Police v CHARLTON - [2004] SASC 383

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v CHARLTON
Judgment of The Honourable Justice Besanko
25 November 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE
Appeal by the police against a sentence imposed by a magistrate - the respondent was convicted of serious criminal trespass in a place of residence with the intention of committing larceny - where the Magistrate discharged the respondent without penalty on condition that she enter into a bond for three years on an undertaking to be of good behaviour and to appear for sentence if she broke the bond - where the respondent had an extensive criminal record - where the respondent appears to have made attempts to reform her life and has two young children - whether the sentence imposed was so inadequate as to shake public confidence in the administration of criminal justice or failed to maintain an adequate standard of punishment - whether the Magistrate erred in sentencing the respondent as if the offence in question were an offence of being unlawfully on premises - appeal allowed - sentence of two years imprisonment imposed with a non-parole period of one year - in the particular circumstances good reason exists for suspending the sentence of imprisonment.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 170(1), s 352; Criminal Law (Sentencing) Act 1988 s 39(1), referred to.
R v Delphin (2001) 79 SASR 429, applied.
Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212, considered.

POLICE v CHARLTON
[2004] SASC 383
Magistrates Appeal

BESANKO J: This is an appeal by the police against a sentence imposed by a Magistrate. The appeal is brought as of right pursuant to s 42 of the Magistrates Court Act 1991 (“MCA”).
The respondent was found guilty of the offence of serious criminal trespass in a place of residence contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (“CLCA”). The maximum penalty for this offence is 15 years imprisonment. The particulars of the offence were that on 22^nd April 2003 at Clarence Park in the State of South Australia the respondent entered a place of residence of Luis Grbic as a trespasser with the intention of committing an offence to which s 170(1) of the CLCA applied, namely, larceny. The sentence imposed by the Magistrate was that the respondent be discharged without penalty on condition that she enter into a bond in the amount of $1,000 for three years on an undertaking to be of good behaviour and to appear for sentence if she breaks that promise. In imposing that sentence the Magistrate exercised the power in s 39(1) of the Criminal Law (Sentencing) Act 1988 (“CLSA”).
As I have said, this is an appeal by the police. The appeal was conducted on the basis that in order to succeed, the appellant must show more than that the sentence imposed by the Magistrate is manifestly inadequate. Even though the appellant has a right of appeal pursuant to s 42 of the MCA, the principles applicable to a prosecution appeal under s 352 of the CLCA apply to this appeal (Police v Cadd (1997) 69 SASR 150 at 158). In other words, an appeal will only succeed in a rare and exceptional case, and in particular, it will only succeed if the sentence imposed by the Magistrate was so inadequate as to shake public confidence in the administration of criminal justice, or failed to maintain an adequate standard of punishment for the offence of serious criminal trespass, or was the manifestation of an idiosyncratic view by the Magistrate to the offence of serious criminal trespass or offences of that type (Everett v The Queen (1994) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212).
The appellant pointed to the sentencing standard suggested by the Court of Criminal Appeal in R v Delphin (2001) 79 SASR 429 at 440 for a first offence of serious criminal trespass in a residential premises with intent to steal where a defendant has pleaded guilty. In that case, the Court of Criminal Appeal indicated that a sentence of 20 - 24 months was an appropriate sentence where a plea of guilty is involved. For a first offender, serious consideration should be given to the suspension of the sentence. The respondent in this case did not plead guilty and she is not a first offender.
I turn now to consider the circumstances surrounding the offending.
The respondent pleaded not guilty to the charge. The charge was heard by the Magistrate, and he found the charge proved and entered a conviction. The summary which follows is taken from the Magistrate’s reasons for finding the charge proved.
At about 2:00 pm on 21^st April 2003, Mr Grbic returned to his shared home on Goodwood Road to collect his motorcycle keys. He unlocked and opened the front door and walked down the passage to his bedroom. As he approached the bedroom, he sensed that something was wrong. The bedroom door was open when it should not have been, and he told the Magistrate that there was a sock on the floor. Mr Grbic entered the bedroom and was surprised to see the respondent trying to “minimise” herself behind the bedroom door. The respondent spoke to Mr Grbic, and she assured him that she had not taken anything and said something to the effect that she had entered through the unlocked and open front door following trouble with her boyfriend.
The Magistrate found that the respondent had broken into the house and hid behind the bedroom door. She had not taken anything. He considered the evidence which she gave and the evidence of her partner at the time, Mr Alvaro. The respondent told the Magistrate that she and Mr Alvaro together with their child had been driving along Cross Road and that they had an argument. Mr Alvaro opened the passenger door of the vehicle and pushed the respondent out onto the carriageway. She ran from the vehicle which subsequently left. The respondent told the Magistrate that she took up a position on Goodwood Road and that Mr Alvaro approached in the vehicle once, perhaps twice, possibly three times. When she thought that he was returning, travelling in a southerly direction, she went down a narrow alleyway next to the house that Mr Grbic was sharing fearing that she would be trapped there by Mr Alvaro who was violent and angry. She broke into the house not through the front door but through a side window to take refuge in it or to use the telephone or both. The Magistrate rejected the respondent’s evidence as not being reasonably possible. He described some of her evidence as “theatrical and obviously false embellishment”. The Magistrate did not believe the respondent, and he drew the inference that she broke into the house with a view to stealing something from it.
I turn now to examine the Magistrate’s remarks in relation to sentence.
The Magistrate referred to the fact that the offender history report of the South Australian Police Department in relation to the respondent comprised some 50 pages. He said:
“Every police officer in the State knows you. If there were a break anywhere in the State they could be excused for starting on the basis an assumption that you did it.”
The Magistrate referred to a letter which he had received from the respondent’s mother. The respondent’s mother said that the respondent was a loving mother of two children, one aged two and three quarters years and the other seven weeks. The respondent’s mother referred to her daughter’s improved outlook on life after the birth of her second child. She said that her daughter had her unqualified love and support and she asked the Magistrate to give her one last chance away from the negative influences of the prison environment. The Magistrate was impressed by the letter and he described it as biased but obviously sincere.
The Magistrate said that he gave the respondent credit for nothing in her record. He noted that she did not take anything, that she did not do any damage and that she left when she was asked to. The Magistrate said that he would treat it (being the offence) as if it were an offence of unlawfully on premises. He described the order that he was proposing to make as one which would surprise counsel for the respondent and “probably horrify the prosecution”. The Magistrate said that he would give the respondent a chance on behalf of the community largely because of the letter from her mother.
I turn now to examine the respondent’s personal circumstances.
The Magistrate’s remarks in relation to sentence do not contain a great deal of detail in terms of the respondent’s personal circumstances. However, the Magistrate had before him a pre-sentence report prepared by a community corrections officer and the offender history report to which I have previously referred.
The respondent was born on 21^st December 1967. She is 36 years of age. The respondent was educated to Year 10 level. She attempted to resume her education at Year 11 level but failed. She has been employed in a variety of jobs including waitressing, retail, car hire, clerical and as an exotic dancer. When she was about 17 years of age the respondent commenced a relationship with a man who was involved in dealing with drugs. Some time thereafter she commenced using heroin. The respondent met her current partner, Mr Alvaro, in 1993. Early in 2001 problems began to develop in the relationship. The first child of the couple was born in November 2001. The relationship between the respondent and Mr Alvaro was very volatile. The respondent spent a period of time in prison in 2003 and claims that when she was released on home detention she realised that she needed to change her ways and reform her life. The couple’s second child was born on 17^th July 2004.
The respondent has an extensive criminal record which in many respects has been linked to her involvement with drugs. The respondent asserts that the offence that she committed on 22^nd April 2003 was not drug-related, but rather coincided with a period of domestic turmoil and relationship difficulties. It is not clear to me how a period of domestic turmoil is linked to the commission of the offence of serious criminal trespass. The author of the pre-sentence report states that records of the Department of Correctional Services contain details of the relationship difficulties between the respondent and Mr Alvaro. The respondent asserts that her use of drugs has declined markedly over the past three years due to conscious lifestyle changes which she has made since she became pregnant with her first child. The respondent told the community corrections officer that she remained committed to her drug free status, and the officer said that she was favourably motivated to remain drug free. The author of the pre-sentence report notes that the respondent is currently on parole and will be supervised until August 2006. The author of the pre-sentence report expresses the opinion that the respondent’s recent offending resulted from a relapse to old behaviours due to personal and domestic problems and did not result from a relapse into drugs. The author states that the respondent has every appearance of being a responsible and loving mother to her (almost) three year old son and four week old daughter, and that the respondent is working to maintain her relationship. She is fully supported by her family. The author of the report refers to the repercussions for all concerned if the respondent is separated from her children. The author expresses the view that such separation is likely to be counter productive to what is seen to be a self-directed attempt to turn her life around. The respondent will be supervised by the Department of Correctional Services until 2006 with a range of programs available should the Court consider it necessary.
As I have said, the respondent is 36 years of age. She was first in trouble with the law when she was 15 years of age. Thereafter, she has committed criminal offences on a fairly regular basis. A number of the offences involve breaking and entering for which she has been sentenced to terms of imprisonment. She has also breached bonds which have been imposed and parole. It is fair to say that she has persistently breached the law and her offending includes numerous breaking and entering offences.
On 1^st November 2000 the respondent committed the offence of serious criminal trespass in a residential premises with intent to steal. At the time of that offending the respondent was on parole and was the subject of a suspended sentence. The respondent pleaded not guilty to the charge, but after a trial before another magistrate she was convicted. There were delays in the charge coming to trial and it was not until 28^th March 2003 that the Magistrate delivered reasons finding the charge proved. The respondent did not attend court on 28^th March 2003, and she failed to attend court on 4^th April 2003. The offence which is the subject of this appeal was committed on 22^nd April 2003. She was on bail at this time.
On 5^th June 2003 the respondent was sentenced for the offending on 1^stNovember 2000. She was sentenced to a period of imprisonment of three years two months and fifteen days with a non parole period of six months. The sentence included period of imprisonment for breaching a suspended sentence bond and breaching parole.
The Magistrate sentenced the respondent for the subject offending on 10^th September 2004.
I turn now to consider the issues on the appeal.
The Magistrate said that he treated the offence as if it were an offence of being unlawfully on premises. He appears to have done so on the basis that the respondent did not take anything and she left when she was asked to. Those facts may be correct but the Magistrate erred in taking the approach which he did. The offence was the offence of serious criminal trespass in a place of residence. The Magistrate found that charge proved because he found that the respondent entered the premises with an intention of committing an offence, namely, larceny. The error made by the Magistrate was an error of law and the sentence imposed by the Magistrate must be set aside.
Furthermore, in my opinion the sentence imposed by the Magistrate was so inadequate as to shake public confidence in the administration of criminal justice and it failed to maintain an adequate standard of punishment for the offence of serious criminal trespass and is liable to be set aside on these grounds. The offence is a serious one and the respondent has a bad criminal record including a number of convictions for breaking and entering. General and personal deterrence are important considerations in this case. I think an appropriate sentence in all the circumstances, including the fact that this is an appeal by the police and the respondent’s bad record, is two years imprisonment with a non-parole period of one year.
It seems to me that the real question is whether there is good reason to suspend the sentence. There are circumstances in favour of adopting that course. The respondent has two young children, one aged three and one aged almost six months. It does appear that she has had a difficult relationship with her current partner. There has been a reduction in her criminal activity between about 2000 and the date of the subject offence on 22^nd April 2003. Those who have had contact with the respondent report attempts to reform her life. On the other hand, there are matters suggesting that good reason to suspend the sentence does not exist. The respondent is a mature woman who has a bad record for committing offences of the type under consideration in this case. She has breached bonds and parole in the past. Her first child was only 18 months at the time she committed the subject offence. She told a patently false story about her reason for being in the residence. She committed the subject offence shortly after being convicted of a similar offence and while on bail. If I had been sentencing the respondent in the first instance, I would have concluded that good reason to suspend the sentence did not exist. However, I am re-sentencing her now in circumstances where she has been on a good behaviour bond for nearly three months. As at 1^st September 2004 there were some prospects of rehabilitation. There is a real risk that any prospect of rehabilitation will be destroyed if, in the events which have happened, I was to now order the imprisonment of the respondent. By a narrow margin I have decided that in all the circumstances including events since 1^st September 2004 it is appropriate to suspend the sentence.
The appeal should be allowed and the sentence imposed by the Magistrate set aside. A sentence of two years imprisonment should be imposed with a non-parole period of one year. I will suspend the sentence on condition that the respondent be of good behaviour for three years and I will hear counsel as to the conditions of the bond.