R v Addison - [2012] SASCFC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v ADDISON
[2012] SASCFC 46
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Kourakis)
2 May 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
The appellant appealed against a sentence imposed upon him by a Judge of the District Court of South Australia for multiple offences – resulting from a crime spree on 12 November 2010, the appellant was charged with and pleaded guilty to aggravated serious criminal trespass in a place of residence, unlawfully interfering with a motor vehicle, theft, and further offences of serious criminal trespass, theft, and breach of his bail agreement – the sentencing Judge sentenced the appellant for these offences together with a number of offences the appellant had plead guilty to in the Magistrates Court of South Australia comprising three counts of providing false information to a second hand dealer, theft, damaging property, and two further counts of breaching his bail agreement – the offences of 12 November 2012 were committed while the appellant was subject to two good behaviour bonds – the first good behaviour included a sentence of six months’ imprisonment, which was suspended – the second good behaviour bond included a sentence of none months’ imprisonment, which was suspended – the appellant admitted breach of the two good behaviour bonds – the appellant also pleaded guilty to a further charge of breach of bail – the sentencing Judge ordered that the suspended sentences from the good behaviour bonds be carried into effect and were to operate cumulatively – in relation to all of the other offences, the Judge imposed a single sentence of imprisonment for eight years reduced from ten years on account of the pleas of guilty – the total head sentence was nine years three months imprisonment with a non-parole period fixed at five years six months.
The ground of appeal was whether the sentences imposed by the District Court of South Australia were manifestly excessive – the issues before the Court put in support of that ground were: (1) whether the sentencing Judge’s comment that the offence of aggravated criminal trespass was a very serious one, and might, standing alone, merit a sentence of about eight years’ imprisonment was put too high; (2) whether the sentence imposed by the Judge was within an acceptable range in the light of the objective seriousness of the offending conduct; (3) whether the sentencing Judge made an appropriate reduction for the plea of guilty; (4) whether considerations of totality called for a reduction in the sentence.
Held: the sentences imposed by the District Court were not manifestly excessive: (1) the comment made by the Judge referred to the three offences committed at the G home and does not reflect error – imprisonment was warranted for the offences for the three offences of breach of bail and the offence of theft by receiving; (2) the sentence imposed was well within an appropriate range; (3) the reduction made for the plea of guilty was also within an appropriate range; (4) although this was a severe sentence for a man who had not been previously imprisoned, considerations of totality did not call for a reduction of the sentence in the circumstances – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 85(2), s 86A, s 134(1), s 169(1), s 170(1); Bail Act 1985 (SA) s 17, referred to.

R v ADDISON
[2012] SASCFC 46
Court of Criminal Appeal: Doyle CJ, Vanstone and Kourakis JJ

DOYLE CJ: Mr Addison has been granted permission to appeal against sentences imposed by the District Court. He argues that the sentences are manifestly excessive. The District Court dealt with a number of offences, and with two applications to enforce breaches of a bond. It is necessary to briefly summarise the matters with which the Court dealt.
Offences
I begin with a group of offences committed on the night of 12 November 2010.
That night Mr Addison entered a house occupied by the G family. One of them found him at the door of the house. He was tackled by members of the family and detained by them. I gather that he put up some resistance. He had a small knife in his hand, but does not appear to have threatened to use it. He pleaded guilty to a charge of aggravated serious criminal trespass, contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) for which the maximum punishment is imprisonment for life. Investigations revealed that he had already interfered with a motor vehicle belonging to a member of the family. He pleaded guilty to unlawfully interfering with the motor vehicle contrary to s 86A of the CLCA. The maximum punishment for that offence is imprisonment for not less than three months and not more than four years, this being a subsequent offence. It also emerged that Mr Addison had taken property from the house before he was tackled by the occupants. He pleaded guilty to a charge of theft, contrary to s 134(1) of the CLCA. The maximum punishment for that offence is imprisonment for ten years.
Property that police found as a result of their investigations linked Mr Addison to an offence of serious criminal trespass committed earlier that night. Mr Addison had removed property from a garage attached to other premises. In respect of this offence Mr Addison pleaded guilty to a charge of serious criminal trespass, contrary to s 169(1) of the CLCA, attracting a maximum punishment of imprisonment for ten years.
Mr Addison was found by police to be in possession of two coins and a pen, in respect of which he pleaded guilty to a charge of theft by receiving, contrary to s 134(1) of the CLCA. The maximum punishment for that offence is ten years’ imprisonment.
When he committed these offences Mr Addison was on bail. By being away from his residence at the time, he was in breach of a curfew condition. He pleaded guilty to a charge of breaching his bail agreement, contrary to s 17 of the Bail Act 1985 (SA), which offence attracted a maximum punishment of imprisonment for two years or a fine of $10,000.
He was either committed to the District Court for sentence on these offences, or the matter was brought before the District Court for sentence. A number of these offences are quite serious. Others are not so serious. But taken together, this amounted to a significant incursion into criminal activity. If separate sentences were imposed for each offence, one would expect the court to implement a degree of concurrence as between the sentences imposed in respect of the offences involving the G family, and probably also in relation to the breach of bail. There is no particular reason for imposing concurrent offences in respect of the two criminal trespass offences.
A number of other matters on which Mr Addison had been charged in the Magistrates Court were brought before the Judge. I turn now to them.
On 17 August 2010 property with a substantial value was stolen by Mr Addison from premises owned by Mr M. Mr Addison disposed of some of the property by making false statements to a second hand dealer. In respect of this incident he pleaded guilty to two counts of theft, each attracting a maximum punishment of ten years’ imprisonment. He pleaded guilty to three counts of providing false information to the second hand dealer, this offence attracting a maximum punishment of a fine of $10,000.
On 28 or 29 September 2010 Mr Addison stole a bicycle, which he disposed of to a second hand dealer. In respect of this he pleaded guilty to one count of theft, attracting a maximum punishment of ten years’ imprisonment, and one more count of providing false information to a second hand dealer. As indicated above, this offence attracts a fine only.
Mr Addison next pleaded guilty to a charge of damaging property contrary to s 85(2) of the CLCA. This offence attracted a maximum punishment of imprisonment for ten years. The offence involved apparently random conduct in smashing the window of a motor car. Mr Addison was on bail at the time, and the commission of the offence involved a breach of one of the curfew conditions of the bail. He pleaded guilty to breaching his bail agreement, contrary to s 17 of the Bail Act. That offence attracted a maximum punishment of two years’ imprisonment or a fine of $10,000.
Mr Addison pleaded guilty to a further charge of breach of bail committed on 28 October 2010. He was not present at his residence at a time at which, by the conditions of bail, he was obliged to be present. This offence also attracted a maximum punishment of imprisonment for two years or a fine of $10,000.
At the time of the offences committed on 12 November 2010, Mr Addison was subject to two bonds to be of good behaviour, each of which bonds he breached on that occasion. One of the bonds was a condition upon which a sentence of six months’ imprisonment was suspended. The other was a breach of a bond on condition of which a sentence of nine months’ imprisonment was suspended. Mr Addison admitted the breach of each of these bonds.
Mr Addison pleaded guilty to a further charge of breach of bail on 28 January 2011.
The sentence
The Judge summarised the offending for which Mr Addision was to be sentenced.
He noted that Mr Addison had a poor record, involving offences beginning in 2003, when Mr Addison was 14 years of age, he having been born in July 1989. His offending involved dishonesty offences, relatively minor offences involving violence in one form or another, motor vehicle offences and other relatively minor offences. However, as already noted, he had previously been given the benefit of a suspended sentence. He had not previously served a sentence of imprisonment.
The Judge noted that Mr Addison was 22 years of age. He had had an unsettled childhood, a poor education and had no work qualifications. He had abused alcohol and drugs. The Judge was told that the spate of offending began when, after the ending of a domestic relationship that had lasted some 18 months, Mr Addison began using large amounts of cannabis and methylamphetamine.
The Judge noted, and I agree, that Mr Addison had shown no regard for court orders. The Judge had the benefit of a report from a psychologist. The psychologist suggested that Mr Addison had gained some insight into his offending behaviour, but noted that he had not yet had the opportunity to implement the changes in his own behaviour that he identified as necessary. Bearing in mind the pattern of unlawful behaviour that Mr Addison’s past and present offending disclosed, there is nothing in the psychologist’s report that enables one to say with any confidence that Mr Addison will change his ways.
Having found that each of the bonds referred to had been breached, the Judge ordered that the suspended sentences be carried into effect. As to the sentence of six months’ imprisonment, the Judge directed that that take effect from 7 January 2011, to make allowance for time spent in custody.
As to the next bond, the Judge directed that the sentence of imprisonment of nine months be carried into effect, and that it operate cumulatively upon the sentence of six months.
In relation to all other offences for which imprisonment was available as a penalty, the Judge imposed a single sentence of imprisonment for eight years. But for the pleas of guilty the sentence would have been one of ten years’ imprisonment. This sentence was to be cumulative on the other two sentences.
The end result was a sentence of nine years three months’ imprisonment. The Judge fixed a non-parole period of five years six months.
The Judge made orders for disqualification from holding or obtaining a driver’s licence, the details of which do not matter.
Submissions on appeal
Mr Mancini, counsel for Mr Addison on appeal, referred to a comment by the Judge that the offence of aggravated serious criminal trespass was a very serious one, and might, standing alone, merit a sentence of about eight years’ imprisonment. Mr Mancini submitted that this was too high.
I am satisfied that when he said this, the Judge was referring to the three offences committed at the G home. So understood, the comment does not reflect error.
Mr Mancini made the point that the Judge had erred in imposing a single sentence in respect of all offences for which imprisonment was available as a penalty. He pointed out that, having regard to ordinary principles, the Judge should have imposed a sentence of imprisonment only in respect of those offences that actually warranted imprisonment, and not in respect of any offence for which imprisonment was available. However, I do not agree with Mr Mancini’s submission that imprisonment was not warranted for the offences to which the Judge referred, the three offences of breach of bail, and for the offence of theft by receiving. When one views Mr Addison’s conduct as a whole, I consider that a relatively short period of imprisonment was warranted for each of these offences. Accordingly, the error in reasoning to which Mr Mancini points leads nowhere. Quite apart from that, as will appear, I consider that the sentence that the Judge imposed was well within an appropriate range.
Mr Mancini emphasised that Mr Addison was relatively young and had never been to gaol before. He pointed to the indications in the material before the Judge that Mr Addison might now be intending to change his ways, having realised the seriousness of his situation. On the other hand, Mr Addison has a poor record, his conduct involved some serious offences, and he has previously had the benefit of a bond. He appears to be a persistent offender, who shows no regard for the law. His breaches of bail and breach of bond are symptomatic of that attitude.
My initial impression was that the sentence imposed was not manifestly excessive. This is a case in which it would have been helpful if the Judge had given an indication of how he arrived at the sentence of eight years’ imprisonment. I performed that exercise for myself. The offences involving the G family warranted a sentence of imprisonment in the range three years to seven years, making some allowance for concurrence. The other offences committed that night, serious criminal trespass and theft, warranted a further cumulative sentence of about two years’ imprisonment. The thefts of 15 August 2010 warranted a cumulative sentence of about two years’ imprisonment. The theft on 28 September 2010 warranted a further sentence of imprisonment for about one year. The breaches of bail on 28 October and 29 October warranted imprisonment for about one year, as did the breach of bail on 28 January 2011. That leads to a total in excess of ten years’ imprisonment, on the basis that each separate offence or group of offences should be punished cumulatively, as they probably should. That total is subject to a reduction for the pleas of guilty. On that basis I conclude that the Judge’s sentence was within an acceptable range.
In my opinion no criticism could be made for the reduction of the plea of guilty. That also was well within an appropriate range. I do not agree that considerations of totality called for a reduction in the sentence, although I recognise that this was a severe sentence for a man who has never previously been imprisoned. Mr Addison has to face the fact that a substantial period of offending of the kind upon which he embarked, will have severe consequences.
Conclusion
For those reasons in my opinion no error in the sentence has been demonstrated. I would dismiss the appeal.
VANSTONE J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
KOURAKIS J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.