Police v Brady No. Scgrg-98-628 Judgment No. S6712

[1998] SASC 6712

WEDNESDAY, 10 JUNE 1998

POLICE v BRADY

Magistrates Appeal
Prior J
On 21 April 1998 a magistrate imposed two sentences of imprisonment upon the respondent. One was for three months, imposed pursuant to s18a of the Criminal Law (Sentencing) Act 1988, with respect to a number of offences committed at Port Augusta on 27 January 1998. The other was a sentence of nine months imprisonment for an admitted charge of housebreaking and larceny committed at Copley on 15 November 1997. The magistrate purported to suspend the sentence of nine months imprisonment.

In this appeal, the prosecution seeks to have the suspension order set aside. The respondent does not dispute that the sentence of imprisonment ordered to be served cannot stand with the suspended sentence. The respondent concedes that this Court must acknowledge that a magistrate has no power to suspend a term of imprisonment imposed for one offence when immediately before that he, or she has imposed a term of imprisonment for other offences. Section 38(2) of the Criminal Law (Sentencing) Act expressly forbids that.
It is submitted that it was open for the magistrate to suspend both sentences of imprisonment and that on appeal this court should not intervene to require the respondent to serve any more than the three months imprisonment imposed by the magistrate with respect to the January 1998 offences. 
The prosecutor's affidavit discloses that when the respondent appeared before a magistrate at Port Augusta on 21 April 1998 she pleaded guilty to the break and entering charge laid on an information, as well as to matters contained in a separate complaint with respect to offences admitted to have been committed in January of this year. Those admitted offences were larceny of a packet of corn chips from Woolworths, assaulting and resisting a member of the Police Force and using offensive language in a public place: s131 of the Criminal Law Consolidation Act 1935; s6(1) and (2) and s7(1)(c) of the Summary Offences Act 1953.
The amount of property stolen from the house at Copley was alleged to be valued in excess of $1000.  The magistrate was given the circumstances associated with that offence and told that the respondent initially denied any knowledge of the offence.  With respect to a camera found at another person's place, the respondent first denied any knowledge of it, then said that she had found it.  After first denying being involved in the break, she admitted being involved with another woman, whom she said she assisted to enter a bathroom window.  The respondent claimed that she stole the camera and $60 cash, but was unaware of what else was taken. 
As to the January offences, the respondent was observed to have left Woolworths store in Port Augusta without paying for a packet of corn chips.  The value of the chips was but $2.29.  Police were called.  When the police arrived outside an hotel, the respondent was told she was under arrest for stealing the chips.  When being escorted to a police vehicle, the respondent punched the arresting officer once in the left side of the mouth with a clenched fist, causing slight pain and instant bleeding.  The respondent resisted the police, kicking out and thrashing at them.  The struggle was said to have lasted several minutes, the woman police officer involved being subjected to the offensive language referred to in the last count of the complaint.
The respondent did have some great personal sadness encompassing her at that time.  Unfortunately, this was not the first occasion when she had been involved in offences against the police. 
The magistrate was informed of the respondent's previous criminal history in full.  She was born on 16 December 1974.  In March of 1997 she had been imprisoned for three months for assaulting and hindering police.  She had also been convicted of resisting police in March of 1996.  She also received a suspended sentence of imprisonment for assaulting police when sentenced in September 1995 for offences committed in December 1994.  The particulars of the respondent's previous appearance before courts, including occasions when she was a juvenile, ran to some twelve pages.  The magistrate was told by the respondent's counsel that the November 1997 break and entering offence resulted from a belated 21st birthday party, when the respondent was grossly intoxicated.  It was put that she took part in the break at the suggestion of the other woman involved.  As for the offences committed in January 1998, the magistrate was told of the fact that the respondent was grieving at the death of her friend who had committed suicide some weeks before.  The magistrate was also told that the respondent was four to five months pregnant, that she had moved away from her home town of Copley and given up drinking to stay out of trouble.  Remorse about the offences was expressed.  A reference from a social worker was also tendered. 
In his sentencing remarks, the magistrate said that the respondent was not entitled to the leniency of a first offender, given her previous court appearances.  He described the offences as serious and said that for the break and enter and assault and resist police matters, she was "facing imprisonment".  The magistrate then said the only question was whether he could suspend those sentences.  He described the larceny of a packet of chips as a very minor offence, considering the value of the goods, and then referred to the respondent's antecedents, specifically mentioning convictions in January 1994, December 1994 and March 1997, being offences involving police.  The magistrate said he found it impossible to suspend any sentence with respect to the offences against police then before him, particularly as the respondent had not apologised for racist remarks made to the police officer.  He then imposed a single penalty of three months imprisonment. 
As for the dishonesty offence, he said that there was only one previous offence of that kind, in March 1996.  Having regard to the respondent's condition and other matters, the magistrate said he could "see (his) way clear for suspending sentences".  He recorded a conviction for break and entering, imprisonment for nine months, but suspended that upon the respondent entering into a bond.  The magistrate imposed a conviction and fine of $100 for the larceny of the packet of corn chips, consistent with the observations he had made about that offence.  I must say, for myself, that the magistrate erred in taking the view that he did of the shop stealing, simply because of the amount of property involved.  In my view, the magistrate should have carried into effect earlier pronouncements of this court which make plain that this kind of offending calls for severe penalties that must give effect to principles of public deterrence, particularly in the case of a person with a previous criminal history. 
In the affidavit of the prosecutor it is disclosed that a few days after the magistrate imposed these sentences, he and the respondent's counsel joined in inviting the magistrate to reconsider what he had done, given the provisions of s38(2) of the Criminal Law (Sentencing) Act. After this the magistrate acknowledged that he "may be in breach of the strict terms of" s38. He said he could overcome that by imposing a term of imprisonment of twelve months, with a non-parole period of three months but said that:
"This would seem inappropriate because the offence to which the defendant pleaded guilty does not deserve twelve months unsuspended and that decision would appear on her record which would not be fair to the defendant.  In any event, having read the Hansard debates on the particular division of the Act, which encompasses s38 previously, I do not think Parliament intended s38 to apply to the situation which faced me."
The magistrate's view of the law is plainly erroneous. It cannot be allowed to stand. If a sentence of imprisonment was appropriate for one offence and no good reason to suspend was found with respect to that, s38(2) excluded suspension as an option with respect to any sentence of imprisonment found appropriate for any other offence then before the court. Putting the matter another way, once no good reason was found to suspend on the assault police charge, the magistrate had no power to suspend on any sentence of imprisonment for any other offences then before the court.
The appellant does not seek a review of the custodial sentences actually imposed.  Such a process is subject to special considerations properly avoided in this case .  Nonetheless, it must be said that the sentence actually imposed by the magistrate for the break and entering charge was lenient in the extreme, given the tariffs declared appropriate by this Court for this sort of offence, committed by a person previously imprisoned . 
A submission put to this Court by the respondent was that on the matters, as presented to the magistrate, there was good reason to suspend both sentences of imprisonment, even if it could not be said that the imposition of a sentence of three months imprisonment for the January offending did not amount to a manifest error "in the exercise of the discretion to suspend or not". 
I cannot agree with that submission.  The respondent had to serve a custodial sentence for the breaking offence.  It was not argued that the sentence for three months for the assault matter was itself erroneous.  There was no power to suspend any sentence of imprisonment once one was imposed in the proper exercise of a sentencing discretion.  I refer again to what King CJ said in Halse 
In the circumstances before the magistrate there was absolutely no basis upon which it could be said that an immediate custodial sentence was not required in the circumstances of the particular case.  The matters that attracted sentences of imprisonment were patently serious.  There were elements of persistence in the respondent's behaviour serving as a restraint upon the propriety of contemplating suspending any sentence of imprisonment. 
The justice of this case does not call for any order of the kind now sought by the respondent.  In all the circumstances, I allow the appeal for the sole purpose of setting aside the order suspending the sentence of nine months imprisonment.  The effect of that is that the two sentences of imprisonment are concurrent.  It is for the respondent to satisfy the authorities that she should be given the benefit of home detention for some part of the time she would otherwise spend in full custody.  However, I cannot accede to the submission put to me on behalf of the respondent that this court should not subject the respondent to the prospect of detention for any more than three months, given both what the magistrate did when sentencing and the remarks he passed when the matter was called on before him.  To do so would be to perpetuate error in a manner that this Court cannot allow. 
The fact that the sentences are allowed to be concurrent is of itself, a matter of indulgence.  That is as far as I think I can properly go.  I urge the respondent to do what she can to satisfy the authorities that she should be given the benefit of some home detention.  That will be the easier if she gives immediate attention to the need to make plain to the officer assaulted in January, the remorse that has been expressed in court.  It may well do the respondent some good if she actively pursues assistance from a counsellor, or other person to ensure that this is the last time she appears before any court. 
Appeal allowed.  Order suspending the sentence of nine months imprisonment set aside.