R v Smith

R v SMITH
[2002] SASC 330
Court of Criminal Appeal: Debelle, Williams and Martin JJ (ex tempore)

DEBELLE J. I agree with the reasons of Martin J and the sentence he proposes.
I, too, emphasise that this sentence should not be treated as setting any kind of norm for a sentence for this kind of offending. Martin J has identified the circumstances which give rise to this prisoner being treated with a degree of mercy. As his reasons demonstrate, the court is only too clearly aware of the concern in the public about the prevalence of this kind of offending, but there will always be instances where it is appropriate for the court to be lenient and to provide a realistic opportunity for rehabilitation. This is just such an instance.
MARTIN J. The appellant pleaded guilty in the Magistrates’ Court to aggravated serious criminal trespass and to larceny. In the District Court, the learned sentencing judge imposed a single sentence of 34 months imprisonment and fixed a non-parole period of 22 months. The sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of 30 months on the condition that, for the first 18 months of the bond, the appellant be under the supervision of a Community Corrections Officer. Other conditions included a requirement that the appellant obey the lawful directions of the Officer concerning participation in programs designed to assist the appellant. The appellant appeals against the sentence on the basis that the head sentence is manifestly excessive.
The offences occurred shortly after 3.30 am on 5 December 2001. During the afternoon prior to the commission of the offences, the appellant began drinking with two other aboriginal persons whom he had only just met. Over a period of approximately 12 hours, he consumed a large quantity of alcohol and some valium. The sentencing judge accepted that by 3.00 am on 5 December 2001 the appellant was grossly intoxicated.
The other men invited the appellant to go for a drive with them. Thinking he would eventually be driven home, the appellant accepted the offer. However, he was driven to the premises of a clothing retailer on The Parade at Norwood where one of the other men smashed the glass entry doors. Although the appellant had been unaware of the intention of the other men to commit the crime, after the glass doors had been smashed he entered the premises with the other men and seized a quantity of clothing.
The attention of a passing police patrol was drawn to the premises by the alarm. As a police officer approached the smashed doors, the appellant emerged carrying a quantity of clothing. Called on to stop, the appellant dropped the clothing and made as if to threaten the officer with a tyre lever. He then turned and ran off. The officer apprehended the appellant and took him into custody. The other two offenders were confronted by a second officer, but both escaped.
The objective circumstances of the offending were serious. Damage was caused to the glass entry doors and to furnishings, fittings and equipment within the premises. The three offenders emerged from the premises with a large amount of clothing. It was only through the fortuitous presence in the near vicinity of officers on patrol and their prompt action that the theft was thwarted and the appellant was caught.
The appellant is aged 19 years. There are matters in his background that excite considerable sympathy.
The appellant was rejected by his mother and raised by his maternal grandmother. At about the age of 12 years he began sniffing petrol. Some memory loss has been caused. The appellant has had limited education and possesses minimum writing skills. At the age of 14 years, he was sent to Adelaide to stay with an aunt, but his loneliness and unhappiness resulted in him turning to the use of alcohol and other drugs, including LSD.
Notwithstanding his unfortunate background, the appellant has only a minor record of mainly social offences which the Crown accepted before the learned sentencing judge were not of any significance. For the last 12 months he has managed to abstain from the use of drugs other than alcohol and his consumption of alcohol has been noticeably reduced. However, the appellant recognises that, in the past, once he has started drinking he has been unable to restrain himself until he is drunk. In such circumstances he does not respond well to the advice of other persons. It was his inability to control his drinking that led to his gross intoxication and to the offending.
Significantly, for approximately three years the appellant has had a stable relationship from which two children have been born. The children are now aged three years and 18 months. The family live with the mother of the appellant’s partner who is very supportive of the appellant and provides him with a good role model.
There are encouraging signs of a desire to rehabilitate and a positive response to the stable family circumstances. However, the appellant has not entirely overcome his difficulties with alcohol. The author of the pre-sentence report noted that the appellant was “erratically compliant” with requests to attend for interview for the purposes of the report, arriving later than arranged and on occasions appearing to be under the influence of alcohol.
Responding to growing community concern about offences commonly called home invasions, in 1999 Parliament created the offences of serious criminal trespass and allowed for aggravated circumstances associated with each offence. These offences replace what were known as burglary and breaking and entering offences. Maximum penalties were increased.
Section 169 of the Criminal Law Consolidation Act 1935 created the offence of serious criminal trespass in a non-residential building. The maximum penalty for a non-aggravated offence of that type is 10 years imprisonment. For an aggravated offence of that type involving the possession of an offensive weapon or committed in company, the maximum penalty is imprisonment for 20 years. It was the latter offence that the appellant committed because he was in company with two other persons. By way of comparison, the maximum penalty for serious criminal trespass in a residential building is 15 years and for an aggravated offence of that type, imprisonment for life. The maximum penalty for larceny is five years.
In R v Delphin (2001) 79 SASR 429, this Court had occasion to consider the effect of the changes in the legislation with respect to penalties for serious criminal trespass in a place of residence. The Court pointed out that the offence is committed by entering a place of residence as a trespasser with the intention of committing an offence such as larceny. In those circumstances, the court observed that the value of the goods taken will seldom have a bearing on the seriousness of the offence. If the offender is to be punished for stealing while in the premises, it is necessary to charge the separate offence of larceny. With those principles in mind the Court said [47]-[49]:
“[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. Where other and more specific intentions of an offender can be alleged, that will be important in assessing the gravity of the offence. Such an intention may range from petty theft to larceny of very valuable property, from minor assault to killing or to a range of possible sexual offences. The more heinous intention will be likely to give rise to a heavier sentence.
[48]Where there are previous similar offences, an offence could expect to attract a higher penalty. As the offences in this case both took place in a place of residence, it would be inappropriate to suggest any standard or tariff in this case for a serious criminal trespass committed in non-residential premises.
[49]In the case of aggravated serious criminal trespass in a place of residence, one hesitates to suggest an appropriate range of penalties, given the wide variety of aggravating circumstances that may apply, and it would be inappropriate to attempt such a prescription. It is sufficient to say that circumstances surrounding the nature of the trespass, the relevant intention, the effect on the victim and the circumstances of aggravation in s 170(2) will largely determine the extent of any greater penalty, leaving aside any factors personal to the offender.”
Although the remarks in Delphin were directed to the more serious offence of serious criminal trespass in a place of residence, they provide guidance in considering the appropriate penalty for aggravated serious criminal trespass in a non-residential building. If a single penalty is fixed, that single penalty must also reflect the appellant’s crime of larceny.
The sentencing judge considered that, prior to allowance for the pleas of guilty, an appropriate starting point for a single sentence was 40 months imprisonment. In arriving at that period, his Honour referred to the objective circumstances of the offending and to the appellant’s age and prior offending. Having indicated that starting point, and after making allowance for the plea of guilty, his Honour turned to the question of suspension of the sentence. It was at this stage of his sentencing remarks that his Honour first mentioned the personal circumstances of the appellant to which I have referred.
The approach of the sentencing judge has caused me some concern. The personal circumstances of the appellant were relevant both to the head sentence and to the issue of suspension. His Honour’s approach tends to suggest that he might have overlooked the personal circumstances in determining the head sentence and that he has, incorrectly, only had regard to those circumstances when considering the issue of suspension. However, for the reasons that follow, in my view it is unnecessary to resolve this issue.
In my opinion, bearing in mind all the circumstances of the offending and, in particular, having regard to the personal circumstances of the appellant and his lack of significant prior offending, the starting point of 40 months is too high. That period gives too little weight to the appellant’s youth and other circumstances of mitigation. In addition, the appellant was not the instigator of the offending and played a lesser role. This error resulted in a head sentence that is manifestly excessive. The sentencing discretion has miscarried.
In my view, before making allowance for the pleas, in the particular circumstances of this offender a sentence of 22 months is appropriate for the criminal trespass offence and 12 months is appropriate for the offence of larceny. As I would fix a single penalty, I would start with a period of 34 months. I emphasise that the periods to which I have referred are appropriate for the particular offending and offender under consideration and are not to be treated as setting any kind of standard sentence for serious criminal trespass in commercial premises. The appellant’s youth and personal circumstances are of special importance.
The sentencing judge allowed a reduction of 15 per cent for the pleas of guilty. That allowance was very much at the lower end of the appropriate scale. The appellant pleaded guilty at the earliest opportunity. However, it must be recognised that he had little option. He was caught in the act of stealing the clothes. I am not prepared to say that 15 per cent was outside the range of the sentencing judge’s discretion, but in my opinion a more appropriate reduction is approximately 20 per cent. It is important to encourage offenders to plead guilty at the earliest opportunity in the Magistrates’ Court. If the plea had been delayed, I would have allowed a lesser reduction.
For these reasons, in my opinion the appeal should be allowed and a new head sentence of 27 months should be imposed. In view of the special features I have identified, I would fix a lower than usual non-parole period of 14 months.
The sentence should be suspended upon the appellant entering into a bond in his own recognisance of $500 to be of good behaviour for a period of 24 months. During the period of the bond the appellant should be under the supervision of a Community Corrections Officer whose lawful directions he shall obey including directions as to participation in educational programs and programs related to substance abuse and employment.
I commend to those who will be involved in the supervision of the appellant the observation of the sentencing judge that, should it appear appropriate, the involvement of an Aboriginal Liaison Officer should be encouraged.
WILLIAMS J. I agree with the orders proposed by Martin J for the reasons which he has given. I endorse the remarks of Debelle J.
DEBELLE J. The order of the court will therefore be:
1. Appeal allowed.
2.The sentence ordered on 18 June 2002 will be set aside and, in lieu thereof, there will be an order that the appellant be sentenced to a period of imprisonment for 27 months with a non-parole period of 14 months.
3.The sentence will be suspended upon the appellant entering into a bond in his own recognisance in the sum of $500 to be of good behaviour for a period of 24 months. During the period of the bond, the appellant shall be under the supervision of a Community Corrections Officer whose lawful directions he shall obey, including directions as to participation in educational programs and programs related to substance abuse and employment.

[2002] SASC 330

20 September 2002