Paul Charles Rudling v SA Police No. 4170 Judgment No. SCGRG 93/1477 Number of Pages 4 Criminal Law Sentencing

[1993] SASC 4170

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law - sentencing - Appeal from aggregate sentence of five years and one month imprisonment with a non-parole period of four years imposed by a Magistrate on a 29 year old single man who pleaded guilty to nine counts, including attempting to obtain money by false pretences, shed breaking and larceny, larceny of a car and a motor bike, and having in his possession a rifle, shotgun and silencer - the appellant had a long history of prior offending - held that although he had not expressly adverted to the principle of totality, the Magistrate must have had it in mind - held that considered either individually or in total, the sentences had not been shown to be manifestly excessive - however, appeal allowed as to order for payment of compensation of in excess of $2,000 with respect to the stolen car, in that the means of the appellant when he was released from gaol would be unlikely to be such that he could comply with the order. Criminal Law (Sentencing) Act 1988s 13.

HRNG ADELAIDE, 9 September 1993 #DATE 9:9:1993
Counsel for appellant:     Mr D. Stokes
Solicitors for appellant:    David Stokes and
   Associates
Counsel for respondent:     Mr A.D. Wainwright
Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal allowed in part.

JUDGE1 PERRY J In this matter the appellant appeals against the sentences imposed upon him in the Magistrates Court at Elizabeth on a number of charges to which he pleaded guilty. Those charges were nine in number. They were as follows:
     1. That on 5 November 1991 he attempted to obtain money
    by false pretences. That involved an attempt to obtain a sum of
    money from Rocca Bros by picking up some items of stock in their
    store and then pretending that he was returning them and seeking
    a credit.
     2. On 30 November 1991 wilfully damaging a fence, the
    circumstances being that he kicked the wooden fence over which
    was the boundary fence of a suburban house property.
     3. Between 4 December and 7 December 1991 breaking into a shed
    at a holiday house while the owners were away, and stealing two
    chainsaws and an angle grinder of the total value of some $1830.
     4. On 9 December 1992 larceny of a motor bike of the value of
    $2,000. This was a motor bike which was unregistered and in a
    state of disrepair which he took to his home from the place
    where it was parked outside the owner's property. It was found
    painted another colour and with some other parts attached to it
    when it was later recovered from the appellant.
     5. On 22 February 1993 larceny of a motor vehicle. This was a
    car taken from outside house premises at Underdale. It was
    later located in the possession of the defendant, half sprayed
    to a different colour and the rear number plate had been
    changed.
     6. On 8 March 1993 had in his possession as Brno
    semi-automatic rifle and a Rossi double-barrel shotgun without
    holding an appropriate firearms licence. These weapons,
    together with the silencer referred to in the next charge, were
    found in a car which the appellant was driving at Elizabeth
    Fields.
     7. On 8 March 1993 had in his possession a silencer.
     8. On 8 March 1993 received the rifle and the shotgun, knowing
    them to have been stolen.
     9. On 8 March 1993 had in his possession a quantity of
jewellery, valued at $50. 2. The learned Magistrate gave short sentencing remarks in the course of which he dealt separately with each of the offences. He imposed a term of four months imprisonment with respect to the false pretences charge, one month imprisonment with respect to the charge of wilful damage, 18 months with respect to the shed break and larceny, 12 months with respect to the larceny of a motorbike, and 18 months with respect to larceny of the motor car. The learned Magistrate imposed fines with respect to the unlicensed firearm charges, and possession of the silencer, but on the charge of receiving the guns, he imposed a sentence of imprisonment of four months. He imposed a separate term of imprisonment with respect to unlawful possession of the jewellery, that being for a term of four months. 3. In all, there was a total term of imprisonment or head sentence of 61 months, or five years and one month, against which the learned Magistrate set a non-parole period of four years. As well, he ordered compensation to be paid with respect to the stolen motor car. Apparently this reflected the cost of re-spraying it. The amount of compensation awarded in that respect was $2,240, as to which he ordered that it be repaid within a period of four years and six months. 4. The Notice of Appeal complains that, in effect, the total head sentence and the non-parole period were manifestly excessive, and that what is described as the "restitution", which I take to mean the compensation, should not have been awarded. 5. Mr Stokes, who appeared on the hearing of the appeal, did not attempt to argue that considered individually, any of the sentences imposed were excessive, although he suggested that the learned Magistrate might well have made the sentence of four months with respect to unlawful possession of the jewellery concurrent with the four months sentence of imprisonment on the charge of receiving of the guns. 6. The gravamen of his argument was that, on a proper application of the principle sometimes described as the totality principle, the overall sentence was disproportionate to the totality of the offending, and provoked a need for it to be reconsidered and reduced, together with the non-parole period. 7. The appellant is 29 years of age, a single man, who migrated from England with his family in 1982. The sentencing Magistrate had the benefit of a carefully prepared pre-sentence report which indicates that he had an unsettled childhood. He accumulated, from 1983, a substantial and persistent criminal record. 8. While most of the offending was relatively minor, there is a constant theme of violence, of assault, and dishonesty offences, interspersed with abuse of drugs. The appellant had had the benefit before of bonds and suspended sentences, but it is clear that he has failed to respond to the opportunities which he had been given. Of course, he was not to be sentenced for his record, but there is nothing in his antecedents which could count in his favour when it came down to imposing sentences for the offending now in question. 9. I have performed the exercise which Mr Stokes invited me to, and stood aside from the sentences imposed, and considered them, as it were, in globo, but with the exception of the order for compensation, which I will come to, I am unable to see that it could be said that the totality of the sentences imposed lay outside the proper exercise of the sentencing discretion exercised by the learned Magistrate. Mr Stokes complains that the manner in which the sentences were imposed suggests that the learned Magistrate simply added, in some sort of arithmetical fashion, the series of individual sentences which he had pronounced, and had failed to have regard to the totality of the sentences. 10. Although the learned Magistrate does not refer to the total effect of the sentences, he had stood the matter over for about two weeks from a date in June to the date in July 1993, when he imposed the sentences in question. I see nothing in the sentencing remarks, or in the record of the court, to suggest that he failed to apply his mind to the question of the total effect of the sentences which he was pronouncing. 11. In any event, the exercise for this Court is to review the sentences, which I have endeavoured to do, and to determine whether, having regard to the principle of totality, and other relevant principles, it could be said that the total sentence pronounced was manifestly excessive. 12. In my opinion, the appellant has not discharged the onus of proving that. However, with respect to the sum of $2,240, ordered to be paid by way of compensation, in my opinion, the appeal should be allowed. 13. The order for compensation was imposed under s.53 of the Criminal Law(Sentencing) Act. The ability to order compensation under that section is qualified by reference to s.13 of the same Act, which provides inter alia:
    "(1) That the court must not make an order requiring a
    defendant to pay a pecuniary sum if the court is satisfied that
    the means of the defendant, so far as they are known to the
    court, are such that -
     (a) the defendant would be unable to comply with the order
    ..." 14. It seems to me that the imposition of a substantial custodial sentence which the learned Magistrate imposed in this case, coupled with what was known as to his employment record, and the obvious difficulties which he would face in securing employment on his release, gave rise to a situation in which it could reasonably be said that the chances would be that the defendant would be unable to comply with the order for compensation. 15. In my opinion, the appeal should be allowed so as to quash that order, and I so order, but that the remaining orders and sentences as pronounced by the learned Magistrate should stand.