Police v Bieg - [2008] SASC 261

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BIEG
[2008] SASC 261
Judgment of The Honourable Justice David
29 September 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING - OTHER MATTERS
Prosecution appeal against sentence - magistrate sentenced respondent to four years imprisonment with two year non-parole period, suspended upon respondent entering into bond - whether magistrate erred in finding prison conditions were relevant to sentence - whether magistrate erred in relying on matters in sentencing respondent without giving parties opportunity to make submissions or call evidence as to those matters.
Held: Appeal allowed on grounds (1)a and (1)c - sentence set aside and matter remitted to another magistrate for resentencing - prison conditions only relevant insofar as they might impact peculiarly on a particular prisoner - parties should be invited to make submissions and call evidence on any matters which are determinative to the sentence.
Criminal Law Consolidation Act 1935 (SA) s 20, s 134(1), s 169; Criminal Law (Sentencing) Act 1988 (SA) s 38(1), referred to.
Pantorno v The Queen (1989) 166 CLR 466; R v Godwin (2001) 80 SASR 195; R v Golding (1980) 24 SASR 161; R v Liddy (No 2) (2002) 84 SASR 231; R v Major (1998) 70 SASR 488; R v Smith (1987) 44 SASR 587, considered.

POLICE v BIEG
[2008] SASC 261
Magistrates Appeal
DAVID J.
Introduction

This is a prosecution appeal against sentence. The respondent pleaded guilty to six counts of non‑aggravated serious criminal trespass in a place of residence (contrary to s 169 of the Criminal Law Consolidation Act 1935 (SA)), eight counts of theft (contrary to s 134(1) of the Criminal Law Consolidation Act) and one count of common assault (contrary to s 20 of the Criminal Law Consolidation Act). He was given a total sentence of four years imprisonment, with a non‑parole period of two years. The sentence was suspended upon him entering into a bond to be of good behaviour with conditions.
The appellant argues that the basis of law upon which the magistrate suspended the sentence was incorrect in that he used his perception, that there was overcrowding in the South Australian prison system, as a basis for either suspending the sentence or lowering the non‑parole period. The appeal focuses, first, on whether that is a matter that can be taken into account in the sentencing process and, secondly, whether the magistrate erred in informing himself of prison conditions in South Australia without reference to the parties and without giving them the opportunity to call evidence or make submissions. The appeal also concerns the magistrate’s methodology in arriving at the sentence.
Background Facts and Charges
The respondent was born on 8 December 1977. His multiple offending, which is the subject of this appeal, can be split into three separate periods.
On 30 May 2006, the respondent committed the offences of serious criminal trespass and theft. The respondent entered a residential building at Christies Beach and stole a mobile phone and a cordless phone of the approximate value of $100.
On 16 September 2006, the respondent again committed the offences of serious criminal trespass and theft. These offences were committed whilst he was on bail for the offences committed on 30 May 2006. After forcing the rear door, he entered a residential dwelling at Noarlunga and stole jewellery and related items, reflected in one count of theft, and a PlayStation and related items, reflected in a second count of theft.
The third episode of offending occurred between 24 and 27 October 2006. On one Information, the respondent was charged with three counts of serious criminal trespass, four counts of theft and one count of common assault committed between 24 and 27 October 2006. During that period, the respondent committed three break‑ins at three different premises in the Noarlunga Downs area. Accompanying each break‑in was an episode of theft. During one of the episodes a person intervened, as a result of which, the respondent assaulted the person with a brick paver. On a second Information, the respondent was charged with serious criminal trespass and theft committed on 27 October 2006. The respondent broke into residential premises and stole a pair of shoes.
The respondent was taken into custody on 27 October 2006 in relation to his failure to complete a Community Service Order. He was due for release in respect of this matter on 12 November 2006, but whilst in custody he appeared before the Christies Beach Magistrates Court on 30 October 2006 in relation to the three counts of serious criminal trespass, four counts of theft and one count of common assault committed between 24 and 27 October 2006. He subsequently remained in custody until 18 July 2007, during which period he appeared in the Adelaide Magistrates Court on 22 March 2007 in relation to the count of serious criminal trespass and the two counts of theft committed on 16 September 2006, and on 23 March 2007 in relation to the counts of serious criminal trespass and theft committed on 27 October 2006. He was accepted into the Drug Court Program and released on home detention bail on 18 July 2007. He was terminated from the program on 10 October 2007, at which date his bail conditions were varied. The respondent eventually pleaded guilty to all of the offences, and was sentenced on 23 May 2008.
The Sentence
In total, the respondent was sentenced for six counts of serious criminal trespass, eight counts of theft and one count of assault. He was given a total head sentence of four years, with a non‑parole period of two years. The magistrate arrived at that sentence by accumulating sentences for groups of offences, coming to a starting position of 84 months. He then gave the respondent credit of 10 months for a combination of time spent in custody and time spent on home detention bail pending sentence. He also deducted 25 per cent for the respondent’s pleas of guilty. He then rounded the head sentence to a total of four years, and fixed a non-parole period of two years.
It is difficult from the sentencing remarks to conclude whether the magistrate imposed one sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), and in arriving at that sentence indicated notional head sentences, pursuant to the principles of R v Major,[1] or whether he imposed individual head sentences and accumulated them. It is, however, unnecessary for me to be concerned with that in this judgment, because it is the magistrate’s reasons for suspension of the sentence that are the real gravamen of this appeal.
[1] (1998) 70 SASR 488.
Appeal
There are two grounds of appeal:
(1)The sentencing discretion miscarried in that -
a.     the learned sentencing magistrate placed weight or undue weight on the conditions in custody in South Australia;
b.     the learned sentencing magistrate arrived at his starting point by way of setting notional head sentences for each offence by reference to a standard as opposed to by reference to the circumstances relevant to the particular offending;
c.     the learned sentencing magistrate had regard to factors that were not the subject of evidence or submissions without advising the parties of his intentions to do so and without inviting submissions or affording the parties the opportunity to call evidence.
(2)The sentence imposed was manifestly inadequate in that by suspending a period of imprisonment the sentence -
a.     failed to impose adequate punishment;
b.     failed to reflect the totality of the respondent’s criminality;
c.     failed to adequately reflect the need for deterrence (both general and specific);
d.     failed to maintain adequate standards of punishment.
In light of my conclusion, it is not necessary for me to deal with grounds (1)b, or any of grounds (2)a to (2)d.
The appellant argues that the magistrate erred in referring to conditions of custody in South Australia generally as the basis for suspending the respondent’s term of imprisonment. Further, the appellant argues that the material upon which the magistrate based his conclusion as to the conditions of custody in South Australia was not the subject of any evidence or submissions. Paragraphs [6]‑[40] of the magistrate’s sentencing remarks first appeared as a written addendum after the magistrate had sentenced the respondent.
The Sentencing Magistrate’s Remarks
It is best at the outset to refer to some of the magistrate’s remarks on the topic of the conditions of custody in South Australia. The magistrate began by stating:
These reasons explain why courts must take into account the current conditions in the prisons in this State when considering penalties that involve imprisonment. I make it clear that these remarks are not a criticism of the Department of Corrections, which is doing its best with the resources available to it.
The magistrate then outlined Australia’s international obligations as a signatory to the International Covenant on Civil and Political Rights (“the ICCPR”),[2] and noted the Standard Guidelines for Corrections in Australia,[3] based on similar guidelines adopted by a United Nations Congress, held in Geneva in 1955. After outlining what those documents provide in some detail, the magistrate said:
[2]    International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[3]    Corrective Services Ministers’ Conference, National Standard Guidelines for Corrections in Australia – 2004 (2004).
South Australia’s prisons for a long time, have not complied with the guidelines in many respects, largely as a result of overcrowding.
The source for such an opinion appears to have come, in part, from a report of the Human Rights Committee of the Law Society of South Australia, which was published in the Law Society Bulletin in February and March 2008 under the title “The State of Prisons in South Australia: A Systemic Failure”.[4] The magistrate then criticised the executive arm of government for the non‑compliance of its policies with the ICCPR, and the legislative arm of government for not incorporating the ICCPR into domestic law through legislation, concluding:
Under the Criminal Law (Sentencing) Act 1988 (SA), among other factors, a court when fixing sentence is required to have regard to “the rehabilitation of the defendant” and “any other relevant matter” (s 10(1)(m) and (o)). The overcrowding in our prisons and other non-compliance with the ICCPR and national guidelines results in rehabilitation in prisons being inhibited and this is directly relevant to sentencing. It is also a “relevant matter” in deciding whether, and for how long, to imprison.
After referring mostly to case law from the United Kingdom, the magistrate said:
I conclude from those authorities, and the court’s obligation to have regard to breaches of the ICCPR in our prisons, when imprisoning members of the community, and in accordance with the Criminal Law (Sentencing) Act 1988 (SA), that this court should have regard to overcrowding in the prisons as a relevant factor, along with deterrence, the need for punishment, the effect on the victim and all the other matters set out in s 10, in deciding whether to imprison, and for how long. When we imprison we should fix a non‑parole period that is as low as possible consistent with the other matters of sentencing principle in recognition that the present condition of prisons in this State is not satisfactory.
It is my assessment that the community and you are best served at the moment by me suspending the term of imprisonment that I must impose.
The magistrate seems to be saying that the overcrowding in prisons in this State as a general proposition, not peculiar to the respondent’s case, is a matter that should be taken into account when considering a sentence of imprisonment.
[4]    Nick Niarchos AM, Chair of the Human Rights Committee, Law Society of South Australia, “The State of Prisons in South Australia: A Systemic Failure” (Pt 1) (2008) 30(1) Law Society of South Australia Bulletin 14; Nick Niarchos AM, Chair of the Human Rights Committee, Law Society of South Australia, “The State of Prisons in South Australia: A Systemic Failure” (Pt 2) (2008) 30(2) Law Society of South Australia Bulletin 24.
Submissions on Appeal
Mr Hinton QC, for the appellant, argues that the magistrate’s conclusion is patently wrong. While there is an abundance of authority to say that prison conditions may be a factor to be taken into account in relation to the peculiar facts of an individual case, there is no authority to say that prison conditions, objectively, may generally be a factor to be taken into account in all cases. Mr Hinton argues that there is no broad principle that the conditions of the general prison population where the prisoner is to be sent are to be taken into consideration in the sentencing process.
Mr Hinton further argues that even if the magistrate was allowed to consider prison conditions generally, the way in which he informed himself of those conditions was such that the sentencing process miscarried. He submits that although a sentencing magistrate or judge is not bound by what is put and can make his or her own conclusions, if he or she comes to conclusions upon which nothing has been put, he or she should, as a matter of fairness, at least invite the parties to address those conclusions by making submissions and calling evidence.[5]
[5] See, eg, Pantorno v The Queen (1989) 166 CLR 466.
Mr Hinton further submits that at no time did the magistrate advise the parties of his intention to have regard to prison conditions and to refer to the material that he ultimately did.[6] There was no proper material before him, no opportunity for the parties to address the question, and the basis of his conclusion about prison conditions was merely his own perception. Mr Hinton argues that to use that as the basis for suspension of the sentence was erroneous and could not amount to good reason.[7]
[6] Affidavit of Hannah Margaret Smith, 31 July 2008, paras 34‑35.
[7] See Criminal Law (Sentencing) Act 1988 (SA) s 38(1).
I agree with both of Mr Hinton’s submissions. Gray J summarised the law when considering whether an allowance should be made for the fact that a prisoner may serve his or her term of imprisonment in the isolated conditions of protective custody in R v Liddy (No 2):[8]
Making an allowance for an unduly harsh prison regime creates considerable difficulty. Such an approach may lead to a court participating in both law enforcement and the administration of prisons. The latter is traditionally a matter for a different arm of government. A consideration of the doctrine of the separation of powers suggests that involvement of this kind by the courts is inappropriate.
The interaction between a defendant and the prison environment produces a unique situation. There are authorities which suggest that if a particular defendant has certain characteristics that may be aggravated by a term of imprisonment there may be a reduction in sentence. A court may consider that the prison experience would be more onerous for a particular defendant than for other prisoners if relevant and admissible evidence is provided.
…
A defendant who becomes an informer to assist the administration of justice may legitimately seek a reduction in sentence to recognise the harsh treatment and risks that will be likely to arise in prison and possibly on release. A need for a reduction may arise because of a disability or some other idiosyncratic feature of a defendant. A defendant who is blind or paralysed may also legitimately have that matter taken into account. Each case will turn on its own facts.
[Citations omitted.]
There may also be situations when a prisoner has given evidence for the prosecution and needs special protection because his life may be at risk.[9] Of course, matters of particular ill health may also be a reason why prison conditions become a factor to be considered in sentencing.[10] There is no role, other than the specific considerations of a particular prisoner, for prison conditions to play in the sentencing process. Prison conditions are matters for the Executive.
[8] R v Liddy (No 2) (2002) 84 SASR 231, 288, 291; [2002] SASC 306 [207]‑[208], [214].
[9] See, eg, R v Golding (1980) 24 SASR 161.
[10] See, eg, R v Smith (1987) 44 SASR 587; R v Godwin (2001) 80 SASR 195; [2001] SASC 295.
In my view, the way in which the magistrate informed himself, without inviting the parties to make submissions or produce evidence on the topic (in any event irrelevant), was also inappropriate.
Mr Mead, for the respondent, submits that if the appeal is allowed (which it is), I should send the matter back to another magistrate for resentencing. Mr Hinton does not disagree with this course, due to the progressive nature of the respondent’s sentencing and the material that now needs to be gathered as to his personal circumstances from the time of sentence some five months ago until now. This material would be important on resentencing. For this reason, it is unnecessary for me to deal with ground (2), as to the sentencing methodology the magistrate used.
Conclusion
I allow the appeal. The sentence is set aside and the matter is remitted for resentencing before another magistrate.