R v Voigt No. Sccrm-02-302

[2002] SASC 401

R v VOIGT

[2002] SASC 401

Court of Criminal Appeal: Duggan, Debelle and Williams JJ

1. DUGGAN J.         I agree that the appeal should be allowed for the reasons given by Williams J.  I also agree with the orders which he has proposed.

2. DEBELLE J.        I agree with the substance of the reasons of Williams J.  It follows that I agree with the orders which he has proposed.

3. WILLIAMS J.      This is an appeal against sentence imposed in the District Court on 30 July 2002.

4. Upon an information presented to the District Court the appellant pleaded guilty to one count of aggravated serious criminal trespass and two counts of unlawful possession.  Upon a complaint remitted from the Magistrates Court the District Court also dealt with the appellant’s guilty pleas as to one count of giving a false name and address, two counts of larceny, one count of unlawful possession and one count of false pretences.  All eight offences occurred during January 2002.

5. The sentencing Judge imposed a single term of imprisonment of 6 years with a non-parole of 4 ½ years.  His Honour treated the serious criminal trespass as attracting a head sentence of six years together with a further 4 years imprisonment in respect of all the other offences - in all 10 years.  The sentencing Judge then allowed a discount of 25 per cent on account of the guilty plea and co-operation with the police.  This would have resulted in a total sentence of 7 years 6 months which the Judge further reduced to 6 years as abovementioned to better reflect the overall criminality.  The ground of appeal is that the sentence is manifestly excessive.

6. The first of the offences was the aggravated serious criminal trespass on 11 January 2002 when the appellant entered domestic premises at Hahndorf with the intention of committing larceny.  He was not charged with the separate offence of larceny although in his sentencing remarks the Judge referred to the specific goods to the value of about $20,000 which had been stolen. 

7. In R v Delphin (2001) 79 SASR 429 at 439 this Court decided that if the prosecution alleges that a substantive offence has been committed on the premises subsequent to a serious criminal trespass in circumstances where the intention accompanying the trespass at the time of entry is not identical with that of the subsequent offence, the latter offence must be separately charged if the circumstances of that offending are to be brought to account in sentencing. In the present case the appellant entered a house with a general intention to steal but without knowledge as to what he might find. Delphin establishes that the uncharged larceny of specific goods cannot be taken into account as background to the charge of serious criminal trespass as has occurred in the present case.  Therefore the respondent concedes that the appellant should now be re-sentenced by this court upon the basis that the original sentence contained an error.

8. The offences occurred as a result of the appellant’s need for funds to finance his drug addiction.  On 11 January 2002 the appellant was walking in Hahndorf and observed the female resident of a house open her front door by using a key which she replaced under the front door mat.  Later that night the appellant entered the house by using the key.  He did not disturb the residents who were asleep upstairs.  His purpose was to steal whatever of value he could lay his hands on.  The information lists property which he stole from the house to the value of about $20,000.  Before entering the premises the appellant could not have known what was in the house and therefore the information should not have alleged an intention of stealing particular items.  In accordance with Delphin the appellant should be sentenced upon the basis of the unlawful entry with a general intention to commit larceny in premises which he knew to be occupied.  The entry of premises at night when the appellant was aware of the householder’s presence is an aggravating circumstance of this offending.

9. The other two offences on the information concern the possession of goods which were suspected of having been stolen or obtained by unlawful means; there were numerous items found in a motor vehicle searched at Marla on 27 January 2002 which give rise to these charges; it is unclear why two separate charges were laid.

10. The five matters arising on the complaint are:

    (a)giving police a false name and address at Croydon on 20 January 2002.

    (b)Larceny of a leather case containing personal items (together to the value of $200) at Adelaide between 13 and 16 January 2002.

    (c)Larceny of a sports bag and leather wallet containing personal cards (together to the value of $80) at Adelaide between 17 and 20 January 2002.

    (d)Unlawful possession of property at Croydon on 20 January 2002.

    (e)False pretences on 19 January 2002 at Blair Athol.

11. The larcenies involve stealing from motor cars and are of a type which might not attract imprisonment before a Magistrate.  The false pretences involved the use of a stolen credit card to hire a video.  The charge of unlawful possession of property at Croydon arises out of a police search of the appellant’s home; the property found at Croydon included a DVD player, three mobile phones, a global reward card and a credit card and numerous personal letters (including a birth extract).   (The sentencing Judge concluded that the letters were probably stolen from letter boxes in a search for credit cards).  The appellant gave false particulars to the police at the time of this search and this is the subject of a charge as abovementioned.

12. The appellant aged 33 has a substantial criminal history since 1987 although the bulk of his offences relate to motor vehicles.  However, in 1992 he was placed on probation in Queensland for breaking, entering and stealing and in 1997 he was imprisoned for six months in Queensland for stealing and possessing housebreaking implements.  Prior to his arrest on the current charges he had been travelling around Australia with his partner and nine year old daughter.  He was caretaking a house at Croydon for a friend when apprehended.

13. A report from the Forensic Mental Health Service prepared by Dr Nambiar identifies drug abuse as the appellant’s “major problem” although the report also notes Mr Voigt’s well established antisocial personality traits; these have been acquired by the influence of Voigt’s association with undesirable peers and this (according to Dr Nambiar) will make the risk of re-offending quite high.  A pre-sentence report prepared by Department of Correctional Services stresses the need for the appellant to have continuing assistance to refrain from illegal drug use.  The report states that drug therapy and counselling can be addressed within the prison environment.  The appellant has been in Port Augusta prison since January 2002 and a report from that institution dated 22 July 2002 as to the appellant’s progress is encouraging.

14. The appellant was arrested at Marla on 26 January 2002 and has since been in custody. In view of the appellant’s previous record of offending for dishonesty and in view of the serious nature of aggravated serious criminal trespass it is appropriate that the appellant now be required to serve a prison sentence. Although the appellant’s criminal trespass at the Hahndorf residence did not disturb the female occupier, her victim impact statement describes how she was subsequently deeply shocked when she became aware of the intrusion. It is to be noted that in terms of s 10(2) of the Criminal Law (Sentencing) Act 1988 “a primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders.”

15. The appellant should be given credit for his co-operation with the police and for his guilty pleas.  The sentencing Judge reduced the head sentence by 25 per cent on this account.  I adopt that reduction as appropriate.  In my opinion after making this allowance the aggravated criminal trespass alone should attract a head sentence of 2½ years and the other offences together should carry a head sentence of 3 years - in all 5½ years head sentence in respect of which a non-parole period of 3½ years should be fixed.

16. The appeal against sentence should be allowed, the sentence imposed in the District Court should be set aside and in lieu thereof in accordance with s 18a of the Criminal Law (Sentencing) Act the appellant should be sentenced to imprisonment for 5½ years with a non-parole period fixed at 3½ years.  Both the head sentence and the non-parole period should commence on 26 January 2002.  A seven day term of imprisonment served by the appellant as from 5 March 2002 for breach of bail and treated by the District Court Judge as having been served concurrently with the sentence now under appeal should be treated as having been served concurrently with the sentence which has now been substituted.