R v Honeyman

[2019] SASCFC 24

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HONEYMAN

[2019] SASCFC 24

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)

21 March 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence.

On 27 August 2018 the appellant was sentenced to imprisonment for 19 months, two weeks and one day for offences he committed on 21 April 2017, 5 May 2017 and 16 November 2017. All the offences were committed in breach of a suspended sentence bond that the appellant had entered into on 22 July 2016. The sentencing Judge revoked the suspension with the consequence that the appellant was required to serve the related sentence of imprisonment of one year and four months. The result was an overall period of imprisonment of two years, 11 months, two weeks and one day.

The appellant appealed on the ground that the sentence imposed for the offences committed on 16 November 2017, being the illegal use of a motor vehicle, drive unlicensed, unlawful possession and hinder police, was manifestly excessive. The appellant submitted that, as a consequence, this rendered the overall sentence imposed for the 21 April 2017, 5 May 2017 and 16 November 2017 offending manifestly excessive.

Held, allowing the appeal per the Court, the sentence imposed by the sentencing Judge for the 16 November 2017 offending was manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) s 86A; Motor Vehicles Act 1959 (SA) s 74(1); Road Traffic Act 1961 (SA) s 44; Sentencing Act 2017 (SA) s 26; Statutes Amendment (Illegal Use of Motor Vehicles) Act 1992 (SA); Summary Offences Act 1953 (SA) ss 6(1), 6(2), 17(1), 21C(1), 41(1), referred to.
Greco v Police [2015] SASC 145; Myers v Police [2002] SASC 26; Hili v The Queen (2010) 242 CLR 520; Hole v Police [1999] SASC 153; Hubbard v Police [2004] SASC 377; Martin v Police [1999] SASC 202; Newband v Police (1999) 75 SASR 226; Pearce v Police (1998) 199 LSJS 443; R v Basso (1999) 108 A Crim R 392; R v Hronopoulos [2017] SASCFC 143; R v Hunter [2000] SASC 137; R v Morse (1979) 23 SASR 98; R v Nemer (2003) 87 SASR 168; R v Perre (1986) 41 SASR 105, considered.

R v HONEYMAN
[2019] SASCFC 24

Court of Criminal Appeal: Kourakis CJ, Kelly and Hinton JJ

THE COURT:

1. This is an appeal against sentence. The table below lists the offences for which the appellant, Lloyd Honeyman, was sentenced on 27 August 2018 in addition to identifying the date upon which those offences were committed, the applicable maximum penalties, the applicable maximum discount that could be afforded to the appellant on account of his having pleaded guilty and the sentence imposed.

Date of offending	Offences	Maximum penalty	Applicable discount	Sentence
21 April 2017	1. Hinder police vs s 6(2) Summary Offences Act 1953 (SA) 2. Carry offensive weapon vs s 21C(1) Summary Offences Act 1953 (SA) 3.   Assault police vs s 6(1) Summary Offences Act 1953 (SA)	$2,500 fine or six months’ imprisonment $2,500 fine or six months’ imprisonment $10,000 fine or two years’ imprisonment	10% 10% 10%	Pursuant to s 26 of the Sentencing Act 2017 (SA) eight months’ imprisonment reduced to six months, three weeks and six days on account of the appellant’s pleas and after taking into account 10 days he had spent in custody.
5 May 2017	1. Unlawfully on premises vs s 17(1) Summary Offences Act 1953 (SA)	$2,500 fine or six months’ imprisonment	30%	Conviction, no further penalty (having regard to the five days that the appellant spent in custody).
16 November 2017	1. Use of a motor vehicle without consent vs s 86A(1) Criminal Law Consolidation Act 1935 (SA) 2. Drive unlicensed vs s 74(1) Motor Vehicles Act 1959 (SA) 3. Unlawful possession vs s 41(1) Summary Offences Act 1953 (SA) 4. Hinder police vs s 6(2) Summary Offences Act 1953 (SA)	Subsequent offence: imprisonment for not less than three months but not more than four years $1,250 fine $10,000 fine or two years’ imprisonment $2,500 fine or six months’ imprisonment	30% 30% 30% 30%	Pursuant to s 26 of the Sentencing Act 2017 (SA) for offences 1, 3 and 4, 18 months’ imprisonment reduced to 12 months, two weeks and four days on account of the appellant’s pleas. For offence 2 a conviction was imposed without any further penalty. For offence 1 the sentencing Judge also ordered that the appellant be disqualified from holding or obtaining a driver’s licence for 12 months.

1. The sentencing Judge ordered that the sentences of imprisonment imposed for the offending of 21 April 2017 and 16 November 2017 be served cumulatively upon one another resulting in a total period of imprisonment of 19 months, two weeks and one day.

2. All of the offences to which the appellant pleaded guilty as set out in the above table were committed in breach of a bond to be of good behaviour for a period of two years that the appellant entered into on 22 July 2016. Entry into the bond resulted in the suspension of a sentence of imprisonment for one year and four months imposed for the offences of damaging property and aggravated assault causing harm. The sentencing Judge revoked the suspension with the consequence that the appellant was required to serve the sentence of imprisonment for one year and four months imposed in 2016 and, upon the expiration of that sentence, the sentences imposed for the offending of 21 April 2017 and 16 November 2017. The result was an overall period of imprisonment of two years, 11 months, two weeks and one day. The Judge fixed a non-parole period of one year and six months and ordered that the overall sentence including the non-parole period commence on 16 November 2017 being the day the appellant was taken into custody.

3. In this Court the appellant does not quibble with the revocation of the suspended sentence bond, nor with the sentences imposed for his offending on 21 April 2017 and 5 May 2017. Further, he does not complain about the orders that the sentences imposed for the offences committed on each of 21 April 2017 and 16 November 2017 be served cumulatively upon one another and upon the revoked suspended sentence. His complaint is limited to the sentence imposed for the 16 November 2017 offending. He submits that in all the circumstances that sentence is manifestly excessive with the consequence that the overall sentence for the offending of 21 April 2017, 5 May 2017 and 16 November 2017 is manifestly excessive.

4. For the reasons that follow we would allow the appeal.

   The circumstances of the 16 November 2017 offending and the appellant’s explanation

5. In the Court below sentencing submissions were made on 19 July 2018 and 6 August 2018.

6. On 19 July 2018 the prosecution provided the Court with a document which included, amongst other things, a summary of the factual basis upon which the appellant was to be sentenced in relation to each offence. With respect to the 16 November 2017 offending that document stated:

   On the evening of 16 November 2017, police observed the accused driving a Mazda sedan in the city. The Mazda sedan had been reported as stolen during a serious criminal trespass which had happened in Unley that morning: illegal use of MV. The accused’s license had expired in 2014: driving unlicensed.

   Police followed the Mazda through several streets to an address in Morphettville. They cordoned off the area and as they were knocking on the front door, the accused left via the back door and ended up on the roof of the house. The accused then jumped off the roof and over fences before decamping through a drain and being arrested: hinder police.

   During a search of the Morphettville house, police found items which were either confirmed as being stolen during the Unley SCT, or suspected of being obtained unlawfully, including jewellery, electronic tablets, and handbags: unlawful possession.

7. In his sentencing remarks the sentencing Judge relied heavily upon this summary which was drawn from the Police Apprehension Report.

8. The Apprehension Report makes plain that the Mazda vehicle belonged to a Ms Leung who lived in Unley. Ms Leung went to bed around midnight on 15/16 November 2018. At about 9.30 am the next morning she discovered that her Mazda had been taken. In addition, some jewellery and other items worth around $18,000 in total had been taken.

9. The Apprehension Report makes no mention of any damage being caused to Ms Leung’s car, nor does it suggest that she did not recover everything taken.

10. We note the Apprehension Report also suggests that the appellant was in the Unley Park area the day before Ms Leung’s vehicle was taken in a different stolen vehicle.

11. On 6 August 2018 the following explanation was offered by the appellant for his offending on 16 November 2017:

    Finally, there is the offending in November 2017, the illegal use of a motor vehicle charge, unlawful possession, hinder police. Again, these were impulsive decisions. He was walking down the street when he saw the vehicle parked, it had the keys in the ignition and he made the choice on the spur of the moment to take that vehicle. The items the subject of the unlawful possession charge, he instructs, were in that vehicle and he took them from it and removed them with a view to keeping them, essentially with the view that they may assist him to fund his increasing reliance on illicit substances. He then made the panicked and impulsive decision to run from the police.

12. This explanation was not challenged by the prosecution. It was accepted by the sentencing Judge who said:

    ... I am told that you deny being involved in the trespass and theft of the goods that were located in the car, but that you admit that you removed the items from the car with the intention of keeping them. I will sentence you upon the basis that the stolen goods were in the car when you came across it.

    …

    Your counsel submitted, and I accept, that the decision you made to take the car was an impulsive one having noticed that the car was unoccupied with the keys in the ignition. Your offending can best be described as opportunistic, which is also characteristic of someone in the grip of a drug addiction. Your behaviour in relation to the police, once again, suggests that you were suffering from a degree of paranoia and delusion, however, this was not your first offence of this kind hence the increased maximum penalty and mandatory term of imprisonment which applies.

13. On the hearing of this appeal some disquiet was expressed as to the probability of this explanation being true. There being no Crown appeal we are constrained to act on the basis of the explanation as accepted. Nonetheless, we take the opportunity to remind sentencers:[1]

    In sentencing an offender the court must act according to law. The court must reach its own conclusion on the factual basis on which sentence is to be passed, and must exercise its own judgment and discretion in arriving at the appropriate sentence. As has been said, the court exercises its power and makes its decision acting in the public interest: Malvaso v The Queen (1989) 168 CLR 227 at 233 (Malvaso). The Director of Public Prosecutions has a duty to assist the court in the sentencing process. In the discharge of that duty the Director puts submissions to the court, but those submissions are merely matters to be considered by the court, to be given such weight as they deserve. The court is not bound in any way by the submissions of the Director, nor is the Director’s attitude to a given case a matter that should influence the court: R v Malvaso (1989) 50 SASR 503 at 509-510 per King CJ. The court must make its own decision, acting according to law and in the public interest. In particular, the court is not bound by any agreement or arrangement reached between counsel for the offender and the Director in the course of the sentencing process. As Mason CJ, Brennan and Gaudron JJ said in Malvaso (at 233):

    The court’s sentencing discretion is to be exercised in the public interest; it cannot be fettered by a plea bargaining agreement.

    The same point was made by King CJ in R v Malvaso (1989) 50 SASR 503 at 509-510 and, at a later stage of the case, in R v Malvaso (1990) 156 LSJS 152 at 156.

    [1]    R v Nemer (2003) 87 SASR 168 at [28]-[29] (Doyle CJ).

14. To similar effect in R v Perre King CJ said:[2]

    The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. …

    Even in cases in which the prosecution joins with the defence in asking for sentence to be imposed upon an agreed basis which differs from the depositions or from inferences which the judge may be disposed to draw from the depositions, it is for the judge to decide whether he is prepared to act upon that agreed basis.

    [2] (1986) 41 SASR 105 at 105-106; see also Malvaso v The Queen (1989) 168 CLR 227 at 233 (Mason CJ, Brennan and Gaudron JJ).

15. If an explanation that tends to mitigate offending is proffered from the Bar table that the sentencing judge is not prepared to accept (even if the prosecution does not challenge the explanation), then the judge should indicate as much in order that the defendant may consider giving evidence.[3] It is then for the defendant to prove the proposition on the balance of probabilities before it must be taken into account.[4]

    [3]    R v Olbrich (1999) 199 CLR 270 at [25] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); MJDH v Director of Public Prosecutions (SA) (2013) 116 SASR 180 at [18] (Kourakis CJ).

    [4]    R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Filippou v The Queen (2015) 256 CLR 47 at [64] (French CJ, Bell, Keane and Nettle JJ); MJDH v Director of Public Prosecutions (SA) (2013) 116 SASR 180 at [13]-[18] (Kourakis CJ).

    The sentencing Judge’s reasons

16. The sentencing Judge commenced by dealing with the application to enforce the suspended sentence bond, then proceeded to set out the circumstances of the offending. In doing so he dealt with the offences in three groups, each group defined by the date upon which the offences were committed. With respect to the appellant’s culpability the Judge observed:

    It is readily apparent to me that your 2017 offending occurred against a background of mental health issues, including residual physical and mental trauma following a home invasion and kidnapping attempt made against you. This was unfortunately exacerbated by your use of illicit drugs, as evidenced by your positive drug samples. In this respect, I have no hesitation in accepting your counsel, Mr O’Connor’s submission that all these offences were committed in circumstances of your paranoia, impulsivity and diminished decision making, all of which are, at least in part, attributable to your drug abuse.

17. Next the Judge referred to the appellant’s personal circumstances. He said:

    Turning to your personal circumstances, you are now aged 36 years. You have had a very unsettled childhood with your mother reportedly suffering from alcoholism and your father subjecting you to frequent physical and verbal abuse. Furthermore, you were subject to sexual abuse at a very young age. The result of all this was that you left your father’s home aged 12 and thereafter spent regular periods of time either homeless or couch-surfing.

    To your credit, you were able to obtain employment at age 14 until you were 20. Unfortunately, at this age, you suffered a workplace injury, leading to a diagnosis of reactive arthritis, known as Reiter’s syndrome, which was so severe that you spent seven years in a wheelchair. It was in the context of this illness that you began abusing morphine, which ultimately led to you being admitted to the Margaret Tobin Centre, following reports of suicidal ideation and paranoid delusions.

    Having been medically precluded from receiving opiates, you turned to cannabis and methamphetamine as a way to address your physical pain. I understand that you now accept, albeit with the benefit of hindsight, that whilst illicit drugs provided some short-term benefit, your mental health has suffered as a result. Unfortunately for you, your deteriorating mental health was further compounded when you lost your house of almost 10 years in a fire.

    The state of your mental health goes a very long way towards explaining your actions as they pertain to the matters before the court. Your counsel submits that your failures to attend and undertake drug counselling and to obtain a mental health care plan was due to your increasing paranoia, anxiety and depression. He submitted, which I accept, that you were unwilling to revisit the trauma of your past life with mental health professionals. Accordingly, and whilst I accept throughout 2017 you were undoubtedly suffering from what your counsel described as dis-regulated thinking, which provides an explanation for your offending, it simply cannot provide an excuse for it.

18. The Judge then imposed the sentences set out in the table above. Importantly, the Judge considered that the 16 November 2017 offences “arose out of and formed one course of conduct” and that, had he proceeded to impose a separate sentence for each offence, “it would have been appropriate to order that the sentences for each offence be made fully concurrent with the others”.

    Submissions

19. As mentioned, the appellant focused on the sentence imposed for the 16 November 2017 offending. More particularly, on the sentence imposed for the offences of illegal use of a motor vehicle, unlawful possession and hinder police.[5] The appellant submitted that a starting point of 18 months’ imprisonment for these offences was too high. The appellant contended that the most serious of the three offences was the illegal use of a motor vehicle charge. Whilst this offence attracted a minimum sentence of imprisonment for three months, the appellant submitted that his culpability was at the lower end of the range of seriousness having regard to:

    i.the circumstances of the offending — the appellant used a vehicle that had already been stolen and abandoned;

    ii.the fact that the appellant last committed the offence of illegal use of a motor vehicle over 18 years ago when he was a youth. In those circumstances it could not be said that the appellant was a true recidivist, but was in a position more akin to that of a first offender; and

    iii.the appellant used Ms Leung’s vehicle for a short period of time, did not use it to commit an offence and did not damage it.

    [5] The drive unlicensed charge was punishable by a fine only. It could not be included in a composite sentence under s 26 of the Sentencing Act 2017 (SA) of imprisonment; hence the sentencing Judge dealt with it separately.

20. With respect to the unlawful possession of the items, the appellant had no knowledge or understanding that what he took from the vehicle had come from a criminal trespass. His culpability was limited to his taking the items knowing that they did not belong to him from a car he knew did not belong to him. Whilst the appellant had been convicted of unlawful possession in the past, once again that offending occurred over 18 years ago when he was a juvenile.

21. Lastly, the hinder police charge comprised of nothing more than running away when confronted by the police.

1. In all, the appellant’s culpability, taken with his personal circumstances, did not warrant a starting point of imprisonment for 18 months. His actions were opportunistic and impulsive and characteristic of a person in the grip of drug addiction and at a low ebb in terms mental health.

2. The appellant conceded that committing the 16 November 2017 offences whilst on bail and subject to a good behaviour bond aggravated his level of culpability, but maintained, for the reasons already given, that the 18-month starting point was nonetheless manifestly excessive.

3. The appellant referred the Court to the sentences imposed in Myers v Police,[6] Pearce v Police,[7] Hubbard v Police,[8] Martin v Police,[9] R v Hunter,[10] Hole v Police,[11] Newband v Police[12] and Greco v Police[13] in support of the submission that for the illegal use of a motor vehicle charge there was no appropriate range within which the ordinary sentence may be expected to fall. The respondent agreed with this submission.

   [6] [2002] SASC 26.

   [7] (1998) 199 LSJS 443.

   [8] [2004] SASC 377.

   [9] [1999] SASC 202.

   [10] [2000] SASC 137.

   [11] [1999] SASC 153.

   [12] (1999) 75 SASR 226.

   [13] [2015] SASC 145.

4. The respondent submitted that a starting point of 18 months’ imprisonment for the 16 November 2017 offending was appropriate. The appellant’s offending had to be viewed in the light of his criminal history, which included two prior offences of illegally using a motor vehicle and numerous convictions for dishonesty offences. Further, the fact that the offences were committed whilst the appellant was on bail and subject to a suspended sentence bond and that the appellant had failed to respond to leniency when extended to him militated against any further extension of leniency. In this latter regard reference was also made to the fact that the appellant had failed to engage fully with the supervision that had been provided under the terms of his bond and had continued to use drugs. Counsel submitted that the sentencing Judge had appropriate regard to the appellant’s personal circumstances including the deterioration of his mental health and his misuse of prescription medication and illicit drugs. Quite appropriately, the sentencing Judge referred to the appellant’s mental health as providing an explanation for his offending but no excuse. In all the circumstances the sentence was not manifestly excessive.

   Consideration

5. In R v Morse King CJ, with whom White and Mohr JJ agreed, identified the approach to be undertaken by this Court in determining whether a sentence is manifestly excessive.[14] He said:[15]

   To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. ...

   [14] (1979) 23 SASR 98.

   [15]   R v Morse (1979) 23 SASR 98 at 99.

6. The comments of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Hili v The Queen are also apposite:[16]

   … what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.

   [16] (2010) 242 CLR 520 at [60].

7. Bearing this in mind, we proceed to consider the sentences that we would have imposed for the offences of illegal use of a motor vehicle, unlawful possession and hinder police.

8. The applicable maximum penalties for the 16 November 2017 offences are set out in the table above.

9. The Statutes Amendment (Illegal Use of Motor Vehicles) Act 1992 (SA) inserted s 86A in the Criminal Law Consolidation Act 1935 (SA) replacing its predecessor, s 44 of the Road Traffic Act 1961 (SA). The maximum penalty for a first offence and for a subsequent offence were doubled “to make the penalties for illegal use of a motor vehicle comparable with those for larceny”[17] and ensure that it be “regarded as a more serious crime”[18] than as had been the case under s 44.

   [17]   Parliament of South Australia, House of Assembly, Hansard, 27 November 1991 at 2419.

   [18]   Parliament of South Australia, House of Assembly, Hansard, 12 February 1992 at 2701.

10. In the second reading speech in the House of Assembly it was observed that:[19]

    For the average South Australian, the family vehicle is the second most valuable possession that each of us will acquire in our lifetime. As it is very difficult to steal a dwelling, … it is certainly the most valuable single item which can be stolen by those who have a mind to do so.

    [19]   Parliament of South Australia, House of Assembly, Hansard, 20 November 1991 at 2146.

11. This observation remains true. Of course, car ownership is not limited to families and the outlay made by individuals, businesses and government in purchasing vehicles is also significant.

12. In R v Basso Chernov JA, sitting in the Victorian Court of Appeal, said:[20]

    Car thefts are prevalent and cause wide-ranging personal and public detriment. Those who are affected by the crime suffer significant financial and personal detriment … Moreover, the wider community is forced to pay high insurance premiums because of the activities of car thieves. The public purse also suffers from such activities. Cars are relatively easy to steal but it takes a good deal of time and effort to locate the stolen vehicles and to solve the crimes. Parliament has prescribed the maximum penalty of 10 years imprisonment for theft. It is appropriate, therefore, that it should be recognised that those who engage in such crimes will be dealt with strictly by the courts. …

    [20] (1999) 108 A Crim R 392 at [38].

13. Respectfully, we agree. Plainly general deterrence is to be afforded significant weight in sentences imposed for the offence of illegal use of a motor vehicle.

14. The consequences of any illegal use of a vehicle for the victim are exacerbated the greater the period of time that the victim is without his or her vehicle. Additionally, damage caused to the vehicle aggravates the offending for the obvious reason.

15. Those who use motor vehicles without consent are of many types. There is, for example, the youthful joyrider, the carjacker, and the career criminal who takes a car to use in the commission of a crime and by its use hopes that he or she cannot be connected to the crime. None intends to keep the vehicle, but to varying degrees are reckless as to whether the owner will be permanently deprived of it or recover it without damage. These factors lead us to agree that there can be no standard sentencing range for the offence of illegal use of a vehicle. As a result, we have found the authorities to which the appellant referred to be of very limited assistance in the resolution of this appeal.

16. In the present case the use of Ms Leung’s vehicle without her consent was impulsive and opportunistic. What the appellant ultimately intended to do with Ms Leung’s vehicle, we do not know. It cannot be said, however, that he intended that the vehicle be returned. At best he was reckless as to the possibility. It was fortuitous from Ms Leung’s point of view that the police located her vehicle when they did. It was also fortuitous that the vehicle was returned undamaged and that Ms Leung recovered her property. In any event, until her vehicle and property were recovered, Ms Leung would have been inconvenienced and likely caused great anxiety. We accept that the appellant is not alone entirely responsible for this, but he contributed to it and, but for the police, would have continued to do so.

17. We bear in mind the appellant’s personal circumstances as set out above in the passage taken from the sentencing Judge’s reasons. We do not overlook the appellant’s state of mental health. He does not contend that it excuses his behaviour, and he does not put that because of it general deterrence must be afforded less weight in sentencing him.[21] Still it remains relevant to our assessment of the extent to which the sentence we would impose must deter and punish the appellant and to his prospects of rehabilitation.

    [21]   R v Hronopoulos [2017] SASCFC 143.

18. We also do not overlook the fact that the appellant was a drug addict. His drug addiction is not offered as a mitigating factor, but, as with his state of mental health, his addiction forms part of his personal circumstances to which we have regard in assessing the weight to be attributed to the purposes of punishment in sentencing him. In particular, in this Court’s experience it is common for addicts to steal items that can be quickly turned into cash which may be used to fund an addiction. Again general deterrence will ordinarily attract significant weight.

19. We agree with the submission that as a subsequent offender the appellant’s culpability lies toward the lower end of the scale of seriousness in view of the passage of years since he was last dealt with for the offence of illegal use of a motor vehicle, his then age and the impulsive and opportunistic nature of the offending.

20. Considering the adversity that the appellant has had to overcome, his antecedents are relatively minor. Until now he has never served a term of imprisonment.

21. Had we imposed a penalty for the illegal use of a motor vehicle offence in isolation, we consider the appropriate starting point would have been imprisonment for eight months.

22. We turn to the unlawful possession charge. Again the offending was opportunistic and impulsive. No doubt the appellant intended that the property would never be returned. It was fortuitous that Ms Leung recovered her property. In all the circumstances had we sentenced the appellant for this offence in isolation we consider that the appropriate penalty would have been imprisonment for three months. We agree that it would be appropriate to order that this sentence be served concurrently with that imposed for the illegal use charge. Whilst we consider that this is not an instance of total overlap, to separate any aspect or element of the illegal use charge from the unlawful possession charge would reflect the theoretical more than the reality.

23. With respect to the charge of hinder police, we note that twice before the appellant has been convicted of resisting police and on one occasion been convicted of assault police. We also bear in mind the nature of the 21 April 2017 offending. The appellant’s attitude toward the authorities is concerning. In all the circumstances we do not think a sentence any greater than imprisonment for six weeks was warranted. We do not agree that it forms part of the same incursion into criminality as the illegal use and unlawful possession charges. Had we been imposing individual sentences we would have ordered that this sentence be served cumulatively upon that imposed for the illegal use charge.

24. The result of our consideration of the notional sentences that we would impose had we been sentencing the appellant is a total period of imprisonment of nine months, one week and five days. We consider that the difference between the sentences we would impose and the sentencing Judge’s starting point of 18 months demonstrates that the latter is manifestly excessive.

25. We would allow the appeal and set aside the sentence. We would impose sentences for the 21 April 2017 and 5 May 2017 offending no different to those imposed by the sentencing Judge. Pursuant to s 26 of the Sentencing Act 2017 (SA) we would impose one penalty for the illegal use of a vehicle, unlawful possession and hinder police charges committed on 16 November 2017 being imprisonment for six months, two weeks and three days (i.e. nine months, one week and five days reduced by 30%[22]). That sentence must be served cumulatively upon the revoked suspended sentence and the sentence for the 21 April 2017 offending. The result is total period of imprisonment of two years, five months and two weeks. We would fix a non-parole period of one year and six months. We appreciate that the non-parole period we impose is no different to that imposed by the sentencing Judge, despite the overall period of imprisonment we would impose being less. Nonetheless, we consider the non-parole period we would set is the minimum period necessary to achieve the purposes of the sentences we would impose.

    [22]   No reason arises not to afford the appellant the full benefit of the discount for his pleas.

26. We would impose the same sentence for the drive unlicensed offence as the sentencing Judge. Lastly, we would also disqualify the appellant from obtaining or holding a licence for a period of 12 months.

27. The sentences we impose are to be taken to have commenced on 16 November 2017.