R v Silins No. Sccrm-03-203

[2003] SASC 369

R v. SILINS
[2003] SASC 369

Court of Criminal Appeal:  Perry, Mullighan and Besanko JJ

1. MULLIGHAN J                 The applicant seeks leave to appeal against the sentence of imprisonment for three years with a non-parole period of two years to commence on 3 July 2003 imposed for one count of aggravated serious criminal trespass in a non-residential building and one count of larceny.

2. These offences were committed in the early hours of the morning of 28 March 2002. The applicant and another person entered the workshop of his former employer and stole power tools and other equipment to the value of about $23,000. These crimes have caused substantial loss to the former employer. Items to the value of $11,905 have been recovered.

3. The applicant was apprehended about two weeks after the offences when he was attempting to sell one item of the stolen property at a warehouse. He made a full confession to the police and pleaded guilty to both charges.

4. The applicant was aged 31 years at the time of sentencing and has a young child who is aged 7 and a half years. He qualified as a fitter, turner and a boilermaker after leaving school in 1987 and has been employed in various jobs since that time.

5. At the time of the offences, he claims to have been addicted to alcohol, cannabis and amphetamines, and that claim was accepted by the learned Sentencing Judge. After his arrest, he undertook a 10 week rehabilitation program, and the learned Sentencing Judge accepted that he had been free of drugs and alcohol after the completion of the course.

6. He has been a major carer for his child, as the mother of the child went to live interstate some years ago.

7. He has a significant record of past offending, having committed a number of offences commencing in 1987 until 1998. Most of these offences involve dishonesty and there are some of which I call street offences. He was sentenced to imprisonment in 1989 on convictions for illegal use of motor vehicles and that total sentence of six months was suspended. He was sent to prison in 1994 for six months with respect to false pretences offences and an offence that was described in his record as a breach of a bond. In 1998 he committed what I call street offences, and was sentenced to imprisonment for one month, which sentence was suspended.

8. It may be seen from his record that he committed most of his offences before he was about 21 years of age and has committed relatively few offences since that time.

9. The offences that are the subject of the sentence relating to this appeal are undoubtedly serious breaches of the criminal law. The learned Sentencing Judge correctly concluded that the appellant had planned the crimes and was able to execute them because he had previously worked at the premises.

10. Even allowing for the drug dependency of the applicant, the head sentence, in my view, was well within the proper exercise of the sentencing discretion. It could not be regarded as manifestly excessive. The learned Sentencing Judge had a discretion as to whether to suspend the sentence and he declined to do so. In my view, that approach taken by the Sentencing Judge was also within the proper exercise of the sentencing discretion.

11. The applicant wrote a letter, which he says was not placed before the Sentencing Judge, in which he expressed his remorse and contrition. I mention that he pleaded guilty to these offences at an early time. The learned Sentencing Judge accepted that he was remorseful and contrite and he took those matters into account when exercising his sentencing discretion.

12. I have formed the view that the sentencing discretion miscarried in the context of the non-parole period. Given the applicant’s responsibility for his child, the fact that his mother, one of the care givers, is incapacitated, it is incumbent upon us to have regard to the child as a dependant of the applicant.

13. The completion of the rehabilitation program is another matter which points significantly towards successful rehabilitation.

14. At the conclusion of hearing the argument on the application for leave, the applicant indicated that he was willing for us to dispose of the appeal as we were minded to grant leave, and Mr Heffernan, who appears for the Prosecution, does not oppose that course.

15. In my view, the learned Sentencing Judge did not give adequate weight to the following matters when he fixed the non-parole period. Most of the offending of the applicant occurred some considerable time ago. Whilst the learned Sentencing Judge took into account the successful rehabilitation from drugs and alcohol, that is a matter which ought to, in my view, have played a greater role in fixing the non-parole period. Lastly, I think the learned Sentencing Judge has not given adequate weight to the applicant’s role in the upbringing of his child.

16. I would reduce the non-parole period to 18 months which, as I say, is to commence on 3 July 2003, and I would otherwise confirm the sentence.

17. PERRY J:  I agree.

18. BESANKO J:         I also agree.

19. PERRY J:  The order of the court will be then that there be leave to appeal as sought; that the appeal be allowed to the intent that the non-parole period be reduced to 18 months; and that, otherwise, the sentence under appeal is to stand according to its terms.