R v Drenkovski - [2011] SASC 68

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
R v DRENKOVSKI
[2011] SASC 68
Judgment of The Honourable Chief Justice Doyle (ex tempore)
15 April 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty at an early stage to three charges of trespass in a place of residence and one of theft – the sentencing Magistrate sentenced the appellant for the first offence, consisting of trespass in a place of residence and theft, to 14 months’ imprisonment – for the second and third offences consisting of trespass in a place of residence, the sentencing Magistrate imposed a sentence of six months’ imprisonment – that amounted to a total of two years and two months imprisonment – the sentencing Magistrate imposed a non-parole period of 15 months – whether the sentencing Magistrate took an inappropriate mathematical approach to sentencing – whether the Magistrate erred in considering the question of totality immediately after identifying the notional separate sentences – whether the Magistrate made an insufficient reduction of 10 per cent for the early pleas of guilty.
Held: appeal allowed. The reduction of 10 per cent was unusually low for the early guilty pleas. The appellant was resentenced to two years and 25 days’ imprisonment with a non-parole period of 12 months.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Malesevic [1999] SASC 321; (1999) 204 LSJS 32, considered.

R v DRENKOVSKI
[2011] SASC 68
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): Ms Drenkovski appeals against a sentence imposed by the Magistrates Court. Mr Dillon, counsel for Ms Drenkovski, submits that the Magistrate made a number of errors in the process of sentencing.
Ms Drenkovski pleaded guilty to a number of charges.
First, a charge of trespass in residential premises and a charge of theft, committed on 29 July 2010. Ms Drenkovski gained entry to a house by a pretext, and while in the house stole jewellery worth about $3,700. As the trespass was a basic offence, the maximum penalty is three years’ imprisonment. The maximum penalty for the theft is 10 years’ imprisonment.
The next offence was a charge of trespass in a place of residence, again a basic offence attracting a maximum sentence of three years’ imprisonment. Ms Drenkovski gained entry to a house through an unlocked door. The person in the house at the time was not aware that she had done so. She did not steal anything.
The next charge related to an offence on 12 August 2010, when she again gained entry through an unlocked door. Nothing was stolen.
Each of these last two offences attracted a maximum sentence of three years’ imprisonment.
The Magistrate noted that the offences were serious, although fortunately in this case the occupants of the respective premises were not adversely affected by what she did. The offences in question are not particularly serious instances of offences of their kind.
But a very significant fact is that Ms Drenkovski has a very lengthy record of offending, including many offences of this kind. She has been sentenced to imprisonment before. She shows no sign of changing her ways. On 27 November 2009 she was sentenced to imprisonment for theft, and had only recently been released on parole when the offences in question were committed.
In the circumstances, personal deterrence and protection of the public become significant factors in arriving at an appropriate sentence.
Ms Drenkovski had had a troubled childhood. However, at 42 years of age not much can be made of that. Her behaviour is affected by excess use of alcohol and prescription medication, but again, after long repeated offending not much can be said by way of mitigation based on that.
The Magistrate said that for the first two offences, committed on the one occasion, a sentence of 14 months’ imprisonment was appropriate. For each of the other two offences a sentence of six months’ imprisonment was appropriate. That amounted to two years and two months.
Having regard to considerations of totality, he reduced those notional sentences to 12 months, four months and four months respectively. That made a total of 20 months’ imprisonment.
He then reduced that figure to 18 months on account of the plea of guilty. This was a reduction of only 10 per cent.
He then made a further reduction of five months and 19 days, to allow for time spent in custody. That left a residual single sentence of 12 months and 11 days’ imprisonment.
To this was to be added an outstanding balance sentence of one year and 14 days, in respect of the offence in respect of which Ms Drenkovski was on parole.
The end result was two years and 25 days’ imprisonment. Having regard to Ms Drenkovski’s personal circumstances, the Magistrate fixed what he described as a shorter non-parole period than usual, namely 15 months.
The first criticism is that the Magistrate took an inappropriate mathematical approach to sentencing. I disagree. It was appropriate for the Magistrate to indicate the sentence that each separate offence would have attracted, bearing in mind that the Magistrate was intending to impose a single sentence in exercise of the powers conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act). After that, the Magistrate made reductions on account of totality, the pleas of guilty and time in custody. It was appropriate to deal with each of these separately.
The second complaint is that the Magistrate considered the question of totality immediately after identifying the notional separate sentences. That was an error. The question of whether considerations of totality call for a reduction in a sentence is to be considered at the final stage. This is so because the question that arises is whether, when one has regard to the actual sentence imposed, it can be said to be greater than is warranted in all the circumstances, even though the individual components may be justifiable.
But this is not an error which leads to a conclusion that the sentence should be set aside. The reason is that I consider the error to be one in favour of Ms Drenkovski. I cannot identify a sound basis for the further reduction that the Magistrate made. The initial starting points were appropriate. Were I to reassess the sentence, I would not make a reduction on account of totality. Accordingly, while I agree that the Magistrate has erred, this is not a reason for allowing the appeal in the particular circumstances.
The next complaint is that the Magistrate made an insufficient allowance for the pleas of guilty. I agree that the reduction is unusually low for an early plea. I agree that there is no apparent basis for such a low reduction. But if I were to reassess the sentence, I would have started with a head sentence of two years two months, as did the Magistrate. If that were reduced to 18 months then the allowance for the plea of guilty is quite generous. Accordingly, this submission also does not lead to a decision that the appeal should be allowed. The error, if it is one, has not resulted in an excessive sentence.
The next complaint is that the Magistrate failed to reduce the non-parole period on account of the plea of guilty and on account of time spent in custody. The reductions that the Magistrate made were in respect of the head sentence only.
It is not essential that a separate reduction be made, on account of these matters, from both the head sentence and the non-parole period: see R v Malesevic [1999] SASC 321 at [45]; (1999) 204 LSJS 32 at 38. The Magistrate fixed a non-parole period in relation to the head sentence. The head sentence had been reduced on account of the plea of guilty and on account of time spent in custody. That means that the non-parole period is effectively “held down” by the reduction in the head sentence.
When a sentence is imposed in the manner in which the Magistrate did in this case, the final question is always whether the sentence is manifestly excessive. One also has to bear in mind that the non-parole period was fixed in relation to a head sentence that included, as a component, 12 months and 14 days’ imprisonment that had to be served as a result of the breach of parole. The non-parole period was not fixed solely in relation to the sentences that the Magistrate imposed.
If one were to notionally add to the non-parole period the five months and 19 days of time spent in custody, one finds that Ms Drenkovski will serve a total of 20 months and 19 days in prison, as a result of the offending with which the Magistrate dealt and as a result of the unexpired balance of parole. That is a high proportion of the head sentence of two years and 25 days, although that fact does not of itself mean that the Magistrate has erred.
In the end, I am persuaded that in this respect, and in this respect alone, the Magistrate has erred. The non-parole period is manifestly excessive, although not by much.
Accordingly, I proceed as follows. I allow the appeal. I set aside the sentence imposed by the Magistrate, and the orders made by the Magistrate.
Exercising the power conferred by s 18A of the Act, I sentence Ms Drenkovski to a single sentence of imprisonment. I sentence her to imprisonment for 12 months and 11 days. I started from a notional head sentence of two years and two months’ imprisonment, having made a reduction of about eight months on account of the plea of guilty, and having made a further reduction of five months and 19 days on account of time spent in custody. In short, I have followed the Magistrate’s approach, except that I have made no reduction on account of totality, and have made a greater reduction on account of the guilty plea.
I order that Ms Drenkovski serve the unexpired balance of parole amounting to one year and 14 days.
That gives rise to a total head sentence of two years and 25 days’ imprisonment.
In relation to that combined head sentence I fix a non-parole period of 12 months. In doing so I make allowance for the time spent in custody, although partial allowance only.
Imprisonment in respect of the unexpired balance of parole, and the non‑parole period, both are to commence from 31 January 2011, the day when the Magistrate imposed the sentence.