R v Penny - [2012] SASCFC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v PENNY
[2012] SASCFC 16
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Stanley)
2 March 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence - defendant pleaded guilty to two counts of aggravated serious criminal trespass in a place of residence, two counts of theft and two counts of dishonest manipulation of a machine - Judge identified, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) a notional starting point for all offences of six years imprisonment, reduced to five years on account of guilty plea - reduction of 19 months and five days made on account of time spent in custody, leaving a head sentence of three years, four months and 25 days - Judge brought to account unexpired parole, making the total head sentence six years, one month and 15 days, and fixed a non-parole period of two years - where defendant spent periods on home detention bail - whether Judge in error in declining to make reduction on account of time spent on home detention bail - whether the sentence imposed was manifestly excessive - whether Judge in error in declining to exercise discretion to suspend sentence of imprisonment.
Held: appeal dismissed - although the Judge misunderstood the total time spent on home detention bail, it is not a matter of substance or materiality, and in any event, there is no obligation on a Judge to make allowance in respect of home detention bail - in light of the defendant's extensive criminal antecedents and the circumstances of the within offending, the sentence imposed was at the lower end of the range, and the non-parole period merciful - it was not only open to the Judge to decline to suspend the sentence, but it was the correct decision in all the circumstances.
Criminal Law Consolidation Act 1935 (SA) s 134, s 141(1)(a), s 170(1) and s 353(4); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 10(1)(ea) and s 10(2), referred to.
Rowe v Police [2003] SASC 160; R v Copeland (No 2) (2010) 108 SASR 398; R v Ravet [2011] SASCFC 67; R v Bagnato [2011] SASCFC 161; R v Allen [1999] SASC 346; R v Nguyen [2004] SASC 405; R v Malesevic [1999] SASC 321; Nicholls v Police (2007) 97 SASR 431; House v The King (1936) 55 CLR 499; Cranssen v The King (1936) 55 CLR 509; Harris v The Queen (1954) 90 CLR 652; Dinsdale v The Queen (2000) 202 CLR 321, considered.

R v PENNY
[2012] SASCFC 16
Court of Criminal Appeal Gray, Anderson and Stanley JJ
GRAY J:

This is an appeal against sentence.
Introduction
The defendant and appellant, Adrian Fred Penny, appeals against a sentence imposed in the District Court on 13 October 2011 following pleas of guilty to two counts of aggravated serious criminal trespass in a place of residence,[1] two counts of theft[2] and two counts of dishonest manipulation of a machine; namely an eftpos machine.[3]
[1] Contrary to section 170(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to section 134 of the Criminal Law Consolidation Act 1935 (SA).
[3] Contrary to section 141(1)(a) of the Criminal Law Consolidation Act 1935 (SA).
In sentencing, the Judge identified a starting point of a single head sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) of six years imprisonment for all the offences to which the appellant had pleaded. This was reduced to five years on account of the guilty plea. A further deduction of 19 months and five days was made on account of time spent in custody. This left a head sentence of three years, four months and 25 days. The defendant had unexpired parole amounting to two years, eight months and 20 days which the Judge brought to account. This resulted in a total head sentence of six years, one month and 15 days, in respect of which the Judge fixed a non-parole period of two years, both being ordered to commence from 13 October 2011.
Background
The offending occurred on two separate occasions. On 29 July 2008, at some time between midnight and 2.00 am, the defendant broke into a home at Tennyson while the occupants were at home asleep. This is the subject of the first count of aggravated serious criminal trespass. The defendant stole the female occupant’s handbag, a purse, wallet, cash, cosmetics, credit cards and keys. This is the subject of the first count of theft. The first dishonest manipulation of a machine count arose from the defendant a few hours later having, through an eftpos transaction, purchased accommodation at a motor inn to the value of $139.00 using a card stolen from the Tennyson home.
On 11 August 2008 at some time before 2.45 am, the defendant broke into a Semaphore home while the male occupant was at home asleep. This is the subject of the second count of aggravated serious criminal trespass. The defendant stole a number items including jewellery, a mobile telephone, a global positioning system and recharger, a wallet, identification cards, bank cards and $500.00 cash, being the second count of theft. The second count of dishonest manipulation of a machine arose when the defendant, through an automatic teller machine at a hotel in Pennington withdrew $2,050.00 using cards stolen from the Semaphore home.
On 18 August 2008 the defendant was arrested. He was originally charged with two counts of aggravated serious criminal trespass, two counts of theft, 13 counts of dishonest manipulation of a machine and 10 counts of attempted dishonest manipulation of a machine. He pleaded not guilty and the matter was listed for trial commencing 25 October 2010. This trial date was not reached and the matter was relisted for trial commencing 30 May 2011.
On 31 May 2011, following negotiations the defendant pleaded guilty to the six counts I have set out above, which pleas were accepted in full satisfaction of the information. On this occasion, bail was revoked. Submissions on sentence were subsequently heard on 7 September and 5 October 2011. On 13 October 2011, the defendant was sentenced.
The defendant appeals to this Court on the basis that the Judge erred in failing to make any deduction in the sentence for periods spent on home detention bail, that in all the circumstances the sentence imposed was manifestly excessive, and that the Judge erred in not considering that good reason existed to suspend the sentence of imprisonment. Before turning to discuss the complaints on appeal, it is convenient to address the sentencing remarks of the Judge.
The Sentencing Judge
Having set out the history of the matter, the Judge addressed the defendant’s personal antecedents:
You are now 37 years old. You are from Subiaco in Western Australia. I take into account all of the information in the reports and that mentioned by Mr Vadasz, on your behalf, when fixing penalties.
You had a very unfortunate and disrupted childhood, I certainly accept that. You lived with an aunt from the age of two months in a good and nurturing environment, but you were taken away at the age of about eight by your mother and taken to Sydney where you lived in very unsatisfactory and unwholesome circumstances. You could never get proper schooling, you obviously had unsatisfactory conditions at home. Your mother was engaging in a very risky and immoral lifestyle and you, as a very small child, were forced to witness a lot of this. You were exposed to stealing, drug use and sexual activities at a very young age, very inappropriate for a child. So, it is perhaps not surprising that your attitude towards money and obtaining it dishonestly was formed at such an early stage in your childhood, and I think it has taken you a long time to realise that you are not going to get anywhere in your life by continuing that way. But I take into account that much of this was not your fault, it was a result of the very unsatisfactory and unhealthy circumstances in which you grew up.
The Judge then turned to the rehabilitation that had occurred since being arrested in August 2008 and accepted that the defendant now deeply regrets his behaviour:
Following your arrest in 2008 for these offences, I accept that you have done your best to discontinue your use of drugs. You have sought the assistance of the Aboriginal Sobriety Group since you have been on home detention.
I was assisted by the evidence of Mr Silvestri in submissions on your behalf. The Aboriginal Sobriety Group has offered you support in your attempt to overcome your long term past history of reliance on drugs and, of course, your offending necessary to support those habits.
You pursued your interest in boxing and participated in training yourself but perhaps more importantly you have been training young people in boxing as well and helping them to try and avoid the sort of life you had as a young person, hopefully keep them out of trouble.
I also note your relationship with Yolanda has offered you support and a sense of belonging within a family. I was also assisted by the evidence of Dr Boyd, Yolanda’s father, about the positive impact you have had on the family and no doubt the family has had on you.
You have also done your best to improve your employment prospects by acquiring skills such as a truck driving licence and obtaining various certificates which you could use to obtain employment. Your employment prospects are demonstrated clearly by the references I have received, including your employer at Elite Gym, where you worked as a boxing coach.
As to your committing these offences, you told the psychologist Mr Bell that you were getting pressure after your working hours were reduced, being unable to meet your rent payments so you resorted to theft. I accept that you now deeply regret that behaviour and I note your letter of apology and I accept that that is genuine.
The Judge addressed the matter of unexpired parole and time spent in custody and on home detention bail:
These offences were committed while you were on parole for similar offences. There is a period of two years eight months and 20 days unexpired parole still to be served. That period will be activated today if you are sentenced to imprisonment and any sentence I impose must be cumulative on that.
You served periods in custody of 72 days from 20 August 2008 and you also have received credit for 68 days from 5 August 2010, pursuant to s.74 of the Correctional Services Act. That period has already been deducted from the period of unexpired parole, so I am unable to deduct it again because that would be double-counting.
You were also on home detention bail from 20 January 2010 to 7 September 2011, when you remained in custody.
The Judge recognised the defendant’s serious criminal antecedents dating back to 1986, with some 60 offences of dishonesty alone appearing on the defendant’s adult record. The Judge noted that the defendant was on parole for offences, including aggravated serious criminal trespass, having been sentenced to a term of imprisonment of nine years and 11 months with a non-parole period of five years being fixed.
The Judge observed that he had difficulty in “considering a suspended sentence in view of [the defendant’s] history and the fact that these offences were committed while [the defendant was] on parole”, later remarking:
Mr Penny, I regard these offences as too serious to justify a further suspended sentence in view of your history. I must take into account other factors apart from your rehabilitation. The law says that I must seek to deter you and others from committing trespass against people in their own homes. It is a primary policy of the criminal law set out in the Sentencing Act that people must be protected from being invaded in their houses and it clearly states that your rehabilitation is secondary to those factors. For that reason I decline to suspend the sentence I am about to impose. I do however have more scope to acknowledge the steps you have taken towards your rehabilitation when fixing a non-parole period and I will make that non-parole period as short as I possibly can, in order to encourage you to continue going down that track.
On the question of credit for time spent on home detention the Judge observed:
I do not propose to give further credit for time on home detention because you have already received some credit for that, which has been deducted from the period of unexpired parole.
In fixing the non-parole period of two years the Judge remarked:
Having regard to the matters I have already mentioned, and in particular, the commendable efforts you have already made towards your own rehabilitation, I fix a shorter non-parole period than I would otherwise have done. I fix a non-parole period of two years; that will commence today.
The Appeal
As earlier mentioned, the defendant submitted on appeal that in all the circumstances the sentence imposed was manifestly excessive, that the Judge erred in failing to make any deduction in the sentence for periods spent on home detention bail and that the Judge erred in not considering that good reason existed to suspend the sentence of imprisonment.
Section 10 of the Sentencing Act concerns matters to be considered by a sentencing court. Section 10(1)(ea) deals specifically with offences involving intrusion into homes and requires that when sentencing for this type of offending, proper effect is to be given to the policy of the law as stated in section 10(2). Those provisions are as follows:
(1)A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(ea) in the case of an offence committed by an intruder in the home of another—the need to give proper effect to the policy stated in subsection (2);
…
(2)A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders.
These provisions were discussed in Rowe, where Sulan J relevantly observed:[4]
When the Criminal Law Consolidation Act 1935 was amended to create the offence of serious criminal trespass in a residential building and at the time the Criminal Law (Sentencing) Act was amended to include s 10(1)(ea), the primary concern which the amendments were designed to encompass, were most commonly spoken of as home invasions. Home invasions were generally described as criminal incidents in which intruders forced entry into an occupied dwelling and then committed one or more further crimes in the dwelling when occupants were lawfully present. Although the amending Act sought to deal with home invasions as described, the wide definition of place of residence includes a vacant hotel unit.
Every case must be considered on its merits. In some circumstances the presence of persons in the premises may be a factor that is highly relevant in determining penalty. In other cases, although premises may be residential, it may be obvious that no one occupies them. In that case little weight might be given to the fact that the premises are technically regarded as residential.
In the present proceeding, the two counts of aggravated serious criminal trespass involved private residences that were occupied at the time of the trespass. In these circumstances, the primary policy identified in section 10(2) had application.
[4] Rowe v Police [2003] SASC 160, [16]-[17].
The Approach of the Sentencing Judge
Counsel for the defendant on the appeal suggested that the Judge having initially adopted the “instinctive synthesis” approach then proceeded to make mathematical deductions for specific factors. It was suggest that in adopting this approach, the Judge failed to have adequate regard to a number of factors including the defendant’s Aboriginality and steps he had taken towards his rehabilitation.
The approach adopted by the sentencing Judge was open to him. The Judge was entitled to impose the one sentence for all of the offending. The Judge was correct to identify relevant matters in his sentencing remarks. The approach adopted by the Judge has allowed the defendant to fully ventilate his complaints on appeal.
The approach accorded with recent statements made by this Court in the matter of Ravet[5] and by the majority in both Bagnato[6] and Copeland (No 2).[7]
[5]    R v Ravet [2011] SASCFC 67.
[6]    R v Bagnato [2011] SASCFC 161.
[7]    R v Copeland (No 2) (2010) 108 SASR 398.
Deduction for Time Spent on Home Detention Bail
It was accepted by both parties that the Judge misunderstood the time the defendant had spent on home detention bail. The defendant had in fact been on home detention bail for a period of 11 months and two days. The misunderstanding arose as a consequence of the defendant being on home detention bail for a period interrupted by returns to custody following an unrelated offence and breaches of parole.
The Judge as noted above did not give further credit for time on home detention. The Judge’s reason for not giving credit was described by counsel to be ambiguous. It would appear that an explanation may lie in the fact that defendant was on parole at the same time as he was on home detention. While on parole, the defendant was serving the sentence of imprisonment to which that parole attached. It may be thought to be inappropriate in those circumstances to allow credit for the home detention in respect of the present sentence.
There is a further matter of relevance. The Court is not obliged to make any allowance in respect of time spent on home detention. As Duggan J in Allen observed:[8]
[Time spent on home detention bail] is a factor which can sometimes be taken into account for sentencing purposes. ... I think it is a relevant factor in the present case in view of the withdrawal of the charge, the existence of which led to such stringent conditions of bail which would not have been imposed if the appellant had faced nothing more than the charge of simple larceny. It should not have been taken into account as equivalent to a period of nine months spent in custody, but it is nevertheless a relevant consideration to the sentencing of the appellant in this case.
[Footnote omitted.]
[8] R v Allen [1999] SASC 346, [16].
In Nguyen,[9] Duggan J commented on his earlier remarks in Allen as follows:
Complaint was made of the fact that the learned sentencing judge did not allow any reduction for the period of 15 months on home detention bail. This is a factor which can sometimes be taken into account for sentencing purposes: R v Allen (1999) SASC 321 at [16]. However, the court is not obliged to make a reduction on account of this consideration: Allen at [23]. Allen was a unique case in which the appellant was falsely accused of armed robbery. He pleaded guilty to larceny but, in the meantime, he was subjected to bail with home detention conditions for a period of nine months. This would not have been the case if he had not been charged with armed robbery. In the present case, the home detention conditions were imposed in different circumstances. The appellant continued to offend whilst on bail which had been granted after she had been charged following the first search of her house. Although granted bail again, it was considered necessary to make the conditions of bail more stringent. In the circumstances I do not think that a reduction was appropriate for the time spent on home detention bail.
[9] R v Nguyen [2004] SASC 405, [4].

In Malesevic[10] Doyle CJ speaking for the Court of Criminal Appeal observed that there is no obligation on a Judge to reduce a sentence that would otherwise be imposed on account of time spent on home detention bail, but that the Judge is at liberty to make some reduction on that account if thought fit.
[10] R v Malesevic [1999] SASC 321, [7].
In Nicholls[11] Kelly J in accordance with earlier authority, noted that there was no obligation on a Judge to make any allowance in respect of home detention bail. Her Honour considered that any breach of home detention bail would be a relevant consideration:[12]
This ground of appeal can be disposed of quite shortly. A sentencing court is entitled to take into account the time spent by a person on home detention bail. However, there is no obligation on a sentencing court to make a specific reduction from either the head sentence or the non-parole period for time spent on home detention: R v Malesevic
Here the magistrate declined to give any credit for the period spent on home detention bail. Nevertheless, it is obvious that he directed his mind to that issue and in the exercise of his discretion declined to take it into account.
In the light of the history of the appellant's non-compliance with his conditions of bail on numerous occasions it is hardly surprising that he took the course he did. In my view there is no substance to this ground of appeal.
[11] Nicholls v Police (2007) 97 SASR 431.
[12] Nicholls v Police (2007) 97 SASR 431, [41]-[43].
In the present proceeding, it is relevant that the defendant’s home detention was interrupted as a consequence of his being taken into custody in regard to breaches of parole and unrelated offending conduct. It was within the discretion of the Judge to make no allowance. In the above circumstances, and having regard to matters discussed below, the fact that the Judge may have misunderstood the time spent on home detention bail is not a matter of substance or materiality.
Manifestly Excessive
The defendant submitted that the Judge had given inadequate weight to the defendant’s Aboriginality and to the steps taken towards rehabilitation. In my view there is no substance to either submission. The Judge’s sentencing remarks make it plain that he was well aware of the defendant’s Aboriginality and impressed by the steps that the defendant had taken towards his rehabilitation.
The defendant’s criminal antecedents had led to lengthy sentences of imprisonment with non-parole periods at or little more than half the term of the head sentences imposed. The present offending involved a breach of parole in respect of a sentence imposed for similar offending. The Judge when imposing the present sentence fixed a non-parole period at about one third of the term of the head sentence. Plainly the Judge when fixing such a lenient non-parole period had regard to the defendant’s personal circumstances and in particular his steps towards rehabilitation.
The defendant did not demonstrate any error of sentencing principle on the part of the Judge. Nor did he demonstrate that any material fact was overlooked or that the Judge had regard to any irrelevant consideration.[13]
[13] House v The King (1936) 55 CLR 499, 505; Cranssen v The King (1936) 55 CLR 509, 519-520; Harris v The Queen (1954) 90 CLR 652, 655; Dinsdale v The Queen (2000) 202 CLR 321, 339.
The defendant was exposed to maximum sentences of life imprisonment in respect of each offence of aggravated serious criminal trespass in a place of residence. Each count of theft exposed the defendant to a maximum penalty of ten years imprisonment. Each count of dishonest manipulation of a machine also exposed the defendant to a maximum penalty of ten years imprisonment. In my view, the submission that the overall head sentence was manifestly excessive should be rejected.
In all the circumstances I consider that a head sentence at the lower end of the range was imposed. As mentioned above, I consider the non-parole period to be merciful.
Failure to Suspend
The defendant submitted that it appeared from the Judge’s sentencing remarks that he had failed to consider whether good reason existed to suspend the sentence of imprisonment. Earlier in these reasons I have set out the Judge’s express reference to the issue of suspension. Those observations of the Judge demonstrate that he did consider the question of suspension and that he resolved to exercise his discretion against suspending the sentence of imprisonment.
As earlier noted the Judge had regard to the defendant’s personal antecedents. The defendant’s recent steps in his rehabilitation are commendable. His personal circumstances are an important consideration. However, they are to be part of the balance with all other factors.
The defendant’s criminal antecedents are extensive and extend over a period of some 25 years. A review of the antecedent report discloses that he has been sentenced both in this State and other States to many terms of imprisonment. Much of the offending that has led to terms of imprisonment falls under the general description of dishonesty offending. At the time of the present offending the defendant was on parole and this was an aggravating factor.
The defendant’s antecedent record discloses that he committed a number of offences of dishonesty including aggravated and non-aggravated serious criminal trespass and larceny between December 2000 and May 2002. This offending led to the revoking of a suspended term of imprisonment. As a consequence, on 4 July 2002, the defendant was sentenced to a total head sentence of four years and 11 months. A non-parole period of two years and six months was fixed. It appears that the sentence was backdated to commence on 6 October 2001.
The defendant was sentenced on 30 September 2003 in respect of further dishonesty offending, again involving aggravated and non-aggravated serious criminal trespass and larceny. This offending occurred between November 2000 and September 2001. This offending led to a sentence of imprisonment of five years, which was ordered to be cumulative on the sentence of four years and 11 months. As a consequence, the defendant faced a total head sentence of nine years and 11 months and a new non-parole period of five years was fixed. This entire sentence was taken to have commenced on 6 October 2001.
On 20 February 2009, the defendant was sentenced to a suspended term of imprisonment in regard to the offence of assault causing harm. The offending that gave rise to this suspended sentence was committed prior to the present offending, however at the time of the present offending the defendant was on bail pending the resolution of the assault causing harm charge. The present offending involved a breach of the terms of bail. This was a further matter of aggravation with respect to the present offending.
Given the defendant’s criminal antecedents and given that the subject offending is further offending of the same character and was committed in breach of the terms of parole, it was open to the Judge to decline to suspend the term of imprisonment. In my view it was the correct decision in all the circumstances.
A Further Matter
I consider that the sentence imposed by the Judge was a lenient sentence in all the circumstances and one that could be fairly described as merciful. It is to be recalled that section 353(4) of the Criminal Law Consolidation Act 1935 (SA) provides:
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
This Court will only interfere on an appeal against sentence if it considers that a different sentence should have been passed. I do not consider that a different sentence should have been passed.
Conclusion
I would dismiss the appeal.
ANDERSON J. I agree that the appeal should be dismissed for the reasons given by Gray J.
STANLEY J. I have read the reasons of Gray J. For the reasons given by his Honour, I would dismiss the appeal.