R v Gibbs
[2004] SASC 187
•2 July 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GIBBS
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Mullighan)
2 July 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS
DISTRICT COURT JUDGE EXERCISING POWERS OF MAGISTRATE
The appellant pleaded guilty in the District Court to multiple counts of false pretences and cognate offences committed over a period of about 20 months - many of the matters were summary matters which had been pending in the Magistrates Court, and were referred to the District Court to be dealt with together with a charge prosecuted on information for which she had been committed for trial in the District Court - the appellant was sentenced to a single term of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 3 months - held on appeal that when a District Court judge exercises the jurisdiction powers or functions of a magistrate, he or she is not bound by s 19 of the Criminal Law (Sentencing) Act 1988 which limits the power of the Magistrates Court to impose a sentence of imprisonment not exceeding 2 years.
Criminal Law (Sentencing) Act 1988 s 18A and s 19; Magistrates Act 1983 s 22; Judicial Administration (Auxiliary Appointment and Powers) Act 1988 s 5(1), referred to.
Hunt v Police (unreported) Lander J, 4 May 2001, judgment No [20, considered.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE
SENTENCING FOR MULTIPLE OFFENCES
The appellant was sentenced in the District Court on multiple charges of false pretences and cognate offences - she was sentenced to a single term of imprisonment imposed pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, of 4 years and 6 months with a non-parole period of 2 years and 3 months - on appeal, the sentence was reduced (by a majority) to 2 years with a non-parole period of 1 year - discussion of principles to be applied in sentencing for multiple offences - appeal allowed.
R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 39; R v Caplikas (2002) 223 LSJS 46; R v Creed (1985) 37 SASR 566; R v Place (2002) 81 SASR 395, considered.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
APPELLATE PROCEDURE
The appellant was sentenced in the District Court on multiple charges, some of which had been prosecuted on complaint in the Magistrates Court and were referred to the District Court to be dealt with at the same time as charges prosecuted on information to which the appellant had been committed for sentence to the District Court - a single sentence on all charges was imposed in the District Court - consideration of the question whether an appeal to the Supreme Court was governed by the procedures applicable to an appeal from a sentence imposed in the District Court or by the procedures applicable to a magistrates appeal.
Criminal Law Consolidation Act 1935 s 352(1)(a)(iii); Magistrates Court Act 1991 s 42; District Court Act 1991 s 42, s 43 and s 45, referred to.
Tarasenko v Boylan and Anor (1992) 58 SASR 587; R v Allen (2002) 81 SASR 434, considered.
R v GIBBS
[2004] SASC 187Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ
DOYLE CJ I have had the benefit of reading the reasons of Perry J and Mullighan J.
This is a case in which I consider it was appropriate for the sentencing Judge to follow the approach identified in R v Major (1998) 70 SASR 488. Having regard to the number of offences, and the different punishments that were appropriate to some of them, it was desirable for the Judge to indicate, as the Judge did, in approximate terms at least the sentence appropriate for each offence. If the Judge had indicated only a single sentence, it would be impossible on appeal to know how the Judge got to that figure, and difficult to identify any error other than, possibly, an error indicated by the final result.
However, I recognise, as I said in R v Symonds [1999] SASC 217 at [21] – [22] that there can be no rigid rule in this respect, and in some cases it will be unnecessary or inappropriate to indicate a separate sentence for each of the offences in question. If that is the approach taken, a sentencing judge should be mindful of the need to give an adequate explanation of how the ultimate sentence was determined.
As to the sentence imposed in this case, I agree substantially with Mullighan J. The approach which the sentencing Judge took has exposed, in my opinion, a failure to provide for some concurrence at least as between some of the sentences imposed by the Judge. I consider, with respect, that the Judge has inappropriately taken the approach that all of the sentences that were appropriate should be taken cumulatively. As well, I agree with Mullighan J that the end result, when one stands back, is a sentence that in all the circumstances is manifestly excessive.
Accordingly, I agree that the appeal should be allowed and that the sentence should be set aside.
As to the sentence that should be substituted, I am prepared to take the same approach as does Mullighan J. I consider that the sentence proposed by Perry J is, in all the circumstances, unduly heavy. Accordingly, I would fix a head sentence of imprisonment for two years and in relation to that head sentence fix a non-parole period of one year.
I turn to the question of the appropriate procedure to be followed on an appeal against sentence in a case like this.
Perry J has referred to the relevant statutory provisions and to the relevant case law.
The single sentence imposed by the sentencing Judge is a sentence passed on a conviction on information, and so is subject to appeal pursuant to the provisions of s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The sentence, to the extent that it is imposed in respect of matters prosecuted on complaint, may well attract the right of appeal provided by s 43 of the District Court Act 1991 (SA), for the reasons given by Perry J. However, in R v Allen [2002] SASC 98; (2002) 81 SASR 434, this Court held that when a District Court judge imposes sentence in respect of a matter prosecuted on complaint, an appeal is governed by s 42 of the Magistrates Court Act 1991 (SA).
I acknowledge the force of the reasons advanced by Perry J for concluding that that decision was wrong, and is not strictly binding on this Court. However, I would not depart from the decision without hearing full argument, and before us the issue was not examined in complete detail.
I agree that this is an issue that warrants the attention of Parliament. When a District Court judge deals with offences prosecuted on information filed in that Court, and an offence is prosecuted on complaint filed in the Magistrates Court, but dealt with by the District Court judge exercising statutory powers that enable the judge to do so, it should be possible to appeal against the resulting sentence, whether a single sentence in exercise of the power under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) or a series of separate sentences, by means of a single notice of appeal to the Full Court of the Supreme Court, subject to a grant of leave to appeal in accordance with the procedure under s 352(1)(a)(iii) of the CLCA. It should not be necessary to file separate notices of appeal in respect of matters that were initiated in the District Court and in the Magistrates Court.
In the present case the appellant attempted to comply with the procedure dictated by the decision in R v Allen, and filed a second notice of appeal in the Magistrates Court. However, the appellant did not comply with Rule 96C of the Supreme Court Rules, which regulates appeals from the Magistrates Court pursuant to s 42 of the Magistrates Court Act. Under the circumstances, I would dispense with further compliance with the requirements of Rule 96C of the Supreme Court Rules.
I would allow the appeal and quash the sentence under appeal. I would substitute a sentence of imprisonment for two years, and in relation to that sentence fix a non-parole period of one year. I would direct that the sentence and non-parole period commence from 10 October 2003.
PERRY J The appellant appeals by leave against the sentence imposed upon her in the District Court following her plea of guilty to a number of charges of false pretences and cognate offences committed between 27 February 2001 and 14 October 2002.
The sentencing judge imposed a single sentence of 4 years and 6 months imprisonment with a non-parole period of 2 years and 3 months, both to date from the date upon which the sentence was pronounced, that is, 10 October 2003.
The appellant complains that both the head sentence and the non-parole period were manifestly excessive, and that there was “insufficient or no regard to totality principle”.
As well, the appellant advances the following further ground of appeal:
“The Learned Sentencing Judge erred in imposing for the offences other than the offence of Forgery for which the appellant had been committed for sentence, a sentence under section 18A of the Criminal Law (Sentencing) Act 1988 that exceeded the maximum permissible sentence of two years imprisonment that could be imposed by the Learned Sentencing Judge in exercise of his powers under section 22 of the Magistrates Act and section 19 of the Criminal Law (Sentencing) Act 1988.”
It is convenient to deal with the latter ground first.
The Maximum Sentence
In order to understand how the point arises, it is necessary to have regard to the manner in which the matters came before the sentencing judge.
Initially, the appellant was committed for sentence in the District Court following her plea of guilty in the Magistrates Court to a charge of forgery. The committal for sentence was pursuant to s 105(2)(c)(i) and s 108(b) of the Summary Procedure Act 1921.
When the matter came before the sentencing judge, he asked that a number of other matters pending in the Magistrates Court, which were summary matters, be referred to the District Court to be dealt with by him.
In some of the matters, the appellant had already pleaded guilty but had not been sentenced, and in others she had not pleaded.
After those matters had been brought up from the Magistrates Court, the sentencing judge directed that the appellant be “arraigned” on the counts as to which she had not entered a plea, following which she pleaded guilty to them.
After hearing the submissions of counsel, the sentencing judge then disposed of all of the offences, by imposing the sentence under appeal.
The process by which he arrived at the sentence appears from the following extract from his sentencing remarks:
“As a first step in the determination of your sentence, I will assign provisional terms of imprisonment as follows:
Unlawful possession at Elizabeth South, Salisbury and other places between 27/2/01 and 14/4/02
6 months
Forgery at Munno Para between 22/8/02 and 17/9/02
6 months
False pretences at Ingle Farm on 12/4/02
6 months
Attempted false pretences at Ingle Farm on 12/4/02
4 months concurrent
False pretences at Ingle Farm on 15/4/02
9 months
Attempted false pretences at Ingle Farm on 17/4/02
4 months
Attempted false pretences at Ingle Farm on 28/5/02
4 months
False pretences at Modbury on 6.6.02
6 months
Unlawful possession at Davoren Park and Salisbury between 21/5/02 and 30/12/02
4 months
False pretences at Salisbury on 30/9/02
1 month
False pretences at Salisbury on 4/10/02
1 month
False pretences at Prospect on 11/10/02
1 month
False pretences at Prospect on 14/10/02
1 month
False pretences at Eastwood on 3/10/02
15 months
Attempted false pretences at Sefton Park on 14/10/02
10 months
The total of these provisional periods is six years and two months. I reduce that total by approximately 20% to four years and eleven months for your pleas of guilty. I further reduce that total to four years and six months to better reflect the overall culpability of your conduct.
The order of the court is that you be sentenced to a single term of imprisonment of four years and six months, with a non-parole period of two years and three months, both to date from today.”
That the sentencing judge assigned “provisional terms” of imprisonment with respect to each of the offences and made two reductions from the total of those terms before arriving at a single final sentence, indicates that the sentencing judge had recourse to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).
This leads to a consideration of s 19 of the Sentencing Act. That section provides:
“19(1) The Magistrates Court does not, unless it is constituted of a Magistrate, have the power to impose a sentence of imprisonment.
(2)If the Court, constituted otherwise than by a Magistrate, is of the opinion that a sentence of imprisonment should be imposed in any particular case, it may remand the defendant to appear for sentence before the Court constituted of a Magistrate.
(3)The Magistrates Court does not have the power to impose:
(a)a sentence of imprisonment that exceeds 2 years; or
(b)a fine that exceeds $150,000.
(4)Subsection (3) applies whether the offence to which the sentence relates is a summary offence or a minor indictable offence.
(5)If the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection (3), the Court may remand the defendant to appear for sentence before the District Court.”
In Hunt v Police,[1] Lander J held that where a magistrate imposes a single sentence for multiple offences under s 18A, the single sentence cannot exceed two years, even if the aggregate of the maximum possible sentences exceeds that amount.
[1] (Unreported) Lander J, 4 May 2001 Judgment Number [2001] SASC 145.
The question which arises here, is whether or not a sentence imposed by a District Court judge, when exercising his or her power to deal with matters brought up from the Magistrates Court, is subject to the same limitation.
The answer lies in a consideration of the nature of the jurisdiction exercised in such a case.
There are two statutory provisions pursuant to which the jurisdiction or powers of a magistrate may be exercised by another Court.
Section 22 of the Magistrates Act 1983 provides:
“22.Any of the following persons, namely-
(a) a Judge of the Supreme Court; or
(b) a Master of the Supreme Court; or
(c) a District Court Judge,
may exercise the jurisdiction, powers or functions of a magistrate.”
As was pointed out by King CJ in Tarasenko v Boylan and Anor,[2] the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 confers a similar power, albeit in more general terms.
[2] (1992) 58 SASR 587 at 590
Section 5(1) of that Act provides inter alia:
“……a judicial officer holding or acting in a particular judicial office may exercise, in addition to the jurisdiction and powers attaching to that office, the jurisdiction and powers attaching to any other judicial officer of a co-ordinate or lesser level of seniority.”
In Tarasenko, King CJ concluded:[3]
“I am of opinion … that a Judge of the District Court is authorised to hear and determine charges of summary offences in proceedings which have been instituted in the Magistrates Court and that there is no occasion to discontinue the practice which has hitherto been followed. It is not necessary for the District Court Judge to sit as the Magistrates Court. He is entitled to exercise the jurisdiction as a Judge of the District Court.” (emphasis added).
[3] Ibid 591
When, as was the case here, a District Court judge exercises the jurisdiction, powers or functions of a magistrate and imposes a sentence of imprisonment with respect to matters which had previously been pending in the Magistrates Court, he or she is not saddled with the restriction imposed by s 19(3) of the Sentencing Act.
That subsection imposes a limitation upon the length of a sentence of imprisonment which may be imposed by the Magistrates Court.
As was made clear by King CJ in Tarasenko (supra) in the passage from his judgment which I have cited above, when hearing and determining proceedings which had been instituted in the Magistrates Court, the District Court judge sits as a judge of the District Court, not as the Magistrates Court.
It follows that the imposition of a sentence by a District Court judge sitting as the District Court pursuant to either s 22 of the Magistrates Act or s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act, is not the imposition of a sentence by the Magistrates Court within the meaning of s 19(3) of the Sentencing Act.
Any restriction on the sentencing powers of the Magistrates Court is of no application in such a case.
I would dismiss this ground of appeal.
Manifestly Excessive
It remains to consider whether the first ground of appeal, namely that the head sentence and non-parole period were manifestly excessive, is made out.
It is convenient first to consider the approach which it is appropriate for the Court to follow, in sentencing for multiple offences.
(a) Sentencing for multiple offences
Commonly, in sentencing for multiple offences, the sentencing court will have recourse to the powers conferred by s 18A of the Sentencing Act.
In R v Major,[4] Doyle CJ said:
“I agree with Olsson J that if a single sentence is imposed, using s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act), the judge must first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. As part of that process the judge must consider whether the sentences imposed would be concurrent or cumulative. I agree that in the present case the starting point is that each sentence would be cumulative.
If the judge does not do this, there is a real danger that a single sentence imposed under s 18A of the Act, will lack a proper basis, and will not appropriately reflect the overall criminality involved. The process of imposing a single sentence is not a process under which a lesser sentence than would otherwise be appropriate is to be imposed.
In saying this I do not mean that the sentencing judge must determine the sentence that would have been imposed, in respect of each separate offence, with complete precision. But, because the single sentence must represent an adequate punishment for the criminal conduct involved, it is necessary that it be closely related to the separate sentences that would otherwise have been imposed.”
[4] (1998) 70 SASR 488 at p490
Despite the terms in which those comments are cast, that approach is not always appropriate.
In R v Symonds,[5] Doyle CJ with whom Prior and Mullighan JJ agreed, said:
“In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s 18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s 18A were not available. The power conferred by s 18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.”
See also R v Nylander[6] and R v Caplikas.[7]
[5] Unreported [1999] SASC 217 at [21]-[22]
[6] (2003) 228 LSJS 39
[7] (2002) 223 LSJS 46
Whichever approach is adopted, whether by aggregating individual notional sentences or by going directly to the single sentence to be imposed, it will always be relevant to have regard to the principle of totality.
This means that “at the end of the day” a sentencing judge should “stand back and look at the overall picture and decide whether the total of what would otherwise be the appropriate sentence is a fair and reasonable total sentence to impose” (R v Creed).[8]
[8] (1985) 37 SASR 566 per King CJ at 568
In R v Place,[9] the Court emphasised that the question of totality is the final step in the sentencing process.[10]
[9] (2002) 81 SASR 395
[10] Ibid per Doyle CJ, Prior, Lander and Martin JJ at 426 [87]
In Place, two other relevant considerations were identified.
The first is that “Generally speaking where a number of offences are committed over a period of time, there is justification for imposing greater penalties for the later offences”.[11]
[11] Per Doyle CJ, Prior, Lander and Martin JJ at 432 [112]
The second is that even where offences are committed over a relatively short period of time, if they amount to separate incursions into crime, “accumulation of the sentences would be appropriate”.[12]
[12] Ibid at 432 [414]
(b) Merits of the appeal
The immediate circumstances of the appellant’s offending were summarised by the sentencing judge in his sentencing remarks as follows:
“In relation to the forgery, you received a cheque for $10 from a child support agency, and it was altered to read $3,450. It was seized by police before you made any attempt to present it. In relation to the two counts of unlawful possession, you attempted over a significant period of time to pawn or sell numerous items of stolen property. The value of the property, although not specified in the charges, must have amounted to well in excess of $1,000. In relation to the false pretences counts committed at Ingle Farm, you obtained and attempted to obtain a number of mobile phones, each of the value of $621, by giving to the supplier the name and details of another person without that person’s consent. In relation to the phones that you were successful in obtaining, you incurred charges in excess of $2,400. In relation to the false pretence count committed at Modbury, you obtained goods from a supermarket amounting to $687.45 in value by presenting a cheque from a chequebook which had been stolen from a car. In relation to the counts of false pretences at Salisbury and Prospect, you obtained bank cheques from the Adelaide Bank by pretending that you were another person. The cheques ranged in value between $10 and $20. In relation to the remaining false pretences counts committed at Eastwood and Sefton Park, you and your partner obtained a laser jet printer and attempted to obtain other items of electrical property from retailers by altering two of the abovementioned bank cheques to show the sale price of the property, which together was in the order of $11,000.”
At the time she was sentenced the appellant was 33 years of age. She has three children then aged between six and 13.
The sentencing judge had the benefit of a pre-sentence report furnished by a social worker.
From the report it appears that the appellant came from a broken home. Her childhood was marked by violence and abuse. Eventually she took to drugs. She admitted to the social worker that she had a two-year history of intravenous use of amphetamines and also smokes marijuana occasionally.
Her partner was remanded in custody in late 2002 and the appellant maintained that thereafter she has not used amphetamines.
Before his incarceration, the appellant’s relationship with her partner was characterised by violence on the part of her partner and what the social worker describes as “… unstable living arrangements where they lived an itinerant lifestyle, often sharing housing with many other drug users”.
The appellant has a history of relatively minor offending dating from 1988 when she was charged with larceny. In 1995 she was convicted of producing cannabis, and in December 2000 she was convicted on charge of passing a valueless cheque.
Her other offences are largely driving offences upon which she has been released on two good behaviour bonds.
The first of them was a bond imposed on 29 November 2002 to be of good behaviour for 12 months with conditions as to supervision.
A further bond to be of good behaviour for 12 months was imposed on 17 January 2003.
During the currency of the bonds, the appellant’s drug use has been monitored. Her case manager’s opinion is that her drug use has decreased “significantly”.
Although the appellant’s compliance with previous orders and conditions in the past has been poor, her response to supervision under the current bonds has been somewhat better.
Mr Schapel of counsel for the appellant complained that there was what he described as “little adjustment to reflect totality” and that the sentence and non-parole period were “crushing”. He emphasised that there were prospects for the appellant’s rehabilitation.
As to one aspect of the matter, he submitted that the sentencing judge had wrongly taken into account a circumstance which was not relevant.
It will have been seen that in the sentencing judge’s summary of the facts relating to the appellant’s offending, which I have set out above, he mentioned that in relation to the mobile phones which the appellant had obtained by false pretences, she had run up telephone charges in excess of $2400.
The benefit which she obtained by that means was not the subject of any charge, and Mr Schapel contended that accordingly the sentencing judge’s reference to the matter was erroneous.
I do not agree. The sentencing judge was entitled to refer to that circumstance. In any event, there is nothing to suggest that the sentencing judge’s reference to that aspect of the matter had any significant effect on the penalty which he imposed.
Looking at the provisional terms of imprisonment which the sentencing judge assigned to the various offences, I could not say that viewed individually they were other than within the proper limits of the sentencing discretion. Furthermore, I consider that it was appropriate to accumulate the provisional terms of imprisonment other than the penalties imposed for the offending committed on 12 April 2002, which the sentencing judge directed be served concurrently.
I must say, though, that the assigning of individual provisional terms of imprisonment for so many offences, although consistent with the approach identified in Major, seems to me in the circumstances of this case to have been overly intricate.
It might have been better to assign a penalty of six months for the forgery count and 10 months for the two unlawful possession counts, and express the balance as a single notional penalty for the false pretences and attempted false pretences counts.
On the other hand, the approach adopted by the sentencing judge at least has the benefit of complete transparency. I would be unwilling to describe it as erroneous.
The reduction (approximately 20 per cent) from the starting point of 6 years and 2 months to 4 years and 11 months by reason of the plea of guilty, was appropriate.
However, I consider that the reduction by reference to the principle of totality, which the sentencing judge referred to as an adjustment “to better reflect the overall culpability” of the appellant’s conduct by five months, resulting in the sentence of four years and six months, was low.
In my view, the reduction for the principle of totality should have been by 11 months, so as to reduce the head sentence to 4 years.
I would effect a corresponding reduction in the non-parole period of two years and three months, to two years.
Before parting from the matter, it is necessary to deal with a procedural point relating to the manner in which the appeal was instituted.
Appeal procedures
The appellant brought an application to this Court for leave to appeal against the sentence imposed. The application was heard by a single judge of the Court and leave was granted.
The application for leave was no doubt predicated on the assumption that the right of appeal was governed by s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (“the CLCA”).
Subsequently, when the appellant’s counsel’s attention was drawn to the decision of the Court of Criminal Appeal in R v Allen,[13] an attempt was made to serve a notice of appeal against the sentence pursuant to s 42 of the Magistrates Courts Act 1991. Some difficulty was encountered in effecting service on the Registrar of the District Court, and no attempt was made to serve the notice on the Registrar of the Magistrates Court at Elizabeth.
[13] (2002) 81 SASR 434
With respect to the charge of forgery, the District Court judge was directly exercising the powers of the District Court and not the powers of the Magistrates Court.
However, as I have explained, the other matters were pending in the Magistrates Court and were referred to the sentencing judge.
Most of the matters in the Magistrates Court were prosecuted on an information. However, the two charges of unlawful possession were prosecuted on complaint.
In his judgment in Tarasenko, King CJ expressed the view that an appeal from a sentence imposed by a District Court judge while exercising the powers of a magistrate pursuant to s 22 of the Magistrates Courts Act 1991, is governed by s 42 of that Act.
That view of the appropriate procedure for the bringing of an appeal in such circumstances was confirmed by the Court of Criminal Appeal in R v Allen.[14] In that case the dictum of King CJ to that effect was adopted by Lander J, with whose reasons Martin J agreed. Besanko J separately came to the same conclusion.
[14] (2002) 81 SASR 434
In his judgment, after referring to cases where a District Court judge exercises the power conferred by s 22 of the Magistrates Court Act 1991 and s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act, Lander J commented:[15]
“In those circumstances the matter is governed by the Magistrates Court Act 1991 (SA), and in particular s 42 of that Act. In my opinion, the applicant has a right of appeal, pursuant to that section, to a single Judge of this Court. Leave is not required. The appeal is to a single Judge as of right.”
In a later passage in his judgment, Lander J dealt with the situation where the District Court judge exercises jurisdiction pursuant to both the District Court and the Magistrates Court Act. He observed:[16]
“61Ordinarily where a District Court Judge exercises the jurisdiction of the Court and at the same time exercises the jurisdiction of the Magistrates Court and impose (sic) a sentencing package from which a person desires to appeal, it would be appropriate for an application for leave to appeal to be made to a single Judge of this Court in relation to the District Court matter and a Notice of Appeal brought to the same Judge in respect of the Magistrates Court matters.
62If the Supreme Court Judge believes that the matter was worthy of leave then ordinarily he or she would refer the Magistrates Court matter to the Court of Criminal Appeal for hearing at the same time as the appeal under s 352 of the Criminal Law Consolidation Act.”
[15] Ibid p440, para 42
[16] Ibid p442, para 61
The question arises as to what statutory provisions govern the right of appeal from a District Court judge exercising the criminal jurisdiction of the District Court.
The matter was dealt with by Lander J in R v Allen in the following passage in his judgment:[17]:
[17] Ibid p440
“46Section 352 of the Criminal Law Consolidation Act is not the only section which gives a party a right to appeal from matters heard and determined in the criminal jurisdiction of the District Court.
47Section 43 of the District Court Act provides:
‘(1) A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2) The appeal lies –
(a)in the case of a judgment given by a Master or the Court constituted of a Master or the court constituted of a master – to the Court constituted of a Judge;
(b)in the case of an interlocutory judgment given by a Judge – to the Supreme Court constituted of a single Judge;
(c)in any other case – to the Full Court of the Supreme Court. …’
48Action is defined in s 3 in the following terms: ‘action’ means any civil or criminal proceedings in the Court, including proceedings for a contempt of the Court;”
49Section 43 would seem to allow a party to a criminal proceeding to appeal to the Full Court of the Supreme Court.
50There is, however, a limit upon that power.
51Section 45 of the District Court Act provides:
‘This Part does not apply in respect of appeals and reservations of questions of law in criminal proceedings to which Part 11 of the Criminal Law Consolidation Act1935 is applicable.’
52It follows therefore that where a judge of the District Court is exercising the criminal jurisdiction of the District Court, an appeal either lies by leave pursuant to s 352(1) of the Criminal Law Consolidation Act to the Full Court or as of right pursuant to s 43 of the District Court Act to the Full Court. Because of the provisions of s 45 of the District Court Act both sections cannot apply at the same time.”
With respect to Lander J, the proposition contained in paragraph 52 of the passage which I have just quoted needs some qualification.
Section 352(1) of the CLCA relevantly provides:
“(1)Appeals lie to the Full Court as follows:
(a) if a person is convicted on information-
(i)the convicted person may appeal against the conviction as of right on any ground that involves a question of law alone;
(ii)the convicted person may appeal against the conviction on any other ground with the leave of the Full Court or on the certificate of the court of trial that it is a fit case for appeal;
(iii)the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the leave of the Full Court;
(ab) if a person is tried on information and acquitted and the trial was by a judge sitting alone, the Director of Public Prosecutions may appeal against the acquittal on any ground with the leave of the Full Court: ....”
I draw attention to the words “convicted on information”.
The right of appeal conferred by s 43 of the District Court Act, which for the reasons given by Lander J has the potential to apply to criminal proceedings in the District Court, is qualified by reason of the limitation imposed by s 45 of the Act. That limitation applies to Part 7 of the District Court Act. Both s 43 and s 45 of the District Court Act are in Part 7 of the Act.
It follows that when s 45 provides “this Part does not apply in respect of appeals and reservations of questions of law in criminal proceedings to which Part 11” of the CLCA Act is applicable, in criminal proceedings prosecuted in the District Court on information, the only right of appeal is that conferred by s 352 of the CLCA.
It might be said that given that all criminal matters instituted in the District Court are invariably prosecuted on an information filed in that court, on the construction which I have suggested, the interaction between s 43 and s 45 would confine the application of s 43(2), principally to appeals in civil matters.
However, I do not see that as an argument against the construction which I have suggested. I think such a construction is to be preferred than one which would recognise parallels rights of appeal, one (at least in the case of sentence appeals) which could only be exercised by leave, and the other as of right.
On the other hand, if a District Court judge exercises the power of the Magistrates Court to deal with a matter in that court prosecuted on complaint, s 45 would not be of application so as to attract the appeal provisions of Part 11 of the CLCA, and an appeal would lie as of right pursuant to s 43(2) of the District Court Act.
Applying that view of the procedures to the present case, there was an appeal by leave of this Court from that part of the sentence imposed by the sentencing judge as related to matters which proceeded either in the District Court or in the Magistrates Court on information. As I have observed, this applies to most of the matters.
As for the part of the sentence imposed with respect to the unlawful possession charges which had been prosecuted on complaint in the Magistrates Court, there is a right of appeal (as to which no leave was necessary) pursuant to s 43(2)(c) of the District Court Act.
I see no reason why in such a case a single notice of appeal cannot be lodged in this Court, and to the extent that leave may be required, an application for leave should then be entertained.
In this case, the fact that the application for leave was entertained with respect to the whole of the sentence under appeal is of no consequence, as leave was granted and the appeal proceeded as to all elements of the sentence in question.
The views which I have expressed as to the appropriate procedure conflict with some of the observations which fell from Lander J, with which the remaining members of the court agreed, in Allen.
But insofar as Lander J was referring to those cases in which he considered that the appeal procedure was governed by s 43 of the Magistrates Court Act, this related only to what is described in his judgment as the “22 May offence”. As noted later in his judgment, the applicant did not pursue any appeal against that offence. In the result, the observations made by Lander J as to the applicability of s 42 of the Magistrates Court Act were strictly obiter.
Likewise, the observations by King CJ in Tarasenko (supra) to the same effect were also obiter.
It follows that none of the pronouncements in those two cases on that aspect of the matter are binding on this Court.
As for the observations by Lander J as to the interaction of s 352(1) of the CLCA and s 43 of the District Court Act, I regard those observations as being somewhat ambiguous, for the reasons which I have given, and it is open to this Court to reconsider the matter in order to clarify the construction which is to be preferred.
Conclusion
Returning to the present case, I would allow the appeal and quash the sentence under appeal.
Since dictating the above reasons, I have had the very considerable benefit of perusing the draft reasons for judgment of Mullighan J, and of Doyle CJ.
My consideration of the reasons of Mullighan J has led me to the view that the reduction in the sentence under appeal suggested by me above, is perhaps less than is justified. However, notwithstanding the matters of background highlighted by Mullighan J, having regard to the objective seriousness of the offending and the lengthy period over which it was committed, in my view, the lowest sentence which should be countenanced is 3 years imprisonment with a non-parole period of 18 months.
Given the view of the majority, it is unnecessary for me to comment further as to the sentence which, in my view, should be substituted.
MULLIGHAN J The issues raised on this appeal are discussed by Perry J.
I agree with his conclusions except in relation to the sentence which should now be imposed and to the matters which I now mention.
The observations in R v Place (2002) 81 SASR 395 that, generally speaking, there is justification to impose greater sentences for later offences, where multiple offences have been committed over a period of time, must be considered along with the observations of King CJ in R v McInerney (1986) 42 SASR 111 at 113. It is important to ensure that the offender is not again punished for earlier crimes.
In the present case this principle is of particular importance. With the possible exception of the first offence of unlawful possession, the appellant was involved in a course of criminal conduct commencing probably early April 2002 and ending nearly eight months later. It may be appropriate to say that the unlawful possession offence, which I have mentioned, falls within that course of conduct. There was a spate of false pretences and attempted false pretences offences in April, May and June 2002 and again in September and October 2002.
In my view, the correct approach is to first consider separately the appropriate sentences for the first offence of unlawful possession and then the two courses of criminal conduct later in the year also including the further offence of unlawful possession between May and December 2002. Having done so, adjustments should then be made for proportionality, the plea of guilty and any other matters of significance.
The circumstances of the offending and the appellant must be considered. She was aged 32 years during most of this offending. She has three children aged 13 years, 8 years and 6 years. The appellant has had a difficult life. As a young child she was sexually abused by her father, in consequence of which he was imprisoned. She left school at the age of 15 years and had limited employment. She has had only one significant personal relationship which was with the father of her children which lasted for about 10 years. She became pregnant with her first child at the age of 19 years. This child does not live with her. The father of that child is deceased. About five years ago, the appellant and her partner lived and worked in Western Australia until their employment ceased. They returned to South Australia.
The appellant has a prior record of offending of little significance for present purposes. She committed larceny as a youth and was fined without conviction. In October 1999 she passed a valueless cheque and was ordered to pay compensation. She committed various motor vehicle offences, was fined $150 for producing cannabis and on occasions failed to comply to bail agreements.
During about 2001 and 2002, the appellant used amphetamines intravenously and had a very significant drug problem which compromised her care for her children. Her relationship with her partner was characterised by his violence towards her and unstable living arrangements, often sharing housing with many other drug users.
The offences which are the subject of the sentence under appeal are drug related. She committed the offences to finance her drug use. The domestic violence and sexual abuse are said, by the author of a pre-sentence report, to have contributed to her eventual drug use.
The partner of the appellant was apprehended in late 2002 and subsequently imprisoned. He was released from prison in early September 2003. He had been sentenced and resumed living with the appellant shortly before she was sentenced. We were informed that sentencing of the appellant was deferred until the release of her partner so that he could care for the children if she went to prison. It is the opinion of the author of the pre‑sentence report that the appellant’s offending was influenced by her partner. Her relationship with him was also characterised by drug abuse. Since his imprisonment and before sentence was imposed upon her, the appellant abstained from amphetamines. Since November 2002 she had been under supervision as a condition of bail and bonds into which she entered upon her conviction of motor vehicle offences. In the pre-sentence report, it is reported that her drug use decreased after the imprisonment of her partner and she has resolved to become drug free. Although in the past she had not complied with five community service requirements, she has complied with other obligations under the bonds and co-operated with supervision. She voluntarily entered into ongoing assistance from Family Reach Out Programmes.
It may be seen from this brief description of her personal circumstances that the appellant has experienced much difficulty in her life and it is only upon the development of amphetamine use with her partner that she committed a series of offences to service her habit whilst under his influence. She had been at liberty in the community for about 12 months without re-offending or using amphetamines before she was sentenced. The learned Judge made only brief observations about her background in his sentencing remarks.
I now turn to the circumstances of the offences. The unlawful possession offences occurred when the appellant pawned items of property for money, sometimes using identification documents of someone else. This property was brought to the house where she was living with her partner, by others. In relation to the forgery offence, the appellant received a cheque from a child support agency for $10. It was forged by someone else who altered the amount payable to $3,450. The appellant accepted criminal responsibility on the basis of a joint enterprise. The cheque was seized by police when her house was searched and was never presented for payment.
The learned Judge found that the appellant attempted to sell or pawn property which was the subject of the offences of unlawful possession and that the total value of the property was in excess of $1,000. He said that the false pretences offences involved her obtaining mobile telephones each of the value of $621 by giving to the supplier the particulars of another person without that person’s consent. She incurred telephone charges on the telephones in excess of $2,400. The other false pretence offences involved the use of cheques. On one occasion at a supermarket she presented a cheque for $687.45 from a cheque book which had been stolen from a motor vehicle. On other occasions she obtained bank cheques for small amounts from a bank by pretending that she was another person. She and her partner obtained a laser jet printer of the value of $5,409.50 and attempted to obtain other electrical items from a retailer by obtaining a bank cheque to show the price of goods which was $5,635. On occasions the appellant was used by others as the person to undertake the fraudulent conduct to obtain money.
We were informed that over $18,000 was involved in the totality of the appellant’s offending without taking into account the cost of the telephone calls using the mobile telephones. This amount includes $3,450, being the forged amount on the cheque which is the subject of the forgery charge and the sum of $5,635, being the price of the electrical goods which, I assume, the appellant did not receive, as she was charged with attempted false pretences in relation to those items. An aggravating feature of the conduct of the appellant is that her purpose in obtaining the laser printer was to assist in the alteration of the amounts specified in cheques which indicates planning and premeditation.
We were not informed of the offences which involved her partner or of the charges in respect of which he was convicted and the precise sentence which he received. However, we were informed that he was sentenced in the Magistrates Court in about September 2002 and was released in September 2003.
In my view, the sentence imposed upon the appellant was manifestly excessive and is indeed crushing for a person in her position. The learned Judge adopted the approach suggested in R v Major (1998) 70 SASR 488 which is a case involving many offences. In some case this approach can lead to an unrealistic starting point in sentencing. It is accepted that the approach in Major is not appropriate in all cases: R v Symonds [1999] SASC 217.
I do not think the approach in Major should have been adopted in the present case. The inappropriateness of that approach is demonstrated by the final result. A head sentence of four years and six months for a young woman who had not previously been in prison, had the care of two young children, was involved in a spate of criminal offending whilst under the influence of drugs and a violent partner, had a difficult life and was involved in positive steps to achieve rehabilitation is inappropriate. Also, the amount of money actually obtained by the appellant by reason of her criminal conduct was relatively small when compared to various cases of systematic fraud by employees in a position of trust, some of whom received suspended sentences.
The inappropriateness of the approach in Major may be demonstrated. If the first offence, in the chronological sense, of unlawful possession is considered alone, a sentence of imprisonment would be inappropriate in all the circumstances. I am prepared to accept, for present purposes, that a sentence of imprisonment for six months for the offence of forgery is justified. However, the course of conduct in April, May and June 2002 of false pretences and attempted false pretences did not justify separate sentences, to be served cumulatively, with the exception of one sentence which has been mentioned. A total sentence for all of that conduct of two years and five months given the circumstances of the offences and the appellant is inappropriate. In my view, a sentence of 12 months would be sufficient.
I am prepared to accept that the sentence of imprisonment for four months for the offence of unlawful possession in 2002 is appropriate, and that the separate sentences of one month each for the false pretences offences in September and October 2002 were inappropriate.
However, the sentences of 15 months for the transaction involving the laser printer and 10 months involving the attempt to obtain electrical goods in October 2002, making a total of two years and one month, were manifestly excessive. It was appropriate to consider the conduct involved in those two offences separately, but even against the background of the earlier offences, such a sentence could not be justified and necessarily involved the appellant being punished again for her earlier offending. In my view, the appropriate sentence for those two crimes could not exceed a total of imprisonment for twelve months.
If the approach in Major is considered, the total sentence should not exceed two years and 10 months as a starting point. So far I have not made any allowance for the first offence, in point of time, of unlawful possession because, as I have said, on the approach in Major a sentence of imprisonment would not have been imposed. However, I accept that some sentence should be imposed which could not be suspended standing alone in view of the sentences of imprisonment for the subsequent offences. The sentence should be two months, making the total sentence as a starting point of three years which is, nevertheless, a very severe sentence for a person in the position of the appellant and, in my view, would be disproportionate to the extent of the appellant’s criminal offending.
The learned Judge gave emphasis to the need for personal and general deterrence and was correct in doing so, however there were other principles of sentencing which were also important, namely rehabilitation and adequate punishment and proportionality. I think that in imposing the sentence the learned Judge did not give sufficient consideration to these matters. Excessive punishment is not adequate punishment. The sentence imposed was disproportionate to the totality of her offending and she had shown some prospects of rehabilitation. Also, there were other important matters to consider, namely the circumstances of the appellant, her contrition and remorse, her cooperation with the police and the probable effect of the sentence upon her children. I have excluded from consideration the sentence imposed upon her partner due to lack of information, but it would seem unjust to have sheeted home to the appellant the major share of responsibility for offences which they may have committed together, if that is what happened.
Having arrived at a starting point of three years, it is necessary to determine if there should be some reduction on the ground of totality. Standing back from a sentence of three years for all of this criminal conduct, I think a reduction for totality is required. However, I would not reduce the sentence substantially for that reason in view of the concurrency of some of the sentences which should be ordered. I would reduce the sentence to two years and six months for that reason.
If the approach in Major is not adopted, I would reach much the same conclusion. I would fix upon a single sentence of two years and six months to be reduced to two years for the pleas of guilty. A sentence of two years is a very substantial sentence in all of the circumstances. I would fix a non-parole period of twelve months.
Because of the approach I have taken to the appeal on the merits, it is unnecessary to consider whether a Judge exercising the jurisdiction of a magistrate cannot impose a single sentence for multiple offences of more than two years. As to the procedural matters relating to an appeal where the sentence includes punishment for offences charged on complaint, I am in substantial agreement with Perry J. However, I think the relevant legislation should be amended to provide that when a District Court Judge, or a Supreme Court Judge, sentences for an indictable offence and also for an offence or offences charged on complaint, exercising the powers of a Magistrate, an appeal against sentence should be by leave to the Full Court and should embrace all sentences and aspects of sentencing which are involved.
I agree with Doyle CJ that we should dispense with further compliance with the requirements of R 96C of the Supreme Court Rules 1987.
I would allow the appeal. I would impose one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of imprisonment for two years with a non-parole period of twelve months.
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