Pavy v Police No. Scciv-02-814

PAVY v POLICE
[2002] SASC 293
Magistrates Court: Criminal

PERRY J. The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Christies Beach following his plea of guilty to charges that on 4 October 2001 he was on premises at Gulf View Road, Christies Beach for an unlawful purpose, contrary to s 17(1) of the Summary Offences Act 1953, and that on the same date and place he damaged property contrary to s 85(3) of the Criminal Law Consolidation Act 1935.
The learned sentencing magistrate imposed a sentence of 10 months imprisonment for the offence of being on premises for an unlawful purpose. On the second count, that is, damaging property, the magistrate recorded a conviction without penalty.
As the appellant was on parole for an earlier offence at the time of the offending in question, the imposition of the sentence of imprisonment had the consequence that the appellant became liable to serve the balance of the sentence to which the parole related, namely a period of 11 months and 21 days. This resulted in a total head sentence of 21 months and 21 days, against which the magistrate imposed a non-parole period of 10 months.
The appellant complains that:
1.The learned sentencing magistrate erred in sentencing on an inappropriate factual basis.
2.The learned sentencing magistrate erred in failing to give sufficient credit for a guilty plea at the earliest opportunity.
3.The learned sentencing magistrate erred in failing to give any weight or sufficient weight to the appellant’s prospects for rehabilitation.
4.The learned sentencing magistrate failed to sentence the appellant on the facts most favourable to the appellant.
5.The sentence is manifestly excessive.
The relevant circumstances surrounding the appellant’s commission of the offences commence at 12.15 pm on the day in question. A woman was alone in her home on Gulf View Road when at that time she heard knocking at her front door, and after that, knocking at her front window. When she looked out of the window, she saw the appellant kneeling on her driveway, apparently looking under the front of her vehicle. She rang the police. As she did so, she heard banging noises at the rear of the house.
The police arrived soon afterwards. On their arrival, the appellant fled, jumping over the rear fence of the property. They then found the appellant hiding under bushes in the front yard of premises in a nearby street.
Following his arrest, the appellant told a false story to the police to explain his presence on the property.
It appears that the rear screen door of the victim’s home had been forced open, and the inner rear door handle had been broken off.
Counsel for the appellant informed the learned sentencing magistrate that his client had little recollection of the events immediately leading to the offending. The appellant had been on anti-depressant medication and had shortly beforehand consumed some drinks at the Christies Beach Hotel.
The magistrate sentenced the appellant on the footing that after he had knocked on the front door of the victim’s house, the appellant assumed that there was no-one home and looked under the car to see if a spare key might have been hidden there. When this proved fruitless, the appellant used a pair of multi-grip pliers to force open the security screen door, and he was in the process of forcing open the inner rear door when the police arrived.
The learned sentencing magistrate stated in the course of his sentencing remarks:
“I propose to sentence you on the basis that you were on the victim’s property intending to break into it and to steal whatever property you could find. That I might say is absolutely consistent with your past offending. For the record, I have been referred to the Court of Criminal Appeal decision in R v Agius. Nothing in that decision causes me to change my conclusion.”
The appellant is a 36 year old man born in Adelaide. The learned sentencing magistrate had the benefit of a comprehensive pre-sentence report which explained that following the separation of his parents soon after his birth, the appellant suffered from a disturbed childhood marked by trauma and violence, at the hands of his step-father.
At the age of 12 he moved to Sydney with his mother and siblings, but he then became more unsettled and began committing juvenile offences.
At the age of 17 he left home, following which he developed a heroin dependency which persisted until he was incarcerated in this State in late 1988. Attempts assisted by a methadone treatment program to break free of his addiction were not successful.
The appellant’s schooling progressed only to second-year high school, and he has struggled to hold down a regular job. He has two children aged 11 and 6 by a former de facto relationship, but his partner was killed in a road accident in 1999 while the appellant was in custody serving a sentence of imprisonment. It appears that his mother, who lives in Sydney, has taken over the care of his two children.
The appellant informed the probation officer who prepared the pre-sentence report that the offending occurred during a period of considerable emotional and psychological stress. He was able to see now that in the months prior to his offending he struggled on a day-by-day basis to cope with life. He led an empty existence, lacking in adult company, the absence of community supports or outside interests, and divorced from his close family. His situation was aggravated by his grief at the death of his partner. He was taking medication for depression.
As I have already explained, at the time of the current offences, the appellant was on parole.
The appellant explained to the author of the pre-sentence report that he wishes to return to Sydney when he is free, and to resume his relationship with his mother, his sibling and other extended family, but more particularly to reunite with his children.
The probation officer concluded that the appellant appears to have given some thought to his “future prospects” and had developed “a realistic view of the difficulties that he will face in establishing himself” in the community.
The appellant has a long history of prior offending dating back to 1979. This includes a number of offences of larceny and breaking and entering. In Adelaide Magistrates Court on 28 January 1999 he was sentenced on six offences of break and enter, two offences of false pretences and an unlawful possession offence for which he was ordered to be imprisoned for 4 years with a non-parole period of 2 years and 6 months. He was released from prison on 20 August 2000.
In order to understand the arguments pursued on the hearing of the appeal, it is necessary to have regard to the history of the matter as it was pursued in the Magistrates Court.
Initially, the appellant was charge on information with a major indictable offence, namely attempted aggravated serious criminal trespass. The serious criminal trespass alleged was that he trespassed on the place of residence of the occupier of the premises in question with the intention of committing an offence to which s 168(1) of the Criminal Law Consolidation Act 1935 applied, namely larceny.
The circumstances of aggravation alleged for the purposes of s 170(2) were that the appellant knew of the presence of another person (the occupier) in the premises, or was reckless as to whether or not the occupier was present at the time of the trespass.
Following negotiations between Mr Clarke, counsel for the appellant, and the police prosecutor, a complaint was filed alleging the two offences upon which the appellant was eventually sentenced. No evidence was tendered on the information, which was dismissed for want of prosecution.
The appellant first appeared in the Magistrates Court on 5 October 2001, the day after the offences were committed. He was not admitted to bail until 18 December 2001.
When the matter was called on again on 15 January 2002, the appellant failed to appear, and a warrant was issued for his arrest. Pursuant to that warrant, he was arrested on about 4 February 2002, following which he remained in custody until he was sentenced on 28 May 2002.
So that in the result, the appellant spent some six months or so in custody prior to the imposition of the sentence under appeal.
Against that background, in his remarks on sentence, the learned sentencing magistrate explained his approach to determination of the sentence, which was as follows:
“10For the offence of being on premises for an unlawful purpose I would order imprisonment for a period of 18 months. You are entitled to a credit for your pleas of guilty. I would reduce that sentence to 16 months to reflect the plea of guilty. I cannot backdate your sentence but you are entitled to a credit for the time that you have already spent in custody. You have apparently been in custody for slightly in excess of six months to date. However I do note that that came about as a result of your breaching bail conditions. I would reduce the sentence to 10 months allowing a reduction of six months to reflect the time that you have spent in custody to date. You have breached your parole and will have to serve out the 11 months and 21 days. The total sentence is therefore 21 months and 21 days.
11There is a strong argument not to fix a non-parole period for you given your history of offending but I accept that might be counter-productive. Your counsel suggests that you have at least over recent times stopped using heroin. I am not absolutely sure that is the case. I would normally fix a non-parole period in the order of 16 months given that head sentence. However allowing for time that you have spent in custody to date I fix a new non-parole period of 10 months. That head sentence and the non-parole period is to commence from today’s date.”
During the course of sentencing submissions, the learned sentencing magistrate invited the police prosecutor to specify the unlawful purpose for which it was alleged that the appellant was on the premises in question, that being an element of the first count in the complaint. The prosecutor responded by indicating that the unlawful purpose was to break into the premises. In support of that allegation, he tendered a set of photographs which indicated the nature of the damage to the back door of the premises and the presence of the multi-grip pliers in the back yard of the premises.
After the prosecutor had identified the alleged unlawful purpose in those terms, Mr Clarke submitted to the magistrate that it was not open for the complainant to reply on that purpose, given that the appellant had earlier been charged with the offence of attempted aggravated serious criminal trespass, a charge upon which the Crown had tendered no evidence. He further submitted that the appellant’s plea was a plea to the elements of the offence only, and that it was for the Crown to establish the purpose for which the appellant was on the premises. In the absence of any established purpose, the appropriate maximum penalty was six months imprisonment.
He submitted that this result necessarily followed from a proper application of the penalty provision in s 17 of the Summary Offences Act 1953, which relevantly reads as follows:
“17(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 two years or more - imprisonment for two years.
In any other case - $2,500 or imprisonment for six months.
(1a)...........”
In support of his submission that it was not open to the prosecutor to rely upon the stated unlawful purpose, Mr Clarke submitted to the learned sentencing magistrate, and repeated on the hearing of the appeal, that once the prosecutor accepted a plea of guilty to a lesser offence, the prosecutor could not assert as a factual basis upon which sentence was to be imposed for the lesser offence, facts which amounted to the more serious offence originally charged.
In support of that submission he referred to the decision of the Court of Criminal Appeal in R v Agius,[1] more particularly remarks which fell from Olsson J in that case:[2]
“It is not to be forgotten that the respondent was originally charged with the offence of unlawfully and maliciously causing grievous bodily harm with intent to resist or prevent lawful apprehension. That charge was, quite realistically, not proceeded with by the Crown, because there would have been obvious difficulty in proving the requisite malice or intent. A point made in the above authorities is, in effect, that an offender cannot, by an indirect means, be dealt with as if he or she had been convicted of a more serious offence. Moreover, the concession implicit in the acceptance of the plea to the lesser offence must, in the circumstances, have been taken to be that the infliction of grievous bodily harm was not an issue by way of aggravation (cf R v Overall (supra).”
[1] (2000) 210 LSJS 47.
[2] Ibid at 54.
While I accept the principle identified by Olsson J in the passage just quoted, in my view, the submission advanced by Mr Clarke based upon that principle in its application to this case is misconceived.
Here, the prosecutor answered a request by the learned sentencing magistrate to identify the unlawful purpose alleged by stating simply that the unlawful purpose was to break into the premises. Although the learned magistrate in his sentencing remarks went a little further and held that the purpose was not only to break in but to steal items which he might find in the premises, identification of the purpose in those terms, as found by the magistrate, did not result in the appellant being sentenced indirectly as though he had been convicted of the more serious offence of attempted aggravated serious criminal trespass.
The elements of the latter offence would have included knowledge on the part of the appellant of the presence in the premises of the occupier, or recklessness as to whether or not he or she was present.
Here, on the entirely different charge of being on the premises for an unlawful purpose, it was not only incumbent upon the prosecution to identify the purpose alleged, but it was clearly open to the prosecutor to identify the purpose which he in fact identified to the learned sentencing magistrate when asked to do so.
The benefit which the appellant derived by virtue of the substitution of the lesser charges for the more serious charge originally laid, was that he was exposed to a much lower maximum penalty.
The unlawful purpose which was alleged was clearly the only sensible conclusion to be drawn from the unchallenged facts, namely the appellant’s presence on the premises and the damage inflicted on the rear door of the premises.
Of course, if there was a genuine dispute as to the facts upon which the appellant was to be sentenced, it may have been necessary for the learned sentencing magistrate to have held a disputed facts hearing. But this was not a case in which there was a dispute as to the facts. Rather, the appellant, through his counsel, submitted that the facts alleged, for technical reasons, could not be alleged by the prosecutor. For the reasons which I have given, that argument was properly rejected.
The other grounds of appeal may be disposed of shortly.
As for the contention that the learned sentencing magistrate erred in failing to give sufficient credit for the appellant’s plea of guilty, while it must be accepted that the discount for the plea of guilty was low, there is no fixed tariff for such a discount. I accept the contention put by Mr Powell, counsel for the respondent, that the discount to which the appellant was entitled was to be determined against the background of the strength of the prosecution case and the fact that the appellant was caught virtually red-handed.
As to the third ground, namely the suggestion that the learned sentencing magistrate failed to give sufficient weight to the appellant’s prospects for rehabilitation, on any view of the matter, the prospects of rehabilitation could not be regarded as favourable. But in any event, the learned sentencing magistrate imposed a somewhat low non-parole period, which, in light of the appellant’s criminal history, was generous.
In the fourth ground of appeal, the appellant complains that the learned sentencing magistrate failed to sentence the appellant on the facts most favourable to him. I accept that, generally speaking, upon a plea of guilty it is the duty of the court “to act upon the version of the facts, which, within the bounds of reasonable possibility, is most favourable to the accused”.[3] However, if facts are alleged by the prosecutor, following the defendant’s plea of guilty, and no issue is joined as to those facts, the sentencing magistrate is perfectly entitled to sentence upon that basis.
[3] O’Malley v French (1971) 2 SASR 110 per Walters J at 112, citing R v Maitland (1963) SASR 332 at 335.
Furthermore, a magistrate is perfectly entitled to draw any reasonable inference which, as a matter of common sense, ought to follow from acceptance of the stated facts.
Here, for the reasons which I have given, there was no dispute as to the facts alleged, only as to the entitlement of the prosecutor to allege them. The magistrate correctly rejected the appellant’s submission as to the propriety of proceeding upon the basis of the facts as alleged by the prosecutor. Indeed, that the appellant was not only present at the premises, but was intending to break in to steal items from the premises was the only sensible construction to be placed upon the proven circumstances.
As to the final ground of appeal, namely that the sentence is manifestly excessive, while it must be accepted that a starting point of 18 months imprisonment before the allowance for the plea of guilty was close to the maximum penalty of two years imprisonment, in my opinion, the sentence was within the range of penalties which the nature of the offending and the appellant’s circumstances warranted. The offence of being on the premises for an unlawful purpose was a serious example of its type, and it should not be overlooked that the learned sentencing magistrate did not impose any penalty upon the second count of damaging property.
The appeal must be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (2000) 210 LSJS 47.
2. Ibid at 54.
3. O’Malley v French (1971) 2 SASR 110 per Walters J at 112, citing R v Maitland (1963) SASR 332 at 335.

[2002] SASC 293

5 September 2002