R v Cattell - [2010] SASCFC 18

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CATTELL
[2010] SASCFC 18
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice White)
2 August 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - IRREGULARITIES - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
Appellant pleaded guilty to a number of property related offences - appellant also admitted breaching good behaviour bond - Judge imposed a single sentence of imprisonment - whether sentence in respect of some of the offences excessive - whether overall sentence excessive - whether reduction for time spent in custody had to be reflected in either the single sentence imposed or in the period of the suspended sentence carried into effect - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 85(2), s 134(1), s 170(1), s 170(2), s 270A; Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 18A, s 30(2), s 58(4)(a), s 58(4)(b), s 58(4)(c); Magistrates Act 1983 (SA) s 22; Summary Offences Act 1953 (SA) s 6(2), s 15(1)(a), s 17(1), referred to.
Police v Miller (2007) 96 SASR 240; R v B, RWK (2005) 91 SASR 200; R v Delphin (2001) 79 SASR 429; R v Major (1998) 70 SASR 488; R v Randall-Smith (2008) 100 SASR 326, considered.

R v CATTELL
[2010] SASCFC 18
Court of Criminal Appeal: Doyle CJ, Bleby and White JJ

DOYLE CJ: Mr Cattell appeals against a sentence imposed by the District Court for a number of offences.
He complains that the sentence in respect of some of the offences is excessive. He complains also that the end result is excessive, even if the sentence attributable to a particular offence is not excessive. The end result was imprisonment for six years nine months (to which should be added three months spent in custody). Included in that overall end result is a suspended sentence of imprisonment for twelve months, which the Judge directed be carried into effect. The Judge fixed a non-parole period of four years.
The sentence imposed by the Judge was a single sentence of imprisonment in exercise of the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the CLSA). When I refer to an “indicated sentence” I am referring to the punishment that the Judge said was attributable to a particular offence or offences.
I agree that two of the indicated sentences are at the upper end of an appropriate range, and are severe. But none of the indicated sentences are excessive. The end result is a substantial period of imprisonment, but the end result is not excessive. Mr Cattell has a bad record. Despite previous periods of imprisonment, he continues to offend. He has to learn that he cannot go on like this. There was no point in a merciful sentence.
For the reasons that follow, I would dismiss the appeal. However, for the reasons that I will explain, the Director of Public Prosecutions should make an application to the District Court Judge pursuant to s 9A of the CLSA for an order rectifying an error in the “Report of Prisoner Tried”.
The matters before the District Court
Mr Cattell pleaded guilty before the Judge to a charge of aggravated serious criminal trespass in a place of residence, contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The offence was committed on 23 July 2008. I will refer to this offence as “the District Court offence”.
At the request of Mr Cattell’s counsel, the Judge made an order pursuant to s 22 of the Magistrates Act 1983 (SA) that four matters before the Magistrates Court be brought up to the District Court to be dealt with by the Judge at the same time.
The first Magistrates Court matter was an Information charging an offence of attempted serious criminal trespass in a place of residence contrary to s 170(1) and s 270A of the CLCA. This offence was committed on 24 April 2008. Mr Cattell pleaded guilty.
The second Magistrates Court matter was an Information charging an offence of being on premises for an unlawful purpose on 22 September 2009, contrary to s 17(1) of the Summary Offences Act 1953 (SA) (the SOA), and an offence of carrying an offensive weapon (a knife) without lawful excuse on 22 September 2009, contrary to s 15(1)(a) of the SOA. Mr Cattell pleaded guilty to these offences.
The third Magistrates Court matter was an Information charging an offence of being on premises for an unlawful purpose contrary to s 17(1) of the SOA; an offence of damaging property contrary to s 85(2) of the CLCA; an offence of serious criminal trespass in a place of residence contrary to s 170(1) of the CLCA; an offence of theft contrary to s 134(1) of the CLCA; a further offence of damaging property contrary to s 85(2) of the CLCA; and a charge of hindering a police officer in the execution of his duty contrary to s 6(2) of the SOA. All offences were committed on 21 January 2010. Mr Cattell pleaded guilty to all of these offences.
The fourth Magistrates Court matter was an application for an order that Mr Cattell be dealt with for breach of a two year good behaviour bond entered into by him on 15 November 2007, on the basis of which a sentence of imprisonment for 15 months had been suspended. The alleged breach was a failure to comply with reporting conditions. Mr Cattell admitted the breaches.
Before the Judge was a further application to the District Court alleging a breach of the same bond by virtue of the plea of guilty to the District Court offence. Mr Cattell admitted the breach.
The structure of the sentence
Not surprisingly, the Judge decided to make use of the powers conferred by s 18A of the CLSA to impose a single sentence.
In his sentencing remarks the Judge indicated the sentence that would be appropriate for each matter or group of matters, were separate sentences to be imposed. In a case like this that is a sound approach, because otherwise it would be difficult to assess the complaint that the sentence for some of the offences was excessive: see R v Major (1998) 70 SASR 488 at 490 Doyle CJ; R v B, RWK [2005] SASC 84; (2005) 91 SASR 200 at [17] Doyle CJ and at [25] Vanstone J; R v Randall-Smith [2008] SASC 99; (2008) 100 SASR 326 at [88]-[91] Gray and Layton JJ.
The Judge indicated a single sentence of imprisonment for seven years three months. The Judge then reduced that to six years, having regard to considerations of totality.
In relation to the admitted breaches of the bond, the Judge ordered that the suspension of the sentence of 15 months’ imprisonment be revoked, and that the sentence be carried into effect. However, the Judge reduced the term of the sentence to 12 months’ imprisonment in exercise of the power conferred by s 58(4)(a) of the CLSA. As required by s 58(4)(c) of the CLSA, the Judge directed that this sentence be cumulative upon the sentence for the other offences to which I have referred.
That meant that (subject to what follows) Mr Cattell was liable to serve a single sentence of imprisonment for six years, and then a sentence of imprisonment for one year cumulative upon the six years.
The Judge then reduced the sentence to six years nine months having regard to time spent in custody.
This gave rise to a technical error. The reduction for time in custody had to be reflected in either the single sentence imposed by the Judge or in the period of the suspended sentence directed to be carried into effect: see s 30(2) and s 58(4)(b) of the CLSA. A reduction of three months, not reflected in a particular sentence, was a technical error.
It would have been simpler had the Judge backdated the sentence of six years’ imprisonment to the date when Mr Cattell was taken into custody, which I understand to be 21 January 2010. But in one way or another the technical error has to be corrected.
There is a further technical issue. The approach that the Judge took is not accurately reflected in the “Report of Prisoner Tried” signed by the Judge.
First, under “Sentence Details” the Report refers to an offence of dishonestly taking property, a charge that was not pursued. This offence should not be referred to in this part of the Report.
More significantly, under “Sentence Details” the Report is expressed as if the Judge had imposed the indicated sentence in respect of each offence or group of offences. The Report goes on to state that the Judge considered the total sentence was crushing and therefore reduced the overall figure to six years, having regard to considerations of totality.
The only sentence recorded under “Sentence Details” should have been the single sentence of six years’ imprisonment (subject to the question of how time in custody was dealt with). That is the only sentence that the Judge imposed. There should be no reference to the indicated sentences or to the reduction on the basis of totality, because that is part of the Judge’s reasons, and not part of the sentence itself. It is the end result that is to be recorded, not the process by which the Judge got to that result.
The Report also refers to a “head sentence” of six years nine months. That is incorrect. The total period to be served (the total of the sentence imposed and the previously suspended sentence) is six years nine months. That is not a head sentence.
For these reasons, the Director should apply to the District Court Judge to have the Report corrected under s 9A of the CLSA.
The appeal
The maximum punishment for the District Court offence is life imprisonment. The Judge indicated a sentence of three years’ imprisonment for this offence. But for the plea of guilty it would have been four years. Mr A Crocker points to the fact that in R v Delphin [2001] SASC 203; (2001) 79 SASR 429 this Court said at [47]:
[47]In the circumstances now prevailing, it would seem that in the ordinary case of a single serious criminal trespass in a place of residence, where the intention upon entry is larceny generally, a penalty for a first offence must now be in the order of 20-24 months where a plea of guilty is involved, with serious consideration being given to suspension in the case of a first offender. Relevant factors will include the nature and circumstances of the trespass and the impact of the entry on the victim. …
He submits that this particular offence is not a serious one of its kind. I agree with that. Mr Crocker contrasts the sentence imposed on Mr Cattell with the range indicated in Delphin.
But Delphin is no more than a guide. In Delphin the Court noted at [48] that an offence would attract a higher penalty if the offender had previously committed similar offences. Mr Cattell has a lengthy record of similar and other offending. Despite sentences of imprisonment, he has not been deterred. Personal deterrence has become a significant factor in his case. Some of the offences before the Court were committed while he was on a bond. One also has to bear in mind the reduction by one year that the Judge ultimately made on the basis of totality considerations. Some of this is attributable to this particular offence. The same comment applies to the other indicative sentences, and I will not repeat this point. I regard the sentence as severe, but not manifestly excessive.
The maximum punishment for the offence charged in the first Magistrates Court matter is imprisonment for ten years. The Judge indicated a sentence of 18 months’ imprisonment; but for the plea of guilty it would have been two years’ imprisonment. I agree that this offence also is not a serious one of its kind. However, for the reasons already given, I consider that this sentence is not excessive.
In relation to the second Magistrates Court matter the Judge indicated a sentence of six months’ imprisonment. But for the plea of guilty it would have been eight months’ imprisonment. The maximum punishments for the offences were respectively two years and six months. I agree that the offences were not serious. Mr Cattell damaged the window of a house at a time when no-one was in the house. A carpet knife was found in his pocket when he was arrested. However, I consider the sentence to be well within an appropriate range.
For the third Magistrates Court matter the Judge indicated a single sentence of imprisonment for two years three months. But for the plea of guilty it would have been three years’ imprisonment. The maximum punishments are (in the order in which I referred to the offences earlier) two years’ imprisonment (for each offence of damaging property), 15 years’ imprisonment, ten years’ imprisonment and six months’ imprisonment.
In light of Mr Cattell’s record, the sentence is moderate.
No complaint can be made about the approach that the Judge took to the admitted breaches of the bond. The reduction of the suspended sentence from 15 months to 12 months was very merciful.
I acknowledge that, in the end result, Mr Cattell faces a substantial period of imprisonment. But his bad record, and his persistent offending, warrant the approach that the Judge took. Property offences of this kind are prevalent, and cause considerable community concern. The victim of the District Court offences suffered quite significantly from the experience, in which he was confronted in his own house by Mr Cattell. There are aspects of Mr Cattell’s background that invite sympathy, but the Judge rightly took the approach that deterrence must predominate. In my opinion, Mr Cattell’s prospects of rehabilitation, as things stand, are not good.
The end result is not manifestly excessive.
At the hearing of the appeal Mr Crocker applied for permission to amend the grounds of appeal. He applied to add a ground to the effect that the Judge erred in failing to warn Mr Cattell that the Judge might impose a sentence of more than two years’ imprisonment in respect of the charge of serious criminal trespass included in the third Magistrates Court matter.
There was no need for the Judge to do that. The matters were brought before the District Court on Mr Cattell’s application, and for good reason. When one considers the indicated sentence in relation to the third Magistrates Court matter, the sentence for the offence of serious criminal trespass was probably less than two years. Had the third Magistrates Court matter remained before the Magistrates Court, a sentencing magistrate could have imposed the same single sentence as did the Judge: Police v Miller [2007] SASC 8; (2007) 96 SASR 240.
I would refuse permission to amend the grounds of appeal as there is no substance in this point.
Conclusion
I would dismiss the appeal against sentence.
BLEBY J: I agree with the orders proposed by the Chief Justice and with his reasons.
I merely add that, although some of the individual indicative sentences adopted by the sentencing Judge were severe, when considering the total and proposed single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the Judge made an appropriate deduction for totality before arriving at the final figure of six years. Had he considered what the appellant might regard as appropriately lower individual sentences, it would not have been necessary to adjust the final figure in accordance with the totality principle, and the final result would have been much the same.
I also agree that the record of the sentence requires rectification under s 9A of the Criminal Law (Sentencing) Act in the manner indicated by the Chief Justice.
WHITE J: I agree that the appeal should be dismissed. I also agree with the reasons of the Chief Justice.