Robert Krawczuk v Caroline Anne Bristow No. SCGRG 1646 of 1992 Judgment No. 3590 Number of Pages 4 Criminal Law and Procedure

[1992] SASC 3590

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA COX J

CWDS
Criminal law and procedure - particular offences offences against property - housebreaking - 36-year-old appellant pleaded guilty to five counts of flatbreaking - sentences imposed resulted in total head sentence of 14 months' imprisonment with non-parole period of 8 months - not excessive.

HRNG ADELAIDE, 25 August 1992 #DATE 25:8:1992
Appellant in person
Counsel for respondent:     Ms K J Parouchais
Solicitors for respondent:    Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 COX J This is an appeal by a defendant against terms of imprisonment ordered by a stipendiary magistrate in the court of summary jurisdiction at Berri on 11 June 1992 following the appellant's admission of five breaking offences. 2. The prosecutor's affidavit shows that the offences, which took place between 1 March and 16 March 1992, were all committed in the one block of flats in Twelfth Street Renmark. It was alleged that the appellant and a young companion, and the companion Nolan was about 19 at the time, broke into two of the flats, and the appellant alone broke into the others. The most serious offence, so far as value is concerned, was the third in which goods, said by the complainant to be worth about $1000, were stolen to help the appellant furnish his own flat. (The appellant this morning has challenged that assessment of value and says that, in his estimate, the goods were not worth more than $300 or $400.) In another a cassette player was stolen, and in another a television antenna. Most of the property was recovered by the police when the offences, and the appellant's participation in them, came to light. 3. The appellant was interviewed and he made admissions. There may have been some uncertainty about the degree of Nolan's involvement. Certainly the prosecutor alleged at the hearing that Nolan was involved only in two of the offences, and had nothing to do with the other three. The appellant this morning has denied that, and has said that he did not disclose Nolan's involvement because he had been threatened by Nolan's brother. That does not appear to have been put to the learned magistrate by the appellant's counsel. 4. The appellant received prison sentences, some concurrent, some cumulative, which resulted in a total head sentence of 14 months' imprisonment, and the learned magistrate fixed a non-parole period of eight months. 5. Without describing the individual sentences in detail, I can say that the sentences imposed ranged from four months to eight. The learned magistrate considered suspending the sentences, but reached the conclusion that that would not be appropriate. His sentencing remarks included this passage, 'I appreciate, having read the pre-sentence report, that the defendant is a fairly immature 36 year old who lacks in social skills. He apparently presents as a fairly lonely and introverted man, and has had limited life experiences up to date. I have not overlooked that in deciding the penalty that I am going to impose. However, I consider that factors such as this can be best met by reflecting it in the provision of a relatively short non-parole period which I intend to set in a moment'. 6. The appeal is brought on the ground that the orders made were manifestly excessive; the learned magistrate should have suspended the sentence or made a community service order as an alternative to prison. He also erred, it is said, in failing to take into account sufficiently the relatively lenient sentence passed upon the co-offender. And the final matter of complaint is that the learned magistrate `erred in failing to consider or adequately consider the contents and recommendations of a pre-sentence report prepared by the Department of Correctional Services.' 7. I shall say something about that last matter straight away. The appellant interpreted the pre-sentence report as recommending that he not be sent to prison. That, I think, is a misreading of the report. It would not be proper for the probation officer to make a specific recommendation or pass an express opinion of that kind, and indeed the probation officer did not attempt to do so. What she did say was that, should the court consider a non-custodial penalty appropriate, the appellant could benefit from a short period of supervision with a view to assisting him to deal with his personal problems and to develop more socially orientated community activities. The probation officer went on to say that the appellant would be suitable for community service. 8. I do not think that the imposition of a prison term in this case, and the length of the individual and cumulative sentences, could reasonably be criticised. There were two main factors personal to the appellant which told against him in that respect, in addition to the obvious general consideration that breaking offences are extremely prevalent. There was the circumstance that there were five separate offences here. True, they were committed within a relatively short span of time, but they were separate, and properly regarded as separate, offences. Each required a separate and deliberate decision on the part of the appellant. 9. It is not a case in which one offence could sensibly be said to have led naturally to another, the sort of thing that might happen with the typical street offence. It could not even be said that they were all committed on the one night, in the heat of the moment as it were. So they were properly regarded by the learned magistrate as distinct offences, although occurring within a fairly short time. 10. Then there was the fact that the appellant had been dealt with leniently by a court only a short time before. On 18 October 1990, in the Renmark court, the appellant was sentenced for five property damage offences. On four of them he was convicted without penalty. On the fifth he was given a sentence of six months imprisonment, but the sentence was suspended upon his entering into a good behaviour bond for twelve months. That bond required him to perform 180 hours of community service. What is more, a further twelve offences, presumably like offences, were, no doubt at the appellant's request, taken into account by the court on that occasion. 11. The appellant performed the bond, evidently without any problems, but within six months of the expiration of that bond he was in trouble again, committing a rash of quite serious breaking offences in the block of flats where he, indeed, was also a resident. The learned magistrate was entitled to regard the appellant as a less than ideal candidate for a suspended sentence with respect to these matters, and to take the view that he had not profited from the leniency that was extended to him only 18 months before these offences were committed. 12. Now the material on the file shows that the co-defendant, Nolan, was treated leniently, and I suppose it is understandable that the appellant should look askance at the sentence Nolan got, compared with the sentence he got. Nolan came before the court, as an adult, and on one count was fined $1000, on the other breaking count convicted without penalty. He was also convicted without penalty for receiving, an offence allegedly committed on 16 March 1992. 13. The important thing is that Nolan was only 19, and had no previous convictions as an adult, and the learned magistrate's sentencing remarks record that Nolan had only one conviction as a juvenile. 14. There was a question whether, despite the great disparity in ages, the appellant was not himself under the influence of Nolan to some extent, but certainly on the information before the learned magistrate there was no reason to think that Nolan had anything to do with the three offences that the appellant committed alone, and I could hardly see my way to act upon the eleventh hour contradiction, of that interpretation of the circumstances, that was made by the appellant in this court this morning. 15. I have said that the individual sentences which were fixed for the breaking offences could not possibly be attacked. Indeed, taking them singly, they could probably be regarded as lenient, but the learned magistrate had the familiar problem of dealing with five like offences, which in principle, at any rate, were to be regarded as distinct and therefore suitable for cumulative sentences, and yet having to ensure that the total head sentence was not out of proportion to the total wrongdoing. I see no reason to criticise his solution. 16. The pre-sentence report shows that the appellant has some personal problems. As the sentencing remarks that I have referred to indicate, the appellant appears to be a lonely and immature man with limited social experience and skills. Perhaps the learned magistrate could have suspended this sentence, notwithstanding the gravity and number of the offences, and even in the light of the convictions recorded in 1990, but he considered the matter and decided not to do so. It was his discretion, and this court, of course, has no right merely to substitute its own opinion for that of the learned magistrate. 17. I do not think it could fairly be said that the imposition of unsuspended prison sentences totalling effectively 14 months is manifestly excessive. The non-parole period, having in mind the gravity of the offences, the head sentence and the appellant's previous conviction, could not be regarded as excessive. 18. The appellant, on his appeal, has expressed his remorse for what happened and has said, and I see no reason not to accept it, that there will be some financial embarrassment caused by his having to serve a prison sentence. He will not, for instance, be able to keep up payments on things that he was buying, or the rent of the flat that he was occupying. 19. It is a regrettable thing that the consequences of crime and the resultant penalty upon conviction may have an economic impact on those responsible - sometimes, indeed, on their relatives. I am afraid that that cannot generally be made a reason for setting aside the sentence that would otherwise be regarded as appropriate. 20. For all these reasons there is no alternative, in my view, to the dismissal of the appeal, and that will be the order.