Police v Lawrie

[2010] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v LAWRIE

[2010] SASC 117

Judgment of The Honourable Justice David

29 April 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence - respondent committed earlier offences and received suspended sentence bond - respondent committed latter offences while under terms of the bond - pleaded guilty in the Adelaide Magistrates Court to the latter offences - magistrate refused to revoke earlier suspended sentence and instead imposed a further suspended sentence and extended duration of the bond - whether magistrate erred in not revoking the suspended sentence relating to earlier offending - whether magistrate erred in suspending sentence for latter offending.

Held:  Magistrate erred in not revoking suspended sentence relating to earlier offending - magistrate erred in suspending prison sentence for latter offending - magistrate's sentence set aside - respondent resentenced.

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - OTHER MATTERS

Criminal Law (Sentencing) Act 1988 (SA) s 38(1), s 38(2), s 58(3), s 58(4)(a), referred to.
R v Buckman (1988) 47 SASR 303, applied.
Lawrie v Director of Public Prosecutions [2008] SASC 21, discussed.

POLICE v LAWRIE
[2010] SASC 117

Magistrates Appeal

1. DAVID J.              The South Australian Police (“the appellant”) appeals pursuant to s 42 of the Magistrates Court Act 1991 (SA) against the sentence imposed on the respondent in the Magistrates Court on 5 February 2010.

2. On 18 October 2007, the respondent was sentenced to ten years imprisonment with a non‑parole period of four years, which was suspended upon him agreeing to enter into a bond to be of good behaviour for a period of four years. That sentence was imposed in the Magistrates Court for a series of offences which were committed between 12 October 2004 and 21 July 2007.

3. The respondent appealed against the severity of that sentence to the Supreme Court and Kelly J allowed the appeal and reduced the sentence to a period of six years and six months, with a non‑parole period of three years.[1] Kelly J also suspended the sentence upon the appellant entering into a bond to be of good behaviour on the same conditions as those imposed in the Magistrates Court. The offences, which I will hereinafter refer to as “the earlier offending”, are set out in the following table from Kelly J’s judgment:

   TABLE OF OFFENCES

   [1]    Lawrie v Director of Public Prosecutions [2008] SASC 21.

Offence No.			Date of Offence / Date Pleaded Guilty			Offence			Summary of Facts			Maximum Sentence
1			Offence date – 12/10/2004 Guilty plea entered – 30/10/2006			Theft			The appellant stole alcohol from Liquorland.			Theft Maximum Penalty – Section 134(1) Criminal Law Consolidation Act 1935 Imprisonment for 10 years.
2			Offence date – 13/10/2004 Guilty plea entered – 18/08/2005			Illegal Use			The appellant stole a car from the car park of the Castle Plaza Shopping Centre at Edwardstown.			Illegal Use of a Motor Vehicle Maximum Penalty – Section 86A Criminal Law Consolidation Act 1935 First offence – 2 years imprisonment. Subsequent offence – imprisonment for not less than 3 months and not more than 4 years. The court must order that the person be disqualified from holding or obtaining a driver’s licence for 12 months
3			Property damage			Property Damage – less than $2500 damage Maximum Penalty – Section 85(3) Criminal Law Consolidation Act 1935 Imprisonment for 2 years.
4			Drive Unlicensed			Drive Unlicensed (never held a licence) Maximum Penalty - Section 74(2) Motor Vehicles Act 1959 First offence – fine of $2500 Subsequent offence - $5000 or imprisonment for 1 year.
5			Inadequate Lights
6			Refuse Breath Analysis			Refuse Breath Analysis Maximum penalty – Section 47E (3) Road Traffic Act 1961 For a first offence – a fine not less than $700 and not more than $1200. Disqualification from holding or obtaining a driver’s licence for a period of not less than 12 months.
7			Offence date – 9-10/03/ 2005 Guilty plea entered -13/11/2006			Non-aggravated Serious Criminal Trespass (Place of Residence)			The appellant broke into residential premises in Salisbury North.  The occupants were not at home at the time of the offence.			Serious Criminal Trespass in a place of residence Maximum Penalty for a non-aggravated offence Section 170(1) Criminal Law Consolidation Act 1935 Imprisonment for 15 years.
8			Illegal Use of a Motor Vehicle			He stole the car keys from the house and took the occupant’s vehicle.
9			False name			Upon arrest, the appellant refused to give his correct name to the police.			False Name Maximum Penalty – Section 74A(3) Summary Offences Act 1953 $1250 fine or 3 months imprisonment.
10			Offence date – 14/09/2005 Guilty plea entered – 26/09/2006			Theft			The appellant stole a handbag containing credit cards, money and mobile phone, totalling approximately $500 from a victim at the London Tavern on North Terrace.			Deception – basic offence Maximum Penalty – Section 138 Criminal Law Consolidation Act 1935 Imprisonment for 10 years.
11			Deception			The appellant used a stolen credit card to purchase a return flight to Sydney, costing $455.40.
12			Attempt Deception			The appellant attempted to use a stolen credit card to purchase goods worth $20.			Attempt Deception Maximum Penalty – Section 270A Criminal Law Consolidation Act 1935 The penalty for an attempt to commit an offence shall not exceed a maximum of two thirds of the maximum penalty prescribed for the offence. Maximum penalty for deception 10 years.
13			Deception			The appellant used a stolen credit card to purchase goods to the value of $23.60.
14			Deception			The appellant used a stolen credit card to purchase $155 worth of goods.
15			Deception			The appellant used a stolen credit card to purchase $78.08 worth of goods.
16			Deception			The appellant used a stolen credit card to purchase a $24.09 taxi fare.
17			Deception			The appellant used a stolen credit card to purchase a $14.43 taxi fare.
18			Deception			The appellant used a stolen credit card to purchase $219.80 worth of clothing.
19			Deception			The appellant used a stolen credit card to purchase $399 worth of goods.
20			Deception
21			Offence date – 26/09/2005 Guilty plea entered – 13/11/2006			Theft			The appellant stole a purse containing mobile phone and cash to the value of $560 from a patron at the Gepps Cross Hotel. The victim’s husband apprehended the appellant and the purse was returned to the victim.
22			Offence date – 10/10/2005			Theft			The appellant stole a purse from a victim at the Tea Tree Plaza Shopping Centre.
23			Guilty plea entered – 13/11/2006			Deception			The appellant used a stolen credit card to purchase goods to the value of $486.98.
24			Deception			The appellant used a stolen credit card to purchase clothing valued at $299.65.
25			Deception			The appellant used a stolen credit card to purchase clothing, worth $526.30.
26			Deception			The appellant used a stolen credit card to purchase electronic goods to the value of $499.
27			Attempt Deception			The appellant attempted to purchase clothing valued at $1019.35 using a stolen credit card.  The transaction was denied.
28			Theft			The appellant stole a Myer Card from a victim.
29			Offence date – 11/10/2005 Guilty plea			Theft			The appellant stole a purse, containing $200 and credit cards from a victim at the Modbury Shopping Centre.
30			entered – 13/11/2006			Attempt Deception			The appellant twice attempted to use the stolen credit cards to purchase various goods from a bottle shop.
31			Attempt Deception			The appellant twice attempted to use the stolen credit cards to purchase various goods from a bottle shop.
32			Offence date – 20/10/2005 Guilty plea			Drive Unlicensed			The appellant drove unlicensed. He had never been authorised to drive a motor vehicle.
33			entered – 13/11/2006			Theft			The appellant stole alcohol to the value of $165.97 from the Enfield Hotel.
34 35 36			Offence date – 7/12/2005 Guilty plea entered – 30/10/2006			Breach Bail Breach Bail Breach Bail			The appellant breached the conditions of bail by consuming alcohol, cutting off his home detention electronic monitoring bracelet and leaving the residential premises.			Breach Bail Maximum Penalty – section 17 (1) Bail Act 1985 $10,000 fine or imprisonment for 2 years.
37			Offence date – 8/12/2005			Assault			The appellant assaulted a victim by using force to push her.			Assault  - basic offence Maximum penalty – section 20 Criminal Law Consolidation Act 1935
38			Guilty plea entered – 26/09/2006			Theft			He then stole her purse, containing bank cards and cash totalling approximately $120.			Imprisonment for 2 years
39			Attempt Deception			The appellant then attempted to use the credit card to purchase goods to the value of $258.84.
40			Breach Bail
41			Offence date – 9/12/2005 Guilty plea entered – 30/04/2007			Breach Bail
42			Offence date – 10/12/2005			Theft			The appellant stole a wallet containing a credit card and driver’s licence.
43			Guilty plea entered – 26/09/2006			Theft			The appellant stole a motor vehicle from North Terrace.
44			Deception			The appellant used a stolen credit card to purchase $243.91 worth of goods.
45			Deception
46			Theft			The appellant stole a mobile phone worth about $700 from a patron at the Adelaide Casino.
47			Deception			The appellant used a stolen credit card to purchase $75.15 worth of goods.
48			Attempt Deception			The appellant attempted to purchase goods valued at $133.
49 50			Deception Deception			The appellant used a stolen credit card to make two separate purchases at a service station, with a total value of $91.40.
51			Deception			The appellant used a stolen credit card to purchase $200 worth of goods.
52			Deception			The appellant used a stolen credit card to purchase $120.20 worth of goods.
53			Theft			The appellant stole a Mobil fuel card worth $20.
54			Deception			The appellant used a stolen credit card to purchase $88.35 worth of goods.
55			Attempt Deception			The appellant used a stolen credit card to purchase a $100 mobile phone card.
56			Offence date – 30/12/2005			Theft			The appellant stole a mobile phone, wallet, cash and credit cards, totalling approximately $400.
57			Guilty plea entered – 26/09/2006			Deception			The appellant used the stolen credit card to purchase a $9.55 taxi fare.
58			Deception			The appellant used the stolen credit card to purchase $140.90 worth of goods.
59			Deception			The appellant used the stolen credit card to purchase a $18.95 taxi fare.
60			Deception			The appellant used the stolen credit card to purchase an $18.95 pair of sunglasses.
61 62			Attempt Deception Attempt Deception			He then attempted to use the credit card a few minutes later to purchase a $99 mobile phone card. This transaction was denied. The appellant attempted to purchase approximately $130 worth of goods.
63 64			Offence date – 06/01/2006 Guilty plea entered – 26/09/2006			Theft Property Damage			The appellant stole a motor vehicle The appellant damaged the electric security gates of property of CHU Underwriters.  The damage amounted to more than $2500, but less than $30,000.			Property Damage – more than $2500 but less than $30,000 damage Maximum Penalty – Section 85(3) Criminal Law Consolidation Act 1935 Imprisonment for 3 years.
65 66			Offence date – 07/02/2006 Guilty plea entered – 26/09/2006			Illegal Interference Theft			The appellant interfered with a motor vehicle and stole the credit cards and driver’s licence of the victim.			Illegal Interference Maximum Penalty – Section 86A Criminal Law Consolidation Act 1935 For a first offence – imprisonment for 2 years. For a subsequent offence – imprisonment for not less than 3 months and not more than 4 years.
67			Offence date – 08/02/2006 Guilty plea			Deception			The appellant used a stolen credit card to purchase goods at a service station totalling approximately $197.67.
68			entered – 26/09/2006			Deception			The appellant used a stolen credit card to purchase goods valued at approximately $259.29.
69			Deception			The appellant used a stolen credit card to purchase $40.21 worth of items.
70			Deception			The appellant used a stolen credit card to purchase $127.83 worth of items.
71 72 73			Offence dates  - 2/05/2007 05/05/2007 10/05/2007 Guilty plea entered – 23/05/2007			Theft Breach Bail Breach Bail			The appellant stole alcohol from the Buckingham Arms Hotel. The appellant twice breached the curfew conditions of bail by not being home between the hours of 17:00 pm and 10:00 am.
74			Offence date – 21/06/2007 Guilty plea entered – 08/08/2007			Breach Bail			The appellant breached the conditions of the Home Detention Bail imposed by the Drug Court Program.  There was a condition not to consume alcohol or drugs not medically prescribed.  On arrest, the appellant appeared under the influence of alcohol and was not at the correct residing address.

1. Between 8 February 2009 and 6 May 2009, whilst on the suspended sentence bond imposed by Kelly J, the respondent committed a range of further offences, including four counts of theft, one count of deception, two counts of stating false personal details, one count of failing to pay a taxi fare and one count of failing to comply with bail conditions.[2] I will hereinafter refer to these offences as “the latter offending”.

   [2]    Details set out in the affidavit of Christopher Andrew Brannan dated 6 April 2010.

2. The respondent pleaded guilty to the latter offending in the Adelaide Magistrates Court on 2 December 2009. The appellant submitted to the sentencing magistrate that the latter offending was such that the suspended sentence imposed by Kelly J should be revoked. The respondent submitted that a further suspended sentence of imprisonment should be ordered in relation to the latter offending.

3. On 5 February 2010, the sentencing magistrate imposed a term of imprisonment of 12 months for the latter offending, and reduced that by nine months to allow for time spent in custody, leaving a sentence of three months. The magistrate found that there was good reason to suspend that sentence, and did so upon the appellant entering into a bond in the sum of $200 to be of good behaviour for three years, with conditions. The magistrate also refused the application to revoke the bond imposed by Kelly J for the earlier offending, and extended that bond for a further 12 month period.

4. The appellant now appeals against that sentence.

   Grounds of appeal

5. The grounds of appeal are:

   1.The Learned Magistrate erred in suspending the sentence of imprisonment imposed on the respondent on 5 February 2010.

   2.The Learned Magistrate erred in dealing with the respondent for a breach of a bond entered into by the respondent on 8 February 2008 in that the Learned Magistrate did not revoke the suspension of imprisonment imposed on that date and order that it be carried into effect.

   Relevant Legislation

6. The legislation with which this appeal is concerned is set out in s 38(1) and s 38(2) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) (Ground 1) and s 58(3) and s 58(4)(a) of the Act (Ground 2). I set out that legislation in full.

   38—Suspension of imprisonment on defendant entering into bond

   (1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—

   (a)to be of good behaviour; and

   (b)to comply with the other conditions (if any) of the bond.

   (2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.

   …

   58—Orders that court may make on breach of bond

   ...

   (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

   (B)in the case of a bond requiring performance of community service, extend, by not more than six months, the period within which any remaining hours of community service must be performed; or

   (C)cancel the whole or a number of any unperformed hours of community service; or

   (D)revoke or vary any other condition of the bond; or

   (ii)if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year.

   (4)Where a court revokes the suspension of a sentence of imprisonment, the court—

   (a)may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;

   Ground 2

7. It is appropriate to deal with Ground 2 first. As can be seen, if the appellant is successful, it follows that for reasons set out in s 38(2) of the Act, Ground 1 must also succeed and the magistrate would not have the power to suspend a further term of imprisonment.

8. The magistrate in her sentencing remarks dealt in some detail with the reasons why there was good reason to suspend the sentence of imprisonment for the latter offending. Those reasons involve matters personal to the respondent, relying upon a report from Dr Jack White of 17 December 2009.[3] The sentencing magistrate emphasised the respondent’s problems with drugs, the fact that he was sexually abused as a child and the fact that he is now moving towards the path of rehabilitation. After a careful analysis of those matters personal to the respondent, the magistrate considered there were good reasons to suspend.

   [3]    Affidavit of John Francis Dillon dated 9 April 2010.

9. Unfortunately the sentencing magistrate gave no reasons for her decision refraining to revoke the suspension for the earlier offending. There is clear authority that what amounts to proper reasons to excuse the breach of a suspended sentence bond must lie primarily in the nature of the breach itself as distinct from matters personal to the appellant.[4] That is to be contrasted with the question of whether special circumstances exist which justify reducing the term of a revoked suspended sentence pursuant to s 58(4)(a) of the Act. In those circumstances, matters personal to the offender which existed at the time of passing sentence, become relevant.

   [4]    R v Buckman (1988) 47 SASR 303, 308 per Jacobs J.

1. Mr Dillon, for the respondent, argues that although the latter breaching offences are similar in nature to the earlier offending and could not be described as trivial, nevertheless, there is such a numerical difference that there is a marked disproportion between the seriousness of the offences causing the breach and the sentence sought to be activated, and as a result proper grounds existed. Mr Dillon argues that although the sentencing magistrate did not refer to that in her sentencing remarks, nevertheless, it is implicit from the very facts which had been presented.

2. In my view, the latter breaching offences are of the same nature as the earlier offending, and although not as many in number, nevertheless, cannot be described as trivial or indeed amount to a marked disproportion to the earlier offending. It is to be noted that the respondent has an extensive criminal history[5] and that from the date of the commencement of his bond (8 February 2008) until the first breaching offence (8 February 2009) he was less than halfway through the term of his bond. He then continued to offend for a further three months. In my view, there are no proper grounds upon which the bond should be excused. I find that the magistrate has erred in her decision not to revoke the suspended sentence for the earlier offending.

   [5]    Affidavit of Claire Siobhan Jarrett dated 9 April 2010, exhibit “CSJ1”.

   Ground 1

3. It is unnecessary to decide this ground. Because of s 38(2) of the Act, a suspended term of imprisonment cannot be imposed when it is cumulative upon a served term of imprisonment. As I have revoked the suspension for the earlier offending, I cannot give a suspended sentence for the latter offending on resentencing. I therefore allow the appeal and set aside the whole of the magistrates order. I turn to the question of resentencing.

   Resentencing

4. As I have revoked the suspension in relation to the earlier sentencing, I turn to consideration of s 58(4) of the Act and the question as to whether there are special circumstances to justify reducing the term of the revoked suspended sentence. I consider matters personal to the respondent. I have read carefully those matters which the magistrate took into account when considering whether there was good reason to suspend, and they have relevance to the question of “special circumstances”. I bear in mind the submissions of Mr Dillon that the latter offending may have been impulsive and not premeditated, and occurred during a period of time when the respondent had moved away from his family, thus inhibiting his path towards rehabilitation. I also bear in mind the contents of Dr White’s report of 17 December 2009 that was before the magistrate, setting out his sad and dysfunctional childhood, and the fact that when the offending occurred in 2009 he was living by himself without the support systems that he needed. As a result of that, he turned to substance abuse. I bear in mind that although the breaching offences are not so disproportionate as to amount to proper grounds to enable them to be excused, nevertheless they are not nearly as serious or as extensive as the original offending.

5. In all of the circumstances, pursuant to s 18A of the Act, I impose one term of imprisonment for all offending, including the earlier offending and the latter offending, of three years imprisonment. I have taken into account the nine months the respondent has spent in custody. I set a non-parole period of 15 months imprisonment.