Phillips v Police - [2014] SASC 5

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PHILLIPS v POLICE
[2014] SASC 5
Reasons for Decision of The Honourable Justice Nicholson
3 February 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - LARCENY OR STEALING
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - TRESPASS TO LAND
On 18 November 2005, the appellant, along with his two co-accused, was found guilty in the Magistrates Court of five counts of criminal trespass in a non-residential building contrary to s169(1) of the Criminal Law Consolidation Act 1935 (SA) and three counts of larceny contrary to s131 of the Criminal Law Consolidation Act. The appellant was sentenced in the Magistrates Court on 7 August 2013 to a head sentence of four years imprisonment with a non-parole period of three years.
On appeal, the appellant complained, inter alia: (1) that the sentence was manifestly excessive; (2) that the sentencing Magistrate failed to take the appellant’s rehabilitation prospects into account; and (3) of a lack of parity between the appellant’s sentence and that of his co-accused. The appellant also made an application for an extension of time within which to file his notice of appeal which was unopposed by the Crown.
Held: (1) the sentence was not manifestly excessive; (2) the Magistrate took into consideration all relevant matters, including the appellant’s personal circumstances; and (3) there was no excessive disparity between sentences.
Orders:
1. The time within which the notice of appeal is to be filed is extended to 23 October 2013.
2. Appeal is dismissed.
Criminal Law Consolidation Act 1935 s169; Criminal Law (Sentencing) Act 1935 s18A, referred to.
Corbett v Police [2006] SASC 170; Rafferty v Police [2006] SASC 169; R v Malesevic [1999] SASC 321; Kells v Police [2007] SASC 224; R v Penney [2012] SASCFC 16; Lowe v R (1984) 154 CLR 606; Postiglione v R (1997) 189 CLR 295; R v MacGowan (1986) 42 SASR 580; R v Tiddy [1969] SASR 575; McGovern v R (1983) 36 SASR 170; R v Cox (1996) 66 SASR 152; R v Kite (1971) 2 SASR 94; Charara v DPP (2001) 120 A Crim R 225, considered.

PHILLIPS v POLICE
[2014] SASC 5
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 18 November 2005, following a trial in the Magistrates Court, the appellant and two co-accused, Sean Rafferty and Paul Corbert,[1] were found guilty of five counts of serious criminal trespass in a non-residential building contrary to s169(1) of the Criminal Law Consolidation Act 1935 and three counts of larceny, contrary to s131 of the Criminal Law Consolidation Act (as that section then stood). Mr Rafferty and Mr Corbert were both sentenced on 16 December 2005 but, for reasons which will be explained shortly, the appellant was not sentenced until 7 August 2013. A head sentence of four years imprisonment with a non-parole period of three years was imposed on the appellant by the same Magistrate who heard the trial and who sentenced messrs Rafferty and Corbert. This is an appeal from that sentence. Because of the amount of time that passed between trial and sentence the appellant experienced delays in obtaining access to all relevant materials. As a consequence, the notice of appeal was filed out of time. The Crown did not oppose the granting of an extension of time. Nevertheless, for the reasons which follow the appeal is to be dismissed.
[1] In a number of the documents put before the Court on appeal, the second co-accused’s name is spelt as “Corbert”. However, in the unreported judgment following his appeal against sentence his name is spelt “Corbett” (Corbett v Police [2006] SASC 170). During this matter both the appellant and the respondent referred to the second co-accused as “Corbert” and I will do likewise.
Each of the three offenders was, insofar as is material, equally responsible for and involved in each of the offences committed. That there was no basis to distinguish between them with respect to penalty, based on their respective involvements in the offending, has not been contested. However, when determining the appropriate penalty for each of the offenders, the sentencing Magistrate (who dealt with both Mr Rafferty and Mr Corbert in 2005 as well as the appellant in 2013) was obliged to take into account their respective personal circumstances which, naturally, differed between them.
The Magistrate saw no reason to distinguish between Mr Rafferty and Mr Corbert with respect to head sentence and, in reliance on the discretion available under s18A of the Criminal Law (Sentencing) Act 1935, imposed a single head sentence of four years imprisonment backdated to 18 November 2005, the date both had been taken into custody. However, for Mr Rafferty a non-parole period of three years was imposed and for Mr Corbert a non-parole period of two years was imposed. Both Mr Rafferty and Mr Corbert had spent approximately two months in custody when first arrested. Whilst the Magistrate made no further adjustment to either sentence in this respect, it is to be inferred, from her remarks, that she had taken this period of two months into account when setting both the head sentence and the non-parole period.
Mr Rafferty appealed on the single ground that his non-parole period of three years was too high.[2] The appeal was allowed but not for the reason initially relied upon by Mr Rafferty. Doyle CJ described the head sentence as very lenient and one that “should not be taken as an appropriate level of punishment for a case of this seriousness”.[3] His Honour described Mr Rafferty as “very lucky” to receive such a lenient head sentence which resulted in him receiving a non-parole period that was also “very lenient” in all the circumstances.[4] Ultimately, the appeal was allowed because, as it transpired, the record of prior offending for Mr Rafferty that had been put before the Magistrate was incorrect. A number of moderately serious offences had been wrongly attributed to Mr Rafferty. The Chief Justice regarded the difference between the incorrect and corrected records as of significance. Through no fault of the Magistrate, she had sentenced Mr Rafferty on a wrong basis. For this reason, the Chief Justice allowed the appeal and resentenced Mr Rafferty. His Honour imposed the same single sentence of imprisonment of four years which he regarded, even in the changed circumstances, as “unduly lenient”. However, he fixed a non-parole period of two years and six months in lieu of the original three years. His Honour again emphasised that even this was a lenient non-parole period and had been affected by the lenient head sentence.
[2] Rafferty v Police [2006] SASC 169 (Doyle CJ).
[3] At [12].
[4] At [15].
The Chief Justice also made some observations with respect to Mr Corbert’s sentence. His Honour was of the view that the original difference in non-parole periods (three years as against two years) could be justified on the basis that Mr Corbert was about eight years younger than Mr Rafferty and that his prior criminal record was not as bad. According to the Chief Justice, it was open to the Magistrate to take the view that Mr Corbert’s age (he was about 25 years at the time of the offending) and his shorter record of offending warranted a more lenient approach.
As it happened, Mr Corbert also appealed. Doyle CJ also heard this appeal.[5] Mr Corbert’s appeal against head sentence was, in time, abandoned. The Chief Justice remarked that this was understandable having regard to the leniency of the head sentence.[6] The only ground of appeal ultimately pressed was that the Magistrate had failed to take into account the two months previously spent in custody on remand. The Chief Justice dismissed this ground of appeal. His Honour also described Mr Corbert’s non-parole period of two years as “moderate and arguably less than it should be, being fixed in relation to a lenient head sentence”.[7]
[5] [2006] SASC 169.
[6] At [8].
[7] At [9].
The circumstances of the offending
For present purposes, the summary of the circumstances of the offending, as set out in the respondent’s outline of argument[8] which has not been challenged will suffice.
This means that Corbert, Phillips and Rafferty were sentenced on the basis they entered the Links Hotel at Seaton on 15 May 2002 as trespassers with the intention of committing an offence namely Larceny. On the same date they entered the Elephant and Castle Hotel as trespassers with the intention of committing Larceny. On the same date they entered the Seaton Hotel as trespassers with the intention of committing Larceny and in fact stole $8,318.55 from the Seaton Hotel. On the same date they entered the Payneham Hotel as trespassers with the intention of committing Larceny and did in fact steal $16,000 from that hotel. On that date they also entered the Marryatville Hotel as trespassers with the intention of committing Larceny and stole $20,000. The next day on 16 May at North Adelaide they entered the Caledonian Hotel with the intention of committing Larceny and stole $20,000 the property of the same hotel. In essence, the offenders’ modus operandi was to attend at the hotels (perhaps along with an unidentified fifth male), engage bar staff and other workers in conversation and distract them while one or more of their number attempted to, or did enter a hotel office and steal money within.
About $64,000 was stolen. Only about $8,000 was recovered.
I agree with the submission of the respondent that the offences were serious examples of their type.
[8] At [6] and [7].
The delay in sentencing the appellant
The offences with which the appellant had been charged were committed between 15 and 16 May 2002. The trial occurred over several part heard days between 15 March 2004 and 28 July 2005. Prior to and at the time of the trial the appellant had been on simple bail. However, in breach of his bail conditions he travelled to New South Wales without permission in order to be with his family. He returned to South Australia, as necessary, to attend court and to answer his bail. He was present during the trial but returned to New South Wales after the trial. However, on 29 September 2005 (that is, before the Magistrate delivered her verdicts on 18 November 2005) the appellant was arrested and taken into custody, in New South Wales, to complete a balance of parole due to finish 10 February 2006. According to the appellant’s counsel, but for this, the appellant had intended to return to South Australia in order for the criminal proceedings against him to be finalised. A warrant for his arrest was issued by the Magistrates Court on 13 December 2005.
It appears to have been the case that the appellant was released from custody in New South Wales, on parole, in February 2006. However, he made no effort to return to South Australia to be sentenced. On 14 July 2011 the appellant was sentenced in New South Wales for further offending. He was ordered to serve five years imprisonment with a non-parole period (as served) of two years, backdated to 5 July 2011. On 5 July 2013, the appellant was extradited to South Australia after completing his new New South Wales non-parole period.
On 7 August 2013, the Magistrate sentenced the appellant to a head sentence of four years imprisonment with a non-parole period of three years, backdated to 5 July 2013, the date he was taken into custody in South Australia.
The grounds of appeal and the appellant’s submissions in brief
The notice of appeal contains four grounds of appeal.
1.The sentence in this matter was manifestly excessive.
2.The Learned Sentencing Magistrate failed to take into account the Appellant’s prospects of rehabilitation, changes in his circumstances since conviction of this matter in 2005.
3.His attempts to have the matter transferred to Adelaide for finalisation prior to his extradition in 2013.
4.The parity of sentence with his co-accused particularly with respect to non-parole period.
After his initial arrest for the 2005 offending, the appellant spent approximately four and a half months in custody on remand prior to being granted home detention bail (for approximately six months) after which he was released on simple bail. The Magistrate was aware of these matters but did not expressly identify a starting point which she then reduced. However, it can be inferred from the sentencing remarks that when setting the head sentence of four years, her Honour took these matters into account.[9]
[9] The appellant was entitled to be “credited” with the four and a half months spent in custody on remand. However, he had no “entitlement” with respect to time spent on home detention bail; such is entirely within the discretion of the sentencing officer, R v Malesevic [1999] SASC 321; Kells v Police [2007] SASC 224; R v Penney [2012] SASCFC 16 at [24]-[27] (Gray J) and the authorities there discussed.
In the appellant’s written outline it was submitted that the Magistrate failed to take into account: attempts made by the appellant to return to South Australia for sentencing as an indication of contrition; time spent in custody and on home detention bail; the fact that the appellant had been described in New South Wales as a model prisoner and a role model for other inmates; and the appellant’s expressions of contrition made to the reporting psychologist Mr Alan Fugler. However, during oral submissions the appellant focussed on what became the primary ground of appeal, as pressed, that the Magistrate erred by not taking properly into account considerations of parity when setting a non-parole period of three years.
The appellant acknowledges that he should not receive any benefit on account of the delay in sentencing given that he rendered himself unavailable for sentencing in this State. However, it was also submitted that this unavailability was not in substance the fault of the appellant and that he made efforts when in custody in New South Wales (the second time) to make the authorities in South Australia aware of the position, so that the outstanding South Australian matters could be finalised. I do not accept this submission. The appellant had a number of years following his first release from custody in New South Wales (10 February 2006) and his subsequent re-incarceration (5 July 2011) during which he could have taken steps to return or be returned to South Australia. Nevertheless, and in any event, for the purposes of this appeal I will regard his long absence from South Australia between the time of the trial and time of sentencing as, a neutral factor. Of course, the fact that the appellant, whilst in New South Wales, committed other serious offences of dishonesty such as to warrant another substantial term of imprisonment is a consideration relevant, at least, to the issue of rehabilitation and, ultimately, the extent to which the appellant might be afforded leniency.
The appellant also submitted that whilst he had a more serious criminal history than did Mr Rafferty he was, at the time of offending, considerably younger. And that these two considerations should, in a sense, cancel out each other. The appellant should be considered akin, at least, to Mr Rafferty who, after appeal, received a non-parole period of two and a half years. Indeed, it was contended in the appellant’s written outline that he should be considered in the same light as Mr Corbert who was of a similar young age at the time of the offending.
The appellant did not press an argument that the head sentence was manifestly excessive or otherwise affected by error. In any event, I, like Doyle CJ, take the view that a head sentence of four years (after all due allowances) bearing in mind the nature and number of the offences committed and this appellant’s criminal record, can only be described as a very lenient one.
Counsel for the appellant, during oral submissions focussed on the non-parole period. He conceded that a non-parole period of three years was within the permissible range available to the Magistrate but submitted that, nevertheless, this was a case where the principles of parity dictate that the non-parole period should have been something less than three years. Counsel took the Court to the parity principle or notion, as explained in decisions such as Lowe v R[10] and Postiglione v R.[11] According to counsel, the similarities in the respective circumstances of the three prisoners were such that the appellant had been left with a justifiable sense of grievance.
[10] (1984) 154 CLR 606.
[11] (1997) 189 CLR 295.
The Magistrate’s remarks on sentence
A reading of the Magistrate’s remarks indicates that she was alive to and took into account all matters relevant to the sentencing of the appellant. The considerations expressly identified by her Honour included the following:
(i)the factual basis of the offending;
(ii)a pre-sentence report obtained with respect to the appellant;
(iii)the fact that all of the offending was committed over a 24 hour period and was to be dealt with as a course of conduct;
(iv)the appellant’s personal circumstances including his unfortunate childhood and upbringing and the fact that he was brought up to a large extent by his grandmother because his mother was a heroin addict;
(v)the fact that the appellant started offending at the age of 12 when he had become involved with drugs and alcohol;
(vi) the nature of the appellant’s personal relationships, including the fact that he is the father of two young children with one of whom he is particularly concerned to maintain contact;
(vii)the fact that the appellant did make efforts to bring the South Australian criminal matters before the court in order that he could finalise all matters so that he could get on with his life;
(viii)the fact that the appellant had been imprisoned in New South Wales for a significant period of time prior to being extradited to South Australia;
(ix)the contents of the report provided by the reporting psychologist, Mr Alan Fugler, including Mr Fugler’s observations that the appellant had expressed genuine and positive motivation to avoid further offending and an intention to establish a pro-social lifestyle;
(x)the appellant’s extensive criminal history including quite serious offending committed both before and after the 2005 offending presently under consideration and the fact that the offending presently under consideration was committed only two months after being released from prison in March 2002;
(xi)the fact that Mr Rafferty had a criminal history which was not as substantial as that of the appellant; and
(xii)the fact that the appellant had spent four and a half months in custody on remand prior to being released on home detention bail and that the appellant had spent a significant period on home detention bail.
The Magistrate observed that it would have been appropriate to impose the same sentence that had been imposed on the two co-offenders “particularly, taking into account the comments made by the Chief Justice in appeals from there (sic) in matters regarding the leniency of the head sentence handed down by me and the difference in their antecedents”.[12] Elsewhere, and in the context of her Honour’s observation that both Mr Rafferty and Mr Corbert had spent only two months in gaol whereas the appellant had spent four and a half months in gaol (on remand) the Magistrate said that she did not propose to differentiate between the appellant and the other two, with respect to head sentence “given the fact that you had a much more serious criminal history than them”. As such, her Honour imposed on the appellant the same head sentence of four years. In setting the non-parole period of three years the Magistrate also took into account:
(i)the fact that the appellant had been proactive in having the matters brought to completion;
(ii)the fact that the appellant reoffended soon after returning to New South Wales; and
(iii)the fact that, because the appellant had been imprisoned until immediately before he returned to South Australia, it was difficult to assess his chances of rehabilitation. However, her Honour, in that context, again referred to the comments of Mr Fugler and also the fact that the appellant had admitted his involvement in the offending.
[12] Remarks on Penalty, 7 August 2013 at [16].
Resolution of the appeal

The proportion that the appellant’s non-parole period bears to the head sentence (75 per cent) might be considered towards the high end of the available range. However, when considered in absolute terms, a non-parole period of three years when viewed in the light of the appellant’s criminal record and the serious nature of and number of offences committed in 2005 is still to be seen as extremely lenient. Even if the Magistrate had failed to place appropriate weight on any of the matters relied upon by the appellant in his notice of appeal and submissions (as to which I am not, in any event, satisfied) I would not interfere with what was ultimately a lenient non-parole period.
As a consequence, the only real issue before the Court is whether the non-parole period should have been less for reasons of parity and bearing in mind that Mr Corbert received a non-parole period of two years and Mr Rafferty (after a successful appeal) a non-parole period of two and a half years. At its most basic, the parity principle provides that where all other things are equal persons concerned in the same crime should receive the same punishment and where other things are not equal a due discrimination should be made.[13] Of course, it is only in a broad sense that a finding might be made that all other things are equal. Every person that comes before the criminal court will have a different concatenation of personal circumstances.
[13] R v Tiddy [1969] SASR 575; McGovern v R (1983) 36 SASR 170.
Any concern with parity in this case is compounded by the leniency afforded to Mr Rafferty and Mr Corbert. The question that arises is whether he necessarily ought to be afforded the same level of leniency that was afforded Mr Rafferty and Mr Corbert. In R v MacGowan,[14] King CJ discussed some of principles relating to parity of sentencing.
The principles which should govern the Court’s approach to a situation such as this have been laid down by the High Court in Lowe v The Queen. It is now convenient to state certain principles, derived from Lowe’s case and from decisions of this Court, which should govern the approach of sentencing judges and Courts of Criminal Appeal to the sentencing of co-offenders.
Where two or more persons are sentenced by the same judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing judge. Unjustified disparities will be rectified by the Court of Criminal Appeal on appeal by the Attorney-General or the offender even though the sentence under review, considered apart from disparity, might be regarded as within the permissible sentencing range.
Sentences imposed by different judges on co-offenders should also be proportionate to the respective degrees of culpability and the individual circumstances of the co-offenders. In such circumstances, a sentencing judge should ascertain the punishment which has been imposed upon any co-offender previously sentenced. He should endeavour to assess a sentence which fairly reflects any relevant distinctions. If, however, the earlier sentence is, in the opinion of the judge imposing the subsequent sentence, outside the range of sentences properly applicable to the case, he may legitimately impose what he regards as the appropriate sentence, leaving any correction of disparity to the Court of Criminal Appeal. The sentencing judge should give reasons explaining any disparity between the sentence which he imposes and earlier sentences imposed on co-offenders.
Marked disparity of sentences imposed upon co-offenders by different judges is a ground upon which the Court of Criminal Appeal may intervene on an appeal by the Attorney-General or an offender. If both sentences are within the maximum authorized by law and are within the range of sentences properly open on the facts of the case, the Court of Criminal Appeal is not bound to intervene. In such circumstances disparity, although a ground for interference, will not necessarily lead the Court of Criminal Appeal to interfere. It is a matter for the discretion of the Court. There may be considerations against interference. The protection of the public may require the higher sentence to stand. The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest. But in the absence of strong countervailing considerations, the Court of Criminal Appeal will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case.
[14] (1986) 42 SASR 580 at 582-583 (citations omitted).
In the present case there was an appreciable difference in the prior criminal records of the appellant and Mr Rafferty and there was an even greater difference when the records of the appellant and Mr Corbert are compared. A difference in prior criminal records can justify the imposition of different sentences on co-offenders.[15] In addition, the appellant committed serious offences after and of a nature similar to the offences presently under consideration when the appellant was in New South Wales and for which he was required to serve a substantial term of imprisonment. Offences post dating the offence for which sentence is to be imposed can be relevant to the question of leniency.[16]
There is no question in this case of the appellant having been visited with a more severe sentence than he otherwise would have deserved because of the two considerations just mentioned; the only issue is the extent to which further leniency might be granted with respect to a sentence already to be regarded as lenient. The two matters identified in the previous paragraph are sufficient to distinguish the appellant’s case from that of Mr Rafferty and, a fortiori, that of Mr Corbert. I am satisfied that the sentencing Magistrate had sufficient regard to all relevant factors and that it was within the discretion available to her Honour to distinguish between the three prisoners in the way in which she did and for that distinction, insofar as the appellant is concerned, to manifest itself by a longer non-parole period.An additional six months with respect to the appellant’s non-parole period is quite justifiable given the differences between his and Mr Rafferty’s personal circumstances.
[15] R v Cox (1996) 66 SASR 152.
[16] Charara v DPP (2001) 120 A Crim R 225.
In any event, this is one of those cases where the sentence imposed on Mr Rafferty can be seen as so inadequate that to rely upon that in order to pursue parity, insofar as the appellant is concerned, should be seen as compounding the error in a way unacceptable to the public conscience. In my view, there is no real sense of grievance available to the appellant but, if there were to be, it is one that ought to be tolerated in the public interest.[17] In R v Kite[18] Bray CJ, Hogarth and Sangster JJ said this.
It has often been said, and we repeat it, that the mere fact that one convicted person has received too light a sentence is no reason why another convicted person should receive similar treatment. If there is excessive disparity, it does not follow that the one with the heavier sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence imposed on [the appellant’s co-accused] that sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved.
In my view, there has been no excessive disparity in this case and in any event the circumstances are such that the observations in Kite are apposite.
[17] See R v MacGowan at 583.
[18] (1971) 2 SASR 94 at 96.
Conclusion
I make the following orders.
1. The time within which the notice of appeal is to be filed is extended to 23 October 2013.
2.The appeal is dismissed.
I will hear the parties as to any consequential orders