Police v Saunders No. Scciv-03-757

POLICE v SAUNDERS
[2003] SASC 268
Magistrates Appeal: Criminal

PERRY J. (ex tempore) I will give judgment in this matter now.
This is an appeal by the police against the sentence imposed upon the respondent following his plea of guilty on 3 June 2003 in the Magistrates Court sitting at Holden Hill to seven counts on an information, including counts charging non-aggravated serious criminal trespass in a residence, theft of jewellery taken from the residence, driving while unlicensed and other vehicle offences, and being in possession of a pipe used in smoking cannabis.
All of the offences were alleged to have been committed on 5 March 2003 at Gumeracha.
On the charge of unlawful serious criminal trespass the sentencing magistrate convicted the respondent and ordered that he enter into a bond to be of good behaviour for a period of 18 months under supervision, and to come up for re-sentence in the event of breach.
On the count alleging that he drove an uninsured vehicle, the magistrate imposed a three day licence disqualification.
On all of the other counts the magistrate recorded convictions without penalty.
At the hearing, the respondent acknowledged breach of a bond into which he had entered on 9 May 2002 in the Magistrates Court. The bond followed his conviction on 32 counts of false pretences and attempted false pretences, and a number of other associated charges. The respondent was sentenced on that occasion to 12 months imprisonment, which was suspended upon him entering into a bond to be of good behaviour for a period of two years.
An application was taken out on 3 June 2003, apparently before the hearing commenced on that day, for an order that the respondent be dealt with for breach of a condition of the bond, the breach being the commission of the offences now in question.
In response to that application, the magistrate activated the whole of the suspended sentence, with the result that the respondent was ordered to serve the sentence of 12 months imprisonment. The magistrate set a non-parole period of 6 months and purported to back date the head sentence and the non-parole period to commence on 5 March 2003, which was the date upon which the respondent was taken into custody.
For reasons which I will come to, the magistrate’s action in purporting to ante-date the commencement of the activated sentence gives rise to a complication which resulted in argument on the hearing of the appeal.
In its amended notice of appeal the appellant complains that the sentence imposed with respect to the offence of non-aggravated serious criminal trespass was inadequate in that it failed properly to reflect the seriousness of the offending and to maintain an adequate standard of punishment for the offence, and further, that it failed to reflect the need for general and personal deterrence. In further amended grounds of appeal an additional ground was pleaded, namely that the magistrate erred in back dating the commencement of the revoked suspended sentence.
The respondent was aged 46 years at the time of his appearance before the sentencing court. He has a long history of prior convictions dating back to 1970, including prior convictions for dishonesty, traffic offences, minor street offences, drug offences and drug related offences. It is not without significance that the appellant has had in excess of 20 prior convictions for breaking, enter and larceny offences. As was pointed out by Mr Muscat on the hearing of the appeal, the appellant was last before the court for an offence of that kind, namely for two counts of building breaking and felony on 25 November 1993, when he appeared before the Magistrates Court sitting at Adelaide. On that occasion he was sentenced to 18 months imprisonment on each count, that is, a total of 3 years imprisonment. (The total head sentence was longer, having regard to other matters.)
So far as the present offending is concerned, the occupier of the house in question was temporarily out of the premises overnight. The respondent drove to the house, which he entered through an unlocked door, and took a number of items of jewellery and two bank access cards, all of which he secreted under the carpet in his car in order to hide them. He then proceeded to come and go from the house, helping himself to some food and drink.
This conduct occurred overnight, leading from one day to the next. On the morning of the second day the occupier returned with a witness following which, before the respondent left the premises, the police were called whereupon he was arrested.
The sentencing magistrate had the benefit of a report from a psychiatrist, Dr Craig Raeside. The history obtained by him confirms that the respondent has a history of two failed relationships in the course of which he has fathered two children, but he was living alone at the time of the offences. He has had a long-term history of drug abuse and was diagnosed by Dr Raeside as suffering from an underlying personality disorder with dependent and antisocial traits:
“This appears to have led to a long term opioid and benzodiazepine dependence, with disturbed and criminal behaviour in association with both the use of these drugs as well as seeking to obtain funds for the drugs or the drugs themselves.”
Dr Raeside thought that the appellant would benefit from a comprehensive drug rehabilitation programme, supported by close supervision and ongoing psychological therapy.
It is clear from the manner in which the respondent was dealt with by the sentencing magistrate that the magistrate took the view that notwithstanding the respondent’s long record of prior offending and the fact that he had had the benefit of numerous bonds and suspended sentences, he should be given a further opportunity of shaking free of his drug habit.
In the result, he imposed a number of conditions to the bond obliging the respondent to attend the Woolshed Therapeutic Drug Rehabilitation Program conducted by the Drug and Alcohol Services Council.
In the events which have happened, the appellant was apparently released on 11 July 2003 on home detention, and he has started or is about to start the drug rehabilitation programme which was recommended by Dr Raeside.
I will deal first with the first point argued by Mr Muscat who appeared for the appellant. That is that in backdating the commencement of the activated sentence, the magistrate was in error, more particularly in breach of the provisions of s 58(4)(b) of the Criminal Law (Sentencing) Act 1988. That section provides, inter alia, that where a court revokes a suspension of imprisonment, which is the case here, the court:
“(b)may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence; .....”
The critical words are “pending determination of the proceedings for breach of condition”. As I have indicated the proceedings for breach of the condition were not instituted until the day upon which the appellant was dealt with in the court below, that is, on 3 June 2003.
It follows that the appellant was not in custody before then, pending determination of those proceedings. The time which he spent in custody from 6 March 2003 until 3 June 2003 was spent solely by reference to the breaching offences, that is, the offences of unlawful serious criminal trespass and the other counts relating to his entry onto the premises in question.
In the result, the orders made by the sentencing magistrate must be quashed and this Court must reconsider the penalty to be imposed.
On the merits of the appeal, the gravamen of the argument presented by Mr Muscat was that the “standard” appropriate for offences of this kind has been laid down by the Court of Criminal Appeal in the matter of Delphin[1] and that by dealing with the respondent in the way that he did by releasing him on as bond with respect to the serious criminal trespass, the sentencing magistrate breached that standard.
[1] (2001 79 SASR 429.
In support of that submission, Mr Muscat referred to the following passage from the joint judgment of Debelle, Bleby and Wicks JJ in Delphin (supra)[2]:
“In the circumstances now prevailing, it would seem that in the ordinary case of a single serious criminal trespass in a place of residence, where the intention upon entry is larceny generally, a penalty for a first offence must now be in the order of 20 to 24 months where a plea of guilty is involved, with serious consideration being given to suspension in the case of the first offender. Relevant factors will include the nature and circumstances of the trespass and the impact of the entry on the victim. Where other and more specific intentions of an offender can be alleged, that will be important in assessing the gravity of the offence. ...
Where there are previous similar offences an offence could expect to attract a higher penalty.”
[2] Ibid at 440, par 47.
So that the first point taken by Mr Muscat is that having regard to that dictum, there should have been a custodial sentence of imprisonment in this case, particularly bearing in mind the respondent’s long record of prior offending.
He next contended that any custodial term of imprisonment could not have been suspended. This is because of the effect of s 38(2) of the Criminal Law (Sentencing) Act 1988 which provides that:
“A sentence of imprisonment may not be suspended where the sentence is to be served cumulatively upon another term of imprisonment or concurrently with another term then being served or about to be served by the defendant.”
Here the activated sentence of imprisonment which resulted from the revocation of the suspension of the sentence imposed in May 2002 meant that any further sentence of imprisonment could not be suspended.
His final submission was that given the inability to predate the commencement of any of the activated term of imprisonment, the appropriate course would have been to sentence the respondent on the breaching offences, more particularly on the unlawful criminal trespass offence, for a term of imprisonment to commence from 6 March 2003; then to direct that the activated sentence of 12 months be served cumulatively upon the new sentence; and then against the overall head sentence to fix a reassessed non-parole period.
Mr Katsaras who appeared for the respondent countered that argument by referring first to the decision of the Court of Criminal Appeal in Police v Cadd,[3] more particularly to a passage in Mullighan J’s judgment in that case at pages 176-177.
[3] (1997) 69 SASR 150.
In that passage Mullighan J refers to authorities which support the view that no so called “standard” should be interpreted as laying down a hard and fast rule to be treated as binding on lower courts in every case.[4] Mullighan J went on to refer to the dictum of King CJ in R v Osenkowski:[5]
“It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.”
[4] Citing McDougall v Betts (1979) 21 SASR 424.
[5] (1982) 39 SASR 212 at 213.
Mr Katsaras argued that notwithstanding his client’s poor record, it was clear that the magistrate was moved to give to the respondent an opportunity to rehabilitate himself, and that there was ample support in the material before the court, particularly Dr Raeside’s report and the antecedent report, to provide a foundation for that view.
I have carefully considered this matter in the light particularly of the arguments just referred to.
It would seem to me to be unfortunate if the respondent’s efforts at rehabilitation which have already commenced, or are about to commence, were to be interrupted by his return into custody.
I accept that sometimes this Court on appeal may identify error but decline to interfere, and I have given anxious consideration to the question whether that is a course which should be followed here. But, with respect to the sentencing magistrate, the sentence imposed in this case is so completely at odds with the standard laid down in R v Delphin, that it would not be right to dispose of the appeal in that way.
The statutory provisions for the relatively new offences of criminal trespass in its various forms, provide for very substantial penalties for the offences. There is a maximum penalty of 15 years for the offence now in question. I recognise that there is a clear legislative mandate to the courts to impose severe penalties for this offence.
Bearing in mind that the respondent has been convicted of so many other counts of breaking and entering, and bearing in mind the prison term upon which he was sentenced for breaking and entering offences in November 1993, it does not seem to me to have been a proper exercise of the sentencing discretion to have failed to impose a custodial sentence for the offence now in question. Furthermore, the sentence imposed is so far short of a proper sentence for the respondent’s offending that it is proper to allow an appeal by the prosecutor. Intervention by this Court is justified in order to maintain appropriate sentencing standards for this offence.
Notwithstanding the general statutory maximum, given that the respondent was dealt with in the Magistrates Court, pursuant to s 19(3) of the Criminal Law (Sentencing) Act 1988, the maximum sentence which may be imposed for one offence is 2 years.
If it had not been for that provision I would have thought that an appropriate starting point in this case would have been 3 years for the offence of serious criminal trespass, from which there should be a notional deduction of about one quarter for the plea of guilty.
However, that would result in a sentence in excess of the 2 years maximum. So that in this particular case, in my view, the appropriate penalty to have been imposed should have been 2 years for the serious criminal trespass.
There is no reason to reduce or ameliorate the activation of the 12 months imprisonment which was suspended in May 2002, with the result that the head sentence becomes 3 years. If the sentence of 2 years is directed to commence from 6 March 2003, and the activated sentence of 1 year to be cumulative upon it, there is then no difficulty with respect to the application of s 58(4)(b).
Against the head sentence of 3 years I would fix a non-parole period of 1 year and 8 calendar months. That is a relatively generous non-parole period, given the respondent’s very long record of prior offending. But I would allow him a relatively long period on parole, in the hope that he can benefit from a program of the kind which he has shown some interest in participating in, directed towards his rehabilitation particularly from his drug habit.
I allow the appeal, quash the sentence imposed for the offence of unlawful serious criminal trespass and substitute a sentence for that offence of 2 years imprisonment. I would revoke the suspension of the sentence of 1 year’s imprisonment imposed in May 2002, so that the head sentence becomes 3 years imprisonment. I fix a non-parole period of 1 year and 8 calendar months.
I direct that the head sentence and the non-parole period both commence from 6 March 2003.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (2001 79 SASR 429.
2. Ibid at 440, par 47.
3. (1997) 69 SASR 150.
4. Citing McDougall v Betts (1979) 21 SASR 424.
5. (1982) 39 SASR 212 at 213.

[2003] SASC 268

11 August 2003