R v NEWTON

[2015] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NEWTON

[2015] SASCFC 61

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Parker)

1 May 2015

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

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT

Appeal against sentence following pleas of guilty to serious criminal trespass in a non-residential building and numerous dishonesty offences committed while subject to a suspended sentence - sentence of imprisonment for three years, one month and two weeks cumulative upon the earlier three month sentence with a non-parole period of 21 months - whether sentence manifestly excessive.

Held:  appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 134, s 169, s 270A; Bail Act 1985 (SA) s 17; Summary Offences Act 1953 (SA) s 41; Road Traffic Act 1961 (SA) s 47BA, referred to.

R v NEWTON
[2015] SASCFC 61

Court of Criminal Appeal:  Vanstone, Blue and Parker JJ

1. VANSTONE J:     This is an appeal against a sentence imposed in the District Court after pleas of guilty to serious criminal trespass and some 14 other dishonesty offences.  The offending was in breach of a three month suspended sentence bond.  The appellant was sentenced to 11 months and two weeks imprisonment for the serious criminal trespass.  For the other dishonesty offences the judge imposed a single sentence of two years and two months, to be served cumulatively.  The previously suspended sentence was ordered to be served.  That led to an aggregate head sentence of three years, four months and two weeks imprisonment.  The judge fixed a non-parole period of 21 months.

2. The only argument advanced by the appellant is that the sentence is manifestly excessive.

   Background

   The span of the offending and a sketch of the circumstances are set out in the table below.

Offence	Date of offence	Maximum penalty	Facts
Theft – s 134 Criminal Law Consolidation Act 1935 (CLCA)	2 August 2013	10 years imprisonment.	The appellant left David Jones with an iPod clock radio worth $799 concealed in a bag.  The item was recovered.
Theft – s 134 CLCA	5 January 2014	10 years imprisonment.	The appellant was captured by CCTV footage removing fencing from a private property, causing damage of approximately $250.
Theft – s 134 CLCA	7 February 2014	10 years imprisonment.	The appellant left Myer without paying for clothing. One item not recovered caused a loss of $19 to the store.
Driving with prescribed drug in oral fluid – s 47BA Road Traffic Act 1961	5 March 2014	For second offence, fine of not less than $1100 and not more than $1600.  Disqualification of licence for not less than 6 months.	The appellant was stopped and tested by police while driving on Glen Osmond Road.  He tested positive to methylamphetamine.
Theft – s 134 CLCA	15 March  2014	10 years imprisonment.	The appellant left Bunnings, Kent Town with batteries valued at $198 concealed on his person.  The items were recovered.
Serious Criminal Trespass in a Non-Residential Building – s 169 CLCA	17 March  2014	10 years imprisonment.	The appellant unlawfully entered Kennards Self Storage with the intention of committing theft.
Theft – s 134 CLCA Major indictable	17 March  2014	10 years imprisonment.	While trespassing at Kennards, the appellant removed a box containing a medical microscope worth $44,500.
Attempted theft – ss 134 and 270A CLCA	28 March  2014	6 years and 8 months imprisonment (two thirds of the maximum of the principal offence).	The appellant attempted to leave Bunnings at Marion with $1818 worth of goods in a trolley, but abandoned it before fleeing.
Attempted theft – ss 134 and 270A CLCA	28 March  2014	6 years and 8 months imprisonment.	The appellant placed $1127 worth of tools inside a bag at Stratco, but abandoned them before fleeing.
Attempted theft – ss 134 and 270A CLCA	30 March  2014	6 years and 8 months imprisonment.	The appellant placed goods worth $1575 in a bag at Bunnings, Marion, but abandoned them before leaving the store.
Theft – s 134 CLCA	31 March  2014	10 years imprisonment.	The appellant removed steel piping and a bag of screws valued at $421 from Crestware Industries Hardware at Edwardstown.
Theft – s 134 CLCA	1 April 2014	10 years imprisonment.	Police discovered a stolen trailer at the appellant’s house containing tools and gardening equipment reported as stolen by the owner several days earlier.  Valued at over $2500.
Theft – s 134 CLCA	1 April 2014	10 years imprisonment.	During the same search police discovered $8464 worth of tools exclusively stocked by Bunnings.  The appellant said he bought them privately from “Leo” and was unable to provide a receipt.
Fail to comply with bail agreement – s 17 Bail Act 1985	20 April 2014	Fine of $10,000 or 2 years imprisonment.	The appellant attended a Stratco store in breach of a condition of his bail entered into on 8 April 2014.
Theft – s 134 CLCA	23 April 2014	10 years imprisonment.	The appellant stole an LED light bar worth $499 from Supercheap Auto, Thebarton.
Theft – s 134 CLCA	1 May 2014	10 years imprisonment.	The appellant was apprehended by store security leaving Rebel Sports, West Lakes with clothing valued at $622.
Unlawful Possession – s 41 Summary Offences Act 1953	14 June 2014	Fine of $10,000 or 2 years imprisonment.	Police discovered at the appellant’s house a Dyson fan valued at $599 belonging to Myer at Marion.

1. The penalties imposed in relation to the driving charge and the charge of breaching bail do not form part of the sentence under appeal.

2. The appellant pleaded guilty to eight of these offences in the Magistrates Court, including the major indictable offence of theft at Kennards Storage, involving property worth over $30,000.  He was committed for sentence to the District Court on 10 October 2014.  The remaining charges were called up from the Magistrates Court whereupon guilty pleas were promptly entered.  The judge reduced the sentences by about 30 per cent to reflect the pleas.

3. The suspended sentence bond which was breached by all the offending was entered into on 11 April 2013 for a period of 18 months.  It related to two counts of deception committed in November 2012 when the appellant removed multiple cartons of cigarettes from supermarkets while posing as a cigarette company representative.

4. At the time of sentence the appellant was 35 years old.  He and his partner have a young child.  He has a good work history.  His criminal record includes recent dishonesty and drug offences.  In the wake of a failed business venture in about 2011, the appellant claims to have become addicted to methylamphetamine.  He said the offending amounted to his persistent attempts to raise money to pay off increasing debts and to fund his addiction.

5. While on bail awaiting sentence the appellant attended four sessions with a psychologist at Drug and Alcohol Services South Australia.  In a letter to the Court, the psychologist spoke of the appellant’s decision to cease amphetamine use and his commitment to “rehabilitation treatment options”.  She noted his last reported use of the drug as being in October 2014.  In his remarks the sentencing judge accepted that the appellant had “overcome” his drug problems.

   Arguments on appeal

6. The appellant does not assert there was any specific error in the approach taken by the sentencing judge.  The complaint is that the head sentence and non-parole period are manifestly excessive.  In support of this it is put that the sentence imposed for serious criminal trespass failed to adequately reflect the opportunistic nature of the crime and the appellant’s lack of awareness of the value of the stolen item.  In relation to the remaining dishonesty offences, the appellant argues that the judge failed to adequately take into account that most of these were minor summary offences.

   The appellant further complains that the judge failed to adequately take into account his cessation of drug taking.  In addition, no mention was made of the fact that he spent six months on home detention bail awaiting sentence.  Finally, the appellant argues that the judge failed to apply the totality principle.

   Analysis

7. The striking feature of the appellant’s conduct is that he persistently offended over a period of 10 months, despite being caught in the act by the authorities on numerous occasions.  Against this, the low value of most of the items stolen and the fact that the appellant was not to know of the significant value of the microscope are of limited weight.  He had been dealt with by the courts for dishonesty offences as recently as four months prior to commencing this course of offending and so all the current offences were committed in breach of that bond.

8. Although the judge did not expressly mention the appellant’s time on home detention bail this was raised by both counsel on several occasions during sentencing submissions and would not have been overlooked.  It is plain that the terms of home detention bail were not onerous and there was no obligation upon the judge to reduce the sentence on account of it.

9. The complaint that the sentence failed to reflect the appellant’s reform in relation to drugs is unpersuasive.  It is plain from his remarks that the judge took into account the appellant’s efforts to rehabilitate.  The judge’s observation that the appellant had “overcome” his drug addiction was a generous finding, particularly since this was not a submission put by the appellant’s counsel and was not supported by the psychologist.  In fact an examination of the records relating to his counselling shows that this finding has a rather tenuous basis.  In any event, the judge reflected this and the appellant’s other personal circumstances in the low non-parole period fixed. 

10. The judge was entitled to impose cumulative sentences.  Because there were so many offences and they were committed over a long period the judge had quite a wide discretion in determining sentence.  Although the judge expressed a desire to avoid a sentence that was “crushing”, the sentence was not at a level where any need for a consideration of totality arose.

    Conclusion

11. The argument that the sentence was manifestly excessive must fail.  The total sentence for the fresh offending of three years, one month and two weeks was within the range of sentences available.  The previously suspended term had to be added to the new sentence.  The non-parole period was merciful.

12. I would dismiss the appeal.

13. BLUE J.                I agree.

14. PARKER J:          I would dismiss the appeal for the reasons given by Vanstone J.