Police v El-Zaibak - [2004] SASC 380

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v EL-ZAIBAK
Judgment of The Honourable Justice White
30 November 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PARITY - CO-OFFENDERS
Respondent pleaded guilty to serious criminal trespass, aggravated serious criminal trespass, theft and illegal use - Serious criminal trespass committed in company with co-offender - Co-offender had previously been sentenced to 12 months imprisonment with 28 day non-parole period - Magistrate imposed on respondent a single sentence of imprisonment for 11 months and two weeks, which was suspended - Respondent charged with more offences than co-offender, commission of offences breached conditions of a bond, and respondent's criminal record differed from co-offender's - Magistrate erred in considering himself bound by considerations of sentencing parity - Magistrate erred in failing to revoke bond - Sentence manifestly inadequate - Appeal allowed.
Magistrates Court Act 1991, s 42; Criminal Law Consolidation Act 1935, s 134, s 169, s 170; Criminal Law (Sentencing) Act 1988, s 18A, s 58, referred to.
R v Proom (2003) 85 SASR 120; R v Delphin (2001) 79 SASR 429; R v Nemer (2003) 87 SASR 168; Police v Cadd (1997) 69 SASR 150, applied.
Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; R v Robson [1979] Crim LR 354; R v Kite (1971) 2 SASR 94; R v McIvor (2002) 136 A Crim R 366; R v Hernando (2002) 136 A Crim R 451; R v MacGowan (1986) 42 SASR 580; R v Hernando (2002) 136 A Crim R 451; R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295, considered.

POLICE v EL-ZAIBAK
[2004] SASC 380
Magistrates Appeal
WHITE J
Introduction and Background

This is a prosecution appeal, pursuant to s 42 of the Magistrates Court Act 1991, against a sentence imposed by a Magistrate.
On 18 March 2004, the respondent committed the offence of serious criminal trespass on the non-residential premises of a bakery at Ottoway, contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (“the CLCA”). That offence carried a maximum penalty of 10 years imprisonment. In the course of the trespass, the respondent stole goods to the value of $1,242.25, committing the offence of theft against s 134 of the CLCA. That offence also carried a maximum penalty of 10 years imprisonment.
On 24 March 2004, the respondent entered a house at Northfield as a trespasser, thereby contravening s 170(2) of the CLCA. On the same day he used a motor vehicle without the consent of the owner, contrary to s 86A of the CLCA. The offence of serious criminal trespass was aggravated as it was committed with a co-offender, Ms Buhagiar. That offence therefore carried a maximum period of life imprisonment, while the illegal use of the motor vehicle carried a maximum penalty of four years imprisonment and a minimum period of three months imprisonment, it being a “subsequent” offence of that type for the respondent.
The commission of each of those offences constituted a breach of a bond into which the respondent had entered on 15 January 2004 at the Port Adelaide Magistrates Court as the condition of a sentence of imprisonment being suspended. The suspended sentence related to two offences of illegal use of a motor vehicle, and one each of possession of an article used to commit an offence, larceny, and false pretences.
The respondent pleaded guilty to each of the four offences of 18 March and 24 March 2004. The Magistrate, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, imposed a single sentence of imprisonment of 11 months and two weeks in respect of those offences. That sentence was suspended upon the respondent entering into a bond to be of good behaviour for a period of one year. In relation to the respondent’s breach of the suspended sentence bond, the Magistrate imposed no penalty.
The Respondent’s Antecedents
The respondent has a significant prior criminal record. His antecedent report comprises seven pages, with many previous court appearances for offences of dishonesty. Of particular significance is the respondent’s more recent history. At the time of the offending to which this appeal relates, in addition to being subject to the suspended sentence bond referred to above, the respondent was also on parole. On 5 September 2001, the respondent had been sentenced in the District Court to imprisonment for two years and nine months for three offences namely, one count of aggravated serious criminal trespass in a place of residence, one count of common assault and one count of larceny. When the unexpired period of a previous sentence (for which the respondent was also then on parole) was added to it, the total head sentence was four years, three months and 29 days. A non-parole period of 20 months was fixed.
The Magistrate’s Reasons
The Magistrate accepted that the respondent’s offending was related to his addiction to heroin. He noted that the respondent was on a methadone programme and had been unable to obtain methadone.
It is apparent that the Magistrate’s sentencing decision was very much influenced by the sentence which had been imposed upon the co-offender, Ms Buhagiar, in respect of the offence committed on 24 March 2004. Ms Buhagiar had been sentenced by another Magistrate about one month before the respondent was sentenced on 28 July 2004. The Magistrate said:
“You are jointly charged with Tracey Lee Buhagiar who I am familiar with and who has a criminal history which makes yours pale into insignificance.
I believe both these matters should have been dealt with by the one judicial officer. Your co-offender was given a term of imprisonment of 12 months with a 28 day non-parole period. That is a sentence I would not have imposed for you, let alone her. However I believe there must be consistency in sentencing and you should receive a similar sentence, but I should also bear in mind your record is not as serious and not as extensive as hers.”
The Grounds of Appeal
The prosecution raises four grounds of appeal. First, it is said that the Magistrate misapplied the principles applicable to the sentencing of co-offenders, in that he gave inappropriate weight to the principle of sentencing parity in circumstances where the offending and personal circumstances of the respondent’s co-offender differed from those of the respondent, and where a sentence which was on par with that of the co-offender would be inadequate. Secondly, the prosecution argues that the Magistrate erred in failing to estreat the bond and revoke the suspension of the respondent’s previous sentence of imprisonment. Thirdly, the prosecution submits that the Magistrate erred in deciding to suspend the respondent’s sentence of imprisonment. Finally, it is said that the sentence is manifestly inadequate.
Parity of Sentencing with Co-Offender
The Magistrate’s remarks in respect of the sentence imposed on Ms Buhagiar, that “[t]hat is a sentence I would not have imposed for you, let alone her”, indicates that, had Ms Buhagiar not already been sentenced to what the Magistrate regarded as a very short term of imprisonment, he would have imposed a heavier penalty on the respondent and, had he had the opportunity, on Ms Buhagiar. Thus, it is apparent that the Magistrate considered himself constrained by the sentence earlier given to Ms Buhagiar. The Magistrate seems to have been under the impression that Ms Buhagiar had been sentenced for the same offences as the respondent. In this respect the Magistrate was mistaken as Ms Buhagiar was sentenced for only one of the offences for which the respondent was also charged, viz., the offence of aggravated serious criminal trespass which was committed on 24 March 2004.
As a general rule, when sentencing an offender, the sentences already imposed upon any co-offenders ought to be taken into account, so as to avoid disparity that “engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander”.[1]
[1] Lowe v The Queen (1984) 154 CLR 606 at 613 per Mason J.
This principle is one aspect of equal justice: like cases ought to be treated alike.[2] The corollary of that policy is that unlike cases need not be treated in the same way. The level of involvement and role of each offender in the crime, and the personal circumstances of each offender may provide relevant points of distinction. For example, co-operation with the police, pleas of guilty, indications of remorse, prospects of rehabilitation and previous criminal history, as well as additional offending for which the respondent is being sentenced, or which is to be taken into account in sentencing,[3] may each provide a relevant point of distinction.
[2]Lowe v The Queen (1984) 154 CLR 606 at 610-11 per Mason J; Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ.
[3] See Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ and at 617 per Brennan J.
In Lowe v The Queen[4] the question was whether the Court of Criminal Appeal should reduce the higher of two sentences on the ground that there was an inexplicable disparity between that sentence and the sentence of a co-offender, although the effect of the reduction would be to render the sentence manifestly inadequate. The majority held that disparity between sentences was not an error in itself, although it could suggest that there was an error in one of the sentences. The majority considered that a sentence should be reduced to avoid disparity, but not if that reduction would result in the sentence being opened to the criticism that it was manifestly inadequate when compared to the level of criminality of the conduct involved. In other words, it was more important that sentences be proportionate to guilt than that they be proportionate to one another.[5]
[4] (1984) 154 CLR 606.
[5]Cf R v Robson [1979] Crim LR 354 at 355. See Lowe v The Queen (1984) 154 CLR 606 at 617 per Brennan J.
That approach is consistent with the decision of the Court of Criminal Appeal in R v Kite, where Bray CJ, Hogarth and Sangster JJ said:
“It has often been said, and we repeat it, that the mere fact that one convicted person has received too light a sentence is no reason why another convicted person should receive similar treatment. If there is excessive disparity, it does not follow that the one with the heavier sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence imposed on [the appellant’s co-accused]. That sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved.”[6]
[6] (1971) 2 SASR 94 at 96.
It is recognised that there will be cases where “to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest”.[7]
[7] R v MacGowan (1986) 42 SASR 580 at 583 per King CJ.
Both Lowe and Kite involved appeals by offenders, seeking to have their sentences reduced. That is a different circumstance from the present case as this is a prosecution appeal. Additional matters must be considered on a prosecution appeal which, if successful, may result in disparate sentences for like offences.
In R v McIvor[8], two co-offenders with similar personal circumstances to each other had imposed upon them identical sentences, following the commission of two robberies. The prosecution appealed against the sentence imposed on the first, Hernando, but only after a significant delay. By the time he received notice of the prosecution’s appeal, Hernando had already been released on parole for two months. Despite finding appellable error in the sentencing process, the Court dismissed Hernando’s appeal on account of the delay.[9] The prosecution also appealed against the second of the two co-offenders, McIvor. McIvor could not rely on the factor of delay to the same extent. Nevertheless, the Court held that it would be unjust to allow the appeal against McIvor’s sentence. Heydon JA concluded:
“Though McIvor cannot rely on the factor of delay in his particular case to any effective extent, it would be likely to excite a sense of grievance in McIvor if his sentences were increased while those imposed on his co-offender remained the same. That sense of grievance would be justifiable, because the difference would not depend on anything in the objective circumstances of the crimes or in the subjective circumstances of each co-offender’s background. This legitimate sense of grievance would be likely to generate a bitter resentment antithetical to the prospects of avoiding recidivism. From this point of view McIvor is perhaps even more fortunate than Hernando, for not only did he share the same sentencing judge, he has been able to take account of a fact which is not peculiar to his own position, namely that, assuming that there were appellable errors in the sentencing judge’s approaches in the two cases, Hernando’s sentence is not to be changed by reason of the adventitious circumstance of the Crown’s gross delay.”[10]
[8] (2002) 136 A Crim R 366.
[9] See R v Hernando (2002) 136 A Crim R 451.
[10] (2002) 136 A Crim R 366 at 371-2 [11].
Heydon JA referred to the High Court’s decision in Lowe, distinguishing it on the basis that it dealt with an appeal by an offender who had received an appropriate sentence while his co-offender received an inadequate sentence, rather than the case of a prosecution appeal seeking to increase the sentence of an offender who had received the same inadequate sentence.
It is unnecessary, in this case, to say more about the decision in McIvor, or of the options available to an appellate court which finds itself in an analogous position. Although the decision would seem to militate against interference with the sentence imposed by the Magistrate, had that sentence related only to the offence of aggravated serious criminal trespass, this appeal is against a global sentence imposed by the Magistrate for four offences, only one of which had also been committed by the co-offender.
In the present case, the antecedents and personal circumstances of the respondent’s co-offender, Ms Buhagiar, are not in evidence before me. Her sentence is not before the Court and cannot be varied. However, it is apparent that the respective circumstances of the two co-offenders in the present case were quite distinguishable from one another.
First, as the Magistrate recognised, the two co-offenders had different criminal records. Although the Magistrate regarded Ms Buhagiar’s record as more serious, the respondent’s record was also very serious. In particular, the respondent had a history of prior offences involving breaking into premises, and was, at the time of this offending, on parole in respect of criminal trespass offences. The respondent’s offending also involved a breach of a good behaviour bond which had been imposed on 15 January 2004 for other offences involving illegal use of a motor vehicle.
Secondly, Ms Buhagiar was convicted of only one of the four offences for which the respondent was being sentenced, namely, aggravated serious criminal trespass in a place of residence. I consider that the respondent’s involvement in the additional offences, his being on parole at the time of the offending, and the circumstance that the offending constituted a breach of a bond, required that the respondent be sentenced in a way which was not constrained by the sentence imposed on Ms Buhagiar.
I therefore do consider that the Magistrate was not bound, as he thought, by considerations of sentencing parity to impose a short period of imprisonment on the respondent. I consider that the Magistrate erred in placing too much reliance on the sentence imposed on Ms Buhagiar. That means that the sentencing discretion has miscarried.
Estreatment of the Bond
The prosecution also submits that the Magistrate erred in the way in which he dealt with the application to estreat the good behaviour bond. The Magistrate said of the breach of bond: “The breach is admitted and there is no further order in relation thereto”. No reasons were given for that decision.
Section 58 of the Criminal Law (Sentencing) Act 1988 provides (relevantly):
“(1)   Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
…
(d)     if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
…
(3)Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a)     may refrain from revoking the suspension; and
(b)     may—
(i)     —
(A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
…
(D)revoke or vary any other condition of the bond…”
The offences which constituted the breach of the bond are serious offences, and some are of the same type as the offences in relation to which the bond was imposed in the first place. These were committed within two months of the respondent entering into the bond. The breach could not be considered trivial.
The respondent argues that there were proper grounds upon which his breach of the bond should be excused. In particular, the respondent argues that, given the need for parity between co-offenders, the Magistrate “had no other choice” but to make no further order in respect of the breach of bond.
I reject that submission. As I have already indicated, it was inappropriate for the Magistrate to give effect to the principle of parity in circumstances where there were material differences between the two offenders and where, in any event, the Magistrate regarded the sentence imposed on the co-offender as unduly lenient. Even if the Magistrate was bound to maintain parity between the sentences, the breach of bond was something which the Magistrate would have had to consider additionally. Ms Buhagiar had not, by the commission of the offence for which she was convicted, breached a suspended sentence bond. Considerations of parity could not absolve the Magistrate of the duty to consider the requirements of s 58.
The only other ground upon which it was suggested that the breach of bond could be excused was that the respondent had committed the offences of 18 and 24 March 2004 in somewhat unusual circumstances. The respondent was on a methadone programme, as part of the treatment of his heroin addiction. At the time of the offending, the respondent required a new prescription of methadone but was unable to contact his doctor because the doctor had moved. The respondent also tried to contact another doctor but was unsuccessful. In his sentencing remarks, the Magistrate said:
“You have a shocking addiction to heroin and I accept without hesitation were it not for that addiction you would not offend … Circumstances not attributable to you caused you to fail in your quest for methadone and you gave in to the insatiable desire for heroin which you purchased and committed these offences to fund that purchase of heroin.”

In my opinion the Magistrate was in error in failing to revoke the bond. I agree with the Magistrate that the circumstance he dscribed was a relevant matter to consider but I do not consider that it constituted “proper grounds” upon which the breach of bond could be excused. In some respects, it simply underlines the deliberateness of the respondent’s conduct. The significance of addiction as a mitigatory factor was recently considered by the Full Court in R v Proom (2003) 85 SASR 120. It is unnecessary to repeat what the Court there said. The reasons of the Full Court are equally applicable, in my opinion, to a consideration of whether “proper grounds” exist for the purpose of s 58.
The Sentence was Manifestly Inadequate
One of the offences for which the respondent was sentenced was a serious criminal trespass in a place of residence, committed on 24 March 2004. In R v Delphin[11] the Full Court held that, for a single criminal trespass in a place of residence, where the intention upon entry was larceny generally, a sentence of 20-24 months imprisonment was appropriate for a first offence, where a plea of guilty was involved.
[11] (2001) 79 SASR 429 at 440-1.
For the present respondent, this was not the first offence of this kind, and the trespass was aggravated, having been committed in the company of another person. In Delphin, the Court declined to set a “tariff” for aggravated serious criminal trespass. However, in that case the appellant had also committed an aggravated trespass in the company of another person and the circumstances of that offending were similar to the present respondent’s offending. The Court in Delphin began with a starting point of three years imprisonment for that offence and, having taken into account the appellant’s plea of guilty, imposed a head sentence of two years and six months imprisonment.[12] That indicates that a starting point of three years imprisonment is the minimum that could have been considered appropriate for the aggravated serious criminal trespass of 24 March 2004.
[12] (2001) 79 SASR 429 at 444.
The respondent also committed a serious criminal trespass in a non-residential building. The maximum penalty for that offence is 10 years, as opposed to 15 years for a non-aggravated serious criminal trespass in a place of residence. It may be inferred that an appropriate penalty would be less than the ordinary penalty for serious criminal trespass in a place of residence.
In Delphin, it was pointed out that the Parliament has singled out, as a separate offence, the entering of premises with the intention of committing an offence. When a separate substantive offence is committed on the premises, and that offence is separately charged, as was the theft in this case, a sentencing judge should be careful to ensure that the substantive offence is not taken into account in sentencing for the criminal trespass offence, lest the offender be punished twice for the same conduct. In this case, I consider that the lowest starting point which could properly have been imposed for both the serious criminal trespass and the theft, considered together, is about two years.
A global sentence of 11 months and two weeks was manifestly inadequate.
Principles Applicable to Prosecution Appeals
It is not sufficient, on a prosecution appeal, merely to demonstrate an error in the sentencing process. An appellate court will interfere only in “the rare and exceptional case”.
In the context of an application by the prosecution for leave to appeal to the Court of Criminal Appeal, the Chief Justice has summarised the applicable principles in the following way:
“The result of the principles established by the High Court is that to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would ‘shock the public conscience’: see R v Osenkowski (1982) 30 SASR 212 at 212–213 per King CJ; [Everett v The Queen (1994) 181 CLR 295] at 300. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case.”[13]
[13] R v Nemer (2003) 87 SASR 168 at 172 [24].
Although leave is not required for the prosecution to appeal from a decision of a Magistrate, the principles are applicable to the disposition of an appeal brought by the prosecution to a single Judge under s 42 of the Magistrates Court Act.[14]
[14]Police v Cadd (1997) 69 SASR 150 at 157-8 per Doyle CJ (with whom Mullighan J agreed at 173-4), at 172 per Duggan J; cf at 195 per Lander J and at 202 per Bleby J, dissenting.
In this case, I have identified errors of principle in the sentencing process. In this case, I do not consider that it would be appropriate simply to identify the errors but allow the sentence to stand.
I consider that this case is one in which interference, with the Magistrate’s decision, on a prosecution appeal is appropriate. The sentence imposed by the Magistrate is so far below an appropriate level of sentencing for these kinds of offences that were it to stand it would result in an erosion of sentencing standards.
Remittal to the Magistrates Court
In many cases, where the Court allows a prosecution appeal, it will proceed to re-sentence the respondent itself. In this case, however, I decline to re-sentence the respondent. I propose to remit the matter to the Magistrates Court for further consideration. A number of factors have led me to that conclusion.
First, I have not heard, nor received materials containing, a full sentencing submission. It is apparent from what I have said so far that the respondent faces the prospect of a substantial sentence, or sentences, of imprisonment being imposed. I consider that the respondent should be given the opportunity to make a complete sentencing submission before sentence is imposed.
Secondly, I was informed, on the hearing of the appeal, that the respondent has, since 28 July 2004, committed further offences for which he has been charged. I understand that the respondent may be committed to the District Court in respect of those offences. I do think it would be desirable for the respondent to be dealt with by the one court at the one time in respect of all outstanding offences. If the respondent is committed to the District Court in respect of other offences it may be appropriate for these offences to be referred to the District Court to be dealt with by the same Judge and at the same time. If the respondent is not committed to the District Court for other offences, it would be appropriate for the one Magistrate to sentence him for all offences, or alternatively, to consider referring the matter to the District Court for sentence pursuant to s 19(5) of the Criminal Law (Sentencing) Act. The exercise of the discretion by the Magistrate in this respect may also have to take account of the anticipated lapse of time before the respondent is likely to be sentenced.
Conclusion
Accordingly, for the reasons which I have given, I will allow the appeal. The orders of the Court are:
1. The appeal is allowed.
2. The sentence imposed by the Magistrate on 28 July 2004 is set aside.
3.Pursuant to s 42(5) of the Magistrates Court Act, I remit the matter for further hearing before the Magistrates Court, including for consideration of the question whether these offences should be referred to the District Court to be dealt with at the same time as other offences for which the respondent has been, or may be, committed to that Court.