R v Jeffries
[2004] SASC 188
•2 July 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JEFFRIES
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 - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE
The appellant pleaded guilty in the District Court to multiple offences committed over a period of time, including unlawful possession, larceny of a motor vehicle and possessing and taking part in the production of methylamphetamines - the sentencing judge imposed a single sentence of 5 years and 6 months with a non-parole period of 3 years - he revoked the suspension of a previously suspended sentence of 10 months, which he then included in the single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 - held on appeal that the activated sentence of 10 months could not be merged into a single sentence under s 18A, but should have been ordered to be served discretely - the remaining charges could then be made the subject of a single sentence to be served cumulatively upon the 10 months sentence - appeal allowed to restructure the sentences accordingly - otherwise appeal dismissed.
Criminal Law (Sentencing) Act 1988 s 18A and s 58(4)(a), referred to.
R v Place (2001-2002) 81 SASR 395; R v McInerney (1986) 42 SASR 111; R v Gibbs [2004] SASC 187, 2 July 2004, considered.
R v JEFFRIES
[2004] SASC 188Court of Criminal Appeal: Doyle CJ, Perry and Mullighan JJ
DOYLE CJ: I agree with the orders proposed by Perry J, and with the reasons that he has given for making those orders. There is nothing that I wish to add.
Accordingly, I would order as follows:
That the appeal against sentence be allowed.
That the sentence imposed by the District Court be set aside.
That the District Court order revoking the order suspending the sentence of 10 months’ imprisonment imposed by the Magistrates Court sitting at Elizabeth be confirmed.
That in respect of the offences for which the appellant was liable to be sentenced by the District Court, and in respect of the offences to which the appellant pleaded guilty in the District Court, a single sentence of imprisonment be imposed pursuant to s 18A of the Criminal Law (Sentencing) Act, the sentence of imprisonment to be for a term of four years eight months, to be served cumulatively on the sentence of imprisonment for 10 months.
That an order be made that the appellant be disqualified from holding or obtaining a driver’s licence for a period of four years, from 14 October 2003.
That in relation to the combined head sentences of 10 months’ imprisonment and four years eight months’ imprisonment, there be fixed a non-parole period of three years.
That the sentence of 10 months’ imprisonment and the non-parole period be taken to have commenced on 28 March 2002.
PERRY J The appellant appeals by leave against the sentence imposed upon him in the District Court following his plea of guilty to multiple counts, comprising various summary and indictable offences committed between 12 January 1999 and 28 March 2002.
The sentencing judge imposed a single, global sentence, namely a head sentence of 5 years and 6 months against which he set a non-parole period of 3 years.
The appellant complains that the head sentence and non-parole period are manifestly excessive.
In order to understand the structure of the sentence which was imposed, it is convenient to deal with the offences in groups.
A. Offences committed between 12 January 1999 and 25 August 2000
These comprised five offences for which the appellant was convicted in the Magistrates Court sitting at Adelaide on 17 August 2001. He was discharged on a $500 good behaviour bond for a term of 18 months to come up for sentence if called upon.
Subsequent offences amounted to a breach of the bond, with the result that the sentencing judge in the District Court was obliged to impose penalties for the five offences.
Three of the offences were separate counts of unlawful possession. The first count related to a $20000 arc welder, the second to bolt cutters, three personal organisers, two wallets, three ladies’ watches and other sundry items. The third related to five lawn mowers, four briefcases, tools and other items.
As to those counts, the sentencing judge imposed sentences of 5 months, 6 months and 7 months respectively, giving a total of 18 months. He reduced that total on account of the guilty pleas, to 13 months.
The other two offences were for driving whilst disqualified and for providing false information or documentation to a second-hand dealer. The sentencing judge imposed no penalty on these counts except that with respect to the count of driving whilst disqualified he ordered a licence disqualification of 18 months.
B. Offences committed between 16 and 22 April 1999
These were larceny of a motor vehicle; two counts of unlawful possession; driving in a manner dangerous; driving whilst disqualified; and two counts relating to the display of an incorrect registration label.
The appellant was convicted in the Magistrates Court sitting at Elizabeth on 26 June 2000 with respect to this group of offences. He was sentenced to 10 months imprisonment, after taking into account 2 months which he had already spent in custody.
The 10 months term of imprisonment was suspended upon the entry by the appellant into a good behaviour bond for a period of 18 months.
Having regard to the subsequent offending committed by the appellant, and being unable to find that there was any good reason why he should not do so, the sentencing judge revoked the suspension of the sentence, with the result that the appellant stood to serve 10 months imprisonment.
C. Offences committed on 7 May 2001
This offending comprised seven counts, upon which the appellant was convicted in the Magistrates Court sitting at Holden Hill.
Six of the offences related to a passage of driving when the appellant was driving a motor cycle with a pillion passenger. When police attempted to pull the appellant over, he made off. The police officers gave chase, reaching speeds of up to 100 kilometres per hour.
Eventually the appellant was intercepted.
The traffic charges which resulted were: failure to comply with directions for regulation of traffic; driving in manner dangerous to the public; driving an unregistered vehicle; driving an uninsured vehicle; driving without a licence; and driving a vehicle without number plates which were properly attached.
After his apprehension, the appellant was found in possession of a quantity of property suspected of having been stolen. He was charged accordingly.
The unlawful possession counts related to a laser printer, electronic scales, motorbike helmets and a lock knife. On that count, the judge took as his starting point a sentence of 8 months imprisonment which he reduced on account of the plea of guilty to 6 months.
With respect to the traffic counts, he imposed a sentence of 2 months imprisonment on the charge of driving in a manner dangerous to the public. He convicted the appellant without penalty on the five other traffic counts.
D. Methylamphetamine charges
The appellant pleaded guilty to charges prosecuted on an information filed in the District Court that on 22 February 2002 he had possession of a quantity of methylamphetamine, and that between 7 March 2002 and 28 March 2003 at Para Vista he took part in the production of methylamphetamine.
For the offence of manufacture of methylamphetamine, the sentencing judge took a starting point of four years imprisonment, which on account of the plea of guilty, he reduced to three years.
He dealt with the possession offence separately.
Upon that count he took as a starting point a sentence of 10 months, which he reduced on account of the plea of guilty to 8 months, to be accumulated with the other notional sentences.
The sentences to which I have so far referred are as follows:
A. 13 months
B. 10 months
C. 8 months
D. 3 years and 8 months
The total of those sentences is 6 years and 3 months.
The sentencing judge reduced that total by reference to the principle of totality, and also by taking into account a period of 15 weeks which the appellant had spent in custody.
In the result, he imposed a sentence of 5 years and 6 months imprisonment with a non-parole period of 3 years, both to commence from 28 March 2002.
This appeal raises similar issues to those raised in the matter of R v Gibbs,[1] in which judgment has been delivered today.
[1] [2004] SASC 187, 2 July 2004.
In particular it is necessary to consider the manner in which an appeal may be brought from the sentence imposed by a District Court Judge which in part relates to counts which the judge has dealt with in exercise of the jurisdiction of a magistrate and which include charges prosecuted by information and by complaint.
For the reasons given in Gibbs, in my view, it was appropriate for the appellant to file a single notice of appeal in this Court and to obtain leave to the extent that the appeal is from sentences imposed in matters which proceeded on an information. The fact that leave was given in respect of all matters is of no consequence at this stage.
This case raises a separate question, not addressed in Gibbs, as to the approach which should be adopted where a sentencing package is devised which includes a component represented by an activated suspended sentence of imprisonment.
I deal with that question first.
The activated suspended sentence
I have referred to the fact that the group of offences which I have described as Group B resulted in the imposition of a 10 month term of imprisonment suspended upon the entry by the appellant into an 18 months good behaviour bond.
The appellant does not suggest that the sentencing judge erred in revoking the suspension.
However, the activated term of 10 months imprisonment is included in the sentencing package totalling 6 years and 3 months, which the sentencing judge reduced by reference to the principle of totality to the final overall sentence of five years and six months.
In the result, the activated term of 10 months imprisonment was reduced pro rata by reason of the fact that the overall reduction on account of the totality principle was applied to the package as a whole.
The process followed in that respect by the sentencing judge was in error.
The sentencing judge correctly found that there were no “special circumstances” which would justify a reduction in the term of the suspended sentence (vide Criminal Law (Sentencing) Act 1988 s 58 (4) (a)).
However, the suspended sentence of imprisonment was not a sentence imposed by the sentencing judge. It was a sentence which had been imposed earlier in the Magistrates Court. All that the sentencing judge did was to revoke the suspension, thereby activating the term of imprisonment.
In those circumstances it was not open to the sentencing judge to aggregate the activated sentence within a single sentence pronounced pursuant to s 18A of the Criminal Law (Sentencing) Act, which included elements relating to other offences. Section 18A permits the court to pronounce one penalty for all or some of a number of offences for which the sentencing court has found the defendant guilty, but it does not enable a sentencing court to incorporate in the one penalty a sentence pronounced by another court.
The proper course for the sentencing judge to have taken in this case, having revoked the suspension of the 10 months sentence, was to direct that that be served, and that any further sentence which he imposed for offences which were otherwise before him, should be served cumulatively upon the 10 months sentence.
That error, if for no other reason, obliges this Court to re-examine the whole of the sentencing package, and to re-sentence the appellant. However, as the error identified so far relates only to the manner in which the sentencing judge dealt with the suspended sentence, it is convenient to deal with the grounds of appeal relating to the other components of the sentence. The arguments advanced as to those matters are relevant to the process of re-sentencing the appellant.
The sentencing package
It will be recalled that for three of the offences of unlawful possession contained in what I have described as Category A, the sentencing judge imposed sentences of five, six and seven months respectively, although he reduced the total of 18 months to 13 months by reference to the plea of guilty.
The appellant’s complaint as to this, appears in Ground 1 of the grounds of appeal which reads:
“1.The Learned Sentencing Judge erred in his consideration of prior offending by:
1.1 Apparently reasoning that sentences for successive offences should be of increasing severity;
1.2 Reasoning that ‘previous offending means that the sentence will be higher than it ordinarily would have been’”.
The sentencing judge gave no express reasons for imposing progressively larger sentences for the three offences. But in any event the imposition of successively higher sentences for subsequent offences is not an error of principle; see R v Place[2] per Doyle CJ, Prior, Lander and Martin JJ:[3]
“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.”
As for the comment referred to in ground 1.2, the context was in the sentencing judge’s remarks relating to the penalty to be imposed for the seven offences committed on 7 May 2001 (supra, Category C).
[2] (2001-2002) 81 SASR 395
[3] Ibid 432 [112]
The immediate context of the judge’s remarks was:
“With respect to count one on that information, an unlawful possession count, I note that, by the time of it, you had already been convicted of three prior counts of unlawful possession and had committed four others for which you had not yet been convicted. Although the property involved was not of substantial value in this case, your previous offending means that the sentence will be higher than it ordinarily would have been.
The sentence would have been one of eight months imprisonment, but, on account of your plea, I will reduce it to six months.”
It appears from those remarks that the sentencing judge was treating the unlawful possession count in question as deserving of a progressively higher sentence than the seven months imposed for the third of the group of three unlawful possession offences as to which he awarded terms of five, six and seven months imprisonment.
Although to adhere to such an arithmetically precise progression was unusual, and, perhaps overly precise, at the end of the day it becomes a question whether or not the net result is such that, in re-sentencing the appellant, this Court should come to a different result.
The other complaints advanced by the appellant appear as ground 2 of the grounds of appeal. This ground embodies several separate contentions:
“2.In the imposition of the individual sentences, and the accumulation of all of the sentences, The Learned Sentencing Judge had insufficient regard to the following matters:
2.1 That this was the Appellant’s first immediate custodial sentence.
2.2 That offences on different dates do not necessarily require accumulation of all separate sentences.
2.3 That the Magistrates Court had imposed a fine for an Unlawful Possession during the same period.
2.4 The opinions of Mr Richard Balfour as to the reasons for the Appellant’s offending behaviour, and his prognosis and prospects for rehabilitation.
2.5 Whether the total sentence was out of proportion to the overall criminality.”
As to ground 2.1, this must be considered in the context of the appellant’s record of prior offending.
This began in the Children’s Court in 1992 when he was dealt with for an offence of building break and felony upon which, without proceeding to a conviction, he was ordered to perform 80 hours of community service.
In 1994 and 1995 he was convicted of various traffic offences and in 1998 he was convicted and fined on charges of damaging property and disorderly behaviour.
In 2000, he was sentenced in the Magistrate’s Court on three separate occasions for various offences ranging from failing to comply with a domestic violence order, unlawful possession, false pretences, larceny and various driving offences.
It was on the occasion of one of those appearances, namely on 26 June 2000, that the appellant was released on a bond upon which the 10 months sentence of imprisonment was suspended.
The last of the unlawful possession offences now in question, namely that committed on 7 May 2001, not only breached that suspended sentence, but was committed while the appellant was on bail for three other counts of unlawful possession.
Bearing those matters in mind, it does not seem to me that grounds 2.1 to 2.3 (inclusive) are made out.
As for the opinions of Mr Richard Balfour, psychologist, referred to in ground 2.4, he furnished two reports.
Mr Balfour details the appellant’s unsettled childhood and comments that most of his problems seem to stem from the premature death of his mother when he was aged 13. He observed that the appellant “comes from a dysfunctional family background characterised by psychological abuse and abandonment”. Unable to form stable relationships, the appellant has led a transient lifestyle since the age of 15.
The appellant took to drugs in his early teens, and it appears that he has never shaken free.
At the time of the offending in question, he had a confirmed dependency upon amphetamine. Despite this, he had reasonably steady employment in unskilled occupations until about four and a half years ago.
Mr Balfour concluded that the appellant was of low-average intelligence. In his view, the appellant does not suffer from any major personality disorder or psychotic illness. He offered the view that “with the assistance of a supervised structured rehabilitation program I believe that Mr Jeffries’ prognosis to cease offending is fair ....”. He went on to elaborate a number of reasons to justify that conclusion.
A further point taken by Mr McEwen who appeared for the appellant on the hearing of the appeal, was that, as he put it, the sentencing judge “effectively treated the unlawful possession offences as receiving offences”.
The significance of that submission is that the maximum penalty for Unlawful Possession is two years imprisonment, whereas the maximum penalty for Receiving is eight years imprisonment.
Two comments made during the course of his sentencing remarks by the sentencing judge are relevant to that submission.
In one passage the judge said with respect to the first count of unlawful possession:
“You told the police that it was your property, but then you told Mr Balfour it was stolen and given to you by others so you could trade it to buy amphetamines for the others and for yourself; they were to get the greatest share.
As to the second and third offences, … being counts one and two they relate to an arc welder worth about $20000 which was stolen from a retailer and subsequently pawned by you using false information. You have acknowledged you took those items to the pawnbroker in order to get money for yourself and a friend so as to buy amphetamines.”
Subsequently with respect to the fifth offence of unlawful possession, the judge stated: “you claimed you did not know these items were stolen, but, plainly, by your plea, you accepted they had been”.
As to that last passage, strictly, a plea of guilty to unlawful possession does not amount to an admission by the defendant that at the time he obtained possession of the property he knew it to have been stolen.
However, the Magistrate was not in error in having regard to what the appellant told the psychologist Mr Balfour, and in re-sentencing the appellant, this Court may likewise have regard to it.
I am unable to interpret the remarks made by the judge as indicating that he sentenced the appellant for receiving rather than for unlawful possession.
Furthermore, the sentencing judge was entitled to regard the offences as separate incursions into criminal conduct and was not obliged to direct any of the sentences to be served concurrently. I refer again to Place (supra) in the joint judgment of Doyle CJ, Prior, Lander and Martin JJ when they observed:[4]
“Although the offences were committed over a relatively short period of time, they were separate incursions into crime. Generally speaking, therefore, accumulation of the sentences would be appropriate”.
[4] Ibid 432 [114]
At the end of the day, the question is whether in re-sentencing the appellant, this Court would reach a different result.
With the qualification that some adjustment is necessary in order to correct the error made with respect to the failure to accumulate the activated, previously suspended, sentence of 10 months imprisonment, I would impose an overall sentence no less than the sentence under appeal.
The appellant embarked on a deliberate succession of offences, many of them serious.
The fact that the appellant’s offending behaviour may have been due largely to his amphetamine addiction and addiction to gaming machines, is not a matter which should operate to reduce the penalties which would otherwise be appropriate.
The persistence of the offending means that it is necessary to give weight to the need for personal deterrence.
Conclusion
I would allow the appeal for the limited purpose of restructuring the head sentence of 5 years and 6 months.
In the first place, the appellant should be directed to serve the sentence of 10 months imprisonment, being the suspended sentence imposed on 26 June 2000 in the Magistrates Court.
Separately, pursuant to s 18A of the Criminal Law (Sentencing) Act, I would impose a sentence of 4 years and 8 months on all other charges, to be served cumulatively on the sentence of 10 months imprisonment.
This would give an overall head sentence which is the same as the sentence under appeal.
I would not interfere with the non-parole period of 3 years.
MULLIGHAN J I agree that the appeal should be allowed for the reasons given by Perry J for the limited purpose proposed by him and I agree with the sentence which he suggests. I merely wish to mention one matter. The observations in R v Place (2002) 81 SASR 395 at 432 that, generally speaking, there is justification for imposing greater penalties for later offences where a number of offences are committed over a period of time must be considered along with the observations of King CJ in The Queen v McInerney (1986) 42 SASR 111 at 113 as to the significance of prior offending and subsequent offending. As he observed, “A person is not to be punished, or punished again, for crimes other than the crime for which the sentence is being passed”. He went on to mention the significance of prior and subsequent offending. It is unnecessary for present purposes to set out his observations. I merely say that I respectfully agree with them.
I would not have imposed increasing sentences of imprisonment for the unlawful possession offences but it cannot be said that the learned Judge erred in principle in doing so.
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