ROBERTS v POLICE - [2013] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROBERTS v POLICE
[2013] SASC 117
Judgment of The Honourable Justice David
19 July 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
Appeal against sentence. Appellant pleaded guilty to sixteen offences, namely two counts of unlawfully on premises, four counts of duty to hold licence or learner's permit, three counts of drive unregistered vehicle, three counts of drive uninsured vehicle, two counts of attempted serious criminal trespass in a place of residence, one count of serious criminal trespass in a place of residence and one count of fail to comply with bail agreement. The appellant was sentenced pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to a single term of imprisonment of 23 months with a non-parole period of 12 months. In considering the question of whether or not to suspend the term of imprisonment, the Magistrate concluded that the subject offending was too serious for suspension of the sentence. The appellant appeals this decision on the grounds that, although the Magistrate set out matters personal to the appellant in the context of setting the sentence, the Magistrate erred by failing to bear those matters in mind when subsequently considering whether or not to suspend the sentence.
Held: The Magistrate carefully set out those matters personal to the appellant in the body of the sentencing remarks. The fact that these matters were not agitated and considered afresh in relation to the separate exercise of determining whether there was good reason to suspend the sentence, but rather referred to in abbreviated form at this stage, is not an indication that the Magistrate did not take these matters into account when it came to the question of suspension. The Magistrate was obviously concerned about the repetitive and serious nature of the offending, which overbore those matters personal to the appellant when it came to considering whether good reason existed for suspending the sentence. It cannot be said that the Magistrate erred in finding that there was no good reason to suspend the sentence and, therefore, there is no basis for interference by this Court. Appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

ROBERTS v POLICE
[2013] SASC 117
Magistrates Appeal: Criminal

DAVID J: This is an appeal against sentence. The appellant pleaded guilty to 16 offences committed between 24 May 2012 and 31 August 2012. The Magistrate, in her sentencing remarks, summarised the offending as follows:
The facts of the offences with which you are charged are as follows: On 23 August 2012 you were unlawfully on premises at a house on Avenue Road, Cumberland Park. You approached a householder at the address and indicated that you were there to do gutter repairs. This was false. You were wearing a shirt with “Stratco” on the pocket. When you were challenged, you left the premises.
On the same date you were unlawfully on premises at a house on Corunna Avenue, Melrose Park. You approached that householder in exactly the same manner and when challenged you left the premises.
On the same date you drove a motor vehicle on two separate occasions when that vehicle was unregistered and uninsured and you did not hold a driver’s licence.
On 31 August 2012 you attempted to break into a house using a crowbar. The aluminium frame and lock on the study and laundry doors was [sic] damaged. You were disturbed when at the rear of the house and fled. You drove off in an unregistered and insured vehicle without a licence.
On 24 May 2012 you attempted to enter a home by forcing a rear window. An alarm was set off and no entry was gained.
On the same date you broke into a home through a rear laundry window after removing a fly screen. No items were stolen although you appeared to have rummaged through drawers in the house. On the same date you drove while unlicensed and that breached a condition of your bail.
Your offending of dishonesty show a degree of preparation and guile in that you wore clothing designed to trick a casual bystander into believing that you had a genuine reason for being on the property rather than being there to commit an offence. They were not just spur of the moment or opportunistic. As to your prior convictions, they are for driving matters and dishonesty.[1]
[1] Remarks on Penalty of Ms M. Hribal SM dated 29 April 2013 (amended 20 June 2013) at [4]-[10].
By way of s 18A of the Criminal Law (Sentencing) Act 1988 (SA), the Magistrate imposed a head sentence of 23 months and one week, with a non‑parole period of 12 months. Her Honour set out in her sentencing remarks the method by which she came about that sentence as thus:
As to the unlawfully on premises committed on 23 August 2012, I commence with a notional head sentence of 6 months that I reduce to 4 months on account of your plea. As to duty to hold licence or learner’s permit, drive unregistered and drive uninsured there will be convictions with no further penalty. As to the second unlawfully on premises, I commence with a notional head sentence of 6 months that I reduce to 4 months on account of your plea. These sentences will be served concurrently. As to the duty to hold licence or learner’s permit, drive unregistered and drive uninsured there will be convictions with no further penalty. As to the attempted serious criminal trespass on the 31 August 2012, I commence with a notional head sentence of 12 months that I reduce to 9 months on account of your plea. This sentence of imprisonment will be served cumulatively. As to the duty to hold licence, drive unregistered and drive uninsured there will be convictions with no further penalty.
As to the attempted serious trespass on 24 May 2012, I commence with a notional head sentence of 12 months that I reduce to 9 months on account of your plea. As to the duty to hold a licence or learner’s permit, drive unregistered and drive uninsured motor vehicle on road there will be convictions and no further penalty. This sentence of imprisonment will be served cumulatively upon the earlier sentences but concurrently with the following sentence.
As to the serious criminal trespass committed on 24 May 2012 I commence with a notional head sentence of 14 months that I reduce to 12 months on account of your plea. As to the breach bail I commence with a notional head sentence of 10 days that I reduce to 1 week on account of your plea. As to the duty to hold licence or learner’s permit there will be a conviction and no further penalty.
The sentences of imprisonment total 25 months and 1 week. I will utilise s.18A of the Criminal Law (Sentencing) Act and impose one penalty.
I give you partial credit for the time that you have spent on home detention and the credit I give is 2 months. This reduces your sentence to 23 months and 1 week. I fix a non parole period of 12 months.[2]
[2] Remarks on Penalty of Ms M. Hribal SM dated 29 April 2013 (amended 20 June 2013) at [16]-[20].
The Magistrate then proceeded to consider her discretion whether or not to suspend that term of imprisonment, which led her to ultimately conclude that the offending was too serious to suspend.
The appellant now appeals against that decision not to suspend. There is no appeal against the length of the sentence.
The Magistrate in her sentencing remarks sets out the personal history of the appellant. At the time of sentencing, he was aged 30, single and unemployed. He had two young children who were cared for by a various relatives. He was educated until Year 11 at school, when he left at the age of 17 years. He has an employment history as a labourer, a factory worker and a car dealer. Two psychologists who examined the appellant gave an opinion that he was of borderline intellectual ability, had poor literary skills and had an adjustment disorder.[3] Also, the appellant has a long history of drug abuse, namely cannabis and more recently methamphetamine, which had seen him hospitalised with symptoms of paranoia and auditory hallucinations.
[3] Report of Dr White, dated 30 September 2012 and report of Mr Ireland, dated 12 November 2011.
When the appellant first appeared in the Magistrates Court on 11 February 2013, he was accepted into the 12-month Drug Court program. On 8 April 2013, his participation in the program was terminated because of his inability to provide urine samples, which was an integral part of the program.
The Magistrate made it clear in her sentencing remarks that there was to be no penalty for failing to complete the program.
The appellant had an offending history for a number of driving and dishonesty offences.
The appellant now argues that the Magistrate erred in her discretion not to suspend. As I understand the argument, it is put that, although the Magistrate set out matters personal to the appellant in the context of setting the sentence, she did not bear those matters in mind when subsequently considering whether to suspend the sentence. Counsel for the appellant, Ms Gristwood, points out to this Court that the only comments the Magistrate made before refusing to suspend the sentence of imprisonment were:
...Your counsel asks that I consider this where as [sic] prosecution submit that your sentence should be served. I believe that your offending is too serious to suspend the sentence but I have fixed a lower than normal non parole period to reflect your previous offending history and the matters that I have had put to me by your counsel.[4]
(Emphasis in original)
[4] Remarks on Penalty of Ms M. Hribal SM dated 29 April 2013 (amended 20 June 2013) at [21].
Ms Gristwood argues that those matters personal to the appellant should have been agitated again and considered afresh in relation to the separate exercise of whether there was good reason to suspend and not merely referred to in the abbreviated form as shown in the excerpt above.
I reject that argument.
The Magistrate has carefully set out those matters personal to the appellant and, in the circumstances of this case, the fact that she has not repeated those in detail when considering the exercise of her discretion in the context of the question of suspension, is no indication that she did not take those matters into account, she clearly did. The Magistrate was obviously concerned about the repetitive and serious nature of the offending, which overbore these matters. I cannot say that the Magistrate has erred in finding that there was no good reason to suspend and therefore there is no basis for interference by this Court
I dismiss the appeal.