R v Magain No. Sccrm-03-221

[2003] SASC 377

R v MAGAIN
[2003] SASC 377

Court of Criminal Appeal:  Perry, Mullighan and Besanko JJ

1. MULLIGHAN J                 The appellant pleaded guilty in the District Court to a number of charges which I mention briefly.

2. The appellant pleaded guilty to two offences of serious criminal trespass, the first of which occurred during the night of 18 and 19 October 2001. He broke into the Waikerie High School music room by breaking the window and opened the door and gained entry into other rooms by forcing holes in the walls of the rooms. He caused damage to the extent of about $2,000 but he has not been charged with damaging property on that occasion. Whilst in the premises, he committed the first offence of larceny when he stole music equipment to the value of $2,740.

3. The second offence of serious criminal trespass occurred on the night of 25 and 26 October 2001. The appellant broke into the premises of the Waikerie Returned Servicemen’s League by breaking a window and stole property to the value of $980. He pleaded guilty to the offence of larceny in relation to the stolen property.

4. He also pleaded guilty to a charge of illegal use of a motor vehicle which was committed on the same night.

5. We have before us a Victim Impact Statement from a representative of the Waikerie Returned Servicemen’s League which indicates there is a sense of outrage and concern at the appellant’s offending in those premises.

6. The appellant also pleaded guilty to another charge of illegal use of a motor vehicle which occurred on the night of 9 and 10 November 2001. On that occasion, he also gave a false name and address to police and pleaded guilty to that offence. Also on that occasion police located a black bayonet in his possession. He has also pleaded guilty to carrying an offensive weapon.

7. In addition to the offences already mentioned, the appellant was charged with driving a motor vehicle whilst disqualified from holding the appropriate driver’s licence, failing to comply with, on three occasions, bail agreements and driving an unregistered and uninsured motor vehicle. The failing to comply with the bail agreement, on each occasion, was that he was in breach of residence conditions in his bail agreement by not being present when police attended at his premises.

8. On 10^th October 2001 the appellant was charged with damaging property of a real estate office. He reversed a motor vehicle into part of the premises and damaged an air conditioner. He pleaded guilty to that offence. He was also charged with damaging a house in which his mother lived. On 21 October 2001, he was intoxicated and argued with his mother and then damaged walls to the house.

9. On 20 December 1999, the appellant was sentenced for one count of damaging property and two counts of common assault. He had pleaded guilty to those offences in the District Court and was sentenced to imprisonment for two years with a non-parole period of 15 months. The sentence was suspended upon his entering into a bond to be of good behaviour, and with other conditions, for a period of two years. At that time, the learned Sentencing Judge indicated to him that he was being given another chance, which no doubt he regarded as his last chance. The appellant breached that bond by committing the offences which I have mentioned, which breaches he has acknowledged.

10. All but the serious criminal trespass offences and the larceny offences were charged in the Magistrates Court but, with the co-operation of the appellant, were brought before the learned Sentencing Judge in the District Court so that all matters could be resolved at the same time.

11. The learned Sentencing Judge imposed one sentence pursuant to s18A of the Criminal Law (Sentencing) Act 1988 with respect to those offences where a sentence of imprisonment was available and appropriate. He sentenced the appellant to imprisonment for four years. He revoked the suspension of the earlier sentence, with the consequence that the appellant had to serve the period of that sentence of two years cumulatively upon the sentence imposed by the learned Sentencing Judge, making a total sentence of six years and he fixed a non-parole period of four years.

12. The complaint on this appeal is that the total period that the appellant must serve in prison, six years, is crushing, particularly in view of his age of 26 years. It is submitted that he should have received a lower head sentence and a lower non-parole period so as to leave more scope for rehabilitation.

13. The appellant has a very bad past record of criminal offending. He has regularly appeared in the Magistrates Court and criminal courts from the time he attained maturity, having earlier had a number of appearances in childrens’ courts. He committed many offences of much the same nature as those which are the subject of the sentences being considered on this appeal. I do not propose to mention the detail of his past record, but I simply make the further observation that he appeared in the courts on these serious offences in each year up until late 2002.

14. The learned Sentencing Judge was faced with the problem of fashioning a just sentence for a person who had been given many opportunities in the past, from which he does not appear to have benefited. His offending in the past is, generally speaking, as serious as the present offences, and so there does not seem to be, at this stage of his life, much prospect of rehabilitation.

15. I am unable to see any error in the exercise of the sentencing discretion. A sentence of two years on each of the criminal trespass offences, together with the larcenies to be served cumulatively, could be regarded as a just sentence.

16. In addition, the appellant had to be sentenced for two offences of illegal use of motor vehicles and, given his past record, minimum sentences of three months for each of them had to be imposed. He has a number of previous convictions for damaging property and two for carrying an offensive weapon.

17. The present offences are serious breaches of the criminal law. The appellant would have been released from prison following his sentence imposed on 6 January 2000 in about April 2000 and, a little over a year later, he committed the offences which have most recently brought him before the court. He has committed similar driving offences in the past and has been in breach of bonds.

18. The learned Sentencing Judge said that he took account of the totality principle and it is plain that he did so, otherwise, if he had sentenced on each offence to the extent that that criminal conduct demanded, the total sentence would have been substantially more than four years.

19. I can see no reason to interfere with the sentences and I would dismiss the appeal.

20. PERRY J:               I agree. In my view, the appellant has failed to identify any specific error in the sentencing process and has failed to demonstrate that the overall sentence imposed was manifestly excessive. I would dismiss the appeal.

21. BESANKO J:         I also agree.

22. PERRY J:  The order of the court is appeal dismissed.