he began using methylamphetamine on and off. He denies having any issues with alcohol, but has been a heavy substance user at times with periods of abstention. The appellant’s use of illicit substances appears to coincide with his experiencing of major life stressors. He has had alcohol and drug counselling and previously spent five months on a treatment intervention program. The appellant has indicated that he is willing to undergo further treatment programs or counselling. The author of the pre-sentence report opined that without addressing his drug use with further, including mental health, treatment, the appellant will be at risk of relapsing into drug use which will increase the likelihood of his re-offending.
According to a supplementary pre-sentence report ordered during the hearing of the appeal and received on 31 August 2020, the appellant is yet to be assessed for any Department of Correctional Services or external therapeutic programs, counselling or treatment.
The appellant is single, with no disclosed dependants. He has a small group of friends which he says he can call upon if in trouble.
The appellant has provided an explanation for his latest offending. He became involved with people who over time started to undermine his confidence and manipulate him. After refusing to deal in drugs on behalf of these persons, he was threatened with violence and convinced that he owed them a debt. He believed that if he sought help, or failed to comply with their demands, his life would be threatened. The appellant has acknowledged that he “should have known better”. He is aware of how his actions have affected the victims and others around him.
Unfortunately, the appellant has a significant criminal record. He has several prior convictions for dishonesty offences. It would appear that the appellant resorts to stealing when he experiences financial difficulties, often related to drug use.
In 2003, the appellant was convicted of larceny as a bailee and unlawful possession. Subsequent convictions include offences of failure to comply with bail agreement, theft, and unlawful possession. He has also breached a bond to be of good behaviour. In 2007, the appellant was sentenced to two years imprisonment with a non-parole period of eight months for some 32 offences, 28 of which involved dishonesty. In 2014, he was sentenced to one month and one week imprisonment for one offence of theft, suspended on a good behaviour bond. In 2015, he was sentenced to five months of imprisonment for five dishonesty offences and a further one month and one week following the revocation of the 2014 suspended sentence. The appellant has managed to live in the community for some substantial periods, measured in years, without offending. However, he does have a habit of relapsing into drug use and consequential dishonest conduct. Nevertheless, he is not without prospects for rehabilitation.
Following his arrest on 2 December 2019, the appellant has spent periods of time in custody on remand and on home detention bail. During his time on home detention bail, he has been fully compliant and has engaged appropriately with supervision. The chronology is as follows. On 11 December 2019, the appellant was released on home detention bail after his arrest, having spent nine days in custody. He remained on home detention bail until sentenced on 16 June 2020 (approximately six months) and taken back into custody until 16 July (a further 30 days) when he was again released on home detention bail pending appeal. As of 10 September 2020, the appellant will have spent a further almost two months on home detention bail. In total, the appellant has spent 39 days in custody and almost eight months on home detention bail with respect to the current offence.
According to the author of the supplementary pre-sentence report received on 31 August 2020, the appellant has continued to respond well to supervision.
The offence committed was serious. Given the appellant’s prior criminal record and the need for personal and general deterrence, a substantial prison sentence is called for. However, as I have said the appellant is not without prospects for rehabilitation and he has sufficient insight to understand that if he is to avoid re-offending and serving further periods of imprisonment, he must deal with his drug problem.
I start with a sentence of imprisonment for 12 months. The appellant’s plea was early and entitles him to up to the maximum statutory discount available. He also is entitled to credit for 39 days in custody and an allowance for the almost eight months on home detention bail. After all due allowances for the plea, cooperation generally and the time in custody and on home detention bail, I reduce the starting point of 12 months to imprisonment for three months.
Ordinarily, that prison term would commence today. However, I still must decide whether to return the appellant to prison for all of the three months or part only with the balance to be suspended, or to order that the three months be fully suspended, or to order that it be served on home detention.
The period of the sentence is relatively short. The appellant has been in prison for this offending on two occasions and on home detention on two occasions. One is naturally reluctant to return him to prison for a third time and potentially exacerbate disruption to his rehabilitation. Plainly, the appellant needs the continued assistance that, hopefully, intensive supervision available with a suspended sentence bond can provide.
The original pre-sentence report dated 11 June 2020 contains the following.
The [appellant] advises that he is willing to comply with any directives issued by the Court, including any treatment programs or counselling that could assist him with shifting towards a prosocial lifestyle. He stated that his main supports to ensure this change will come from further education, employment and returning to volunteering, as these activities promote his mental and emotional wellbeing. He cannot foresee any barriers that will impact on his ability to move forward in a positive way.
The author of the report has indicated that a high level of supervision together with Departmental or external community based programs may be available if the appellant were to be released into the community under supervision.
In the circumstances of this matter, little good would be achieved by having the appellant serve a further three months in prison or on home detention bail. At the end of the three months he simply would return to the community without having received any assistance with his rehabilitation.
In my view, there is good reason in all the circumstances of this case to suspend the prison term of three months provided the appellant is prepared to enter into a bond to be of good behaviour for 18 months. I have chosen this length of bond because of the appellant’s significant prior record such that he needs to be deterred from similar offending and, primarily, because I anticipate that Corrections will need substantial time to provide the effective assistance needed. Intensive supervision and the provision of appropriate drug rehabilitation counselling and therapy should start as soon as practicable.
The bond will be in the amount of $500, for a term of 18 months and contain the usual terms together with the following.
1.The appellant is to be under the supervision of a Community Corrections Officer for the period of the bond.
2.The appellant is not to consume or administer any drug which is not medically prescribed and then only at the prescribed or recommended dosage and is to submit to any drug testing as directed by his Community Corrections Officer and sign all necessary forms and comply with all necessary requirements with respect to the testing procedures.
3.The appellant will attend the Department for Correctional Services for assessment as and when required and will attend and participate in all Department and externally provided therapeutic and counselling programs and treatments as directed by his Community Corrections Officer.