Rodman v Mount Gambier Police No. Scgrg-97-1418 Judgment No. S6473

[1997] SASC 6473

ANTHONY CHARLES RODMAN  V  POLICE

Magistrates Appeal

LANDER J

This is an appeal from a decision of a magistrate in the Magistrates Court sitting at Mount Gambier on 18 September 1997. The appellant was charged on information that on 14 August 1997 he broke into the Mount Gambier RSL and District Bowling Club and committed therein an offence to which s.170(1)A of the Criminal Law Consolidation Act applies, namely, larceny of a packet of biscuits to the value of $1.70, the property of that club.

The appellant pleaded guilty to the offence on the first return of the information.  He was convicted and sentenced to be imprisoned for four months.  That sentence of imprisonment was suspended upon the appellant entering into a bond in the sum of $100 for a period of twelve months upon conditions (1) to be of good behaviour and to comply with all conditions of his bond, and (2) to be under the supervision of a probation officer for the period of the bond and obey that officer's lawful directions, particularly with respect to receiving counselling for his mental condition.

He was also ordered pursuant to s.53 of the Criminal Law Consolidation Act to pay compensation in the sum of $1,422 to the Registrar of the Magistrates Court at Mount Gambier for transmission to the President of the Mount Gambier RSL and District Bowling Club. He was allowed seven days in which to pay the compensation.

The appellant was at the time of the offence 33 years of age and employed as a postal worker with Australia Post.  At the time of the offence he lived at Thornbury in Victoria. About 5.30 p.m. on Wednesday, 13 August 1997 he drove his Holden panel van from Thornbury to Mount Gambier.  At about 4.45 a.m. on 14 August 1997 he broke and entered the Mount Gambier RSL and District Bowling Club by using a Club Lock from the steering wheel of his motor vehicle like an axe, smashing the front door to the club.  After entering the club he smashed a further five doors inside the clubroom whilst looking for entrance into the office.  He entered the office but took nothing from the office.  He tried to get in the bar area but was unable to make entry.  He took a packet of biscuits to the value of $1.70 and ate those biscuits, leaving the empty packet outside the door through which he had entered the club.  A plate of bread was also taken from inside the clubrooms and that was located near the driveway leading into the car park.  During the time that he was in the club the security lights came on at the rear of the club and an audible alarm activated two or three times.  The appellant, however, left the club without being apprehended.

The appellant started to drive back to Melbourne.  During that travel he decided that it would be better to own up to what he had done, rather than run the risk of being tracked down in Melbourne at some later time.  Consequently he drove back to Mount Gambier and at about 10.50 a.m. on Thursday, 14 August 1997 he approached Senior Sergeant Evans in the rear yard of the Mount Gambier Police Station and told Sergeant Evans that he wished to confess to breaking into the bowling club. He was then video interviewed and he made full and frank admissions and was charged.

The appellant claims, and I accept, that when he left Melbourne he had no intention of committing any crime; indeed, he had no intention of travelling to Mount Gambier. The crime which he committed in Mount Gambier was senseless. It is unlikely but for his confession that he would have been apprehended.  He found himself before the court first because he had committed a senseless crime and secondly because he had immediately confessed to the authorities.

Two reports were put before the learned magistrate: a report of a psychiatrist Dr Gregory White, dated 16 September 1997; and a report of forensic psychologist Megan Struik dated 11 September 1997.  Dr White had been consulted by the appellant prior to the commission of this offence.  It is not necessary in these reasons to set out all of the matters referred to by Dr White.  It is enough to refer to the salient points of his report.

Dr White reported that for the first couple of sessions the appellant presented as a dishevelled, unshaven, tired-looking, vague and slightly agitated man whose effect was euthymic, but whose thinking was markedly over-inclusive and somewhat concrete.  He was suffering from a thought disorder. He was treated by Stelazine and his mental state settled. Dr White's diagnosis was:

`Anthony is a 33 year old man who has suffered from at least three episodes of psychosis marked by thought disorder, delusional thinking and, on this last occasion, abnormal behaviour. His symptoms have been exacerbated in the past by cannabis use, and on this occasion by stressors, in particular his work, and to some extent other issues, eg, relationships and sexuality.  I believe that Anthony has been suffering from schizophreniform psychosis on this occasion and in fact has probably suffered from a longstanding mild degree of schizophrenia.'

Dr White believed it was necessary to continue to treat the appellant but expressed the opinion that the appellant would not re-offend as long as he continued to take his medication and undergo the necessary treatment.

Miss Struik said that in her opinion the appellant was suffering from either a schizotypal personality disorder or paranoid schizophrenia.  She believed that at the time of the offence his contact with reality was very poor and that he committed this crime for the purpose of forcing someone to lock him up.  She said that during her interview with the appellant he showed evidence of fear, confusion and anxiety. His presentation was such that it was difficult to determine the extent of any psychotic symptoms, such as hallucinations or delusions, because he was so guarded in his answers and paranoid. She also believed that it was necessary that he continue treatment with Dr White and continue his medication. She thought that with further treatment and medication his thinking would become more appropriate and he would be better able to deal with stress.

The appellant has no previous convictions whatsoever. At secondary school he passed year ten and then worked in a hotel for five years before moving to Sydney from where he travelled overseas with his girlfriend.  He spent two years overseas, during which he completed a hairdressing course. He remained in employment but in a number of different jobs between 1987 and 1993 and during that time undertook a further course at the Royal Melbourne Institute of Technology.

For the 3 years prior to this offence, he was employed with Australia Post at the Brunswick Postal Centre.

There can be no doubt that this offence was, as I have already said, senseless.  It was committed for the purpose of gaining attention, because of psychotic traits from which the appellant was then suffering.  The offence was entirely out of character.  The appellant was apprehended at his own instigation.

The appellant complains in the notice of appeal that:

`1....... The sentence imposed is manifestly excessive, given the circumstances of the offence and the appellant.

2.The learned magistrate's discretion miscarried, given the mental state of the appellant at the time of the offence, and his inability to pay a substantial fine.

3......... The learned magistrate erred in considering the application of s.16 of the Criminal Law Sentencing Act, which presupposes a prospective sentence by way of fine or community service when, given the sentence, this cannot have been the case.'

Both before the learned Magistrate and before this Court, the respondent accepted that the appellant was undergoing significant stress at the time when the offence was committed.  It was argued before the magistrate that there could be no doubt that it was appropriate to order a conviction, and it was urged before the magistrate that the appropriate penalty was a term of imprisonment.

Before this court on appeal, Mrs Shepherd, who appeared for the respondent, resiled from both those submissions having regard to the mental state of the appellant.  She very fairly, if I might say, submitted that, having regard to the mental state of the appellant, it would not be inappropriate to adopt a sentencing regime to allow the appellant to go without conviction, provided suitable conditions were placed upon a bond to ensure that he underwent appropriate medical treatment and received appropriate medication.

I will return to those matters.

Counsel for the appellant put all of the matters to which I have referred to the learned magistrate.

In making his submissions on behalf of the appellant, he submitted that no conviction ought to be recorded. Given the appellant's character and mental condition, it was unlikely, it was submitted, that the appellant would re-offend. In those circumstances, the learned magistrate, so it was submitted, ought to have regard to s.16 of the Criminal Law Sentencing Act.

The magistrate rejected those submissions, recorded a conviction and imposed a sentence of imprisonment of which he suspended.  Subsequent to the imposition of the conviction and the sentence, the appellant has, in fact, been dismissed from his position with Australia Post.  On 15 October 1997 he received an undated letter in the following terms:

`I refer to the recent inquiry into your conduct in that you have been convicted by a court on burglary charges. The Inquiry Officer has recommended dismissal.  Postal delivery staff are required to demonstrate a major element of care in handling mail articles lodged in the post system. Customers expect to be able to trust their postal service, both in relation to confidentiality of mail and the security of articles sent through the post.

I am aware of mitigating circumstances in relation to your health, but the overriding issue of trust in handling mail is paramount. I am not satisfied that the security of mail is not at risk.

I accept the recommendation that you be dismissed and this will be effective as at close of business, 15 October 1997. 

If you believe this decision to be unreasonable, harsh or unjust, you have the right of appeal.'

I am asked to have regard to the fact of his dismissal for the purpose of determination of this appeal.  I am not sure that that is appropriate or indeed necessary for the appellant to succeed on this appeal to have regard to that dismissal. I think I can have regard to the fact that a conviction and a sentence of imprisonment would have been likely to jeopardise the appellant in his employment.

In my opinion, the sentence imposed on this appellant, having regard to his antecedents, including his previous good character, his mental state at the time of the offence and his subsequent behaviour in approaching the police and identifying the crime and making full and frank admissions, was manifestly excessive. This matter did not, in my opinion, call for a sentence of imprisonment. The Criminal Law Sentencing Act provides that a sentence of imprisonment must not be imposed for an offence unless, in the opinion of the court, the defendant has shown a tendency to violence towards other persons, or the defendant is likely to commit a serious offence if allowed to go at large, or if the defendant has previously been convicted of an offence punishable by imprisonment or any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence.

There was no evidence before the learned magistrate that the defendant had shown a tendency of violence towards any person, or that he was likely to commit a serious offence if he was to go at large.  Nor was there any evidence, indeed the contrary was established, that he had been previously convicted of an offence punishable by imprisonment.

The learned magistrate must have imposed a sentence of imprisonment because he thought it would be inappropriate, having regard to the gravity or circumstances of the offence, not to do so.  I have already referred in detail to the circumstances of the offence, which, in my respectful opinion, did not give rise to a finding that the gravity or the circumstances of this particular offence necessitated the imprisonment of the appellant.

Moreover, the learned magistrate placed too much significance on aspects of general and personal deterrence.

After discussing submissions of counsel for the appellant, he said that considerations of deterrence, both personal and general, must predominate.

I do not agree that this appellant was a person for whom aspects of personal and general deterrence should have predominated. Indeed, in respect of this man in his mental condition, in my opinion, aspects of general deterrence would play less part than would ordinarily be the case.  Parnis v R (1993) 126 ALR 423.

In those two respects, therefore, I think, with respect, the learned magistrate has erred and, as the sentencing discretion has miscarried, it falls to this court to sentence the appellant afresh.

It was argued by the appellant that, as the appellant is unlikely to commit such an offence again and having regard to the character, antecedents and mental condition of the appellant, the court ought to impose a penalty without recording a conviction.

The appellant relied on s.16 of the Criminal Law Sentencing Act, which provides:

“Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion -

(a)    that the defendant is unlikely to commit such an offence again;

and

(b)     that, having regard to:

(i)....... the character, antecedents, age or physical or mental condition of the defendant;

(ii)...... the fact that the offence was trifling; or

(iii).... any other extenuating circumstances, good reason exists for not recording a conviction, the court may impose the penalty without recording a conviction.”

The difficulty with the appellant's submission is that s.16 cannot be invoked in favour of the appellant unless I first reached the conclusion that a fine and/or a sentence of community service should be imposed.

I do not think, having regard to the circumstances of the appellant, that a fine would be an appropriate punishment, particularly having regard to the fact that it is necessary, in this case, to ensure that compensation be paid in respect of the damage done by the appellant to the bowling club premises.  Nor do I think that an order for community service would be appropriate in view of the fact that the appellant resides in Victoria.

It therefore follows, in my opinion, that it is not possible to use s.16 in the way urged by the appellant. However, that is not to say that a conviction must be recorded. Nor, of course, does it mean that I must sentence the appellant to a term of imprisonment.

In the circumstances of this offence, I think it would be appropriate for the court to apply the provisions of s.39 of the Criminal Law Sentencing Act. Indeed, Mrs Shepherd did not argue otherwise in the submissions she put.

Section 39 provides:

“(1)........ Where a court finds a person guilty of an offence, the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond -

(a)...... to be of good behaviour and to comply with other conditions (if any) of the bond; and

(b)...... if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.

(2)...... Where the defendant is discharged under this section

(a)...... no fresh prosecution may be commenced in respect of the offence; and

(b)...... the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.'

What is important with respect to this appellant is to ensure that, for his own sake and for the sake of the community at large, he undergoes appropriate psychiatric treatment and continues to take his medication.  And it is also important, if it is possible, that he remains, for his own emotional well being, in some sort of employment.

All of that can be best ensured, in my opinion, without recording a conviction, by requiring the appellant to enter into a bond, the conditions of which would be:

1.    To be of good behaviour.

2.... To be under the supervision of a probation officer for a period of 2 years.

3.    To obey the lawful directions of that probation officer.

4.... To undergo such medical or psychiatric treatment as may be directed by the probation officer.

5.    To pay compensation in the sum of $1,422 to the Registrar of the Magistrates Court at Mount Gambier for transmission by that court to the President of the Mount Gambier RSL and District Bowling Club.

And that, if he is in breach of that bond, to appear before this court for conviction and sentence.

It is the fact that the appellant has already paid the amount of compensation which I would order to be paid as a condition of the bond.  I would still make that a condition of the bond, notwithstanding that it has been paid, because otherwise the defendant's payment would have been made without the compulsion of the court.

The appellant is not in court today, but I am told by his counsel that, if I was minded to invoke the powers under s.39 of the Criminal Law Sentencing Act, that his client could be in court tomorrow for the purpose of entering into such a bond.

I therefore publish these reasons so that the appellant can consider whether he is prepared to enter into a bond in the terms which I have mentioned and, if he indicates to me that he will, then I will allow the appeal, set aside the order for imprisonment and the other orders made by the learned magistrate and make the orders to which I have referred.  I propose, therefore, not to make any orders at the moment but to make orders tomorrow after the appellant has indicated he will enter into the bond at the same time.

ADJOURNED