R v MCKENNA - [2006] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MCKENNA
Judgment of The Court of Criminal Appeal (ex tempore)
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Sulan)
14 February 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence - appellant initially pleaded guilty to one count of non-aggravated serious criminal trespass in a non-residential building and not guilty to one count of theft - appellant subsequently pleaded guilty to the latter charge on arraignment - appellant pleaded guilty to further charges of one count of theft, one count of resisting police and one count of failing to comply with a bail agreement - appellant sentenced to two years imprisonment with a non-parole period of fourteen months for these offences - sentence to be served at the expiration of the sentence of three years three months with a non-parole period of nineteen months that the appellant was currently serving - appellant's total sentence was a head sentence of five years three months with a non-parole period of thirty three months - whether the sentencing judge erred in not giving the appellant credit for a plea of guilty upon the first arraignment - whether the appellant was sentenced on an incorrect factual basis - appeal allowed - sentence of the District Court set aside - consideration of whether the principle of parity applies - new sentence imposed of eighteen months to be served at the expiration of the sentence of three years three months that the appellant is currently serving - total non-parole period increased to two years five months.
Criminal Law (Sentencing) Act 1988 s 18A, s 10(1)(g), referred to.
R v McKaye (1982) 30 SASR 312; R v Place (2002) 81 SASR 395; R v Shannon (1979) 21 SASR 442; R v Walker (1981) 27 SASR 315; R v Wilton (1981) 28 SASR 362, considered.

R v MCKENNA
[2006] SASC 49
Court of Criminal Appeal: Doyle CJ, Nyland and Sulan JJ

DOYLE CJ: I agree with the orders Sulan J proposes and his reasons.
NYLAND J: I also agree with the sentence imposed by Sulan J, for reasons he has expressed.
SULAN J: On 17 October 2005, at the District Court sitting in Mount Gambier, the appellant was sentenced to a total of five years three months imprisonment with a non-parole period of two years nine months. The appellant had been committed for sentence on one count of non-aggravated serious criminal trespass in a non-residential building and committed for trial on one count of theft. He pleaded guilty to the count of theft on the first arraignment day, being 4 October 2005. He also pleaded guilty to a further count of theft, and to resisting a member of the police force in the execution of his duty, and failure to comply with a term or condition of a bail agreement which he entered into on 12 March 2004.
Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing judge passed one sentence in respect of all of the offences of two years imprisonment. He ordered that that sentence be served cumulatively upon a sentence of three years three months, which the appellant was currently serving. That sentence had come into effect on 13 July 2005, when the appellant was convicted of an offence of dishonesty. That conviction breached a suspended sentence bond which had been entered into on 19 October 2004, in respect of two counts of aggravated robbery in company, for which he was sentenced to three years imprisonment, with a non-parole period of eighteen months. The sentence was suspended upon him entering into the bond. The conviction on 13 July 2005 for dishonesty resulted in a sentence of three months imprisonment. The bond was revoked and he was ordered to serve three years three months imprisonment, with a non-parole period of nineteen months. The District Court judge had increased the non-parole period by one month. The total sentence he was, therefore, required to serve was five years three months, with a non-parole period of two years nine months.
On 21 December 2005, the appellant was granted leave to appeal on the following grounds:
1.      That the Learned Sentencing Judge:
(a)     misdirected himself insofar as he found the Appellant had not pleaded guilty until very late in the proceedings; and
(b)     erred by failing to grant any discount to the Appellant on account of his guilty pleas.
2.That the Learned Sentencing Judge misdirected himself and erred by sentencing the Appellant for theft of items including power tools and archery equipment, being items the theft of which he was not charged.
3.That the Learned Sentencing Judge failed to give proper consideration to the principle of parity when sentencing the Appellant to a longer term of imprisonment than his co-accused.
4.     That the sentence imposed was manifestly excessive.
At the hearing of the application for leave to appeal, counsel for the Crown conceded that the sentencing judge had made errors in his reasons for sentence. In this appeal, counsel for the Crown has conceded that material errors were made by the sentencing judge. I will come back to those errors in the course of these reasons.
The circumstances of the offences of non-aggravated criminal trespass in a non-residential building and theft were that on 24 March 2005 the complainant, Ronald Telford, left his home at 18 Cunningham Street, Mount Gambier, with his family to spend some time away for the weekend. The house and his shed were securely locked. Upon their return on Tuesday 29 March, the complainant observed that the shed door had been opened and that a Kawasaki motorcycle valued at about $1500 was missing. It was alleged that other property had been taken. However, the appellant pleaded guilty on the basis that only the motorcycle was taken by him. The prosecution accepted the basis of the plea.
The appellant was jointly charged with Damien James Smith for those offences. The further offences to which the appellant pleaded guilty related to a theft of another motorcycle from premises at Dartmoor, Victoria. The circumstances of that theft were that the appellant, together with Smith and another person, drove to Dartmoor late in the evening of 1 April 2005 and there they broke into a shed and stole a motorcycle belonging to Matthew Dale Robinson. Apparently, Smith knew that the motorcycle was stored at those premises and had suggested that they go to the premises to steal it.
Police attended at the appellant’s premises on 2 April 2005 and located a stolen Yamaha motorcycle. During the course of the investigation, when police were speaking to the appellant, the appellant tried to push the police officer away and needed to be restrained. That conduct resulted in the offence of resisting a member of the police force in the execution of his duty.
It was ascertained that the appellant had been on bail at the time of the theft at Dartmoor, a condition of which was that he not leave the State. He, therefore, breached the bail agreement which he had entered into on 12 March 2004.
The maximum penalty for the offence of non-aggravated serious criminal trespass in a non-residential building is ten years imprisonment. For theft, the maximum penalty is ten years imprisonment. The penalty for resisting a member of the police force is six months imprisonment or a fine. The penalty for failing to comply with a term or condition of a bail agreement is $10,000 or imprisonment for two years.
In passing sentence, the sentencing judge remarked that the appellant did not enter a plea of guilty to the charge of theft until the commencement of the circuit and there was no reason to give him any credit for his plea. Section 10(1)(g) of the Criminal Law (Sentencing) Act1988 provides that the Court should have regard to a defendant’s plea of guilty to the charge. It is a well-accepted sentencing principle that if a defendant pleads guilty at any stage of the proceedings then a sentencing judge is required to have regard to the plea of guilty. Even a very late plea may result in some discount of the sentence.
In this case, the appellant pleaded guilty to the charge of theft on the first day upon which he was arraigned in the District Court. He had already pleaded guilty to the offence of non-aggravated serious criminal trespass in a non‑residential building. He was entitled to a reduction in respect of his pleas of guilty and failure to give him a reduction amounts to a material error. See: R v Place (2002) 81 SASR 395, 416-424 and R v Shannon (1979) 21 SASR 442.
The sentencing judge particularised the items in respect of the first count of theft to which the appellant had pleaded guilty as a motorcycle, power tools and archery equipment. The prosecution had accepted that the basis of the appellant’s plea was that he had stolen only a motorcycle and the sentencing judge was, therefore, in error in describing the property as including power tools and archery equipment.
On those grounds the appeal must be allowed and it is necessary for the Court to re-sentence the appellant.
An argument was put to the Court that there was a miscalculation in the non-parole period. It seems that that argument has no merit, because the non‑parole period set by the judge when the appellant received the suspended sentence was subsequently increased by the District Court when the appellant received a three-month sentence upon his suspended sentence bond being estreated.
A further ground of appeal is that the sentencing judge failed to give consideration to the principle of parity when sentencing the appellant to a longer term of imprisonment than his co-accused. The two offences of theft and the offence of non-aggravated serious criminal trespass in a non-residential building were committed together with Damien James Smith. Smith received a sentence of thirteen months imprisonment with a non-parole period of seven months, suspended upon him entering into a bond to be of good behaviour for two years. There were conditions of the bond as to supervision and the payment of compensation to the victim. In sentencing Smith the sentencing judge commenced with a head sentence of eighteen months imprisonment, but reduced it to thirteen months, having regard to Smith’s pleas of guilty.
There were a number of distinctions between Smith and the appellant in respect of matters to be considered upon sentence. Firstly, Smith had not been charged with resisting a police officer in the execution of his duty, nor had he breached a bail agreement. Secondly, Smith had a less serious criminal record than the appellant. He had only one previous conviction as an adult, his other court appearances having been as a youth. There were significant differences in the two men’s backgrounds. Smith was an eighteen-year-old man who had fallen into bad company and who had good prospects of rehabilitation. He was involved in a stable relationship and intended to move away from Mount Gambier and away from his negative peer group and from his mother, who had had a negative impact on his life. The circumstances of Smith and the appellant are so different that questions of parity of sentence do not arise.
The appellant, who is aged in his early twenties, has previous convictions for larceny, breaching a bond, and failing to comply with bail agreements dating back to 1997. In October 2004 he was convicted of aggravated robbery in company and sentenced to three years imprisonment, with a non-parole period of eighteen months. The sentence was suspended. In July 2005 he was convicted of dishonestly taking property without an owner’s consent, an offence he committed between January 2005 and June 2005 and which breached the suspended sentence bond that he had received in October 2004.
The appellant has had the benefit of a suspended sentence in the past. Generally, the power to suspend a sentence of imprisonment should not be exercised where a prisoner has previously received the benefit of a bond which has been broken and estreated, unless there are significant matters in mitigation. See: R v Walker (1981) 27 SASR 315 and R v Wilton (1981) 28 SASR 362.
In this case there was no question of suspension, as the appellant was already serving a sentence of imprisonment at the time he was sentenced by the District Court judge.
The effect a term of imprisonment may have upon a young offender who has never previously been imprisoned can justify the imposition of a suspended sentence after a defendant has received a previous bond. See: R v McKaye (1982) 30 SASR 312.
As to the offences to which the appellant pleaded guilty, a starting point of two years imprisonment, which was the starting point at which the sentencing judge commenced, was, in my view, merciful, however it was within an acceptable range for this offending. In re-sentencing the appellant I commence with the same starting point.
The appellant is entitled to credit for his pleas of guilty which were entered in the Magistrates Court in respect of the non-aggravated serious criminal trespass in a non-residential building, and in the District Court in respect of the theft charges when he first appeared on his arraignment. In those circumstances I would reduce the term of two years imprisonment to eighteen months imprisonment. That sentence is to commence at the expiration of the sentence he is currently serving of three years three months imprisonment, which makes a total of four years nine months imprisonment. I would increase the non-parole period of nineteen months to twenty nine months.
I would allow the appeal, set aside the sentence of the District Court and in substitution thereof impose one sentence pursuant to s18A of the Criminal Law (Sentencing) Act1988 of eighteen months imprisonment, to be served at the expiration of the sentence of three years three months imprisonment that the appellant is currently serving. I would increase the non-parole period to two years five months imprisonment. I note that the original sentence and non-parole period commenced on 13 July 2005.
DOYLE CJ:          The orders of the court are as follows:
1.     The appeal be allowed.
2.     The sentence imposed by the District Court be set aside.
3.That there be substituted a single period of imprisonment of eighteen months in respect of all of the offences before the court, to commence at the expiration of the sentence of three years, three months that the appellant is serving, making a combined head sentence of four years, nine months.
4.That the existing non-parole period be reviewed and extended by ten months, resulting in a non-parole period in relation to the combined head sentence being two years, five months, which period commences on 13 July 2005, the date on which the original non-parole period began.
5.     That the order for payment of compensation of $1440 be confirmed.