R v Richards
[2006] SASC 60
•3 March 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v RICHARDS
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Sulan)
3 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
Appeal against sentence - appellant convicted by jury of aggravated serious criminal trespass in a place of residence and theft - house unoccupied at the time of offence - $33,000 worth of property taken - appellant sentenced to six years imprisonment with a non-parole period of three years - whether sentence manifestly excessive - whether good reason exists to suspend the sentence - appeal allowed - sentence of the District Court set aside - taking into consideration the time spent in custody, appellant sentenced to three years nine months imprisonment with a non-parole period of one year nine months, suspended for a period of two years.
Criminal Law Consolidation Act 1935 s 168, s 170, s 170(2), s 134(1); Criminal Law (Sentencing) Act 1988 s 10(1)(n), s 38; Offenders Probation Act 1981 s 4(2a); Summary Procedure Act 1921 s 5(3)(a)(iii)(D), referred to.
R v Amuso (1987) 138 LSJS 53, distinguished.
Bates v Police (1997) 70 SASR 66; Neill v Police [1999] SASC 270; R v Carpienteri (2001) 81 SASR 164; R v Delphin (2001) 79 SASR 429; R v Fowler [2006] SASC 18; R v Machtas (1992) 62 A Crim R 179; R v Osenkowski (1982) 30 SASR 212; R v Penno (2004) 236 LSJS 457; R v Staker [2001] SASC 266; R v Wirth (1976) 14 SASR 291; Vartzokas v Zanker (1989) 51 SASR 277, considered.
R v RICHARDS
[2006] SASC 60Court of Criminal Appeal: Doyle CJ, Nyland and Sulan JJ
DOYLE CJ: I have had the advantage of considering the reasons of Sulan J.
I agree with him that the sentence imposed by the District Court is excessive, and that this court should re‑sentence Mr Richards. I agree in substance with his reasons for so deciding.
Although I regard the sentence proposed by Sulan J as merciful, I recognise the force of the mitigating circumstances upon which he relies. Accordingly, I agree that a head sentence of imprisonment for three years nine months, and a non-parole period of one year nine months, is an appropriate sentence. It should be noted that but for the time that Mr Richards has spent in custody, the head sentence and non-parole period would have been three months longer.
However, I do not agree that the sentence should be suspended. Once again, I acknowledge the weight of the factors identified by Sulan J as supporting an order that the sentence be suspended. But I consider that the prevalence of the offence, its impact on the community, and Parliament’s approach to the seriousness of the offence, outweigh the interests of compassion and rehabilitation. That is not to say that a suspended sentence will never be appropriate for offences of the kind now before the Court. My conclusion is that these other factors outweigh the public interest in Mr Richard’s rehabilitation, substantial as that public interest is.
NYLAND J: I have read the reasons of Sulan J.
I agree that the sentence imposed in the District Court was manifestly excessive for the reasons expressed by Sulan J and I agree with the sentence proposed by him.
Although this was a serious crime, I agree with Sulan J that there are a number of mitigating circumstances. The appellant’s spate of offending occurred during a discrete period of his life when he was suffering from drug addiction following the break-up of his marriage. Since that time the appellant has made substantial progress towards his rehabilitation. Of particular significance is the appellant’s need to care for his son who has specific behavioural problems which were documented in a report provided to the court. Taking into account all the circumstances I agree with Sulan J that this is a case in which the rehabilitation of the appellant should be encouraged and that there is good reason to suspend the sentence. I therefore agree with the orders proposed by Sulan J.
SULAN J: The appellant, Mark James Richards, was convicted by a jury of aggravated serious criminal trespass in a place of residence, contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (“CLCA”), and theft, contrary to s 134(1) of the CLCA. The maximum penalty for aggravated serious criminal trespass in a place of residence is life imprisonment, and for theft ten years imprisonment. The property taken exceeded $30,000 in value. As a consequence, the offence is a major indictable offence.[1]
[1] Summary Procedure Act 1921, s 5(3)(a)(iii)(D).
On 21 December 2005, the appellant was sentenced to six years imprisonment with a non-parole period of three years, the sentence to commence on 8 December 2005 when he was taken into custody. He has appealed against the severity of the sentence.
The grounds of appeal are that the sentence, in all the circumstances, was manifestly excessive and that the sentencing judge erred in failing to find good reason to suspend the sentence.
Factual background
The circumstances of the offending were that on the afternoon of Sunday, 6 July 2003, the sole occupier of a house at 33 Leader Street, Goodwood, left his home locked and secured to go to a barbeque. He returned shortly after midnight to discover that a person or persons had broken into his home. Entry had been gained at the back of the house, and a considerable amount of damage had been done. A large quantity of furniture and electrical goods, together with items of the occupant’s clothing, had been removed from the house. The value of the property stolen was approximately $33,000.
When police investigated, they found the appellant’s fingerprints on items of broken glass and on a door. He was interviewed by the police on 16 August 2003. DNA of another person, to whom I shall refer as ‘S’, was found on an empty carton of iced coffee that had been left at the premises. The appellant and S were arrested and charged. S was not tried at the same time as the appellant, because he had left the jurisdiction. S has since been arrested. At the time that the appellant was sentenced, S had not been tried for the offences.
The appellant pleaded not guilty and, after a three-day trial, he was convicted. During the trial, the appellant gave evidence on oath denying his involvement. The appellant’s evidence was that, at the time of the offence, he was living nearby. He was walking home from the Goodwood Park Hotel when he met a person, Eric, who he had met on prior occasions. Eric asked him if he was interested in buying a laptop computer. The appellant said he possibly was, because his son was about to start high school. He said he went with Eric into the property at 33 Leader Street, Goodwood. Eric entered through the backdoor. The appellant noticed broken glass. It did not occur to him that the property had been broken into. The appellant said that Eric told him that he, Eric, had locked his keys in the house and had to break in. The appellant gave evidence that he was in the back section of the house and, whilst he was there, he picked up some pieces of glass that were lying around. The appellant said he was taken into a room and shown a computer. The price that Eric was demanding was too high, and the appellant then left the house. As he was leaving, the appellant picked up a louvre and slid it into its correct position.
In cross-examination, he agreed that he knew a person by the name of S. He said that S, together with another acquaintance of the accused, had borrowed the appellant’s car some days earlier. He said that S was not at the house when he was there with the man, Eric. He denied having stolen any property, and he denied having broken into the house. Not surprisingly, the appellant was convicted by a jury. During his counsel’s submissions on sentence, the appellant admitted that he was involved in the offending. He expressed remorse for his conduct.
The appellant’s offending caused the occupier of the house stress and anxiety. He was severely inconvenienced and, apart from the tangible property, he lost a great deal of information which he had stored on his computer. As a result, his business was affected. Although the victim was insured, that fact does not mean that no loss was caused by the appellant’s conduct. It is not a mitigating circumstance if a person is insured and, as a result, an insurer, rather than the owner of the goods, will bear the loss. See: R v Machtas.[2] In addition, the owner suffered the personal inconvenience of having to rebuild his business. His home had been invaded, and he suffered stress and anxiety as a consequence.
[2] (1992) 62 A Crim R 179.
Personal circumstances of the appellant
The appellant was born in 1964. He was adopted at a young age. He had a stable upbringing. He is well educated. He studied at the University of South Australia, and graduated with an Advanced Diploma in Audio Engineering. He worked in various businesses. He is also a competent sportsman, having worked as a professional triathlete for about four years.
The appellant’s personal circumstances are unusual for a person convicted of this type of offending. At the time that the appellant was sentenced, he was forty one years of age. His first experience of appearing in a criminal court occurred in June 2000, when he was thirty six. On that occasion, he appeared in the Adelaide Magistrates Court charged with unlawful possession for an offence committed in 1999. He was fined without a conviction being recorded.
On 8 November 2002, he was convicted of receiving which he committed in May 2002. He received a bond to be of good behaviour for twelve months.
On 21 March 2002, the appellant committed offences of non-aggravated serious criminal trespass and larceny. On 13 July 2005, he was convicted of those offences and sentenced to eight months imprisonment, suspended upon him entering into a bond to be of good behaviour for three years.
On 10 December 2002, the appellant committed an offence of unlawful possession. He was convicted and sentenced for that offence in the Adelaide Magistrates Court on 11 July 2005. He was sentenced to two months imprisonment, which was suspended upon him entering into a bond to be of good behaviour for two years. The offence of unlawful possession constituted a breach of the bond that he had entered into on 8 November 2002. In respect of that breach, the bond was estreated. He was also convicted without penalty for failing to comply with a bail agreement.
The offences for which he received suspended sentences of imprisonment occurred before the offences which are the subject of this appeal. Convictions for those offences were recorded in July 2005. They occurred between 21 March 2002 and 6 July 2003. They are relevant when considering the sentence to be imposed for the offences the subject of this appeal. However, they are not previous convictions.
Until he was thirty eight, the appellant had lived an almost unblemished life. In a period of about twelve months, he engaged in a series of criminal offences of dishonesty. The conduct was out of character, and can be explained in part by the appellant’s domestic situation at the time.
Some time before the offending, the appellant’s marriage had broken down. The appellant was suffering from depression. He had been prescribed anti-depressant medication.
After his marriage had broken down, the appellant entered into a relationship with a woman who was an amphetamine user. She introduced him to the drug. He became dependent upon amphetamines. It was through his then partner’s drug connections and his drug use that he became associated with other drug users and suppliers, a number of whom had criminal convictions. The appellant’s relationship with this woman ceased in 2002.
The appellant’s offending was committed together with S, who has a significant criminal record. The appellant became associated with S, and others who had criminal backgrounds, when he began using illicit drugs. He felt intimidated by S and others with whom he was associating. He does not suggest that he was acting under duress, but it is a factor which, in some way, explains his criminal conduct. At the time of this offending, the appellant was under the influence of both methylamphetamine and xanax, a drug which had been prescribed to him by his medical practitioner for anxiety. The combination of the two drugs led to periods of intoxication and impaired judgment.
Since this offending, the appellant has ceased using amphetamines. He no longer associates with those with whom he was associating at the time that these offences were committed. The offending occurred during a period of his life when his life had spiralled out of control, partly due to his broken marriage and partly due to his drug abuse.
A further matter relevant to sentence is that his son from his marriage suffers from a mental disorder and behavioural problems, which require both professional attention and close parental guidance. At the time that he was sentenced, the appellant had been the custodial parent of his son, who had become very dependent upon the appellant for support. The assessment of a senior social worker of the Child Youth and Women’s Health Service was that it was unsafe for the boy’s sister and mother for the son to live with them. The appellant and his son had developed a close relationship, which had assisted with the boy’s behavioural problems. As a result of the appellant’s incarceration, other arrangements have had to be made for his son’s management. There was no material before the sentencing Judge about how the family would deal with the situation if the appellant was imprisoned. The effect that a custodial sentence would have upon the appellant’s son was never made clear to the sentencing Judge. There was insufficient material before the Judge to inform him of future plans for the boy.
At the time that the appellant was sentenced, he had developed a business with a business partner in the area of electro-mechanical systems for use within the home.
The sentencing Judge was provided with a report of a clinical forensic psychologist, Dr Allen Fugler. He reported that the appellant appeared to have gone through a period when he was using drugs and associating with other drug users when he was involved in his offending. Mr Fugler was of the opinion that the appellant had learned from the experience, and had ceased using drugs. He had not offended since 2003. Since that time, he had re-established himself as a useful member of society, and was performing parental duties in a responsible and caring manner. Mr Fugler believed that the appellant was remorseful, and that he had made significant strides towards rehabilitating himself.
It is unclear why it took nearly two years before the matter came to trial. The Court was informed that the appellant was not responsible for the delay.
Aggravated serious criminal trespass in a place of residence
As the Court observed in R v Delphin,[3] the offences of serious criminal trespass and aggravated serious criminal trespass were created by amendment to the CLCA, taking effect on 25 December 1999.
[3] (2001) 79 SASR 429.
The background to the amendment was that there had been concerns expressed in the community about what was known as ‘home invasion’. When the legislation was introduced into the Legislative Council,[4] the Attorney-General said:
[4] South Australia, Parliamentary Debates, Legislative Council, 28 October 1999, 271-274, The Hon. K.T. Griffin.
There has been a great deal of attention given to the problem of what is popularly known as ‘home invasion’ occurring in South Australia in 1998 and 1999. There has in that period been what appears to be an escalating pattern of crimes reported and discussed in the media as ‘home invasions’. These might generally be described as criminal incidents in which intruders force entry into an occupied dwelling and then commit one or more further crimes in the dwelling when occupants are lawfully present and particularly when those offences are committed against those occupants personally. It is difficult to be more precise than that general description because, at the margins, what is and what is not ‘home invasion’ is difficult to define.[5]
[5] South Australia, Parliamentary Debates, Legislative Council, 28 October 1999, 271, The Hon. K.T. Griffin.
He referred to a study of the Office of Crime Statistics, which concluded:
‘In summary, ‘home invasion’ seems to be understood, at the very least, as an incident involving unlawful entry into a house with intent to commit a crime, when the occupants are at home. Most references to ‘home invasion’ also include one or both of the following elements:
·some type of confrontation between offender(s) and occupant(s), involving violence (or the threat of violence) against the occupants; and
·removal (or attempted removal) of property from the home.
In addition, there appears to be a general public perception that ‘home invasion’ involves an intruder who is not known to the victim.’.[6]
[6] South Australia, Parliamentary Debates, Legislative Council, 28 October 1999, 271, The Hon. K.T. Griffin.
It was against this background that the legislation was amended. Section 170 of the CLCA now provides as follows:
(1) A person who commits a serious criminal trespass in a place of residence is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.(2) A person who commits a serious criminal trespass in a place of residence is guilty of an aggravated offence if –
(a)the person has, when committing the trespass, an offensive weapon in his or her possession; or
(b)the person commits the trespass in company with one or more other persons; or
(c)another person is lawfully present in the place and the person knows of the other’s presence or is reckless about whether anyone is in the place.
Maximum penalty: Imprisonment for life.
(3)In this section –
“place of residence” means a building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel, used as a place of residence.
Serious criminal trespass is defined in s 168, which provides:
(1)For the purposes of this Act, a person commits a serious criminal trespass if the person enters or remains in a place (other than a place that is open to the public) as a trespasser with the intention of committing an offence to which this section applies.
(2) A place is to be regarded as open to the public if the public is admitted even though –
(a) a charge is made for admission; or
(b) the occupier limits the purposes for which a person may enter or remain in the place by express or implied terms of a public invitation.
(3) A person who enters or remains in a place with the consent of the occupier is not to be regarded as a trespasser unless that consent was obtained by –
(a) force; or
(b) a threat; or
(c) an act of deception.
(4) A reference in this section to the occupier of a place extends to any person entitled to control access to the place.
These sections replaced the previous provisions of breaking and entering and larceny and burglary. As can be observed, the provision went further than what was defined as ‘home invasion’, as it also dealt with offences of breaking and entering into premises when the premises are unoccupied.
The offence with which the appellant was convicted is aggravated, because at the time that the offence was committed he was in company of another person. The house was unoccupied at the time and there was no confrontation between the offenders and any person in the home. I regard the offence as in the less serious category of aggravated serious criminal trespass. No person was confronted. No person was put in fear, and there was never an intention to confront or threaten or commit personal violence upon an occupant of the premises.
Was the sentence manifestly excessive?
The sentencing Judge treated the aggravated serious criminal trespass in a place of residence and the theft as one course of conduct. He described the offending as extremely serious. In support of that conclusion, he referred to the value of the property stolen and the gross violation of the victim’s rights. Given the large quantity of property stolen, it would have been necessary for the offenders to use a vehicle to carry the goods away. Some planning must have occurred. The sentencing Judge was correct in describing the offending as premeditated.
In describing the crimes as merciless, the Judge must have had in mind the quantity and the nature of the property stolen. As he observed, there was a large quantity of property stolen, including personal items of clothing. The victim was left with very little after the thieves had taken property from the house. The victim not only suffered from the loss of his property, but his business also suffered. It was never the prosecution case that the appellant or his co-offender knew that, in taking the victim’s computer equipment, it would affect the victim’s business.
Conduct which amounts to aggravated serious criminal trespass in a place of residence is extremely varied. For example, at one end of the scale, it can amount to a simple breaking and entering with intent to steal in the company of another person. At the other extreme, it can be a number of persons breaking into premises which they know are occupied, with the intention of assaulting or sexually assaulting occupants in the house. There can be no identified standard or range of penalties for this type of offending. See: R v Staker.[7]
[7] [2001] SASC 266.
Any criminal trespass in a place of residence is a violation of the victim’s rights. Occupants whose properties are broken into naturally feel that their privacy has been invaded. The thought of a stranger being in a person’s home searching through personal items is distressing for any victim.
When considered against other similar offences of this type, apart from the value of the property taken, there is nothing exceptional which places this offending in the more serious category of aggravated serious criminal trespass in a place of residence and theft.
As to the personal circumstances of the appellant, the sentencing Judge observed that the offending was aggravated by the fact that when the appellant committed the offences he was on bail on a charge of serious criminal trespass for which he had been arrested on 15 December 2002, and on bail for an offence of unlawful possession for which he had been arrested on 18 March 2003. He was also in breach of a bond which he had entered into on 8 November 2004 for the offence of receiving that he had committed on 2 May 2002. The sentencing Judge did not treat the convictions on 11 July and 13 July 2005 as prior convictions. The offences, although not prior convictions, were relevant. It is significant, however, that the offences for which the appellant received suspended sentences were committed when the appellant was abusing drugs. He was associating with others who abused drugs and who had criminal backgrounds.
The offences occurred when the appellant was separated from his family during a period when he was suffering from depression and taking prescribed medication, as well as using amphetamines. He had been introduced into that scene when he commenced a relationship with a woman who used amphetamines. The appellant’s life was out of control.
At the time of sentence, his only previous conviction for dishonesty was a receiving offence committed in May 2002 for which he had received a bond on 8 November 2002.
The sentencing Judge observed that the appellant had ceased using drugs. He had ceased his association with those with whom he had been associating at the time that he committed the offences. He had taken other steps towards his rehabilitation, including commencing a business project with a business partner, returning to athletics training, and taking upon himself family responsibilities. Over the two years prior to being sentenced, the appellant had become the principal carer for his son, who suffered a number of psychological problems and who had been unable to live with his mother and his sister. The appellant’s son had problems adjusting to school and had been taken out of school. He had been living with the appellant, and had become dependent upon him.
The sentencing Judge referred to the effect that an immediate custodial sentence would have upon the appellant’s son. A report of a senior social worker observed that the appellant and his son shared a close understanding of each other. The appellant was assisting his son to develop ways of managing his anxiety and depression.
Section 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (“CLSA”) provides that a court, in determining the sentence for an offender, should have regard inter alia to the probable effect any sentence would have on dependents of the defendant.
It is well-recognised that some degree of hardship will invariably be suffered by dependents of a defendant who is imprisoned. In R v Wirth,[8] Wells J referred to the common law principle when considering hardship to dependents. He said:
The argument thus presented to us raises the following question: When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence?
…
Hardship to spouse, family and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court … It seems to me that courts would often do less than their clear duty – especially, where the element of retribution, deterrenct [sic], or protection of society is the predominant consideration – if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so … For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steely-hearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go.[9]
[8] (1976) 14 SASR 291.
[9] (1976) 14 SASR 291 at 295-6.
Doyle CJ also considered the principle in R v Carpienteri,[10] when he said:
… However, the effect of the cases referred to is that ordinarily hardship to a defendant will not be a reason to mitigate or reduce a penalty, but in exceptional cases that hardship may be a reason to do so. I consider that Perry J accurately summarised the position in Bates v Police (1997) 70 SASR 66 at 69, where after considering what this Court said in Adami he said:
“Properly understood, I do not think that the explanation of the principle which appears in that passage [from Adami] is at odds with s 10(n) of the Sentencing Act. Although regard will be had in all cases to the effect of the imposition of a custodial sentence on dependants of the defendant, it will only have a significant effect on penalty if the effect which it has in that respect in the particular case is out of the ordinary.”
That is the approach that I would take in this case.[11]
[10] (2001) 81 SASR 164.
[11] (2001) 81 SASR 164 at 168.
See also R v Penno,[12] Bates v Police,[13] and Neill v Police.[14]
[12] (2004) 236 LSJS 457.
[13] (1997) 70 SASR 66.
[14] [1999] SASC 270.
The effect that an immediate custodial sentence will have upon the appellant’s son and the difficulty that will be faced by other members of the family who will bear the full burden of looking after the appellant’s son, is a relevant factor to be taken into account. The weight to be given to it when determining the sentence will depend on the circumstances of the case.
The offending in this case was not dissimilar to the serious criminal trespass in Delphin. In that case, the circumstances of aggravation were that the trespass was committed in company with another person. Less property was taken in the case of Delphin. In that case, the offender had a poor record of many burglary, theft and other offences of dishonesty spanning a period of over sixteen years. At the time of the offending, he was on a bond which he had breached. The Court considered that, in view of his antecedents, an appropriate starting point for the offence of aggravated serious criminal trespass was three years. It is to be noted that, in this case, the appellant had no relevant prior convictions. A starting point of two years six months for the aggravated serious criminal trespass is within the range of penalties in the circumstances. It is then necessary to take into account the theft. The offence of theft is serious because of the amount of property that was stolen. It is a major indictable offence. The property has not been recovered.
I consider the head sentence of six years imprisonment, in the case of a person with the appellant’s antecedents, is manifestly excessive. The sentencing Judge placed undue weight on the seriousness of the offending and upon deterrence. The severity of the sentence is such that it demonstrates error.
Applying s 18A of the CLSA, I consider a head sentence of four years is appropriate. I would impose a non-parole period of two years imprisonment.
Should the sentence have been suspended?
It was urged upon the sentencing Judge that he should suspend the sentence. The Judge was asked to have regard to all the factors personal to the appellant, to which I have earlier referred. Particular significance was placed upon the appellant having taken significant steps towards his own rehabilitation. Further, the Judge was urged to have regard to the needs of the appellant’s son. It was submitted that an immediate custodial sentence would have a detrimental effect upon his son’s future health.
The sentencing Judge had regard to the submission and concluded:
The predicament that an immediate custodial sentence will cause in relation to your son, whether taken alone or in conjunction with the other matters put in support of suspension, is not sufficient to justify the court in suspending this sentence. All these matters can properly be reflected in setting a shorter than usual nonparole period.[15]
[15] Sentencing Remarks at 7-8.
Counsel submitted that the sentencing Judge was in error, as he failed to give any or adequate weight to the hardship that would be caused to the dependents of the appellant. In the course of his sentencing remarks, the Judge said:
There is scarcely a case where imprisonment does not cause great hardship to dependents of the prisoner. But the policy of the law is clear: Hardship on dependents is not to be a reason for suspension unless the circumstances are exceptional.[16]
[16] Sentencing Remarks at 7.
The Judge relied upon a decision of this Court in R v Amuso.[17] Mr Amuso was sentenced to two years imprisonment with a non-parole period of fifteen months for an offence of permitting premises to be used for the cultivation of Indian hemp. After he was sentenced, his wife, who was suffering from arthritis and rheumatism, became extremely distressed, resulting in her having to be admitted to hospital. Evidence was received by the Court of Criminal Appeal that, as a consequence of her husband’s incarceration, Mrs Amuso had suffered anxiety and depression. There was medical evidence that the conventional therapy for her conditions of arthritis and rheumatism were less effective because of her anxiety and her depressive state, which made her less responsive to her usual medication.
[17] (1987) 138 LSJS 53.
The ground of appeal was that the sentence was manifestly excessive. In particular, it was argued that the health of Mr Amuso’s wife, and the consequences to his family, which had arisen since he was sentenced was such that the sentence should be suspended, pursuant to s 4(2a) of the Offenders Probation Act 1981, as amended.
Section 4(2a) provided:
4.(2a) Where a person has been convicted of an offence punishable by imprisonment, and the court is of opinion that, having regard to –
(a)the character, antecedents, age, health or mental condition of the person convicted;
(b)the trivial nature of the offence;
or
(c)any other extenuating circumstances,
it is expedient to exercise the powers conferred upon the court by this subsection, the court may impose a sentence of imprisonment upon the convicted person but suspend the sentence upon condition that the convicted person enters into, and observes the terms and conditions of, a recognizance to be of good behaviour for the term of the recognizance.
Section 4(2a) is in different terms to s 38 of the CLSA, in that, in considering whether to suspend a sentence under s 38, the court is required to have regard to all relevant factors and determine whether good reason exists to suspend the sentence. The Offenders Probation Act provision required the court to have regard to specific characteristics of the defendant, the nature of the offence, or any other extenuating circumstances, and then to consider whether it was expedient to exercise the court’s power to suspend a sentence.
Section 38(1) of the CLSA provides:
Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond – (a) to be of good behaviour; and (b) to comply with other conditions (if any) of the bond.
The application of s 38 was recently considered in the case of R v Fowler.[18] In that case Perry J referred to the joint judgment of Gray and Layton JJ and said:
[18] [2006] SASC 18.
I agree with the comments of Gray and Layton JJ to the effect that the test for suspension is as prescribed in the statute, namely, whether the court “thinks that good reason exists for doing so”.
With respect to them, I do not consider that Doyle CJ in Manglesdorf meant to suggest otherwise. I do not think that there was an “exceptional circumstances” test as discussed in Manglesdorf.
Neither do I agree that Doyle CJ is [sic] Gjoka “qualified” his remarks in Manglesdorf. Rather, he simply explained that it was wrong to interpret his comments in Manglesdorf as suggesting a test of “exceptional circumstances”. The test is whether there is “good reason” to suspend.
Doyle CJ made it clear in Gjoka, that that is the only test.
But the question whether “good reason” exists, is not to be considered in the abstract, divorced from the other circumstances of the case. Those circumstances include the objective seriousness of the offending.[19]
[19] [2006] SASC 18 at [29]-[33].
He went on to say:
To approach the matter with such considerations in mind, in no way subverts the statutory test. It is to do no more than make the essentially pragmatic observation that there is a class of offending which is so serious, that suspension of the sentence in cases falling within the class, is unlikely to be justified often.
There is not an “exceptional circumstances” test “as discussed in Manglesdorf”. There is only one test. But in the case of certain serious categories of offending, its successful application in favour of the defendant will be uncommon. A sentencing court does not fall into error, if it recognises the practical reality of that observation.[20]
Gray and Layton JJ said:
The correct test to be applied by a sentencing judge when considering whether or not to suspend a sentence of imprisonment has been discussed in a number of recent decisions.
There is a substantial and important difference between the “exceptional circumstances” test as discussed in Manglesdorf and the “good reason” test to draw from the wording of the statute. The “good reason” test established by the legislature requires the sentencing judge to consider all of the circumstances of the instant case and make an assessment as to whether those circumstances give rise to good reason to suspend the sentence.[21]
Later they said:
The test for suspension established by the legislature is whether, in the discretion of the court, good reason exists to suspend. This is the test to be applied by a sentencing judge in the exercise of the discretion to suspend a sentence of imprisonment. To state that, in addition to there being good reason to suspend, a case must also be rare or exceptional before suspension will be justified is to add a gloss to the words of the statute.[22]
[20] [2006] SASC 18 at [36].
[21] [2006] SASC 18 at [53]-[54].
[22] [2006] SASC 18 at [58].
Section 38 requires the Court to have regard to all factors relevant to whether good reason exists to suspend a sentence. The effect on dependents, exceptional or otherwise, will always be relevant to whether good reason exists. It can never be regarded as irrelevant, and it can never be totally discounted. It is a question of weight that a court will give to each relevant factor. That will depend on the circumstances in each case.
Insofar as Amuso’s case is authority for the proposition that no relevance can be given to the effect a custodial sentence will have upon dependents, when considering whether to suspend the sentence, unless the circumstances are exceptional, I consider it to be distinguishable.
In his concluding remarks, the sentencing Judge made specific reference to the effect that the custodial sentence will have upon the appellant’s son. In my view, when read as a whole, the sentencing Judge did have regard to all relevant factors.
Counsel for the Crown submitted that no error had been demonstrated, and this Court should not interfere with the exercise of the Judge’s discretion not to suspend.
It is unnecessary to determine that question because, having concluded that the sentence was manifestly excessive, it falls upon this Court to impose a sentence. That includes consideration of whether good reason exists to suspend the sentence. This Court is required to exercise the discretion afresh.
In the case of aggravated serious criminal trespass in a place of residence and theft, where the property taken was substantial, as in this case, and there has been no restitution, suspension of a sentence of imprisonment would be rare. There are factors in this case which distinguish it from many other cases. In particular, I have had regard to the fact that the appellant led a law‑abiding life until he was thirty eight years of age. His offending occurred over a period when his life was out of control. Since that time, he has taken significant steps, and he now appears to be in control of his life. He has ceased his abuse of drugs. Until he was imprisoned, he had returned to a lifestyle where he is engaged in sport and in work. He had been looking after his emotionally disturbed son, and had developed a relationship with the boy, which demonstrates that he had taken significant steps towards his rehabilitation.
The appellant has demonstrated over two years that he is well advanced in rehabilitating himself. The remarks of King CJ in Vartzokas v Zanker[23] are apposite:
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.[24]
[23] (1989) 51 SASR 277.
[24] (1989) 51 SASR 277 at 279.
King CJ observed in R v Osenkowski[25] that there is always a place for the exercise of mercy and leniency when a judge forms the view, almost intuitively, that leniency may lead to reform.
[25] (1982) 30 SASR 212.
I consider this is a case in which the Court should encourage the appellant to continue his rehabilitation. Given his previous good character, it is unlikely that he will re-offend again. If he maintains his current lifestyle, there is good reason to be confident that, as before, he will positively contribute to society. I consider good reason exists to suspend the sentence.
I take into account that the appellant has been in custody for approximately three months. I therefore deduct that period from the head sentence and the non‑parole period.
I would allow the appeal and set aside the sentence, and order that the appellant be imprisoned for three years nine months. I would impose a non‑parole period of one year nine months imprisonment, and I would suspend the sentence upon the appellant entering into a bond in the sum of $200 to be of good behaviour for two years, and to be under the supervision of a Community Corrections Officer for nine months.
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