Police v Smith

POLICE v DANIEL GRAHAM SMITH
[2004] SASC 38
Magistrates Appeal: Criminal (ex tempore)

BESANKO J: This is an appeal by the Police against a sentence imposed by a Magistrate on 4 December 2003.
The respondent pleaded guilty to the following offences:
1. On 14 June 2003 at Nailsworth in the State of South Australia, the respondent was present on premises at 4 Emilie Street without lawful excuse, contrary to s 17 of the Summary Offences Act 1953 (count 1).
2. On 14 June 2003 at Nailsworth in the said State, the respondent without reasonable excuse failed to comply with the term or condition of a bail agreement entered into by him, contrary to s 17 of the Bail Act 1985 (count 2).
3. On 14 June 2003 at Prospect in the said State, the respondent stole a Nokia mobile telephone to the value of approximately $300 the property of Helen Marie Page, contrary to s 131 of the Criminal Law Consolidation Act 1935 (count 4).
4. On 14 June 2003 at Prospect in the said State, the respondent had in his possession personal property, namely a Nokia 6210 mobile telephone, which either at the time of such possession or at a subsequent time before the making of this complaint in respect of such possession, was reasonably suspected of having been stolen or obtained by unlawful means, contrary to s 41(1) of the Summary Offences Act 1953 (count 5).
5.On 12 June 2003 at Elizabeth North and other places in the said State, the respondent without reasonable excuse failed to comply with a term or condition of a bail agreement entered into by him, contrary to s 17 of the Bail Act 1985 (count 6).
6. On 5 June 2003 at Elizabeth North and other places in the said State, the respondent without reasonable excuse failed to comply with a term or condition of a bail agreement entered into by him, contrary to s 17 of the Bail Act 1985 (count 7).
Two counts in the information, counts 3 and 8, were withdrawn.
The Magistrate imposed one sentence of a term of imprisonment of three months for all of the above offences (s 18A Criminal Law (Sentencing) Act 1988 (“CLSA”)) and declined to extend an existing non-parole period of nine months.
Early in 2003, the respondent was serving a term of imprisonment for other offences. On 19 February 2003, he was released on parole. The respondent committed further offences on 1 April and 9 June 2003 respectively. He was sentenced with respect to those offences on 26 June 2003 to a term of imprisonment of two years and six months. His parole was cancelled pursuant to s 75 of the Correctional Services Act 1982. The respondent was ordered to serve the sentence imposed on 26 June 2003 cumulatively upon the unexpired balance of his parole of one year, four months and 19 days. That resulted in a total sentence of a term of imprisonment of three years, 10 months and 19 days. With respect to that sentence a non-parole period of nine months was fixed commencing on 26 June 2003.
The respondent committed an offence on 30 October 2000. On 4 July 2003 he was sentenced with respect to that offence to a term of imprisonment of three months. The head sentence was therefore increased to a term of imprisonment of four years, one month and 19 days. The non-parole period of nine months was not extended. The prosecution did not appeal against the decision not to extend the non-parole period.
The orders under appeal were made on 4 December 2003 and resulted in the head sentence being extended by three months to a term of imprisonment of four years, four months and 19 days. As I have said, the Magistrate did not extend the existing non-parole period of nine months.
The appellant appeals on two grounds. First, the appellant submits that the sentence of a term of three months imprisonment was manifestly inadequate and that the intervention of this Court to increase the sentence is justified. Secondly, the appellant submits that the Magistrate’s decision not to extend the non-parole period was an error of law. In that regard, the appellant relies on the terms of s 32(1)(b) of the CLSA and the decision of the Full Court of this Court in Shepperbottom (2001) 121 A Crim R 69.
The Circumstances Surrounding the Offences
On the hearing of the appeal I received an affidavit of the police prosecutor who appeared before the Magistrate. The prosecutor deposes to the facts she put to the Magistrate, and the submissions made on behalf of the respondent. The Magistrate was told that at about 7:00AM on Saturday 14 June 2003 a vehicle was moved while parked in the driveway of 23 Azalea Street, Prospect. Two males were seen to be in the vehicle which stopped before entering onto the roadway and both males left the vehicle and ran away. Police attended the area and after a number of reported sightings in various streets in the area, the respondent was located on the roof of 4 Emilie Street, Nailsworth. He was arrested for being unlawfully on premises. He was found to be in possession of a Nokia telephone, which had been stolen from another vehicle that had been interfered with whilst parked in Azalea Street, Prospect. Further inquiries found that the respondent was on home detention bail at the time of the offending and had no permission to be away from his bail address. Further incidents of being absent without leave whilst on home detention bail were detected on 5 June 2003 and 12 June 2003. The incident on 5 June 2003 was aggravated by the respondent removing his anklet on that day.
Counsel for the respondent told the Magistrate that the respondent had had problems with illicit drugs and that the time he had spent in custody had been a salutary experience for the respondent. Counsel for the respondent submitted that the Magistrate should extend the head sentence with a period of imprisonment that adequately reflected the offending but asked the Magistrate to exercise leniency when reviewing and extending the non-parole period. The police prosecutor did not take issue with any of the submissions made by counsel for the respondent.
I also received an affidavit from counsel for the respondent in the court below. She was able to expand on the submissions which she made in the court below. She told the Magistrate that the respondent had been in custody between 14 June and 26 June 2003 and she asked him to take that into account when sentencing the respondent. She told the Magistrate that at the time of the offences on 14 June 2003, the respondent was under the influence of amphetamines and that his recollection of events was somewhat hazy. The respondent did not recall where the second mobile telephone had been obtained. The breaches of bail were admitted in that the respondent was absent from his nominated bail address, and it was also admitted that he had removed his electronic bracelet. The Magistrate was also told that the respondent had had a difficult childhood and that his mother and brother had died within a short time of each other. The Magistrate was told that the respondent had a supportive partner who would provide him with a place of residence once he was released.
The Magistrate’s Reasons
The Magistrate’s reasons for the sentence he imposed are brief. He referred to the fact that the respondent had a problem with amphetamines and what the Magistrate described as ‘intense personal issues with the loss of his mother and brother’. He noted that the respondent had the support of a partner. He took into account the respondent’s pleas of guilty and what he said was the overlapping of the offending and the sentence which was imposed on 26 June 2003. Presumably he meant by this, the close proximity in terms of time between the offences for which the respondent was sentenced on 26 June 2003 (ie., 1 April and 9 June 2003) and the dates of the offences before him (ie., 14, 12 and 5 June 2003). He accepted the submission that the respondent did not know how he came to be in possession of the mobile telephones which were the subject of the two counts. He said that he accepted that submission because of the respondent’s addiction to amphetamines and his “continuous” breach of bail. He referred to the fact that the respondent had removed his anklet and described this action as most unwise.
The Magistrate said that the respondent had a prior record but he did not go into any details.
As I read his reasons, the Magistrate said that if he extended the respondent’s non-parole period, he would do so only for a relatively short period and for the sake of (to use the Magistrate’s word) ‘simplicity’ he decided not to extend it. The Magistrate referred to the ten days the respondent had spent in custody in June 2003.
The Issues on Appeal
I think it is clear that the Magistrate declined to extend the non-parole period. It is equally clear in my opinion that the Magistrate erred in law in declining to extend the non-parole period. He had no discretion in the matter. The ten day period the appellant had spent in custody was relevant to the period of the extension, but not to the question of whether there was an extension.
Section 32 of the CLSA relevantly provides:
“32. (1) Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must--
…
(b) if the person is subject to an existing non-parole period - review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court);”
The Magistrate was required by law to extend the non-parole period (Shepperbottom (supra) per Doyle CJ at 72 – 74).
I must extend the non-parole period. Before doing so I will consider the appellant’s submission that the head sentence is manifestly inadequate. Although the sentence is one sentence and it must be set aside because of the error of law which I have identified, I do not think it appropriate to interfere with the head sentence unless it is manifestly inadequate, or there is some error of principle involved in the reasoning of the Magistrate in fixing it.
The first submission made by the appellant was that in applying s 18A of the CLSA, the Magistrate did not adopt the correct approach and that the approach he adopted involved an error of principle.
Other than referring to that fact that he would impose one penalty pursuant to s 18A, the Magistrate does not set out his process of reasoning in concluding that the appropriate sentence was a term of imprisonment of three months. The appellant submits that the proper approach is to first consider each offence separately, determine the appropriate sentence for each offence, and then to consider whether the sentences imposed should be cumulative or concurrent. After those things have been done, the sentencing authority should then determine whether the contemplated sentence is so crushing as to call for a reduction. The appellant refers to R v Major (1998) 70 SASR 488. The appellant refers to the danger identified by Doyle CJ in R v Major (supra), which may arise if the sentencing authority does not adopt this approach. Doyle CJ said (at 490):
“If the judge does not do this, there is a real danger that a single sentence imposed under s18A of the Act will lack a proper basis and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.”
However, as the recent decision of this Court in R v P [2003] SASC 428 makes clear, it is not always appropriate to apply that approach. In some cases the appropriate approach is to commence with a global figure, which seems appropriate to the overall offending and then reduce it by mitigating circumstances such as a plea of guilty, remorse, efforts at rehabilitation and the like.
Although I recognise it is difficult to define precisely the principles which govern the question of when a case should be dealt with by reference to the principles in R v Major or by commencing with a global figure, I think that this case falls into the latter category. I say that because the first four counts were apparently part of the one episode. There is also the complication that the maximum penalty in the case of five of the six counts is a fine in the alternative to a term of imprisonment. The maximum penalties for the offences in respect of which the appellant was sentenced are:
Count 1 - $2,500 or 6 months imprisonment,
Count 2 - $10,000 or 2 years imprisonment,
Count 4 - 10 years imprisonment,
Count 5 - $10,000 or 2 years imprisonment,
Count 6 - $10,000 or 2 years imprisonment,
Count 7 - $10,000 or 2 years imprisonment.
Clearly, regard must be had to each of the penalties, but I do not think the Magistrate erred in starting with a global figure if that indeed was what he did. However, that is not the end of the matter because it still leaves for consideration whether a term of imprisonment of three months was manifestly inadequate in the sense that it represented a significant departure from the required sentencing standard.
A sentence of three months imprisonment does seem low, particularly bearing in mind that the respondent has a bad criminal record and the offences were committed while he was on parole.
On the other hand, the circumstances surrounding offences of the nature committed by the respondent will vary significantly from case to case and I was not referred to any authorities which suggested a standard for the offences under consideration.
In all the circumstances, I am not satisfied that the sentence of three months imprisonment was manifestly inadequate.
Conclusions
The appeal must be allowed and the sentence set aside. I impose a sentence of three months imprisonment, thereby enlarging the head sentence to four years, four months and 19 days. Having regard to the matters put to the Magistrate and to me including the 10 day period the appellant spent in custody in June 2003, I extend the non-parole period by one month to a period of 10 months. I make orders accordingly.

[2004] SASC 38

11 February 2004