Police v Waters - [2011] SASC 38

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v WATERS
[2011] SASC 38
Judgment of The Honourable Justice Sulan
22 March 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Police appeal against sentence - offence of entering a non-residential building as a trespasser with intention of committing offence and theft - entry into canteen on school premises - broken window and removal of food items - plea of guilty and cooperation with police - imposition of good behaviour bond for 24 months - no conviction recorded - whether sentence manifestly inadequate - whether sentence of imprisonment should have been imposed and suspended having regard to principle of general deterrence.
Held: Appeal dismissed in relation to recording of conviction - circumstances justified Magistrate exercising leniency.
Variation of bond to include a term that the respondent pay compensation.
Criminal Law Consoldiation Act 1935 (SA) s 169(1), s 134(1); Criminal Law (Sentencing) Act 1988 (SA) s 39; Magistrates Court Act 1991 (SA) s 42, referred to.
Police v Jenkins [2011] SASC 2, distinguished.
Osenkowski (1982) 30 SASR 212, discussed.
R v Delphin (2001) 79 SASR 429; Uznanski v Searle (1981) 26 SASR 388; Police v Cadd (1997) 69 SASR 150; Everett v The Queen (1994) 181 CLR 295, considered.

POLICE v WATERS
[2011] SASC 38
Magistrates Appeal: Criminal

SULAN J:             This is an appeal by the police against a sentence imposed in the Magistrates Court for the offences of entering a non-residential building as a trespasser with the intention of committing an offence, and theft.[1] The Magistrate released the respondent without recording a conviction. He ordered that the respondent, Mark Steven Waters, be released upon entering into a bond to be of good behaviour for 24 months, and to come up for sentence if called upon. The Magistrate did not indicate which section of the Criminal Law (Sentencing) Act 1988 (SA) he relied upon, but the terms of the bond suggest he relied on section 39, which states as follows.[2]
[1]    Criminal Law Consolidation Act 1935 (SA) s 169(1) and s 134(1).
[2]    Criminal Law (Sentencing) Act 1988 (SA) s 39.
39 – Discharge without sentence on defendant entering into bond
(1)     Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond –
(a)to be of good behaviour; and
(ab)to comply with the other conditions (if any) included in the bond; and
(b)if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)   However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)     Where a defendant is discharged under this section –
(a)no fresh prosecution may be commenced in respect of the offence; and
(b)the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
The appellant argues that the sentence was manifestly inadequate. It is the appellant’s case that the offences were too serious to justify the decision of the Magistrate. It was put on behalf of the appellant that the maximum penalty for each offence is ten years’ imprisonment, which demonstrates the seriousness of the offences, and that the Magistrate failed to have sufficient regard to the principle of general deterrence when considering this type of criminal activity.
The appellant sought to rely upon the decision of R v Delphin.[3] Counsel submits that the penalty should have been a sentence of imprisonment, but did not oppose the court suspending that sentence.
[3] (2001) 79 SASR 429.
The respondent was unrepresented. He submits that the sentence imposed by the Magistrate was appropriate in all the circumstances.
Background
The facts are that at about 2.00 am on 10 July 2010 the respondent smashed a window of the Greenacre’s school canteen and removed items of food, including tuna, biscuits and crisps worth less than $50. When he broke the window, the respondent activated the silent alarm. The police responded. When they arrived at the premises, they were approached by the respondent who told them that he had just smashed windows at the school and had gone in to get some food. When police confirmed that the premises had been broken into, they arrested and charged the respondent.
The respondent, at all times, admitted responsibility. The respondent pleaded guilty. He was 28 years of age at the time, and was in full-time employment. He told the Magistrate that he had been severely affected by alcohol, having become intoxicated because he was having a difficult time at work. He was walking past the school and decided to smash the window to steal some food because he was hungry.
As I have indicated, the respondent did not attempt to run away from the scene. When the police arrived, he immediately handed himself over, took them to the scene of the breaking, and admitted his offending.
Counsel for the police accepted that this was unpremeditated conduct, that that the respondent was of previously good character and that he had cooperated with the police and with the court.
The Magistrate noted that the respondent was immediately apologetic for his conduct, that he had cooperated with the police, and that he had pleaded guilty. He took into account that the respondent was then currently employed, that he held a truck driver’s licence and that he was a productive member of the community. He had regard to the circumstances of the offending and noted that this was an unpremeditated act when the respondent was grossly intoxicated and not thinking clearly. He observed that offences of serious criminal trespass and theft are serious offences which would normally result in severe penalties. He balanced that factor against personal factors and the circumstances of the offending. He concluded that he was still of the view that he should show leniency. He then proceeded to release the respondent without conviction.
Discussion
The offences are serious offences. Counsel for the police conceded that the Court could exercise its discretion, as the Magistrate did in this case in respect of these offences, but she argued that there was nothing exceptional about this offending and that, in the ordinary course of events, a conviction should be recorded. She referred to the decision in Police v Jenkins,[4] in which Vanstone J upheld an appeal by the police against a Magistrate’s decision not to record a conviction in a case of serious criminal trespass in a place of residence and theft of items from that residence. In her decision, Vanstone J referred to the facts of the case as of “unusual seriousness”. The offence in that case involved the entry into a house and the theft of a quantity of electrical equipment of some value. The offender in that case knew the premises, because he had been informed by another man who had lived in the premises as a house-sitter where valuable goods were situated. The offending was premeditated and the value of the goods stolen was substantial. Other people were also involved. The facts of that case are distinguishable from the present case.
[4] [2011] SASC 2.
In upholding the appeal, Vanstone J observed that the power given to the courts to discharge an offender without conviction, pursuant to sections 16 and 39 of the Sentencing Act are an important part of the court’s options to be used when sentencing and when appropriate. She observed that the recording of a conviction constitutes an important part of the imposition of penalty, and forms part of the deterrent effect of sentencing. I agree. Nevertheless, there are cases when the circumstances of the offending and offender are such that it is open to the court to exercise its discretion, pursuant to section 39 of the Sentencing Act. The Magistrate considered this to be one of those cases.
In Uznanski v Searle,[5] King CJ considered section 19B(1) of the Crimes Act 1914 (Cth) which created a discretion in the court if the court was of the opinion that it was inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it was expedient to release a person on probation. A magistrate had released the respondent who had committed the charge of forgery and uttering social security cheques. He was a young man who had a good work record and who had only minor previous court appearances in court and no prior convictions for dishonesty. King CJ observed:
The appellant is a young man being 20 years of age at the time of the commission of the offences. He was unemployed and prior to losing his employment had a good work record. Although he had had minor court appearances there were no prior convictions for dishonesty. It seems to me that these matters relating to the age, character and antecedents of the appellant would in themselves attract the discretion.[6]
…
The exercise of a discretion miscarries when the court possessing the discretion misapprehends the principles upon which the discretion is to be exercised, misunderstands relevant facts, fails to take into account relevant circumstances, or takes into account extraneous considerations. If, of course, the manner in which the discretion is exercised is such that no reasonable tribunal could exercise the discretion in that way unless it had erred in one of the respects mention, an appellate court will conclude that some such error has occurred although none is disclosed. In my opinion, it has not been demonstrated that there has been a wrong exercise of discretion in the present case.[7]
[5] (1981) 26 SASR 388.
[6] Ibid 389.
[7] Ibid 389.
Principles regarding prosecution appeals
Ms Halliday submits that the Magistrate should have imposed a sentence of imprisonment. She further submits that, in this case, it would be appropriate to suspend that sentence.
Section 42 of the Magistrates Court Act 1991 (SA) provides that an appeal lies to the Supreme Court in a criminal action. This includes an appeal against sentence. In Police v Cadd,[8] Doyle CJ discussed the applicable principles to be applied in cases of appeals against sentence from the Magistrates Court. He considered that the principles stated in Everett v The Queen[9] apply. In that case, Brennan, Deane, Dawson and Gaudron JJ expressed the position as being that an appeal against sentence should be exercised only in the rare and exceptional case. In Police v Cadd, Doyle CJ referred to the judgment of King CJ in R v Osenkowski,[10] in which King CJ stated:
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. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.[11]
[8] (1997) 69 SASR 150.
[9] (1994) 181 CLR 295, 299-300.
[10] (1982) 30 SASR 212.
[11] R v Osenkowski (1982) 30 SASR 212, 212-13, as cited in Police v Cadd (1997) 69 SASR 150, 158-59 per Doyle CJ.
Duggan J agreed. He said:
It is the practice of appellate courts to exercise restraint when dealing with such appeals. This restraint is appropriate by reason of the purpose of prosecution appeals and “time honoured concepts of criminal administration.” The main concept has been described as “double jeopardy” in the sense that the respondent’s liberty in particular might be put in jeopardy before a sentencing court and the appellate court.[12] (Citations omitted)
[12] Police v Cadd (1977) 69 SASR 150, 172.
Mullighan J agreed with Doyle CJ. He considered that the comments of King CJ in Osenkowski were equally applicable to an appeal from a decision of a Magistrate.
Counsel for the appellant did not point to any specific error, but submits that the penalty was so unreasonable as to shock the public conscience and, therefore, the Magistrate’s discretion miscarried.
The offences of entering a non-residential building as a trespasser and theft are serious offences. Parliament has made it clear that such offences are to be regarded as serious by setting maximum penalties of ten years’ imprisonment for each offence. Nevertheless, there are instances in which, having regard to the circumstances of the offence and the personal circumstances of the offender, a court can exercise leniency beyond that which will usually be justified.
In this case, the respondent was a 28-year-old man with a good work record, who had never offended before this night. The offences were committed on the spur of the moment. The respondent immediately regretted his acts, and surrendered to the police. He pleaded guilty at the first opportunity, accepted full responsibility and apologised for his conduct. The conduct was a momentary, drunken folly and completely out of character.
In my view, the circumstances were of a type which justified the Magistrate in exercising leniency. The Magistrate considered that, at this stage of the respondent’s life, it was expedient to be merciful. This was an isolated event, and the respondent is unlikely to offend in the future.
This is not a case in which I should interfere with the Magistrate’s discretion.
There is, however, one aspect of this matter that does not appear to have been considered by the Magistrate. The respondent’s conduct caused damage and loss. I am informed that the cost to the school totalled $571.28. I would therefore propose to vary the terms of the bond to require the respondent to pay compensation in the sum of $571.28, that payment to be made to the Sheriff of South Australia.
Insofar as the appeal seeks to overturn the exercise of the Magistrate’s discretion not to record convictions, I dismiss the appeal. I would, however, vary the terms of the bond to include a term that the respondent makes a compensation payment of $571.28, that payment to be made within 28 days.