R v Allen

[1999] SASC 346

ALLEN v R

[1999] SASC 346

Court of Criminal Appeal: Millhouse, Duggan and Lander JJ (ex tempore)

1. MILLHOUSE J:       In my view, the appeal should be dismissed.  I accept the Crown's submission that, while the sentence is severe, it is within the appropriate bracket.  Having fixed the penalty, the learned sentencing judge then suspended the term of imprisonment. 

2. The appellant got himself into the situation which allowed him to be falsely accused of being armed.  If he hadn't come into the supermarket to steal, then that couldn't have happened.  He was able to take an amount of money which may have been as much as $9,000, at least $5,500, to support a heroin habit.   He already had a record of offending. 

3. The learned sentencing judge's approach was justified, although it is regrettable that, in his remarks, he did not say how much he deducted from the sentence for a plea of guilty.  It is desirable that that should always be mentioned. 

4. There is not much point in my going on, as I think I am in the minority.

5. DUGGAN J:              The appellant, who appeals against sentence, pleaded guilty to the offence of larceny.  He was charged originally with armed robbery, but the prosecution accepted the plea of guilty to the lesser offence as an answer to the indictment.  It was also conceded by the prosecution that the appellant should be sentenced on the basis of the facts asserted by him during his interview with the police.

6. Ms Barnett, who appears for the prosecution, conceded that the original allegations which led to the charging of the offence of armed robbery were false.  According to the version given by the appellant to the police, he went to a supermarket at Glandore on 19 June 1998 at approximately 11.15 am.  He went to the supermarket for the purpose of stealing money.  The appellant said that he entered a back room and opened the top drawer of a desk.  There was a bank bag in the drawer which he took before leaving the premises.  There was some doubt as to the amount of money taken, but according to the information provided to the learned sentencing judge, an amount between $5,500 and $9,000 was involved.  No doubt this range was presented to the learned sentencing judge because the prosecution was unwilling to place too much reliance on the evidence of the victim.

7. I think it would have been appropriate in the circumstances to proceed on the basis that the amount stolen was that claimed by the appellant, and Ms Barnett has quite properly conceded that this was the appropriate sentencing basis.  Approximately $4,000 was recovered from the appellant's home, and a further $1,700 was used by the appellant to redeem items from a pawnbroker.

8. The appellant was detained in custody for a period of three months immediately after his arrest, and this was taken into account when fixing the sentence.  The learned sentencing judge sentenced the appellant to imprisonment for 18 months, with a non-parole period of 12 months.  This sentence was suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of three years.  Supervision was ordered for the first 18 months.  There was a requirement to attend counselling or treatment for substance abuse, and the appellant was also required to perform 150 hours of community service.

9. The sentencing judge took into account the appellant's plea of guilty.  The plea to the lesser offence was offered several months before the sentence hearing, and so the appellant was entitled to a reduction in sentence.  The sentencing judge said that he gave the appellant credit for the offer of a plea at an early stage, but said nothing further about this aspect.

10. It seems necessary for this court to say again, as it has done on several occasions in the past, that it is important for sentencing judges to indicate the extent of the reduction in sentence by reason of an early plea of guilty.  This information is necessary in order for the appeal court to gain an accurate understanding of the manner in which the sentence was constructed.  Without it, this court is left to speculate on the extent of the allowance, and the person sentenced is also unaware of the extent of the reduction; R v Harris and Symonds (1992) 59 SASR 300.

11. The notice of appeal complains that the sentence was manifestly excessive and that the learned sentencing judge failed to give adequate consideration to a number of factors, including the appellant's admissions and early offer of a plea of guilty to this offence, time spent in custody and the time that the appellant was required to be on bail under conditions requiring home detention.

12. In sentencing the appellant, the learned sentencing judge was required to consider, first, the appropriate head sentence and the non-parole period for the offence.  This was to be fixed without regard to the effect of suspending the sentence.  After arriving at the appropriate custodial sentence, it was then necessary to consider whether it was appropriate to suspend the sentence.  This court must approach the matter on the same basis.

13. It is relevant to record some aspects of the appellant's background before proceeding to the arguments advanced on appeal.  The appellant is 25 years of age.  He has had two appearances before the Children's Court, one for breaking and entering and the other for robbery in company.  Then, in July 1997, he was convicted of two offences of larceny.  He was a heroin user at the time of the present offence.  However, he has had a reasonable employment record.

14. We have been invited by Mr Mancini, for the appellant, to have regard to the unusual history of this matter after the time when the appellant was charged.  As I have said, the appellant was charged initially with the offence of armed robbery.  That allegation was withdrawn shortly before the scheduled trial of the matter and, as I have already observed, Ms Barnett said that was because of the false nature of the allegations made against the appellant.

15. However, the fact that the appellant was charged with armed robbery no doubt led to the refusal of bail, which resulted in a three-month period of detention and also led to the appellant being on home detention for a period of nine months during the time he was on bail.

16. The latter consideration is a factor which can sometimes be taken into account for sentencing purposes; R v Malesevic (1999) SASC 321. I think it is a relevant factor in the present case in view of the withdrawal of the charge, the existence of which led to such stringent conditions of bail which would not have been imposed if the appellant had faced nothing more than the charge of simple larceny. It should not have been taken into account as equivalent to a period of nine months spent in custody, but it is nevertheless a relevant consideration to the sentencing of the appellant in this case.

17. I think a reduction of approximately 25% is appropriate for the early offer of a plea of guilty.  However, as I have pointed out, the home detention is a relevant factor and the period of three months in custody must also be taken into account.

18. The offence was serious bearing in mind the amount of money stolen, even if the amount was at the lower end of the range referred to by the sentencing judge.  However, it is my view that if the early intimation of a plea, the three months' detention and the undergoing of the home detention are taken into account, then the starting point for this term of imprisonment was too high.  I am also satisfied that it was manifestly excessive.

19. I would allow the appeal for the purpose of reducing the head sentence to a period of imprisonment of 12 months, and I would impose a non-parole period of 9 months.

20. I should add that Mr Mancini has argued that the period of the bond and the requirement to perform community service were not warranted as part of the sentencing package.  However, in my view, those conditions were appropriate.

1. LANDER J:     The appellant was entitled to credit for his frank admissions and his early offer of a plea to the charge for which he was ultimately convicted.  The learned sentencing judge did not identify, as he should have, the credit which he gave for the guilty plea.  The appellant was also entitled to have the learned sentencing judge take into account the fact that he had spent three months in custody in relation to this matter.  He was not entitled to have the learned sentencing judge take into account a further three months spent in custody in relation to another matter. 

2. It was put by Mr Mancini for the appellant that regard should have been had to the fact that when the appellant was released on bail, it was subject to the condition of home detention. It is not incumbent upon a sentencing judge to treat a condition imposed in a bail agreement under s.11(2)(a)(1a) of the Bail Act as though the prisoner served that time in prison. To do so would really be to deny the fact of the bail agreement. Whilst the imposition of such a condition provides more onerous conditions during the period of the bail agreement, the fact of the matter is that the prisoner, when he or she comes to be sentenced, has been on bail; he or she has not been in prison. Whilst a sentencing judge may have regard to the conditions which have been imposed under a bail agreement, the court is not obliged to give credit in relation to those conditions, and certainly not obliged, in my opinion, to give full credit as though the prisoner has served that time in prison; R v Malesevic (1999) SASC 321.

3. However, in this case, the false claim that he was armed and the charge of armed robbery meant that this appellant served three months in prison whilst waiting for bail and then was subject to more onerous bail conditions than he otherwise would have been.  If he had been simply charged with the offence to which he pleaded guilty, he would have been released on bail without conditions shortly after the offence.  Moreover, by reason of the false claim, the appellant has had this matter hanging over his head longer than it should.  If the false claim had not been made, he probably would have been dealt with in the Magistrates Court shortly after the offence. 

4. Taking into account the time spent in custody, the appellant's cooperation with the police, the early offer of a plea and the false claim of armed robbery and the consequences of that claim, a sentence of eighteen months imprisonment is outside the range of penalties which might have been imposed for this offence.  It is so far outside that range, in my opinion, that it might be called, as claimed, manifestly excessive.  I agree with the orders proposed by Duggan J. 

5. MILLHOUSE J.       By majority, the order of the court is: appeal allowed, solely for the purpose of reducing the term of imprisonment from 18 months to 12 months and the non-parole period from 12 months to 9 months.