NICOLLE v Police - [2019] SASC 134

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NICOLLE v POLICE
[2019] SASC 134
Judgment of The Honourable Auxiliary Justice David
7 August 2019
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
Appeal against the sentence imposed by a Magistrate for one offence of dishonestly taking property without consent on 22 September 2018 at Tea Tree Plaza.
The appellant appeals on the grounds that the sentence of 10 weeks imprisonment is manifestly excessive and not serious enough to warrant a custodial sentence as required by s 10(2) of the Sentencing Act 2017. The appellant also appeals on the grounds that the Magistrate failed to either suspend or order that the sentence be served on home detention.
Held, dismissing the appeal:
1. In applying s 10(2) of the Sentencing Act 2017, a sentencing Magistrate or Judge is able to consider the broader circumstances of the offending, including the offender’s antecedents as well as the seriousness of the actual offence.
2. The sentence imposed was not manifestly excessive given the antecedents of the offender.
3. The sentencing Magistrate considered the options of suspension and home detention and correctly concluded that neither were appropriate.
Sentencing Act 2017 (SA) s 10(2), s 71, s 98; Criminal Law Consolidation Act 1935 (SA) s 134, referred to.

NICOLLE v POLICE
[2019] SASC 134
Magistrates Appeal: Criminal

DAVID AJ: This is an appeal against sentence. The appellant pleaded guilty to one count of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for that offence is 10 years imprisonment.
The offence was committed when she attended at the Tea Tree Plaza shopping complex at Modbury and was observed to select a Lego toy set, remove the security wrap and place the set in her shopping bag. She left the security wrap on the shelf. She then proceeded to repeat that same action with another Lego set. She then left the department store without paying for the two items and was stopped. When first spoken to by a loss prevention officer from the store, she produced an outdated Kmart receipt. This was an attempt to deceive the officer by pretending she had bought the Lego sets from another store. However, when confronted by the police, she admitted the theft and made full and frank admissions.
In submissions before the sentencing Magistrate, it was put that the reason for her actions was that she could not afford to purchase a birthday present for her daughter, and it was for that reason that she stole the items. This explanation was accepted by both the sentencing Magistrate and is accepted by the prosecutor on this appeal. The stolen items were valued at $110.40, and of course were recovered.
The sentencing Magistrate imposed a sentence of 10 weeks imprisonment, which he reduced by 30% to seven weeks because of her plea of guilty. He declined to either suspend the sentence or make a home detention order pursuant to s 71 of the Sentencing Act 2017 (SA) (the Act).
The appellant now appeals against both the severity of the sentence as well as the decision to imprison, rather than suspending the sentence or ordering a home detention order.
Personal circumstances of the appellant
The appellant is a 44-year-old single mother who lives with her two children, an 18-year-old daughter and a 14-year-old son. She also has an adult child aged 25 years from an earlier relationship. She had a productive work history until she became addicted to, and dependent upon, methylamphetamine. As a result of this addiction she has been in constant trouble with the law, mainly by committing numerous offences of theft, obviously to feed her habit. I set out her previous court appearances for dishonesty offences:
·17/08/2000 – for the charge of larceny by servant she was fined $400.
·02/12/2004 – for theft she was given a good behaviour bond in the sum of $500 for six months.
·04/10/2012 – she was fined $240 for theft.
·26/06/2014 – for nine counts of theft a penalty of two months and two weeks imprisonment was imposed which was suspended
·30/10/2014 – for the charges of theft, attempted theft, unlawful possession and two unrelated driving whilst under disqualification offences, a term of 15 weeks imprisonment was imposed, but that was also suspended.
·05/01/2016 – two counts of theft were discharged without further penalty.
·27/11//2017 – she was imprisoned for two weeks for two counts of theft.
·03/05/2019 – she was fined $100 for theft.
As can be seen, her offending for dishonesty is extensive, and she has been given the benefit of two suspended sentence bonds, one good behaviour bond, as well as a number of other non‑custodial sentences.
Appeal
I set out the grounds of appeal:
·Ground 1: Failure to correctly apply section 10(2)
·Ground 2: Manifest excess
·Ground 3: Failure to suspend
·Ground 4: Failure to make a home detention order
I deal with each in turn.
Ground 1 – Failure to correctly apply s 10(2)
The appellant’s argument on this ground involves an interpretation of s 10(2) of the Act. It is important that I set it out:
(2) Subject to this Act or any other Act, a court must not impose a sentence of imprisonment on a defendant unless the court decides that—
(a) the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or
(b) it is required for the purpose of protecting the safety of the community (whether as individuals or in general).
Mr Andrew Culshaw for the appellant argues that “the seriousness of the offence” must be interpreted narrowly, so that the sentencing court must only consider the actual offending itself, as distinct from that and matters personal to the accused person and any other surrounding circumstances. He further argues that “the safety of the community” must be limited to physical safety. Therefore, he argues, the present offending cannot satisfy either alternative limb of s 10(2). It is put by Mr Culshaw that on such an interpretation, stealing two Lego sets does not satisfy the first limb, and also it does not satisfy the second limb. He argues that from the start, a term of imprisonment to be served was not an appropriate sentencing option.
This ground of appeal also argues in the alternative, that in his sentencing reasons the special Magistrate does not make a finding as to which limb has been made out to justify imprisonment.
Ms Louise Kleinig, counsel for the respondent, argues that the “seriousness of the offence” cannot be so limited to the actual offending and the penalty available in law. She submits that it must take into account the mental state of the accused and his or her moral culpability, either in mitigation or aggravation. She argues that if a narrow interpretation, as urged by the appellant, is to be given, then on the question of whether a person be imprisoned or not, there could be no considerations of aggravation or mitigation, because the Court would be bound by the limitations on s 10(2) as urged by the appellant.
It is unnecessary for me to decide how s 10(2)(b) should be interpreted. The focus of this appeal is on the question of the seriousness of the offence. The interpretation urged on me by the appellant of s 10(2)(a), being limited to just the offending itself, cannot be the correct one.
It could never be the intention of Parliament to so limit the sentencing options of a magistrate or judge by divorcing the actual offending from the offenders previous behaviour and antecedents. The present case is an illustration of that. The sentencing Magistrate was placed in a situation where numerous similar offences had been committed, and the appellant was given the benefit (except on one occasion) of various forms of non‑custodial sentences. It follows that a sentencing magistrate or judge must be allowed to take into account those matters when considering whether to imprison or not. I find the first aspect of this ground fails.
The secondary argument put by Mr Culshaw is that the Magistrate did not make a specific finding as to what limb of s 10(2) has been satisfied before imprisoning. In my view, it is clear from the Magistrate’s sentencing remarks that he has clearly based his sentence on the fact that the seriousness of the offence is informed by the appellant’s repeat offending, in that it does not give him confidence that “the Court can extend such credit and leniency as would see her not subject to any immediate penalty of imprisonment for this offence”. It is not essential that the Magistrate in some formulaic way deal with s 10(2), as long as his reasons are clear as to why a term of imprisonment is imposed. In my view, his reasons are clear. I deal with grounds three and four together.
Grounds 3 and 4 – Failure to Suspend/Failure to make a Home Detention Order
The Magistrate in his reasons said “I have also considered the options of whether she would be subject to a suspended sentence bond, but based on her past antecedents, I do not deem that appropriate, nor do I see grounds or circumstances. I have also canvassed the option as to whether or not I should consider her a candidate for the purposes of a home detention report. I decline to head that way either”. I can see no error in the exercise of the Magistrate’s discretion. He clearly has no alternative as could be seen from her antecedents. The continual contempt for leniency which has previously been afforded to her on numerous occasions demands a custodial sentence.
I deal with ground two.
Ground 2 – Manifest excess
It is clear that the actual offending itself if, for instance, was that of a first offender or a person with a moderate criminal record, would not attract a term of imprisonment. However, as discussed above, the whole of the circumstances must be taken into account. The Magistrate was dealing with a situation where the like offending of the appellant was continuous. Where she had been given many chances of rehabilitation by way of non-custodial sentences, and where the Magistrate was at the stage where he considered there was no other option, even accepting her attempts at drug counselling. It is also to be noted that this offending was calculated and clearly planned. It was not a random, spontaneous decision.
I consider the starting sentence of 10 weeks imprisonment, reduced to seven weeks, bearing in mind all those factors, cannot be regarded as being manifestly excessive.
I dismiss the appeal.