Police v Lovric - [2007] SASC 331

Supreme Court of South Australia
(Summary Jurisdiction: Criminal)
POLICE v LOVRIC
[2007] SASC 331
Judgment of The Honourable Justice Kelly (ex tempore)
10 September 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
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
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
Prosecution appeal against sentence - Respondent pleaded guilty in Magistrates Court to two counts of intentionally applying force contrary to s20(13) Criminal Law Consolidation Act 1935 (SA), one count of stating a false name and address, one count of serious criminal trespass in a non-residential building, one count of theft, one count failing to comply with a bail agreement.
Respondent sentenced to 11 months and 2 weeks imprisonment. Suspended.
Whether sentence manifestly inadequate, whether decision to suspend appropriate.
Held: Sentence as a whole was lenient, but not so disproportionate as to shake public conscience. Suspension within the discretion of the Magistrate. No error of principle demonstrated.
Appeal dismissed.
Criminal Law Consoldiation Act 1935 (SA); Summary Offences Act 1953 (SA); Criminal Law (Sentencing) Act 1988 (SA), referred to.
The Queen v Delphin [2001] 79 SASR 429, distinguished.

POLICE v LOVRIC
[2007] SASC 331

On 15 May 2007 Mr Lovric, the respondent in this matter, pleaded guilty to three groups of offences: two counts of intentionally applying force contrary to s20(3) of the Criminal Law Consolidation Act 1935 (SA) and one count of stating a false name and address, each offences which occurred on 5 June 2006; one count of driving while unregistered and one count of driving while unlicensed, offences which occurred on 28 October 2006; and one count of serious criminal trespass in a non-residential building, theft, unlawful possession and refusing to state name and address and failing to comply with a bail agreement all of which occurred on 29 December 2006.
The maximum terms of imprisonment prescribed for the offences to which the respondent pleaded are: in the case of the offences of intentionally applying force, contrary to s20(3) of the Criminal Law Consolidation Act, two years imprisonment in each case; for the offence of refusing to give a name and address, contrary to s74A(3)(b) of the Summary Offences Act, a fine of $1,250 or imprisonment for three months; for the offence of serious criminal trespass in a non-residential premise, contrary to s169(1) of the Criminal Law Consolidation Act, 10 years imprisonment; for the offence of theft, contrary to s134 of the Criminal Law Consolidation Act, 10 years imprisonment; for the offence of unlawful possession, contrary to s41(1) of the Summary Offences Act, a fine of $10,000 or two years imprisonment.
On 19 June 2007 the Magistrate utilising the provisions of s18A of the Criminal Law (Sentencing) Act imposed a single sentence of 11 months and two weeks imprisonment, which he suspended upon the respondent agreeing to enter into a bond to be of good behaviour for a period of 18 months and with some other particular conditions including to be under the supervision of a correctional services officer and to perform community service.
The police have appealed on the grounds that the sentence was manifestly inadequate both as to the imposition of the head sentence and the decision to suspend the sentence. Counsel for the appellant submitted that the sentence is so far below the appropriate range of sentences for this category of offending that it reflects an error of principle and to allow it to stand would shake the public confidence in the administration of justice such that this Court should intervene to correct it.
The respondent is a 26-year-old man. He has a number of previous convictions in New South Wales and Victoria for offences of burglary, theft, related dishonesty offences and for one count of assault. The group of offences committed on 5 June 2006 occurred after the respondent entered a barricaded area designed to prevent entry by members of the public on Franklin Street, Adelaide.
When he was yelled at by one of the council workers to leave the area he assaulted the victim by spitting in his face twice and punching him in the jaw. In addition he was abusive towards the victim warning him that he had hepatitis C and that he, meaning the victim, would get it too.
The group of offences committed on 29 December 2006 were committed whilst the respondent was on bail for the earlier offending. The respondent went to the Ashford Hospital in the middle of the night rifled through the personal property of a patient sleeping in the cardiac surgical ward and stole valuables before being apprehended by security at the hospital. When he was arrested he was found to have various medication and vials on him consistent with having been removed from a cupboard in the hospital which had been interfered with.
Given the respective circumstances just outlined in which both those groups of offences were committed the Magistrate rightly took a very serious view of both incidents. Nevertheless he took into account a report from the Court Assessment and Referral Drug Scheme to the effect that the respondent by the date of sentence had completed four counselling sessions and appeared to have engaged very well during the counselling process. There was also a letter from the respondent’s wife setting out some of the difficulties he had faced in overcoming his long-term heroin addiction and reaffirming her support for him.
In addition the Magistrate took into account the fact that the respondent had only recently moved from interstate and that he was apparently trying to make a fresh start notwithstanding that he acquired a substantial record in New South Wales and Victoria.
It is apparent from the Magistrate’s remarks that his starting point for the offences committing in December of 2006 was 16 months and the starting point for the assault offences in June 2006 was four months. After applying a 25 per cent discount for the pleas of guilty he then reduced the sentence to 15 months. The sentence was further reduced by three months and two weeks to take into account a period of five weeks that the respondent had already spent in custody and to make an allowance for the time spent on home detention bail since 1 February 2007. The final sentence arrived at by the magistrate was 11 months and two weeks imprisonment.
At the hearing today the appellant conceded that the notional starting point of four months imprisonment for the two assault offences and for the offending on 5 June 2006 did not in itself give rise to any complaint that this Court should intervene. That concession was properly made as in my view a notional starting point of four months imprisonment for the two assaults in this case, arising as they did out of the one incident was within the range appropriate to the Magistrate.
However, it was submitted that the sentence as a whole of 11 months and two weeks was nevertheless manifestly inadequate.
The notional starting point for the offences committed on 29 December 2006, that is for the offence of serious criminal trespass in a non-residential premise and the other offences were 16 months imprisonment. The appellant argued that by reference to the decision in The Queen v Delphin [2001] 79 SASR 429 that the starting point of 16 months imprisonment for an offence of serious criminal trespass in a non-residential premise was manifestly inadequate. In Delphin the Court held that an appropriate sentence for a single offence of serious criminal trespass in a place of residence where the intention upon entry was larceny would generally be within the range of 20-24 months.
It should be borne in mind that the maximum term of imprisonment for an offence of non-aggravated serious criminal trespass in a place of residence is 15 years. For an aggravated offence of serious criminal trespass in a place of residence, the maximum penalty is life imprisonment.
Although the facts of this case, as the Magistrate observed, do make it a serious example of a serious criminal trespass in a non-residential building, it does not necessarily follow, that the principles or the tariff referred to in Delphin should necessarily apply.
Whilst the Magistrate’s reduction for the amount spent on home detention bail might be described as unduly generous, nevertheless I accept the respondent’s submission that it was open to the Magistrate to make such a reduction as he saw fit.
In my view no error is demonstrated in either the discount applied to the plea or the amount credited for the time spent in custody and on bail.
In all of the circumstances I do not consider that a starting point of 16 months could be described as so manifestly inadequate as to attract or warrant the intervention of an appellant court.
I turn now to consider whether the sentence should have been suspended.
The Magistrate seems to have been impressed by the fact that the respondent had only recently arrived in South Australia. He is still a relatively young man, only 26 years old and although his record is not good, he has made some honest attempts since arriving in South Australia toward reforming his drug-related lifestyle. The Magistrate obviously took into account those factors and the fact that he had the ongoing support from his family, particularly his wife in deciding that on balance there was good reason to justify suspending at the term of imprisonment.
Whilst the respondent has a poor record for prior offending in New South Wales and Victoria it is by no means the worst record to come before this Court. He served one immediate term of imprisonment of a month apparently in the year 2000 and since then it appears that he has been given the benefit of two further suspended sentences, one in New South Wales and one in Victoria. Against this background it seems to me there was material from which the Magistrate could have exercised the discretion to suspend the sentence.
Many other magistrates experienced in this jurisdiction may have come to a different conclusion. I doubt whether I would have reached the same conclusion as the Magistrate. However I remind myself that on an appeal of this nature that is not the test. It cannot be said that in making the decision to suspend that decision was so clearly erroneous and fall so well short of an acceptable level of punishment that this Court should intervene. In those circumstances I consider that the prosecution has not discharged the high burden upon it in an appeal of this nature and in all of the circumstances I do not consider that it is appropriate that the court intervene.
For these reasons I would dismiss this appeal and I therefore do dismiss the appeal.