R v Sprecher - [2015] SASCFC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SPRECHER
[2015] SASCFC 76
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
20 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY, HOUSEBREAKING AND LIKE OFFENCES - SENTENCE - AGGRAVATED OFFENCES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
The applicant was sentenced in the District Court on 5 September 2014 for previously convicted offences of aggravated serious criminal trespass, theft, illegal interference and breach of bond. The Judge ordered each sentence to be served cumulatively for a total sentence of three years imprisonment.
A drivers licence disqualification was imposed for 18 months.
The applicant appeals and applies for permission to this court to appeal the sentences.
Held (per Kourakis CJ, Gray and Stanley JJ agreeing):
1. Section 86A(2) of the Criminal Law Consolidation Act 1935 (SA) requires a mandatory disqualification of 12 months. There is no Judicial discretion in increase or decrease the period.
2.    The appellant had served a period of four months which had been suspended under a bond. The order of the Judge to then revoke the suspended sentence has no effect and such time should not have been included in the total sentence.
3.   The sentence for aggravated serious criminal trespass is not manifestly excessive.
4.    The sentencing Judge did not predetermine that a suspended sentence would not be granted.
Criminal Law Consolidation Act 1935 (SA) s 86A(2); Crimiinal Law (Sentencing) Act 1988 (SA) s 18A, s 57; Magistrates Court Act 1991 (SA) s 22, s 42, referred to.
R v Allen (2002) 81 SASR 434, applied.
Germain v Police [2006] SASC 340; R v Al-Zuain (2009) 103 SASR 567; R v Arts and Briggs [1998] 2 VR 261; R v Governor of Brockhill Prison; ex parte Evans [1997] QB 443; R v Hughey [2007] SASC 452, considered.

R v SPRECHER
[2015] SASCFC 76
Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ

KOURAKIS CJ: The applicant has appealed, or seeks permission to appeal, against sentences imposed in the District Court on 5 September 2014. The sentences imposed by the Judge, which are subject to appeals or applications for permission to appeal, are as follows:
·On convictions of the offences of aggravated serious criminal trespass and theft committed in March 2014 – two years and five months (reduced from a notional head sentence of four years for an early guilty plea);
·On a conviction of the offence of illegal interference with a motor vehicle committed on 28 January 2014 – three months imprisonment and a driver’s licence disqualification of 18 months; and
·On the breach of a bond entered into on the suspension of a sentence of four months imprisonment imposed in the Berri Magistrates Court on 21 February 2012, which was breached then further suspended on entering into a subsequent good behaviour bond in the Berri Magistrates Court on 27 August 2012, for an offence of theft – suspension revoked.
The Judge ordered that all of the sentences be served cumulatively commencing on 1 July 2014.[1] The Judge fixed a non-parole period of two years.
[1] The appellant had been remanded in custody on 15 July 2014 after breaching home detention conditions of bail.
The aggravated serious criminal trespass came before the Judge on an order of committal for sentence made in the Magistrates Court on 26 May 2014. The illegal interference came before the Judge by transfer to him of the Magistrates Court complaint, on which the appellant had pleaded guilty on 6 June 2014. The appellant pleaded guilty again to that offence on 4 September 2014 when the complaint was first before the Judge. The Judge exercised his powers as a Magistrate in sentencing the appellant.
An application for the enforcement of the bond of 21 February 2012 was filed in the District Court on 4 September 2014 and admitted by the appellant on the same day.
The appellant also pleaded guilty on various complaints of breaches of bail. On those matters he was convicted without further penalty having regard to the time he had spent on remand in custody following those breaches. The Judge also revoked a simple bond which the appellant had given in the Magistrates Court at Berri on 27 August 2013 on his conviction for an offence of theft, but imposed no further penalty.
The appellant’s complaints about his sentence can be summarised as follows:
·On the offence of illegal interference, he contends that the conviction should be set aside because on the facts alleged in the course of sentencing submissions no such offence was disclosed and also complains that the 18 month licence disqualification exceeds a period of 12 months licence disqualification prescribed for that offence.
·On the revocation of the suspended sentence, the appellant complains that the suspended sentence brought into effect had previously been served pursuant to an earlier order made in the Magistrates Court at Berri.
·The sentence imposed for the serious criminal trespass and the total overall sentence, were manifestly excessive having regard to the appellant’s personal circumstances. In support of this ground the appellant sought to rely on fresh evidence.
The Director of Public Prosecutions accepts that the licence disqualification exceeded the period prescribed by law and also accepts that the appellant had already served the period of four months which had been suspended under the bond of 21 February 2012. I would therefore allow the appeal so as to impose a licence disqualification of 12 months as mandated by s 86A(2) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA Act) and to set aside the revocation of the suspended period of imprisonment. I would otherwise dismiss the appellant’s complaints. The overall sentence which the appellant is liable to serve is therefore reduced to two years and eight months. I would fix a non-parole period of 21 months.
My reasons follow.
The notices of appeal
The first notice of appeal filed by the appellant on 13 November 2014 was an application for permission to appeal against sentence. That notice had sought permission to appeal the sentence imposed by the Judge on multiple grounds. They were:
·a failure to take into account a lengthy period of remand in custody on earlier offences which were eventually withdrawn by the Director of Public Prosecutions;
·a failure to suspend the term of imprisonment;
·a failure to have adequate regard to the personal circumstances of the appellant;
·a lack of parity with the sentence imposed on a co-offender;
·a miscarriage of justice resulting from the appellant’s counsel’s failure to provide the Judge with certain material in mitigation of sentence.
That notice of appeal also sought leave to rely on fresh evidence. I will refer to that notice as the “sentence application”. The sentence application was adjourned several times before being called on 27 January 2015. On that occasion it was abandoned when permission to appeal against the revocation of the suspended sentence was granted on a notice of appeal against that order which had been filed on the same day (the revocation appeal). Counsel for the appellant abandoned the sentence application because he assumed that the head sentence imposed on the aggravated serious criminal trespass would necessarily be reviewed on the setting aside of the revocation of the suspended sentence. For reasons which need to be canvassed the hearing of the appellant’s other applications and appeals proceeded as if this application was still extant, I would make orders treating the sentence application as a fresh application for permission to appeal made orally on the hearing of the appeal.
The revocation appeal notice sought permission to appeal against the finding of a “breach of bond” and the revocation of the four month suspended sentence.
On 13 February 2015 shortly before the revocation appeal was to be heard the appellant filed a further notice of appeal purportedly pursuant to s 352 of the CLCA Act against his conviction for illegal use on the grounds that the factual basis on which the plea was entered did not make out the offence. Permission to appeal on that notice of appeal was conceded by the Director of Public Prosecutions on a hearing before me and granted on the same date. That appeal had been foreshadowed in a notice of appeal filed in this Court on 16 December 2014. That notice of appeal, on its face, was brought pursuant to s 42 of the Magistrates Court Act 1991 (SA) (the Magistrates Court Act) on the premise that the Judge was exercising his powers as a Magistrate. I will refer to both appeals as the illegal interference conviction appeals.
The revocation appeal
The application for the enforcement of the breach of bond was initiated in the District Court pursuant to s 57 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). The application alleged that the appellant had entered into a bond to be of good behaviour on the suspension of a sentence of imprisonment for four months imposed in the Berri Magistrates Court on 21 February 2012 on charges of criminal damage, theft, and being unlawfully on premises. The application alleged that the bond was breached by the commission of offences of theft committed on 28 October 2012 and an offence of breaching bail committed on 24 May 2013, to which the appellant had pleaded guilty in the Berri Magistrates Court on 6 August 2013.
The Director of Public Prosecutions accepted on the hearing of this appeal that the suspended sentence had previously been brought into effect by order of the Magistrates Court made on 27 August 2013.
It follows that the order of the Judge revoking the suspended sentence is of no effect. That conclusion requires this Court to fix another non-parole period but it does not in any way vitiate the other sentences imposed by the Judge or allow this Court to sentence afresh absent any error in the exercise of the sentencing discretion in fixing those sentences. Each of the head sentences imposed by the Judge is the result of an independent exercise of his sentencing discretion as was the fixing of a non-parole period. If the Judge had fixed a single sentence pursuant to s 18A of the Sentencing Act different considerations would have applied.
It is necessary to deal with several jurisdictional questions.
Section 57 of the Sentencing Act provides that applications for the enforcement of a bond must generally be brought before the probative court, which is the court that made the order pursuant to which the defendant entered into the bond, but that in some circumstances the enforcement may be dealt with in a higher court.
57—Non-compliance with bond
(1)     If it appears to a probative court, by evidence given on oath, that a probationer may have failed to comply with a condition of the probationer's bond, the court may—
(a)—
(i)issue a summons to the probationer requiring the probationer to appear before the court at the time and place specified in the summons; or
(ii)issue a warrant for the probationer's arrest; and
(b)issue a summons to any guarantor.
(2)     If a person fails to appear before the court as required by a summons issued under this section, the court may issue a warrant for the person's arrest.
(3)     Where a person is arrested pursuant to a warrant issued under this section, the person must be brought before the probative court or the Magistrates Court not later than the next working day and may be remanded in custody or released on bail pending determination of the proceedings.
(4)     If a probationer is found guilty of an offence by a court of a superior jurisdiction to that of the probative court, being an offence committed during the term of the bond, any proceedings for breach of condition arising out of the offence are to be taken in the court of superior jurisdiction.
(4a)   If a probationer is found guilty of an offence by a court of an inferior jurisdiction to that of the probative court, being an offence committed during the term of the bond, the court of an inferior jurisdiction must—
(a)sentence the probationer for the offence and remand him or her to the probative court to be dealt with for breach of the conditions of the bond; or
(b)remand the probationer to the probative court to be sentenced for the offence and dealt with for breach of the conditions of the bond.
…
In this case both the bond and convictions breaching it were orders of the Magistrates Court. It is not clear therefore how it was that the application for enforcement of the bond, which had been entered into in the Magistrates Court, was brought in the District Court.
What is clear is that the matter can only have come before the Judge in his capacity as a Magistrate. The Judge exercises the office and jurisdiction of a Magistrate by reason of his office as a District Court Judge pursuant to s 22 of the Magistrates Court Act 1983 (SA) and s 4 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA). However, even though the powers and jurisdiction of a Magistrate may be exercised in the course of discharging the powers and jurisdiction of a Judge of the District Court, the orders made are made in the exercise of the office of Magistrate. Therefore an appeal lies only in accordance with the Magistrates Court Act.[2]
[2] R v Allen (2002) 81 SASR 434.
In the circumstances I would treat the revocation appeal as an appeal brought pursuant to the Magistrates Court Act, as if brought to a single judge of this Court and then referred to the Full Court.
I would therefore set aside both the order revoking the bond and the order that the appellant serve a sentence of imprisonment of four months.
Illegal interference conviction appeal
I make the observation that the Judge dealt with the complaint alleging the offence of illegal interference as a Magistrate. Accordingly, it was necessary to bring an appeal pursuant to s 42 of the Magistrates Court Act.[3] There is some doubt as to whether the notice, filed by the appellant which on its face appears to be an appeal pursuant to s 42 of the Magistrates Court Act, properly instituted an appeal. It appears to have been filed in this Court in the course of the hearing of the sentence application. It is not clear that the notice of appeal purportedly filed pursuant to s 42 was served on the Magistrates Court and the complainant. Be that as it may, it is not necessary to finally resolve the procedural question because the appeal must fail on its merits. The appellant’s submissions on the appeal were that the submissions made before the Judge by the appellant’s then counsel fell short of admitting the elements of the offence. The appellant’s submissions before the Judge were that the appellant had seen a BMW motor vehicle parked near a place where his vehicle had run out of petrol. He approached the BMW with a piece of wire intending to break into it through a partially open sunroof in order to take some change which was visible from outside of the vehicle so that he could buy the petrol he needed. The appellant’s counsel submitted that the appellant then decided not to go ahead with his plan and returned to his vehicle. Those submissions were ambiguous as to whether the appellant had in fact interfered with, or, merely attempted to interfere with, the BMW. However, at the conclusion of his submission the appellant’s counsel clearly told the Judge that Mr Sprecher accepted that the elements of the offence were made out. As I have already observed, the appellant had twice pleaded guilty to the offence, first in the Magistrates Court and again before the Judge.
[3] R v Allen (2002) 81 SASR 434.
On the hearing of the appeal, the Court received a police apprehension report on the illegal interference charge. That report included a witness statement to the effect that the appellant was seen holding a wire coat hanger near the BMW. The owner of the car later found a galvanised wire coat hanger inside his vehicle. There were scratches on the roof near the sunroof and the front door lock of the BMW was jammed. According to the report the accused admitted to police that he had attempted to gain entry through the front door and the sunroof when he accidentally dropped the coat hanger.
Not surprisingly after the hearing of the appeal, and in light of the police report, the appellant filed a notice of discontinuance on the illegal interference conviction appeal.
Licence disqualification
Section 86A of the CLCA Act provides a penalty of imprisonment for two years for a first offence of illegal interference and imprisonment for not less than three months and not more than four years for a subsequence offence. Section 86A(2) of the Act provides:
Where an adult court finds a person guilty of an offence against this section, the court must (whether or not it convicts the person of the offence and in addition to any order that it may make in relation to the person) order that the person be disqualified from holding or obtaining a driver’s licence for a period of 12 months.
Section 86A(4) provides that the disqualification period cannot be reduced or mitigated in any way or be substituted by another penalty or sentence.
It follows that the period of licence disqualification is both a minimum and maximum period of disqualification and that the sentencing court has no discretion to make any different order. Permission to appeal on this ground should be granted in the sentence application.
The order of disqualification for 18 months must therefore be set aside and a disqualification for a period of 12 months substituted. The sentence of imprisonment imposed was in fact the minimum sentence of imprisonment which could be imposed pursuant to s 86A of the Act. That sentence must stand. I will deal with the question of whether it should be imposed concurrently or cumulatively on the sentence imposed for the aggravated serious criminal trespass below.[4]
[4] See Germain v Police [2006] SASC 340 at [29]-[31].
Manifestly excessive
On the sentence application the appellant advanced two primary submissions in support of the contention that the sentence imposed was manifestly excessive. The first related to the complaints about the revocation of the suspension of the sentence of four months imprisonment and the finding of guilt on the illegal interference charge, both of which have been dealt with above. In addition to these matters the appellant complained that the Judge did not reduce the sentence to reflect a period of about 16 months for which he was remanded in custody on an unrelated matter before he committed the offence of aggravated serious criminal trespass.
The appellant was remanded in custody after his arrest on three counts of aggravated causing serious harm to another on 16 June 2009. He remained in custody until 26 October 2010. The appellant was released when the Director of Public Prosecutions tendered no evidence. Counsel who appeared for the appellant before the Judge made no reference to the earlier time which the appellant had spent on remand in custody.

That time in custody, plainly enough, could not be taken into account in any way on the sentence of imprisonment imposed on the conviction of the offence of illegal interference because, as I have already observed, a minimum term of three months imprisonment is prescribed by s 86A of the Act.
It is well accepted that a sentencing court may, and generally should, take into account periods of remand in custody related to the offending for which he or she is being sentenced. Moreover, the period spent on remand may be taken into account even if it is referrable to both the offence for which the defendant falls to be sentenced and other offending.[5] However, there must be some connection between the period spent on remand and the offences and the sentence under consideration. In R v Arts and Briggs[6] Callaway JA identified a limitation on the extent to which a sentencing court will take into account a period of remand in custody when he remarked:
There are, of course, many cases where a person cannot be given credit for pre-sentence detention. He or she may be on remand for several months and then acquitted. The time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody, but that is not the case here.[7]
Callaway JA went on refer to the judgment of Lord Bingham of Cornhill CJ in R v Governor of Brockhill Prison; ex parte Evans[8] where Lord Bingham referred to a practice of English courts “to assume that all periods of custody before sentence, other than custody wholly unrelated to the offences for which sentence is passed, will count against the period of the sentence to be served”.
[5] R v Al-Zuain (2009) 103 SASR 567 at [44]-[67].
[6] [1998] 2 VR 261.
[7] R v Arts and Briggs [1998] 2 VR 261 at 264.
[8] [1997] QB 443 at 462.
In R v Hughey[9] this Court endorsed the approach that time spent on remand is not to be regarded as a bank balance on which a defendant could draw.
[9] [2007] SASC 452 at [6]-[7] per Debelle and Vanstone JJ.
The period which the appellant spent in prison on the charges of causing serious harm have no connection at all to the offences for which the sentences of which the appellant now complains were imposed. There is no merit in this ground.
The sentence imposed for the offence of aggravated serious criminal trespass is not in itself manifestly excessive. In the ordinary course, the sentence for the quite separate offence of illegal interference should be served cumulatively. Reviewing the resulting overall sentence, it is not crushing or disproportionate. There is no reason to reduce it for totality.
Failure to suspend
The appellant complained that the Judge predetermined the question of suspension during the course of sentencing submissions when he said:
I don’t want your client to be under any illusions whatsoever; he is not going to receive a suspended sentence, the offending is too serious. His criminal record is appalling and the offending was committed on bail and in breach of a bond. He’s not walking out of this courtroom tomorrow, you can tell him that.
At that stage the Judge had heard substantial submissions on sentence. The appellant’s counsel took no objection to the Judge continuing to hear the matter after the comment was made. The matter was adjourned to 5 September to allow the Magistrates Court files to be placed before the Judge so that the appellant could be sentenced on all matters. On that day the Judge received psychological reports tendered by the appellant and heard further submissions. The appellant also called his de facto partner, Ms Hall, to give evidence in his support.
The appellant never expressly sought a suspended sentence. The Judge’s remarks did no more than recognise the inevitable. The appellant had an appalling prior record. The offences for which he was before the Court were serious. Indeed, on the inevitable revocation of the suspended sentence for the breach which the appellant had admitted the Sentencing Act the Judge was precluded from suspending any sentence of imprisonment. The appellant’s complaint on this ground has no merit. For the same reasons, there is no merit in the complaint that the Judge erred in failing to exercise his discretion to suspend the sentence.
Fresh evidence
The applicant placed evidence before the Court that he had made a complaint to police with respect to a serious violent assault committed against him and his family. The appellant contended that that information should be received as fresh evidence on the appeal. The Judge was told nothing of that circumstance. No explanation was advanced for the failure to provide the material to the sentencing Judge. I would refuse permission to adduce that material on appeal.
I would refuse permission to appeal on the sentence application other than on the ground complaining of the length of the licence disqualification.
GRAY J: I agree with the orders proposed by the Chief Justice. I do not wish to add to his reasons.
STANLEY J: I agree with the Chief Justice.