R v MacGowan

[2012] SASCFC 138

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v MACGOWAN

[2012] SASCFC 138

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Anderson and The Honourable Justice Peek)

20 December 2012

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

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS

Appeal against sentence - appellant pleaded guilty to multiple property offences in the Magistrates Court - appellant sentenced in the District Court to six years and 14 days with a non-parole period of four years six months - appellant appeals on the grounds that the head sentence and the non-parole period are manifestly excessive.

Held: The head sentence imposed is not, in its totality, crushing or otherwise excessive - the non-parole period is manifestly excessive having regard to the appellant's youth and prospects of rehabilitation - appal allowed - sentence set aside - appellant re-sentenced to six years and 14 days with a non-parole period three years and six months.

Correctional Services Act 1982 (SA) s 27; Criminal Law (Sentencing) Act 1988 (SA) s 20B, referred to.
R v Delphin (2001) 79 SASR 429; Arnold v Samuels (1972) 3 SASR 585, discussed.

R v MACGOWAN
[2012] SASCFC 138

Court of Criminal Appeal:  Kourakis CJ, White and Stanley JJ

1. KOURAKIS CJ:   The appellant was committed to the District Court for sentence after pleading guilty in the Magistrates Court.  The appellant appeals against a total sentence of six years and 14 days with a non-parole period of four years six months imposed in the District Court on his plea of guilty to multiple property offences.  The sentence was backdated to 7 March 2012, the day on which the appellant was taken into custody.

2. The appellant complains that the sentence was manifestly excessive in all of the circumstances and in particular having regard to his youth.  The appellant was 19 years and five months when the offences were committed.  The appellant also contends that a non-parole period of 75 per cent of the head sentence is disproportionately long and fails to make adequate allowance for rehabilitation on parole.

   The Offences

3. The offences of which the appellant was convicted, and the sentences imposed, are set out in tabular form below:

Item	Date	Offence	Starting Point	Head Sentence	Accumulation	Maximum
1	27.11.11	Suspended sentence 4 months 14 days	Supervision revoked	4 months  14 days
2	6.3.12	Aggravated serious trespass (residence)	4 years 6 months	3 years 7 months	Cumulative on (1)	Life imprisonment
3	6.3.12	Theft	18 months	14 months	Concurrent with (2)	10 years
4	6.3.12	Theft motor vehicle	14 months	12 months	Cumulative on (2)	10 years
5	6.3.12	Arson	2 years 5 months	2 years	Cumulative on (2) Concurrent with (4)	Life imprisonment
6	7.3.12	Unlawful Possession	Convicted without penalty
7	2.3.12	Drive Disqualified	5 weeks	1 month	Cumulative on (5)	6 months
8	2.3.12	Defect notice	Convicted without penalty
9	19.12.11	Unlawful Possession	6 months	5 months Cumulative on (5)	2 years
10	Total	6 yrs 14 days NPP 4 yrs 6 mths

1. The circumstances of the offences in items (2) through to (5) are as follows.  On 6 March 2012 the appellant, together with his uncle, broke into the house of the R family and stole personal items including a laptop, Xbox, games, wallet, iPod and digital camera.  The keys to the family car, a four wheel drive, were also taken.  The appellant’s explanation for breaking into the house was that he was bored and needed money to purchase cannabis.  Some of the stolen items were sold to an electrical store on the same day.  The appellant later returned to the house alone and stole the four wheel drive.  He drove it some distance away and set it alight. 

2. The appellant was found in unlawful possession of other stolen electrical goods (item 6) on the very next day.  The appellant admitted that he was intending to sell the goods.

3. The known circumstances of the offence in item (9) are sparse. On 19 December 2011 the appellant was found in possession of a stolen motor bike from which the serial number had been obliterated.  The appellant offered no explanation for the offence. 

4. All of the offences were committed during the currency of the three year bond pursuant to which the sentence of imprisonment of four months and 14 days referred to in item (1) had been suspended.  That sentence had been imposed for offences of driving a motor vehicle without consent, driving dangerously to cause a police pursuit, hindering police and driving a motor vehicle whilst an unauthorised person.  The offences had been committed on 12 January 2011. 

   Prior Offending

5. The appellant was born on 5 October 1992.  His offending history commenced before he was 12.  His early offences included aggravated serious criminal trespass and theft.   The appellant continued to offend several times in each year of his life thereafter.  He received his first sentence of suspended detention before he was 13, and another before he turned 14.  The appellant was sentenced to a one month term of immediate detention still before he turned 14.

6. On 9 July 2009 the appellant, then aged 17, was sentenced to six months’ detention but with an early release after serving two months, for serious criminal trespass and dishonestly taking property committed several months earlier.

7. On 22 April 2010 the appellant was sentenced to nine months’ detention for offences, committed in December 2009, which included dishonestly taking property, driving a motor vehicle without consent, arson of that motor vehicle and many counts of serious criminal trespass.  That offending exhibits striking similarities to the offences in items 2 to 5 of the schedule in [2] above. 

8. The appellant was released from detention on 5 December 2010. Less than a month later he reoffended by illegally using a motor vehicle without the consent of the owner and engaging police in a pursuit which endangered the public. He was released on bail but subsequently breached that bail. The appellant was ultimately sentenced for these offences to the suspended term of imprisonment to which I referred in [7].

9. In all, the appellant had been found guilty of 15 offences of serious criminal trespass before the commission of these offences.   The Judge did not overstate the appellant’s offending history when he described it as appalling.

   Personal Circumstances

10. Mr MacGowan’s parents separated when he was two. The appellant was brought up by his mother but their relationship was described in a pre-sentence report received by the Judge as “conflictual” with both the appellant and his mother resorting to contacting police to settle their disputes.  The appellant grew up witnessing domestic violence, theft and drug taking.  The Judge observed that the appellant had from time to time endured desperate circumstances.  The pre-sentence report stated that the appellant came from “a background of detachment and poor role models”.

11. The appellant has consumed cannabis since he was 16.  He is a chronic and heavy user.  He denies taking other illicit drugs.

12. The appellant changed schools often because of his mother’s itinerant lifestyle.  He finally left school in 2010 without completing Year 11.  The appellant has been admitted to Magill and Cavan Youth Training Centres on a total of 14 separate occasions and has spent more than 12 months in detention.  When serving periods of detention, the appellant is, paradoxically, well behaved and compliant.  He participates well in internal drug and alcohol programs.

13. The bond on which the appellant was placed in 2011 followed a recommendation in a pre-sentence report that the negative experience of a recent short period of imprisonment at Yatala Labour Prison during which time the appellant was assaulted, had given him some motive to rehabilitate himself.  The report recommended a suspension of any sentence of imprisonment because the appellant had “more to gain from a community based order with strict conditions and intervention in place”.

14. Obviously enough, the optimistic recommendations in that report were ill‑founded.  The attempt at rehabilitation failed spectacularly and at great cost to the owners of the residence and cars.  The R family experienced the great inconvenience of losing their car and the financial loss as a result of the taking and destruction of many personal items.  Perhaps as importantly, they were left distressed and fearful as a result of the offending.

15. I turn first to consider the head sentences.  The reductions for the early pleas of guilty in the Magistrates Court were less than 15 per cent.  In my view, early pleas in the Magistrates Court, as a general rule, should attract discounts in the order of 20 per cent or more.   I also acknowledge that the Judge’s starting point for the offence of aggravated serious trespass is relatively high.[1]  In R v Delphin[2] a starting point of 3 years was adopted for a serious criminal trespass aggravated, as in this case, only by the presence of another offender.  The value of the property stolen was not substantial.  Delphin was a 33 year old heroin addict with a bad record who was on bail at the time of the offence.  The starting point of three years was reduced by 15 per cent to 2 years 6 months for Delphin’s early plea in the District Court.  In my view, the disparity between the sentence imposed by the Court of Appeal in Delphin and the sentence of 3 years 7 months in this case is difficult to reconcile.  If the sentence for that offence had stood alone, I would have set it aside as being manifestly excessive. 

    [1]    R v Delphin (2001) 79 SASR 429 at 440 [68]-[70].

    [2]    R v Delphin (2001) 79 SASR 429.

16. However, in my view, the overall head sentence imposed on the appellant achieves an appropriate balance between accumulation and concurrency and is not, in its totality, crushing or otherwise excessive.   In particular, the persistent offending in flagrant disregard of the law had to attract condign punishment.  

17. I turn now to the non-parole period.  Non-parole periods are commonly fixed at between 50 per cent and 75 per cent of the head sentence.  It is the sentencing judge’s assessment of the prospects of rehabilitation which will most influence the actual proportion fixed in a particular case.  Non-parole periods outside of that range will reflect either adverse or favourable circumstances which are not commonly encountered.  That position is reflected in the statutory minimum non-parole period of four-fifths prescribed for serious repeat offenders.[3]   Whether or not the appellant’s prior offending made him vulnerable to a declaration to that effect need not be considered because no such application was made. 

    [3] Section 20B, Sentencing Act.

18. To my mind, it is a serious step to conclude that a man as young as the appellant will not be a suitable candidate for rehabilitation on parole until he has served 75 per cent of a sentence as substantial as the head sentence imposed by the Judge.  Non-parole periods should recognise the capacity for reform and change in young offenders and the importance of allowing them an opportunity to do so.  Moreover, for sentences exceeding five years, release on parole is not automatic but subject to the discretion of the Parole Board.[4]

    [4]    Correctional Services Act 1982 (SA) s 27.

19. If the appellant’s prior offences had been committed as an adult, there could be no complaint about the high proportion, 75 per cent, which the non-parole period bears to the head sentence.  The appellant’s offending history shows every indication of an intractable predisposition to offences of this kind and very little respect for the property of others or the laws which protect it.  Nonetheless, it must be recognised that the appellant’s offending is, at least to some extent, the product of his juvenile immaturity, the absence of any family support and stability, and drug taking.

20. In Arnold v Samuels[5] Bray CJ emphasised the continuing imperative to promote the rehabilitation of youth even after they have turned 18 in these terms:[6]

    It may be that the special Parliamentary policy of leniency to juveniles, to which I have referred, should be allowed some modified effect when the courts are dealing with those just over eighteen.  It cannot be that all the considerations which have induced the law to make special efforts to reclaim youthful offenders disappear magically as the clock strikes twelve at midnight on the day before the offender’s eighteenth birthday.

    [5] (1972) 3 SASR 585.

    [6] (1972) 3 SASR 585 at 596.

21. In my view, the non-parole period is manifestly excessive having regard to the appellant’s youth and the Judge’s assessment that the appellant had reasonably fair prospects of rehabilitation.  The non-parole period of 4 years 6 months is a long period of imprisonment for a 20 year old to serve as his first substantial period of actual imprisonment in an adult goal.   A period on parole of 18 months allows very little opportunity for rehabilitation after that time is served.  In my view, a longer period during which the appellant will have what may be his last opportunity to reset his life, after having reflected for a substantial time in adult prison on the consequences of its present course, is warranted.

22. I would reduce the non-parole period to 3 years and 6 months which would allow a period of 2 years and 6 months on parole if the Parole Board determines that the appellant is a suitable candidate for parole and releases him soon after the expiry of the non-parole period.  In my view, a proportion of about 60 per cent of the head sentence more fully reflects the factors arising out of the appellant’s young age.  In fixing the non-parole period, I have taken into account that the head sentence, although not excessive, is a relatively heavy one.

    Orders

23. I would allow the appeal.  I would set aside the sentence.  I would re-sentence the appellant to six years and 14 days with a non-parole period of 3 years and 6 months, to commence from 7 March 2012.

24. ANDERSON J:     I would also allow the appeal. I would not interfere with the head sentence but I would set aside the non-parole period and fix a non-parole period of 3 years and 6 months for the reasons given by Kourakis CJ.

25. PEEK J:    I agree with the orders proposed by the Chief Justice and with his reasons.