R v JAMES No. SCCRM-99-100 Judgment No. S354

[1999] SASC 354

R V JAMES

Court Of Criminal Appeal: Millhouse, Duggan and Lander JJ

MILLHOUSE J. I agree.
DUGGAN J. I agree that this appeal should be allowed. I also agree with the orders proposed by Lander J and the reasons given by him.
LANDER J. The appellant was charged on complaint in the Magistrates Court with a number of offences including illegal use and some Road Traffic Act offences and on information in the District Court on a count of larceny from a person and a count of creating risk of grievous bodily harm.
The appellant pleaded guilty to all of the matters which were heard in the District Court and sentence was imposed on 27 May 1999.
In relation to the information the appellant pleaded guilty that on 2 July 1998 he stole the sum of $5,230. He further pleaded guilty that on 6 September 1998 he drove a motor vehicle in a dangerous manner thereby creating a risk of grievous bodily harm to a pedestrian.
In relation to those two counts he was sentenced to four years and two months imprisonment, such sentence to commence at the expiration of a sentence he was then serving of eight months. The appellant had been sentenced to imprisonment for eight months on 23 March 1999 for an offence of break and enter of a building committed on 25 August 1998.
In respect of the second count on the information he was also disqualified from obtaining or holding a drivers licence for two years.
Of the eight counts on the complaint the appellant pleaded guilty to one count of illegal use, one count of driving at a speed greater than 60 kilometres an hour and one count of failing to obey traffic lights for offences again committed on 6 September 1998. Those convictions all related to the second count on the information. The plea to those counts was accepted by the complainant in full satisfaction of the complaint.
The appellant was sentenced to imprisonment for one year in respect of the three counts to which he pleaded guilty and he was disqualified from holding or obtaining a drivers licence for twelve months.
The sentence on the complaint was made concurrent with the sentence on the information.
The end result was that the appellant was sentenced in total to four years and ten months including the eight months that he was already serving. The learned sentencing Judge set a non parole period in respect of the whole term of imprisonment to be served of three years and three months.
The conviction entered on 23 March 1999 for the building break on 25 August 1998 had the effect of revoking the suspension of a suspended sentence of four months imprisonment which had been imposed upon the appellant on 3 June 1998. The Magistrate who sentenced the appellant to eight months imprisonment on 23 March 1999 took that into account in imposing that sentence. The appellant did not become separately liable to serve that suspended sentence.
No non parole period was or could have been set in respect of the period of imprisonment imposed on 23 March 1999 because the sentence imposed was less than twelve months (s32(5)(a) Criminal Law (Sentencing) Act.)
The learned sentencing Judge directed that the sentence which he imposed commence on 23 March 1999.
The appellant appeals to this Court upon the basis that both the head sentence and non parole period are manifestly excessive.
The appellant was born on 22 January 1972 and was thus twenty-six years of age when these offences occurred.
He had a troubled early childhood. His parents separated on several occasions before his mother finally left his father when the appellant was thirteen years age. At the age of fourteen the appellant also left home because he found it difficult to live with his father. He lived for some of the next year with his mother but his mother died unexpectedly of meningitis when he was fifteen years of age.
He then returned to live with his father who remarried at about this time. The appellant suffered some rejection. He does not have a good relationship either with his father or older brother.
The appellant was in a serious motor vehicle accident when he was fifteen. He attempted to commit suicide by stepping in front of a motor vehicle. He suffered quite serious injuries.
The appellant began drinking alcohol at thirteen and also commenced smoking marijuana at an early age. At eighteen he began taking amphetamines and at the time he was sentenced he was also using ecstasy and heroin.
He has had a number of relationships with different women. The relationships seem to have been somewhat volatile. His last relationship was with a woman who was also a drug user. She died in March 1998.
The appellant left school at the age of fourteen or fifteen. He became apprenticed as a welder with a company in Smithfield. That job lasted about seven months before his employer went out of business and he was retrenched. He then worked on a production line at Manos Chicken. He worked for sometime in the South East of the State as a jackaroo and then had further odd jobs in Adelaide. He went to Alice Springs where he worked for two years in various jobs although he lost the last job because of alcohol abuse. He resumed work with the successors to Manos Chickens where he remained until June of 1998 when his employment was terminated for unsatisfactory performance.
The appellant suffers from severe personality distortions and experiences extreme suspiciousness of people and extreme dependence on others. He is distressed and is a psychologically disturbed person. He suffers from anxiety, depression and drug dependency. He has a longstanding personality disorder with dependent paranoid and depressive features.
The appellant has a history of offending which commenced when he was about eighteen years of age. Between eighteen and twenty-two years of age most of his offences were motor vehicle or road traffic offences. Unfortunately, as he has got older, he has graduated into more serious offences.
As has already been explained, in June 1998, he received a sentence of imprisonment for four months for assisting an offender and receiving. That sentence was suspended. On 23 March 1999, he was sentenced to eight months imprisonment in respect of an offence of breaking and entering a building and committing an offence, which was committed on 15 August 1998.
That last mentioned conviction related to an offence which occurred only about a month after the first count on the information; the charge of larceny and ten days before the second count on the information; and the matters on the complaint.
After his arrest for these offences the appellant remained in custody between 6 September and 23 March 1999 when he was sentenced in the Magistrates Court in relation to the August offence. After that date he remained in custody in respect of the sentence of imprisonment imposed in the Magistrates Court. The learned Trial Judge dealt with the appellant by having regard to the time spent in custody between September 1998 and March 1999 and accumulated this sentence with the sentence imposed on 23 March 1999 and directed that the accumulated sentence commence on 23 March 1999. In my opinion, this was the fairest way to deal with the appellant.
The offence of larceny was committed when the appellant entered the Smithfield Plains Post Office, jumped the counter and demanded money from the manager and his wife who was also a postal officer. He yelled at the postal officers. He took $5,230 and fled. His conduct was not such as to make this offence one of robbery but it was a most serious offence of larceny.
In relation to the second count on the information, that of creating the risk of grievous bodily harm, the appellant illegally took a Ford Cortina Sedan which he then used in a car chase to elude police officers. He drove from Gilles Plains into the city at very high speeds travelling between 90 and 120 kilometres per hour. He drove through red lights, drove on the wrong side of the road and weaved in and out of traffic.
In an attempt to elude police he caused the vehicle to stop suddenly and swerve sharply. At the junction of North Terrace and East Terrace he drove over a median strip at a speed of about 40 kilometres per hour narrowly avoiding five pedestrians.
Near the intersection of North Terrace and Frome Road, he drove onto the wrong side of North Terrace and crossed through the intersection against the red light. At that time he nearly came into collision with an elderly man who is the subject of the offence of creating a risk of grievous bodily harm.
The appellant then travelled at a high speed down North Terrace, turned left into King William Street, travelled along King William Street turned left into Grenfell Street and travelled along Grenfell Street before turning left into Pulteney Street where he lost control of the motor vehicle which then came into collision with another vehicle.
He ran away from the collision but was chased and caught by police. The learned sentencing Judge described the driving behaviour as “nothing short of appalling” which was an apt description.
The more serious crimes are, of course, those contained in the information. The matters in the complaint were those offences which led up to the second matter in the information namely the illegal use, the speeding offence and the failing to obey traffic lights.
The offence of larceny was serious. A considerable amount of money was taken. The offence deserved a significant period of imprisonment.
The Road Traffic Act offences and the second count on the information were also serious. They also deserved, in my opinion, a significant period of imprisonment.
The appellant’s offending was clearly serious. There was no doubt that he had to be imprisoned in respect of these matters.
In respect of the convictions on the information the learned sentencing Judge said that the period of four years and two months was arrived at by taking a starting point for the two convictions of six years, deducting 20 per cent for the pleas of guilty and deducting a further seven months for the period spent in custody before sentence.
Mr Mead submitted that the starting point taken by the learned sentencing Judge was too high and indicated error. For the purpose of his submission he assumed that the learned sentencing Judge had ascribed three years to each offence.
It is not clear from the learned sentencing Judge’s remarks whether he commenced the sentencing exercise upon the basis that an appropriate sentence for each of the counts on the information was three years.
It would have been better, for the purpose of understanding the learned sentencing Judge’s remarks, if he had indicated the period of imprisonment which he thought appropriate to each of the counts. These counts are so dissimilar in nature that it cannot be assumed, as Mr Mead submitted, that the learned sentencing Judge believed that they required a sentence of imprisonment of the same length for each of them.
In my opinion, if the starting point was a period of three years imprisonment on each of the counts then that would indicate, in my opinion, a starting point too high in respect of the second count.
It is to be remembered that that second count involved a discrete feature of the driving which was otherwise the subject of the counts on the information. I do not believe that three years would have been an appropriate starting point for that offence.
If, on the other hand, the learned sentencing Judge thought that the larceny offence required a longer term of imprisonment than the offence of creating a risk of grievous bodily harm and, for example, apportioned four years to the first count and two years to the second then that would also indicate error. A sentence of four years imprisonment for a larceny of this kind which, although serious, also indicates a starting point too high.
However, in my opinion, the learned sentencing Judge commenced the sentencing exercise with a sentence of imprisonment which was too high.
The learned sentencing Judge was entitled to impose one sentence in relation to the information and one sentence in relation to the complaint. In my opinion, he was right to make the sentence on the complaint concurrent with the sentence imposed on the information.
The learned sentencing Judge was also entitled and, in my opinion, should have treated the two matters on the information as requiring an accumulation of two sentences of imprisonment for those separate offences.
In my opinion, an appropriate starting point for these two offences would have been five years. In that period of five years I would ascribe a term of three years imprisonment in respect to the larceny and two years in respect of creating a risk of grievous bodily harm.
The learned sentencing Judge allowed 20 per cent for the pleas of guilty. I think that was relatively generous. The plea of guilty to the second count should have attracted little credit because that plea only recognised the inevitability of the conviction. The plea, however, in relation to the conviction for larceny did require the learned Judge to give credit.
Although I think the credit given was relatively generous, I am prepared also to assume that 20 per cent should be deducted for those pleas.
Like the learned sentencing Judge I believe that the seven months served between September and March should be deducted from the head sentence. That would leave a head sentence of forty-one months or three years and five months.
I believe that sentence of imprisonment would have appropriately reflected the criminality involved on the two counts of the information.
To that period of imprisonment has to be added the eight months which the appellant is otherwise serving in relation to the conviction in the Magistrates Court making a total of four years and one month.
I do not disagree that the sentence of imprisonment of one year was appropriate in relation to the matters on the complaint. For the reasons I have already given, I agree that that sentence ought to be made concurrent with the sentence imposed on the information.
The learned sentencing Judge set a non parole period of about two thirds of the length of the head sentence. That seems to me to be within the appropriate range for the exercise of the sentencing discretion. The appellant has not previously served a sentence of imprisonment at the time these offences were committed. However, he had been sentenced to a term of imprisonment which was suspended less than one month before he committed the larceny offence. He was convicted of assisting an offender and receiving on 3 June 1998 and sentenced to the suspended period of imprisonment. He committed the larceny offence on 2 July 1998; the building break on 25 August 1998 and the risk of grievous bodily harm offence on 6 September 1998.
In these circumstances a non parole period of about two thirds the head sentence was appropriate.
In setting that non parole period for the sentence to be actually served I would have regard to the fact that the period which he actually served between September 1998 and March of 1999 ought also to be reflected by way of credit in that non parole period. In this case a reduction in the non parole period of about two months would reflect the fact that he actually served seven months of what I think was the appropriate head sentence.
Having regard to all of those factors I would set a non parole period of two years and six months.
I would allow the appeal therefore for the purpose of substituting a sentence of four years and one month in lieu of the sentence of four years and ten months imposed by the learned sentencing Judge and by setting a non parole period of two years and six months.
The sentence should commence on 23 March 1999.

[1999] SASC 354

21 September 1999