Phillips v State of SA - [2007] SASC 279

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PHILLIPS v STATE OF SA
[2007] SASC 279
Judgment of The Honourable Justice David
25 July 2007
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
Criminal law – Magistrates Appeal – fisheries offences – unlawful possession of property – taking and selling abalone without a licence – sentence of imprisonment – fines – whether sentence of imprisonment should have been suspended – previous conviction for same offences – previously benefited from suspended sentence – revocation of previous suspension – whether magistrate adequately considered the appellant’s prospects for rehabilitation – whether magistrate adequately considered the mental health status of appellant’s partner – no error in exercising sentencing discretion – appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 38(1); Fisheries Act 1982 (SA) s 44; Summary Offences Act 1953 (SA) s 41(1), referred to.
Dinsdale v The Queen (2000) 202 CLR 321, applied.

PHILLIPS v STATE OF SA
[2007] SASC 279
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against a sentence imposed by a magistrate at the Mount Gambier Magistrates Court. The appellant pleaded guilty to 16 offences, contrary to s 44(1), (2)(a) and (2)(b) of the Fisheries Act 1982 (SA) (hereinafter referred to as “the Act”), and one offence of unlawful possession of property, contrary to s 41(1) of the Summary Offences Act 1953 (SA). The appellant was sentenced to 20 months imprisonment with a non-parole period of 12 months. He also received fines totalling $14,000. The appellant does not appeal against the length of the sentence imposed or the amount of the fines, but argues that the sentence should have been suspended.
Facts
The appellant and four co-accused were charged with various offences associated with illegally taking and selling abalone on four separate occasions. The appellant and two of his co‑accused went diving and took abalone from the sea using snorkelling equipment. On each occasion the abalone was then sold from the boot of a car to an undercover police officer. A total of 2,689 backlip abalone were taken, namely:
·476 abalone were taken on 19 November 2005, 408 being undersized;
·744 abalone were taken on 21 December 2005, 564 being undersized;
·602 abalone were taken on 9 January 2006, 470 being undersized; and
·867 abalone were taken on 25 January 2006, 685 being undersized.
On each occasion, the abalone was taken without the appellant holding the requisite licence. As a result of the four transactions, the appellant was charged with a total of 16 offences contrary to the Act, namely:
·four charges of selling fish taken from waters to which the Act applies without a licence (contrary to s 44(1) of the Act);
·four charges of selling illegally taken fish (contrary to s 44(2)(a) of the Act);
·four charges of possessing illegally taken fish (contrary to s 44(2)(a) of the Act); and
·four charges of possessing undersize fish (contrary to s 44(2)(b) of the Act).
The maximum penalty for each of these offences is $60,000 and/or two years imprisonment.[1]
[1] Fisheries Act 1982 (SA) s 44(1) and (2).
In addition, the appellant was charged with being in possession of unlawfully obtained property, contrary to s 41(1) of the Summary Offences Act 1953 (SA). This offence related to money which was part of the proceeds of the sale of the abalone. The maximum penalty for this offence is $10,000 or imprisonment for two years.[2]
[2] Summary Offences Act 1953 (SA) s 41(1).
Arguments on Appeal
Counsel for the appellant argues that the sentence of imprisonment should have been suspended. In particular, he argues that when deciding whether or not to suspend the sentence, the magistrate gave insufficient weight to the appellant’s attempts at rehabilitation and the psychological health of his partner. Counsel for the appellant also submits that the magistrate should have taken into account the appellant’s need to work in order to pay the fines imposed.
The decision whether or not to suspend a sentence is discretionary.[3] An appellate court will only interfere with this discretion when the sentencing court has made an error when exercising the discretion.[4] This error may arise in one of four ways, namely:
·by considering irrelevant material;
·by failing to consider relevant material;
·by making a mistake about the facts; or
·because the sentence is so obviously wrong that there must be an error, even though the nature of the error is not apparent.[5]
[3]    Criminal Law (Sentencing) Act 1988 (SA) s 38.
[4]    Dinsdale v The Queen (2000) 202 CLR 321, 324-325, 329, 334, 339-340.
[5]    Dinsdale v The Queen (2000) 202 CLR 321, 325, 329, 334, 340.
The magistrate considered the fact that the appellant had the benefit of a fortunate upbringing. The magistrate also acknowledged that the appellant has three young children, two of whom are cared for by his partner’s parents.
The magistrate referred to the appellant’s prior conviction for the same type of offending in 1999. On that occasion the appellant pleaded guilty, and was fined $3,676 and placed on a $100 bond to be of good behaviour for two years. The appellant was also convicted of dishonesty offences in 2002 and on that occasion was given the benefit of a suspended sentence. The appellant failed to comply with the terms of his bond and the suspension was revoked in July 2003.
In the sentencing remarks, the magistrate made it clear that he had taken into consideration the circumstances personal to the appellant, which were detailed in a pre-sentence report, a report of Dr Allen Fugler, psychologist, and the sentencing submissions of counsel.
At the time of the offending the appellant was a heavy user of amphetamines. The pre-sentence report states that the appellant offended in order to support his drug addiction. Although Dr Fugler’s report states that the appellant had not used amphetamines for at least a year, the pre-sentence report stated that the appellant admitted to using amphetamines the week before his interview (the date of interview being unclear, but being some time between 25 July 2006 and 11 October 2006). Given this discrepancy, the magistrate wondered what credence could be given to the appellant’s suggested desire for rehabilitation. The magistrate also referred to the appellant’s optimistic prospects for permanent employment. The magistrate therefore clearly took into account the appellant’s attempts at rehabilitation, both with respect to his drug use and his employment status.
With respect to the appellant’s partner, the pre-sentence report indicates that she suffered a drug‑induced psychosis and has been diagnosed with schizophrenia. It also refers to discussions with the appellant’s partner in which she advised that she:
…is still vulnerable insofar as her mental health is concerned. She told me that her brother suicided a few years ago and she has had trouble coping since. Further that she suffered a nervous breakdown some months ago due to the uncertain nature of Mr Phillips’ future. Her father is travelling over from Western Australia to support her…
The report from Dr Fugler states that:
He has been with his present partner Rachel for almost 13 years, the couple having three children, two of which are in the care of her mother. Contact occurs every weekend and it is the aim of your client and his partner to regain custody. Your client described his de facto as having been an amphetamine user, she also eschewing that substance in 2006 after having been admitted to the psychiatric ward of the Mount Gambier Hospital suffering with auditory and visual hallucinations. She was an inpatient for three weeks and prescribed antidepressant medication on release. From Mr Phillips’ description, his partner appears to have significant difficulties with alcohol, although has managed to gain casual employment.
The pre-sentence report also states that the appellant was not living with his partner on a full-time basis. It is therefore clear that the magistrate also had in mind the mental health of the appellant’s partner when deciding whether or not to suspend the sentence.
The magistrate did not make specific mention of the need for the appellant to work in order to repay the fines imposed. However, he must have had this in mind when sentencing, as he imposed both the fines and the sentence of imprisonment.
While the magistrate referred to the submission made by counsel for the appellant that good reason existed to suspend the sentence, he was not satisfied that this was the case. The magistrate clearly considered all the factors personal to the appellant. In particular, reference was made to the factors relevant to the appellant’s rehabilitative prospects, namely his possible employment and his attempts to cease using amphetamines. Reference was also made to the appellant’s family circumstances, the pre-sentence report and the psychologist’s report.
The sentencing magistrate therefore considered all the relevant material concerning the appellant’s personal circumstances. There is no indication that irrelevant material was considered or there was a mistake as to the facts. In addition, given the appellant’s past conviction for similar offending, and the fact that he has previously had the benefit of a suspended sentence (the suspension of which was subsequently revoked), the decision of the magistrate not to suspend the sentence is within his sentencing discretion and indicates no error.
Conclusion
The appeal is dismissed.