NORRIS v Police - [2004] SASC 270

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NORRIS v POLICE
Judgment of The Honourable Justice Nyland
7 September 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
Appellant charged with numerous offences on seven separate complaints - pleaded guilty - convicted and sentenced in Magistrates Court - whether sentencing discretion miscarried - insufficient weight given to prospects of rehabilitation and possible mitigatory effect of drug addiction - whether sentences should be cumulative - failure to consider totality principle - appeal dismissed.
Criminal Law Consolidation Act 1935, ss 86A, 134, 170; Motor Vehicles Act 1959, ss 9, 91, 102; Summary Offences Act 1953, ss 6, 4(1); Criminal Law (Sentencing) Act 1988, ss 18A, 31, 57; Bail Act 1985, s 17(1); Controlled Substances Act 1984, s 18(3), referred to.
R v Henry (1999) 46 NSWLR 346, applied.
R v Proom (2003) 85 SASR 120, considered.

NORRIS v POLICE
[2004] SASC 270
Magistrates Appeal: Criminal

NYLAND J: This is an appeal against sentence. The appellant appeared before a stipendiary magistrate in the Elizabeth Magistrates Court on 1 June 2004 and pleaded guilty to offences charged on seven different files involving theft of cars, breaking into houses, driving disqualified and being in receipt of stolen property. The offences were charged and dealt with as follows:
File No. 03-3740
1.Break and enter building and commit offence (s 170 Criminal Law Consolidation Act 1935) (“CLCA”). [Maximum penalty : Eight years]
It was alleged that on 22 March 1999 the appellant broke into a home at Salisbury Heights and stole two television sets, three video recorders, a computer and assorted jewellery, which together amounted to the value of about $18,950. DNA evidence linked the appellant to the scene. The appellant could not be located for some time but eventually pleaded guilty to the charge on 6 May 2004. He was convicted and sentenced to nine months imprisonment.
File No. 03-9882
1.Drive under disqualification (s 91 Motor Vehicles Act 1959) (“MVA”). [Maximum penalty : Two years imprisonment]
2.Drive unregistered motor vehicle on a road (s 9 MVA). [Maximum penalty : Fine of twice registration fee for 12 months or $750 whichever is greater]
3.Drive uninsured motor vehicle on road (s 102 MVA). [Maximum penalty : Fine of $2,500 and disqualification from holding driver’s licence for not more than 12 months]
4.Drive or use motor vehicle without consent (s 86A CLCA). [Maximum penalty : Not less than three months and not more than four years imprisonment and must order disqualification for 12 months]
5.Resist Police (s 6(2) Summary Offences Act 1953). [Maximum penalty : Fine of $2,500 or six months imprisonment]
These offences were all alleged to have occurred at Ashwin Parade, Torrensville on 21 July 2002. The circumstances of this offending were outlined by the police prosecutor in the following way:
“At about 3.20 pm on Sunday 21 July 2002, police officers were stationed in the car park of the ‘Brickworks Market’. [They] observed a blue Ford sedan … driven by the defendant, enter the car park. A few moments later the defendant was seen walking through the car park, standing near a fruit and vegetable shop, looking in the direction of a parked VL Commodore sedan. After about two minutes, the defendant approached the Commodore sedan, walked to the driver’s door, and got in to the vehicle. Police saw the brake lights come on and the vehicle was driven forward about 30 metres before the defendant was stopped by police. Police approached the vehicle and advised the defendant that he was under arrest, subsequently opening the driver’s side door. The defendant alighted from the vehicle and was placed against the … Commodore. The defendant did not allow police to handcuff him, escaping from police custody and running from the car park. The blue Ford sedan in which the defendant had arrived was located in the north-western corner of the car park. Checks revealed that the defendant was disqualified from driving a motor vehicle. This court imposed disqualification [that] had effect from 19 October 2001 until 18 October 2002.
Further checks revealed that the car in which the defendant [entered] the car park was unregistered and uninsured, the registration expiring on 12 October 2001.”
The appellant pleaded guilty to these offences on 6 May 2004. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988) (“Sentencing Act”), one sentence of nine months imprisonment was imposed, cumulative upon the term imposed in File No. 03-3740. He was further disqualified from holding a driver’s licence for 12 months.
File No. 03-5817
1.Larceny (s 131 CLCA). [Maximum penalty : five years]
2.Unlawful Possession (s41(1) Summary Offences Act). [Maximum penalty : $10,000 or two years imprisonment]
These charges arose out of an incident at North Adelaide on 9 October 2002. It was alleged that the appellant broke into the victim’s car which was parked at the Aquatic Centre, Fitzroy Terrace in North Adelaide, and stole about 20 items including a bag, an apron, a set of keys, personal identification and other items to the value of $158.50. The appellant was found in possession of these items when police attended at Prasad’s Motel, Main North Road, Evanston at about 2 am on 15 October 2002 in relation to a suspect vehicle located in the car park of the motel. Count 1 was withdrawn on the application of the prosecution on 6 May 2004, and the appellant pleaded guilty to Count 2. He was sentenced to 3 months imprisonment, cumulative on the sentence imposed in File No. 03-9882.
File No. 03-5816
1.Fail to comply with bail agreement (s 17(1) Bail Act 1985). [Maximum penalty : Fine of $10,000 or two years imprisonment]
On 3 March 2003, the appellant was convicted for the offences of drive or use motor vehicle without consent and unlawful possession and was sentenced to 3 months imprisonment (Magistrates Court file MCHHL-02-6540). He was placed on a suspended sentence bond for 18 months in the amount of $100 to be of good behaviour and to comply with all conditions of the bond. A condition of the bond was “to be under the supervision of a Community Corrections Officer for a period of 18 months and to obey that officer’s lawful directions in particular with respect to counselling for the [appellant’s] health including any problems he may have with the use of drugs.” He agreed to reside at 9/261 Main South Rd, Hackham West, and to report to the police at Christies Beach police station between 9 am and 5 pm each Monday, Wednesday and Saturday commencing on 15 March 2003.
Michael Bade, a Community Corrections Officer, was assigned to supervise the appellant. He provided the court with an affidavit alleging that the appellant failed to attend for interviews on 1 April 2003, 29 April 2003, and 6 May 2003. It was further alleged that the appellant failed to obey a reasonable direction and notify police of a change of address within two working days. Police applied for a warrant to be issued on 22 July 2003 and the appellant came before the Elizabeth Magistrates Court on 6 August 2003. He pleaded guilty to the charge of failing to comply with a bail agreement on 6 May 2004, and was convicted without penalty.
File No. 03-5807
1.Application for enforcement of a breached bond (s 57 Sentencing Act).
2.Drive or use motor vehicle without consent (s 86A(1) CLCA). [Maximum penalty : Not less than three months nor more than four years imprisonment]
3. Unlawful possession (s 41(1) Summary Offences Act). [Maximum penalty : Fine of $10,000 or two years imprisonment]
The breach of bond relating to the offences for which the appellant was given a suspended sentence on 3 March 2003 came before the Magistrates Court on 6 May 2004. The appellant admitted the breach. The magistrate found that no proper grounds existed to excuse the breach, and activated the suspended sentence of three months imprisonment and ordered that it be served cumulatively upon the sentence imposed on Count 2 of File No. 03-5817.
File No. 03-5821
1.Drive or use motor vehicle without consent (s86A CLCA). [Maximum penalty : Not less than three months and not more than four years imprisonment]
2.Non-aggravated serious criminal trespass in a place of residence (s 170 CLCA). [Maximum penalty : 15 years imprisonment]
3.Dishonestly take property without owner’s consent (s 134 CLCA). [Maximum penalty : 10 years imprisonment]
4.Hinder police (s 6 Summary Offences Act). [Maximum penalty : Fine of $2,500 or six months imprisonment]
5.Possess prescription drug (s 18(3) Controlled Substances Act 1984). [Maximum penalty : Fine of $10,000 or two years imprisonment]
6.Unlawful possession (s 41 Summary Offences Act). [Maximum penalty : Fine of $10,000 or two years imprisonment]
The offences that are the subject of these charges were alleged to have occurred on 5 August 2003 at Salisbury (Counts 1, 4, 5 and 6) and Joslin (Counts 2 and 3). The circumstances of the offending were alleged by the police prosecutor to have been that at about 7.45 pm on 5 August 2003, the appellant was located sitting in a motor vehicle, reported stolen, on Yorke Terrace, Salisbury. Police located the motor vehicle, registration number UEZ-872, parked on the eastern side of the road. Police approached the driver’s side door and observed a male, subsequently identified as the appellant, asleep in the driver’s seat of the motor vehicle. Police observed that the ignition barrel was damaged and missing. Police attempted to wake the appellant who then tried to start the motor vehicle with a screwdriver. The appellant was asked many times to put down the screwdriver that he was holding in his right hand and he was asked to get out of the motor vehicle. He refused both requests. The appellant was then sprayed with capsicum spray and successfully removed from the vehicle, but resisted police by thrashing his arms around and refusing to allow police to handcuff him.
After the appellant was arrested, the motor vehicle was searched. A large quantity of prescription medication was located in a bag on the back seat. This included 40 bottles of Antenex 5 mg, eight bottles Antenex 2 mg, eight packets of Ducene and one packet of Ducene 5 mg. All this medication is available only through prescription. None of the medication displayed any form of labelling from a pharmacist or medical practitioner.
When the case came on for hearing on 1 June 2004, Counts 2, 3 and 6 were dismissed for want of prosecution. The appellant pleaded guilty to Counts 1, 4 and 5, and was convicted. One sentence of 12 months imprisonment was imposed pursuant to s18A of the Sentencing Act, cumulative upon the sentence imposed in File 03-5807. The appellant was also disqualified from holding a drivers licence for 24 months, cumulative upon the disqualification imposed in 03-9882.
File No. 03-4286
1.Dishonestly receive property without owner’s consent (s 134(2) CLCA). [Maximum penalty : 10 years imprisonment]
This offence also related to events on 5 August 2003 at Salisbury, and the property in question (coins, car radios, camera, jewellery boxes, watches and a police identification card together to the value of $500) was located during the same search outlined in relation to File No. 03-5821. The items were alleged to belong to a Krystina Koza, and the police prosecutor informed the magistrate that they were known by the appellant to have been obtained in circumstances amounting to an offence. The appellant pleaded guilty to this charge on 1 June 2004 and was convicted and sentenced to 6 months imprisonment, cumulative upon the sentence imposed in File No. 03-5821.
The police prosecutor provided the magistrate with the appellant’s prior offending history which disclosed that the appellant has a 20 year history of offending. The appellant’s record includes eight offences for break, enter and larceny, six for illegal use of a motor vehicle and 12 for driving whilst disqualified. He also has numerous other offences for interfering with motor vehicles, breaches of bond and a breach of parole.
At the hearing in the Magistrates Court, the appellant was represented by Mr Cocchiaro of counsel. In an affidavit filed on the hearing of this appeal, Mr Cocchiaro set out the submissions he made to the magistrate by way of mitigation of penalty as follows:
“(a)The appellant was a 30 year old male.
(b)The appellant had a turbulent childhood and left home at a young age.
(c)That the appellant began using drugs at a young age and that the current offences were connected to drug use. While the appellant did have a substantial criminal history, the majority of the offences were related to drug use.
(d)That despite continued drug use from a young age the appellant has been employed in a range of areas such as a carpenter’s labourer and other factory work. I submitted that when he has been employed he had been seen as a conscientious and reliable worker.
(e)In relation to the breach of suspended sentence bond, I submitted that the appellant had been released from prison in March 2003 and upon his release was employed for approximately 3 months as a labourer. I submitted that upon his release the appellant had made reasonable progress in his rehabilitation and that he had been living with his partner and caring for her young child.
(f)I submitted that some time prior to the offences on 5^th August 2003 the appellant’s brother passed away which had a profound effect on the appellant.
(g)That the appellant relapsed into drug use and committed the offences of 5^th August 2003. I submitted that the remaining offences had been committed some time ago and were committed at the peak of the appellant’s drug use.
(h)That the appellant had never engaged in drug rehabilitation courses, however was currently on the Methadone Program whilst being in custody.
(i)That the appellant had been in custody since 5^th August 2003 and that he had been working whilst incarcerated and had completed Anger Management and Occupational Health and Safety Certificates.
(j)I invited his Honour to take into account the appellant’s pleas of guilty and to use the principle of totality in sentencing. I invited his Honour to treat the break and enter offence of 22^nd March 1999 as the appellant’s first, for the purpose of sentencing. I invited his Honour to not impose a crushing sentence which may hinder the appellant’s attempts at rehabilitation.”
In his sentencing remarks, the learned magistrate commented that the appellant had “to say the least, a horrendous record of offending”. He noted that the matters in relation to which the appellant was being sentenced were of a similar nature to matters which the court had already dealt with on his behalf, involving theft of cars, breaking into houses, drugs, driving disqualified and being in receipt of stolen property. He noted that notwithstanding the fact that the appellant had been given the benefit of a suspended sentence on 3 March 2003 at the Holden Hill Magistrates Court, relating to charges of illegal use and unlawful possession and was given an opportunity for drug rehabilitation, he had committed further offences of illegal use and receiving some five months later.
In his sentencing remarks, the magistrate referred to the submissions made by counsel with respect to the appellant’s drug addiction problems but was not prepared to treat them as a mitigating factor. He commented that “it could be argued with some force that the use of drugs in connection with crimes is in fact an aggravating factor”. He went on to say that “all of the [appellant’s] behaviour suggests that he is in fact a menace to the community … and that the community had the right to be protected from repetitive behaviour of this nature by the [appellant] and others like him.”
The magistrate then imposed the sentences which I have set out above which total 42 months. The magistrate fixed a non-parole period of 30 months, backdated to 5 August 2003. The appellant was further disqualified from holding a driver’s licence for 36 months commencing 1 June 2004. The magistrate, in the course of his sentencing remarks did not refer to any discount for the pleas of guilty, nor to the principle of totality.
Grounds of Appeal
The appellant complains that:
1.The head sentence and the non-parole period were manifestly excessive in all the circumstances.
2.The learned sentencing magistrate erred in failing to properly, or at all, take into account the totality principle and the pleas of guilty in relation to the head sentence and the non-parole period.
At the hearing of the appeal, the appellant was represented Mr Apps of counsel, and Ms Powell appeared for the respondent.
A number of matters were raised by the appellant with respect to the first ground of appeal. The appellant submitted that the learned magistrate had fallen into error by imposing cumulative sentences as well as failing to give any consideration to the appellant’s drug addiction. He had also failed to take into account the circumstances which led up to the offences committed by the appellant on August 5 2003. The appellant submitted that as a result of those matters, the sentence imposed was manifestly excessive.
Mr Apps referred to the comments made by the learned magistrate with respect to the issue of drug addiction. He did not suggest that in making those comments, the learned magistrate had in fact treated the appellant’s drug problem as an aggravating factor but rather that he had erred by failing to give it any weight at all to it.
In R v Proom[1], Doyle CJ considered the question of addiction to drugs. He said (at 129):
“… Addiction to drugs, when it leads to crime, is not an excuse for the purposes of sentencing. Nor is addiction of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate … In the end, if addiction is of any significance, it is to be considered in the context of all the circumstances of the case. The seriousness of the offending, or the need for a deterrent sentence, may outweigh any mitigatory effect that addiction would have. …”
[1] (2003) 85 SASR 120
In this case it is clear that the appellant has a long history of drug addiction and that was a relevant matter for the learned magistrate to bear in mind. The appellant had, however, previously been given a suspended sentence in relation to earlier charges of illegal use and unlawful possession. As the magistrate noted, he had on that occasion been given the opportunity of drug rehabilitation, yet some five months later he committed further offences. Set against the background of his offending history, the appellant’s drug use in this case does not appear to raise any issues such as impulsiveness or planning, which might otherwise have assisted in taking it into account as a mitigating factor. As Spigelman CJ said in R v Henry[2]:
“The authorities are against the proposition that drug addiction should, of itself, be accepted as a mitigating factor. There is authority that where the original addiction was not a willed act, that may be taken into account by way of mitigation. The authority does not go beyond that.”
[2] (1999) 46 NSWLR 346 at [194]

The thrust of the argument put by Mr Apps on behalf of the appellant related, however, to the appellant’s prospects of rehabilitation. He pointed out that the offences for which the appellant was sentenced by the learned magistrate had occurred between 1999 and March 2003, the latter being the occasion on which the appellant received the suspended sentence. After the imposition of the bond which suspended that sentence there was a five-month period in which no further crimes were committed by the appellant. Mr Apps submitted that this demonstrated that the appellant had shown signs of rehabilitation and was arguably therefore on the road to recovery. During that time the appellant undertook three months of employment as a labourer, and had continued in a supportive long-term relationship with a young woman.
On 22 July 2003, however, the appellant’s 30-year-old brother died of a heart attack, which stemmed from an asthma attack. This occurred about two weeks before the appellant committed the final series of offences on 5 August 2003. Mr Apps submitted that the proximity of those offences to the death of the appellant’s brother was something which could be understood in the ordinary course of human experience, and that it was in a fit of depression following the death of his brother that the appellant had relapsed into offending behaviour.
Mr Apps further submitted that the magistrate, by ordering that the various sentences be served cumulatively, had imposed upon the appellant a sentence which was unduly burdensome. In addition, having adopted that approach, he failed to have regard to the principle of totality which resulted in a sentence which was crushing.
Mr Apps acknowledged that the offences committed by the appellant were serious and numerous but nevertheless submitted that there was a basis upon which the appellant could be regarded as a good prospect for rehabilitation, and it would therefore have been appropriate to reflect the deterrent aspect of penalty in the head sentence but promote the rehabilitation of the appellant by imposing a lower than usual non-parole period.
The appellant has a long history of offending, extending over some 20 years. The offences charged against the appellant were committed at discrete intervals which made it appropriate to order cumulative sentences: s 31 of the Sentencing Act. Although it is encouraging to note that there was a period of five months during which the appellant did not re-offend, and allowing for the possible traumatic impact of his brother’s death, I think that it is too early to say that the appellant has progressed along the path to rehabilitation.
Having made an order that the sentences be served cumulatively, it was necessary for the learned magistrate to consider the principle of totality and also to have regard to the appellant’s pleas of guilty.
In this case, the learned magistrate did not refer to either of those matters in the course of his sentencing remarks. Given the extensive nature of the offending by the appellant, it is not surprising that the learned magistrate took a serious view of the appellant’s conduct. In view of the maximum penalties applicable to the various offences committed by the appellant, the nature of his offending against his prior background, I do not consider that the sentence imposed by the learned magistrate was manifestly excessive. I am therefore not persuaded that he failed to have regard to the pleas of guilty and the principle of totality, even though he did not specifically refer to them.
In my opinion, no error has been demonstrated on the part of the learned magistrate. In my opinion, the appeal should be dismissed.