Perugini v Police No. Scciv-03-1452

PERUGINI v POLICE
[2004] SASC 154
Magistrates Appeal

GRAY J This is an appeal against sentence.
Introduction
The appellant was charged with multiple offences that included two counts of break and enter, five counts of criminal trespass, five counts of larceny, two counts of receiving, a number of counts of obtaining by false pretences and driving offences.
The magistrate sentenced the appellant separately for each offence. He did not proceed pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).[1]
[1] 18A. If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
The magistrate recorded convictions and imposed a 15 month period of imprisonment on each break and enter count. The same penalty was imposed on each of the counts of criminal trespass. The magistrate directed that the terms of imprisonment of 15 months be served cumulatively. This resulted in a total period of imprisonment of 105 months. The sentence of imprisonment was then backdated to commence on 27 February 2003 the date on which the appellant had been taken into custody. A non parole period of three years was fixed and backdated to the same date.
The magistrate dealt with the driving offences by imposing convictions, fines and licence disqualification orders. The magistrate recorded convictions for all the remaining offences but imposed no further penalty. There has been no appeal from those orders.
The prosecutor outlined the circumstances of the offending to the magistrate. The offences of break and enter and criminal trespass involved the taking of a considerable quantity of property and were serious offences. The prosecutor emphasised that the owners of the property had suffered as a result of the invasion of their homes as well as the loss of their personal property.
The prosecutor outlined the criminal antecedents of the appellant. The appellant had a history of dishonesty offences including offences as a juvenile. His adult offending included an offence in 1992 of threatening a person with a firearm and common assault for which he received a nine month suspended term of imprisonment. In 1996 he was convicted of a breach of a suspended sentence bond and various other offences including possession of cannabis, larceny and driving under disqualification. The suspended sentence of imprisonment was revoked. He was then imprisoned for 17 months. A non parole period of five months was fixed. He has also committed numerous minor dishonesty and traffic offences.
Counsel for the appellant outlined his client’s personal antecedents to the magistrate. Counsel pointed out that at the time of sentencing the appellant was aged 29 years and had been in custody since 27 February 2003, a period of some seven months. The appellant had pleaded guilty to all the charges at an early date following negotiations with the prosecution. He accepted full responsibility for his offending. He was said to be contrite. He had prepared his own letter of apology to the victims of his offending. It was said that the appellant should be given full credit for his guilty pleas.
Counsel for the appellant submitted that drug addiction was the cause of his offending. He had been raised in a family environment where his father was said to be a drug user. Drug taking was sanctioned in the family. Dr Cayley, a psychologist, was of the following opinion:
Mr Perugini stated that in 1994 his father had become aware of his drug use. He reported that rather than being angry about the situation his father revealed that he also used ‘speed’ recreationally. Mr Perugini reported that drug use became a common bond between them, with Mr Perugini sourcing the drug for his father. He stated that his father began to take an interest in him, and wanted them to spend time together. Mr Perugini stated that his father also included him in social activities with his male friends, but that all of this contact was related to amphetamine use.
…
In my opinion, Mr Perugini has an intense desire for social affiliation and acceptance, whether from his family or his peers. … At secondary school this desperate need was expressed in disruptive behaviour in the classroom. This situation was repeated when as a young adult, who was experimenting with amphetamines, he found his previously distant and disinterested father shared his interest in the recreational use of amphetamines. The result of this changed relationship was that his father was prepared to pay attention to him and it resulted in his inclusion within a valued social group and their associated activities.
The magistrate accepted that the appellant’s drug addiction was a cause of his offending. He noted that the appellant had ongoing family support from his mother and commented:
I have noted the contents of the psychological report which reflect really what I have already just said. Your mother is in court today, she has been here all along and there again you don’t fit the category of most people in your situation. They don’t have any support. They might have a current partner which often means they have been on the scene for about a month or so before sentencing. Your mother is a long-term support and you are very lucky for that. You have made most of your time in custody and I accept will continue to do so. You have gifts which hopefully you will make use of and put this drug lifestyle in the past. One thing you must bear in mind and hopefully if the situation arises and you are tempted to have one taste of anything you will hear my warning saying that one taste will be the beginning of your decline again.
When sentencing the magistrate said that he gave ‘great credit’ for the pleas of guilty. He also noted the appellant’s cooperation and general regard for the administration of justice. However there was no indication of the extent of the allowance made for these considerations.
Issues on Appeal
Counsel for the appellant submitted that the magistrate erred in that he:
-failed to specify the amount of the reduction on the account of the pleas of guilty and cooperation with the authorities;
-failed to have proper regard to the rehabilitative prospects of the appellant.
-erred in directing that each of the seven terms of imprisonment should be served cumulatively;
-determined penalties that were manifestly excessive;
Consideration of the Issues
Plea of Guilty, Contrition, Co-operation
It is important that sentencing courts indicate the extent of a reduction made on account of pleas and cooperation. There is a public interest in a defendant assisting the administration of justice. It is important that the community is aware that this forms the basis for reductions being made on account of pleas and cooperation.[2]. Although not an error of law in itself, failure to indicate the extent of reduction also impedes the tasks of an appeal court in reviewing an appeal against sentence[3]. As earlier observed, the magistrate allowed ‘great credit’ for the pleas. He also indicated that he took into account the appellant’s cooperation with the authorities. In these particular circumstances the magistrate might be expected to have made a reduction in the order of 40%. Such a reduction would have been appropriate. It follows that each of the sentences of 15 months’ imprisonment has probably been arrived at from a starting point of 21 months.
Section 18A
[2] Cameron v The Queen (2002) 209 CLR 339 at 343-344 and 357-358
[3] Criminal Law (Sentencing) Act 1988 (SA) section 9
As earlier observed the magistrate imposed seven separate sentences of imprisonment and then directed that the sentences be served cumulatively. This approach failed to take into account that the offences formed part of an ongoing course of conduct, were of a similar nature and were occasioned by a common cause - drug addiction.
The ‘one course of conduct’ approach is sanctioned by a considerable body of authority. In Attorney General v Tichy[4] King CJ said
The learned sentencing Judge ordered that the sentences for the two crimes be served concurrently. I think that the connection between the crimes was sufficient to justify that course, although the imposition of consecutive sentences would also have been consonant with principle. The essential thing to be borne in mind is that if the sentences are made consecutive there must be no overlapping of the factors brought into account in determining the length of each sentence; similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence.
[4] (1982) 30 SASR 84 at 85
Wells J observed: [5]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterisation rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration
[5] (1982) 30 SASR 84 at 92-93. These remarks were approved by Gaudron and McHugh JJ in Griffiths v The Queen (1988-89) 167 CLR 372 at 393
Since the decision in Tichy, Parliament amended the Sentencing Act to include section 18A. The power granted to a sentencing court by this section allows the one sentence to be fixed for all offending. As Doyle CJ observed in R v Symonds:[6]
In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.
[6] [1999] SASC 217 at [21]
This was an appropriate case for the magistrate to exercise his powers under section 18A of the SentencingAct and impose the one sentence. Alternatively there should have been an element of concurrency in the sentences imposed.
The magistrate’s approach called for the recognition that the separate accumulation of each of the sentences would give rise to a sentence that was crushing. The principle of totality could have been used to reduce the overall sentence. The magistrate did not adopt any of these alternative courses. In the circumstances his discretion miscarried.
Rehabilitation
The evidence before the magistrate suggested that the appellant did have prospects for rehabilitation. He is described as being an intelligent man with family support. He has embarked on programs in custody to address the issue of his drug addiction. It appears that the magistrate made little or no allowance for this factor.
Manifestly Excessive
In the circumstances these sentences were too severe. Although serious, no offending involved violence. Notwithstanding the serious offending and the importance of general deterrence, cumulative terms of imprisonment of 15 months for each offence were manifestly excessive.
Re-sentencing
For these reasons the magistrate erred in his sentencing approach and it is necessary for the appellant to be re-sentenced.
The appellant’s offending involved a serious invasion of the privacy of the victims and extensive property loss. The appellant’s criminal antecedents made it almost inevitable that a term of imprisonment would be imposed. A reduction in the order 40% on account of his pleas and cooperation was appropriate.
Earlier in these reasons the appellant’s criminal and personal antecedents have been discussed. His offending was serious. However the appellant still has prospects of rehabilitation.
This is a case in which it is appropriate to invoke the provisions of section 18A of the Sentencing Act. It is appropriate to have regard to the defendant’s continuing course of conduct. The offences are of a like nature and arose from a common cause. Regard has been had to the principle of totality.
The appellant should be sentenced to the one term of imprisonment of six years. A non parole period of two years should be fixed. Both the head sentence and the non parole period should be backdated to commence on 27 February 2003.
The orders of the court are as follows:
-the sentences of imprisonment for the offences of break and enter and criminal trespass being seven cumulative sentences of 15 months are set aside.
-the appellant is re-sentenced pursuant to section 18A of the Sentencing Act for the two counts of break and enter and the five counts of criminal trespass to one term of imprisonment of six years. A non parole period of two years is fixed. Both the head sentence and non parole period are backdated to commence on 27 February 2003.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 18A. If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
2 Cameron v The Queen (2002) 209 CLR 339 at 343-344 and 357-358
3 Criminal Law (Sentencing) Act 1988 (SA) section 9
4 (1982) 30 SASR 84 at 85
5 (1982) 30 SASR 84 at 92-93. These remarks were approved by Gaudron and McHugh JJ in Griffiths v The Queen (1988-89) 167 CLR 372 at 393
6 [1999] SASC 217 at [21]

[2004] SASC 154

28 May 2004