R v Hayles and Schnarrs No. Sccrm-03-13, Sccrm-03-14

R V HAYLES AND SCHNARRS
[2003] SASC 224
Court Of Criminal Appeal: Debelle, Lander and Gray JJ

DEBELLE J I agree with the reasons of Lander J and with the orders he proposes.
As Lander J has emphasised, there are particular circumstances which justify the sentence in the case of the appellant, Hayles. This is a special case and should not be regarded as a benchmark for other crimes of this kind.
LANDER JThis is an appeal against sentences imposed in the District Court on 23 October 2002.
The appellants were jointly charged on two separate informations, both dated 24 June 2002, in relation to two separate groups of offences. Each information charged the appellants with one count of serious criminal trespass in a non residential building and one count of larceny. Originally the first count on the second information had charged the appellants with aggravated serious criminal trespass in a non-residential building, but this count was amended on 9 September 2002 when both appellants pleaded guilty to all four counts.
On 23 October 2002, the appellant Mr Hayles was sentenced to two years and seven months’ imprisonment with a non parole period of one year and six months, and the appellant Mr Schnarrs was sentenced to two years and 11 months’ imprisonment with a non parole period of one year and eight months.
The circumstances of the offences were as follows.
In the early hours of 10 December 2001, Mr Schnarrs and his step-son, Mr Hayles, attended at the premises of Sonnex Engineering at Elizabeth South. They used pliers to cut a hole in the outer fence, and to fashion points of entry to a building on the premises. The appellants entered the building and removed various trade tools to the value of $6,000. Only the appellant Mr Schnarrs would have had use for the tools themselves as only he had the relevant trade skills.
The events of 10 December gave rise to the offences charged in the first information. The appellants were detected on closed circuit security surveillance and apprehended by police that morning. They were later released on bail.
On 8 March 2002, the appellants, whilst on bail for the previous offences, attended at the premises of Coates Hire in Salisbury, again in the early morning. Again they used pliers to cut a hole in the outer fence, and to fashion points of entry to a shed on the premises. Once inside the outer fence, they gained access to the shed from which they took a compressor. Both the trailer and compressor, together valued at $1,700, were removed from the premises by the appellants. It is this conduct which gave rise to the offences charged in the second information.
The property stolen on both occasions was recovered.
The sentencing Judge, when imposing sentence said [AB 258 –259]:
“In the case of you, Mr Schnaars, concerning the first two counts, of 10 December 2001, I would have fixed a single sentence of 22 months’ imprisonment. In respect of the second two counts, committed on 8 May 2002, I would have fixed a single sentence of imprisonment of 27 months. The aggregate of those sentences would thus have been 49 months, but to reflect totality, I would reduce that aggregate to 42 months. Further to take account of your plea of guilty, albeit that it came at a late stage, I will reduce that sentence to 35 months. The head sentence is thus one of two years and 11 months’ imprisonment, commencing from today, and I fix a non-parole period of one year and eight months.
Given the repetitive nature of your offending and the fact that you have previously had the benefit of a suspended sentence, it is not appropriate that I should suspend your sentence.
As to you, Mr Hayles, for your first offending, in December 2001, I would have sentenced you to 18 months, and for the second set, in May 2002, I would have sentenced you to 24 months, thus a total of 42 months, but I will reduce that total for totality to 37 months, and, on account of your pleas of guilty, to a sentence of 31 months. You are thus sentenced to two years and seven months’ imprisonment from today, and I fix a non-parole period of one year and six months.
You too have previously had the benefit of a bond and, in view of the repetitive nature of your offending, I do not consider it appropriate to suspend the sentence.”
It was also ordered that each of the appellants pay compensation in the amount $165 to the sheriff for and on behalf of Coates Hire for the cost of repairs to their premises.
Mr Hayles was granted leave to appeal on 3 grounds. Other grounds articulated in the annexure to his notice of appeal were properly regarded, by the Judge granting leave, as particulars of a ground on which leave was granted. The grounds of appeal on which leave was granted were as follows:
“16.1 The sentence was manifestly excessive.
16.2 The learned judge failed to suspend the sentence.
….
16.6The learned judge did not have all the information relevant to the sentencing in the form of reports concerning the appellant’s medical condition, psychological condition and personal circumstances as a result of the failure of the appellant’s counsel to obtain or put to the Court such submissions, information or material.”
In respect of ground 16.2, the following particulars were included in the notice of appeal:
“16.3The learned judge failed to have any or adequate regard to the following:-
16.3.1the prosecution position to not oppose a suspended sentence;
16.3.2the appellant’s character, antecedents, age, means, physical and mental condition;
16.3.3the rehabilitation of the appellant and the suitability and means for such an approach;
16.3.4the question of suspending the sentence;
16.3.5that good reason existed for suspending the sentence;
16.3.6the relatively lesser involvement in the commission of the offences of the appellant compared to [Schnarrs].
16.4The learned judge erred in failing to give any or adequate reasons in respect to:-
16.4.1 not suspending the sentence;
16.4.2the nature and relevance of the appellant’s medical condition of diabetes and the effect of imprisonment in respect thereof.”
Mr Schnarrs was granted leave to appeal on the same grounds. The particulars identified in respect of the ground dealing with the failure to suspend sentence differed from those for Mr Hayles, in that the particulars did not include paragraphs 16.3.6, 16.4, 16.4.1 and 16.4.2 mentioned above.
The submissions before the sentencing Judge were very brief and only limited material was put before him. When these appeals first came on for hearing the appellants contended that the solicitor who appeared before the sentencing Judge had failed to put all that was necessary before the Judge.
They sought this Court’s permission to tender fresh evidence on these appeals.
The hearing of the appeals was adjourned to allow the appellants to serve affidavits upon the former solicitor and to allow the solicitor to respond.
The affidavits were served and an affidavit was sworn by the previous solicitor and tendered to the Court.
In the end result this Court did not have to resolve the question raised by the appellants because the Director of Public Prosecutions conceded that the sentencing Judge had fallen into error in the construction of the sentence. It was conceded that the sentencing Judge should have approached his task by first applying whatever discount was appropriate for the pleas of guilty and then considering whether the resultant sentence should be further adjusted for the totality principle. In the circumstances of this case the DPP was prepared to concede that this Court should sentence afresh.
Both appellants were taken into custody on 8 March 2002 and were released on bail on 13 March 2002. Both therefore spent only five days in custody before the sentence was imposed on 23 October 2002.
As I have already indicated the second information was amended on 9 September 2002 when the appellants entered their pleas. In fact the appellants had made known to the DPP on 13 August 2002 that they would plead guilty to the charges if the second information was amended. Both appellants therefore are entitled to a discount for their early pleas.
Mr Schnarrs is aged 44. He is the stepfather of Mr Hayles who is aged 24.
Both men were represented by the same counsel before the sentencing Judge and on appeal.
It was contended on appeal that Mr Hayles should be dealt with more leniently than Mr Schnarrs. It was put that Mr Schnarrs was the leader and Mr Hayles the follower in their relationship. It was contended that Mr Schnarrs led Mr Hayles into committing these offences. Those contentions were put with the approval of Mr Schnarrs and with his apparent understanding of the consequences of those submissions.
Those contentions are consistent with other objective facts.
Both appellants have two previous relevant convictions.
On 6 August 1997, Mr Schnarrs was convicted of larceny and damaging property and was placed on a bond to be of good behaviour for a period of one year. On the same day Mr Hayles was also placed upon a bond to be of good behaviour for a year, but in his case without conviction.
On 30 March 1999, Mr Schnarrs was convicted of being unlawfully on premises, damaging property and attempted larceny and was sentenced to be imprisoned for a period of six months. The sentence was suspended on him entering into a bond to be of good behaviour for a period of two years. That bond had expired prior to the commission of the first of these offences. On the same day Mr Hayles was convicted of being unlawfully on premises and fined $200.
It may be inferred from the charges and which they were convicted, and the sentences which were imposed on the two men, that Mr Schnarrs was the leader in respect of their previous offences. Again that was the contention put by counsel and again with the approval and apparent understanding of Mr Schnarrs.
Those submissions are also consistent with the report of Mr Balfour. He reports that Mr Hayles attributes his prior offences to associating with the wrong crowd meaning Mr Schnarrs. Mr Schnarrs admitted in his interview with Mr Balfour that he was a lot older than Mr Hayles and that it was his idea and that he should have realised more.
In my opinion, those contentions operate as a matter of mitigation in a consideration of Mr Hayles’ culpability and a matter of aggravation in a consideration of Mr Schnarrs’ culpability. Those submissions must be accepted in the sentences to be imposed.
Mr Hayles is the middle child of three children. His parents separated when he was three. His father was an alcoholic and verbally abused his mother. He has only had minimal contact with his father since his father left the family. When Mr Hayles was eleven his mother commenced a relationship with another man who was also alcoholic and violent.
When Mr Hayles was 21 his mother married Mr Schnarrs.
Mr Hayles was an unsuccessful student. He repeated year 8 and was given some remedial education. When he turned 15, and after completing but failing year 9, he left school to join the workforce. He left with survival level literacy and numeracy skills.
He has worked on and off in garden nurseries, as a car detailer and a furniture assembler. His longest period of employment was as a car detailer for a period of seven months.
He would like to work but he has difficulty in obtaining employment.
When he was 21 he commenced a relationship with a woman who has three children from a prior relationship. He has never lived with that woman but they have a child now aged one. He is very fond of the child and the child’s mother allows Mr Hayles unrestricted access to him.
At the age of 21 Mr Hayles developed type one diabetes and he is required to inject himself four times a day with insulin. He must watch his diet. Mr Hayles does not suffer from drug or alcohol problems. He does have a history of depression.
Mr Balfour reported:
“The psychological profile is that of a 24 year old man of low intelligence with a history of learning difficulties who has poor literacy an (sic) numeracy skills. He does not have a conduct disorder during his adolescence. He does not have an anti-authoritarian attitude. He does not have a history of socially gravitating towards a negative peer group. He does not have a history of pervasive anger management problems. He does not have a history of generalised impulse control problems in the community. He is suffering from an adjustment disorder in response to the seriousness of his legal circumstances. He does not suffer from any major psycho-pathology.
Mr Hayles has low self esteem and poor confidence due to having a history of [having] violent alcoholic fathers during his childhood, being socially ostracised at school due to his learning difficulties, and poor literacy and numeracy skills.”
Mr Balfour was of the opinion that with assistance Mr Hayles is likely to be rehabilitated.
This Court was provided with information that was not given to the sentencing Judge. This Court also, in my opinion, was asked to sentence Mr Hayles on a different basis to that upon which the sentencing Judge proceeded. In particular, we were asked to sentence on the basis that Mr Hayles was led into the criminal activity by his step-father.
This sentence should not be treated as a precedent for other sentences for crimes of this kind. Mr Hayles’ personal circumstances and his relationship with his step-father make this a most unusual case.
It would be appropriate to proceed to fix a single sentence of imprisonment for both offences on each information pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA).
For the offences committed on 10 December 2001 I would have imposed one sentence of imprisonment of 12 months. For the offences committed on 8 March 2002 (which were committed whilst the appellant, Mr Hayles was on bail), I would have imposed one sentence of imprisonment of 18 months. I would make the second sentence cumulative upon the first. I would discount the sentences by eight months to reflect the appellant’s early and timely guilty pleas.
That leaves a head sentence of 22 months. I do not believe that that sentence needs to be further reduced on account of the totality principle.
I would fix a non-parole period of nine months. The sentence is to run from 23 October 2002 being the date upon which the District Court Judge first sentenced the appellant.
Mr Schnarrs is aged 44. He was born in Melbourne. He left Melbourne at the age of 15 after his foster mother died and moved to Geelong where he was employed by the Ford Motor Company. He left Geelong when he was 28 to reside in South Australia.
Mr Schnarrs has no memory of his biological parents and no desire to meet them. However, his foster parents were loving and caring parents. They both died within a year of each other. Mr Balfour’s report suggests that Mr Schnarrs was raised in a family which was dominated by the foster mother. She was a harsh disciplinarian and somewhat intimidating and authoritarian. She was difficult to please.
Mr Schnarrs is of low intelligence. He had difficulties at school. He suffered from a learning disability. He left school at the age of 13 during year 8. He had poor literacy and numeracy skills when he left school and he has not undertaken any further education since.
Apart from his employment at Ford Motor Company he has also been employed at Holdens, Telstra, the STA and a recycling plant.
His last employment was with Telstra and he has been unemployed for seven years.
He has been married three times. He had a daughter by his second wife but has not seen her for seven years.
At the age of 34 he commenced a relationship with Mr Hayles’ mother who was then aged 35. They married three years ago. They do not have any children but they care for her two grandchildren.
He told Mr Balfour that he had a very close relationship with Mr Hayles and Mr Balfour recorded:
“He said that Keith looks to him as a father figure. He said that his step-son was very obedient and did not argue. For example, Mr Schnarrs said that if he told Keith to wash a car or to ride his bicycle five miles down the road on an errand he would comply without hesitation.
Mr Schnarrs confirmed that Keith was his co-offender in two previous offences. Mr Schnarrs said that it was his idea that they offend. He said that his step-son became involved because he needed a hand.”
These statements, recorded by Mr Balfour, are consistent with the submissions made by counsel for the appellants.
Mr Schnarrs has poor financial skills. He has been bankrupt twice. His present wife now controls the family budget.
Mr Balfour’s opinion was that Mr Schnarrs was a man of low intelligence who also suffers from low self esteem and a lack of confidence. He has poor social skills. He has a long history of feeling psychologically and socially inadequate and inferior. Mr Balfour reported:
“Mr Schnarrs’ offending behaviour is the actions of a psychologically inadequate man who felt impotent due to his inability to financially support his family because he had been unemployed for the last seven years. His offending behaviour is a concrete and desperate solution conceived by a man of low intelligence with poor literacy and numeracy skills who worried about his family’s ongoing welfare.”
For the reasons already expressed Mr Schnarrs’ culpability in the commission of these two offences is significantly greater than that of Mr Hayles. His culpability in relation to the previous offences to which I have referred was greater again than that of Mr Hayles. Moreover, Mr Schnarrs has previously had the benefit of a suspended sentence.
There can be no doubt his sentence of imprisonment must be longer than that imposed on Mr Hayles. So also must be any non-parole period.
He has served five days in prison before he was granted bail and I have taken that into account.
In relation to the charges on the first information and pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) I would sentence Mr Hayles to 18 months imprisonment.
In relation to the charges on the second information, again pursuant to s 18A, I would impose one sentence being a sentence of imprisonment of 24 months. The second sentence must be cumulative upon the first making a total of 42 months imprisonment. I would reduce that by 12 months to acknowledge his guilty plea and for his co-operation with the authorities and impose a head sentence of two and a half years.
I would fix a non-parole period of fifteen months. Mr Schnarr’s sentence is also to date from 23 October 2002.
I would therefore propose the following orders:
1 Both appeals allowed.
2Both sentences imposed by the sentencing Judge on 23 October 2002 are set aside.
3Mr Hayles is sentenced to a term of imprisonment of one year and ten months. A non-parole period of nine months is fixed.
4Mr Schnarrs is sentenced to a term of imprisonment of two years and six months. A non-parole period of fifteen months is fixed.
GRAY J I agree.

[2003] SASC 224

23 July 2003