Pearce v Police No. Scgrg-98-1272 Judgment No. S6926

[1998] SASC 6926

PEARCE v POLICE

[1998] SASC 6926

MAGISTRATES APPEAL

1 This is an appeal against sentences imposed by a magistrate at Port  Augusta on 28 August 1998.
2 The magistrate sentenced the appellant to a total period of three years imprisonment with a  non-parole period of two years.  That total of three years was made up of 12 months imprisonment for fraudulent conversion, nine months for illegal use of a motorcycle and 15 months for unlawful possession of a motorcycle.  The three sentences were ordered to be served cumulatively.
3 The first of these crimes was committed at the end of 1995 or early in 1996.  The appellant was then given $2 300 to buy parts for and repair a car.  He  took the money and fled to Mount Gambier, where he stayed with his sister. At the end of that year, on 19 November 1996, the appellant was distressed by his sister being beaten up by her partner.  He decided to teach the partner a lesson by taking his motorcycle.  That is the illegal use matter the subject of the sentence of nine months imprisonment.
4 The appellant drove the motor cycle towards Adelaide.  He was stopped by police and charged with driving a vehicle whilst it was not registered, nor insured, and whilst he was not the holder of a licence.  Those matters were the subject of a hearing at Murray Bridge on 22 November 1996. 
5 On that same day, it appears that the appellant was also charged with fraudulent conversion and the illegal use committed on 19 November.  As to those matters, however,  he was bailed to appear before the Murray Bridge Magistrates Court on 16 December 1996.  He failed to appear to answer his bail agreement.  A warrant was issued for his arrest.  The information and complaint with respect to the fraudulent conversion and illegal use charges are dated 28 November 1996.
6 The appellant was apprehended almost two years later, on 24 August, this year, near Port Augusta.  He was then riding a motorcycle the subject of the unlawful possession charge.  This motorcycle was virtually brand new.  It had been unlawfully obtained from a dealer in Victoria on the very day the appellant had been released from gaol.   That day was 22 August 1998.  The appellant had gone to a dealer, obtained permission to take the motorcycle for a test drive and then kept it, travelling interstate, being intercepted in this State in the manner described in the papers.
7 The magistrate was told that the appellant’s intention to was to go through to Western Australia to a roadhouse on the Nullarbor, where he had previously worked.  The roadhouse was his refuge from his appearance at Murray Bridge on 16 December 1996.  He spent 18 months there.  The magistrate was told that during this time the appellant stayed completely out of trouble.  It was the first time he had ever had a job for that long and had ever saved money.  He bought his own motorcycle and obtained licences for motor vehicles, a motorcycle and a truck,  receiving assistance from the local police to do so.  However, after the appellant had saved some money he decided to go for a riding holiday to Tasmania.  There he met up with members of a motorcycle club.  The magistrate was told he got into trouble with members of the club and was accused of stealing. 
8 He attempted to leave Tasmania, buying himself a car and taking it on a ferry to Victoria, where members of the Victorian branch of the motorcycle club ran him off the road, taking his car and personal effects.  The appellant reported the matter to police.  It was said that he was charged with stealing the car, spending four months in prison in protective custody.  Before me, counsel for the Crown properly insisted that the adjudication of the Victorian matter has to be treated a little differently.  Counsel told the magistrate that it was whilst the appellant was in custody in Victoria that he planned to get out of gaol, taking a motorcycle and return to Western Australia.  The proper view of the facts and that declared intention are patently circumstances of aggravation going to the unlawful possession matter that was before the magistrate in this case. 
9 It was put to the magistrate that the offence  of unlawful possession was the only offence that the appellant had actually planned and that the other matters then before the magistrate being offences committed on impulse.  That submission was a bold one.  In my view, the appellant’s antecedents and the circumstances as they were before the magistrate carried the sorry message that he was a person who, but for the time when he was at the roadhouse in Western Australia, was only too quick to abuse the rights and interests of others for his own ends and advantage, even if it be the fact that often breaches of the law occurred because the appellant was, in some way, stressed.
10 There is but one ground of appeal.  It is that the sentences imposed are manifestly excessive.  The appellant’s counsel submitted that the appellant had pleaded guilty to all offences at the first opportunity and that the magistrate correctly allowed a discount on the sentences of 25 per cent.  On that basis the actual sentences before the discount, thought appropriate by the magistrate, resulted in a total sentence of four years imprisonment; 16 months for the fraudulent conversion, 12 months for illegal use and 20 months for unlawful possession. 
11 Counsel emphasised that relevant maximum sentences for those three crimes are seven years, two years and two years.  It was put that upon comparison with the maximum for unlawful possession there was an arguable case that the sentence imposed for unlawful possession itself was manifestly excessive and should be the subject of interference by this Court, whatever might be said with respect to the other two matters. 
12 A further submission was that both the individual sentences imposed and the cumulative effect of a sentence of three years imprisonment, or four years before the discount, are manifestly excessive. 
13 Reliance was placed upon the fact that the offence of fraudulent conversion was almost three years old and the offence of illegal use almost two years old, both being committed in circumstances of family crisis.  The magistrate was urged that there was a real prospect of rehabilitation, against the appellant’s work record over 18 months in Western Australia.  The magistrate was plainly impressed by that.  It was also submitted that the totality principle was not properly adhered to by the magistrate. 
14 In his sentencing remarks, the magistrate said that he was giving the appellant a discount of 25 per cent for pleading guilty.  He also said that, in addition to that, he had decided to give a sentencing package with the total period the appellant was to serve in prison being less than that he would have served if he had dealt with  the offences separately.  
15 The magistrate said that the appellant deserved a sentencing package after owning up to everything at the same time.  Within the magistrate’s remarks and the appellant’s submissions some error does appear.  However, in my view, those errors are more in favour of the appellant than they are adverse to him in this particular case.  The fact is the magistrate acknowledged that the case against the appellant was a strong one.  That is a factor going against a discount mentioned by the magistrate in any case.  That apart, the first opportunity with respect to the fraudulent conversion and illegal use charges arose at Murray Bridge in November 1996, not when the appellant was discovered upon his attempted return to Western Australia.  A discount to the extent mentioned was therefore not appropriate, certainly with respect to the first two matters.  That apart, I cannot agree with the suggestion that a total sentence of four years for the offences committed by this particular offender would, in any event, be manifestly excessive.  The appellant’s criminal history is appalling.  The number of similar offences committed on so many occasions before means that the appellant was not entitled to much leniency with respect to these offences, even if rehabilitation prospects were never better.  Sadly, the appellant has not learned the error of his ways.  He had often been dealt with leniently.  His most recent behaviour called for severe punishment.
16 It must be remembered that there was a circumstance of aggravation attaching to his failure to appear in Murray Bridge in December 1996.  Whatever might be said about rehabilitation in Western Australia, the offence committed upon release from custody was itself indicative, yet again, of the fact that the appellant has no real respect for the law, nor apparently learnt from his previous offending.  There is no explanation offered for the failure to appear at Murray Bridge.  His attitude then seems no different from that when he was released from gaol in August. 
17 I am not convinced that any of the three sentences imposed are manifestly excessive .  It was acknowledged, in the course of argument, that on the face of it the sentence for the unlawful possession, in particular, was quite high and, indeed, close to the maximum, assuming the 25 per cent allowance for the plea of guilty was properly taken into account with respect to that sentence.  Nevertheless, I do not think that in fixing that particular sentence the magistrate erred in law.  Rather, in the circumstances of this case, the magistrate imposed an apparently more severe sentence carrying into effect the principles so clearly affirmed by the High Court in Veen v R .  This was a case where it was legitimate to take into account the appellant’s antecedent behaviour and, against what had happened with respect to his release from gaol, a need to impose condign punishment, at least in the hope of deterring the offender and other offenders from committing offences again.  
18 There could be no doubt that the magistrate properly imposed cumulative sentences for separate and distinct incursions into criminal conduct.  An aggravating circumstance was that the unlawful possession was committed by the appellant at a time when he was at liberty, having failed to answer bail in respect of the fraudulent conversion and illegal use offences.  It is for that reason that I am not convinced, as I must be, that that sentence at least, must be set aside.  The sentences imposed for the fraudulent conversion and the illegal use charges are very very moderate.  Even if one should not use the lowness of those penalties as a factor going to the penalty imposed for unlawful possession in a sentencing package, I still remain unable to interfere.  When all relevant factors are taken into account the individual sentences cannot be said to be manifestly excessive, nor can the total sentencing package be said to be so crushing as to warrant any reduction.  The sentence was proportional to the totality of the appellant’s criminality.  Taking into account all the relevant factors, a lesser penalty could well have attracted criticism as an inappropriate discount for multiple offending and a repeated failure in the appellant to meet his legal obligations.
19 The appeal is dismissed.