Robson v Police - [2007] SASC 395

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROBSON v POLICE
[2007] SASC 395
Judgment of The Honourable Justice Bleby
12 November 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against conviction – appellant charged with aggravated serious criminal trespass (non-residential) and theft – charge amended to basic serious criminal trespass (non-residential) and theft – plea of guilty to amended charge – endorsements on Magistrates Court file and sentencing remarks indicate that the appellant was convicted of and sentenced for aggravated serious criminal trespass (non-residential) – conviction beyond power – conviction of offence not charged or pleaded to – appeal allowed – conviction of basic serious criminal trespass (non-residential) substituted.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence – appellant sentenced earlier by a different Magistrate for 20 offences, including five counts of basic serious criminal trespass, to 36 months imprisonment with a non-parole period of 18 months – separately sentenced for one offence of basic serious criminal trespass (non-residential) and associated theft to 24 months imprisonment – existing non-parole period extended by eight months – whether second Magistrate failed correctly to identify offences for which appellant sentenced – whether adequate credit given for plea of guilty – whether sufficient regard to appellant’s prospects of rehabilitation – whether incorrect credit given for period in custody – whether principle of totality with earlier sentence considered – consideration of relevance of earlier sentence – whether sentence manifestly excessive – appeal allowed – sentence set aside – sentence of five months imprisonment substituted – non-parole period extended by a period of three months.
Criminal Law Consolidation Act 1935 (SA) ss 134, 169; Summary Procedure Act 1921 (SA) ss 5, 103; Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 19, 31, 32, referred to.
R v McInerney (1986) 42 SASR 111; Sowter v Trenornden (1989) 153 LSJS 497; R v Place (2002) 81 SASR 395; R v RGT [2001] SASC 386; R v Jackson (1998) 72 SASR 490, applied.
Police v El-Zaibak (2004) 90 SASR 217, distinguished.
R v Becker (2005) 91 SASR 498; Frank v Police [2007] SASC 288, discussed.
Shrubsole v Rodriguez (1978) 18 SASR 233; R v Smith (1983) 32 SASR 219; Johnson v The Queen (2004) 78 ALJR 616, considered.

ROBSON v POLICE
[2007] SASC 395
Magistrates Appeal: Criminal
BLEBY J.
Introduction

These appeals illustrate the difficulties that can arise and the errors which can occur when differently constituted courts with different prosecutors and different counsel are engaged in a second sentencing process for offences plainly linked to others for which an earlier sentence has been imposed, but where, out of ignorance or carelessness, inadequate attention is given to the earlier sentencing process. Regrettably, the appeals have also exposed some other fundamental flaws in the second sentencing process.
Sentencing for the earlier offences
On 16 March 2007 the appellant was sentenced in the Adelaide Magistrates Court to 36 months imprisonment with a non-parole period of 18 months, the sentence and non-parole period both commencing from that date. The offences for which the appellant was sentenced (“the earlier offences”) were numerous. There were five counts of non-aggravated serious criminal trespass (non-residential), one count of non-aggravated serious criminal trespass (place of residence), two counts of larceny, one breach of a community service order, two counts of failing to comply with a bail agreement, one count of driving under disqualification, one count of stating false personal detail, one count of unlawful possession, three counts of interfering with a motor vehicle without consent, one count of possession of drugs and two counts of dishonestly taking property without the owner’s consent.
The appellant had been remanded in custody since 23 January 2007. That and earlier periods of custody and home detention were taken into account by the sentencing Magistrate in fixing the sentence imposed.
The earlier offences had been committed during the period 23 July 2001 to 25 March 2006. It is apparent that the appellant was accepted into the Drug Court rehabilitation program, which explains the delay in sentencing for those offences. It is also apparent that his participation in that program came to an end when he was charged with the offences the subject of this appeal (“the later offences”. Those offences were one charge of aggravated serious criminal trespass (non-residential), contrary to s 169(2) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) and an associated charge of theft of a flat screen computer monitor, contrary to s 134(1) of the CLCA. The later offences occurred between 16 and 19 November 2006, but the appellant was not arrested and charged until 23 January 2007.
All of the earlier offences were either minor indictable offences[1] or summary offences and were capable of being dealt with in the Magistrates Court. The minor indictable offences were required to be dealt with in the Magistrates Court unless the appellant elected for trial in a superior court.[2] There was no such election. The offence of aggravated serious criminal trespass for which he was arrested and which terminated the Drug Court program is a major indictable offence and not capable of being dealt with in the Magistrates Court. I infer that for that reason it was handled in the Magistrates Court in a different prosecuting stream. The earlier offences eventually came on before a Magistrate and were dealt with as described above on 16 March 2007. In arriving at the total sentence the Magistrate not only took into the account the period served in custody up to that date, but in his sentencing remarks fixed a notional penalty of six months imprisonment for each of the five offences of non-aggravated serious criminal trespass (non-residential). To the aggregated notional figure the Magistrate applied a discount of 25% for the appellant’s plea of guilty, thus effectively imposing a sentence of four and a half months imprisonment for each of those five offences.
[1] As defined in s 5, Summary Procedure Act 1921 (SA).
[2] Section 103(3), Summary Procedure Act 1921.
Sentencing for the later offences
After the appellant had been sentenced in the Magistrates Court on 16 March for the earlier offences there were a number of separate appearances for the later offences. They did not coincide at any stage with the appearances giving rise to the 16 March sentence for the earlier offences
At a hearing on 8 May 2007, and after negotiation between the appellant’s then solicitor (not the solicitor who had represented the appellant on the charges of the earlier offences) and prosecuting authorities, the information was amended to a charge of non-aggravated or basic serious criminal trespass (non-residential) under s 169(1) of the CLCA, thus becoming a charge of a minor indictable offence and capable of being dealt with in the Magistrates Court. On that occasion it was intimated that a plea of guilty would be entered, and the appellant was remanded to 17 July 2007.
On 17 July 2007 the appellant pleaded guilty to the later offences. The prosecutor gave a brief outline of the facts and informed the Magistrate that the appellant had been in custody on these matters since 23 January 2007. He did not inform the Magistrate that the period spent in custody between 23 January and 16 March had been taken into account when the appellant was sentenced for the earlier offences.
The prosecutor tendered the appellant’s antecedent report which included a large number of vehicle offences, property offences including non-aggravated serious criminal trespass and larceny, and breaches of bail and breaches of bond and parole. The record included the offences and sentence imposed on 16 March for the earlier offences.
The prosecutor drew attention to the offending dealt with on 16 March and “invited the learned sentencing Magistrate to consider totality, although [he] submitted that totality had little application in this matter”.[3] Counsel for the appellant then made submissions relevant to the appellant’s background and personal circumstances and the circumstances which led to the disruption of his progress in the Drug Court.
[3] Affidavit of the prosecutor, para 8.11.
The Magistrate then imposed a sentence of 24 months imprisonment cumulative upon the head sentence imposed on 16 March 2007, and extended the existing non-parole period by eight months. The Magistrate’s sentencing remarks were brief and were as follows:
I give Mr Robson credit for his pleas of guilty to charges of aggravated serious criminal trespass and dishonestly taking property without owner’s consent. As to the offences, although I do not have any up to date statistics, I have no reason to think these offences are anything other than prevalent.
Mr Robson is not to be sentenced on the basis of his past offending, but the extent and seriousness of his past offending reduces the leniency that may be extended. He had an appalling childhood and it is hardly surprising that he felt a stranger in society. It is hardly surprising that drugs recognised his isolation and befriended him.
I accept he has made some progress in the Drug Court, progress that was interrupted by other concerns. If his life on this planet is ever to be more fulfilling than the life mapped out for him by those who neglected him as a child, he will continue that progress both in custody and out of it.
I find both offences proved. There will be convictions on both. I will reflect the time spent in custody on these matters in calculating the extension of a non-parole period. Pursuant to section 18A of the Criminal Law Sentencing Act, there will be one penalty. A sentence of 24 months imprisonment is imposed, cumulative upon the head sentence imposed on 16 March 2007. I extend the non-parole period by eight months. Court fees are waived and only the normal prosecution costs and levies will apply.
It will be necessary to refer to some aspects of those remarks later in these reasons. However, it should be noted for present purposes that the Magistrate referred to the appellant’s plea of guilty to charges of “aggravated serious criminal trespass”, being the original charge which had been amended to a charge of non-aggravated or basic serious criminal trespass on 8 May 2007. The maximum penalty for the latter is 10 years imprisonment. The maximum penalty for the aggravated offence is twice that figure.
The appeals
The appellant initially appealed against his sentence only on the ground that it was manifestly excessive. At the first hearing before me that ground was amended and the grounds expanded to the following:
1.The Learned Sentencing Magistrate erred in identifying the offences for which he was to sentence the appellant.
2.The Learned Sentencing Magistrate erred in failing to give credit or adequate credit for the Appellant’s plea of guilty.
3.The Learned Sentencing Magistrate erred in failing to have regard, or sufficient regard to the appellant’s prospects of rehabilitation.
4.The Learned Sentencing (sic) erred in failing to have regard to the totality of the sentences imposed on 16 March 2007 and 17 July 2007.
5.The sentence is manifestly excessive.
A perusal of the Magistrates Court file indicated that, not only had the Magistrate referred to the offence of aggravated serious criminal trespass in his sentencing remarks, but that the endorsement on the file indicated that, notwithstanding the amendment to the Information, the appellant had pleaded guilty to and was convicted of aggravated serious criminal trespass. When this was pointed out to the appellant’s counsel, he sought and obtained an adjournment in order to institute an appeal against that conviction. There is therefore now an appeal against both the conviction as recorded and the sentence imposed by the Magistrate.
The appeal against conviction
The offences with which the appellant was originally charged were an aggravated offence of serious criminal trespass (non residential), for which the maximum penalty was 20 years imprisonment,[4] and taking property without the owner’s consent. By virtue of s 5 of the Summary Procedure Act 1921 (SA), the first change was of a major indictable offence. The only indictable offences for which the Magistrates Court can enter a conviction and impose a penalty are minor indictable offences where the defendant has not elected for trial by a superior court.[5] The offence to which the appellant eventually pleaded guilty was a minor indictable offence. Nevertheless, the Magistrate purported to record a conviction for the major indictable offence. He had no power to do so. His only option, if such an offence were admitted, would have been to commit the appellant to a superior court for sentencing.
[4] Section 169(1), CLCA.
[5] Section 103, Summary Procedure Act 1921 (SA).
The conviction as recorded was clearly invalid. The appellant had only pleaded guilty to the amended charge of a minor indictable offence, and a conviction of that offence should have been recorded. The appeal against conviction must be allowed and the conviction of aggravated serious criminal trespass (non-residential) must be set aside and a conviction for the offence of basic serious criminal trespass (non-residential) substituted. The conviction of the associated offence of dishonestly taking property should stand.
The appeal against sentence
The sentencing process miscarried in a number of ways. In the first place, the Magistrate said that he gave credit for the appellant’s pleas of guilty “to charges of aggravated serious criminal trespass and dishonestly taking property”. That may have been a mistake on the part of the Magistrate, and one would expect the Magistrate to be aware that he was not able to impose a sentence for a major indictable offence. However, when the actual conviction recorded on the Magistrates Court file is also that of aggravated serious criminal trespass, and without any further explanation, there would appear to be a serious risk that the Magistrate was in fact sentencing for an offence to which the appellant had not pleaded guilty and with which he was not then being charged. In my opinion, that renders the sentence sufficiently unsafe to require that it be set aside and that the appellant be re-sentenced. Even if the references to the aggravated offence were an unintended slip by the Magistrate, justice must not only be done but must also be seen to have been done. The appellant must be seen to have been sentenced for the appropriate offence.
In the second place, the Magistrate, in paragraph two of his sentencing remarks, expressly took into account the appellant’s previous convictions, the record of which had been placed before the Magistrate. It was that record which the Magistrate considered reduced the leniency that could be extended. To the extent that that record included, as it did, the large of number of convictions and the sentence for the earlier offences, I consider that the Magistrate erred in taking those into account. The Magistrate did not say that he had excluded those convictions from consideration. By his reference to the record it must be presumed that he did not. Such convictions, although recorded after the later offences had been committed, may sometimes properly be taken into account.[6] However, for reasons which appear below, they should have been regarded, in this case, as being associated with the offending for which the appellant was then being sentenced, and not independent of it.
[6] R v Mclnerney (1986) 42 SASR 111; Sowter v Trenorden (1989) 153 LSJS 497.
Thirdly, while the Magistrate gave credit to the appellant for his pleas of guilty, it is not apparent from the Magistrate’s reasons how, in what respect or to what extent that was done. The Magistrate clearly imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). He did not explain how he arrived at that. If, for example, it was on the basis of two concurrent sentences of two years, he was imposing the maximum sentence he could impose under s 19 of the Sentencing Act. Many other notional combinations were possible. It is therefore impossible to tell what the Magistrate’s starting point was and what was allowed in the head sentence for the plea of guilty.
Failure to specify the amount of the discount does not, in itself, constitute appealable error.[7] However, failure to do so, as in this case, renders it difficult, if not impossible, to ascertain the true basis on which the sentence was imposed. The Full Court has made it quite clear that sentencing courts should identify the specific reduction given in respect of a plea of guilty.[8] As will be seen below, in the circumstances viewed as a whole, the head sentence was excessive. Yet for a head sentence of 24 months added on to the earlier sentence, the extended non-parole period was a mere eight months, after taking into account what the Magistrate perceived was time spent in custody for these offences, a period of seven weeks and three days. That is very generous for the head sentence imposed. In the absence of any detailed reasoning, it might suggest that the discount for the plea may only have been applied to the non-parole period and not to the head sentence. While there may be other reasons for it, the apparent discrepancy is unexplained.
[7] R v Place (2002) 81 SASR 395 at 425, Doyle CJ, Prior, Lander and Martin JJ, [2002] SASC 101 at [80].
[8] Ibid at 425, [83].
Fourthly, time spent in custody was wrongly taken into account by the Magistrate, even though to the benefit of the appellant. Time spent in custody before sentence (i.e. from 23 January to 16 March 2007) had been taken into account by the Magistrate who sentenced the appellant on 16 March 2007 for the earlier offences. The appellant had been given the benefit of that period in the earlier sentence. It amounted to double counting to allow the benefit again. In defence of the Magistrate, however, he was misled by the prosecutor who asserted in the submissions he made that “the appellant had been in custody on these matters since 23 January 2007”.[9] That was plainly wrong. Nevertheless, it is not even clear from the Magistrate’s sentencing remarks what period he did take into account. Taken literally, the submission of the prosecutor would have required a discount of some four months. However, the Magistrate was aware that the appellant had been sentenced for other offences on 16 March and must have known that he could not have been in custody in respect of these offences at least from that date. The prosecutor too was aware of the earlier custodial sentence. His instructions as to the reasons for the appellant’s custody from 23 January 2007 should at least have alerted him to the possibility that that period had been taken into account in the earlier sentence and have caused him to make some inquiries in that regard.
[9] Affidavit of the prosecutor, para 8.5.
Fifthly, under s 31 of the Sentencing Act, the Magistrate had a discretion as to whether the sentence he fixed should be cumulative upon or concurrent with the sentence the appellant was then serving. The Magistrate seems not to have addressed that question, perhaps because he was not aware of the close association between these offences and the earlier offences. Nevertheless, having decided that the penalties should be cumulative, the Magistrate’s obligation under s 32 of the Sentencing Act was then to review the non-parole period and to extend it by such period as the Court thought fit. The Magistrate purported to do that but without reference to the date of commencement of the earlier sentence, as he should have done.[10] Indeed, in reviewing the non-parole period for the new total head sentence it would be necessary to take into account any periods spent in custody in respect of any of the offences, being periods which do not form part of the head sentence. There is no suggestion from the Magistrate’s reasons in this case that he had regard to any such matters in extending the non-parole period.
[10] R v RGT [2001] SASC 386 at [20]–[21], Doyle CJ with whom Lander and Wicks JJ agreed.

Sixthly, while the Magistrate purported to take time spent in custody into account in calculating the extension of the non-parole period, there was no suggestion that he did so in respect of the head sentence. If it was proper to take time spent in custody into account at all, it also had to be applied to the head sentence. There was therefore a patent inconsistency in the approach of the Magistrate to fixing the head sentence and the non-parole period.
Totality and Consistency
Some of the errors I have referred to benefited the appellant. Some did not. However, the most significant error in the sentencing in this case was the failure properly to have regard to what had happened in the Magistrates Court on 16 March 2007 and what had happened since. It would appear that the only reason that the Magistrate who sentenced the appellant for the earlier offences did not deal with the later offences was that at that time the charge in respect of the later offences included a charge of a major indictable offence. With the amendment of the Information on 8 May 2007 the charge became one of a minor indictable offence which the Magistrates Court could deal with. Had the appellant been charged with the amended offence from the outset, the later offences would undoubtedly have been dealt with by the Magistrate on 16 March 2007. It was these later offences which precipitated the arrest of the appellant and his sentencing for the earlier offences. The sentencing for the two later offences could not be divorced from what took place on 16 March. The process required much closer attention to what had transpired on 16 March. Instead the Magistrate seems to have regarded that sentence only for the purpose of fixing a commencement date for this sentence and for extending the total non-parole period.
The large number of offences involved and their interdependence required that a sentencing court at least consider the question of totality after fixing individual sentences for the offences in question, even where the sentence for some of the offences in this same series was imposed by a different sentencing Magistrate.[11] That was not done by the Magistrate in this case. It was done by the Magistrate who sentenced the appellant on 16 March. A proper consideration of the totality principle would have required a much lower head sentence.
[11] R v Jackson (1998) 72 SASR 490.
Not only was the issue of totality relevant to this sentence but the sentence required a degree of consistency with what had gone before, especially once the Information was amended. This later offence of non-aggravated serious criminal trespass appeared to be in no different category from the other five offences of non-aggravated serious criminal trespass for which the appellant was sentenced on 16 March. In each of those cases the Magistrate’s starting point was a period of six months imprisonment which, when aggregated with the notional penalties of all the other offences, was then reduced by some 25% for the pleas of guilty. It is difficult to escape the conclusion that, had the appellant been properly charged on his arrest and sentenced on 16 March, the starting point for the sentence for these offences would have been six months imprisonment, reduced to something in the order of four and a half months on account of the appellant’s plea of guilty. This is in stark contrast with the actual sentence imposed of 24 months imprisonment, after supposedly allowing a discount for the plea of guilty. That sentence is also entirely out of proportion to the 45 months starting point, after credit for the plea of guilty, adopted by the Magistrate on 16 March for the large number of earlier offences of which the appellant was then convicted.
This is not something for which the Magistrate can be criticised. He seems not to have been alerted to the obvious inter-relation between the earlier and the later offences. There should have been a cross-referencing at all times to the two prosecution streams that were followed for the minor indictable and summary offences on the one hand, and for the major indictable offence, on the other hand. The Magistrates Court should have been informed of progress of the other prosecution and sentencing on each occasion. The Magistrate on 16 March should have been informed of the state of the prosecution of the later offences. If it were the case and if he were told, for example, that negotiations of a plea to the later offences was occurring, it might have been appropriate to adjourn those proceedings. Once the earlier offences were disposed of, full details of the penalty and of the circumstances relevant to that penalty and the method of its fixing should have been provided to the second Magistrate.
The sentencing remarks
It is well established that sentencing remarks are not reasons for judgment. They are primarily spoken to and for the benefit of the prisoner, following the exercise by the Court of a wide judicial discretion.[12]
[12] Shrubsole v Rodriguez (1978) 18 SASR 233 at 235-236, Wells J.
They are not to be regarded by appellate courts as if they were a reasoned judgment.[13] As the Full Court said in R v Becker:[14]
A sentencing judge is not required to deal with every matter which may be relevant to the final determination. It is not necessary to mention every topic referred to in s 10 of the Criminal Law (Sentencing) Act1988 (SA) (the Sentencing Act). It is sufficient if the remarks enable an appellate court to identify and understand the reasoning of the judge so that it may properly perform its appellate duties.
[13] R v Becker (2005) 91 SASR 498 at 503, per curiam, [2005] SASC 186 at [21].
[14] Ibid at 503, [20].
I also respectfully agree with what Sulan J said in Frank v Police:[15]
The purpose of requiring a sentencing Judge to give reasons is to inform the defendant upon what facts the court has relied in passing sentence, to what aggravating and mitigating factors the court has had regard, and to identify the weight the court has placed upon those factors, including the personal circumstances of the defendant. The court should indicate whether the nature of the offending is such that greater emphasis is placed on general and personal deterrence when weighed against personal circumstances, and to what weight the court has given rehabilitation in the circumstances. The court should indicate whether the defendant’s age has influenced the sentence and what weight has been given to a person’s past record. The purpose of reasons is also to enable an appellate court to understand the process gone through by the sentencing court when determining sentence, and to ensure that the sentencing process is transparent.
…
It is not incumbent upon a magistrate to mention every factor to which the Court has had regard. Sentencing is not an exercise of completing a checklist and then mentioning every item on the list in remarks. The extent of remarks will depend upon the circumstances of each case. Nevertheless, it is a requirement that a magistrate in passing sentence give sufficient reasons to enable a defendant to understand the facts upon which the magistrate has relied, the extent to which the magistrate has relied on prior antecedents, any reduction on account of a plea of guilty and the extent to which the magistrate has had regard to the current personal circumstances of the defendant.
[15] [2007] SASC 288 at [59], [62].
While it may not be a maintainable ground of appeal by itself that the sentencing remarks were inadequate, if the reasoning of the sentencing judge is unclear, error may well be more readily inferred. I have said enough to indicate that it is not clear in some cases what influenced the Magistrate to take the course he did. Nor is it clear, in some cases, whether he had regard to all relevant matters. Where the reasoning in sentencing remarks is inadequate and relevant matters are not adverted to, the risk of error will be all the greater. It is apparent in this case that numerous errors have occurred which might not have occurred if all relevant matters had been addressed in the sentencing remarks.
Conclusion
I have said enough to indicate that in my opinion the sentencing discretion miscarried in a number of respects, some of which were favourable to the appellant and some of which were not. By reference to the amended grounds of appeal, first, there is sufficient doubt as to whether the Magistrate was sentencing the appellant for aggravated serious criminal trespass or for some lesser offence. That is sufficient to justify setting the sentence aside.
Secondly, it is not possible to tell from the sentencing remarks whether adequate credit was given for the appellant’s plea of guilty and whether that was applied merely to the review of the non-parole period or whether it was applied to the head sentence. The severity of the head sentence might suggest that it was not.
Thirdly, it is unclear whether sufficient regard was had to the appellant’s prospects of rehabilitation. The Magistrate who sentenced the appellant for the earlier offences gave careful attention to the appellant’s past attempts at rehabilitation from his drug addiction which was the predominant influence on his recent offending. In constructing an appropriate sentence that Magistrate also gave careful attention to aspects of rehabilitation for the future. It is not clear that all that relevant information was placed before the Magistrate for sentencing on the later offences. Passing reference was made to the Drug Court program but not to much else. It is difficult to reconcile this sentence with the goals that the earlier sentencing Magistrate apparently had in mind. Indeed, it can almost be said to work against those goals. There was a need for consistency.
Fourthly, the Magistrate did not have sufficient regard to the principle of totality in all the circumstances. He was obliged to consider in far greater detail than seems to be apparent the circumstances influencing the Magistrate on the earlier occasion. It seems apparent that the Magistrate did not have available to him the sentencing remarks of the earlier Magistrate or any of the relevant material that was put before that Magistrate. In that regard the Magistrate in this case derived little assistance from counsel appearing before him. He was led into approaching this sentence as one quite divorced from the earlier sentence that had been imposed. Nevertheless, both counsel and the Magistrate should have been alive to the relevance of the earlier process, and sentencing submissions should have been adjourned, if necessary, in order to ensure some degree of consistency and a proper application of the totality principle. It was not possible to do that without a full understanding of what had happened in the Magistrates Court on 16 March.
Fifthly, as a result of these errors the sentence imposed was manifestly excessive. It cannot be compared with the situation in Police v El-Zaibak,[16] as argued by the respondent. The circumstances and value of property taken were very different in this offending. Had these been ‘stand alone’ offences they would have attracted a higher penalty. Consistency and the application of the totality principle required a lower sentence. The sentence must therefore be set aside and a fresh sentence must be imposed.
[16] (2004) 90 SASR 217, [2004] SASC 380.
Re-sentencing
The circumstances of the offence were that the appellant jemmied open a window to a classroom of an educational institution. A flat screen computer monitor valued at about $300 was stolen from the classroom. The appellant was arrested after his fingerprints were found on the external surfaces and frame of the window. There was nothing extraordinary about the offending. It was typical of a non-aggravated serious criminal trespass (non-residential) in search of convertible property in order to support a drug habit.
At the time of sentencing the appellant was aged 29. He had a substantial history of offending. He never knew his natural father and was raised by his mother and stepfather. He was subjected to physical violence as a child. Domestic violence forced the appellant’s mother to leave the family home. She took the appellant’s two younger siblings with her when she left, and the appellant was left with his stepfather. He was subjected to violence that increased in intensity and frequency. After some time he resumed cohabitation with his mother but only for about one year, when he went to live with his aunt and uncle for about two years. However, during that period the appellant was unsettled, ran away from home, and was unable to remain living with his extended family.
His schooling was disrupted and was marked by discipline problems and poor grades. He was diagnosed as suffering from attention deficit hyperactivity disorder for which he was prescribed medication, but at the age of 14 was made a ward of the State. He then began associating with others who used drugs and who were involved in offending behaviour. He became addicted to amphetamine whilst still at school.
He had periodic unskilled employment, but his life has been dominated by drugs and offending behaviour. He is the father of two children who do not reside with him.
He was said to have made some progress over a period of eight months in the Drug Court program which was disrupted, so it was said, by concern at the exposure of his young son to domestic violence at the hand of the boy’s mother’s then partner. He was clinically depressed, which may explain in part his failure to complete the Drug Court program and the resumption of his offending.
As I have said, there appears to have been information placed before the sentencing Magistrate in March that was not before Magistrate in this case. Among other things the first Magistrate said:
There are some plusses though I want to mention. I am pleased to hear that you have an interest in mathematics and reading. You might be able to better yourself. You have some kids to look forward to. They deserve better from you than doing speed breaking into houses and so on. That is something that will help you get your life back together when you get another chance. Some of the psychological information suggests to me that you have developed some self-perception about where you have been and where you are going to go and you are getting old enough now to take a more mature look at your life. You are 29, you will be in your 30’s by the time you are out again. That is old enough to start thinking about being an adult rather than just running around doing what you have been doing.
Similar factors influenced the setting of the non-parole period by that Magistrate. Having allocated notional starting points for each of the offences, and having allowed a discount for the pleas of guilty, the total notional period of imprisonment was 45 months. The Magistrate then deducted time spent in custody and an allowance for some time on home detention. He concluded:
I will give you 36 months on top. I look at totality, no-one can argue that is excessive for the package of offending. As for non-parole period, normally it would be a substantial part of that head sentence but I recognise the things I have said identify reasons to think you might be do better next time so in recognition of that you have to serve half of it so 18 months to do from now.
As I have mentioned, the notional starting points taken by the Magistrate for each of the five non-aggravated serious criminal trespass (non-residential) offences, some of which were accompanied by larceny, was six months. That would appear to be mercifully low, but it seems that in allocating those notional starting points the Magistrate was already conscious of the effect that the totality principle would have on the ultimate head sentence if he had begun with what might be thought to be more conventional individual penalties. As I have already observed, if the later offences had been before the Magistrate, the additional sentence would probably have been of the order of four and a half months.
Given the nature of the offences, the personal circumstances of the appellant and in particular the prospect of and need for further rehabilitation, a starting point of 12 months imprisonment would be appropriate. After credit for a plea of guilty, that might be reduced to nine months. However, even that sentence, when added to the 45 months allowed by the Magistrate for the earlier offences, becomes unduly burdensome when viewed as a whole.[17] Particularly is this so when there is commonality in the elements of a number of the offences.[18] In my opinion a further reduction to five months not only takes account of that but renders the sentence reasonably consistent with the approach taken by the first Magistrate for similar offences.
[17] R v Smith (1983) 32 SASR 219.
[18] Johnson v The Queen (2004) 78 ALJR 616, (2004) 205 ALR 346, [2004] HCA 15.
In my opinion consistency and totality require that the sentence for these offences should be of that order. Accordingly, the appellant will be sentenced to imprisonment for a period of five months, to be cumulative upon the sentence of 36 months imposed in the Magistrates Court on 16 March 2007.
It is necessary then to review the non-parole period appropriate for the total head sentence. In doing so, I must take into account not only the actual sentence imposed but the additional period taken into account by the earlier sentencing Magistrate for previous periods spent in custody and on home detention bail. The Magistrate gave credit on that account of nine months. He was therefore imposing a head sentence of the equivalent of 45 months and a non-parole period of the equivalent of 27 months, or 60% of the notional head sentence.
The sentence I impose for these offences is a head sentence of five months, making a total effective head sentence of 50 months. Consistency with the first Magistrate’s sentence suggests that the total non-parole period should now be 30 months less the equivalent of nine moths already served to the date of that sentence, or 21 months from 16 March 2007.
It will not always be appropriate merely to apply similar mathematical calculations when adding on an additional sentence and fixing a new non-parole period, but given the nature of the sentence imposed by the first Magistrate, the nature of the offences for which that penalty was imposed, the nature of the offences under review and the identical personal circumstances, such a calculation is appropriate in this case.
Accordingly, the orders of the Court on the appeal are:
1.That the appeal against conviction is allowed.
2.That the conviction of aggravated serious criminal trespass (non-residential) recorded on 17 July 2007 is set aside.
3.That in lieu thereof there is recorded a conviction of basic serious criminal trespass (non-residential).
4.That the conviction of dishonestly taking property is affirmed.
5.That the appeal against sentence is allowed.
6.That the sentence of imprisonment of 24 months is set aside.
7.That there is substituted for that sentence a sentence of five months imprisonment cumulative upon the head sentence imposed in the Magistrates Court on 16 March 2007, making a total head sentence of 41 months from 16 March 2007.
8.That the order extending the existing non-parole period by eight months is set aside.
9.That the non-parole period of 18 months fixed by the Magistrates Court on 16 March 2007 is extended by a period of three months to a total period of 21 months from 16 March 2007.