R v CLARKE - [2004] SASC 181

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLARKE
Judgment of The Court of Criminal Appeal
(The Honourable Justice Mullighan, The Honourable Justice Nyland and The Honourable Justice Anderson)
17 June 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
ABORIGINALS - CRIMES BY ABORIGINALS - SENTENCE - FACTORS TO BE CONSIDERED
Appeal against sentence of imprisonment - the appellant pleaded guilty to one count of serious criminal trespass in a place of residence and one count of larceny - a sentence of two years and 11 months with a non-parole period of 23 months was imposed - whether the head sentence and non-parole period were manifestly excessive - whether the learned Judge erred by sentencing the appellant on an aggravating element which was not an element of the charge - whether the learned Judge failed to give any, or adequate, weight to the aboriginality of the appellant - the occupants of the premises were an elderly couple - personal circumstances of the appellant discussed - prior offending history - relevance of aboriginality in the sentencing process discussed - appeal allowed - new sentence of imprisonment for two years and three months with a non-parole period of 17 months imposed.
Criminal Law (Sentencing) Act 1988 s 10(1)(ea), s 10(2), referred to.
Neal v The Queen (1982) 149 CLR 305; The Queen v McInerney (1986) 42 SASR 111, applied.
R v Delphin (2001) 79 SASR 429; The Queen v Halse (1984-1985) 38 SASR 594; The Queen v De Simoni (1980-1981) 147 CLR 383; Wanganeen v Smith (1977) 73 LSJS 139; R v Fernando (1992) 76 ACrimR 58; R v Smith [2003] SASC 263, considered.

R v CLARKE
[2004] SASC 181
Court of Criminal Appeal: Mullighan, Nyland and Anderson JJ

THE COURT: The appellant pleaded guilty in the District Court to one count of serious criminal trespass in a place of residence and one count of larceny. One sentence of imprisonment for two years and 11 months with a non-parole period of 23 months was imposed. He appeals against the sentence on the grounds that both the head sentence and the non-parole period are manifestly excessive and that the learned Judge erred by sentencing the appellant on an aggravating element which is not an element of the charge.
The circumstances of the offences are that at about 11.45 pm on 6 November 2002 the appellant broke into a house occupied by an elderly married couple at Port Pirie. They were both in their late seventies. He broke glass in the back door of their house and undid the barrel bolt on the door. He turned on lights and ransacked two nearby rooms. The occupants of the house were asleep in the front bedroom. The lady noticed that the lights were on and went to the hall. She saw the appellant in the lounge room and yelled at him. He ran away taking two bottles of spirits and a wallet, which had been stolen from the kitchen. The wallet contained credit cards, about $70 in cash and personal items.
After leaving the house, the appellant attempted to sell the bottles of spirits to some youths in a house nearby. The police had been alerted by the elderly couple and a patrol car soon arrived in the vicinity. The appellant tried unsuccessfully to hide from them. He threw the bottles into bushes and took the money and a credit card from the wallet, which he also discarded. He was then arrested by the police and the learned Judge accepted that his behaviour towards them was abusive, aggressive and uncooperative. The wallet and the bottles of spirits were recovered but not all of the contents of the wallet.
The offences have had serious effects upon the elderly couple. They provided victim impact statements to the learned Judge. The lady was in fear when she saw the appellant and the man has a sense of guilt because she confronted the appellant and he did not. Both of them continue to suffer distress and disturbed sleep. They do not now feel safe in their own home and have considered moving to another house. Their children, who live elsewhere, are concerned for their welfare.
The appellant is a 29 year old Aboriginal man. He has a sad and unsettled background. His mother died when he was aged 12 years and his father died a few years ago. He was, in the main, brought up by his older sister. He hardly knew his father. As a boy, he was sexually abused by adults, both male and female. The abuse was of a most severe nature and has had a lasting effect upon him. He ran away from home at the age of 14 years and came into contact with welfare services. He commenced criminal offending at about that time. He has an extensive record of offending, including many offences of breaking into premises, larceny, assault, illegal use of, and interference with, motor vehicles, damaging property, resisting lawful apprehension, robbery with violence, drink driving offences and producing cannabis. All of these offences were committed when the appellant was a juvenile. From the age of 15 years to 17 years he was mainly in juvenile detention.
He also has an extensive criminal history as an adult for offences of substantially the same nature. In 1990 he was sentenced to imprisonment, which sentence was suspended. In 1991 he served a sentence of imprisonment and thereafter was sentenced to various terms of imprisonment, some of which were not suspended. The longest sentence imposed was 22 months, which appears to have included an unexpired portion of a previous sentence. Most of the sentences of imprisonment were for short periods. His offending occurred during nearly every year from 1987 until 2002 when he committed offences of non-aggravated serious criminal trespass, common assault, damaging property, disorderly behaviour, breach of bond and unlawful possession. On 8 April 2003 he was sentenced to imprisonment for 14 months for those offences. Since he attained the age of 18 years he has spent most of his life in prison.
Since the age of 14 years the appellant has lived, in the main, independently when not in detention or prison. He has had a transient lifestyle without stable accommodation. He attended five different schools and performed satisfactorily, although he has a borderline intellectual disability. He has few literacy and numeracy skills. He left school at the age of 14 years. He has largely been unemployed and lacked motivation because of alcohol and drug abuse. However recently he has undertaken and completed traineeships in fencing and arid lands horticulture but did not gain employment. He has never married and does not have children. Accordingly to Mr Balfour, a forensic psychologist, the appellant has been “socially” dislocated since the age of 14 years.
At times, the appellant has suffered depression but, generally speaking, he has been in good health. It appears that he has behavioural changes when intoxicated by alcohol or drugs.
At the time of the offences, the sentence for which is the subject of this appeal, he was intoxicated by alcohol. According to Mr Balfour, he would have been behaviourally disinhibited and emotionally labile and he had impaired social adjustment, but nevertheless he was able to appreciate what he was doing and that it was illegal.
It appears from a report of Mr Balfour, which was before the learned Judge, that he has caused the appellant to consider the reason for his offending and the effect which it has on the victims. The appellant has expressed some indications that he may have an understanding of these matters. Mr Balfour regards the appellant’s prospects of rehabilitation as poor without the assistance of a structured rehabilitation programme which, we expect, is unlikely to be available in prison. In any event, rehabilitation, if undertaken, will be a lengthy process of some three to four years.
The positive signs regarding the appellant are his successful completion of the two courses and his developing motivation for employment. Mr Balfour has made recommendations to assist rehabilitation which may be considered by prison and parole authorities as the outcome of this appeal will necessarily result in the appellant serving a custodial sentence.
The offences are undoubtedly serious. The appellant was originally charged with aggravated serious criminal trespass. That charge was reduced to serious criminal trespass because it was accepted that it could not be proved that the appellant knew of the presence in the house of the elderly couple, or either of them, or that he was reckless about whether anyone was present. Nevertheless, the elderly couple were present and the crime has had a deleterious effect upon them. They have lost their sense of security. The appellant ransacked two rooms, thereby interfering with personal property of the elderly couple. The maximum penalty for the crime of which he was convicted is 15 years.
The learned Judge accepted the matters which we have mentioned as to the background and personal circumstances of the appellant. She also accepted that the appellant pleaded guilty to the charge at the earliest opportunity after the initial charge was withdrawn. She accepted that the appellant was genuinely contrite and remorseful. She imposed one sentence for both offences and she said that but for the plea of guilty she would have imposed a sentence of four years and six months. Because of the plea she reduced the sentence to three years and four months which is a reduction of a little over 25 per cent. The appellant had been in custody for five months on remand in relation to these offences. She further reduced the sentence for that reason and thereby imposed the sentence of 2 years and 11 months and the non-parole period of 23 months, both of which commenced on 18 December 2003 when the sentence was imposed.
The appellant complains that the learned Judge erred in determining a starting point of four years and six months. In R v Delphin (2001) 79 SASR 429, the Full Court considered the appropriate level of a sentence of imprisonment for the offences which are the subject of this appeal and decided that where the intention upon entry is larceny, a sentence for a first offence should be in the order of 20 to 24 months upon a plea of guilty, with serious consideration being given to suspend the sentence. The Court went on to say that relevant factors in fixing sentence include the nature and circumstances of the trespass and the impact upon the victim. Also, the Court expressed the view that where there are previous similar offences, a higher sentence may be expected.
We do not expect that the Court was intending to lay down an immutable range of sentence because the discount for a plea of guilty could vary considerably from case to case. Also, there are other factors which could amount to serious aggravation or substantial mitigation which could impact upon the appropriate sentence. Nevertheless, we have accepted for present purposes that the starting point in fixing sentence for the appellant should be generally along the lines suggested in Delphin.
In The Queen v Halse (1984-1985) 38 SASR 594 this Court considered the appropriate range of sentences for the offence of breaking and entering and larceny, as it was then known. King CJ expressed the view that for a first offence the sentence be nine to 12 months, with suspension of the sentence as a serious option. For single offences by previously imprisoned offenders, the range should be in the region of 12 to 18 months. Where an offender had a bad record, the sentence for a single offence should be in the range of two years and six months to two years and nine months reduced for a plea of guilty or other mitigating circumstances: per King CJ at 595. White J acknowledged that offences involving residential premises should be regarded more seriously. At the time of these observations the maximum sentence was eight years.
The Court in Delphin had regard to the increase in the maximum to 15 years when expressing its view as to a range of penalty. In effect, it increased the range for first offenders committing single offences by more than double the range suggested in Halse.
There is no need in the present case to reconsider the approach in sentencing a person such as the appellant who has committed a single offence and has a bad record. However, it must be kept in mind that any tariff should only be applied as a starting point.
The appellant contends that on the basis of the observations in Delphin, the learned Judge erred in fixing a starting point of four years and six months. Whilst we think that, in the circumstances, the starting point was too high, we do not think that the learned Judge approached the sentencing task inconsistently with the observations in Delphin in view of the bad record of the appellant.
The second complaint by the appellant is that the learned Judge erred in having regard to the presence of the elderly couple in the house as a matter of aggravation when the appellant was not to be sentenced for the offence of aggravated criminal trespass. It was contended that the principle that no-one should be punished for an offence of which he or she has not been convicted had not been observed: The Queen v De Simoni (1980-1981) 147 CLR 383 at 389. We reject this ground. The reason for not proceeding with that charge has earlier been explained. The elderly couple were in the house and the crime has had a serious adverse effect upon them. Even though it is to be accepted that the appellant did not have the required state of mind to have committed the more serious offence, the presence of the elderly couple in the house at the time of his trespass and its impact upon them is clearly a matter to be considered in the sentencing process.
The last complaint by the appellant is that the learned Judge failed to give any, or adequate, weight to the aboriginality of the appellant which, it is submitted, in the circumstances, is a matter in mitigation. As the law stands at present, it is accepted that aboriginality in itself is not a matter in mitigation. As Brennan J explained in Neal v The Queen (1982) 149 CLR 305, a case involving an Aboriginal man, at 326:
“The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice.”
It is clear that an Aboriginal offender cannot expect special treatment just because he or she is Aboriginal: Wanganeen v Smith (1977) 73 LSJS 139, R v Fernando (1992) 76 ACrimR 58, R v Smith [2003] SASC 263. However, as those cases acknowledge, aboriginality may be relevant to the sentencing process in a particular case. It is to be expected that in many cases the aboriginality of an offender will be a relevant and important factor in the sentencing process. Many Aboriginal people are marginalised by society and lack opportunities that are more available to others. For many, realisation of legitimate expectations is unlikely. In many cases, there is an inability to fit in with the non-aboriginal community which contributes to isolation and dissatisfaction. However, those general and other similar observations may not be applied as a matter of course.
In the present case, the aboriginality background of the appellant is a relevant matter. We have mentioned relevant factors of his background. Although there is no evidence to establish particular disadvantage in his life caused by his aboriginality, it is to be expected that his capacity to seek assistance in a mainly non-aboriginal society was more difficult for him because of race. It may be expected that once he embarked upon criminal conduct, rehabilitation could be more difficult for that reason. We do not think this matter is of major significance in the sentencing process in all of the circumstances but it should be brought to account.
The appellant has no memory of the crime, probably due to intoxication by alcohol. He does not specify a reason for the crime but it seems that it did not involve pre-planning. It was amateurish and committed to obtain money. It was an isolated offence. The past of the appellant is distressing. There are some indications of him wanting to change his ways and Mr Balfour has set out suggestions in some detail for his rehabilitation. He is of an age where he could make something of his life with appropriate assistance.
We mention the significance of the appellant’s bad record. This matter was considered in The Queen v McInerney (1986) 42 SASR 111. King CJ said at 113:
“The cardinal rule is that while good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it. A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed. Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner’s record may indicate that greater punishment is needed to protect the public by deterring him from further crime.”
It is important to keep these observations in mind. The appellant is not again to be sentenced for his previous offending. We think that the starting point of four years and six months indicates that the prior offending of the appellant has again been the subject of punishment beyond the appropriate application of the considerations of deterrence, both general and personal, and protection of the community.
Of course, there must be due regard to s 10(1)(ea) and s 10(2) of the Criminal Law (Sentencing) Act 1988. These subsections provide that in a case of this nature the sentencer must give proper effect to a primary policy of the law which is to protect the security of lawful occupants of houses from intruders. However, upon giving due allowance for that policy, the starting point of four and a half years was too high. We do not think that there was sufficient regard to the personal circumstances of the appellant, including his aboriginality. Allowing for his bad record, an appropriate starting point is three years and six months. The discount for the plea of guilty allowed by the learned Judge was appropriate and making much the same allowance the sentence should be reduced to two years and eight months and a further period of five months for the period the appellant was in custody, resulting in a sentence of imprisonment for two years and three months. The non-parole period should be 17 months.
The appeal is allowed and the sentence and non-parole period are set aside. The appellant is sentenced to imprisonment for two years and three months with a non-parole period of 17 months, both commencing on 10 December 2003 when he was sentenced by the learned Judge.