Police v LUND - [2014] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v LUND
[2014] SASC 105
Judgment of The Honourable Justice Peek
6 August 2014
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - IRREGULARITIES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
Appeal against sentence.
On 17 April 2013 the appellant pleaded guilty to two counts of theft and was placed on a good behaviour bond for a period of twelve months. On 12 December 2013 he admitted breaching that bond and pleaded guilty to ten further offences comprising five pairs of entry as a trespasser and theft between 8 and 12 November 2012. On 2 January 2014 he was granted home detention bail and participated in the Treatment Intervention Program before being returned to custody on 28 April 2014 because suitable accommodation was no longer available. On 9 May 2014 the Magistrates Court sentenced the appellant for all matters and imposed a single sentence of 13 months imprisonment with a non-parole period of six months, giving full concurrency to all of the offences, but taking no action on the breach of bond or the theft charges to which it related. The appellant appealed against sentence on the grounds that the Magistrate erred by (1) failing to properly take into account time already spent in custody and (2) failing to exercise his discretion to reduce the sentence of imprisonment by 30% in accordance with s 10B, Criminal Law (Sentencing) Act 1988.
Held per Peek J (dismissing the appeal):
1.      The approach of the Magistrate to the matters at (1) and (2) above was erroneous and in combination those errors would normally give rise to a need to re-sentence the appellant.
2.      However, the sentence imposed by the Magistrate was very low and if the appellant were to be re-sentenced, a significantly higher starting point and lesser degree of concurrency would be adopted such that, even if full weight were given to all mitigating factors and reductions now contended for by the appellant, a sentence and non-parole period longer than that appealed against would be imposed.
3.      The appellant’s sentence cannot be increased in the absence of a prosecution appeal; accordingly, in all of the circumstances of the case, the appeal is dismissed.
Criminal Law Sentencing Act 1988 ss 10B, 39(1), referred to.
Heal v Police (1999) 75 SASR 331, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"re-sentencing"

POLICE v LUND
[2014] SASC 105
Magistrates Appeal

PEEK J. Appeal against sentence.
The charges and sentence
On 17 April 2013, the appellant pleaded guilty in the Christies Beach Magistrates Court to two separate charges of theft from a supermarket, both committed on 13 June 2012. The Magistrate convicted him and placed him on a good behaviour bond for 12 months pursuant to s 39(1), Criminal Law (Sentencing) Act 1988. Subsequent to entering into that bond the appellant committed a number of serious offences which breached that bond.
This appeal concerns the appellant’s sentence for the following matters: the two charges of theft committed on 13 June 2012 being the subject of the bond imposed on 17 April 2013 (the breach of bond); four pairs of entry as a trespasser and theft charges committed between 8 November and 12 November 2013 (the first Information); and a further pair of entry as a trespasser and theft charges committed on 12 November 2013 (the second Information).
The charges on the first Information appear as follows:
1.Between the 8^th day of November 2013 and the 11^th day of November 2013 at CHRISTIES BEACH in the said State, entered a non-residential building of Janson Lawyers as a trespasser with the intention of committing an offence to which this section applies namely theft of property of the value of less than $30,000.
Section 169(1) of the Criminal Law Consolidation Act 1935.
This is a basic offence.
This is a minor indictable offence.
2.Between the 8^th day of November 2013 and the 11^th day of November 2013 at CHRISTIES BEACH in the said State, committed theft by taking property namely a KOGAN television and remote, of a value involving $2,500 or less, the property of Janson Lawyers dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.
Section 134 of the Criminal Law Consolidation Act 1935.
This is a summary offence.
3.Between the 11^th day of November 2013 and the 12^th day of November 2013 at EDWARDSTOWN in the said State, entered a non-residential building of Renniks Hire as a trespasser with the intention of committing an offence to which this section applies namely theft of property of the value of less than $30,000.
Section 169(1) of the Criminal Law Consolidation Act 1935.
This is a basic offence.
This is a minor indictable offence.
4.Between the 11^th day of November 2013 and the 12^th day of November 2013 at EDWARDSTOWN in the said State, committed theft by taking property namely 2 x IPADS and $1000 cash of a value involving $30,000 or less but more than $2,500, the property of Renniks Hire, dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.
Section 134 of the Criminal Law Consolidation Act 1935.
This is a minor indictable offence.
5.Between the 11^th day of November 2013 and the 12^th day of November 2013 at BELLEVUE HEIGHTS in the said State, entered a non-residential building of Ring Partners Real Estate as a trespasser with the intention of committing an offence to which this section applies namely theft of property of the value of less than $30,000.
Section 169(1) of the Criminal Law Consolidation Act 1935.
This is a basic offence.
This is a minor indictable offence.
6.Between the 11^th day of November 2013 and the 12^th day of November 2013 at BELLEVUE HEIGHTS in the said State, committed theft by taking property namely 2 x NIKON cameras, of a value involving $2,500 or less, the property of Ring Partners Real Estate dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.
Section 134 of the Criminal Law Consolidation Act 1935.
This is a summary offence.
7.Between the 11^th day of November 2013 and the 12^th day of November 2013 at BEDFORD PARK in the said State, entered a non-residential building of Riverside Family Medical as a trespasser with the intention of committing an offence to which this section applies namely theft of property of the value of less than $30,000.
Section 169(1) of the Criminal Law Consolidation Act 1935.
This is a basic offence.
This is a minor indictable offence.
8.Between the 11^th day of November 2013 and the 12^th day of November 2013 at BEDFORD PARK in the said State, committed theft by taking property namely medical and cleaning supplies, groceries and a MACBOOK PRO laptop and portable hard drive of a value involving $30,000 or less but more than $2,500, the property of Riverside Family Medical, dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.
Section 134 of the Criminal Law Consolidation Act 1935.
This is a minor indictable offence.
Other orders sought (forfeiture, compensation, additional penalty, destruction or the like – Rule 15.03)
The charges on the second Information appear as follows:
1.On the 12^th day of November 2013 at CLARENDON in the said State, entered a non-residential building of Emprades, 45 Grants Gully Road as a trespasser with the intention of committing an offence to which this section applies namely an offence of interference with, damage or destruction of property involving less than $30,000.
Section 169(1) of the Criminal Law Consolidation Act 1935.
This is a basic offence.
This is a minor indictable offence.
2.On the 12^th day of November 2013 at CLARENDON in the said State, without lawful excuse and intending to damage property, damaged a window and door handle the property of Emprades such damage amounting to not more than $2,500.
Section 85(3) of the Criminal Law Consolidation Act 1935.
This is a summary offence.
The sentencing process
On 12 November 2013 the appellant first appeared before the Magistrates Court unrepresented on the above charges and was remanded to 12 December 2013.[1] On 12 December 2013 the appellant appeared, represented, and immediately pleaded guilty to all of the above charges and admitted the breach of bond. He indicated to the Court that he wished to be considered for the Treatment Intervention Program and was remanded to 2 January 2014. On 2 January 2014 he was granted home detention bail and was referred for assessment for eligibility for the Treatment Intervention Program to which he was later admitted. Unfortunately, the appellant later had to leave his approved place of residence and was unable to find an acceptable substitute place of residence for either home detention bail or continuation in the Treatment Intervention Program. Accordingly, on 28 April 2014, he appeared before the Magistrates Court and was returned to custody.
[1] On 12 November 2013 the appellant applied for bail. The Magistrate ordered the preparation of reports. On 18 November 2013 bail was refused.
On 9 May 2014, the appellant appeared before the Magistrates Court to be sentenced for all of the above matters. Counsel for the appellant placed a large amount of mitigatory material before the Magistrate as detailed both in his Honour’s reasons and in a helpful and comprehensive affidavit sworn by his counsel and received on the appeal. I do not propose to canvass all of that material but it was emphasised that the appellant’s serious offending had ended in the late 1990’s and that the subject offending had been carried out in circumstances of a deterioration in his mental health and a need to raise money to support his family.
The appellant’s antecedents
The appellant has quite serious criminal antecedents from about the mid- 1980’s to the end of the 1990’s in New South Wales and Queensland for various theft offences including for break and enter and for robbery with actual violence. In South Australia, he has mainly driving offences but was convicted on 25 January 1999 of “breaking and entering a building and committing an offence” and was sentenced to three months imprisonment.
The sentence imposed by the Magistrate
For all of the offences on the first and second Informations, the Magistrate imposed one sentence of 13 months imprisonment with a non-parole period of six months. His Honour imposed that sentence by giving full concurrency to all of the offences on both Informations. His Honour took no action on the breach of the bond for the two theft charges committed on 13 June 2012.
The grounds of appeal
The grounds of appeal are as follows:
1.The learned Magistrate failed to properly take into account time spent by the appellant in custody in respect to the offence for which the sentence was imposed.
2.The learned Magistrate erred in failing to reduce the sentence of imprisonment by 30% in accordance with Section 10B of the Criminal Law (Sentencing) Act 1988, there being no reason why his discretion to do so ought not be so exercised.
Consideration
The relevant passage from his Honour’s remarks is as follows:
What I am going to do is this; in relation to the bond I take no action. I note those charges were shop theft for minor amounts. You were convicted and I intend to take no further action in relation to those. In relation to all of the other offences you will be convicted and by way [of one] penalty you will be imprisoned [on] the following basis; were it not for your plea today I would have imposed a term of imprisonment of 18 months. Of course you are entitled to some reduction because of your plea and also because for the most part you had engaged in the [Treatment Intervention Program] and you were generally compliant. I will reduce that by a period of five months to 13 months. By way of recognition of your circumstances and your involvement in the program I am going to set what would be a modest non-parole period. In the normal course of events I would have imposed a non-parole period of eight months. I take into account you have already spent two months in custody. I have to take that into account somewhere and I set a non-parole period of six months. There will be a head sentence of 13 months with a non-parole period of six months.
In fixing the head sentence, the Magistrate should have first nominated a starting point for the head sentence and then reduced that period for the pleas of guilty. (He could, as a matter of discretion, also have further reduced the period somewhat for participation in the Treatment Intervention Program.) Finally, he should have further reduced the period to take into account time already served in custody as well as some reduction for time spent on home detention bail.
As to ground 1 of appeal, the appellant submits that it was incorrect to reflect the time served in custody (or on home detention bail) in a reduction of the non-parole period, but not of the head sentence, as his Honour appears to have done.
As to ground 2 of appeal, the appellant submits that s 10B, Criminal Law (Sentencing) Act 1988 requires a discount of 30 percent for the pleas of guilty in the factual circumstances of this case. The reduction that his Honour gave from 18 months to 13 months was a reduction of about 27.7 percent but the appellant stresses that that reduction includes not only a reduction referable to the pleas of guilty but also a reduction referable to the participation in the Treatment Intervention Program. He therefore submits that the reduction for the pleas of guilty is an opaque amount and less than 27.7 percent by an unknown margin.
I am prepared to accept that the approach of the Magistrate was erroneous and that in combination these matters would normally give rise to a need to re-sentence the appellant. However, here I consider that the sentence imposed was very low. If I were to re-sentence, I would have to re-sentence afresh and not just adopt the sentence imposed by the Magistrate and then merely adjust it downwards because of the above identified errors. In carrying out such a re-sentencing process, I would adopt a significantly higher starting point than did his Honour for what are serious crimes. Further, although I would allow a substantial measure of concurrency, it would not be 100 percent concurrency of sentence as allowed by his Honour.
Thus if I were to give full weight to all of the matters in mitigation, adopt in full the methodology contended for by the appellant as to reduction for time spent in custody and on home detention, allow a full 30 percent reduction solely referable to the pleas of guilty, and allow an appropriate measure of partial concurrency of sentence, nevertheless the higher starting point that I would adopt would still result in a sentence that would be significantly greater than that imposed by the Magistrate (as would be the non-parole period that I would fix).
I cannot (and do not wish to) increase the sentence in the absence of a prosecution appeal.[2] Accordingly, I therefore decline to re-sentence. I dismiss the appeal.
[2] See generally Heal v Police (1999) 75 SASR 331.