Paull v Police - [2015] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PAULL v POLICE
[2015] SASC 25
Judgment of The Honourable Justice Sulan
25 February 2015
MAGISTRATES - ORDERS AND CONVICTIONS - SENTENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - FAILURE TO EXERCISE DISCRETION
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
Appeal against sentence. The appellant pleaded guilty to three counts of theft and seven counts of making off without payment for fuel. The appellant was sentenced to six months' imprisonment and ordered to pay compensation. The sentencing Magistrate declined to suspend the sentence. The Magistrate erred by imposing a compensation order without adequately considering s 13 of the Criminal Law (Sentencing) Act 1988 (SA). The refusal to suspend the sentence was plainly unjust in all the circumstances. Appellant resentenced to six weeks' imprisonment, suspended upon the appellant entering into a good behaviour bond for 12 months.
Criminal Law Consolidation Act 1935 (SA) s 134, s 144(1); Criminal Law (Sentencing) Act 1988 (SA) s 3, s 13, s 18A, s 53, s 70(1), referred to.
Noble v Police [2014] SASC 156; R v Copeland (No 2) (2010) 108 SASR 398, applied.
R v Gibbins [1936] SASR 36; Ware v Betts (1986) 134 LSJS 212; Stenecker v Police [2014] SASC 68, discussed.

PAULL v POLICE
[2015] SASC 25
Magistrates Appeal: Criminal

SULAN J: The appellant and defendant, Matthew James Paull, pleaded guilty in the Magistrates Court to three counts of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), and to seven counts of making off without payment, contrary to s 144(1) of the Act. The maximum penalty for theft is ten years’ imprisonment. Each offence of making off without payment is subject to a maximum penalty of two years’ imprisonment.
The Magistrate imposed a penalty of imprisonment of three months in respect of each count of theft, having given credit of one month for the pleas of guilty. Those sentences were to be served concurrently. As to the offences of making off without payment, the Magistrate imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) of three months’ imprisonment, having given credit of one month for the pleas of guilty, with that sentence to commence at the expiration of the sentence imposed in relation to the thefts. The total sentence, therefore, was six months’ imprisonment, reduced from eight months on account of the guilty pleas. The Magistrate declined to suspend the sentence. In addition, the defendant was ordered to pay compensation in the amount of $815.84.
The grounds of appeal are:
1.That the sentence imposed was manifestly excessive.
2.That the learned Magistrate erred in not suspending part or all of the sentence.
3.That the learned Magistrate erred in making the sentence for the offences of making off without payment cumulative to the sentence for the theft offences.
Background
As to counts 1 and 2, the owners of the vehicles parked their cars at the Mitcham train station and, in each case, a numberplate was stolen from the vehicle whilst parked. In the case of count 3, the owner of that vehicle parked her car in the driveway of her flat at Blackwood. The numberplate was stolen whilst it was parked in the driveway.
As to counts 4 to 10, in each case on dates between 10 April 2014 and 12 September 2014, at various locations, a motor vehicle exhibiting one of the stolen plates was driven into a service station and the driver obtained fuel and left without making payment.
The appellant was apprehended when a police officer recognised his vehicle as being similar in appearance to a car which had made off without payment for fuel on 12 September 2014 at a service station at Meadows. Police attended at Caring Choice Residential Care, Mount Barker, where they spoke to the appellant who they recognised as the person who had been the driver of that vehicle. When police searched the appellant’s car, they located two of the numberplates which had been attached to vehicles when the driver had made off without paying for fuel. The appellant admitted the offending and cooperated with police.
The solicitor who appeared for the appellant before the Magistrate submitted that he had separated from his de facto partner of 16 years when he discovered that his partner had been involved in an affair with another man. He and his partner have two children. When they separated, the appellant moved to live with his parents at Morphett Vale. His partner remained in their home with their two children at Victor Harbor.
The appellant had lost his job and was reliant upon Centrelink benefits. He continued to financially support his former partner and children. In addition, he paid rent of $100 per week to his parents for accommodation. He continued to see his children and was required to drive from Morphett Vale to Victor Harbor regularly. He was also travelling to attend Careers Australia to obtain nursing qualifications. He had insufficient funds to pay for petrol and, therefore, devised the plan to steal fuel. The total value of fuel taken from various service stations amounted to $815.84.
After the appellant obtained employment, he ceased stealing fuel. When he appeared before the Magistrate, the appellant was working as a carer and receiving approximately $1500 per week in wages.
The appellant had been previously convicted in 1998 of five offences of larceny and one offence of false pretences committed in 1993. He received a sentence of ten days’ imprisonment in respect of the first count of larceny, suspended on him entering into a bond to be of good behaviour for 12 months. No penalty was imposed for the other offences.
On 2 November 1998, the appellant was convicted of 52 counts of obtaining an instalment of payment which was not payable. This offending involved receiving payments of benefits to which he was not entitled. The offending occurred between 7 December 1994 and continued through to 17 December 1997. The appellant was sentenced to 11 months’ imprisonment. He was ordered to serve one month after which he was released upon a bond to be of good behaviour for 12 months.
On 7 February 2000, the appellant was convicted of one count of larceny and two counts of false pretences committed between 19 March 1998 and 27 March 1998. He received a total sentence of 15 months’ imprisonment, with a non-parole period of five weeks’ imprisonment. Those offences related to monies taken from the Commonwealth Bank. Since that date, the appellant has no convictions for dishonesty.
On 10 May 2004, the appellant was convicted of producing cannabis and fined $150. On 29 June 2005, he was convicted of producing cannabis and possession of equipment to administer cannabis and fined $350. Between November 2010 and October 2012, he was convicted of motor vehicle offences.
The Magistrate’s remarks
In sentencing the appellant, the Magistrate observed that the theft of the numberplates was for the purpose of effecting the scheme devised by the appellant to take fuel from service stations without payment. The Magistrate referred to the appellant’s prior convictions. He observed that the sentences the appellant had previously received were not sufficient to dissuade him from another plan of repeated dishonesty in 2014.
The Magistrate considered the reasons given by the appellant for his offending, and accepted that the reason for the offending related to the appellant’s domestic situation and need to travel to Victor Harbor to visit his children. He dealt with personal and general deterrence, and considered that a sentence of imprisonment was appropriate and was the only sentence which, in his view, would deter the appellant from further illegal conduct. He said:
Having regard to the nature of your offending, the duration over which it was committed, being from March 2014 to September 2014, the number of offences which are involved and noting the fact that you have prior convictions for offending involving dishonesty for which you were imprisoned I have considered the range of penalties available to me for this spate of offending and have come to the view that nothing other than a sentence of imprisonment would sufficiently deter you from becoming involved in offending nor would a sentence other than imprisonment send an appropriate message to the community that offending of this magnitude, particularly after having been involved in previous offences of a long duration, will be tolerated.
He imposed the sentences to which I have earlier referred. He then turned to the question of suspension. He said:
I have given consideration as to whether there is any basis upon which I can suspend the sentence of imprisonment that I have imposed. I take into account the purpose for which these offences were committed, I also note that since these offences you have gained employment on a casual fulltime basis and subsequently the likelihood of you becoming involved in these offences or offences of a similar nature in the short term is considerably reduced. However, you have shown yourself to be capable of offending after finding yourself in dire circumstances and should that happen again one would hope you would not resort to this same sort of conduct. I also note that you have your two sons, aged 12 and 14 with whom you have regular contact, that you are sorry for your offending and that you claim that these offences were driven out of need rather than greed. I also note that you stopped your offending once you obtained employment and not as a result of being apprehended by the police. I take all of those matters into account when considering whether there is any basis upon which I can suspend either wholly or in part the sentence of imprisonment that I have imposed. Ultimately, given your prior offending and given the prolonged period over which these offences were committed I have come to the view that it would be inappropriate to suspend the sentence of imprisonment that I have imposed. The offending is too serious and it spans too long a period of time. In the circumstances you will serve the sentence of six months imprisonment that I have imposed.
He then turned to the question of costs and compensation. He said:
I waive the court costs. There are prosecution costs and victims of crime levies. I also order that you pay compensation in the amount of $815.84. In making that order I take into account that you will be in prison for a period of time but that on your release you can make arrangements through the fines unit to enter a payment plan.
Counsels’ submissions
Counsel for the appellant submitted that the sentence was manifestly excessive and, in the context and nature of this offending, a total of six months’ imprisonment was manifestly excessive. Counsel argued that the earlier offending relating to the obtaining of social security benefits was of a different character to the offending with which the Magistrate was dealing. The appellant ceased stealing fuel when he obtained employment. Further, it was argued that there was some 15 to 16 years between the commission of the dishonesty offending and the current offending and that, during that time, the appellant over a long period of time, had demonstrated that he had been rehabilitated. Counsel submitted that, as the earlier offending was so long ago, the Magistrate placed too much emphasis upon it in concluding good reason did not exist to suspend the sentence.
The appellant relied upon a decision of the Court of Criminal Appeal in R v Gibbings, in which Murray CJ, Angas Parsons and Richards JJ, observed:[1]
We are well aware that there are decisions of the Court of Criminal Appeal in England to the effect that the smallness of the amount fraudulently obtained is a matter to be taken into consideration in fixing the sentence, and that previous convictions do not necessarily require a heavier sentence than had been passed on the prior convictions, the general principle being that regard is to be had to the circumstances of each case. We agree with those decisions, and have quite recently applied them in a case which came on appeal before us, but that affords no ground for supposing that previous convictions are to be entirely disregarded in all cases, or even in case where the amounts fraudulently obtained have been small. A great deal depends on the nature of the offences and the recency or otherwise of their having been committed. If they are of the same type as the one for which the prisoner stands for sentence, and if they shew a recent course of similar conduct, then, inasmuch as one of the principal objects of punishment is to discourage the commission of crime, the Court would be wanting in its duty if it did not impose a heavier penalty in consequence of the number of offences previously committed.
[1] [1936] SASR 36, 36-7.
Counsel contended that, in this case, the previous offending was so long ago that it should have little effect upon the sentence to be passed in this case. Further, it was of a different character and committed against the background of the appellant requiring fuel so that he could visit his teenage children. Counsel argued that the Magistrate was in error in concluding that the appellant had not been rehabilitated, and that the appellant was at risk of committing further offences in the future.
During the course of submissions before me, the issue of whether the appellant had paid compensation, as ordered by the Magistrate, was discussed. Counsel for the appellant submitted that the appellant had not been in a financial position to make such payment as, when he was imprisoned, he lost his employment and did not have the ability to comply with the compensation order.
Since his release on bail pending appeal, having served 28 days in custody, the appellant has regained his employment. Counsel indicated that he was now earning approximately $1500 per week and would be in a position to make payment of compensation by borrowing money from his parents, which will have to be repaid.
Counsel for the appellant submitted that the Magistrate’s discretion, both in respect of the length of sentence and in respect of the refusal to suspend the sentence, had miscarried.
Counsel for the respondent submitted that this Court should not interfere with the exercise of the Magistrate’s discretion. Counsel submitted that, when considering whether a sentencing magistrate had given too much or insufficient weight to various factors, the court should not set aside an order unless the failure to give adequate weight to relevant considerations amounts to a failure to exercise the discretion actually entrusted to the court and not bear a conclusion that an appeal court would have exercised the discretion differently.[2]
[2] Noble v Police [2014] SASC 156, [38].
Counsel referred to Ware v Betts,[3] in which von Doussa J considered whether, in declining to suspend a sentence, the discretion of the Magistrate had miscarried. Von Doussa J said:[4]
The question which has caused me concern is: whether the sentence of imprisonment so clearly ought to have been suspended that I can conclude that the order of the court below is unreasonable or plainly unjust.
[3] (1986) 134 LSJS 212, 216.
[4] (1986) 134 LSJS 212, 216-217.
Counsel submitted that is the test to which I should have regard in determining whether to interfere with the Magistrate’s decision not to suspend the sentence.
Since that decision, courts have expressed the position as follows. In Noble, I said:[5]
Having regard to the above considerations, I am of the view that the Magistrate gave insufficient weight to the defendant’s youth and prospects of rehabilitation. I have come clearly to the conclusion that, by reason of the failure to give adequate weight to those considerations, the discretion has been exercised wrongfully.
[5] Noble v Police [2014] SASC 156, [61].
In Stenecker v Police, Kourakis CJ, when considering an appeal against a failure to suspend a sentence of imprisonment said: [6]
It cannot be said that it was manifestly unreasonable of the Magistrate not to suspend the sentence in whole.
[6] [2014] SASC 68, [11].
Consideration
After I had reserved my judgment, I had regard to the Magistrate’s order for compensation which forms part of the sentence.[7] Section 3 of the Sentencing Act defines “pecuniary sum” as including compensation. Section 13 of the Sentencing Act provides:
[7]    Compensation
53 (1) Subject to this section, a court may make an order requiring a defendant to pay compensation for injury, loss or damage resulting from the offence of which the defendant has been found guilty or for any offence taken into account by the court in determining sentence for that offence.
Order for payment of pecuniary sum not to be made in certain circumstances
13     (1)    The court must not make an order requiring a defendant to pay a        pecuniary sum (other than a VIC levy) 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; or
(b)     compliance with the order would unduly prejudice the welfare           of the dependants of the defendant,
(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
(2)Subject to subsection (3), the court is not obliged to inform itself as to the defendant’s means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
(3)In considering whether the defendant would be able to comply with the order, the court should have regard to –
(a)the fact that the defendant could enter into an arrangement under Part 9 Division 3; and
(b)any information available to the court as to other pecuniary sums that have been paid, or are payable, by the defendant.
The section provides that a court must not make an order for compensation if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that the defendant would be unable to comply with the order, or compliance with the order would unduly prejudice the welfare of dependants of the defendant.
I invited the parties to provide written submissions on whether the Magistrate erred in failing to consider the appellant’s ability to pay compensation pursuant to s 13 of the Sentencing Act. Counsel for the appellant then sought leave to amend the Notice of Appeal to include a ground of appeal that the Magistrate erred in not adequately considering whether the appellant was able to comply with an order of compensation, and failing to consider whether such an order would unduly prejudice the welfare of his dependants.
I grant leave to amend the Notice of Appeal to include this additional ground. Counsel for the appellant and respondent each provided written submissions on this matter.
Counsel for the appellant contends that s 13 is a mandatory provision requiring a magistrate not to make a compensation order unless the magistrate is satisfied of the appellant’s ability to make payment. Counsel submits that referring the appellant to the Fines Enforcement and Recovery Officer to enter an alternative arrangement does not satisfy the requirement under s 13 of the Sentencing Act. The Magistrate failed to adequately consider the effect of a six-month sentence of imprisonment on the appellant’s employment and the resulting impact on his dependant children. It is contended that the failure to adequately consider s 13 amounts to an identifiable error.

Counsel for the respondent contends that the Magistrate had regard to s 13, as he advised the appellant that he could make arrangements through the Fines Unit to pay the compensation sum.
Although the Court is not obliged to inform itself of the appellant’s means, it is clear from submissions made by the appellant’s solicitor to the Magistrate that the appellant was paying a significant amount towards the maintenance of his partner and children. He was making mortgage payments in respect of the home in which they resided, plus payments for the children’s maintenance. It was evident from the submissions that, if a sentence of imprisonment was imposed, the appellant would be unable to meet the payment for compensation, nor would he be in a position to maintain payments to his partner and children.
The Magistrate made particular reference to the appellant seeking to make an arrangement with the Fines Enforcement and Recovery Officer upon the appellant’s release from custody.[8] It is evident that the Magistrate was satisfied that the appellant could not comply with the order to make payment of compensation within 28 days of the order. Further, it is evident that compliance with that order would unduly prejudice the welfare of the appellant’s children.
[8] Criminal Law (Sentencing) Act 1988 (SA), s 70(1).
The Magistrate was in error in making an order for compensation, having regard to the facts known to the Magistrate, which included that the appellant would be unable to comply with the order and, further, that compliance with the order would unduly prejudice the welfare of dependants of the appellant if he were required to make the payments.
The failure of the Magistrate to have adequate regard to s 13 of the Sentencing Act amounts to a specific error and, on that basis alone, the sentence is to be set aside. It follows that I should reconsider the appropriate sentence.
I consider that, in any event, the sentence was unreasonable and, in my view, plainly unjust. In determining not to suspend the sentence, the Magistrate concluded that only an immediate custodial sentence would deter the appellant from becoming involved in future offending. That, in my view, overlooked that many years had passed since the appellant’s earlier incursion into offences of dishonesty. During that time, the appellant had formed a relationship, was the father of two children, and had not committed any acts of dishonesty. Although he was not a first offender, many years had passed between his previous acts of dishonesty and the offences which were being dealt with by the Magistrate. The observations of the Court in Gibbings referred to in paragraph [19] are apposite.[9]
[9] [1936] SASR 36.
The offending with which the Magistrate was dealing was of a different character to that which had occurred more than 16 years before. At that time, the appellant was young. Further, in my view, the Magistrate failed to give sufficient weight to the fact that the appellant had obtained employment, and that his offending had ceased upon his obtaining that employment.
The Magistrate was in error in failing to give sufficient weight to the time which had elapsed since the appellant’s previous offences of dishonesty. Further, inadequate consideration was given to the different nature of the offending and to the circumstances in which the current offending occurred. Too little weight was given to the appellant’s rehabilitation and too much weight was placed upon personal deterrence.
In my view, the Magistrate also appears to have placed too much weight upon the fact that the offending occurred over a period of months. He overlooked the fact that on each occasion that the appellant stole fuel it was in the background of needing the fuel to travel to Victor Harbor. This was not a sustained course of conduct with which courts are often dealing, where a person embarks upon a continuous course of dishonest conduct in order to have a lifestyle beyond their means. These were isolated incidents over a period of seven months, explained by the appellant’s need to obtain fuel in order to travel to Victor Harbor. This was not a case of a person solely motivated by greed.
In my view, the failure to suspend the sentence in this case was plainly an error and the sentence was plainly unjust.
I would allow the appeal on this ground alone.
Re-sentence
The appellant is 46 years of age. He is employed as a carer with Caring Choice in Mount Barker, where he works with people with intellectual and physical disabilities and brain injuries. He earns approximately $1500 per week. As I have indicated earlier in these reasons, he supports his partner and two children. He has indicated through his counsel that he will make restitution by borrowing monies from his parents. I have regard to that fact in re‑sentencing him.
I take into account that his previous incursions into dishonest conduct occurred over 16 years ago. Since that date, he has minor convictions, none of which involved dishonesty.
The offending was planned and premeditated. On the other hand, the offences were committed in the background of the appellant wanting to maintain contact with his children during a period when he was out of work and had insufficient monies to pay for fuel, and in order for him to be able to visit them in Victor Harbor. This does not justify his conduct.
I take into account that the appellant spent 28 days in custody prior to being released on bail pending appeal. In my view, all the offending should be dealt with pursuant to s 18A of the Sentencing Act.
Counsel for the appellant argued that the Magistrate was in error in imposing concurrent sentences for the offences of larceny, and a cumulative sentence in respect of the offences of failing to pay for fuel. I do not regard the Magistrate’s approach as being erroneous. It was within the Magistrate’s discretion to proceed as he did. However, I consider that a single sentence pursuant to s 18A is appropriate. Section 18A was introduced in part to overcome the difficulties inherent in sentencing for multiple offending.[10] In this case, the offending was part of a scheme to obtain fuel. This is a case for which s 18A is designed in order to assist courts when sentencing for multiple offences.
[10] R v Copeland(No 2) (2010) 108 SASR 398, [16]-[29].
I have considered the overall offending. The total amount of loss to the service station was $815.84, taken over some seven months on seven separate occasions. The appellant is not a first offender. A sentence of imprisonment is appropriate. In my view, for these offences I would start with a notional head sentence of three months’ imprisonment. The offences of stealing numberplates on three separate occasions would attract a total sentence of one month imprisonment. In total, the notional head sentence is four months’ imprisonment, which is reduced to two months and two weeks’ imprisonment on account of the appellant’s cooperation with police and his early plea of guilty. That should be further reduced by one month, having regard to time actually spent in custody pending appeal. The result is a sentence of six weeks’ imprisonment.
The appeal is allowed. The appellant is to be imprisoned for six weeks. I take into account all the matters to which I have earlier referred. Good reason exists to suspend the sentence. I suspend the sentence upon the appellant entering into a bond to be of good behaviour for 12 months. The appellant is now employed. I consider he has the means to pay compensation. I order that he pay compensation in the sum of $815.84.