R v Hopkins No. Sccrm-01-312

[2002] SASC 123

R  v  HOPKINS
[2002] SASC 123

Court of Criminal Appeal:  Doyle CJ, Prior and Nyland JJ

1. DOYLE CJ:          I would allow the appeal, set aside the sentence imposed by the District Court, and substitute a sentence of imprisonment for four years and six months.  The appellant must also serve a further four months’ imprisonment, that being the suspended sentence which must now be brought into force.  In relation to the combined head sentence of four years and ten months, I would fix a non-parole period of three years.  I would direct that the first of those sentences begin from 2 April 2001.  I agree with the reasons of Nyland J for so deciding.

2. PRIOR J:              I agree that this appeal should be allowed.  I agree with the sentence proposed by Justice Nyland and with her reasons.

3. NYLAND J.           This is an appeal against sentence.  The appellant was charged on information with one count of serious criminal trespass in a place of residence committed on 28 November 2000 contrary to s 170(1) Criminal Law Consolidation Act 1935 (CLCA) and one count of larceny of goods therefrom contrary to s 131 CLCA.  He was also charged with a further offence of larceny of a motor vehicle and other items on 29 November 2000.  The appellant pleaded guilty to all of those charges upon his arraignment.

4. On 14 September 2001 the appellant was sentenced in the District Court. The District Court judge applied the provisions of s 18A of the Criminal Law (Sentencing) Act (1981) and imposed one sentence with respect to all of the offending.  The judge indicated that he would normally have set a period of eight years for the offending but reduced that by two years to give the appellant credit for his pleas of guilty and the assistance given to the police.  He then sentenced the appellant to be imprisoned for a period of six years.  The appellant had by the commission of these offences breached a suspended sentence bond of four months’ imprisonment.  That was made cumulative upon the sentence of six years resulting in a head sentence of six years and four months.  The judge then fixed a non‑parole period of four years.  The appellant has appealed against that sentence on the ground that in all the circumstances it is manifestly excessive.

5. The circumstances relating to this offending are as follows.  In the month of September 2000 the appellant was in custody in the Adelaide Remand Centre.  In an effort to “big note” himself he told another prisoner called Murch that he knew the location of some valuable gold and opals which could be easily stolen.  The goods were hidden in a house owned by the appellant’s defacto’s father.  The appellant told Murch that the premises did not have an alarm system, gave some information as to the layout of the premises and told him when the house would be unoccupied.

6. The appellant was released from custody on 24 October 2000.  Thereafter he made further contact with Murch.  On 26 November 2000 he drove to the house with Murch and another man whom he could not later identify to the police.  On the 28 November 2000 the house was broken into and numerous items taken therefrom including photographic equipment, laptop computer, computer files, precious gems and gold pieces.  The value of the goods stolen was alleged in the Information to be approximately $105,000.  On the hearing of the appeal it appeared that the value had been inflated by the inclusion of replacement costs for some items and that the true value was somewhere in the vicinity of about $70,000.  In the scheme of things however I do not think that anything turns on that.  This remains a serious offence involving the larceny of goods of substantial value.

7. The appellant did not take part in the actual break‑in of the premises and he maintained that he was unaware of the value of the goods taken.  He said that he only received the sum of $300 for his part in the crime being the proceeds of the sale of a laptop computer.  On 29 November 2000 the appellant heard that the police suspected him of involvement in the crime.  He panicked and then took without permission a car belonging to a friend which also had property contained in it.  He drove the vehicle to Victoria where he was eventually apprehended on 3 December 2000.  He was subsequently charged and convicted of other separate and unrelated dishonesty offences committed in Victoria.

8. When interviewed by the police the appellant was frank about his involvement in these crimes.  He named Murch and told the police about the plan they had formulated when in prison.  He offered to provide evidence in court against Murch.  Murch has not however been charged with respect to his alleged participation in these crimes.

9. In the course of sentencing submissions the judge was provided with a psychological report of Mr Balfour and a psychiatric report of Dr Raeside.  The judge referred to those reports and the fact that over the years the appellant had subjected himself to drug abuse and had been diagnosed in January 2000 with the psychological condition of bipolar disease.  The judge indicated however that it was clear from those reports that this condition had nothing to do with the commission of the offence although he took it into account by way of matters personal to the appellant.  In my view that was a proper approach to the medical evidence.

10. The appellant argued that the learned sentencing judge had failed to give sufficient credit to the appellant for his plea of guilty, the assistance he gave to the police by naming Murch as the principal offender and his offer to give evidence against him.  Since R v Shannon (1979) 21 SASR 442 it has been the practice of the Court to allow a reduction in the sentence to reflect such matters as a plea of guilty especially if the plea is indicative of genuine remorse. The extent of the reduction is however a matter within the discretion of the sentencing judge and it is not capable of any precise mathematical calculation. A reduction of 25 per cent as was allowed by the judge in this case can be regarded at the upper end of the scale applicable to pleas of guilty. In my opinion in this case that reduction included a sufficient allowance for the assistance given by the appellant to the authorities as well as his plea, particularly as there appears to have been a relatively strong case against the appellant.

11. The appellant further complained however that the judge’s starting point of eight years prior to giving the reduction was too high for this offending.  The maximum penalty applicable with respect to the offence of serious criminal trespass contrary to s 170(1) CLCA is imprisonment for a period of 15 years.  The penalty with respect to each of the charges of larceny is imprisonment for a maximum period of five years. 

12. Although the appellant, by his actions, was to be treated as a joint offender his role in respect to the criminal trespass and the larceny of the property from the house was somewhat less than that of those who broke into the premises and removed the goods.  The value of the goods taken was substantial but that was a matter to be taken into account with respect to the penalty to be imposed with respect to the larceny charge for which the maximum penalty was five years’ imprisonment.  As Martin J pointed out in R v Power (2001) 214 LSJS 58 at 61.

    “When sentence is being imposed in respect of aggravated serious criminal trespass and a separate offence committed after entry into the place of residence that is the subject of the trespass, it is important to ensure that there is no doubling-up of the factors to be taken into account in determining what would be both the appropriate individual sentences and the total period that properly reflects the gravity of the criminal conduct.”

13. In this case there was a substantial degree of concurrency between the first two offences which made it appropriate for the judge to apply the provisions of s 18A of the Sentencing Act. When one stands back and looks at the role played by the appellant in the commission of the substantive offences however I think a sentence of four years would have adequately reflected the gravity of those two matters. A further sentence of two years for the charge of larceny of the motor car would have been sufficient for that particular crime. That would result in a head sentence of six years for all of the offending. I therefore consider that the judge’s starting point of eight years prior to allowing a reduction for the plea and assistance to the authorities was too high. In my opinion the appeal should be allowed and the sentence quashed. In substitution for that sentence and applying the provisions of s 18A of the Sentencing Act but for the pleas of guilty I would have imposed a single sentence of six years imprisonment.  Consistent with the approach taken by the sentencing judge I would reduce that sentence by 25 per cent to allow for the plea of guilty and cooperation with the authorities.  This results in a sentence of four years and six months.  To that sentence must be added the four months for the suspended sentence bond which was breached.  The head sentence is therefore four years and 10 months.  In view of the appellant’s poor record and failure to take advantage of the leniency extended to him in the past it is not appropriate to suspend this sentence nor fix a low non‑parole period.  I would therefore fix a non‑parole period of three years.  Both the sentence and the non‑parole period should commence from 2 April 2001.