Police v Richards - [2006] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v RICHARDS
[2006] SASC 142
Judgment of The Honourable Chief Justice Doyle
17 May 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
Respondent pleaded guilty in the Magistrates Court to four offences - two charges of serious criminal trespass in a non-residential premises (non-aggravated) contrary to s 169 of the Criminal Law Consolidation Act 1935 (SA) and two charges of theft of property contrary to s 131 of the Criminal Law Consolidation Act 1935 (SA) - sentence of 15 months imposed - whether the sentence is manifestly inadequate - error made out - whether the sentence should be set aside - appeal allowed - sentence set aside - matter remitted to the Magistrates Court for re-sentencing.
Criminal Law Consolidation Act 1935 (SA) s 131, s 169; Criminal Law (Sentencing) Act 1935 (SA) s 18A, s 32(1), s 32(5); Correctional Services Act 1982 (SA) s 31(2), s 75(1)(a), referred to.
Hayes v Brookes (1992) 60 SASR 87, considered.

POLICE v RICHARDS
[2006] SASC 142
Magistrates Appeal: Criminal

DOYLE CJ: Mr Richards pleaded guilty in the Magistrates Court to four offences. First, a charge of serious criminal trespass in non-residential premises (not aggravated) contrary to s 169 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). Second, a charge of theft of property worth about $4,300 from those premises, contrary to s 131 of the CLCA. These two offences were committed in November 2001. Third, another charge of serious criminal trespass in non-residential premises (not aggravated) and fourth, a charge of theft of property worth about $100 from those premises. These two offences were committed in February 2002.
The Magistrate imposed a single sentence of 15 months imprisonment, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1986 (SA) (“the CLSA”). The Magistrate suspended that sentence upon Mr Richards entering into a bond to be of good behaviour for two years. A condition of the bond was that Mr Richards be under the supervision of an officer from the Adult Probation Service.
The Police appeal on the grounds that the sentence is manifestly inadequate.
I am satisfied that the Magistrate erred. The more difficult question is whether it is appropriate, on a prosecution appeal, to set the sentence aside, or whether it suffices to record that the sentence was erroneous but to allow it to stand.
Background
Mr Richards is 30 years of age. Material before the Magistrate indicated that he had a normal upbringing. He left school at 15 years of age. He seems to have had employment of one form or another until about 1994, when he was 18 years of age. At a relatively young age, although it is unclear just when, he formed a relationship with a young woman. He also began to use drugs, and he began using amphetamines in about 1995. The woman with whom he had a relationship, and with whom he was apparently living, committed suicide in his presence. After this, and deeply affected by it, he developed a psychological dependency on cocaine. That led to a need for money, and to the commission of offences involving unlawful entry on to property. Once again, it is not clear just when his use of drugs became a problem, but my impression is that he began on a downhill course from about 1995.
Mr Richards told Mr Fugler, a clinical forensic psychologist, that he had gradually reduced his use of cocaine, and ceased using it in about 2003. He also told him that apart from occasional usage of amphetamines, he was not involved any more with unlawful drugs.
Mr Richards’ offending did not begin until 1992, when he was 16 years of age. A pattern of offending developed from about 1995. From then on he has a string of convictions. A number of the offences appear to be minor cannabis offences, and others are traffic and public order offences. In March 1999 he was dealt with for three break and enter offences, committed in 1995 and 1998. He received his first sentence of imprisonment, a head sentence of 33 months and a non-parole period of ten months. Another break and enter offence was dealt with in July 1999, and for this he received a further ten months’ imprisonment, his non-parole period being extended to 12 months.
Since then most of his offences (apart from those yet to be dealt with) have been traffic offences, but in May 2001 he was sentenced to imprisonment for two years and six months for an offence of assault occasioning actual bodily harm. This resulted in a head sentence of four years and seven months’ imprisonment, because of a balance period of imprisonment to be served in respect of earlier offences.
Mr Richards’ pattern of offending does suggest some attempt in recent years, with limited success, to change his ways. However, one must be cautious about his prospects of successful rehabilitation. Mr Fugler summarised the position as follows in his report:
A superficial analysis of Bradley Richards’ pattern of offending suggests a motivation to secure funds with which to sustain drug use. While that is certainly the case there is a more complex causal relationship between the affects associated with previous trauma and loss, the abuse of cocaine, and dishonest behaviour. Your client has been guilt ridden and depressed since the age of 15, he experiencing episodes during which a sense of worthlessness and a disregard for personal welfare occur. Drug use in an attempt to dull the ongoing psychological distress takes place and your client becomes trapped in a cycle of illegal activity and decreased self-esteem he finds difficult to break.
There are signs in the last few years Mr Richards is making a concerted effort to develop more functional behaviour.
As he says, there are some signs of an effort to change. But the reality is that since 2000 Mr Richards has been in and out of prison, parole having been cancelled on several occasions.
It appears that Mr Richards is at the crossroads, and perhaps this is what Mr Fugler detected. It may be that Mr Richards himself realises this. Either he now makes a real effort to change, or he is likely to finish up spending a lot more time in gaol.
A further complication is the fact that he has been in custody since 23 June 2004 on a charge of robbery, involving snatching a bag or handbag, and a further charge of serious criminal trespass in non-residential premises (not aggravated) both committed in June 2004. He has pleaded guilty to these offences, and is due to be dealt with in the District Court in June 2006. That is, in about a month’s time.
Mr Richards is in the unusual position of being in custody on unresolved charges, but also subject to a suspended sentence and a bond.
I add that when Mr Richards came before the Magistrate he was liable, if sentenced to imprisonment, to serve 28 days being the balance of unexpired parole as at the date of these offences. It was because the Magistrate did not sentence him to imprisonment that this balance unexpired parole did not have to be served: see s 75(1)(a) of the Correctional Services Act 1982 (SA), s 31(2) of the CLSA and Hayes v Brookes (1992) 60 SASR 87. Mr Richards had been in custody in connection with these offences for 53 days. The balance of his time in custody was attributable to the offences for which he is yet to be sentenced.
The sentence
Each count of serious criminal trespass attracted a maximum punishment of imprisonment for ten years. Each count of theft attracted a maximum punishment of imprisonment for five years.
For a man with Mr Richards’ record of offending, making due allowance for the pleas of guilty, a single sentence of imprisonment for 15 months is exceptionally light. The offences were committed about three months apart. Mr Richards damaged the premises to gain entry. He was on parole at the time. I consider that the sentence of not less than two years’ imprisonment, after allowing for the pleas of guilty, was the least that could properly have been imposed.
It is not apparent how the Magistrate arrived at the sentence of 15 months. He said that the sentence would have been 18 months but for the plea of guilty. His reference to the time spent in custody suggests that he may have given undue weight to this, but that is not clear.
The decision to suspend the sentence is particularly surprising. So far Mr Richards has not responded well to parole or to supervision. The decision to suspend the sentence seems to rest on the finding by the Magistrate that:
… with the proper supervision and counselling it may be that you can be persuaded to rehabilitate yourself and to adopt an honest way of life.
In all the circumstances that was a rather flimsy basis for suspending the sentence, and the report of Dr Fugler did not provide a more solid basis. A further difficulty with this decision is that while Mr Richards remains in custody the reason for the suspended sentence cannot be realised. The Magistrate made no reference to this factor.
The Magistrate also erred in failing to fix a non-parole period, as required by s 32(1) and s 32(5) of the CLSA. That error can be fixed fairly simply, if the sentence is to stand.
As I have already said, I am satisfied that the Magistrate erred. The sentence is manifestly inadequate. The decision to suspend the sentence lacks an adequate basis.
The appeal
It does not follow that I should intervene on a prosecution appeal.
In some cases it will suffice to identify the error, to ensure that the sentence is not seen as an appropriate sentence. This will be the case when fairness or mercy may call for the erroneous sentence to be left standing. But when a sentence is clearly erroneous, and falls well short of an acceptable level of punishment, the court will usually intervene.
There are some matters to be considered under this head.
It has taken a long time for these charges to be finalised. They have been hanging over Mr Richards’ head since the Information was filed in January 2003. After a number of appearances before the Court, it was only in late 2004 that a trial was ordered on two other counts on the Information. That trial began in April 2005. Although the evidence only occupied about four days, the trial was not completed until July 2005. Then the Magistrate did not deliver his judgment until October 2005, when he found Mr Richards not guilty on those two counts. It then took until March 2006 for the sentencing process to be completed in relation to the four counts to which he pleaded guilty. This is a regrettably long period of time to deal with a matter that does not appear to have been complex.
I do not know why the matter took so long. But the end result is that in 2006 I am considering an appeal against sentence for offences committed more than four years ago.
The charges pending in the District Court also must be considered. Because of them, Mr Richards has not been released. Allowing the appeal will not mean that an offender who has been released is to be returned to custody. But if it is correct that he will have spent about two years in custody on those charges by June of this year, it may be (I make no prediction) that no further punishment, or significant punishment, will be imposed. The Magistrate’s decision holds out a hope for Mr Richards that he will secure his release in the near future.
Allowing the appeal will put Mr Richards back into a position of uncertainty. I say this because it is common ground that if I were to allow the appeal I should remit the matter to the Magistrates Court, so that these offences can be referred to the District Court and be dealt with by the Judge who deals with the offences pending in that Court.
Conclusion
In the end, I have decided I must intervene. The Magistrate’s sentence is clearly too low, and the decision to suspend the sentence (on the limited information before the Magistrate) cannot be supported. To leave the decision stand simply out of sympathy for Mr Richards would be wrong.
Accordingly, I allow the appeal. I set aside the sentence and remit the matter to the Magistrates Court.
It is desirable that these matters be dealt with at the same time as the matters pending in the District Court, now that the finalisation of those matters is so close. The District Court can have the matters brought up to it.
I emphasise that a suspended sentence (of proper length) in relation to the matters before me remains a possibility, but would require a more solid basis than the Magistrate identified. I doubt whether a suspended sentence could be supported unless Mr Richards was not required to serve any further time in relation to the matters in the District Court. These will be matters for the District Court Judge to decide.