R v Regan

R v REGAN
[2003] SASC 287
Court of Criminal Appeal: Bleby, Besanko and Sulan JJ

BLEBY J. This is an appeal against sentence. The appellant pleaded guilty to one count of serious criminal trespass, and one count of larceny. He was sentenced to four years imprisonment, with a non-parole period of 18 months.
The offences occurred on 3 May 2002, when the appellant broke into residential premises at Glynburn Road, Burnside, and stole antique furniture, china, silverware and homeware of the value of approximately $50,000. Damage to the extent of approximately $5,000 was also done to the house. The sentencing Judge recorded the latter figure as $2,000, but there seems to have been no material to support that figure. The owners were not present at the time. On the day prior to the day on which the offences were committed, a problem arose between the appellant and his then girlfriend, who had ejected him from their shared residence. The police were called and the appellant was taken into custody. When he was released the next day he went back to their residence to find his possessions had disappeared. He then went out drinking and taking amphetamines. The appellant did not recall committing the offences in question, but accepted that he must have been involved because his fingerprint was found on at least one of the items taken from the house.
The sentencing Judge had regard to the victim impact statement that was tendered before him. This statement indicated that the offences had caused the victims to feel anxious and insecure. The possessions stolen in the incident were of significant sentimental value. Much was recovered, some in damaged condition. $25 cash, jewellery, electric hand tools and some ornaments and personal effects were not recovered.
The appellant is 38 years old. He grew up with supportive parents, and in particular, he described himself as being “very close” to his father. He left school at the age of sixteen when his girlfriend at the time became pregnant to him. He found employment as a contract cleaner and in a fast food outlet in order to support his girlfriend and young son. Although his relationship with his girlfriend ended, he helped to raise the child, who lived with the appellant during that child’s high school education. In 1995 the appellant had another child with a different partner.
In 1988 the appellant returned to study as a mature age student and completed a Bachelor of Arts in Community Theatre and a Diploma in Education. In 1994 he commenced employment as a teacher at Smithfield Plains High School, where he taught Drama, English and History until he left the school in 2001 on mental health grounds. The appellant’s father had died in 1997, and the loss was extremely distressing to him. He grew progressively more depressed until in 2001 his depression became so significant that he could barely get out of bed in the morning to go to work. He terminated his employment and was paid his superannuation at the time on the ground of incapacity caused by his poor mental health.
The appellant began to drink excessive amounts of alcohol and was introduced to drugs. He became addicted to amphetamine and heroin, and also abused prescription drugs. He spent all of his money in funding his drug habit, including his superannuation payment. His house and his possessions were sold. He began to gamble. In 2001 the appellant began a new relationship which he described as a “terrible one” and “crazy”. The relationship was predominantly drug related and is said to have ended on the day he was charged with these offences.
In September 2002 the appellant was arrested in respect of these offences. On 10 December 2002 the appellant admitted himself to the Woolshed Therapeutic Community for drug and alcohol rehabilitation. Whilst at the Woolshed he worked on issues such as anger management, self-esteem, self-nurture and relapse prevention. He left the program on 20 February 2003, but maintained contact with the support network he had established while at the Woolshed. Before being sentenced he was attending Narcotics Anonymous, and access counselling. The appellant indicated that he had remained drug free since his arrest and that he had established a programme to facilitate his continued abstinence. He was taking prescribed anti-depressant medication to manage his depression. He wished to return to study in 2004, with the hope of later working in the field of drug and alcohol counselling, an area in which his father worked. At the time of his sentencing he was residing with his mother, who is legally blind, and his relationship with her had improved. He had also re-established his relationship with his first son. He had been supported in his rehabilitation by his mother and married sister.
Dr White, a psychologist, considered that the appellant’s prospects of positive rehabilitation appeared reasonable, and that a period of incarceration may have a significant negative effect on his general rehabilitation.
The appellant has committed a number of prior offences, but these were his first convictions of a serious nature. He had never previously been sentenced to a term of imprisonment, whether suspended or otherwise.
The sentencing Judge, taking into account the defendant’s background and steps toward rehabilitation, was of the opinion that the offending was too serious to impose a suspended sentence. His Honour discounted the penalty by about 20% by reason of the appellant’s plea of guilty. He imposed a combined penalty of four years imprisonment with a non-parole period of 18 months.
The appellant complains that his head sentence and non-parole period are manifestly excessive and that the sentencing Judge erred in failing to suspend the sentence.
The charges to which the appellant pleaded guilty were charges of serious criminal trespass and larceny. The maximum penalty for serious criminal trespass in a place of residence is 15 years imprisonment. The maximum penalty for the offence of larceny at the time of the event was five years imprisonment. The appellant was not charged with aggravated serious criminal trespass. Serious criminal trespass committed in company with one or more other persons constitutes a form of aggravated serious criminal trespass for which the maximum penalty is imprisonment for life. The sentencing Judge made the observation that “it seems very likely that (the appellant was) assisted by others.” If, by that, his Honour meant to find that he was assisted in the house and that he took that into account in fixing the sentence, he was wrong to do so, because he was thereby taking into account a much more serious offence than that with which the appellant was charged. Nevertheless, it is conceivable that a person may be assisted by a variety of means in a serious criminal trespass and in an associated larceny without the offence becoming an aggravated serious criminal trespass. I cannot conclude that that remark necessarily constituted an error.
The nature of the offence of serious criminal trespass and the appropriate sentencing principles to be applied were considered by the Full Court in R v Delphin (2001) 79 SASR 429. The Court said at 440 [47]:
“In the circumstances now prevailing, it would seem that in the ordinary case of a single serious criminal trespass in a place of residence, where the intention upon entry is larceny generally, a penalty for a first offence must now be in the order of 20-24 months where a plea of guilty is involved, with serious consideration being given to suspension in the case of a first offender. Relevant factors will include the nature and circumstances of the trespass and the impact of the entry on the victim.”
The serious criminal trespass in this case, standing alone, fits that description. Given the appellant’s past history of minor offending and the damage caused to the premises, the component of the penalty for that offence, standing alone, would be appropriately assessed at approximately two years imprisonment.
The larceny was serious and had an understandably significant effect on the victims. The number of items taken was large and must have taken some time to remove. However, much of the property was recovered, some in a damaged condition, from the house in which the appellant and his then partner were living until the day of his arrest. The sentencing Judge acceded to a submission that the appellant did not profit from his offending. I would view such a submission with some cynicism given that, at the time of the offence the appellant was addicted to heroin, that appears to have been the only motivation for the offence, and there was a period of four and a half months between the offence and the appellant’s arrest, during which his addiction and his then drug-related relationship continued. He may not have been aware of what happened to the goods or their proceeds of sale. I find it hard to accept that he was not a beneficiary of the proceeds, at least to some extent.
However, the starting point adopted by the sentencing Judge for the combined penalty was five years imprisonment. Assuming a pre-discounted figure of two and a half years for the serious criminal trespass, that allows a starting point, on the sentence imposed, of two and a half years for the larceny also. In my opinion, both those starting points are too high.
Notwithstanding the seriousness of the offending, these two offences were the first serious offences of the appellant, and this will be the first sentence of imprisonment for him. Whilst drug addiction is no excuse for crime it is a powerful driver, when reason and judgment give way to craving. The sentence must also reflect the prospects of rehabilitation of the appellant. In my opinion, the sentencing Judge erred in fixing a combined penalty of four years imprisonment.
After making the allowance for the pleas of guilty that the sentencing Judge did, I would fix a combined penalty of three years imprisonment for both offences. I would fix a non-parole period of 18 months. However, given my conclusion as to suspension of the sentence and the fact that the appellant has now served almost three months of the sentence, some further adjustments will be necessary.
I turn to the question of suspension. The High Court has made it clear that, in the exercise of a statutory discretion to suspend the sentence, such as that conferred by s 38 of the Criminal Law (Sentencing) Act 1988, the same considerations that are relevant for the imposition of a term of imprisonment must be revisited in determining whether to suspend that term: Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at 348 [85], with whom Gaudron and Gummow JJ agreed at 330 [26].
The sentencing Judge recognised that, by requiring an immediate custodial sentence, the Court might be undoing the good work that the appellant had undertaken of his own volition towards his rehabilitation. However, his Honour considered that the offending was “too serious” to warrant suspension. He had earlier made reference to the importance in this case not only of general but also of personal deterrence.
This is a case where there is an obvious tension between, on the one hand, a justified community condemnation of such home invasions and the substantial personal violation and emotional stress of the victims and, on the other hand, an appreciation of the causes of the appellant’s offending and the need to encourage reform and rehabilitation where there are genuine and demonstrable prospects of success.
By imposing a sentence of imprisonment, the Court is being faithful to the requirements of s 11(1)(b) of the Criminal Law (Sentencing) Act. A sentence of imprisonment is necessary to give proper effect to the primary policy of the criminal law stated in s 10(2) of the Act, namely to protect the security of the lawful occupants of the home from intruders.
For the appellant, it is his first offence of this nature and his first sentence of imprisonment. Consistent with what was said by this Court in R v Delphin (supra), suspension on appropriate conditions must be seriously considered.
General deterrence from this type of offending is important and must be maintained by the Courts imposing a sentence appropriate to the crime. That is achieved, in this case, by imposing an appropriate sentence of imprisonment, whether or not that sentence is suspended for reasons personal to the appellant. Although some may think that a suspended sentence is no sentence at all, that is not the view of this Court. I would respectfully endorse what Bray CJ said, with the concurrence of Bright and Zelling JJ in Elliott v Harris (No. 2) (1976) 13 SASR 516 at 527:
“So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.”
However, in my opinion, the sentencing Judge placed undue weight on personal deterrence of the appellant and on the seriousness of the offending. To some extent that is evident from the view I have already expressed as to the severity of the head sentence. There are unusual factors personal to the appellant which must be brought into account and be balanced against those factors. These were given insufficient weight by the sentencing Judge.
There can be no doubt that the appellant’s offending was driven by his drug addiction. That, in turn, appears to have been induced by an untreated clinical depression associated with his father’s death. It would appear that the appellant, as a result of the crisis in his most recent relationship and his arrest for this offence, has reached a watershed in his life. Not only has he now acknowledged his past slavery to drugs for which he has had appropriate and so far successful treatment, but he has also had treatment for his underlying depression. He has made a genuine attempt to address his problems. In that regard he has had and has been prepared to accept support from a number of community organisations and members of his family. He has demonstrated commendable progress. However, the road to non-dependence on drugs from a life of dependence is a rocky one. So far, to his credit, he has managed to stay on it but he is not yet at the end of that road. In those circumstances an immediate custodial sentence will do little to the deter the appellant from offending again. It may well have the reverse effect. If his long term rehabilitation is to be successful, he will continue to need access to and will depend upon the support facilities to which I have referred. They are not accessible in the prison system. The undisputed evidence from Dr White is that imprisonment may have a significant negative effect on his rehabilitation.
In Vartzokas v Zanker (1989) 51 SASR 277 King CJ, with whom Bollen J agreed said at 279:
“Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community. Very often a person who is not disadvantaged and whose character has been formed by a good upbringing, but who has lapsed into criminal behaviour, will be a good subject for rehabilitative measures precisely because he possesses the physical and mental qualities and, by reason of his upbringing, the potential moral fibre to provide a sound basis for rehabilitation. It would be a great mistake to put considerations of rehabilitation aside in fashioning a sentence for such a person.”
The appellant has demonstrated by his past dedication to mature age study followed by a period of stable employment that he has the necessary qualities to start again.
If the appellant is given and accepts the opportunity afforded to him by a suspended sentence not only does he have a real chance of becoming, once more, a responsible and useful member of society but the community is spared the cost of maintaining him in custody for no apparent benefit, and many members of the community may well be spared the occasion of becoming further victims of his crimes.
For all these reasons I consider that the factors favouring suspension, in the unusual circumstances of this case, outweighed other factors against suspension.
However, suspension of the sentence, if it is to be effective, will require continued dedication by the appellant and appropriate supervision if it is to succeed. This will need to be reflected in any conditions of the bond. The appellant must realise that, if there is a breach of any condition of the bond which he might enter into, he will remain liable to serve the sentence imposed.
Because the appellant has now spent three months in custody, that must be brought into account in the order now to be made.
I would allow the appeal. I would set aside the sentence imposed by the District Court on 22 May 2003. In lieu thereof I would now impose a sentence of two years and six months imprisonment with a non-parole period of 15 months, the head sentence and non-parole period to commence from today. I would suspend the sentence upon the appellant entering into a bond in the sum of $200. The conditions of the bond should ensure, as far as possible, his continued rehabilitation, and should include a substantial period of community service. I would propose the following conditions:
1.That the appellant be of good behaviour for a period of two years and six months, and comply with all the other conditions of the bond.
2.That the appellant be under the supervision of a Community Corrections Officer for the same period and obey the lawful directions given to him by the Community Corrections Officer to whom he is assigned for the purposes of supervision.
3.That the appellant report within two working days of having signed the bond at the offices of the Department for Correctional Services at the Courts Unit, Adelaide Magistrates Court Building, 1 Angas Street, Adelaide.
4.That the appellant attend for assessment and treatment, including psychiatric assessment and treatment, at such premises of the Drug and Alcohol Services Council or with such other person or body as may be directed from time to time by his Community Corrections Officer.
5.That the appellant undertake such treatment, including medical and psychiatric treatment, as may be recommended by a person or by the Director or his nominee of a body to whom the appellant is referred in accordance with paragraph 4.
6.That the appellant undertake, within a period of 18 months from the date of signing the bond, 200 hours of community service and obey the lawful directions of the Community Corrections Officer to whom he is assigned for the purposes of community service.
BESANKO J. I agree with the orders proposed by Bleby J and with his reasons for those orders.
SULAN J I agree with the reasons of Bleby J. I would allow the appeal and substitute the sentence proposed by Bleby J.

[2003] SASC 287

22 August 2003