Robert Shane Curnow v SA Police No. SCGRG 93/1073 Judgment No. 4078 Number of Pages 4 Criminal Law Sentencing

[1993] SASC 4078

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Criminal law - sentencing - breaking, entering and larceny and criminal damage - sentencing of imprisonment for fifteen months and two months to be served cumulatively - non-parole period twelve months - youthful offender - long record of prior offending - not represented before learned Special Magistrate - appeal - further information as to prospects of rehabilitation presented on hearing of appeal but not placed before learned Special Magistrate - nevertheless sentences of imprisonment not manifestly excessive and order that they be served cumulatively appropriate - refusal to suspend sentence also appropriate - however shorter non-parole period justified - appeal allowed - non-parole period reduced to nine months.

HRNG ADELAIDE, 19 July 1993 #DATE 19:07:1993
Counsel for appellant:     Mr B P O'Reilly
Solicitors for appellant:    Legal Services
   Commission
Counsel for respondent:     Mr S Gupta
Solicitors for respondent: Crown Solicitor for
   South Australia

ORDER
Appeal allowed.

JUDGE1 MULLIGHAN J This is an appeal against the sentence imposed by a learned Special Magistrate sitting in the Magistrates Court (Criminal Division) at Para Districts on 5th May 1993. The appellant pleaded guilty to breaking and entering a school and larceny and criminal damage. On the first charge he was sentenced to imprisonment for fifteen months and on the second charge to imprisonment for two months. 2. The sentences were ordered to be served cumulatively and the non-parole period of twelve months was fixed. Both the head sentence and the non-parole period were ordered to commence from that day. He was ordered to pay $250 by way of compensation to the Education Department with respect to damage to the school. 3. The appellant is a single man aged nineteen years. He has a long record of prior offending commencing in 1986 when he was found guilty of larceny, through to 1991 when he was again found guilty of larceny. During that period he had eleven appearances before the Childrens Court for various offences, including housebreaking and larceny and other offences of larceny. On all occasions he was treated with considerable leniency. On 14th March 1990 he was convicted without penalty of perverting the course of justice, assault and carrying an offensive weapon and was sentenced to imprisonment for three months which sentence was suspended. It appears he carried out the terms of that bond. 4. The appellant has had an unhappy home life. It appears that his parents are law abiding citizens but he has been in conflict with them since a young age. He left school at the age of fifteen years, and it would appear he left home as soon as he was able to do so. He had been placed in State institutions from time to time unassociated with criminal conduct, and was not regarded as reliable by his parents. There were periods when he lived on the streets. 5. In recent times he has met a young woman at whose home he has lived from time to time. He has no personal relationship with her beyond friendship, but it appears that she has a positive influence upon him. 6. The offences which are the subject of this appeal were committed with another man by the name of Bendessi. It appears that the appellant and Bendessi stole a considerable amount of property from the school, totalling in value about $774. The appellant was apprehended on the night of the offence by the police and placed in a cage car, which he proceeded to damage extensively. The cost of the repairs being $311.15. 7. The appellant was not represented when he appeared before the learned Special Magistrate. The co-offender has pleaded not guilty and has not yet been brought to trial. The appellant was offered legal representation but declined. A consequence is that very little was said to the learned Special Magistrate about the background of the appellant and the reasons for the offence. It seems that he was grossly intoxicated by liquor and drugs of a prescribed variety and has little memory of the offences. The learned Special Magistrate took a very serious view of the offending. He placed great emphasis on the need for general deterrence as offences of this nature are prevalent. He had regard to the past record of the appellant and went on to say:
    "This is your first time before an adult court, but most
    offences of this nature are committed by people in your age
    bracket, a group of whom significant deterrence needs to be
    directed. I regard a penalty which stresses punishment and
    general deterrence is required. In fixing the penalty I
    bear in mind your plea of guilty, for which I give you
    credit, but you were caught in the act by the police and
would have been hard pressed to do otherwise." 8. It appears from the remarks of the learned Special Magistrate on penalty that he gave very little, if any, weight to the prospects of rehabilitation of the appellant. A reason for that may well be that he had very little information as to that matter. Nevertheless, it remains that he does not appear to have brought to account, in any substantial way, the prospects of rehabilitation. Information placed before me on this appeal indicates that the appellant does have some prospects of rehabilitation, although it cannot be said that they are particularly well developed at this time. The appellant complains that the sentences of imprisonment are manifestly excessive in light of tariffs set by this Court and having regard to the provision of s.10 of the Criminal Law (Sentencing) Act 1988, that the magistrate erred in not exercising his discretion to impose a suspended sentence and that the amount of compensation ordered was unreasonable as the sentence of imprisonment was not being suspended. 9. I do not think it can be said that these sentences are outside any tariff set by this court. My attention has been drawn to R v Halse (1985) 38 SASR
594, where various tariffs were set with respect to the offence of breaking and entering and larceny. Given the appellant's history of prior offending, it cannot be said that this sentence is outside any tariff. 10. Furthermore, since Halse's case the Criminal Law (Sentencing) Act has been amended. S.12 now provides that the court is obliged to take into account any remissions of sentence to which a prisoner may become entitled under the Correctional Services Act 1982. The sentence of two months for criminal damage is not excessive in the circumstances given the appellant's past record including four offences involving violence. Even though the learned Special Magistrate has not placed emphasis upon rehabilitation, had he done so the sentences which he imposed would still have been justified and the appeal against the head sentences must be dismissed. 11. Furthermore, I think the magistrate was justified in ordering that they be served cumulatively. They involved separate incidents of conduct and of a different nature although they occurred on the same night and the order that they be served cumulatively does not afford the totality principle. 12. The appeal against the order for compensation must be dismissed. The learned Special Magistrate was asked to make the orders and they were well within power and within the proper exercise of discretion even though the appellant is required to serve a term of imprisonment. The learned Special Magistrate does allow substantial periods of time within which the appellant may make payment. 13. The learned Special Magistrate declined to suspend the sentences. I have had regard to the observations that I made in Paterson v Stevens (1992) 57 SASR 213. In that case I had to consider the correct sentencing approach to a young repeat offender appearing for the first time in an adult court and I concluded that the prospects of rehabilitation must be given considerable weight. Of course, that may only be done if they exist. The predominant purpose of punishment is to protect the public. Sometimes, and particularly with a young person, the protection of the public is advanced by the rehabilitation of the offender: Yardley v Betts 22 SASR 108 per King CJ. Here there was insufficient indication in my view that successful rehabilitation was realistic to justify the suspending of the sentences given the very bad record of the appellant. However, that is not to say that the same account did not have to be taken of the prospects of rehabilitation such as they are. I think the learned Special Magistrate should have done so in the context of the non-parole period. To order a non-parole period at twelve months does, in my view, constitute a miscarriage of the sentencing discretion because it does not take account of the very great assistance that can be given to this appellant by his serving a significant part of this sentence whilst at liberty in the community under the strict conditions of parole which will assist him not only in making the adjustment between life in prison and life after sentence, but also in affecting successful rehabilitation through the valuable assistance that he will obtain from supervision under parole. I think it has been established that there was an error in the sentencing discretion by there being inadequate, if any, attention to the prospects of rehabilitation and, in my view, the most effective way in the interests of justice of giving effect to that matter is by reducing the non-parole period from twelve months to nine months. I allow the appeal for that purpose. I quash the non-parole period and fix a new non-parole period at nine months to date from the 5th May 1993.