Parker v Police - [2010] SASC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PARKER v POLICE
[2010] SASC 125
Judgment of The Honourable Justice Gray
7 May 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence following guilty pleas - defendant and appellant sentenced for offences of theft, making a false representation, driving a motor vehicle whilst unauthorised, unregistered and uninsured and being unlawfully on premises - defendant subject to a previously extended six month good behaviour bond - bond revoked - three month sentence of imprisonment imposed in respect of offences of theft and making a false representation - one month sentence of imprisonment imposed in respect of driving a motor vehicle unauthorised and being unlawfully on premises - sentences ordered to be served cumulatively on revoked suspended term of six months - whether sentences manifestly excessive - whether sentences ought to have been suspended.
Held: appeal dismissed - having regard to defendant's antecedents and prior breaches of bonds and bail terms, sentences imposed by Magistrate appropriate.
Criminal Law Consolidation Act 1935 (SA) s 134; Summary Offences Act 1953 (SA) s 62(1); Motor Vehicles Act 1959 (SA) s 9(1), s 74(2) and s 102; Summary Offences Act 1953 (SA) s 17(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
House v The King (1936) 55 CLR 499; R v Wilton (1981) 28 SASR 362; Williams v McDonald (1984) 113 LSJS 210; R v McDonald (1974) 8 SASR 388; R v Mangelsdorf (1995) 66 SASR 60; R v Walker (1981) 27 SASR 315; R v Buckman (1988) 47 SASR 303, considered.

PARKER v POLICE
[2010] SASC 125
Magistrates Appeal
GRAY J:
Introduction

This is an appeal against sentence.
Background
On 13 January 2010, following guilty pleas, the defendant and appellant, Adam Dean Parker, was sentenced by a Magistrate for the offences of theft contrary to section 134(1) of the Criminal Law Consolidation Act 1935 (SA)[1] and making a false representation contrary to section 62(1)(a)(i) of the Summary Offences Act 1953 (SA),[2] committed in October 2009. In addition the defendant was sentenced for the offences of driving a motor vehicle whilst unauthorised,[3] unregistered[4] and uninsured[5] contrary to the Motor Vehicles Act 1959 (SA), and being unlawfully on premises contrary to section 17(1) of the Summary Offences Act 1953 (SA),[6] committed in November 2009.
[1] Section 134(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
(1)A person is guilty of theft if the person deals with property—
(a)      dishonestly; and
(b)      without the owner's consent; and
(c)      intending—
(i)    to deprive the owner permanently of the property; or
(ii)   to make a serious encroachment on the owner's proprietary rights.
Maximum penalty: Imprisonment for 10 years.
[2] Section 62(1) of the Summary Offences Act 1953 (SA) provides:
(1)Where—
(a)      a person makes a false representation—
(i)    to a police officer; or
(ii)to a person who is not a police officer knowing that it is likely that the representation will be communicated by that person to a police officer,
knowing the representation to be false; and
(b)      the representation is such as would reasonably call for investigation by the police,
the person by whom the representation was made is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
[3] Contrary to section 74(2) of the Motor Vehicles Act 1959 (SA) which provides:
(2)Subject to this Act, a person who—
(a)     drives a motor vehicle of a particular class on a road; and
(b) is not and has never been authorised, under this Act or the law of another State or a Territory of the Commonwealth, to drive a motor vehicle of that class on a road,
is guilty of an offence.
Maximum penalty:
or a first offence—$2 500.
or a subsequent offence—$5 000 or imprisonment for 1 year.
[4] Contrary to section 9(1) of the Motor Vehicles Act 1959 (SA) which provides:
(1)A person must not drive an unregistered motor vehicle, or cause an unregistered motor vehicle to stand, on a road.
Maximum penalty: $2 500.
[5] Contrary to section 102 of the Motor Vehicles Act 1959 (SA) which provides:
(1)A person must not drive an uninsured motor vehicle, or cause an uninsured motor vehicle to stand, on a road.
Maximum penalty: $5 000.
(2)If an uninsured motor vehicle is found standing on a road, the owner of the vehicle is guilty of an offence.
Maximum penalty: $5 000.
[6]    The maximum penalty for this offence is a fine of $2,500 or imprisonment for six months. Summary Offences Act 1953 (SA) section 17 provides:
(1)A person who has entered, or is present on, premises for an unlawful purpose or without lawful excuse is guilty of an offence.
Maximum penalty:
Where the unlawful purpose is the commission of an offence punishable by a maximum term of imprisonment of 2 years or more—imprisonment for 2 years.
In any other case—$2 500 or imprisonment for 6 months.
…
(4)In this section—
premises means—
(a)      any land; or
(b)      any building or structure; or
(c)      any aircraft, vehicle, ship or boat.
The circumstances of the offences of theft and making a false representation occurred on or about 16 October 2009 and involved committing the theft of a refrigerator and television before reporting those items stolen. The defendant’s domestic partner had rented those items under a contract with a company. There had been a default on the payments. The television had been damaged and was thrown away. The defendant sold the refrigerator to a neighbour for $100.00 before reporting both the television and refrigerator stolen. Police investigations revealed that this report was false and the defendant was subsequently charged with the offences. It is apparent that the refrigerator was subsequently recovered from the neighbour and returned to the rental company.
The circumstances leading to the charges of driving whilst unauthorised and being unlawfully on premises, occurred on 17 November 2009. On that occasion, a police officer observed the defendant sitting in the driver’s position of a vehicle with the engine running. The police officer knew the defendant and knew that the defendant was not and never had been authorised to drive a motor vehicle. The police officer conducted a registration and insurance check of the vehicle, which disclosed that both had expired. The officer drove around the block in order to approach the defendant and, on returning to the street on which the defendant’s vehicle had been parked, observed the defendant, still in the driver’s position of the vehicle, pull out onto the street. The police officer followed the vehicle for some distance before losing track of the vehicle. It transpired that the defendant had driven onto the premises of a person known to him and hidden in the rear yard. The police located the vehicle in the driveway of that premises with the keys in the ignition and the engine still warm. At about this time the owner of the premises arrived home and informed the police that the vehicle was unknown to him. The owner of the premises entered his home but promptly returned to the police officers to advise them that he had seen two males hiding in his rear yard. The police attended the rear yard and arrested the defendant.
At the time of the offending, the defendant was subject to two bonds of good behaviour. The first was an 18 month good behaviour bond suspending a term of 18 months imprisonment and a non-parole period of 12 months, imposed for the offences of aggravated serious criminal trespass, dishonestly taking property without consent and committing an assault causing harm. The second was an 18 month good behaviour bond suspending a term of imprisonment of six months imposed for a number of offences, including being unlawfully on premises, dishonestly taking property, attempt to damage property, unlawful possession, drive whilst disqualified and unregistered, assault and failure to comply with a bail agreement. Those bonds were imposed on 18 March 2009 and as a consequence were not due to expire until 17 September 2010.
On 25 June 2009, the defendant appeared before the Magistrate on the charge of fighting, a breach of the good behaviour bonds. It appears from the Court file that at that time an application was made to enforce or revoke the suspended sentences of imprisonment. However, as appears from the Magistrate’s remarks of 13 January 2010, the Magistrate accepted the submission put by the defendant’s representative that such revocation would give rise to a disproportionate penalty for the offence of fighting. The Court file discloses that rather than revoking the suspended sentences, the Magistrate extended the period of the bonds by six months. As a consequence, when the defendant appeared before the Magistrate on 13 January 2010 for sentence in the within proceeding, the defendant was subject to two good behaviour bonds which had previously been breached and extended.
When sentencing for the offences the subject of this appeal, the Magistrate revoked the suspended sentence of imprisonment of six months and ordered that it be brought into effect. In that respect he observed:
It has been urged upon me today that your personal circumstances are such that I should not invoke that bond and bring it into effect. The application is on the basis that to do so would give rise to a disproportionate outcome. These principles are quite well known. I do not need to reiterate them. Ostensibly, it is suggested that proper grounds exist to excuse the breach by reason of the principles associated with disproportion.
In looking at this submission, I have to look at the original offending and the act that gave rise to the breach. I am not entitled to take into [account] your personal circumstances. The offending that gave rise to the breach is offending punishable by imprisonment. They are not minor matters. The offence of unauthorised person to drive a motor vehicle is often tempted to be characterised as merely traffic. I do not personally see it that way. It is wilful disobedience. If it is traffic, it is a serious offence of its kind because it gives rise to the potential period of imprisonment of one year and it is a subsequent offence.
I do not consider that the current offending which gave rise to the breach when compared with the original offending which was extensive and offending of the same kind or similar kind – in some cases the same kind, is such that to require you to serve the period of imprisonment of six months gives rise to a disproportionate outcome. I am not satisfied there are proper grounds to excuse the breach. Submissions have not been put to me that there are special circumstances that would warrant its reduction.
At the time of the revocation of this six month suspended term, no revocation of the suspended sentence of 18 months imprisonment was made. It is unclear whether the 18 month suspended term was brought to the attention of the Magistrate or was simply overlooked. It may be that a deliberate decision was made by the prosecutor not to pursue that sentence despite the offending breaching the terms of the bond. In any event, the record is unclear as to precisely what transpired.
The Magistrate imposed the one penalty for the offences of theft and making a false representation, of three months imprisonment, reduced from four months on account of the defendant’s guilty pleas. With respect to the charges of driving a motor vehicle whilst unauthorised and being unlawfully on premises, the Magistrate imposed, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), the one sentence of imprisonment of one month reduced from two months on account of the defendant’s guilty pleas. During the course of his remarks, the Magistrate noted that he considered the conduct constituting the charge of being unlawfully on premises to be minor:
The unlawfully on the premises charge is your entering into the rear yard and I suppose also in a technical sense driving onto the premises. I see the unlawfully on the premises not as an offence typical of its kind but just a piece of conduct engaged in by you to prevent yourself getting detected for the first of the offences. Strictly speaking it is an offence of unlawfully on the premises, there is no question about that but I just see it as part and parcel of the one piece of conduct.
…
As to [being unlawfully on premises], I will make that inclusive of one month’s imprisonment I have just imposed on [driving whilst unauthorised] a section 18A penalty for [both counts]. I think the two months reduced to one is adequate to cover both matters.
Finally, the Magistrate considered whether the terms of imprisonment should be cumulative or concurrent. On the basis of his consideration that the offences were separate and distinct, the Magistrate ordered that the sentences of imprisonment be served cumulatively on each other and on the six month term of imprisonment to be served as a consequence of the revocation of bond. This resulted in a total term of imprisonment of 10 months. In relation to this total term, the Magistrate observed:
There will be a period of imprisonment of 10 months. I do not see any reason, not that any have been advanced, to suspend it in whole or in part. I do not think the 10 months imprisonment, when looking at the offending of a whole warranted consideration of the totality principle.
It is to be noted that for the charges of driving unregistered and uninsured, the Magistrate imposed a fine of $300.00. As the driving whilst unauthorised was a subsequent offence, the Magistrate imposed the mandatory licence disqualification of three years[7] commencing on the day of sentence.
[7] Pursuant to section 74(5) of the Motor Vehicles Act 1959 (SA).
It is relevant to observe that during the course of sentencing the Magistrate pointed out that although previous offending by the defendant had been committed in the context of a drug addiction, that addiction had been overcome:
…I am told that you broke that drug addiction, in fact moved here … to re-enforce your status of being free of drug abuse. I am told at the time of this offending, drug abuse played no part in your life and no material part in this offending.
The Appeal
On appeal, the primary contention of the defendant was that the sentences were manifestly excessive and ought to have been suspended.
Counsel for the defendant further focussed on the submission that the Magistrate ought to have taken into consideration a psychological report of Mr Balfour dated 2 March 2008, sought to be tendered by counsel for the defendant at the time of sentencing. It was said that the report of Mr Balfour disclosed personal circumstances relevant to the sentencing of the defendant, in addition to the psychological circumstances of the defendant which provided the relevant context to his offending. It was pointed out that Mr Balfour’s report outlined the defendant’s prospects of rehabilitation, including the appropriate programs which would assist that rehabilitation. That report was tendered at the appeal without objection by the Police.
The further contentions on appeal were numerous: it was contended that the Magistrate failed to give any or sufficient weight to the defendant’s personal circumstances and in particular his family’s straitened financial circumstances; it was said that insufficient regard had also been given to the relatively minor nature of the offences; it was submitted that the Magistrate failed to adequately consider the proportionality between the offending that gave rise to the defendant’s bond and the offending that breached the bond; it was said further that the Magistrate gave insufficient weight to the fact that the defendant’s antecedent record demonstrated that his most serious offending took place in a relatively confined and short period of time and the fact that the defendant’s personal circumstances had changed for the better since the commission of the more serious and repeated offences; and finally it was said that the Magistrate failed to give any or sufficient weight to the continuing rehabilitative prospects of the defendant. Ultimately it was contended that the offences before the Court for which the defendant was sentenced were at the lower end of the offending scale for offences of their type and were committed by the defendant, who has otherwise been making good progress with his rehabilitation, and consequently, incarceration for the period ordered by the Magistrate, would be counterproductive to his rehabilitation.
Counsel for the Police contended that the revocation of suspension ordered by the Magistrate, in addition to the terms of imprisonment imposed, were appropriate in the circumstances. It was said that the offences that breached the bond were of a similar character to the offences for which the bond was imposed. As a consequence, it was said that the activation of the six month sentence was not a disproportionate penalty for the breaching offending.
It was submitted that the Magistrate adequately took into account the personal circumstances of the defendant. It was said that insofar as the psychologist’s report of Mr Balfour outlined the defendant’s psychological circumstances, the report was of limited assistance. It was pointed out that the report dealt with prior offending in the context of drug and alcohol abuse and considered the risk of lapses into drug and alcohol abuse. Since such abuse was not alleged to be a factor in the commission of the offences the subject of the appeal, it was contended that the report was of limited assistance.
In relation to the Magistrate’s decision not to suspend, counsel for the Police submitted that the Magistrate was entitled to conclude that a suspended sentence would not act as a sufficient deterrent, as previous suspensions had been ineffective in preventing further offending. Ultimately, the Police contended that the sentence imposed by the Magistrate was appropriate, having regard to the offences committed, the history of the defendant and in particular, the demonstrated failure of previous suspended sentences to deter the defendant from offending.
In the alternative, the Police contended that in the event that this Court were to determine that the appeal should be allowed and that the defendant should be resentenced, a pre-sentence report concerning the defendant’s compliance with the conditions of good behaviour bonds should be obtained before the imposition of a fresh sentence.
Defendant’s Antecedents
The defendant was born on 25 July 1984. His antecedent report records a substantial history of offending, including numerous driving offences, a number of dishonesty offences and a number of offences of violence. Significantly, the antecedent report discloses the imposition of a number of suspended sentences of imprisonment on entry into good behaviour bonds.
On 22 December 2003, the defendant entered into a good behaviour bond of two years suspending a term of imprisonment of two months imposed for the offence of driving whilst disqualified. Similarly, on 5 August 2004, the defendant was sentenced to a term of two months imprisonment suspended on entry into a good behaviour bond of 12 months following conviction for the offence of driving whilst disqualified.As earlier mentioned, on 18 March 2009, the defendant entered into two bonds of 18 months, the first suspending a sentence of imprisonment of 18 months with a non-parole period of 12 months, imposed for the offences of aggravated serious criminal trespass, dishonestly taking property and assault causing harm, and the second suspending a sentence of six months imprisonment imposed for numerous offences including being unlawfully on premises, dishonestly taking property, attempting to damage property and a number of driving related offences. These bonds were breached by the offence of fighting in June 2009 although the breach was excused and the bonds extended. On 27 July 2009, the defendant entered into a further bond in the District Court to be of good behaviour for 18 months, suspending a term of imprisonment of 22 months imposed for the offences of aggravated serious criminal trespass and dishonestly taking property. The Court was informed that on 15 August 2009, the defendant drove unlicensed, breaching the bonds in force. Although no action was taken in respect of the breaches of bond, the defendant received a further term of imprisonment of 21 days for the offence, suspended on entry into a good behaviour bond of 6 months. Finally, in October and November of 2009, the defendant committed the offences the subject of this appeal, resulting in the revocation of one of the bonds of 18 March 2009 and bringing into effect the outstanding term of six months imprisonment.

The antecedent report indicates that the defendant has on more than one occasion breached a recognisance. It is apparent that the offences of driving unregistered, uninsured and failing to give way for which the defendant was sentenced on 17 March 2006, breached the bond imposed in August 2004, although apparently no action was taken against that breach. On 31 March 2008, the defendant was convicted of three counts of failing to comply with a bail agreement. As earlier observed, the defendant’s conviction for fighting of 25 June 2009 breached the bonds imposed on 18 March 2009 and the offending the subject of this appeal was also in breach of bond.
The most significant offending disclosed by the offender history report is that for which the defendant was sentenced on 18 March 2009 which involved 12 offences, including aggravated serious criminal trespass, assault causing harm and basic assault, being unlawfully on premises, dishonestly taking property and a number of driving related offences.
It is relevant to observe that despite the antecedent history as outlined above, the defendant has only spent approximately two weeks in prison.
Mr Balfour’s Report
In his report, Mr Balfour discloses the personal and offending history of the defendant, his progress and prospects of rehabilitation and his clinical opinions and recommendations. It is convenient to summarise the relevant factual matters pertaining to the defendant before setting out those opinions and recommendations.
The defendant was born in Whyalla and was frequently relocated during his childhood, between rural and urban South Australia. The defendant maintains contact with both his parents although he described a more difficult relationship with his father due to his father’s tendency for violence when drinking. While growing up, the defendant suffered violence and abuse at the hands of his mother’s boyfriends, and his father attempted to indecently assault him when he was a child. The defendant described his upbringing as being “dragged up”. In order to escape the abuse and problems at home, the defendant commenced running away from home from the age of 13. He maintained a transient lifestyle into adulthood. The defendant became involved with offending and drug and alcohol abuse at the age of 17. He was not a serial offender as a juvenile, never spent any time in a juvenile detention facility and never appeared before the Youth Court. However, he has an extensive history of adult offending and a history of poor peer association.
The defendant’s educational history was marred by poor academic performance and multiple suspensions for fighting other students. His education was discontinued as a consequence of failing Year 10 and being expelled from school. Subsequent to leaving school, the defendant completed a welding course and obtained a forklift driver’s licence. He has consistently maintained employment in the general labouring and process work and has ambitions to become a builder.
At the time of the preparation of the report by Mr Balfour, the defendant was in a stable relationship, spending most of his time with his fiancée. The defendant had indicated that in the seven months of that relationship, he had rehabilitated himself, and in particular, participated in a drug and alcohol rehabilitation program. This rehabilitation followed a history of chronic drug and alcohol use commencing at the age of 17. The defendant’s main drugs of abuse were cannabis and ecstasy, and he had smoked ice and amphetamine. The defendant indicated that at the time of the offences to which the report related, namely the offences of breach of bail, serious criminal trespass, drive whilst disqualified, assault and breach of a community service order, he had a severe drug and alcohol abuse problem and that most of his offending was committed to pay for that abuse. He also indicated a history of depression and had in the past attempted to commit suicide.
Mr Balfour expressed the following clinical opinion in relation to the defendant:
[The defendant] possesses most of the traditional static and dynamic criminogenic risk factors which have been identified by research as predisposing an individual towards offending behaviour. He exhibited evidence of a conduct disorder during his adolescence. He has socially gravitated towards a predominantly negative peer group. He has experienced difficulty relating to authority figures. He has a history of minor juvenile offending behaviour. He has a significant adult offending history, but has never been sentenced to a lengthy period of incarceration. He has a history of drug and alcohol abuse problems. He has pervasive anger management problems which have led to legal conflict. He has a history of generalised impulse control problems in the community, but does not engage in reckless thrill-seeking behaviours. I would describe his criminogenic profile as being in the high range of risk for committing new offences within the next 12 months.
In relation to the impact of imprisonment on the defendant and his prospects of rehabilitation, Mr Balfour continued:
…I believe his mental state would need to be closely monitored during the adaptation phase of incarceration to ensure he does not become acutely suicidal.
I note that [the defendant] has had the benefit of being given community service and a suspended sentence bond by the courts in the past. He has largely failed to adhere to these sentencing options because he has had a severe drug and alcohol abuse problem, unstable accommodation, and no rehabilitation programme targeting his primary criminogenic risk factors. He has never had the benefit of regularly reporting to a community corrections officer as part of a structured rehabilitation plan.
Mr Balfour noted that the defendant had made significant progress in rehabilitating himself during the preceding seven months and expressed the opinion that if he was given a lengthy custodial sentence, he would lose these rehabilitative gains and lapse into his former offending lifestyle. Mr Balfour went on to observe:
Without the assistance of a supervised, structured rehabilitation programme, I believe that [the defendant’s] prognosis to cease offending is poor in the short-term. He has complex mental health and social problems. He has a significant history of alcoholism and drug abuse. His rehabilitation will be lengthy (i.e., two to three years). He will be prone to experiencing lapses of his drug and alcohol abuse problems along the road to recovery which will place him at-risk of offending potentially leading to re-offending. Overcoming a drug addiction is very similar to recovering from a chronic illness with a remitting course.
Mr Balfour concluded that the defendant’s current prognosis to cease offending was fair and made a number of recommendations, including referral to Drug and Alcohol Services Council for rehabilitation for the defendant’s drug and alcohol problems and other referrals to assist in his rehabilitation.
As earlier mentioned, counsel for the defendant contended that the report of Mr Balfour evidenced the progress made by the defendant in his rehabilitation without any independent assistance and that the sentence of imprisonment imposed by the Magistrate would be counterproductive to that rehabilitation and gave inadequate weight to that progress. Counsel particularly emphasised that although the defendant’s offending history was poor, the offences the subject of the within proceeding could be categorised as a relapse on the path to recovery, particularly in light of the relatively minor nature of the offences in comparison to his earlier incursions into offending. As earlier outlined, counsel submitted that the antecedent report disclosed that the defendant’s more serious offending occurred in a confined period, since which time the defendant had significantly reduced his offending until the commission of the offences the subject of this appeal. It was suggested that the positive progress made warranted a suspension of the term of imprisonment, either in part or in its entirety. It was also pointed out that subsequent to the provision of Mr Balfour’s report, the defendant and his partner had a child together and that child is currently cared for by the defendant’s mother, as the defendant’s partner was also facing matters before the Court.
The material disclosed by the report of Mr Balfour was relevant and ought to have been received by the Magistrate. In this respect, it is appropriate to set out the seminal statement from House v The King in relation to the basis upon which an appellate court will interfere with the exercise of a sentencing discretion:[8]
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
[Emphasis added – footnotes omitted]
In the circumstances of the within proceeding, the material contained in Mr Balfour’s report providing context to the defendant’s offending by way of historical fact, ought to have been taken into consideration.
[8] House v The King (1936) 55 CLR 499 at 504-505; see also R v Wilton (1981) 28 SASR 362 at 363 (King CJ); Williams v McDonald (1984) 113 LSJS 210 at 213 (Cox J).
It is to be observed that much of this material could have been put to the Magistrate by the defendant’s counsel in the course of submissions following the rejection of the tender of the report by the Magistrate. However, it is apparent that in the circumstances, the material was not placed before the Magistrate in a manner whereby the Magistrate could take meaningful account of it. Having regard to the history and context provided by Mr Balfour’s report, it is my view that the sentence imposed by the Magistrate ought to be reconsidered in light of that material.
Reconsideration
As outlined above, the defendant’s antecedents are significant, and militate against leniency in sentencing. In light of that history of offending, it was appropriate to revoke the suspended sentence and impose the further term of imprisonment in relation to the dishonesty and driving offences. Having regard to the defendant’s antecedents, those offences can be characterised as repeated and were additional to the defendant’s flouting of bonds and bail terms. In those circumstances, an immediate term of imprisonment was appropriate.
The maximum sentence for the offence of theft was imprisonment for 10 years and the maximum sentence for making a false representation was imprisonment for 2 years. The maximum penalty for being unlawfully on premises was six months imprisonment and the maximum penalty for a subsequent offence of drive whilst unauthorised was imprisonment for one year. In these circumstances, the three month term of imprisonment imposed for the offences of theft and making a false representation, and the one month sentence fixed in respect of driving whilst unauthorised and being unlawfully on premises, cannot on any view be characterised as manifestly excessive. Having regard to the defendant’s antecedents, the revocation of the six month term was also entirely appropriate, particularly having regard to the fact that the suspended term had already been subject to an extension following a previous breach.
It is also my view that no special circumstances have been put before the Court that would warrant suspension of the term of imprisonment imposed.
It is axiomatic that where a defendant has previously had the benefit of suspended sentences and bonds, the Court ought to be cautious when considering the imposition of a further suspended sentence. As Hogarth, Wells and Sangster JJ stated in McDonald:[9]
It is proper, of course, that a court should impose as lenient a sentence as is reasonable in the circumstances of the particular case. But where an accused man has experienced leniency, including a bond (which he broke by committing further offences) and a series of comparatively short sentences over a period of years, which have neither led him to reform nor to avoid crime for fear of the consequences, then it becomes progressively more difficult for a court to extend leniency. …
[9] R v McDonald (1974) 8 SASR 388 at 390.
Similar observations were made by Doyle CJ, with whom Prior and Williams JJ agreed, in Mangelsdorf:[10]
…in my opinion, the fact that [the offender] had on four previous occasions been given suspended sentences, and that on two of those occasions the offences were drug offences, argued compellingly against a suspended sentence, notwithstanding the period of time since his last offence. …a person who has received the benefit of a suspended sentence on more than one occasion is unlikely to be given the same benefit yet again, … Of course, one must consider the period of time which has elapsed since the last suspended sentence and the nature and circumstances of the offence which brings the person before the courts again. In the present case the period during which [the offender] has gone without offending is not insignificant, but I am influenced by the fact of four previous suspended sentences and by the seriousness of the present offence.
[10] R v Mangelsdorf (1995) 66 SASR 60 at 74-75.
In Buckman, King CJ discussed the circumstances in which the activation of a suspended sentence of imprisonment may be a disproportionate consequence for the offending:[11]
…It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
In the present case it seems to me that there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated. It is not irrelevant, moreover, that the offence constituting the breach is of a quite different character from that for which the sentence was imposed. The matter being at large for this Court for the reasons explained by Jacobs J, it seems to me that the total effect of the relatively minor nature of the offence constituting the breach, the difference in character between it and the offence for which the sentence was imposed and the disproportion between the seriousness of the offence constituting the breach and the sentence which would be activated, is such as to amount to proper grounds upon which the failure to observe the conditions of the recognisance should be excused.
[11] R v Buckman (1988) 47 SASR 303 at 304-305.
As outlined above, the defendant has had the benefit of multiple suspended sentences without demonstrating any relevant desistance from offending. It is of further relevance that the offences which breached the bond were of a similar character to the offences for which the bond was imposed. In these circumstances it is difficult to see how the activation of the six month suspended sentence could be a disproportionate consequence of the offending. Having regard to the previous suspended sentences and the multiple breaches of recognisances outlined above, mitigatory circumstances in the defendant’s favour would need to be truly exceptional to warrant the extension of further leniency. There is nothing so unusual in the circumstances of the defendant, even with the context provided by Mr Balfour’s report, that warrants such an approach.
In the circumstances of this proceeding, having particular regard to the circumstances of the offending, the defendant’s serious history of prior offending and prior breaches of bonds and bail terms, it is my view that the sentence imposed by the Magistrate should not be disturbed.
Conclusion
This appeal is dismissed.