Police v Ogden No. Scciv-02-589, Scciv-02-327

POLICE v OGDEN
[2002] SASC 329
Magistrates Appeal: Criminal

MULLIGHAN J On 27^th February 2002 and 4^th April 2002 the respondent pleaded guilty in the Magistrates Court at Port Adelaide to twelve counts of serious criminal trespass, one count of attempted serious criminal trespass in a residence, eleven counts of larceny and two counts of illegally using a motor vehicle. One of the charges of serious criminal trespass involved a residence and the others involved non-residential property. All of these offences were committed between 13^th June 2000 and 17^th September 2001.
The respondent also acknowledged that he was in breach of a bond entered into by him on 21^st December 2000 with respect to a sentence of imprisonment which had been suspended. The period of the bond was eighteen months. The respondent had been sentenced to imprisonment for eleven months, having been convicted of six counts of larceny, one count of unlawful possession and two counts of failing to comply with a bail agreement. All of those offences occurred between 18^th April 2000 and 20^th November 2000.
On 1^st December 1999 the respondent was sentenced to imprisonment for a period of eighteen months. He was convicted of two counts of breach of a bond, one count of breaking and entering a building and committing an offence, illegal use of a motor vehicle, failing to comply with a bail agreement, unlawful possession, estreatment of bail, two counts of larceny, damaging property, assaulting police and receiving. For these offences he was sentenced to imprisonment for twelve months but the suspension of an earlier sentence of six months was revoked resulting in a total head sentence of 18 months. A non-parole period of six months was fixed commencing on 8^th October 1999 and the respondent was disqualified from holding or obtaining a licence to drive a motor vehicle for twelve months. These offences were all committed between 20^th December 1998 and 18^th October 1999.
On 7^th April 2000 the appellant was released on parole and his parole was due to expire on 7^th April 2001. The offences for which he was given a suspended sentence on 21^st December 2000 were all committed whilst he was on parole. Also some of the offences in respect of which the respondent pleaded guilty on 27^th February 2002 and 4^th April 2002 were committed while he was on parole.
On 4^th April 2002 a learned Magistrate sentenced the respondent to imprisonment for four years for those offences. She revoked the suspended sentence with the result that the respondent also has to serve the sentence of imprisonment for eleven months. She directed that the sentences be served cumulatively with the consequence that the total head sentence is four years and eleven months. She fixed a non-parole period of six months. When sentencing the respondent, the learned Magistrate said that she had fixed such a low non-parole period as she understood another sentencing Court would be sentencing him in the near future for other offences not then the subject of charges and that when sentencing for those offences was to be undertaken, there could be a “complete overview” of the total offending and the prospective sentencer would have “a free hand in determining what is appropriate having regard to the whole of the offending when all of the charges are laid”.
Upon the suspended sentence being revoked, the respondent commenced to serve the balance of the unexpired sentence of eleven months and nineteen days: s 75 of the Correctional Services Act 1982, R v Slater (1984) 36 SASR 524 and R v Bartels (1986) 44 SASR 260. That sentence cannot be backdated to 17^th September 2001 when the respondent was taken into custody. Furthermore, the sentence imposed by the learned Magistrate on 4^th April 2002 must be cumulative upon the unexpired sentence to be served: s 31(2) of the Criminal Law (Sentencing) Act 1988. It follows that upon the sentence being imposed by the learned Magistrate, the total sentence to be served was five years, ten months and nineteen days commencing on 4^th April 2002.
This appeal is brought by the Police on the ground that the sentence is manifestly inadequate. Upon the hearing of the appeal, it was clear that the appellant complains only of the non-parole period.
It was properly conceded by Ms Waldron, who appeared for the respondent, that the learned Magistrate erred in fixing the non-parole period. Clearly the task of the learned Magistrate was to fix a non-parole period which would be the minimum period the respondent should spend in prison in relation to the head sentence so as to satisfy the punitive, deterrent and preventative purpose of punishment, The Queen v Stewart (1984) 35 SASR 477, and must reflect the “community’s sense of justice” or the “moral sense of the community” with the consequence that it must be properly proportionate to the gravity of the crimes, The Queen v Creed (1985) 37 SASR 566 at 568. Upon doing so, she should then consider the factors which bear upon the respondent as a candidate for parole: The Queen v Hunter (1984) 36 SASR 101.
Given the nature and extent of the crimes committed by the respondent, a non-parole period of six months is plainly manifestly inadequate. Furthermore, the learned Magistrate erred in not discharging her responsibility of fixing a just non-parole period in accordance with these principles. She could not leave that task to another sentencer in anticipation of other charges being laid. Also, she had to have regard to the possibility that any new charges would not be resolved before the non-parole period of six months had expired.
There was a further error. When the respondent committed the offences which breached his parole, there was an unexpired balance of the sentence to be served of eleven months and nineteen days. Pursuant to s 75(1) of the Correctional Services Act 1982, the respondent is liable to serve that balance.
Because of these errors, I indicated when the appeal was heard that I would allow the appeal and impose a sentence which was free of error. Also, I intimated that I would postpone the appeal to see if further charges were laid against the respondent and, with his concurrence, if further charges were laid, I would bring them to this Court and deal with all matters together.
Eleven further charges were laid by Information in the Magistrates Court on 21^st August 2002. These offences occurred between 17^th February 2001 and 16^th September 2001 and alleged four offences of entering a non-residential building as a trespasser with the intention of committing the offence of larceny, four offences of larceny, two offences of entering a residential building as a trespasser with the intention of committing the offence of larceny and illegal use of a motor vehicle. Goods of a total value of $22,950 were stolen as well as $750 in cash. On 18^th September 2002 the respondent pleaded guilty to all of those charges and I am to impose sentence with respect to them and to extend the existing non-parole period having regard to the totality of the respondent’s offending: s 32 of the Criminal Law (Sentencing) Act 1988.
I mention matters relevant to sentence.
The respondent is aged 27 years. He was born and raised in Sydney in a generally supportive and functional family environment. He encountered considerable difficulty in his education due to an Attention Deficit Hyperactivity Disorder, for which he received psychiatric treatment including medication. He had difficulty in concentration and learning. He became distractive and was isolated from other students. He came into conflict with his mother due to conduct on her part.
He left the family home at the age of 15 years and lived with his grandmother, with whom he had a close relationship. He commenced work but his employment history is poor. The longest period he was employed was seven months. He has lived a transient lifestyle, having also lived in Queensland and Canberra. The respondent moved to Adelaide in September 1988. He has had relationships with two women but each of them ended after a relatively short period.
The respondent has a long history of drug abuse. He commenced using marijuana when aged about 12 years and alcohol when aged about 15 years. He ceased excessive use of alcohol when imprisoned in Queensland at the age of 19 years for an offence involving violence. He experimented with amphetamines, ecstasy, LSD and cocaine for a time when aged about 15 years but did not continue to use any of those drugs. He commenced to use heroin at age 16 years and by the time he was aged 23 years he had formed a habit which was very expensive to service. He committed all of the offences which have been mentioned to service his heroin habit.
There is no evidence of any mental illness but the respondent probably functions within the low to average range of intellectual functioning. However, tests undertaken early this year whilst in prison suggest that he does have significant psychological problems requiring appropriate intervention. It is likely that he suffers personal distress, unhappiness and apprehension and it is likely that his emotions are consistently negative. He has the potential for impulsive and sensation seeking behaviour. He suffers anxiety in the severe range of intensity and severe depression. These conditions were diagnosed whilst he was in prison awaiting sentence.
The psychologist who reported to the learned Magistrate is of the opinion that the respondent’s psychological difficulties may be of a long-standing nature and he needs a long-term strategic intervention.
Another psychologist saw the respondent at the request of his solicitor. His description of the respondent’s family background is not as positive as I have mentioned but is generally along the same lines. He administered tests which revealed that the respondent has a reading age of eight years and one month, a word spelling age of seven years and ten months and writing skills at about the same level. He also noted that the respondent suffers from significant levels of anxiety and depression and also that he has features of borderline and antisocial personality. He suffers from drug dependency. This psychologist confirmed the diagnosis of Attention Deficit Hyperactivity Disorder as a child and adolescent which suggests that he now has higher levels of impulsivity, drug use, personal disorders and criminal offending than if he had not suffered such a condition.
The respondent needs remedial assistance for his reading, spelling and writing difficulties which would assist him in obtaining employment as well as psychological treatment for his heroin addiction and to address aspects of his personality which have been mentioned.
The past record of criminal offending of the respondent is significant. In addition to the offences which I have already mentioned, he committed relatively minor offences as a youth and was convicted of unlawful wounding by a District Court in Queensland on 11^th July 1994. He was sentenced to imprisonment for two years, after serving four months in prison and that sentence was suspended. He subsequently committed traffic offences and assault on three separate occasions on the last of which he was sentenced to imprisonment for seven days by the Magistrates Court of this State sitting at Port Lincoln on 11^th November 1998 which sentence was also with respect to offences involving dishonesty and offences relating to bail.
On 23^rd December 1998, upon being convicted of larceny, two counts of giving a false name and assaulting police, he was sentenced in the Magistrates Court at Adelaide to imprisonment for six months which sentence was suspended.
On 26^th June 2001 the respondent was sentenced in the Magistrates Court in Victoria to imprisonment for nine days for the theft of a motor vehicle and to 100 hours of community service for various offences being two offences described as going equipped to steal or cheat, possessing amphetamines, possessing heroin, using heroin, driving without a licence, attempted theft of a motor vehicle, loitering with intent to commit an indictable offence and two counts of possessing property being the proceeds of crime.
At times he also committed traffic and minor offences which I do not regard as necessary to mention.
It is unnecessary for present purposes to set out the circumstances of all of the offences which are the subject of the charges. It is sufficient to say that the respondent has used motor vehicles without consent and on some occasions has caused damage to them. One of the charges of criminal trespass involved damage to a house of about $1,100 and goods stolen to the value of about $19,740, all of which were recovered. Other offences involved breaking into houses and stealing property, most of which was eventually recovered. Some of the offences were illegal use of motor vehicles and others were traffic offences. The precise nature of all of the offences is not clear to me but as the issue on this appeal relates to the non-parole period, I have not found it necessary to seek information about the circumstances of each of the more serious offences.
The circumstances of the 11 offences for which the respondent is now to be sentenced are as follows. The first offence is that the respondent broke into a tobacconist shop causing $800 damage and stole $50. The second and third offences are that the respondent broke into a supermarket causing $1,000 damage and stealing tobacco products to the value of $11,684. The fourth and fifth offences are that he broke into a residence causing about $300 damage and stole property to the value of $4,326.50. The sixth and seventh offences are that he broke into a residence causing $500 damage and stole property to the value of $6,939.50. The eighth and ninth offences are that the respondent broke into an hotel causing about $2,000 damage and stole $750 from a cigarette machine. The tench offence is that the respondent broke into another hotel causing about $100 damage and stole tobacco products to the value of $50. The eleventh count is illegal use of a motor vehicle. The respondent drove a taxi without permission by driving it away to a location where it was subsequently found by the police. The respondent was detected because traces left by him in the vehicle and property contained DNA which matched his DNA. I was not informed if any of the stolen property was recovered.
It may be seen that the respondent has committed many serious offences, when not in prison, during the period from late 1998 until he was last arrested on 17^th September 2001. I am informed that those offences were committed in order to service his heroin addiction and, if heroin could not be obtained, in order to acquire amphetamines. Of course, this purpose for the offending is not an excuse and, as the law presently stands, may not be regarded as a matter in mitigation. However, it does provide the reason which permits an understanding as to why his offending has been so extensive. Also, the circumstances reveal that the offending was amateurish, particularly because he consistently injured himself and left traces containing his DNA.
Clearly the learned Magistrate was justified in fixing a substantial head sentence. There is no appeal by the respondent against sentence but I am inclined to the view that it was excessive for two reasons. The respondent pleaded guilty at an early opportunity. He was entitled to a substantial reduction in the sentence for that reason. In my view, that reduction should have been 25 per cent which means that the sentence imposed would otherwise be in the order of five and a half years. Also, the learned Magistrate does not appear to have taken into account the period of about six and a half months which the respondent had been in custody since he was arrested on 17^th September 2001. As has been mentioned, neither the head sentence nor the non-parole period could be backdated, but the time spent in custody could, and should, have been brought to account in fixing the head sentence. Not to do so would result in a head sentence of another six and a half months. These errors represent a total head sentence in excess of six years.
As there is no appeal against that head sentence, I do not reduce it but I have regard to that excess when considering the sentence which I must impose for the offences which are the subject of the charges brought before me because of the totality principle. I regard the appropriate sentence for these offences as imprisonment for two years after taking these matters into account.
The offences are undoubtedly serious. The principles of sentencing of the need to protect the public, general and personal deterrence and adequate punishment require substantial punishment even though there are matters in the makeup and background of the respondent which excite sympathy.
If I was to sentence the respondent without the background of the offences for which he was sentenced on 4^th April 2002, I would impose a head sentence of three years. I have had regard to his pleas of guilty and his background, including the reason for his offending, namely his heroin addiction. I do not think it is appropriate to disregard drug addiction as a cause of crime even though it may never be regarded as an excuse. Obviously the nature and circumstances of the respondent’s crimes suggests his being driven to service a habit which he could not afford or otherwise control. It is not easy to comprehend the compulsion of a heroin addict and some account in favour of the respondent should be given for his addiction given his background and psychological deficits.
When this level of sentence is considered along with the earlier total sentence of four years and eleven months, and the unexpired sentence to which I have referred, the totality principle must be applied in favour of the respondent. The total of these sentences would be a total head sentence of eight years and ten months, or thereabouts and, if to be served cumulatively, would, in my view, offend the totality principle. Also, I must have regard to the pleas of guilty, the reason for the offending and the time already spent in prison. All of the offences occurred between December 1998 and 16^th September 2001 at the times when the respondent was not in prison. It is appropriate to regard his offending as a course of conduct, albeit over a lengthy period of time when the respondent was drug dependent. For a person of the age of the respondent and the circumstances of his offending, I think a total head sentence of six years and ten months to commence from 4^th April 2002 is appropriate. To give effect to this conclusion, I impose one sentence, pursuant to s 18a of the Criminal Law (Sentencing) Act 1988 for the crimes to which he has pleaded guilty before me of imprisonment for one year.
It remains to consider the appropriate non-parole period. The non-parole period of six months fixed by the learned Magistrate is an erroneous exercise of the sentencing discretion and must be set aside for the reasons which I have mentioned. I must fix a non-parole period with respect to the matters which were before the learned Magistrate.
I am informed that there are some prospects of rehabilitation. The respondent has re-established an association with his mother. When he is released from prison, she wants him to live with her. There is a prospect of employment. Once all outstanding criminal matters are resolved, the respondent will be able to undertake programs in prison which should benefit him. He is still a relatively young man and encouragement at this stage may assist him towards a worthwhile life.
The non-parole period of six months is set aside. I must fix the non-parole period which the learned Magistrate should have fixed for the cumulative sentences of imprisonment being the unexpired sentence of a little over 11 months, the suspended sentence of 11 months which was revoked and the head sentence which she should have imposed for the offences in respect of which she sentenced the respondent on 4^th April 2002 which I have said should have been imprisonment for two years, making a total head sentence of 3 years and 10 months. Weighing the matters favourable and unfavourable to the respondent, the non-parole period should have been one year and six months.

It remains to consider to what extent that non-parole period must be extended in view of the sentence which I have imposed for the offences brought before me. I extend that non-parole period by a period of one year, making a total period of two years and six months which will run from 4^th April 2002.
I allow the appeal and make that order.

[2002] SASC 329

27 September 2002