R v Slade No. DCCRM-03-61

R V ALAN PAUL SLADE
[2003] SADC 48
Judge Muecke
Criminal

At about 1.00 pm on Thursday 12 September 2002 two men were seen breaking a window of and entering residential premises at Northolt Road, Osborne. The two men left the premises by jumping the back fence. A short time later, and nearby, police arrested the defendant in the front yard of residential premises at Medina Street, Osborne.
The defendant was charged with an aggravated offence of serious criminal trespass in a place of residence, in that he committed the trespass in company with another person. He was also charged with larceny, in that he stole jewellery and cigarettes from the premises at Northolt Road, Osborne. It was alleged that the jewellery and cigarettes were the property of the resident of Northolt Road, Osborne.
On 18 December 2002 the defendant pleaded guilty to these two charges in the Port Adelaide Magistrates Court. He was remanded to 3 February 2003 for sentence in this court. He came before me on Monday 3 February 2003 in the arraignment list. On that day I was informed by his counsel that there was “a remaining small point to do with what was found in the premises” at Northolt Street. Counsel said: “We say we went to get Indian hemp from that premises there, knowing it was there, we saw it there and we found it there. There is evidence to the contrary there was no hemp in the premises on the depositions from the householder ... my instructions are to say to the sentencing judge that we went there with the intention of getting Indian hemp and we remain silent on whether there was anything there or not ... we could proceed to sentence on that basis, even if there is some dispute about what was actually there ...” Counsel for the DPP informed me that his position was that there was no cannabis at the residence. I remanded the matter to Tuesday 25 February 2003.
On the adjourned date the allocutus was given to the defendant. Counsel for the DPP tendered his antecedents. He also tendered a Victim Impact Statement. It had been prepared by the resident of the house at Northolt Road. Certain parts of it were read to the court. The victim was a 59 year old woman at the time her house was broken into by the defendant and another. She wrote that she had received medical treatment for severe trauma and stress as a result of the break-in. She suffered difficulty in sleeping. The Victim Impact Statement contained a copy of a letter from her general practitioner dated 25 September 2002 by which he had referred the victim to a psychologist for severe anxiety. In it he suggested that the victim see a psychologist for counselling. He had prescribed some medication for her.
Following the reading of certain parts of the statement the defendant’s counsel made some submissions. He first dealt with the basis of his client’s plea on two other counts of trespass and larceny in respect of premises he had entered after he left the residence at Northolt Road, Osborne. He then submitted that the accused’s motive for going into the house at Northolt Road was because he had heard from a relative of the woman whose Victim Impact Statement had just been read that she had a large quantity of cannabis in the house, and he believed there was also some money there. The information the defendant had obtained from the relative did not relate to the money, but he had assumed that, because of the quantity of cannabis that the resident was dealing in, there would be money hidden there that he would be able to locate. His client’s choice of that house was because he believed the resident was involved in criminal activities and there was a likelihood of money being found there.
Counsel submitted that a problem arose because it was clear from the deposition of the resident that there was no cannabis there. He submitted that the problem was whether there should be a hearing to determine whether in fact there was cannabis there. He submitted that putting the resident through a hearing would be a waste of the court’s time and would cause her further difficulty and stress unnecessarily.
Counsel informed me that he intended to proceed with his submissions as to sentence on the basis that his client went to the residence with the state of mind he had indicated, without referring to the fact of cannabis being there or not. He submitted that that was not a matter I had to determine. Rather it was the accused’s intention in going to the residence that was important. Counsel submitted that it was important for his submissions because his client’s antecedents indicated a number of breaking-type offences which had always been committed on commercial premises or factories, never on domestic premises. He submitted that his client’s state of mind for going to the premises was important. This was because a distinction should properly be drawn between victims who conduct criminal activities in their houses such that there would likely to be illegal drugs and large amounts of unlawful monies there, and victims who are good citizens and who are not conducting illegal or criminal activities at their houses. He submitted that the home owner in the former category “is aware of the substantially increased risk of someone coming over their back fence, as often is the case, to take their dope plants or to take money which they have in the house. So they expose themselves voluntarily to a situation of increased risk of crime happening to them. There is a difference between that situation and the rest of the community who are honest and law-abiding and are robbed by people who don’t care if they have unlawfully obtained money on the premises or they are just law-abiding citizens. I say that increased risk that a person exposes themselves to is in fact reason for a lesser penalty”.
This exchange then occurred:
HIS HONOUR:  It is not part of your submissions that your client saw cannabis there but you want me to sentence him on the basis that he did?
MR BLEECHMORE: No, that his reason for going there was a well-informed belief that there was cannabis there in fairly large quantities and therefore in his mind some money that was not accounted for in the sense of drug moneys.
HIS HONOUR:  In his mind he was more entitled to break into a house where there was illegal activity going on than where there wasn’t?
MR BLEECHMORE: He would not have gone to a place where there was not illegal activity going on. He was not interested in robbing someone who was a law abiding citizen. The reason he went to this place was because he knew and heard from a member of her family there were unlawful drugs there and, therefore, he thought some moneys.
HIS HONOUR:  Do you want me to sentence him on the basis that he had heard from a member of the family that there were drugs there?
MR BLEECHMORE: Yes.
HIS HONOUR:  Is that right?
MR BLEECHMORE: Yes. The problem we face is I don’t wish to make submissions about what was actually found because we disagree about what was located there. I think that that would lead to a large inquiry including the householder, including this accused giving evidence and possibly the co-accused. I don’t know the co-accused’s position on it. But, if it is so relevant to the question of what discounts should be given or, if a discount should be given at all, then we can undertake such an inquiry. But I don’t think that is fruitful and I am concerned about the householder. Whether or not she had large amounts of cannabis there, going through that inquiry unnecessarily, if your Honour is prepared to accept that as being the position, and to sentence on that basis, there is no need to undertake the second inquiry for the reasons I have just set out.
HIS HONOUR  What basis?
MR BLEECHMORE: The basis is that he went there as a result of information received by a member of her family, being the householder’s family. That there was in fact a large amount of hemp there, a commercial quantity, and he assumed some money that would be easily obtained. I will go to the question of what that money was for and so forth later. That is the basis.
Counsel for the DPP then set out the Director’s position as follows:
MR BARKLAY: Can I set out the director’s position as to what we understood was the basis of the plea? That was: Mr Slade attended there, he had been given information that there was cannabis in the house. He went there to get the drugs and/or money. There wasn’t cannabis there. There wasn’t any money there. When he went to the house that is what he thought would be there. There is no evidence that there has ever been cannabis in that house. In fact, there is a statement on the brief that contradicts that fairly and squarely and I can take your Honour to those sections.
HIS HONOUR: No.
MR BARKLAY: He can be sentenced on the basis that that is what he went there for but he broke into a house, a good citizen’s house, not as my learned friend would submit someone that involved themselves in these type of activities, and stole from an upstanding member of the community.
HIS HONOUR: I don’t understand Mr Bleechmore to say that he wants to have his client sentenced on the basis that the householder was not a good member of the community but on the basis that his client believed her not to be.
MR BARKLAY: Well, if that is the case, I can’t quibble with what was his belief, but I think it has to be borne in mind what the reality was.
After further submissions I indicated that I would hear submissions on the question whether a disputed facts hearing was necessary to resolve whether or not the defendant saw cannabis at the residence when he and his co-defendant entered the house at Northolt Road, Osborne.
I adjourned to hear those submissions on 28 February 2003.
On the adjourned date the attitude of the respective parties had changed somewhat.
Counsel for the accused submitted that his client objected to the accuracy of the contents of the Victim Impact Statement because the contents of it did not accurately reflect the true situation. He submitted that if the defendant could establish that that was the position by proving cannabis was found at the residence then I, as the sentencing judge, should give no weight to the Victim Impact Statement, or alternatively give very little weight to it, or alternatively give weight only to those parts of it that are shown to be accurate. Counsel submitted that, although he could find no authority directly on the point, a person who is carrying on an illegal business in their residence deserves less protection from the law than a law-abiding citizen. That is because a person who is carrying on an unlawful business in their residence would know, by virtue of carrying on that type of business, that the likelihood of something happening in the form of trespass or robbery was much greater because of that. It was submitted, on the other hand, that “the law-abiding citizen should be entitled to the full protection of the law and it would be a mitigating factor, although it’s not an entirely appropriate use of the term ‘mitigation’, but there is an argument for reducing sentence in that compared to the case of the lawful citizen”.
It was submitted that the resident of Northolt Road, Osborne, knowing that she had cannabis there, and having the common knowledge of the community that she has increased the risk of someone coming into her house, is in a different position to the law-abiding citizen who can expect the full protection of the law.
It was further submitted that the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) requires me to consider the effect on the victim. In this case “the impact on the victim would be less because of the nature of what the person is doing on the premises, and what their expectations are and the type of person they purport to be”. It was submitted that in this case “the activity on the premises and the state of mind of the victim might act to mitigate penalty”.
Counsel then submitted that this case had a parallel with provocation cases. He submitted that in this case “we have a similar sort of thing happening because the conduct of the victim in this case not only affects the impact on her but also explains why someone came to her house in the first place”.
Counsel next submitted that the character of the victim was relevant. He referred to some sexual cases. He submitted:
... a prostitute may have more experience in dealing with difficult men or violent men and have rougher circumstances of sexual acts, but that is a factual matter that a judge has got to look at, not because she is a prostitute. For instance, a prostitute may be going home to her family where she doesn’t expect something to happen, is broken into and raped, in that situation in a way she’s never encountered before, would suffer a much greater impact.
The discussion about, if I call it the prostitute rape cases, has resolved, I think quite sensibly, after judicial consideration of it, into that sort of approach. In other words, we look at the case and we see to what extent the occupation and previous sexual history of the person plays in the extent to which she is adversely affected by the incident.
Finally, counsel made submissions concerning victim impact statements generally. He referred to a duty on Prosecutors to make sure that such statements are accurate and that they set out truthfully what the person preparing them believes. If a Prosecutor has any doubts about the contents of the report he or she should say so, and should indicate that the report is not entirely relied on. Counsel submitted that the court has a general and wide discretion to use material in a victim impact statement. A judge may give the statement such weight as may be thought appropriate. The sentencing judge is not constrained in any way by the victim’s view of the appropriate penalty, but rather should have regard to what was the impact to the victim.
Counsel concluded his submissions in this way:
What I do say is that whatever route that we take to arriving at the point that there is a case, whether we take the victim impact study (sic) route or a general principle route or a combination of both, that your Honour, on the statements from the bar table challenging the truthfulness of the report and the basis of the report, if there is, in fact, commercial cannabis on the premises, should open the question to examination if you feel that it’s necessary, and determine whether the victim impact statement is truthful, one, and two, if there were these things going on in the premises which would be on a general principle A, entitled the prisoner to a discount, or acting as a mitigating factor.
Counsel for the DPP submitted that the fact that a person’s house is broken into because someone sells cannabis, or any drug, in their house or has large amounts of cannabis there is not in any way a matter in mitigation of penalty. He submitted that defence submissions based on provocation, and on the sexual cases, have no relevance to the issues in this case. He submitted that defence submissions that because someone may be carrying on an illegal activity then the effect on them is less than the effect on a law-abiding citizen cannot be sustained. He submitted that the Sentencing Act does not contemplate that judges make an assessment as to how they think someone should suffer in a certain situation. He submitted that that was not to say that I did not have a discretion to give such weight as I consider appropriate to the Victim Impact Statement in this case. He submitted, however, that the “fact that someone grows cannabis or has cannabis in the house, doesn’t mean that they can’t be affected by the sanctity of their home being broken into”.
Counsel for the DPP pointed out that the Sentencing Act provides that “A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders” (s 10(2)). The Act provides that imprisonment may only be imposed if such a sentence is necessary to give proper effect to that primary policy (s 11(1)(b)).
Counsel addressed defence submissions to the effect that it somehow mitigates penalty if you break into someone’s house where they are carrying on dealings in drugs. It was submitted that such an approach is, or should be, contrary to public policy. It is not a message the courts should send to the community. If people involve themselves in crime in their own homes, that cannot be a proper basis on which to reduce someone else’s sentence for his criminal activities.
Finally, counsel for the DPP submitted that the fact that such submissions were being made by the defence in the way they were displays a lack of insight by the defendant into his offending and a lack of remorse for it.
At the conclusion of submissions I remanded the matter to 12 March 2003. Prior to that date I informed the parties that I would hear submissions on that day as to the accused’s sentence without having a disputed facts hearing. That occurred and I sentenced the accused this morning. What follows are my reasons for not having a disputed facts hearing.
Section 10(2) of the Sentencing Act provides that a primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders. The defendant was charged with and pleaded guilty to an aggravated form of serious criminal trespass in a place of residence. This offence was enacted in 1999 and came into operation on 25 December 1999, the same day as the primary policy of the criminal law which is stated in s.10(2) of the Sentencing Act came into operation. Section 10(1)(ea) of the Sentencing Act provides that in determining sentence for an offence, a court should have regard, in the case of an offence committed by an intruder in the home of another, to the need to give proper effect to this primary policy. That provision also came into operation on 25 December 1999 as also did section 11(1)(b) of the Sentencing Act which was referred to in submissions before me by counsel for the DPP.
From 6 April 1999, when section 7A of the Sentencing Act came into force, a person who has suffered injury, loss or damage resulting from an indictable offence committed by another may furnish the trial court with a written personal statement about the impact of that injury, loss or damage on that person and his or her family.
The South Australian Court of Criminal Appeal has considered this section and questions relating to the consequences of offending conduct in the sentencing process.
In DPP (Cth) v Hopwood & Byrnes (S6719) the Court said:
It is beyond question, as was said in R v Birmingham (No. 2) (Perry J 2 October 1997, S 6390, unreported), that, in reviewing any ‘injury, loss or damage’ resulting from an offence, a narrow or confined meaning is not to be attributed to these words.
The published authorities make it plain that the words employed are used in a broad, colloquial sense; and not as definitive technical expressions. As the Court of Appeal said in R v Thomson Holidays Ltd. [1974] 1 AllER 823 at 829, it was never, for example, intended to introduce into the criminal law ‘the concepts of causation which apply to the assessment of damages under the law of contract and tort’. That type of approach was also adopted by the Court of Appeal in R v Reilly [1982] 3 A11ER 27 at 34. A broad, common sense, practical overview is clearly required (Rowlston v Kenny (1982) 4 Crim App R (S) 85 at 87).
In R v Agius (2000) 210 L.S.J.S. 47 Olsson J said (at p. 53):
There is an undeniable weight of authority to the effect that, where, as here, the commission of an offence produces an outcome which is totally unforeseen and was unforeseeable by a reasonable person, then, at common law, such outcome is not relevant for sentencing purposes, other than as general historical background and as evidencing the infliction of some degree of harm to the victim. It should otherwise not be accorded undue weight in the sentencing process. (See Feldman v Samuels (1956) SASR 55 at 57, The Queen v Mayne (1987) 137 LSJS 100 at 101, R v Boyd (1975) VR 168 at 172. Cf R v McCormack & Ors (1981) VR 104 at 108 and R v Teremoana (1989-90) 54 SASR 30 at 39.

Gray J (with whom Wicks J agreed) said (at p. 69):
The provisions of the Sentencing Act reinforce the fundamental principle that a just punishment is to be imposed. All sentencing rules, requirements and guidelines are subservient to this fundamental principle. In my view, it is unjust to punish for unintended, unforeseen and not reasonably foreseeable consequences. Sentencing principles of general deterrence do not require such a result. To be relevant to general deterrence, the assumption would have to be made that conduct will be moderated by the risk of the not reasonably foreseeable consequence. To so reason involves an internal contradiction. No basis has been demonstrated for concluding that behaviour would be moderated by having regard to that which cannot be reasonably foreseen. I respectfully adopt the remarks of Napier CJ in Feldman v Samuels; the Victorian Full Court in Boyd and the remarks of Zeeman J in Inkson. I draw support from the reasoning of Brennan and McHugh JJ in Royall. (citations omitted)
The circumstances with which the Court of Criminal Appeal was dealing in Agius are not, of course, the circumstances here. I think these cases do, however, give some assistance in considering the arguments that were advanced before me.
It was not submitted that what the victim said were the consequences of the offending on her were not foreseen by the defendant, or were not reasonably foreseeable by him. Rather it was submitted that I should reject, or at least not accept without evidence, what the victim stated to be the consequences of the offending to her because she was allegedly conducting some illegal activity in her own home and therefore she should have been, even was, immune to suffering the distress she described in her statement. Alternatively, it was submitted that because she was conducting illegal activities in her home she does not deserve as much protection from the law as would a law-abiding citizen.
It was also submitted that should I find there was cannabis in the house such finding would mitigate the defendant’s sentence.
I reject all of those submissions because they are, in my view, inconsistent with both principle and logic. They find no support in the legislative sentencing framework, nor in any decided authority.
An accused person’s sentence should not, in my view, be mitigated when that person invades the home of another within which the other is conducting some unlawful activity. That would be contrary to public policy and the primary policy of the criminal law. There is also no reason to think that persons who conduct illegal activities in their homes will suffer less by way of injury, loss or damage than would “innocent” victims. Neither should the courts, through the sentencing process, give any judicial support for the proposition that if persons who conduct illegal activities do suffer injury, loss or damage when intruders enter their homes, such injury, loss or damage should be given some lesser weight than that suffered by “innocent” victims. This imports some idea that victims who are not “innocent” deserve what they get. I consider that any such view should be vigorously rejected.
For these reasons I do not think that it is relevant to the sentencing process that I determine, as a matter of fact, whether there was cannabis within the resident’s home on the night the defendant broke into it. I acknowledge that that may create unfairness to the victim here. I emphasise that nothing in these reasons should be read as indicating that I have any view about whether cannabis was in the resident’s home. I indicate that I shall take no account, in the defendant’s sentence, of the fact that his counsel said his client saw cannabis there.
I shall sentence the defendant on the basis that his offences caused the victim to suffer what I have referred to earlier in these reasons. I shall sentence the defendant on the basis that he believed that there was cannabis in the home and he inferred that there also may be money there. I shall sentence him on the basis that that was why he broke into the residence.
I shall sentence him on the basis that this motive indicates that he had and still has little appreciation of the seriousness of his offending, and has had no remorse for it. It was not submitted during sentencing submissions that he is remorseful for the effect that his offending has had on his victim.

[2003] SADC 48

26 March 2003