R v Nguyen

[2015] SASCFC 40

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NGUYEN

[2015] SASCFC 40

Judgment of The Court of Criminal Appeal

(The Honourable Justice Sulan, The Honourable Justice Nicholson and The Honourable Justice Lovell)

2 April 2015

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TOTALITY - GENERAL PRINCIPLES

The appellant pleaded guilty to numerous offences committed on various days between 23 March 2012 and 8 January 2014: illegal interference with a motor vehicle without consent; carrying an offensive weapon; unlawful possession; breach of bail (10); unlawfully on premises; driving under disqualification; serious criminal trespass in a place of residence; theft; and aggravated robbery. On 2 December 2014, a District Court Judge exercised the discretion available under section 18A of the Criminal Law (Sentencing) Act 1988 to impose the one penalty for all of the offending. However, in doing so, his Honour identified notional starting points with respect to each offence standing alone and the extent to which he would have allowed for concurrency but before allowing any discount for guilty pleas. His Honour started at a term of 10 years and six months imprisonment which was reduced to eight years and four months after applying a global discount of 20 per cent for the appellant’s pleas of guilty. That was further “rounded down” to eight years. In effect, the appellant received a total discount of approximately 24 per cent. A non-parole period of six years was set. The sentence was backdated to commence 8 November 2013 to take account of time served. A compulsory licence disqualification for 12 months was also imposed.

The appellant appeals against the sentence on the grounds that: the sentence was manifestly excessive; the Judge erred by not allowing a greater reduction in accordance with the statutory regime now governing discounts for guilty pleas; and the Judge erred in his application of the principle of totality.  The appellant seeks that the sentence imposed be set aside, and that he be resentenced.

Held by Nicholson J (with whom Sulan and Lovell JJ agreed) allowing the appeal and resentencing:

1.  Having regard to the applicable statutory regime the Judge erred in allowing too low a discount with respect to the appellant’s guilty pleas. 

2.  Having regard to the applicable statutory regime, the Judge erred in failing to provide reasons explaining how he arrived at the discount to be allowed.

3.  For the reasons in 1 and 2, the appeal should be allowed and the appellant resentenced.

4.  In the circumstances, it is not necessary to determine whether or not the sentence was manifestly excessive.

5.  The Judge’s apparent application of the totality principle, although, misdescribed, did not have a materially adverse effect on the sentence imposed.

6.  The appellant is resentenced to a term of imprisonment for six years and eight months with a non-parole period of four years with both the head sentence and non-parole period backdated to commence 8 November 2013.

7.  A mandatory licence disqualification for 12 months is imposed with respect to the offence of illegal interference with a motor vehicle, to commence upon the appellant’s release from prison.

Criminal Law (Sentencing) Act 1988 s10B, s10C, s18A, s38, s58; Motor Vehicles Act 1959 s91; Spent Convictions Act 2009 (SA), referred to.
Mead v Police [2014] SASC 61, (2014) 119 SASR 223; R v Daniele [2014] SASCFC 22; R v McPhee [2014] SASCFC 107; R v Wakefield [2015] SASCFC 10; R v Dwyer [2015] SASCFC 12; House v the King [1936] HCA 40, (1936) 55 CLR 499; R v Place [2002] SASC 101, (2002) 81 SASR 395; Police v Cadd [1997] SASC 6187, (1997) 69 SASR 150, considered.

R v NGUYEN
[2015] SASCFC 40

Court of Criminal Appeal:  Sulan, Nicholson and Lovell JJ

SULAN J.

1. I would allow the appeal.  I agree with the reasons of Nicholson J and the orders he proposes.

   NICHOLSON J.

   Introduction              

2. This is an appeal against a sentence passed in the District Court.  Permission to appeal was granted by a Judge of this Court with respect to grounds two and three of the notice of appeal but the application for permission with respect to ground one was referred to the Full Court for consideration in conjunction with the appeal.  Hereafter, I will refer to Mr Nguyen as the appellant. 

3. The appellant pleaded guilty to a large number of offences which were committed on various days between 23 March 2012 and 8 January 2014. On 2 December 2014, the Judge exercised the discretion available under section 18A of the Criminal Law (Sentencing) Act 1988 to impose the one penalty for all offending.  However, his Honour identified the notional penalty he would have imposed with respect to each offence standing alone and indicated the extent to which he would have allowed for concurrency.  By this means, his Honour arrived at a starting point, in total, of 10 years and six months.  That starting point was reduced to eight years imprisonment after allowance for the pleas of guilty and a “rounding down”. 

4. The Judge set a non-parole period of six years.  The appellant had been taken into custody on the day he committed the most serious offence, being the one committed last in time, on 8 January 2014.  However, he was entitled to credit for an earlier period of time spent in custody with respect to one or more of the other offences and the Judge elected to deal with that additional period of time by backdating the sentence to commence 8 November 2013. 

5. The appellant raises three grounds of appeal: that the sentence was manifestly excessive (as to which permission is still required); that the Judge erred by not allowing a reduction of 30 per cent having regard to the appellant’s guilty pleas; and that the Judge erred in his application of the principle of totality.

6. I am satisfied that the Judge erred with respect to the question of the discount allowed for the early pleas of guilty such that ground two has been made out.  For this reason, I would set the sentence aside and resentence the appellant.  As such, it is not necessary that I form a concluded view with respect to the first ground (manifest excess) or the third ground (totality).  As far as the latter is concerned, my inclination is that there has been a misapplication of the principle. 

   The offending

7. During submissions before the Judge, counsel for the Director of Public Prosecutions provided a helpful chart setting out some details of and concerning the offences committed.  Extracted below are three columns from that chart.

Offence	Date of Offence	Maximum Penalty
Illegal Interference with a motor vehicle	23/3/12	Imprisonment for 2 years. Driving Disqualification for 12 months (Mandatory).
Serious criminal trespass (residence) Theft	21/12/12 21/12/12	Imprisonment for 15 years. Imprisonment for 10 years.
Carry Offensive Weapon Unlawful Possession	29/3/13	$2 500 or imprisonment for 6 months. $10 000 or imprisonment for 2 years.
Breach Bail Breach Bail	11/4/13	$10 000 or imprisonment for 2 years.
Unlawfully on premises	3/5/13	$2 500 or imprisonment for 6 months.
Breach Bail	3/12/13	$10 000 or imprisonment for 2 years.
Breach Bail Breach Bail Breach Bail Breach Bail Breach Bail	17/12/13 20/12/13 24/12/13 27/12/13 31/12/13[1]	$10 000 or imprisonment for 2 years.
Drive Suspended	18/12/13	Imprisonment for 6 months.
Breach Bail	7/1/14	$10 000 or imprisonment for 2 years.
Aggravated Robbery	8/1/14	Life imprisonment

[1]    A tenth breach of bail offence was committed on 3 January 2014 but did not find its way on to the Director’s chart.

1. A number of the offences, as committed, were relatively minor and others were significantly more serious.  When I come to deal with the question of resentencing I will identify, briefly, the factual basis for each offence. 

   The sentence imposed by the Judge

2. In his remarks, the Judge commenced by outlining the various offences committed and their respective maximum penalties.  His Honour briefly summarised the circumstances of each offence.  The Judge then referred to the available psychiatric reports of Dr Raeside and briefly summarised their effect.  His Honour referred to the appellant’s quite lengthy record of prior offending which comprised drug offences, breaches of bail, driving offences, property and dishonesty offences.  The Judge formed the view, no doubt correctly, that as the appellant’s drug addiction and abuse became more entrenched the seriousness of his offending increased. 

3. His Honour observed that it was not the first time that the appellant had been sentenced for the serious offence of aggravated serious criminal trespass.  The Judge misspoke at this point in that the appellant was to be sentenced on this occasion only for the offence of serious criminal trespass.  The aggravated offence carries a maximum penalty of life imprisonment whereas the basic offence carries a maximum penalty of 15 years imprisonment.  Unfortunately, when the Judge came to indicate the notional sentence for the trespass offence he again referred to it as an aggravated serious criminal trespass.  However, he did have in mind the correct maximum penalty (15 years imprisonment).

4. The Judge, after completing his identification of the notional sentences for each offence proceeded as follows.

   That all makes a total sentence of 10 years and six months. 

   I have had regard to the principle of totality in fixing the various notional sentences.  I would reduce all that by 20% to give you credit for your pleas of guilty.  That would lead to your sentence of approximately eight years and four months which I would round off to a sentence of eight years. 

   In lieu of all the foregoing, pursuant to s18A I therefore fix a sentence of imprisonment for all your offending.  The sentence is to date from 8 November 2013 having regard to time you spent in custody.  I do fix a non-parole period of six years.  That is the sentence of the court.

   The question of the discount for the pleas of guilty – appeal ground two

5. For sentences passed in proceedings instituted on and after 11 March 2013, and regardless of when the offence occurred, the discretion to allow a discount for a plea of guilty is now regulated by sections 10B and 10C of the Criminal Law (Sentencing) Act 1988.  Only the offences referred to in items 3-10 of the chart fall to be considered in accordance with the new statutory regime.  The dates of those offences and the dates on which proceedings for those offences were instituted are all after 11 March 2013.  The pleas with respect to items 3-10 on the chart were all entered at a time that gave rise to a discretion in the sentencing court to allow a discount of up to a maximum of 30 per cent.

6. However, with respect to the first two items on the chart, proceedings were instituted by complaint in the Magistrates Court on 5 April 2012 (illegal interference) and by information in the Magistrates Court dated 14 January 2013 (serious criminal trespass in a place of residence and theft).  Any discount for the pleas of guilty with respect to these three offences is to be determined in accordance with the pre-existing common law approach. 

7. The Judge, in his sentencing remarks, did not expressly elude to this distinction, nor did the Judge provide any explanation for why he allowed a discount of 20 per cent, nor did he give any reasons why he did not allow a discount of 30 per cent with respect to those offences for which that maximum was available.

8. As it happens, the Judge might be taken as having allowed a discount of about 24 per cent.  His Honour took the unusual approach of nominating a discount of 20 per cent and then, after undertaking that mathematical calculation, engaging in a “rounding down” by allowing a further four months without giving any explanation for such a substantial “rounding down”.  The simpler, more conventional approach, and the practical effect of his Honour’s method, is that the notional starting point of ten years and six months was reduced to eight years for the guilty pleas, being a discount allowed of approximately 24 per cent.  Nevertheless, such a discount is still significantly short of a 30 per cent discount and the question remains whether it was justified, and if so, on what basis.

9. The purpose of the statutory regime is to regulate and make transparent sentencing discounts for guilty pleas and to encourage early pleas of guilty.  The level of discount remains subject to the exercise of a discretion to be exercised judicially.[2]  The regime prescribes certain maximum discounts which, largely, depend on the timing of the plea.  As already indicated, it is common ground that the pleas with respect to items 3-10 on the chart were entered at a time and in circumstances which attract a maximum available discount of 30 per cent. 

   [2]    Mead v Police [2014] SASC 61, (2014) 119 SASR 223.

10. The proper approach to the application of the statutory regime has recently been considered by the Full Court[3] and most recently by Blue J (with whose reasons Kourakis CJ and Peek J agreed) in R v Wakefield.[4]   

    [3]    R v Daniele [2014] SASCFC 22; R v McPhee [2014] SASCFC 107; R v Wakefield [2015] SASCFC 10 and R v Dwyer [2015] SASCFC 12.

    [4] [2015] SASCFC 10 at [53]-[56].

    The evident purpose of the enactment of section 10C is to provide a series of graduated incentives to accused to make early guilty pleas. The section proceeds on the basis that, the earlier a guilty plea is entered, the greater the utilitarian benefit to the community. This purpose evident on the face of the section is confirmed by the second reading speech in relation to the Bill that became the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 (SA) which introduced sections 10A to 10C into the Act.[5]

    [5]    South Australia, Parliamentary Debates, House of Assembly, 4 September 2012, p2730 (Vickie Chapman); South Australia, Parliamentary Debates, Legislative Council, 4 September 2012, pp2001, 2008 (Gail Gago).

    The purpose of the enactment of section 10C will in general be best achieved by allowing a discount at or close to the maximum permissible discount in a case in which the criteria specified by subsection 10C(4) do not indicate a lesser discount. The primary emphasis of section 10C is on the existence and timing of the guilty plea. This is evident from the structure of subsection (2), the existence of subsection (3) and the fact that each of the criteria identified in paragraphs (b), (c), (d), (e) and (f) of subsection 10C(4) relate to the existence, timing and circumstances of the guilty plea. The evident reason why the legislature specified discount figures as maxima rather than as fixed discounts is that there will be specific reasons in individual cases why it is appropriate to apply a discount less than the figure mentioned in subsection 10C(2).

    In R v Daniele,[6] Kourakis CJ said:

    [6] [2014] SASCFC 22.

    ...The entry of a plea of guilty in the Magistrates Court on committal to a higher court is a strong indication of a real willingness to assist the administration of justice. There are many offenders who delay, even a seemingly inevitable guilty plea, in the hope of winning a forensic advantage whether by way of bail, a favourable agreed sentencing basis or even an accidental acquittal. Tactical delays needlessly add to trial lists, result in unnecessary directions hearings, and waste limited public funding. More importantly, groundless delays in the finalisation of criminal prosecutions cause unnecessary distress to the victims of crime and undermine public confidence in the effectiveness of the administration of the criminal law. It is important that there be a clear differentiation in the sentence reductions given to offenders who are willing to forego the chance of winning a fortuitous outcome by an early acceptance of responsibility for their offending and those who have no inclination at all to do so.[7]

    [7] Ibid at [2].

    In R v McPhee,[8] Nicholson J (Blue J agreeing) said:

    In my view, sentencing judges should take a robust view with respect to pleas which satisfy the various criteria set out in s10C relevant to the different maxima provided for. Ultimately, the actual discount provided remains discretionary and each case will need to be determined according to its own facts. Nevertheless, if guilty persons are to be encouraged to plead early so as to provide the utilitarian benefits to the administration of justice contemplated, they will need to be confident that their expectations of a substantial discount in accordance with the requirements of the legislative regime will be met. Related to this is the need for defence counsel to be in a position to advise their clients on this topic with confidence.[9]

    In R v Dwyer[10] Stanley J (with whose reasons Kourakis CJ and Gray J agreed) said this.[11]

    In my view, the learned sentencing judge erred in failing to afford the appellant the entire discount permitted by s 10C(2)(b). As I have noted, the learned sentencing judge reduced the head sentence he would otherwise have imposed by reason of the appellant’s pleas of guilty by 25 per cent. Pursuant to s 10C(2)(b) a discretion is conferred permitting the judge to reduce the appellant’s sentence by up to 30 per cent. In my view, the learned sentencing judge failed to explain adequately why he did not reduce the sentence he would otherwise have imposed by the maximum available. In this context it is important to recognise the basis of the scheme enacted pursuant to s 10C. There is no doubt that s 10C, like s 10B, confers a discretion upon a sentencing court.[12] Recognition that the power conferred by s 10C is discretionary does not detract from the utilitarian purpose of the provision. The purpose of s 10C is to regulate and make transparent sentencing discounts for guilty pleas and to encourage offenders to plead early, thereby decreasing delays in the criminal justice system. The power conferred must be construed accordingly.

    His Honour quoted, with apparent approval, the passage from McPhee set out above, and continued:[13]

    If the sentencing judge, exercising the discretion conferred by s 10C, is not to allow the maximum discount permitted by the provision for a guilty plea, it is incumbent upon the judge to provide adequate reasons for the departure from the maximum allowed. The efficacy of the scheme will be undermined if defence counsel and their clients cannot be confident in their expectations of the advantage of an early guilty plea. None of this detracts from the power undoubtedly reposed in the sentencing judge to depart from the maximum where good reason exists but if that is to occur, the sentencing judge must explain why.

    [8] [2014] SASCFC 107.

    [9] Ibid at [46].

    [10] [2015] SASCFC 12.

    [11] At [34].

    [12]   Mead v Police [2014] SASC 61 at [37], (2014) 119 SASR 223 at 233.

    [13] At [35].

11. Whilst these various comments deal expressly with section 10C they are equally apposite to the cognate regime in section 10B. Counsel for the Director took issue with the use of the term “good reason” by the Court in Dwyer. It was submitted that this served to add words to the terms of sections 10B and 10C or, in effect, added a gloss to the requirements of the sections. It is true that the words “good reason” do not appear in the sections. However, I do not accept that the Court was imposing a specific test or requirement in the sense that section 38 (“good reason” before a sentence can be suspended) or section 58 (“proper grounds” for refraining from revoking a suspension of a sentence) imposes a test. The court in Dwyer was not adding a gloss to the requirements of sections 10B and 10C. Rather, it was using shorthand to refer to the uncontentious notion that the discretion to nominate a deduction which can be anything up to 30 per cent (in this case) must be exercised judicially, that is, by honouring its parameters as set out in the sections and as constrained by House v the King[14] principles. 

    [14] [1936] HCA 40; (1936) 55 CLR 499.

1. The giving of reasons is consistent with House v the King principles.  However, there is a practical imperative in the context of the new regime.  It is important that accused persons be encouraged to plead as early as possible and that they, and counsel advising, can be confident that an early plea ordinarily will be rewarded in accordance with the expectation engendered by the statute.  There will be cases where a proper exercise of the discretion will result in something less than the maximum.  However, the utility of the scheme will be seriously undermined if accused persons and their counsel do not understand the reasons why, in other cases and in their own case, the maximum might not have been and might not be, respectively, forthcoming.  Given the greater emphasis under the statutory regime on the utility of an early plea as compared with the more amorphous remorse and contrition, reasons and an understanding of their role have become more important.

2. In the present case, the Judge allowed a discount of, at most, 24 per cent.  Of course, the situation here was a little more complicated because the Judge was confronted with a number of offences, some of which attracted the statutory regime and others of which attracted the common law regime.   

3. The illegal interference with a motor vehicle offence was committed on 23 March 2012.  The appellant first appeared in the Magistrates Court on 19 April 2012 and entered a plea of guilty on 29 June 2012.  The serious criminal trespass and theft offences were committed on 21 December 2012.  The appellant first appeared in the Magistrates Court on 17 January 2013 and entered a plea of guilty on 15 October 2013 following which he was remanded on bail to continue with a treatment intervention program then in place.  These were early pleas and ordinarily would have attracted a substantial discount under the common law regime.  Counsel for the Director did not dispute that a discount of the order of 25 per cent was open. 

4. The total starting point determined by the Judge with respect to the offences 3-10 on the chart was 84 months.  If one were to assume, for the present, that a statutory discount of 30 per cent had been allowed, that would equate to a shade over 25 months.  The Judge, in fact, allowed 26 months discount (ten years and six months down to eight years and four months) or 30 months discount if the rounding down of four months is regarded as part of the guilty pleas discount.  Accordingly, if 30 per cent had been allowed with respect to items 3-10 on the chart (25 months) that would leave, on a best case, only five months with respect to the starting point of 42 months for the three offences to be dealt with in accordance with the common law regime, that is, a discount of only 12 per cent.  Such a discount is significantly too low in the circumstances.

5. Ultimately, I see no reason why the common law regime offences should not have been treated similarly to the statutory regime offences and given a discount of say 25 or even 30 per cent.  In my view, the Judge erred in allowing a combined discount of only 20 per cent.  His Honour also erred in applying a global discount without providing reasons as to how he arrived at the discount bearing in mind the requirements of the statutory regime.  For these reasons I would allow the appeal and resentence the appellant.

   Totality – appeal ground three

6. The appellant also complains with respect to the Judge’s consideration of the totality principle. His Honour’s reference to the “principle of totality” is concisely worded and the approach adopted not entirely clear. The fact that the discretion to impose one penalty under section 18A of the Sentencing Act is employed, does not eliminate the need for a sentencing officer to pay regard to the principle of totality.  However, ordinarily, the principle will be considered as part of the process of imposing the one final global penalty.  Where a person is sentenced for multiple offences, and whether or not section 18A is adopted, a sentencing officer will need to take into account all factors relevant to sentence, including circumstances of mitigation, leniency for any pleas and the potential for concurrency before considering the principle of totality as a last check.[15]  The Judge would appear to have considered totality at the stage of accumulating the notional sentences,[16] that is, by having regard to the total notional sentence of ten years and six months, and before allowing the discount for the plea.  If so, this was in error.  However, I am not satisfied that the principle was applied in a way that had a material adverse effect on the sentence imposed.

   [15]   See the discussion by Doyle CJ, Prior, Lander and Martin JJ in R v Place [2002] SASC 101; (2002) 81 SASR 395 at [84]-[90].

   [16]   Even in this respect, his Honour’s language is ambiguous.  However, I doubt his Honour did what the language literally suggests.  It is not possible to consider totality separately with respect to each notional sentence, divorced from the effect or result of their accumulation. 

   Manifest excess – appeal ground one

7. The appellant also contends that the sentence imposed was manifestly excessive.  As I have indicated, I do not need to reach a final conclusion on this point.

   Resentence

8. The circumstances of each offence were described by his Honour in the following terms.

   On 23 March 2012 at Ottoway you committed the offence of Interfere with a Motor Vehicle without Consent by repeatedly trying to gain entry to a parked vehicle.  On 21 December 2012 you committed the offence of Aggravated Serious Criminal Trespass in a Residential Property and Theft.  You were seen by a witness to break into the victim’s home at Woodville between 9 and 10 o’clock in the morning.  The witness saw and heard you check whether anyone was home.  Once you were satisfied no-one was home you cut a window screen with a garden cutter and broke into the home.  Upon breaking in you stole a laptop and other electronic equipment to the value of $2500.

   On 29 March 2013 you committed the offences of Carry an Offensive Weapon and Unlawful Possession.  Police spotted you sitting in a Ford sedan at Pennington.  They searched you and found you to be in possession of a kitchen knife, the offensive weapon, and a HP laptop which had been stolen from a property at Woodville North.

   On 11 April 2013 you committed two offences of Breach of Bail.  You were identified by police at Woodville North at 2 a.m. in breach of the curfew condition of your bail agreement.  Police located a syringe in your sock.  This was in breach of a condition of your bail agreement prohibiting possession of drug paraphernalia. 

   On 3 May 2013 at Woodville North you committed the offence of Unlawfully on Premises by being present in the side yard of the victim’s home at about 10.30 p.m. without his permission.

   Between 3 December 2013 and 7 January 2014 you committed eight offences of Breach of Bail by failing to sign in at the Salisbury Police Station as required.  You say that you may have failed to sign due to illness and being busy.  You have provided police with a medical certificate to cover you for not signing in, however it did not cover any of the times you failed to sign in and was not in your name.  You have not provided a medical certificate to cover you for any of the times you failed to sign in.

   On 18 December 2013 you committed the offence of Drive under Disqualification.  On being questioned by police you told them that you were driving whilst suspended as you were unwell and needed to attend the hospital.

   On 8 January 2014 you committed the offence of Aggravated Robbery.  You used a syringe to threaten Dr Rahman for money in his front yard.  You were drug affected at the time of your offending.  You say that you didn’t intend to hurt the victim but you did intend to rob him and use any money you could get to buy drugs.  The victim gave you about $200.  The fact that you were drug affected at the time of the offending does not make your offending any less serious.  In his victim impact statement the doctor makes it clear that he and his family no longer feel safe in their own home or neighbourhood that they live in fear as a result of your offending.

9. One of the offences committed and noted on the Director’s chart is the offence of driving a motor vehicle on a road while the appellant’s licence was suspended, in breach of section 91 of the Motor Vehicles Act 1959.  The maximum penalty for this offence is six months imprisonment for a first offence or two years imprisonment for a subsequent offence. 

10. The chart records as the maximum penalty, imprisonment for six months. However, the appellant was convicted, on 12 April 2007, of driving whilst disqualified on 7 September 2006 and of driving whilst disqualified on 23 November 2006. The offence of driving whilst disqualified, like the offence of driving whilst a licence is suspended, constitutes a breach of section 91 and the maximum penalty identified in section 91 relates to either offence. Subsection 91(5) provides:

    A person must not drive a motor vehicle on a road while his or her licence or learner’s permit is suspended or while disqualified in this State or another State or Territory of the Commonwealth from holding or obtaining a licence or learner’s permit. 

    Maximum penalty:

    For a first offence – imprisonment for six months

    For a subsequent offence – imprisonment for two years

    The possibility that the appellant might be seen as having committed a subsequent offence for the purpose of section 91 was not raised before the Judge. The answer might lie somewhere in the interstices of the Spent Convictions Act 2009. In any event, the Judge noted in his remarks that the maximum penalty was six months and this appears to have been the basis for sentencing agreed by the Director.  It would not be appropriate to deal with it differently on appeal.

11. However, when his Honour came to indicate his notional penalties he identified six months imprisonment as appropriate for this offence to operate cumulatively on the notional sentences identified for the other offending.  The offending, arguably, was towards the low end of the scale for this offence and before imposing a prison term it first would be necessary to make a finding that it was contumacious.[17]  The appellant’s admissions, as recorded on the police apprehension report, are sufficient to demonstrate this.  Nevertheless, given the maximum penalty (six months) and the circumstances of the offending, if sentencing for this offence alone, I would have adopted a slightly more lenient starting point.

    [17]   See generally Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150.

12. I also indicate that after having regard to the factual bases (as more fully recorded in the sentencing materials) relating to each of the more serious offences of illegal interference and aggravated robbery together with the appellant’s personal circumstances (further dealt with later) I also would have adopted slightly more lenient starting points for these offences, if considered in isolation.

13. Like the Judge, I would sentence by exercising the discretion under section 18A to impose the one penalty for all 18 offences.  However, it is unnecessary, in the circumstances, to set out individual notional sentences.  For the reasons indicated, I would start, a little lower than the Judge, with the one global penalty of nine and a half years.  In doing so, I have had regard to issues of concurrency.  I would reduce that to six years and eight months (a shade under 30 per cent) on account of the pleas. 

14. There are considerations personal to the appellant that suggest that this more lenient starting point and a moderate (by way of proportion) non-parole period is warranted. 

15. The appellant started to live on the streets, essentially unsupervised in his early teens.  He is now 31 years of age.  His abuse of alcohol, amphetamines and heroin commenced when he was about 15.  As his addiction developed his offending, which started at age 14, increased in seriousness and quantity.  He has a lengthy offender history, mostly (in terms of number) involving driving and motor vehicle offences and failures to observe court orders (bail and the like).  However, he has committed a number of more serious offences.  As an adult he committed robbery in company in 2002 for which he was sentenced to imprisonment for three years to be served but with a relatively short non-parole period.  In 2004 and, it would seem, whilst on parole he committed various offences including serious criminal trespass, assault with intent to resist lawful apprehension and two counts of theft, for which he received short periods of imprisonment to be served together with the balance of unexpired parole.  In 2007, the appellant committed some dishonesty offences for which he was convicted but discharged without penalty.  However, he also committed a number of offences of serious criminal trespass, theft and aggravated serious criminal trespass for which (in December 2007) he received an immediate term of imprisonment of four years with a non-parole period of 12 months.  Between December 2007 and 2012 (the present offending) the appellant did not commit any further serious offences.

16. The appellant’s criminal record has all the hallmarks of one to be expected for a person who started in his early teens to live unsupervised on the streets, whilst abusing illicit drugs, including, heroin.

17. The appellant was first formally diagnosed in mid 2008 with a psychotic illness now understood to be schizophrenia.  In the past, he has been treated with long acting depot antipsychotic medication (risperdal consta) and in later times with oral medication.  It would seem that he has been suffering with late onset schizophrenia since at least some time in 2007, although perhaps from earlier.  Dr Raeside has described the appellant as also having an antisocial personality disorder.  According to Dr Raeside, the appellant has periods of being relatively settled when he is on his antipsychotic medication and is abstinent from illicit drugs.  In his latest report (12 August 2014) Dr Raeside recorded the opinion that there is evidence that the appellant’s mental illness is improving.

18. The appellant’s drug abuse is well entrenched.  There is no doubt that the appellant’s prognosis with respect to a continuation of drug abuse and further offending must be considered as quite guarded.  According to Dr Raeside, and unsurprisingly, the appellant whether in custody or in the community will require assertive treatment for his mental illness including by depot antipsychotic medication and assertive involvement in drug rehabilitation programmes.

19. In the circumstances, and particularly given that the appellant demonstrated that after diagnosis in 2008 and with treatment he was able to refrain from serious offending for some years, a substantial period of supervision and rehabilitative attention on parole can be justified.  Should this come about it may prove to be the appellant’s last opportunity to obtain serious and directed assistance with respect to his multiple criminogenic factors.

20. I would set a non-parole period of four years.  Like the Judge, I would backdate the head sentence of six years and eight months and the non-parole period of four years to 8 November 2013 so as to take account of all time spent in custody.  In addition, with respect to the offence of illegal interference with a motor vehicle, I would, as did the Judge, impose the mandatory licence disqualification for 12 months to commence on the appellant’s release from prison. 

    LOVELL J.           

21. I would allow the appeal.  I agree with the reasons of Nicholson J and the orders he proposes.