Rafferty v Police - [2006] SASC 169

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RAFFERTY v POLICE
[2006] SASC 169
Judgment of The Honourable Chief Justice Doyle
14 June 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - appellant convicted of eight offences - five counts of serious criminal trespass in a non-residential building contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) - three counts of larceny contrary to s 131 of the Criminal Law Consolidation Act 1935 (SA) (now repealed) - sentence of four years with a non-parole period of three years imposed by the Magistrates Court - whether the non-parole period imposed is excessive - the appellant committed the offences in company with other men - together they distracted the staff of a number of hotels in Adelaide before taking monies from the hotels - the criminal record of the appellant presented to the court at the time of sentencing was erroneous - it is apparent that certain offences attributed to the appellant were not committed by the appellant - appeal allowed - appellant re-sentenced in light of his revised antecedent record.
Criminal Law Consolidation Act 1935 (SA) s 131, s 169(1); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

RAFFERTY v POLICE
[2006] SASC 169
Magistrates Appeal: Criminal

DOYLE CJ: This is an appeal against a sentence imposed by the Magistrates Court. As argued, the only complaint is that the non-parole period is too high.
After a trial in the Magistrates Court, Mr Rafferty was convicted on eight counts. All of the offences were committed on 15 May 2002 and 16 May 2002.
He was convicted on three counts of serious criminal trespass in a non-residential building (not aggravated) contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). He was also convicted of three counts of larceny from those premises, contrary to s 131 (now repealed) of the CLCA. He was convicted on two further counts of serious criminal trespass in a non-residential building (not aggravated) but in relation to those counts there was no associated count of larceny.
For each of the offences contrary to s 169, the maximum punishment was imprisonment for ten years. For each of the offences contrary to s 131 the maximum punishment was imprisonment for five years. The maximum penalty that the Magistrate could impose on any one count was imprisonment for two years.
The facts, in brief, are as follows. Mr Rafferty and four other men travelled from New South Wales to Adelaide planning to commit the offences. The premises in question were hotels. The men entered as a group (during trading hours) and while some of the group distracted staff members, others took money from safes on the premises. The plan was successful at three of the five hotels visited. At those hotels the offenders took amounts of $8,318.55, $16,000 and $20,000. Only about $7,900 was recovered. All of the men were actively involved. The Magistrate took the view that there was no basis for distinguishing between them as far as participation in the offences went.
Mr Rafferty was not charged with the aggravated form of the offence, as he might have been, bearing in mind that the offences were committed in company.
The Magistrate took into account the fact that the offences were committed as part of a course of conduct over a relatively short period of time. She imposed a single sentence of imprisonment on Mr Rafferty, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA). The sentence was a sentence of imprisonment for four years. She fixed a non-parole period of three years.
I am not surprised that Mr Ibbotson, counsel for Mr Rafferty, abandoned the appeal against the head sentence. The Magistrate’s sentence is very lenient for this series of serious offences, and having regard to Mr Rafferty’s circumstances.
Mr Rafferty is now about 36 years of age. He has given a number of different dates of birth. I am unsure of his precise age. He has a significant record of offending, beginning in 1985 when he was about 16 yeas of age. A number of the offences are traffic offences, but the offences include break and enter and steal, assault with intent to rob and stealing. He has been imprisoned on a number of occasions.
In his favour, since 2002 (I will return to this date) his offences had been traffic offences, but there have been a number of them, including driving while unlicensed and driving while disqualified from holding a licence.
Mr Rafferty is no longer a young man. He cannot claim that the offences are attributable to youthful immaturity. He has a poor record. This was a series of serious offences which disclose a fair degree of planning. They involved substantial loss of property.
As I have already noted, the head sentence was very lenient. It should not be taken as an appropriate level of punishment for a case of this seriousness.
I turn to the non-parole period.
The Magistrate had regard to Mr Rafferty’s record, and noted that since 2002 (I will return to this date) he had improved, in the sense that there were no more dishonesty offences. She reminded herself that he was caring for his three children. She noted that his imprisonment would mean that they would suffer. She noted that he had some prospects of obtaining employment. She said that there was some doubt about his chance of rehabilitation. That comment was justified by his record as it was before her. Although the record indicated he had not committed any offences involving dishonesty since 2002, these current offences raise a real doubt about his determination to change his ways. She fixed a non-parole period of three years. She noted that Mr Rafferty had spent about two months in custody, but made no adjustment for that.
I am not persuaded that the Magistrate erred. First of all, the point can be made that Mr Rafferty was very lucky to receive as lenient a head sentence as he did. That resulted in him receiving a non-parole period which is very lenient in all the circumstances. But even if one puts to one side the lenience of the head sentence, it was open to the Magistrate to take the view that a non-parole period that was 75 per cent of the head sentence was appropriate. Mr Rafferty’s circumstances provided a basis for the Magistrate taking the view that the non-parole period should be a substantial proportion of the head sentence.
One of the other offenders, Mr Corbett, also received a head sentence of four years’ imprisonment. His non-parole period was fixed at two years. Mr Ibbotson argued that the difference could not be justified. I disagree. Mr Corbett was about eight years younger than Mr Rafferty. His record was not as bad. Granted, he committed a larceny offence in October 2001, and his commission of the current offences involved a breach of a good behaviour bond imposed in respect of the larceny offence. But, notwithstanding that more recent offence involving dishonesty, it was open to the Magistrate to take the view that his age (he was about 25 years of age at the time of these offences) and his shorter record of offending warranted a more lenient approach. It was also relevant that he had not previously served a period of imprisonment.
In short, on the material before the Magistrate no criticism can be made of the non-parole period fixed in relation to Mr Rafferty’s head sentence.
At the hearing of the appeal Mr Ibbotson tendered two documents.
Mr Johns, counsel for the respondent, objected to their tender. I marked them for identification so that I could consider whether they should be admitted.
The first is a report of 17 January 2005 from Dr Epps. This report summarises injuries sustained by Brodie Rafferty, whom I gather is Mr Rafferty’s youngest son, and is now about 12 years of age. Brodie was injured in an accident in 2003. This material was available when Mr Rafferty appeared before the Magistrate. No satisfactory explanation was advanced for the failure to tender it. In my view there is no basis for it being tendered now. I add that the report does not advance things in any event. While it discloses that Brodie has special needs for treatment, these needs are not particularly linked to the availability of Mr Rafferty to act as his carer.
The other document is a report from the Glebe Youth Service Inc, dated 17 May 2006. The effect of the report is that Mr Rafferty’s partner is not coping with Mr Rafferty’s four sons. Their ages are not given, but they are described as adolescent. The material is relevant. I am prepared to admit it on the basis that it relates to a matter that was canvassed before the Magistrate, namely, the proper care of Mr Brodie’s children, and contains information that was not available at the time. However, my view is that this report does not alter things. The Magistrate took account of the need of Mr Rafferty’s children for care, although she was unaware that Mr Rafferty’s partner is not coping. But even making full allowance for the needs of Mr Rafferty’s children, a substantial non-parole period was called for. That being so, it is inevitable that other arrangements will have to be made for the care of Mr Rafferty’s sons, if his partner cannot cope.
Accordingly, as things stood at the hearing of the appeal, I would have dismissed the appeal.
Subsequently it came to light, and it is now agreed, that Mr Rafferty’s record of offences is incorrect. A number of moderately serious offences, committed in 1998 and 1999, including an offence of breach of parole, had been wrongly attributed to Mr Rafferty. On the other hand, an offence in December 2002 of resisting a police officer in the execution of his duty and an offence of larceny had wrongly not been attributed to him.
This makes a substantial difference to his record. The true position is that since 1995, with the exception of the offences in 2002 just referred to, his only offences have been traffic offences. Not only is Mr Rafferty’s record not as serious or as long as it appeared to be before the Magistrate, but in light of the change (the substantial improvement since 1995), I can be more hopeful about his prospects of rehabilitation than the Magistrate was able to be. Nevertheless, the latest offences mean that some doubt remains about Mr Rafferty’s determination to change.
As it now emerges that the Magistrate sentenced Mr Rafferty on a basis that, unknown to her, was incorrect in a significant respect, it is appropriate to allow the appeal, and for me to re-sentence Mr Rafferty.
Exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA), I impose a single sentence of imprisonment for four years. Although that sentence is, even in the changed circumstances, unduly lenient, I am not able to increase it. In relation to that head sentence I fix a non-parole period of two years six months, bearing in mind the improved prospects of rehabilitation. I emphasise that this is a lenient non-parole period, and is affected by the lenient head sentence.
I note that Mr Rafferty has spent some time in custody, but do not consider it appropriate to reduce the sentence because of that.
I direct that the head sentence and non-parole period take effect from 18 November 2005.