R v Cain No. Sccrm-02-83

R v CAIN
[2002] SASC 167
Court of Criminal Appeal: Doyle CJ, Perry and Lander JJ

DOYLE CJ. I would allow the appeal, set aside the sentence imposed by the District Court, substitute a single sentence of imprisonment for four years,, and fix a non-parole period of two years six months. The sentence and non-parole period should commence from 18 November 2001.
I agree with the reasons of Perry J for so ordering.
PERRY J. The appellant appeals by leave against sentences imposed upon him in the District Court sitting at Mount Gambier following his plea of guilty to charges of aggravated serious criminal trespass, serious criminal trespass and larceny.
Two of the offences, namely aggravated serious criminal trespass and larceny, occurred on 17 November 2000, when the appellant, in company with others, entered a hotel room at Mount Gambier where a man was sleeping. The appellant stole his wallet and a watch.
The appellant was apprehended on the same day, that is, 17 November 2000. When interviewed by police officers he denied any involvement, although he admitted being at the hotel at the time.
Before he had been dealt with for the Mount Gambier offences, namely on 7 May 2001, the appellant committed another non-aggravated serious criminal trespass. He was dealt with for that offence at Christies Beach Magistrates Court on 1 August 2001. He was sentenced to six months imprisonment, the commencement of which was dated back to 7 May 2001.
On & November 2001, having served that sentence, he was released from custody.
On 14 November 2001 the appellant pleaded guilty in the District Court to the two Mount Gambier offences. He was remanded on bail.
Four days later, on 18 November 2001, while on bail, the appellant was at the Strathalbyn race-course. He saw a bag in the catering section of the race-course. Thinking that it might contain money, he waited outside until the room was empty, whereupon he took the bag and ran off with it. The bag contained $4,250.
This offence occurred in broad daylight while a number of people were present. The appellant was quickly apprehended while running through the race-course with the bag, which was recovered with the money intact. In the result, he was charged with criminal trespass in a non-residential building and larceny of the money in the bag.
The sentences under appeal were imposed on 28 February 2002. The learned sentencing judge who imposed sentence imposed a single sentence for all four matters which were before him, that is, the two Mount Gambier offences and the two Strathalbyn offences.
His starting point was a period of imprisonment of 8 years from which he deducted 18 months for the pleas of guilty. This resulted in a head sentence of 6 years and 6 months against which he fixed a non-parole period of 4 years.
He directed that the head sentence and non-parole period both commence on the date upon which the appellant had last been taken into custody, which was the date of the Strathalbyn offences, that is to say, 18 November 2001.
The learned sentencing judge expressly adverted to a submission which had been put to him that he should suspend the sentence, but he held that there was “no good reason to do so”.
In his notice of appeal the appellant complains that both the head sentence and the non-parole period are manifestly excessive, and further, that the appellant was “sentenced on a wrong basis”.
At the time of the Mount Gambier offences, the appellant was aged 18 years. When sentenced in February this year he was aged 19, almost 20 years. The appellant had accumulated a lengthy record of offending while a juvenile, commencing in 1996. These included charges of robbery, larceny, breaking and entering and illegal use of motor vehicles.
The Mount Gambier offences were the first offences committed by him at an adult. The Strathalbyn offences were the third, the offence for which he was dealt with in the Christie Beach Magistrates Court in August 2001 having supervened.
The learned sentencing judge had before him a pre-sentence report and a psychiatric report.
It is clear from those reports, as was accepted by the learned sentencing judge, that the appellant had a most unfortunate family background, which included experiences as a young child waiting in his car while his father was breaking and entering premises. His childhood was also marked by conflict between his parents, accompanied by domestic violence.
It does not appear that the appellant has enjoyed any enduring relationships either with his family members or others. Drug and alcohol abuse have contributed to his problems.
Apart from the consequences of drug dependence and drug abuse, the psychiatrist was not able to identify any psychiatric disorders.
Neither of the reports which were before the learned sentencing judge give much hope for the future. Both recognise a real risk of re-offending.
Mr Boylan for the appellant emphasised the appellant’s youth and the fact that the Mount Gambier offences were the first offences committed by him as an adult. While the six months imprisonment served as a result of the penalty imposed in the Christies Beach Magistrates Court was served in gaol, he pointed out that the appellant was unrepresented when dealt with in that court. He inferred that had his client been represented, the outcome might not have been so severe. With respect to Mr Boylan, I would not accept that submission, as one has to assume that the appellant was dealt with appropriately on that occasion, whether he was represented or not.
As for the ground of appeal which complains that the defendant was sentenced “on a wrong basis”, this is based upon the fact that during the course of his sentencing remarks, the learned sentencing judge treated the six months sentence of imprisonment imposed for non-aggravated serious criminal trespass as pre-dating the Mount Gambier offences.
When the error was pointed out to the judge after he had pronounced sentence, he indicated that he thought that it made no difference. I agree. I do not think that there is anything in that point.
As for the remaining ground of appeal, namely that both the head sentence and the non-parole period are manifestly excessive, I think that this has more substance. While it is true that the appellant does seem to have drifted into a life of crime at an early age, he is still very young, and it is important to give to him every opportunity to rehabilitate himself.
It must be accepted that the offences were serous. Furthermore, the fact that the Strathalbyn offences were committed so soon after the appellant had appeared in the Mount Gambier court and while he was on bail with respect to the other offences is a circumstance of aggravation. However, even allowing for those matters, I have reached the view that the sentence under appeal is unduly onerous to a degree which prompts the need for this Court to review it.
In all the circumstances, I would think it appropriate to adopt as a starting point a head sentence of 5 and a half years which should be reduced to 4 years on account of the plea of guilty. Against that I would fix a non-parole period of 2 years and 6 calendar months.
I would allow the appeal, quash the sentence under appeal and substitute a sentence in those terms.
LANDER J. I agree that the appeal should be allowed for the reasons given by Perry J and with the sentence which he has proposed.

[2002] SASC 167

31 May 2002