Parker v Police No. Scgrg-99-664 Judgment No. S299

[1999] SASC 299

PARKER v POLICE
SASC 299

Magistrates Appeal - Criminal

1. WILLIAMS J.  This is an appeal against sentence imposed by a Magistrate sitting at Elizabeth on 23 December 1998 when the Court dealt with eleven matters as follows.  I will describe the matters as they are set out in the appeal notice.

File No.	Details of Offence	Sentence
1809/98	27 November 1997 break enter and larceny and attempt break and enter	imprisoned 6 months
4474/98	unlawful possession of a baseball bat on 12/12/97	imprisoned 14 days cumulative
851/98	unlawful possession of Serapax tablets on 18/12/97	imprisoned 14 days cumulative
13941/97	interfere with a motor vehicle and resist police on 18/12/97	imprisoned for 3 months cumulative license disqualification for 12 months forthwith
4551/98	break and enter on 30/1/98	imprisoned for 4 months cumulative
5729/98	property damage to motor vehicle on 30/1/98	imprisoned for 6 months cumulative
2505/98	break and enter Primary School on 2/2/98	imprisoned for 6 months cumulative
2725/98	unlawfully on premises and larceny on 7/2/98	imprisoned for 1 month cumulative
904/98	resist police and breach bail on 13/2/98	imprisoned for 3 months
4295/98	charge of verbal assault on 13/2/98	imprisoned for 1 month cumulative
2670/98	charge of property damage on 18/3/98	imprisoned for 1 month cumulative

1. The total of all these sentences, if they are to be accumulated, is 31 months and 28 days.  However, the Magistrate did not expressly say that in respect of file 904/98 that the sentence will be cumulative.  Moreover, in his sentencing remarks he did express the total as 31 months and 28 days.

2. Prior to being sentenced for the matters to which I have just referred, the appellant appeared in the District Court before His Honour Judge Anderson.  He was sentenced on 9 July 1998 on charges of committing Grievous Bodily Harm with intent and larceny committed on 10 July 1997, both of which he had pleaded guilty to on 11 May 1998.

3. In relation to the charge before His Honour Judge Anderson the appellant was sentenced to a term of imprisonment with a head sentence of five years and a non-parole period of two years.  Both the head sentence and the non-parole period were to commence from 13 February 1998.

4. In my opinion that sentence was merciful.

5. Judge Anderson was not aware of the matters pending in the Magistrates Court when he handed down this sentence.

6. The Magistrate ordered that the sentence of 31 months and 28 days should commence upon the expiration of the head sentence of 5 years fixed by Judge Anderson.  That meant there then became a new head sentence of 7 years, 7 months and 28 days.  The Magistrate set a new non-parole period by extending the existing non-parole period of 2 years for a further 2 years.  The total of the non-parole period now became 4 years upon head sentences totalling 7 years, 7 months and 28 days.

7. I note that in making his orders the Magistrate discounted the sentences by 25% by virtue of the guilty pleas.  The Magistrate also brought into account the reports which were before him, Mr Bell’s psychological report and the pre sentence report by Mr Richards.

8. The grounds of appeal are:

   “1..... The learned sentencing Magistrate in setting a fresh head sentence and non parole period failed to have regard to the principle of totality.

   2...... The learned sentencing Magistrate sentencing the appellant on charges of resist police and breach bail on file no 904/98 committed on 13 February 1998, does not order that sentence be cumulative upon previous sentences, however, imposing a total head sentence of 31 months and 28 days the learned sentencing Magistrate has imposed a sentence as if the sentence on that file was to be cumulative.  It follows that the sentencing Magistrate erred in imposing a head sentence of 31 months and 28 days when the total of the imprisonment imposed should be 28 months and 28 days.

   3...... In setting a non parole period of 24 months on the sentences for these offences, His Honour imposed a non parole period namely 24 months which is manifestly excessive compared to a total head sentence of 28 months and 28 days which should have been imposed.

   4...... If the head sentence imposed by the learned Magistrate remains, the non parole period is too high a proportion of a head sentence of 31 months and 28 days imprisonment (ground 6 also refers).

   5...... The new total head sentence imposed for 7 years 7 months and 28 days should read 7 years 4 months and 28 days.

   6...... However, in setting a fresh non parole period of 4 years His Honour failed to give effect to the sentencing regime imposed by His Honour Judge Anderson in the District Court on the 10th(sic) July 1999(sic) in that the new non parole period is a greater proportion of the total head sentence than the non parole periods set by His Honour Judge Anderson for the offence grievous bodily harm which he dealt with on the 10th(sic) July 1998 being a head sentence of 5 years imprisonment with a non parole period of 2 years.”

1. Having heard counsel I have no doubt that it is clear upon the remarks of the Magistrate that the sentences were intended to be cumulative.  The Magistrate’s arithmetic in totalling the sentences was worked upon this basis.  I intimated to counsel that this was my view and I required that further submissions be made to me upon this basis.  Grounds 2 and 5 of the Grounds of Appeal are not made out.

2. In my view, the manner in which the Magistrate has expressed himself does not itself otherwise admit of challenge.  However, the appellant pursues the only other avenue of appeal open to him, namely to argue that the sentence and in particular the non-parole period, is manifestly excessive in itself despite His Honour’s remarks.

3. It is argued for the appellant that the very merciful treatment which is reflected in Judge Anderson’s sentence has not been carried forward into the fresh non-parole period set by the Magistrate.  The appellant makes a comparison between the sentence of 9 July 1998 where a non-parole period is set at 40% of the head sentence and the subsequent sentence of 23 December 1998 where the non-parole period is about 52%.

4. It is argued that in accordance with the principles discussed in Power v French (1973) 6 SASR 100 at 104 the appellant was entitled to be sentenced by the Magistrate in a way where he should have “hesitated long before disturbing the plan”, which is reflected by Judge Anderson’s decision and sentence. However, the short answer to this submission is that Judge Anderson was not made aware of the eleven matters with which the Magistrate was subsequently required to deal.

5. In O’Hare v Police (SASC, Olsson J, 16 May 1996, unreported) Olsson J said at p4:

   “However, Matheson J was not given any detailed information concerning the offences the subject of the present appeal, which would have briefed him as to the inherent seriousness of them.  Unfortunately, he was not invited to call up the outstanding files and also deal with them.

There can be no question that, in constructing sentencing packages, magistrates ought not, generally speaking, to adopt strategies which have the practical effect of frustrating sentencing policies already implemented apropos other, more serious, offences, particularly when those policies have deliberately been crafted by a superior court.  So much is well established by cases such as Vanzo and Wegener v Gray Padgin (Jacobs J, 5 July 1989, unreported), citing Power v French (1973) 6 SASR 101. See also Buzzacott v Hentschke (O’Loughlin J, 1 July 1989, unreported).

However, in the instant case, there are three features which must be borne in mind.

The first is that, in proceeding as he did, Matheson J was given no concept of the inherent seriousness of the outstanding offences.  Had he appreciated the true facts related to them, I seriously question whether he would have adopted the view which he did in relation to suspending the appellant’s sentence.”

1. The fact of the matter is that in the present case the Magistrate was aware of the totality of the situation.

2. It seems to me difficult to maintain an argument that the sentence is manifestly excessive.  The appellant’s argument is not helped by reason of the fact that the eleven matters before the Magistrate were committed whilst the appellant was on bail for the offences of 10 July 1997.

3. During the course of the appeal it was argued for the appellant that a non-parole period of three years, or thereabouts, would have been appropriate instead of four years.  My task is to review the exercise of the sentencing discretion.  I consider that upon the facts, the non-parole period which was set does not appear to me to be manifestly excessive.  When one looks at the appellant’s whole history I am inclined to the view that the Magistrate’s sentence still has an element of leniency in it.

4. I reject the defendant’s submission as to ground one of the notice of appeal.  The totality principle did not require any lesser element in any component of the sentence than that which was imposed.

5. Having read the whole of the material which was placed before me and after considering counsels’ submission I have reached the conclusion that the grounds of appeal have not been made out.  The appeal will be dismissed.