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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Richards

Details

AGLC: Police v Richards [2006] SASC 142
Case: [2006] SASC 142
Decision Date: 17 May 2006

CaseChat Overview and Summary

In the matter of Police v Richards, the respondent pleaded guilty to four offences in the Magistrates Court. These included two counts of serious criminal trespass in a non-residential premises and two counts of theft. The respondent was sentenced to 15 months' imprisonment, which he appealed on the ground that the sentence was manifestly inadequate. The appeal was heard in the Supreme Court of South Australia, where the primary issue was whether the original sentence imposed by the Magistrates Court was appropriate and whether the appeal should be allowed, resulting in the sentence being set aside and the matter being remitted for re-sentencing.

The court considered the circumstances surrounding the respondent's offending history, his background, and the nature of the offences. The court found that the respondent had a troubled history, marked by drug dependency and a pattern of offending that started at a young age. Although there were some indications of a recent attempt to change his ways, the court was cautious about his prospects for rehabilitation. The court concluded that the original sentence was too lenient, given the respondent's history and the seriousness of the current offences. The court also noted that the decision to suspend the sentence was not adequately supported by the evidence before the Magistrate.

The court allowed the appeal, setting aside the original sentence and remitting the matter back to the Magistrates Court for re-sentencing. The court emphasised that the re-sentencing should be conducted in conjunction with the respondent's other pending matters in the District Court, to ensure consistency and fairness. The court left open the possibility of a suspended sentence, but stressed that such a decision would require a more substantial basis than what was presented to the Magistrate. Ultimately, the court believed it necessary to intervene to ensure that the sentence reflected the seriousness of the offences and the respondent's history.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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