Police v Cleland No. Scciv-03-1650

POLICE v CLELAND
[2004] SASC 40
Magistrates Appeal: Criminal

PERRY J. (ex tempore) This is a police appeal against the penalty imposed upon the respondent in the Magistrates Court sitting at Holden Hill following her plea of guilty to various summary offences.
On one complaint she was charged with three offences all alleged to have been committed on 24 December 2002 at Elizabeth. Those offences were:
1.Larceny of a set of bathroom scales of the value of $79.99 the property of Cunningham’s Warehouse;
2.Larceny of two books, together of the value of $49.90 the property of Angus & Robertson;
3.Unlawful possession of a quantity of clothing which was reasonably suspected of having been stolen or unlawfully obtained.
The respondent pleaded guilty to all three of those offences.
On a separate complaint the respondent was charged with two offences alleged to have been committed on the same occasion on 26 January 2003. They were:
1.Knowingly supplying a quantity of cannabis to another person contrary to s 32(1)(c) of the Controlled Substances Act 1984; and
2.Introducing into a correctional institution, without the permission of the manager, an item prohibited by the regulations contrary to s 51(1)(b) of the Correctional Services Act 1982.
Upon the respondent’s plea of guilty to the second of those two counts the first was withdrawn.
Both the December and January offending was committed by the respondent while she was on parole with respect to a sentence which had been imposed for earlier offending.
The respondent’s commission of the offence presently in question meant that she was liable to serve the unexpired portion of the earlier sentence as at the date of the December offences.
The magistrate was given a letter from the Parole Board, which was intended to confirm the unexpired balance of the sentence which she stood to serve. However, the letter set out the balance unexpired as at 26 January 2003, which was the date of the later offending. The unexpired balance as at 26 January 2003 was 4 months and 24 days.
The sentencing magistrate exercised his power under s 18A of the Criminal Law (Sentencing) Act 1988 to impose a single penalty for the offences now in question. The penalty which he imposed globally with respect to those offences was a single term of imprisonment of 14 days. He ordered that that be served cumulatively upon the unexpired balance of 4 months and 24 days, which led to a total head sentence of 4 months and 38 days, which he directed to commence from the date upon which the sentence was pronounced, that is, from 5 November 2003.
It is from that sentence that the present appeal is brought.
There are two grounds of appeal which are pursued.
The first of them is that the learned sentencing magistrate failed to correctly calculate the balance of the unexpired parole period that the defendant was liable to serve as a consequence of the unsuspended sentence of imprisonment which he imposed. The second is that the sentence was manifestly inadequate.
Quite properly, Mr Bleechmore, who appeared for the respondent, conceded that the magistrate proceeded in error by dealing with the matter on the footing of the unexpired balance of the sentence which the respondent was serving at the time of her release on parole, as at 26 January 2003.
I have been furnished with a further letter, which was obtained from the Parole Board by Ms Tsogas of counsel for the appellant, which confirms that the unexpired balance of the earlier sentence as at the date of the earlier offending, that is, as of 24 December 2002, was 5 months and 26 days.
It is clear that the appeal must be allowed for the purpose of correcting the component within the sentence represented by the unexpired balance of the earlier sentence.
So that the focus of the appeal becomes the question whether or not the sentence of 14 days imprisonment was, in the circumstances, manifestly inadequate.
In that respect I have had the benefit of an affidavit from the police prosecutor, who appeared in the court below, which sets out the substance of the allegations which were put to the court.
As for the larceny counts, the respondent was seen to remove a set of bathroom scales from Cunningham’s Warehouse at Elizabeth City Centre without paying for them. A few minutes later she was seen in the Angus & Robertson book store at the same shopping centre, where she was seen to pick up two books entitled Guinness World Record.
After she had left the book store a security officer followed the respondent across a nearby car park, when she was seen to throw the two books between two cars.
By that stage, police attended and the respondent made admissions as to stealing the set of scales and the two books, which she said she had taken for Christmas presents.
As for the items of clothing found in her possession which are the subject of the unlawful possession charge, she informed the police that she had been given them by a friend. However the items appeared brand new and the price tags had been cut from them.
As for the drug offence, this was committed while the respondent was visiting an inmate with whom she had a relationship. She was seen from the control room of the prison to remove an object from under her T-shirt and hand it to the inmate. After the respondent and the inmate had left the room, a small package was found under the chair which had been occupied by the inmate. The package was found to contain a small quantity of cannabis.
When the police questioned the respondent, she declined to answer any questions.
The sentencing magistrate had the benefit of a pre-sentence report. He also had before him a police antecedents report.
At the time she was sentenced the respondent was aged 43 years. She had a depressingly long history of prior offending, stretching back to 1976. She had previously been convicted of a number of larceny charges and cognate offences, street offences, driving offences and other offences of dishonesty, including a number of charges of false pretences, and drug offences.
I was reminded by Ms Tsogas in the course of her submissions this morning that the record discloses no less than about 80 previous larceny offences.
It appears also that the respondent has had a long history of substance abuse, which includes heroin and prescribed medication. There seems little doubt that that has much to do with her persistent offending.
She is the mother of two children, aged nineteen and nine. She has had a relationship with her current partner, who is not the father of her two children, for about five years. He was the man to whom she attempted to supply cannabis.
There was other evidence before the magistrate that the respondent was currently participating in a rehabilitation program in CRS Australia, at least that is as of October 2003 when her rehabilitation consultant wrote a letter which was put before the sentencing magistrate. It appears from that letter that she had been cooperative in participating in the rehabilitation program and had shown some motivation to settle down and find employment.
Mr Bleechmore, who was counsel for the respondent in the court below, emphasised that as for the drug offence, the respondent’s partner was under pressure from others in gaol to supply them with cannabis and that he transferred that pressure to the respondent to supply him with the drug. She yielded to that pressure.
As for the shoplifting offences, Mr Bleechmore submitted that it was not the case, as had previously been the position, that she was trying to obtain money for drugs. Rather, in a state of depression due to her straightened circumstances and low income, she succumbed to the temptation to steal the items with the intention of using them for Christmas presents for her family.
In his submissions on the appeal Mr Bleechmore has emphasised the same matters. He also drew attention to the fact that in imposing the period of imprisonment of 14 days in addition to the activated balance of the previous sentence, the magistrate made reference to what he described as the “totality of the outcome”.
Ms Tsogas drew attention to the totality of the offending and submitted that the fact that it occurred while the respondent was on parole was a circumstance of aggravation. A further circumstance of aggravation was that after committing the December offences, she went on to commit further offences in January.
Those submissions certainly carry weight.
If the sentence of 14 days was to be considered in isolation, it may well be that it could properly be regarded as inadequate, to the extent that a Crown appeal might have been successful. However, it seems to me that the magistrate was right to look at the totality of the sentence which he was imposing. I am not satisfied that when that is taken into account, it can be said that the overall sentence was manifestly inadequate.
True it is that the offences required a sentence which operated to some extent to protect the public and as a specific and general deterrence, as Ms Tsogas submitted, but in all the circumstances I am not satisfied that the sentence is so manifestly inadequate as to warrant intervention by way of an appeal by the police.
There will, however, have to be an adjustment of the sentence to reflect the error made as to the unexpired balance of the earlier sentence.
The appeal will be allowed solely for the purpose of making the necessary adjustment in that respect.
The sentence under appeal is quashed and there will be substituted a sentence of 5 months and 40 days imprisonment to run from the same date as that from which the sentence under appeal runs, that is, from 5 November 2003.
There will be no order as to the costs of the appeal.

[2004] SASC 40

13 February 2004