R v BAKER - [2005] SASC 389

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BAKER
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Besanko and The Honourable Justice Layton)
7 October 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appeal against sentence – plea of guilty to three counts criminal trespass, three counts of theft, one count breach bail – course of offending in company of older males – young offender – first offences as adult – prospects of rehabilitation – whether sentencing judge erred in failing to suspend sentence – sentence suspended.
Criminal Law (Sentencing) Act 1988 s 10(2), referred to.

R v BAKER
[2005] SASC 389
Court of Criminal Appeal: Debelle, Besanko and Layton JJ

DEBELLE J: This is an appeal by leave against sentence.
On 28 June 2005 in Port Augusta the appellant pleaded guilty to a number of offences on two informations. The charges on the first information related to two sets of offending. The first set of offending comprised one count of non‑aggravated serious criminal trespass committed between 23 and 26 September 2004 at a residence at Koolunga and one count of theft from those premises. The appellant had stolen computer equipment and computer games from those premises. A camera and lens were also stolen but were not found with the appellant. The total value of the goods stolen amounted to some $600. The second set of offending comprised one count of aggravated serious criminal trespass committed at the Koolunga Bowling Club on the night of 28 and 29 September 2004 and one count of theft from those premises. The appellant had stolen food and liquor and a fire extinguisher from those premises. The goods stolen and the damage caused amounted to about $400 ‑ $500.
The appellant was arrested in respect of that offending and was released on bail. While on bail, the appellant committed the offences the subject of the second information. That offending was constituted by one count of aggravated serious criminal trespass committed on 17 October 2004 at an electrical store at Laura and one count of theft from those premises. The appellant had stolen computer games, 21 packets of cigarettes, 300 instant money tickets and other items. The total value of the goods stolen and the damage approximated $2,300. The appellant was also charged on information with failing on 17 October 2004 to comply with a term of a bail agreement entered into on 29 September 2004 in that he had failed to comply with the condition as to curfew on the night of 17 October.
For all the above offending the appellant was sentenced to imprisonment for two years and five months. A non‑parole period of 12 months was ordered. The sentencing judge considered whether to suspend the sentence but declined to do so.
The appellant’s only ground of appeal is that the sentencing judge should have suspended the sentence. It was submitted on behalf of the appellant that, when declining to suspend the sentence, the sentencing judge gave insufficient weight to the appellant’s youth and prospects of rehabilitation.
On the hearing of the appeal, Mr Brebner QC, who appeared for the respondent, commendably drew the Court’s attention to the fact that the sentencing judge had erred in classifying one offence. The sentencing judge had dealt with the appellant on the footing that the first offending comprised one count of aggravated serious criminal trespass and one count of theft. In fact, the serious criminal trespass was non‑aggravated.
It is a nice question whether the error is of such a kind as to affect the proper exercise of the sentencing discretion and so be reflected in the sentence or affect the decision whether or not to suspend the sentence. On balance I believe the error is of such a kind that this Court should set aside the sentence and sentence the appellant afresh. I turn to consider the appropriate sentence.
The offending was serious. It involved three separate sets of premises and on each occasion goods were stolen from them. The second course of offending was the more serious because it was committed while the appellant was on bail for the offending in late September 2004.
The appellant was aged 18 years at the time of the offending. After the offending on 17 October 2004 the appellant was arrested on 18 October and remanded in custody. He was released on home detention bail on 24 November 2004. He therefore spent some five weeks in custody. That was the first occasion on which he had been in custody. He remained on bail until sentenced on 28 June 2005. The appellant had not been imprisoned before. Ms Chapman, who appeared for the appellant, said that the appellant had found the five weeks spent in custody a frightening but salutary experience.
Ms Chapman submitted that, while on bail, the appellant had demonstrated good prospects of rehabilitation. When arrested, he had made frank admissions to the police. He had pleaded guilty at the first opportunity. He had complied with all conditions of his home detention bail agreement. He had co‑operated with the Community Corrections officer assigned to him. In less than the stipulated time, he had discharged his obligation under an order to perform community service work ordered while he was on bail in respect of other offending unrelated to the offending the subject of this appeal. He had undertaken a course of instruction organised by OARS in managing personal finances. According to his corrections officer, his attitudes have improved and he has started to accept responsibility for his behaviour and he understands that he has done wrong. His corrections officer believes that the appellant had grown up in the six months preceding 28 June.
The appellant has had a troubled and unsettled childhood. He has been diagnosed as having an attention deficit disorder. He left school at the age of 16 years because of the difficulties he was experiencing with that condition. He had been earlier expelled from one school. His mother has suffered for a long time from mental health problems and from alcoholism. In April 2004 she was admitted to Glenside Hospital and was not released until November in that year. While the appellant does not say that his mother’s difficulties caused his offending, it has led to him being very unsettled.
The appellant was employed in two separate unskilled jobs whilst on home detention bail. Both were short‑term employment and did not allow for any long‑term employment. When sentenced, he had an offer of employment pruning vines.
The appellant has used marijuana regularly since he was aged 11 to 12 years. There have been occasions when he has abused it. He says he has not used the drug since 18 October 2004. He did not start drinking alcohol until he was about 18 years and he is not dependent on it.
The sentence of imprisonment for two years and five months ordered by the sentencing judge is in the range of penalties for this kind of offending by a young person. I would reduce it slightly to correct the effect of the error by the sentencing judge. A sentence of two years and three months is appropriate. I would fix a non‑parole period of 12 months. However, as the appellant has already served a period of three months imprisonment, I would reduce each of those terms to two years and nine months respectively.
I turn to the question of suspension of the sentence. The efforts made by the appellant to reform his conduct have been mentioned already. They tell strongly in his favour. However, those prospects of successful rehabilitation must be weighed with the gravity of the offending and, in particular, the fact that the appellant offended while on bail. His prospects of rehabilitation must also be assessed against the fact that this offending has occurred despite court appearances for offending which included three offences of serious criminal trespass for which he was dealt with as a youth. In October 2002 he had one appearance for aggravated serious criminal trespass in respect of a non‑residential building. That offence had been committed in July 2002. In June 2004 he pleaded guilty to a non‑aggravated serious criminal trespass committed in June 2003. On 21 January 2005 he was dealt with for a non‑aggravated serious criminal trespass committed in April 2004. In addition he had one appearance for an offence of dishonesty committed in November 2003. It would have been noticed that his offending in September and October 2004 occurred notwithstanding his arrest for the offending on 7 April and being dealt with in the Youth Court on 11 June 2004.
It is a very serious matter to sentence a person of such youth to imprisonment. The offending of which the appellant is guilty occurs all too frequently and, in the case of the count of non‑aggravated serious criminal trespass, regard must be had to the fact that a primary policy of the criminal law is to protect the security of the lawful occupants of a home from intruders: s 10(2) of the Criminal Law (Sentencing) Act 1988. At the same time, the Sentencing Act requires the rehabilitation of an offender to be balanced with the need for deterrence, both personal and general. Imprisonment is a penalty of last resort. The offending was serious and on one view the appellant seems to have learned little from his previous court appearances. However, it does appear that he has benefited from the supervision of a corrections officer for the period of some eight months before he was sentenced in June last year. This is the first occasion on which he has been subjected to such a régime and he appears to have responded favourably to it. The offending as a youth did not lead to any order for supervision. The appellant would be more likely to benefit from a period of supervision as a condition of a suspended sentence than by a further period of incarceration.
In addition, the appellant has served a period of some three months since the sentence was imposed in June 2005. The salutary effect of the period in custody in October to November 2004 will have been reinforced. The appellant has had the experience of hearing the gaol door close behind him.
In all the circumstances I would suspend the sentence of imprisonment.
I would therefore allow the appeal. I would set aside the sentence and in lieu thereof sentence the appellant for a period of two years imprisonment. I would fix a non‑parole period of nine months. I would suspend the sentence upon the appellant entering into a bond to be of good behaviour for a period of two years. It will be a term and condition of that bond that the appellant be under the supervision of a corrections officer and comply with the reasonable directions of the corrections officer.
BESANKO J: This is an appeal against sentence. The facts are set out in the reasons for judgment of Debelle J. I agree with the orders proposed by Debelle J. I make the following observations as to the reasons why I think it is appropriate to suspend the sentence of imprisonment.
The sentencing judge sentenced the appellant for a number of offences, including one count of aggravated serious criminal trespass in a place of residence, being the residence of Mr Phillip Lange. In fact, he should have sentenced him for non-aggravated serious criminal trespass in relation to that count. Clearly, that is a material error in the sentencing process. The error did not come to light until on appeal it was raised and conceded by the Director of Public Prosecutions. The error means that this Court must consider if a different sentence should have been passed.
It is a combination of factors which leads me to the conclusion that there is now good reason to suspend the sentence. First, the appellant’s age is a relevant factor. He was a little over 18 years old at the time of the offending in September and October 2004 and this was his first offending as an adult. However, as against that, the appellant offended as a youth and has a record including offences of serious criminal trespass (aggravated and non‑aggravated) and larceny. The details are set out in the reasons for judgment of Debelle J. The appellant’s record of offending as a youth significantly reduces the weight that might otherwise be put on the fact that he is a young man. Secondly, the appellant spent about five weeks in custody between October and November 2004 and was then placed on home detention bail. He was under the supervision of a community corrections officer between November 2004 and the date he was sentenced. It was said by counsel for the appellant that, in terms of his prospects of rehabilitation, weight should be placed on the fact that he did not reoffend during that time. I do not think the fact that he did not reoffend during that limited period is of particular significance. What I think is significant is that the community corrections officer who supervised the appellant gave evidence before the sentencing judge and spoke of the appellant’s cooperative attitude and, importantly, a change in his attitude over the period from an immature youth to a person who is starting to accept responsibility for his actions. Of course, it remains to be seen whether the appellant’s steps towards rehabilitation continue. Thirdly, the appellant has spent four months or so in gaol in relation to this offending and therefore there has been a real element of personal deterrence for the offending. It is because of the combination of these circumstances, rather than any of them alone, that I join in the orders whereby the term of imprisonment is suspended.
LAYTON J: I have had the opportunity to read the draft reasons for decision of Debelle J. I agree with the orders proposed by his Honour and with his reasons.