R v Meschede - [2016] SASCFC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MESCHEDE
[2016] SASCFC 49
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Justice Lovell)
9 May 2016
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence. On 16 September 2015, the appellant pleaded guilty to one count of aggravated serious criminal trespass and one count of theft. The appellant and a co-accused engaged in a joint criminal enterprise by entering sheds on a farming property in rural South Australia and stealing various items, including firearms.
The appellant was committed to the District Court for sentence and, on 15 December 2015, a Judge sentenced the appellant, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), to 21 months imprisonment with a non-parole period of 10 months. The Judge declined to suspend the term of imprisonment.
The appellant has appealed against the sentence on two grounds: that the head sentence and non-parole period were manifestly excessive; and that the Judge had erred in failing to suspend the term of imprisonment.
Held per Nicholson J (Parker and Lovell JJ agreeing) dismissing the appeal:
1. The starting point for the head sentence was within the discretion available to the Judge and is not manifestly excessive.
2. The non-parole period, being less than 50 per cent of the final head sentence, was within the range available to the Judge and is not manifestly excessive.
3. The Judge’s refusal to suspend the term of imprisonment was, in the circumstances, within the discretion available to the Judge.
Criminal Law Consolidation Act 1935 (SA) s 134, s 169; Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 18A, referred to.
The Queen v Morse (1979) 23 SASR 98; R v Delphin [2001] SASC 203, (2001) 79 SASR 429, discussed.
House v The King [1936] HCA 40, (1936) 55 CLR 499; R v Horstmann [2010] SASC 103; R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144; R v Place [2002] SASC 101, (2002) 81 SASR 395; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v McPhee [2014] SASCFC 107; R v Smith [2002] SASC 330; R v Wacyk (1996) SASR 530, considered.

R v MESCHEDE
[2016] SASCFC 49
Court of Criminal Appeal: Nicholson, Parker and Lovell JJ
NICHOLSON J.
Introduction

The appellant and a co-accused were charged jointly with the offences of aggravated serious criminal trespass in a non-residential building[1] and theft.[2] The appellant pleaded guilty to both offences and, on 15 December 2015, a District Court Judge sentenced the appellant, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), to the one penalty of imprisonment for 21 months with a non-parole period of ten months. The Judge declined to suspend the prison sentence. The sentence was backdated to commence 13 November 2015 in order to take account of time spent in custody prior to sentencing.
[1] Contrary to section 169(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to section 134 of the Criminal Law Consolidation Act 1935 (SA).
The appellant sought permission to appeal against the sentence on the following grounds.
1.The sentence is manifestly excessive.
Particulars
1.1 The head sentence is manifestly excessive.
1.2 That having regard to all of the circumstances, including the circumstances of the offending and personal circumstances of the offender, the non-parole period is manifestly excessive.
2.The Learned Sentencing Judge erred in failing to suspend the sentence of imprisonment.
On 7 March 2016, a Judge of this Court granted permission to appeal on both grounds.
An appeal to this Court against sentence is governed by the well understood principles summarised by the High Court in House v The King.[3] It is sufficient for the present to refer to the remarks of Kourakis J (as his Honour then was) in R v Horstmann.[4]
On an appeal against sentence, the Court of Criminal Appeal has no power to set aside or vary that sentence unless it is satisfied that the sentence is affected by an error of the type identified in House v The King[5]: a failure to take into account relevant matters; having regard to irrelevant matters; or unreasonableness (manifest excess or inadequacy).[6] I shall refer to the first two errors as process errors and the last as an outcome error. Where either a process error or an outcome error has been made, the Court of Criminal Appeal may interfere.
Plainly enough, in the case of an outcome error it is implicit in a finding of manifest excess or inadequacy that the Court of Criminal Appeal has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.
In the case of a process error, the Court of Criminal Appeal may yet refrain from interfering with the sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error. In such a case, the Court of Criminal Appeal will not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself. However, where a process error is demonstrated, the Court of Criminal Appeal may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive.
[3] [1936] HCA 40; (1936) 55 CLR 499 at 504-505.
[4] [2010] SASC 103 at [36]-[38]. And see R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144 particularly at [47] (Vanstone and Parker JJ).
[5] (1936) 55 CLR 499 at 504-5.
[6] It needs to be emphasised that a failure to give adequate weight to a relevant matter is not in itself an appellable error; only a failure to have regard to it at all is an error which justifies interference with the discretion. On an appeal against the exercise of the sentencing discretion, a failure to give adequate weight to a matter is only of any significance if it has resulted in an outcome error.
During the hearing of the appeal, counsel for the appellant conceded that no reliance was being placed on any alleged “process” error; rather, the Judge’s sentence was reflective of two outcome errors in that, in all the circumstances, the prison term imposed was manifestly excessive, being unreasonable or plainly unjust, and the failure to suspend fell outside the discretion available to the Judge. I would dismiss the appeal for the reasons that follow.
Circumstances of the offending and background to the pleas
In the early hours of the morning of 26 April 2015, the appellant and the co-accused engaged in a joint criminal enterprise to enter sheds on a farming property in rural South Australia and to steal various items. The appellant’s and co-accused’s activities were, in part, captured by footage from a covert infra-red motion detection camera. The appellant and the co-accused were seen to spend almost three and three quarter hours at the property during which they stole two quad bikes, four firearms, a welder and battery charger, various tools and a toolbox and an Isuzu truck. The truck was parked between the two sheds from which the other property was taken and was used by the appellant and co-accused to transport some of the other stolen property away.
It appears to have been accepted by the Judge that the appellant entered a three-sided but otherwise open implement shed from which he took the two quad bikes, whereas the co-accused broke into a closed shed and took the balance of the property, including the firearms from a locked steel cabinet which was opened using bolt cutters. Whilst this might have been the division of labour on the night, the appellant’s offending embraced all aspects of the serious criminal trespass and the stealing of all of the property on the basis that he and the co-accused engaged in a joint criminal enterprise.
The appellant has maintained that he did not know that the co-accused had found and taken the firearms. However, he was part of a pre-meditated joint enterprise to steal whatever each person physically took. Furthermore, he soon would have become aware of the existence of the firearms and at no time did he take steps to either return the firearms or hand them into the police. Indeed, very little of the property, apart from the truck, has been recovered. In the circumstances, the fact that the appellant may not have been aware at the time that the firearms were being stolen carries little, if any, weight by way of mitigation.
The appellant was interviewed by the police four days after committing the offences and provided the police with an alibi. The interview was suspended and the alibi checked. It was found to be a lie and upon being confronted with this, the appellant agreed to recommence the interview and made admissions sufficient such that pleas of guilty necessarily would follow.
On 16 September 2015, the appellant entered pleas of guilty in the Magistrates Court. The timing of the pleas was such that he became entitled to a discount of up to 30 per cent with respect to any prison sentence imposed.[7] A discount of 30 per cent was allowed and, as such, the appellant obtained the maximum credit available for the utilitarian value of his plea. However, it cannot be said that the appellant was frank and fulsome in the cooperation he provided during the investigation and the sentencing process. I will return to this issue. However, I indicate for the present that, whilst he is not to be more severely punished because of this, it is, together with other matters referred to later in these reasons, relevant to an assessment of the appellant’s prospects for rehabilitation and, ultimately, to the question of leniency.
[7] Section 10C of the Criminal Law (Sentencing) Act 1988 (SA).
The Judge’s approach to sentence
The Judge found that the offences of serious criminal trespass and theft were not opportunistic but planned. This finding has not been challenged. His Honour summarised the personal circumstances of the appellant in the following terms.
[Y]ou have recently turned 21 years of age. You have appearances before the Youth Court for serious criminal trespass in a non-residential building, damage property, theft, illegally interfering with a car and two counts of aggravated robbery. For those latter offences, you were sentenced to 18 months detention.
When you were first spoken to by the police you provided them with a false alibi, claiming you were nowhere near Jervois at the time the property was broken into and the items stolen. Later when the police spoke with you again, after your alibi was disproved by them, you made admissions to your offending.
You have endured a difficult upbringing as a child. You have only met your father on two occasions. You and your sisters were raised by your mother. At the age of six or seven years, you witnessed her being physically abused by her partner. You left school after completing year 11. You then moved out of home and stayed with friends. You developed an addiction to methylamphetamine or ‘ice’. Whilst serving your period of detention at the Youth Training Centre, Cavan, you completed a course in drug and alcohol counselling. You claim that you have not used methylamphetamine since, although you still have problems with alcohol.
You have not had any employment since leaving school. Your employment advocate has written that you were to begin a six week course aimed at assisting your employment prospects. Your lawyer requested that I adjourn sentencing to enable you to participate and complete that course in construction. In light of the seriousness of your offending, I was not prepared to do so and revoked your bail following submissions. In my view, a prison sentence was the only appropriate penalty for your offending. You had, before I revoked your bail, served 26 days in custody for the offending, which you will be credited for.
Also in arriving at the sentence, including the non-parole period that I will fix, I have taken into consideration that you have been on home detention bail for a short period of time.
It is always difficult to have to sentence young men to imprisonment. Their rehabilitation is often a prominent consideration in sentencing. However, I must weigh your youth against other sentencing considerations, particularly deterrence, both general and personal.
His Honour then dealt with the imposition of sentence in the following terms.
I consider a sentence of two-and-a-half years imprisonment to be appropriate for you Matthew Meschede. I will reduce the sentence by 30% because you also pleaded guilty in the Magistrates Court. Your sentence is therefore reduced to one of 21 months imprisonment. I consider an appropriate non-parole to be 10 months. Despite your youth and your personal circumstances, I am not satisfied good reason exists to suspend the sentence. To credit you for the 26 days you have spent in custody before I revoked your bail, I order the sentence commence from 13 November 2015. Matthew Meschede, you may now be removed from the court.
Additional matters bearing on the appellant’s prospects of rehabilitation
The appellant is still very young and, as a consequence, one ought to be cautious before forming a view as to prospects for rehabilitation. Nevertheless, the appellant’s refusal to cooperate fully is of concern. During sentencing submissions, counsel for the appellant stated that the appellant did not want to say anything that might be prejudicial to the co-accused. As a consequence, no explanation was given of the circumstances surrounding the commission of the offences, including how the appellant found himself to be in a position to commit them, other than that he had travelled to the area in a vehicle with the co-accused and that they visited a family member of the co-accused. However, the appellant was unwilling to say who the family member was or where that person lived. There was a third person involved in the offending but the appellant was, again, unwilling to provide any information about that person. Counsel for the appellant submitted that they went for a drive whilst intoxicated, came upon a farming property and, opportunistically, just before 2 am, decided to explore and steal from two sheds. As I have indicated, this notion of opportunistic offending was rejected by the Judge. The appellant was not prepared to assist with the issue of what happened to the stolen property, including the two quad bikes that he had taken.
Another matter of concern is the appellant’s prior criminal record. This was summarised by the Judge in his remarks. Whilst it is relatively limited, a close look at the prior offences and a chronology is instructive.
On 3 May 2012, when the appellant was 17 years of age and still a youth, he committed the offences of aggravated serious criminal trespass in a non-residential property, damage property and theft. He was dealt with in the Youth Court. No conviction was entered but, on 22 June 2012, the appellant entered into a bond to be of good behaviour for six months with supervision.
Only some three months into that period of supervision, on 3 September 2012, the appellant breached that bond by committing two counts of aggravated theft using force. The two offences arose out of what, in effect, was an armed robbery. According to the relevant sentencing remarks, the appellant entered a post office with another person dressed in balaclavas and overalls, each carrying a large kitchen knife. The appellant jumped the counter and demanded money. The sum of $800 was taken from an elderly man who was engaged in business at the post office counter. The incident was a terrifying experience for the post office employees and members of the public who were present. The offending was extremely serious. Had the appellant been dealt with as an adult he could have expected to receive a term of imprisonment for a significant number of years.[8] As it happens, and notwithstanding that the appellant had turned 18 by the time the he was arrested for this offending, the appellant was dealt with in the Youth Court and sentenced to 18 months detention.
[8] The sentencing guideline for aggravated robbery in this State remains that set out in R v Place [2002] SASC 101; (2002) 81 SASR 395, which suggests that for an aggravated robbery, in the circumstances there described, a starting point of six to eight years before plea typically will be appropriate.
Furthermore, before being arrested for the post office armed robbery, on 30 December 2012, and very soon after the six month bond to be of good behaviour had expired, the appellant committed the offences of interfering with a motor vehicle without consent and theft. He was sentenced for these offences in the Magistrates Court on 12 February 2013; convictions were recorded and a driver’s licence disqualification for 12 months was imposed.
It was against this background, that the appellant committed, on 26 April 2015, the offences presently under consideration. In these circumstances, I take the view that the appellant’s prospects for rehabilitation are to be seen as guarded, that when imposing a sentence for the present offending considerations of personal deterrence and the need to protect the public loom large and that, as a consequence, the scope for leniency is limited.
Is the sentence imposed by the Judge manifestly excessive?
The Judge’s starting point for the head sentence, before allowing for a 30 per cent discount for the pleas, was two and a half years. The question before the Court is whether this starting point was “unreasonable or plainly unjust” in all of the circumstances such that it fell outside the sentencing discretion available to the Judge. Counsel for the appellant referred the Court to the observations of former Chief Justice King in The Queen v Morse,[9] where his Honour indicated that the factors to be considered when addressing this question are:
(i) the maximum sentence prescribed by law for the offence;
(ii) the standards of sentence customarily observed for offences of the kind in question;
(iii)the seriousness of the offence committed when compared to other offences of its kind; and
(iv)the personal circumstances of the offender.
[9] (1979) 23 SASR 98 at 99.
The maximum penalties in this case are imprisonment for 20 years for the trespass offence and imprisonment for ten years for the theft offence. The maximum penalty is a yard stick with reference to which the worst possible example of the offence in question and the case under consideration can be compared.[10] In this case, any direct consideration of maximum penalties is rendered more difficult by the fact that there were two offences and that, by use of section 18A of the Criminal Law (Sentencing) Act 1988, the Judge’s starting point was a combined one referrable to both offences. Nevertheless, however one were to deconstruct the starting point so as to posit a starting point for each of the two sentences, a very low proportion of each maximum penalty would be arrived at.
[10] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

It is important, as King CJ observed, to have regard to the standard or level of sentence customarily imposed for offences of the kind in question. However, as I observed in R v McPhee,[11] such a comparison typically will only be of limited utility. There are so many variables involved in the sentencing process that a comparison, ordinarily, will only provide an appellate court with a feel for the prevailing range of sentences in generally like matters. In this respect, both parties placed considerable reliance on the Court of Criminal Appeal’s decision and sentencing guidance provided in R v Delphin.[12]
[11] [2014] SASCFC 107 at [28].
[12] [2001] SASC 203; (2001) 79 SASR 429.
The court in Delphin was concerned with, amongst other offences, the offences of basic and aggravated serious criminal trespass in a place of residence, which are more serious offences than the trespass offence presently under consideration. The court explained in some detail how a sentencing Judge is to approach the formulation of a sentence for serious criminal trespass in a place of residence, including the factors to be taken into account. However, it is not necessary to set out that discussion here in any detail for two reasons. First, the discussion in Delphin canvassed the general approach to sentencing for offences of this nature but at a level of abstraction. It is clear from a reading of Delphin that, as would be expected, each case will turn on its own facts. There is no substitute for a close appreciation of the circumstances of the particular offending before the Court. Second, Delphin concerned residential property trespasses. In particular, the sentencing guideline offered dealt with a case of a single serious criminal trespass in a place of residence.
In R v Delphin,[13] the Court of Criminal Appeal indicated that in the ordinary case a single serious criminal trespass in a place of residence, where the intention upon entry is larceny generally, a penalty for a first offence should be in the order of 20-24 months where a plea of guilty is involved. In the case of a first offender, serious consideration might be given to suspension of such a sentence. However, where another offence, such as theft, takes place that offence will, as here, ordinarily be charged separately and will attract an additional penalty. Proper regard must be had to the question of concurrency and any level of double counting must be avoided.
[13] [2001] SASC 203; (2001) 79 SASR 429 at [47].
The present case concerned serious criminal trespass in a non-residential premises and, in this respect, was less serious than the type of offence considered in Delphin. However, the trespass offence was aggravated by having been committed in company, the appellant was by no means a first offender and indeed, as indicated, had a material and quite concerning prior criminal record. Thus, whilst a starting point of something less than 20-24 months, before taking account of the plea, might be indicated for the less serious offence here (non-residential premises) there are other considerations relevant to seriousness to be taken into account. Further, the Judge needed to allocate, at least notionally, a starting point for the additional offence of theft bearing in mind, of course, the need to have regard to the question of concurrency.
The third factor identified by King CJ in The Queen v Morse is the seriousness of the offences as committed when compared with other offences of their kind. Here, it is true that little damage was caused to the property “broken into”. However, the trespass was planned, it was perpetrated in company and the appellant and the co-accused spent a number of hours on the premises. The trespass was a serious example of this type of offending. The theft offence was a particularly serious example of offending of its type. Multiple items of property were taken over a period of time. The property was valuable and included a truck and a number of firearms. The stealing of firearms, of itself, rendered the theft offence very serious. As stated earlier, very little of the stolen property was recovered.
As the appellant’s counsel observed, a survey of the authorities reveals few relevantly comparable cases. Counsel for the appellant drew the Court’s attention to R v Lutze[14] which involved a shed break and theft and where, on one view of the matter, the offender was treated more favourably than the appellant has been in this case. On the other hand, counsel for the respondent drew the Court’s attention to R v Smith[15] where, and again bearing in mind the usual limitations involved in drawing comparisons, the manner by which the offender was treated would suggest that the sentence in the present case was well within the available discretion.
[14] [2010] SASCFC 45.
[15] [2002] SASC 330.
The fourth factor referred to by King CJ is the appellant’s personal circumstances. I have already referred to aspects of the appellant’s background which suggest limited scope for leniency. However, there are aspects of his personal circumstances that tend towards an application of leniency. Counsel for the appellant in his written outline summarised these aspects in the following terms.
•     The appellant was 20 years old at the time of the offences.
•     His insight to his offending was demonstrated by his admission of guilt at an early stage.
•     The appellant had a difficult upbringing having effectively no contact with his father and falling in with an anti-social group of friends.
•     When he left home at the age of 16 the appellant lived with the anti-social friends developing an addiction to methylamphetamine.
•     Over a five month period, the appellant committed his first criminal offences, resulting in his detention for 14 months in the youth training centre.[16] Whilst in custody, he successfully completed a drug and alcohol programme. He maintained abstinence from drugs, although he was under the influence of liquor at the time of this offending.
•     At the time of sentencing submissions, the appellant had commenced an employment training course and was looking to obtain his first job with the assistance of a supportive job advocate. The Learned Sentencing Judge refused to adjourn the sentence to allow the appellant to complete this course (which was not opposed by the prosecution) and went one step further by revoking the appellant’s bail on the date of submissions.
[16] I add here that, whilst the appellant was sentenced to 18 months, he served 14 months.
I add here that the second consideration carries less weight than it might otherwise have, given the appellant’s lack of full and frank cooperation with the investigating authorities and during the sentencing process. In other words, whilst the admission of guilt at an early stage assisted the administration of justice and had a substantial utilitarian value which was recognised by the 30 per cent statutory discount, it did not, in my view and in all the circumstances, demonstrate insight or contrition. I also add that with respect to the fourth consideration above, and although these are matters that genuinely stand to the credit of the appellant, he offended again in the serious way that is before the Court notwithstanding these prior efforts at rehabilitation.
Delphin suggested a range of 20-24 months after plea for the one offence of serious criminal trespass in a place of residence. In the circumstances of the present case, a starting point of 18 months for the aggravated serious criminal trespass before plea and a starting point of 24 months[17] for the theft before plea would not be unreasonable or plainly unjust. After allowing for partial concurrency, a starting point of 30 months for both offences before plea was, in my view, well within the discretion available to the sentencing Judge and was not manifestly excessive.
[17] Arguably, this can be seen as moderate to merciful for such a theft, considered in isolation.
In the circumstances, a non-parole period of ten months which is less than 50 per cent of the final head sentence was also well within the range available. I would dismiss the ground of appeal that the sentence imposed was manifestly excessive.
Suspension
The appellant also contends that the sentence should have been suspended. In this respect the appellant has relied upon the oft cited statement of Perry J in R v Wacyk.[18]
The discretion to suspend a sentence arises under section 38 of the Criminal Law (Sentencing) Act 1988 (SA). Pursuant to that section, a sentence may be suspended by the court “if it thinks good reason exists for so doing”. The section speaks for itself. It would be wrong to circumscribe those plain words by reference to any supposed formula or other gloss.
A suspension of sentence may be granted with respect to any offence unless the power to do so in a particular case is expressly taken away by Parliament. The exercise of the discretion miscarries if it is approached with a preconceived view that any particular offence of class of offences may only properly be met by an immediate custodial term of imprisonment.
[18] (1996) 66 SASR 530 at 535.
Counsel for the appellant submitted that the Judge’s sole reason for refusing to suspend the sentence was that the offending was too serious. It is true that the Judge revoked bail at the conclusion of the sentencing submissions, some six days or so before delivering sentence and expressed the seriousness of the offending as a reason for doing so. However, the sentencing remarks reveal that the Judge took into account all matters relevant to the question of suspension. The Judge paid particular regard to the personal circumstances of the appellant, the nature of the offending and the importance in this case of deterrence, both general and personal. His Honour concluded “[d]espite your youth and your personal circumstances, I am not satisfied good reason exists to suspend the sentence”.
The Judge approached the question of suspension correctly. He did not overlook any relevant factors and did not take into account irrelevant factors. It is not sufficient to suggest that a different Judge or this Court, on appeal, by weighting the various relevant factors differently might come to a different result. The offending was serious and the appellant was not a first offender and had a background of similar and more serious offending. The need for both personal and general deterrence was manifest. The refusal to suspend the sentence was within the discretion available to the Judge. I would dismiss this ground of appeal.
Conclusion
I would dismiss the appeal.
PARKER J.
I would dismiss the appeal. I agree with the reasons of Nicholson J.
LOVELL J.
I would dismiss the appeal. I agree with the reasons of Nicholson J.