ROSS v POLICE No. SCGRG-98-171 Judgment No. S6598

[1998] SASC 6598

ROSS  v  POLICE

Magistrates’ Appeal

Bleby J

This is an appeal against sentence imposed in the Magistrates Court of South Australia. On 23 December 1997, the appellant pleaded guilty to eight counts of breaking and entering, an offence contrary to s170 of the Criminal Law Consolidation Act 1935, and one count of illegally interfering with a motor vehicle, contrary to s86A of the Criminal Law Consolidation Act. 

Of the eight counts of breaking and entering, six were offences against s170(1)(a), namely breaking and entering a building and committing an offence, in each case the offence being larceny. One of the offences was an offence under s170(1)(b) that is breaking out of a building after having committed an offence, and one was an offence under s170(2) breaking and entering a building with intent to commit an offence.

Two of the breaking and entering offences were committed in March of 1994 and February of 1995 respectively.  The other six, together with the illegal interference of the motor vehicle, were all committed in March or April of 1997.  

The value of the property or money stolen was $550 and $950 for the 1994 and 1995 offences respectively, and a total of $9,719 for the 1997 offences. 

Six of the offences involved breaking and entering into people’s homes.  One of them was breaking and entering into an office and one was into a primary school. 

The penalty range for an offence contrary to s170 sub-s(1) of the Criminal Law Consolidation Act, is a term of imprisonment not exceeding eight years, while the penalty for an offence contrary to s170(2) is a term of imprisonment not exceeding seven years. The applicable penalty for an offence against s86A of the Act, given that this was not a first offence, is a term of imprisonment of not less than three months and not more than four years. In addition to this, under s86A sub-s(2), the court must order that a person found guilty of a breach of the section, be disqualified from holding or obtaining a driver’s licence for a period of 12 months.

Sub-s(4) of s86A provides that the disqualification prescribed by sub-s(2) or (3), cannot be reduced or mitigated in any way, or be substituted by any other penalty or sentence. Sub-s(5) of s86A provides:

“5.  The court may, in addition to imposing a penalty under this section, order the defendant to pay the owner of the motor vehicle driven, used, or interfered with in contravention of this section, such sum as the court thinks proper by way of compensation for loss or damage suffered by the owner.”

Of course there is an analogous general provision applicable to all offences in s53 of the Criminal Law (Sentencing) Act 1988.

The appellant was sentenced in the Magistrates Court, sitting at Adelaide on 23 December 1997. With respect to counts 3-8 of what I will call, the breaking and entering offences, contrary to s170 of the Criminal Law Consolidation Act, and in being that group of offences committed in March and April 1997, the appellant was sentenced to seven years imprisonment. The magistrate ordered that this sentence commence at the expiration of the balance of a former sentence, which the appellant was required to serve pursuant to s75 of the Correctional Services Act 1982. That is because he committed a criminal offence whilst on parole. The unexpired portion of that sentence amounted to a period of one year, eight months, and ten days, as at the date of sentencing.

With respect to Count 1, that is, the offence committed on 17 March 1994 and Count 2 which was committed on 17 February 1995, those also being offences contrary to s170 of the Criminal Law Consolidation Act, the magistrate imposed a sentence of two years imprisonment, which was made cumulative upon the other sentences.  In relation to the illegal interference offence, the appellant received a sentence of three months imprisonment to be served concurrently with the sentence imposed on Counts 3-8 of the breaking and entering offences. 

The learned magistrate also ordered that the appellant be disqualified from holding or obtaining a driver’s licence for a period of 12 months.  No order for compensation was made in respect of this offence or indeed of any other offence, on account of the appellant’s limited financial means.  The net practical effect of all that was that the appellant received a total head sentence of ten years, eight months, and ten days, of which one year, eight months and ten days was the unexpired previous sentence for which he had been on parole.  The magistrate fixed a non‑parole period of six years. 

The appellant now appeals against this sentence, claiming that it is manifestly excessive, both in relation to the head sentence and to the non‑parole period. 

The appellant is aged 23.  His previous character is far from unblemished.  His antecedent report reveals an extensive history of previous offending which commenced when he was a youth.  He has committed many offences of dishonesty, both as an adult and as a youth.  He has manifested a strong tendency towards recidivism.  More particularly it is noted that in 1995 he was convicted of two counts of breaking and entering; one count of larceny; and one count of assault with intent to resist lawful apprehension.  I will refer to those compendiously as 1995 offences.  In relation to those 1995 offences, he was sentenced to imprisonment for three years and nine months, with a non‑parole period of 18 months.  Two of the offences, the subject of this appeal, were committed before the imposition of that sentence. 

Having been released on parole on 29 November 1996, with a significant portion of his head sentence not having expired, he then proceeded to commit seven of the nine offences which are the subject of this appeal.  Of those seven offences, five were also committed, not only whilst he was on parole, but whilst he was on bail arising out of the motor vehicle offence.  The other two offences, being counts one and two of the breaking and entering offences, were as I said, committed prior to his being sentenced in relation to the 1995 offences. 

Prior to the 1995 offences, he had 34 breaking and entering convictions - he had many more appearances as a youth.  Mention should also be made of the fact that he has prior convictions for both illegal interference with motor vehicles and illegal use of motor vehicles, three as an adult and twelve as a youth.  He also has a record of a number of larceny offences, five as an adult and seven as a youth. 

The appellant left school during Year 8.  He left home at the same time.  When he was returned home by the police he would run away again as soon as he could.  His life since then, when he has not been in custody, has been spent on the streets, or with friends, or in hotels.  His only employment appears to have been a period of some five to six months with his father in a sheet metalwork factory. 

Although drugs and alcohol may have played a part in his earlier offending, he now seems to partake of neither.  The motivation for his most recent offending seems to have been a need for excitement and money, fuelled by boredom and ignorance of how to live in a community. 

Through his counsel he told the magistrate that he was desperate to change his lifestyle and to prevent a return to custody.  However, that did not prevent him from embarking on a series of serious offences whilst on parole and whilst subject to a bail agreement, for which offences the magistrate then was required to sentence him.  He is a man who before any future release on parole will need considerable education and support in the basic skills of living in an open community, including education in the skills of personal finance management, and even in such simple things as obtaining appropriate accommodation. 

While in custody he has demonstrated some skills and interest in painting and sketching, and in gymnasium work. 

The appellant was sentenced by the learned magistrate on the basis that the breaking and entering offences are of a very serious nature involving a significant intrusion into the privacy of others.  Six of them, as I said, were into people’s homes.  The magistrate therefore saw fit to impose a penalty which would have a strong deterrent effect both personally and in respect of other would‑be offenders.  He also viewed the appellant’s poor record of continuing offending as affording little scope for clemency.  At the same time he took into account the fact that the appellant was still quite young and the accompanying need to ensure that any penalty imposed did not thwart future prospects for his rehabilitation.  However, there was no specific mention made of the appellant’s plea of guilty, or of his cooperation with the police. 

One of the cases to which a sentencing court must have regard in a case such as the present is R v Halse, (1985), 38 SASR 595. In that case, the appellant broke into a shop. It was a single offence. The appellant did however, have a bad record. He was sentenced to imprisonment for three and a half years with a non‑parole period of two and a half years. He appealed against the sentence and the Court of Criminal Appeal reduced his sentence to two years imprisonment with a non‑parole period of 18 months.

The then Chief Justice, King CJ, said this at p595:

“White J has concluded that the prevailing tariff in the Magistrates’ Court for single breaks by persons previously imprisoned is 10 to 12 months except for the worst 10% of cases for which the tariff is 17 to 18 months.  That tariff seems to me to be too low.  Even allowing for the plea of guilty and the relatively small value of the property involved in minor indictable offences, I think that the norm for single breaks committed by previously imprisoned offenders should be in the region of 12 to 18 months.”

He went on to say, at p.596:

“I emphasize that this appeal concerns a single offence and that my observations as to the appropriate range of sentences in various circumstances apply only to single offences.  Where there is more than one offence the punishment should adequately reflect that factor.”

White J in the same case, said in a passage beginning at p596:

“It is true that breaking into the premises and stealing therefrom is both serious and prevalent, and that suitable deterrents ought to be fixed in suitable cases.  Breaking into unoccupied shop premises at night is not, however, as serious in its criminality or its sequelae as breaking into occupied home premises at night in that the latter offences are aggravated by the facts that homes are places where people feel safe and are entitled to feel entirely safe, breakers intrude into their safe and private surroundings and put them in fear, and sometimes in danger, of injury, and that depredations by intruders bring a special kind of harm or risk of harm through the loss of irreplaceable mementoes and treasured items of sentimental value.”

Further on in his judgment he said:

“The multiple breaker with a bad record for breaking who takes goods or money of substantial value and does damage to the several premises in the course of his depredations can expect to be dealt with severely by the courts.  That is what happened, for example in the case of Flentjar (No.  88 of June 1983, District Court), where there were seven housebreaks involving $10,000 by a 26 year old offender with seven like offences as a juvenile and 29 like offences as an adult.  He was sentenced to a term of three and a half years’ imprisonment with a fourteen months non-parole period.”

His Honour went on to say that the non‑parole periods were then fixed differently from the principles then applying, and of course the principles then applying at the time when Halse’s case was decided were different again from those applying today. 

His Honour concluded that in his opinion Flentjar was punished appropriately for a multiple breaker in line with the general tariff, and at the same time having regard to his prior offending and personal circumstances. 

In the case of R v Coombs (1996) 88 ACR, 273 the appellant was a 27 year old man who pleaded guilty to one count of breaking and entering and three counts in relation to selling the stolen property to second‑hand dealers. The appellant also pleaded guilty to a separate count of breaking and entering and a count of assaulting the occupant of the house. The appellant had a relatively poor record.

On the first set of charges the magistrate sentenced the appellant to two years imprisonment and on the second set of charges to two years imprisonment, cumulative upon the first sentence with a total non‑parole period of two years and eight months.  He appealed against that sentence.  The appeal was allowed, with Perry J holding that the correct result was two cumulative sentences of 18 months imprisonment, with a non-parole period of two years. 

His Honour was referred to Halse’s case and of that case he said at p275:

“That case was decided in 1985.  While I am of the view that it can no longer be regarded as a reliable indication of the sentencing tariff to be applied, I think it more appropriate that the Court of Criminal Appeal should reconsider the matter.  On the other hand, I must say that there is a tendency to treat the suggested tariff as some sort of maximum for the offence, and to graduate penalties within the limits indicated in the passage to which I have just referred.  In fact, the maximum penalty for the offence is eight years and there will be offences which will warrant the imposition of a penalty up to eight years.  The indication of the tariff is not to be taken as some sort of amendment to the Act in setting some new maximum penalty.  That penalty is at large up to the maxium of eight years.  There will be cases where the imposition of a sentence closer to the maximum rather than to the minimum will be appropriate. 

Be that as it may, it does seem to me that the sentence imposed in this case, for these particular offences, when they are considered having regard to the principle of totality, did result in an overall sentence which was out of proportion to the total offending involved.”

The offences in this case were serious.  They involved goods or cash to the value of a moderately significant sum.  Given the appellant’s shocking record and the fact that all but two of these offences were committed whilst on parole or on bail or both, the parole being for a sentence involving similar offences, the appellant had to expect a severe sentence.  On the other hand the magistrate made no express reference to his plea and cooperation with the police, which was significant. 

I would not expect a magistrate in every case of a guilty plea which comes before him or her to refer in sentencing to the fact of the plea of guilty, however in cases involving the more substantial custodial sentences, indeed sentences which in many cases are substantially greater than sentences imposed in the District Court, it is desirable in my opinion that such matters be specifically referred to where they are appropriate. 

Standing alone the individual sentences in this case I believe were amply justified.  However their aggregation, in my opinion, rendered the final result out of proportion to the totality of the offending.  Furthermore, even though the appellant is an experienced criminal he is still relatively young and I would not wish to shut the door to his possible rehabilitation, although he obviously has a long way to go.  Given a properly supervised parole, I would like to hope that he had some prospect of rehabilitation.  It would not be right to condemn him by this sentence to a practical effect of life in an institution.  With the sentence imposed I think there is a risk of that, but principally I consider that taking all the relevant factors into account, the learned magistrate imposed an overall sentence which is out of proportion to the totality of the offending.  The learned magistrate had a very difficult task to balance the obvious need for deterrence, for punishment, and for the protection of society on the one hand, with the need for rehabilitation and the possible effects of a substantial gaol term on the appellant on the other. 

There are many ways to which the totality principle can be given effect with a combination of lower cumulative sentences or higher concurrent sentences.  The learned magistrate in my opinion correctly identified three groups into which the offences fell and in respect of which it was proper to impose one sentence for each.  The first group comprised Counts 1 and 2 of the breaking and entering offences, they being the two earlier relatively isolated offences, the second group comprised Counts 3 to 8 of the breaking and entering offences, those committed in March and April of 1997, and the third group comprised of one offence of unlawful interference with the motor vehicle. 

I agree that the learned magistrate was correct in making the penalties for the first two groups cumulative and that pattern should in my opinion be maintained.  I also agree that the appropriate penalty for the unlawful interference charge should be served concurrently with the penalty for the second group of breaking and entering offences.  There is also of course the unexpired portion of the sentence which he must now serve for being in serious breach of his parole conditions. 

Taking all those matters into account, in my opinion the appropriate sentences should be that he should first serve the completion of his sentence for the breach of parole, which is a period of 1 year 8 months and 10 days from the date on which the magistrate sentenced him. For the six counts of breaking and entering contrary to s170 of the Criminal Law Consolidation Act, that is Counts 3 to 8, I would impose a penalty of 4 years and 6 months imprisonment to be served on the expiry of the uncompleted sentence, and for counts 1 and 2 of the breaking and entering offences I would impose a sentence of 1 year and 10 months, also to be cumulative on the sentence for counts 3 to 8.  That makes a total period of imprisonment of 8 years and 10 days.  For the illegal interference offence I would not wish to change the magistrate’s penalty.  That should be served concurrently with the sentence on Counts 3 to 8.  I would fix a non-parole period of 4 years and 6 months to operate from 23 December 1997 being the date of the learned magistrate’s sentencing.  The order for disqualification from holding and obtaining a driver’s licence would of course remain unchanged. 

The order of the court will therefore be:

1. Appeal allowed. 

2. In respect of Counts 3 to 8 of the information dated 15 September 1997 substitute a sentence of imprisonment of 4 years and 6 months to be served at the expiration of the s75 Correctional Services Act term of 1 year 8 months and 10 days. 

3. In respect of Counts 1 and 2 on the information dated 15 September 1997 substitute a sentence of imprisonment of 1 year and 10 months to be served cumulatively upon the sentence in respect of Counts 3 to 8. 

4. In respect of the information dated 18 March 1997 relating to unlawful interference with a motor vehicle, confirm the sentence of imprisonment of 3 months to be served concurrently with the sentence now fixed on Counts 3 to 8 of the first information. 

5. Fix a non-parole period of 4 years and 6 months. 

6. That the combined sentence and the non-parole period are to commence from 23 December 1997. 

7. That there be no variation to the order of the magistrate disqualifying the appellant from holding or obtaining a driver’s licence for a period of 12 months. 

8. The respondent to pay the appellant’s costs of this appeal fixed at $150.