Police v JENKINS

[2011] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v JENKINS

[2011] SASC 2

Judgment of The Honourable Justice Vanstone

19 January 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION

Appeal by police against magistrate's decision to refrain from recording conviction.

Held:  appeal allowed - seriousness of the offending was such that it was inappropriate to decline to record convictions.

Criminal Law (Sentencing) Act 1988 s 10(2), s 16, s 39; Magistrates Court Act 1991 s 42, referred to.
Uznanski v Searle (1981) 26 SASR 388; Police v Cadd & Ors (1997) 69 SASR 150, discussed.
R v Delphin (2001) 79 SASR 429; Everett & Phillips v The Queen (1994) 181 CLR 295, considered.

POLICE v JENKINS
[2011] SASC 2

Magistrates Appeal

1. VANSTONE J:     The Police appeal against the penalty imposed in the Magistrates Court for two offences of dishonesty.

2. The respondent pleaded guilty to serious criminal trespass in a place of residence and theft of items from within the residence. At the time of his pleas, the respondent was a 19 year old man without prior convictions. Purporting to utilise s 16 of the Criminal Law (Sentencing) Act 1988, the magistrate declined to impose convictions and discharged the respondent upon condition that he entered into a bond in the sum of $1,000 to be of good behaviour for 18 months.

3. The argument on behalf of the appellant was in essence that the offences were simply too serious to allow such a disposition; that convictions should have been recorded and a sentence of imprisonment should have been imposed. It was argued that the disposition fails to reflect the policy of the law as expressed in s 10(2) of the Sentencing Act, namely to protect the security of the lawful occupants of residences from intruders and that the disposition was inconsistent with the principles laid down by the Court of Criminal Appeal in R v Delphin (2001) 79 SASR 429. Counsel submitted that, consistent with the attitude of the prosecution before the magistrate, suspension of any sentence of imprisonment would not be opposed. However, it was argued that if the disposition were allowed to stand, it would tend to impair public confidence in the administration of justice.

4. Counsel for the respondent, who has appeared for him throughout, argued that the disposition was within the area of discretion reserved to the magistrate, particularly given the respondent’s age and prior good record and that the failure to mention s 10(2) of the Sentencing Act could not be taken as demonstrating that the magistrate overlooked the provision.

   Background

5. The facts of the matter are of unusual seriousness.  It appears from the material before the magistrate and the police interview of the respondent that a friend of the respondent, “Chris”, was, with another man whom I shall call “V”, “house-sitting” in the relevant premises.  Because of his friendship with Chris, the respondent was aware that in the house there was a quantity of electrical equipment including a Nintendo Wii, other games and an X-Box.  The respondent acknowledged to police that about three weeks before the offending he discussed with another friend the prospect of entering the house and taking this equipment.  Two other young men were also apprised of the plan.  The respondent told police that it was intended that the equipment be sold and the profits shared between the four men.  He anticipated that the items would be worth about $2,000.

6. On the day of the offending the respondent had been at the targeted premises in company with Chris and V.  He was aware that both men were going to work that day.  Later, in company with the three young men who had discussed the plan, he drove to a location near to the house.  He parked his vehicle away from the premises and together the four men went to the house and entered through a door at the side of the house, which the respondent knew was left unlocked.  The respondent had taken a backpack to the premises and electrical equipment was packed by the four men into that, and other bags.  The respondent told police that they had been in the house for some minutes when V drove into the driveway.  When V entered the house the other three men confronted V and the respondent hid his face for fear of recognition.  All four men then left the premises and made their way back to the respondent’s vehicle.  Police connected the respondent to the crimes because he left behind his backpack, containing a letter bearing his name and address.

7. Although the respondent gave police the names of the other three young men involved, it does not appear that their involvement in the matter was further investigated.  Some of the electrical equipment stolen from the house has not been recovered.

8. Before the magistrate, submissions were made on behalf of the respondent to the effect that he lived with his parents.  Despite some learning difficulties he had completed Year 11 at High School and was currently in the third year of a sheet metal and fabrication apprenticeship.  The magistrate was told that about five months prior to the offending the respondent had suffered the end of a long-term relationship, after which he experienced some distress and problems which resulted in him having some psychological counselling.  The magistrate also had a reference from a senior constable of police who had known the respondent for nearly four years and who spoke well of him.  The officer said, in effect, that the respondent’s arrest had caused him to reflect on his behaviour and to express remorse for what he had done.  The officer expressed the view that the respondent had learned much from his experience.

9. The maximum penalties for the offences to which the respondent pleaded guilty are, for the serious criminal trespass, fifteen years imprisonment and for the theft, four years imprisonment.

   Analysis

10. It can be seen from the brief facts that I have set out that these were indeed serious offences.  They were not committed spontaneously.  Indeed they were committed in part against the friend, Chris, towards whom the respondent might have been expected to demonstrate some loyalty.  There was a degree of sophistication in the approach to the commissions of the crimes:  I refer there to the acquisition of knowledge by the respondent as to the movements of the two occupants, to the entry through a door which he knew to be unlocked and to the parking of his vehicle out of sight of the premises.

11. It is important in a case such as this to recall some of the principles relating to the recording of convictions. Powers given to courts to discharge an offender without conviction, such as those provided in s 16 and s 39 of the Sentencing Act are an important part of the court’s “armoury for use in the furtherance of the ends of justice. They are designed to assist in the rehabilitation of offenders who are judged to be suitable subjects to be dealt with under such powers”: Uznanski v Searle (1981) 26 SASR 388 per King CJ at 388-389. The use of such powers must be exercised having regard to the wider purposes of sentencing. In this case that included the policy embodied in s 10(2) of the Sentencing Act. The recording of a conviction constitutes an important part of the imposition of penalty. It forms part of the deterrent effect of sentence and marks the community’s condemnation of the offender for his conduct. Under both s 16 and s 39 the court may not proceed without recording a conviction unless it finds “good reason” for so doing.

12. In my view the magistrate fell into error when good reason was found not to record convictions in respect of the respondent’s conduct.  The facts that the respondent was only 19 years of age and of prior good character could not in this case justify that decision.  There was nothing trivial about these offences, nor were there any extenuating circumstances which reduced the respondent’s culpability.  On the contrary, as I have observed, the only matters of mitigation related to the respondent’s age and background and to the admissions he made to the police and his pleas of guilty.

13. Upon the appeal hearing a question was raised as to the applicability of the principles set down in Everett & Phillips v The Queen (1994) 181 CLR 295 to appeals by the police pursuant to s 42 of Magistrates Court Act 1991.  Counsel for the appellant argued, relying on Police v Cadd & Ors (1997) 69 SASR 150, that those principles were inapplicable in this case because this was an appeal against a non-custodial sentence. In that regard counsel relied on a statement of Doyle CJ in Cadd at 159, with which Duggan J and Mullighan J were in general agreement. The other members of the Court in Cadd, Lander and Bleby JJ, took a different view of the applicability of the Everett principles.  Nevertheless, accepting the correctness of the majority view in Cadd, I do not consider that the statement of the Chief Justice would necessarily avail the appellant here.  As I have mentioned, the appellant in this case presses for a sentence of imprisonment to be imposed, although he has no opposition to its suspension.  That course would, applying Cadd, attract the Everett principles.  In the end, it is not necessary to further analyse the applicability of those principles, because I have determined that, although the magistrate’s disposition should be set aside, no sentence of imprisonment need be imposed.

    Conclusion

14. I consider that this matter can be satisfactorily dealt with by setting aside the orders of the magistrate and, in their stead, ordering that there be convictions on both counts and that the respondent be discharged without penalty upon his entering into a bond, pursuant to s 39 of the Sentencing Act, in the sum of $1,000 undertaking to be of good behaviour and to appear before the court for sentence if he fails, during the term of the bond, to comply with it.

15. In my view such a disposition marks the seriousness of the offences and protects the community by ensuring that if there is any further breach of the law the respondent will need not only to answer for that new breach, but will also face a sentence for the current offending.

16. Accordingly, the orders I make are:

    1.     the appeal is allowed;

    2.the disposition of the magistrate, apart from orders as to costs, is set aside;

    3.     convictions on both counts are imposed;

    4.the respondent will be discharged upon his entering into a bond in the sum of $1,000 to be of good behaviour for a period of two years from today, and to appear before the court for sentence if he fails, during the term of the bond, to comply with its conditions;

    5.magistrate’s orders as to court fees, levies, prosecution costs and compensation (which I note have been paid) will remain undisturbed.