Penny v Police No. Scgrg-98-620 Judgment No. S6768

[1998] SASC 6768

PENNY v POLICE

Perry J   (ex tempore)

The appellant appeals against sentences imposed upon him in the Magistrates Court sitting at Elizabeth for a number of offences to which he pleaded guilty which were committed between 2 December 1997 and 1 January 1998.

On one information the appellant was convicted on three counts, all of which were alleged to have occurred at Waikerie on 2 December 1997.  They were attempted break and enter of a motorcycle shop and two counts of illegal use of motor vehicles.

The appellant was charged separately on complaint with unlawful damage to a glass panelled door in an hotel at Elizabeth on 4 December 1997.

The next charge alleged that on 9 December 1997 at Elizabeth Grove the appellant was on premises without lawful excuse.  He was separately charged with having on the same day, that is, on 9 December 1997, at Elizabeth stolen a backpack and its contents together to the value of about $75.  A further complaint alleged that on 19 December 1997 he failed to comply with a condition of a bail agreement, in particular a condition which obliged him to report daily to the Elizabeth police station.

The last matter involved a complaint upon which the appellant was convicted of two offences, both having been committed on 1 January 1998 at Crystal Brook.  They were: stealing $800, and after committing that offence, giving a false name to the investigating police.

The learned sentencing magistrate exercised his powers pursuant to s18A of the Criminal Law (Sentencing) Act 1988 in imposing one penalty with respect to the information and each of the complaints alleging multiple offences, but he went on to accumulate all of the penalties imposed.  On the offences committed on 2 December 1997 (break and enter and two counts of illegal use) he sentenced the appellant to 24 months imprisonment.  On each of the five other offences or groups of offences, he imposed a penalty of one month's imprisonment.

This gave rise to a total head sentence of 29 months against which the learned sentencing magistrate imposed a non-parole period of 18 months.  The sentences of imprisonment and the non-parole period were expressed to run from the date upon which the appellant was sentenced, that is to say, 2 April 1998, although the learned sentencing magistrate took into account that leading up to that date the appellant had been in custody for some eight weeks.

Originally the appellant was released on bail, but his breach of bail coupled with his failure to attend satisfactorily for the provision of a pre-sentence report, led to the learned sentencing magistrate placing the appellant in custody for that period before sentencing him.

The appellant is a 24 year old man of Aboriginal descent.  He was 23 years of age at the time he was sentenced.  He was born in Western Australia where he has a depressingly bad criminal record.  In that State he had 124 convictions as a juvenile and 48 convictions as an adult.  He was sentenced to detention on 29 occasions as a juvenile and sentenced to imprisonment on 22 occasions as an adult.  The appellant’s offences in Western Australia include stealing, break and enter, assault, illegal use of motor vehicles, burglary and escaping custody.

What appears to be the most serious offence committed by him in Western Australia was robbery whilst armed in company.  On that offence, on 18 March 1993, the appellant was sentenced in the Supreme Court of Western Australia to four years and six months imprisonment.

At the time of the offences committed in this State, the appellant was in breach of parole upon which he had been released in Western Australia, the breach being his action in leaving that State.  In the result, on 20 September 1997 his parole in Western Australia was cancelled.

It appears from the papers that the effect of the breach of parole is that if the appellant returns to Western Australia he will serve several years gaol, being the balance of the sentence upon which he had been released on parole, together with one half of the period during which he was at large on parole.  Furthermore, it appears that he has other matters pending in the Court of Petty Sessions in Western Australia.

At the time of the offences the learned sentencing magistrate was informed that the appellant, together with a young woman with whom he was living, were on their way to Perth from Sydney.  However, according to Mr Vadasz, who appeared before me to prosecute the appeal, his client was intending to settle in South Australia.  Be that as it may, the appellant’s car engine seized near Waikerie and he walked into the town.  After unsuccessfully attempting to force a door into a motorcycle shop, he took and rode off on a Suzuki motorcycle which he found at the rear of the premises.

He rode to a nearby vineyard.  There he abandoned the motorcycle, and drove off in a Toyota 4-wheel drive which had been parked in the open, heading towards Adelaide.  Near Nuriootpa the vehicle was observed by the police and stopped.  The appellant was arrested.  He was released on bail.  It was while he was on bail that the remaining offences committed after that date, occurred.

As to the hotel offence, two Aborigines were observed scuffling in the lobby near the bar of the hotel.  The appellant, who was not one of those two, was then seen to charge the glass door of the foyer area with his arms extended in front of him.  He pushed the door, as it turns out the wrong way (it was meant to open towards him).  He did so with some force, as the glass, which was tempered glass broke.

As to the charge relating to 9 December 1997, being on premises without lawful excuse, it appears that the appellant was found on top of a garden shed.  He was taken to the Elizabeth police station where he was released on bail.  No sooner had he walked out of the police station than he lit upon a vehicle parked in a taxi stand nearby.  He saw a backpack in the front cabin which was unlocked.  He helped himself to the backpack, only to be apprehended there and then.  He was taken back to the police station and was held in custody for a period the duration of which is not clear from the papers.

As to the offence committed on 1 January 1998 at Crystal Brook, the appellant, who by then had again secured bail, was in a vehicle on his way to Port Augusta.  He stopped at a service station.  When the assistant left the till unattended, he helped himself to money from the till, amounting to $800.  After taking the money he drove off, only to be apprehended further up the road within an hour.  The money was recovered.  He was released on bail again.

The learned sentencing magistrate had the benefit of a very comprehensive pre-sentence report, and as well a report furnished by Dr Craig Raeside the psychiatrist attached to the Forensic Mental Health Services based at James Nash House.  It is clear from this material that the appellant has had a most unfortunate upbringing, with a history of early family separation.  He was raised, in the words of Dr Raeside, in a dysfunctional, violent and alcoholic home.  His anger at the circumstances of his childhood, according to the probation and parole officer who provided the pre-sentence report, is something which he takes now out in an anti social manner.

The probation officer describes him as a high profile offender who would have much difficulty leading a law abiding life in Western Australia.

Regrettably this young man is living a chronically institutionalised lifestyle.  I think that the probation officer is right when he says that that is likely to be entrenched by further incarceration in prison.  But the question arises as to how best to deal with the appellant, given the blatant nature of the offending and its consistency over the period to which I have referred.

The learned sentencing magistrate in his sentencing remarks referred to the unhappy background of the appellant and the various problems which he had faced, but felt that he had no option but to impose a custodial term.

Although one of the grounds of appeal is that the learned sentencing magistrate erred in failing to suspend the sentence, quite properly that ground was not pursued before me.

The gravamen of the argument adduced by Mr Vadasz was that the sentence of 24 months imprisonment on the offences committed at Waikerie were too high, and that the overall sentence imposed was disproportionate and offended the principle of totality.

I think it must be accepted that the sentence of 24 months for the Waikerie offences was severe.  But for attempted breaking and entering the maximum sentence was four years and eight months imprisonment, and for each of the illegal uses, treating them as first offences, two years imprisonment.  So that there was for those offences alone a potential maximum of eight years and eight months imprisonment.  Even so, the offences were committed in a short span of time and the sentence of 24 months imposed for them is substantial.

Mr Vadasz urged upon me the argument that there were signs of change in the appellant, that he wanted to settle in South Australia, that he had made enquiries about a course at TAFE, and that he had made contact with Central Districts Football Club with a view to playing football here.  I have been given very little detail about those matters and I must say that the conduct of the appellant for the short time he was in this State does nothing to encourage me to think that whatever endeavours he was making to settle here had any prospect of success.

Unfortunately, the plain fact of the matter is that the appellant is a poor candidate for successful rehabilitation.  The reality of that fact must be recognised in the sentencing process.

It seems to me that, standing back and looking at the overall sentencing package, while the 24 month sentence might seem to be severe, the sentence for the offence committed at Crystal Brook on 19 December 1997 involving blatant theft of a substantial sum of money from the till of a service station was rewarded with a penalty which could only be described as extremely modest.

Bearing that in mind, it seems to me that the overall package could not be described as crushing, or otherwise manifestly excessive.

In the notice of appeal the appellant also complains about the length of the non-parole period compared with the head sentence.  At the end of the day Mr Vadasz's arguments came down to the suggestion that the appropriate course was to allow the appeal and reduce the non-parole period.  But given the appellant's appalling record and as I have said, poor prospects of rehabilitation, I am quite unable to accede to the argument that the non-parole period was excessive.

In my opinion both the head sentence, even allowing for the eight weeks already spent in custody, and the non-parole period, were unexceptional and the overall sentence does not reveal appealable error.

I sincerely hope that this young man can do something with his life, but he must face the fact that if he continues to offend there is little option but to continue to impose custodial terms of imprisonment of increasing severity.

The appeal is dismissed.

There is no order as to costs.