R v Bennett - [2005] SASC 55

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BENNETT
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice White)
15 February 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant pleaded guilty to five offences involving aggravated serious criminal trespass and theft - the Judge imposd a single sentence of four years with a non parole period of two years - whether sentence is manifestly excessive - appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
R v Delphin (2001) 79 SASR 429, discussed.
R v Smith (2002) 224 LSJS 134; R v Major (1998) 20 SASR 488; R v Place (2002) 81 SASR 395, considered.

R v BENNETT
[2005] SASC 55
Court of Criminal Appeal: Doyle CJ, Vanstone and White JJ

DOYLE CJ: This is an appeal against a sentence imposed by the District Court. Leave to appeal was granted by a single Judge.
The appellant pleaded guilty to five offences. First, aggravated serious criminal trespass in a non-residential building, the offence being committed on 18 March 2004. That offence attracts a maximum punishment of 20 years imprisonment. Second, theft on the same occasion. That offence attracts a maximum sentence of 10 years imprisonment. The third and fourth offences were an offence of serious criminal trespass in a non-residential building and also theft committed on 29 June 2004. The maximum penalty for each of these offences is 10 years imprisonment. Finally, an offence of theft committed on 2 September 2003, which also attracts a maximum penalty of 10 years imprisonment.
The Judge imposed a single sentence of imprisonment of four years, exercising the power conferred by s18A of the Criminal Law (Sentencing) Act 1988. He said that on account of the plea of guilty he had reduced the sentence by “approximately 20 per cent”. He fixed a non-parole period of 2 years 3 months. In each case he said that he had taken into account 7 weeks of imprisonment that the appellant had already served.
The appellant complains that the sentence is manifestly excessive.
The circumstances of the first two offences are that on the spur of the moment, while travelling through Oakbank, the appellant and his father decided to break into the premises of Paech Motors. While in there, they stole seven chainsaws. They were each apprehended shortly afterwards and the property was recovered. The offence seems to have been the result of the appellant and his father having consumed a good deal of beer on the day in question and considering that they needed some money.
The next two offences were committed by the appellant alone. He broke into an IGA Supermarket at Oaklands Park by breaking a window and stole about 800 packets of cigarettes and a small amount of cash. The value of the property taken was about $8000. He was apprehended soon after and the property was recovered.
The third offence was committed at a K-Mart. The appellant stole two pairs of BMX bike gloves and a number of accessories for the operation of a gas barbecue. He was apprehended shortly after leaving the premises and the property was recovered.
It is an aggravating circumstance that the appellant was on bail in relation to the first two offences when he committed the third and fourth offences. It is also relevant to mention that in relation to the first two offences, his father appears to have been the leading party. I am referring to the offences here not in the order in which they were committed but in the order in which I referred to them initially.
The appellant is 28 years of age. He appears to have had fairly steady employment. He is in a relationship with a 27 year old woman and there is a child of that relationship.
The appellant has committed a number of previous offences beginning in 1994. His record is not good, but a number of them are relatively minor and can be put to one side. Some of them are driving offences. However, in January 2000 he was convicted of an offence of being unlawfully on premises and for damaging property and for larceny.
The appellant pleaded guilty at an early stage. The Judge noted that the appellant had been addicted to heroin and that the offences were committed because he was short of money. The Judge appears to have accepted a submission that the appellant had ceased taking heroin by the time he was sentenced. As the Judge said, this was an important step towards the appellant’s rehabilitation. The Judge accepted that this matter, coupled with the fact that the appellant had had fairly regular employment, and was in a relationship, all tended to indicate that he had the capacity to rehabilitate himself provided he could rid himself of his heroin addiction.
The Judge must have started from a head sentence of about 5 years to arrive at a head sentence of 4 years after reducing the sentence by “approximately 20 per cent” on account of the plea of guilty. I do not accept the submission that this sentence is out of line with the pattern of sentencing for offences of the kind in question, for a person who is not a first offender. They are serious offences. Although the property was recovered, damage was done to the premises in question. No doubt a good deal of inconvenience was caused to the proprietors of those premises. A victim impact statement indicates that the proprietor of Paech Motors has suffered considerable upset as a result of the experience.
The decision of this Court in R v Delphin (2001) 79 SASR 429 does not set, in any sense, a rigid or firm benchmark. It is no more than an indicator of the appropriate sentence for a single offence of criminal trespass in a place of residence when the offender is a first offender. The sentence in the present case is not, as it were, to be scaled off against the sentence in Delphin. If anything, the sentence imposed in the matter of R v Smith (2002) 224 LSJS 134 tends to support the approach that the Judge took, but once again it is relevant to say that a single case cannot set a standard.
I am firmly of the view that, taking sentencing patterns as a whole, the sentence imposed by the Judge is consistent with them. I accept that it is not clear just how the Judge made allowance for the 7 weeks spent in custody when fixing the head sentence and the non-parole period. However, he referred to the 7 weeks and clearly intended to allow for them. It is relevant to note that the reduction that he made on account of the plea was “approximately 20 per cent”. There is no reason to think that the Judge erred in this respect. In particular, it cannot be said that a failure to make a further specific allowance for the time spent in custody was an error or that it is indicative of a sentence that is manifestly excessive.
The appellant invokes the principle of totality. In my opinion that has no part to play in this case. It cannot be said that the sentence arrived at is a crushing sentence, and of a kind that requires a further reduction on account of the totality principle. The totality principle cannot be invoked, as it sometimes is by counsel, as a routine basis for reducing an otherwise appropriate sentence. The concept of totality has little or no part to play when a sentence is imposed, exercising the powers conferred by s18A and the judge considers it appropriate to determine that sentence without attributing a notional sentence to each offence and considering whether such sentences should be cumulative or concurrent: cf R v Major (1998) 20 SASR 488; R v Place [2002] SASC 101; (2002) 81 SASR 395 at [114].
In arriving at a sentence without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate. No further reduction under the totality principles should usually be called for.
The relatively good prospects of rehabilitation are matters that called for careful consideration. The Judge referred to them. In my opinion, it cannot be said that the head sentence is excessive, having regard to the prospects of rehabilitation. These were serious offences. Rehabilitation is not the only relevant consideration. It is not even the dominant consideration. It is an important matter, but it must be considered along with other matters and, in particular, in relation to offences of this kind that are prevalent, along with the question of deterrence. Parliament has made it plain that deterrence is a significant aspect of sentencing for this kind of offence.
That leaves only the question of whether, having regard to the prospects of rehabilitation, in all of the circumstances, the non-parole period of two years three months was excessive. It is a relatively low proportion of the head sentence, being about 55 per cent. It is clear that in fixing the non-parole period the Judge considered and allowed for all relevant matters and, in particular, the prospects of rehabilitation.
Finally, it is argued that the Judge erred in not suspending the sentence. In my opinion that submission lacks any substance. It cannot be said that the circumstances of this case are such that a proper exercise of the discretion required the Judge to make an order suspending the sentence. I would dismiss the appeal.
VANSTONE J: I too would dismiss the appeal. I agree with the reasons given by the Chief Justice.
WHITE J: I agree with the order proposed by the Chief Justice and his reasons.
DOYLE CJ: Accordingly, the order of the court is that the appeal be dismissed.