Robert Kenneth Jarrett v R No. SCCRM 536 of 1992 Judgment No. 3619 Number of Pages 3 Criminal Law and Procedure

[1992] SASC 3619

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), OLSSON(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - Larceny and False Pretences - sentence - appellant stealing car during test drive and subsequently selling it for $1,300 - 14 months for false pretences and 8 months for larceny concurrent with non-parole period of 8 months - man aged 36 years with dependant wife and 2 children - regular employment - restitution of $1,300 made - compensation order in favour of original car owner.

HRNG ADELAIDE, 15 September 1992 #DATE 15:9:1992
Counsel for appellant:     Ms M E Shaw
Solicitors for appellant:    Moloney and Partners
Counsel for respondent:     Ms A M Vanstone
Solicitors for respondent: Director of Public Prosecutions

ORDER
Sentence and compensation order affirmed but sentences suspended

JUDGE1 KING CJ This is an appeal against sentences imposed in the District Criminal Court for a crime of larceny and a crime of false pretences. The appellant was sentenced for the crime of larceny to imprisonment for eight calendar months. He was sentenced for the crime of false pretences to imprisonment for 14 calendar months. Those sentences were ordered to be served concurrently with one another. A non-parole period of eight calendar months was fixed. The appellant was ordered to pay, by way of compensation, with respect to the larceny charge, the sum of $1,358.40. 2. The primary contention of Mrs Shaw, who appeared for the appellant before us, is that the sentences which were imposed ought to have been suspended. 3. The appellant answered an advertisement for the sale of a motor vehicle. The motor car which was advertised for sale was a Mazda 1300 sedan and that was the same model as the car which the appellant owned. The appellant visited the owner's house twice in answer to the advertisement. He, on the first occasion, went for a test drive with the owner but the owner remained with him the whole time. On the second occasion he was allowed to test drive the vehicle alone. Instead of driving it back to its owner he took it home and that constituted the stealing which was the subject of the charge of larceny. 4. The appellant then made alterations to the vehicle designed to disguise its identity and to change its appearance. Among other things he made attempts to obliterate the engine number and he changed the registered number shown on the registration disc. He then sold the vehicle for the sum of thirteen hundred dollars and that sale is the subject of the charge of false pretences. 5. The appellant, when he was arrested by the police, admitted the crimes and he subsequently pleaded guilty on his first arraignment in the District Criminal Court. The appellant is aged 36 years, and is a first offender. He is a married man with two children. He is in regular employment with the Engineering and Water Supply Department, where he has been employed for 20 years as a boilermaker/welder and he still has that employment. He is the breadwinner of the family and the family is dependent upon his income of $360 net per week. He has a mortgage commitment of $130 per week. 6. I have no doubt that the crimes which were committed by the appellant were deliberate and premeditated crimes. He, clearly, I think, on the facts, planned the stealing as part of a plan and then carried it through over the next few weeks by altering the vehicle and preparing it for the dishonest sale which produced thirteen hundred dollars for him. 7. The appellant has made restitution to the purchaser of the vehicle of the amount which he obtained, namely thirteen hundred dollars. The car of course has gone back to its original owner. That owner however claims that he is out of pocket to the tune of a substantial sum of money for the loss of use of the vehicle and for damage to it and also for the loss of some articles which were in the boot when the vehicle was stolen. The appellant disputes the amount of compensation claimed by the owner. The order for compensation made by the learned judge in the District Criminal Court was based upon the amount which the appellant agrees he is liable to repay to the owner of the vehicle. 8. As I have said, I think that these were premeditated offences. I think that the sentence of imprisonment imposed by the learned judge was amply justified and that the non-parole period was appropriate. The serious question for consideration is whether the sentences ought to have been suspended. The learned judge applied his mind to this question in a serious and considered way. He weighed up the various factors involved and refers to them in the remarks which he made when passing sentence. 9. It cannot be said that the remarks themselves disclose any error in the sentencing process. Nevertheless, one is struck in this case with the cogency of the factors pointing towards suspension. 10. It is a very serious matter for a court to imprison, for the first time, a person who has not only not previously been in prison, but has not previously committed any offence. That is particularly so where the offender is a person of the age of the present offender, who has gone through life to the present stage without coming into conflict with the law. It is, moreover, a very serious matter to imprison a person who has the responsibility for the maintenance of a family and who has regularly worked and who remains in regular employment. In the present case, all those factors were present. 11. There is, moreover, the fact that restitution was made to one of the victims and that there is an order for compensation of the other victim which can be expected to be complied with because the appellant will have the income to enable him to do so. In addition, there are the factors that he made his admissions to the police and pleaded guilty at the first opportunity. 12. Notwithstanding that, on the face of the remarks made by the learned sentencing judge, there has been no error in the sentencing process, I am forced to the conclusion that there must have been a latent error in the weight which the learned judge attached to the various factors in the case. He was quite obviously aware of the importance of the factors which I have mentioned, but he considered that they were outweighed by the nature of the offences. I have been forced to the conclusion that his Honour attached undue weight to the seriousness of the offences and not sufficient weight to the factors personal to the appellant which argued so strongly in favour of suspension. 13. In all the circumstances, I have reached the conclusion that the judge was in error in not suspending the sentence and that this court ought to intervene. Although it is not relevant to the question whether the sentencing process has miscarried, I note that the appellant has had the experience of the doors of the prison closing behind him and he has indeed spent 23 days in prison before he was released on bail. One hopes that will assist in bringing home to him not only the folly but the criminality of his conduct and will lead him to understand the sort of consequences that will follow in future if he ever offends again. 14. In my opinion this appeal should be allowed. The sentences should be affirmed but should be suspended upon the appellant entering into a recognizance in the sum of five hundred dollars for a period of two years, to be of good behaviour and to be under the supervision of a probation officer and the order for compensation should be affirmed.

JUDGE2 OLSSON J I agree.

JUDGE3 MULLIGHAN J I agree.