Rowe v Police

ROWE v POLICE
[2003] SASC 160
Magistrates Appeal
Criminal

SULAN J. This is an appeal against sentences imposed in the Magistrates Court on 25 February 2003.
The appellant pleaded guilty to numerous offences committed on different days. The learned Magistrate grouped the offences according to the day upon which they were committed. In respect of each group of offences he imposed one overall sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Act”). He then ordered that the periods of imprisonment he had imposed in respect of each group of sentences be served cumulatively. There is some ambiguity in the learned Magistrate’s sentencing remarks. I shall deal with that later in these reasons.
The appellant was required to serve an unexpired period of parole of one month and thirteen days and the Magistrate so ordered. It was agreed that a period of three months and twenty-one days, for which the appellant had been in custody, should be taken into account in arriving at the overall head sentence and non‑parole period.
The offences to which the appellant pleaded guilty and upon which he was sentenced are as follows. For ease of reference I will refer to them in groups.
Group One -
On 19 April 2001, the appellant entered a place of residence of Mick O’Shea’s Irish Pub as a trespasser with the intent of committing larceny. He pleaded guilty to aggravated serious criminal trespass in a place of residence. He also pleaded guilty to larceny of a refrigerator.
Group 2 -
On 7 September 2002, premises occupied by Austereo Network were broken into and electrical appliances with a value of $12,000 were taken. The appellant was found in possession of some of those items the day after they were stolen. He pleaded guilty to receiving. He also had in his possession various items including a knife. He pleaded guilty to carrying an offensive weapon and being in possession of housebreaking implements.
Group 3 -
On 25 September 2002, the appellant was found in possession of jewellery and electrical equipment. On that day a motor vehicle was taken. The appellant was also in breach of a bail agreement. The appellant pleaded guilty to unlawful possession, illegal use and breach of a bail agreement.
Group 4 -
On 31 October 2002, the appellant was found in possession of electrical goods and money together of the value of $1,109.18. He pleaded guilty to receiving stolen goods.
Group 5 -
On 3 November 2002 whilst the appellant was in custody in the Adelaide City Watch House he damaged a blanket the property of the Police Department.
As to the Group 1 offences the Magistrate imposed one overall sentence pursuant to s 18A of the Act of thirteen months imprisonment commencing forthwith. In respect of the Group 2 offences he passed one overall sentence of six months imprisonment, and he ordered that the sentence was to be served cumulatively upon the unexpired period of parole of one month thirteen days in accordance with s 75 of the Correctional Services Act 1982. As to the Group 3 offences the Magistrate imposed one penalty of four months to be served cumulatively upon the sentence imposed on the Group 2 offences. As to the Group 4 offences he imposed a sentence of six months imprisonment to be served cumulatively upon the sentence imposed on the Group 3 offences. As to the Group 5 offences he imposed no penalty.
Section 75 of the Correctional Services Act 1982 provides that a person who commits an offence whilst on parole is required to serve the unexpired period of parole, being the balance of the sentence unexpired, as at the date on which the offence was committed. Pursuant to s 31(2) of the Criminal Law (Sentencing) Act 1988, that sentence commences forthwith at the date the court sentences the person for the offences which constitute the breach of parole. Any additional sentence imposed for other offences, including the offence which constituted the breach of parole, is to be served cumulatively upon that period.
It follows that the period of one month and thirteen days must commence forthwith upon the appellant being convicted of the breaching offences. The Magistrate ordered that the six months sentence in respect of the Group 2 offences was to commence at the expiration of the unexpired period of parole. He ordered that the sentence was to be served cumulatively upon the thirteen month sentence imposed on the Group 1 offences, which he ordered to commence forthwith. In that respect the Magistrate was in error. The sentence on the Group 1 offences could not commence forthwith because any sentence imposed by the Magistrate must commence when the unexpired period of parole has been served. As expressed by the Magistrate he appears to have ordered that the unexpired period of parole commence after the sentence imposed on the Group 1 offences. Alternatively, if he intended the unexpired period of parole to commence forthwith, it is unclear whether he intended the Group 1 sentence to commence on the expiration of the unexpired period of parole and the Group 2 sentence to be served cumulatively upon that sentence, or whether the Group 1 and Group 2 sentences were to be concurrent but cumulative upon the sentence for the unexpired period of parole having been completed. However one interprets the Magistrate’s sentencing remarks, he was in error. At the very least his intentions are unclear.
There is a further error in the Magistrate’s reasoning. It was agreed that the appellant had spent a period of three months and twenty-one days in custody and that that period must be taken into account when determining the final sentence. The Magistrate acknowledged as much when in his reasons he said “I was told that the defendant was taken into custody on 4 November and has remained in custody every since”. The Magistrate then proceeded to deal with each offence, impose a penalty and add the various periods of imprisonment together to arrive at an overall head sentence of thirty months and thirteen days. The Magistrate then failed to make any allowance for the period the appellant had remained in custody. In setting the non‑parole period of sixteen months the Magistrate specifically had regard to the period in custody but appears to have failed to have had regard to it when setting the head sentence.
Mr Stewart who appeared for the Crown conceded the error, but submitted that the overall sentence was correct and that I should not interfere other than to adjust the head sentence.
Mr Cuthbertson who appeared for the appellant argued a number of other grounds. It is unnecessary to deal with all the grounds of appeal as the errors I have identified are, in my view, of sufficient magnitude for the appeal to be allowed and for me to be required to re‑sentence the appellant. However, there are two further grounds of appeal that I should mention.
The appellant complains that the learned Magistrate gave undue weight to the policy enshrined in s 10(2) of the Act. Section 10(2) came into operation on the 25^th of December 1999. It provides:
“A primary policy of the criminal law is to protect the security of the lawful occupants of the home from intruders.”
Section 10(1)(ea) provides that a court in determining a sentence for an offence should have regard to, inter alia, in the case of an offence committed by an intruder in the home of another, the need to give proper effect to the policy stated in sub‑section 2.
Section 3 of the Act defines intruder as “a person who commits a criminal trespass”. Home is defined as “a building, structure, vehicle or vessel, or part of a building, structure, vehicle or vessel, used as a place of residence”. The premises the subject of this offending was an hotel unit. It was unoccupied at the time. By definition it is a place of residence.
The Magistrate noted the terms of s 10(2) and observed that it was only “proximally” connected with the security of the lawful occupants of homes from intruders. He said that he did not infer that the defendant had committed a break‑in on residential premises.
When the Criminal Law Consolidation Act 1935 was amended to create the offence of serious criminal trespass in a residential building and at the time the Criminal Law (Sentencing) Act was amended to include s 10(1)(ea), the primary concern which the amendments were designed to encompass, were most commonly spoken of as home invasions. Home invasions were generally described as criminal incidents in which intruders forced entry into an occupied dwelling and then committed one or more further crimes in the dwelling when occupants were lawfully present[1]. Although the amending Act sought to deal with home invasions as described, the wide definition of place of residence includes a vacant hotel unit.
[1] See second reading speech Criminal Law Consolidation (Serious Criminal Trespass) Amendment Bill South Australian Parliament, Parliamentary Debates SA Vol 1, 1999-00, 274 (28 October 1999).
Every case must be considered on its merits. In some circumstances the presence of persons in the premises may be a factor that is highly relevant in determining penalty. In other cases, although premises may be residential, it may be obvious that no‑one occupies them. In that case little weight might be given to the fact that the premises are technically regarded as residential.
If the Magistrate had decided that the premises were not residential, he was in error. However, I understand the Magistrate to have meant that he gave little if no weight to the policy because of the nature of the premises and the fact that they were not occupied. In that respect the Magistrate was correct in his approach.
The appellant complains that the learned Magistrate failed to have sufficient regard to the totality principle. The Magistrate said that he had regard to the totality principle. This was the sole extent to which the Magistrate referred to that principle. The totality principle was considered in R v Place[2]. The Court of Criminal Appeal in a joint judgment referred[3] to the decision of the High Court in Mill v The Queen[4]. The High Court cited and approved the following description of the principle in Thomas, ‘ Principles of Sentencing’[5]:
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’.”
[2] (2002) 81 SASR 395.
[3] At 426.
[4] (1988) 166 CLR 59.
[5] pp 56-57 (2^nd ed, 1979) (omitting references).
The Court of Criminal Appeal determined that the proper approach of a sentencing court was, as stated by King CJ in R v Creed[6], to arrive at the overall sentence and as a final step in the sentencing process to stand back and look at the overall picture and decide whether the total of what would otherwise be an appropriate sentence is a fair and reasonable total sentence to impose[7].
[6] (1985) 37 SASR 566 at 508.
[7] See Place page 426 paragraph 87 (supra).
In my view it is unnecessary for a sentencing court to specify what percentage or amount of the final sentence, if any, has been deducted having regard to the principle of totality. So long as the court has due regard to the principle it is sufficient.
The Magistrate had the principle in mind in arriving at the overall head sentence and non‑parole period. As such I do not regard the overall sentence that he imposed as to require any further reduction.
The appellant further complains that the Magistrate erred in failing to make a reduction on account of the appellant’s pleas of guilty. Further, it is submitted by the appellant that the Magistrate failed to articulate a percentage reduction in penalty. In Place (supra) the Court affirmed the practice in South Australia that “the failure to identify a specific reduction for a plea of guilty is not an error of principle nor, in itself, is it a ground for interference with a sentence”[8].
[8] See page 425.
The Court said that there are compelling reasons why the extent of the reduction of a sentence in recognition of a plea should be identified. These include the desirability that legal advisors are able to advise their clients with some degree of certainty as to the range of reductions a person might expect for a plea of guilty, and further, that after sentence the client can identify what reduction was actually given for the plea. In R v Wall & Richards[9] Gray J, with whom Duggan and Mullighan JJ agreed, referred to a number of decisions in which judges of this Court have stated that it is highly desirable that sentencing courts acknowledge the extent to which a plea is taken into account in sentencing remarks[10].
[9] (2000) 209 LSJS 135.
[10] See pp140-144.
I consider that by identifying the amount of reduction to be given for a plea it makes the sentencing process transparent. It follows that the community and any appeal court is then able to understand the reasoning of the sentencing court. A failure to give adequate reasons has the effect of frustrating an appellate court from adequately performing its function[11]. In my view the sentencing process should be open and transparent. The community is vitally interested in the process. Sentences are often subject to public comment. All sentencing remarks are now published on the internet. It is therefore desirable that sentencing courts specifically identify the reduction given for a plea of guilty. There are reasons of public policy why credit is given for a plea of guilty, and a specific reduction is given over and above other factors to which the court will have regard in arriving at a final sentence.
[11] Papps v Police (2000) 77 SASR 210 at 219.
The Magistrate alluded to the pleas of guilty but he made no specific reference to the amount of any reduction. He was not required to do so and I interpret his remarks as having taken into account the pleas of guilty. In that regard I do not consider that he has fallen into error. On the other hand I consider that it is highly desirable for a sentencing court to specify the amount of sentence reduction given for a plea of guilty.
For the reasons earlier expressed I consider that the Magistrate was in error and I am therefore required to sentence the appellant afresh.
The circumstances of the offending are dealt with in the Magistrate’s reasons.
As to the Group 1 offences a vacant hotel unit in Mick O’Shea’s Irish Pub was broken into and items of furniture, a bar fridge and other property were taken. The defendant’s fingerprint was located at the scene.
In respect of the Group 2 offences on 7 September 2002 the Austereo Network was broken into, electrical items were removed. In the early hours of the morning of 8 September, the appellant was found in possession of property answering the description of the property stolen from Austereo Network. The defendant had in his possession a black handled hunting knife that was located in a bag. Also located in that bag were two screwdrivers and a large third screwdriver. This was the property the subject of the offence of being in possession of housebreaking implements.
As to the Group 3 matters, the registered owner of a red Laser vehicle had parked his car outside his home. The following morning the vehicle was missing. The appellant and other persons were seen in a red Laser. The appellant admitted that he was in company with a man named Saunders. It was a condition of the appellant’s bail that he not associate with Saunders.
As to the Group 4 matters, premises at Onkaparinga Hills were broken into. Acting on information police attended at premises at Christies Downs where property, which had been taken from the Onkaparinga Hills residence, was located. The appellant was in the vicinity of the premises at Christies Downs together with the man named Saunders.
As to the Group 5 matter, the appellant was taken into custody on 3 November. When police went to his cell at the Adelaide Watch House a blanket had been damaged.
The appellant has a number of previous convictions including convictions for unlawful possession, non-aggravated serious criminal trespass, and illegal use. In 1992 he was convicted in the Adelaide Children’s Court of armed robbery.
The appellant is a 28 year old Aboriginal male. He had a difficult childhood. He had problems with his relationship with his stepfather. He left school at the age of 12 and lived on the streets. He has a significant drug problem and these offences were committed in an attempt to obtain money to pay for heroin and methylamphetamine. He has worked as a fisherman. He has attempted to address his drug addiction by applying to commence drug and alcohol rehabilitation courses whilst in prison. He has a two and a half year old son and wishes to support his son upon being released from custody. I take into account all these matters. In determining the sentence I have had regard to the principle of totality. The sentence I impose is to commence today. In determining the sentence I have had regard to the time spent in custody up to today.
The sentence of one month and thirteen days will come into effect today. For the offences listed in Group 1 had it not been for the appellant’s plea of guilty I would sentence him to sixteen months imprisonment. However, having regard to the plea I reduce the sentence to twelve months imprisonment. In respect of the Group 2 offences I would have sentenced the appellant to six months imprisonment, however, having regard to his plea of guilty I reduce it to four months imprisonment. In relation to the Group 3 offences I would have imposed a sentence of four months imprisonment, which I reduce to three months imprisonment having regard to the plea of guilty. In respect of the Group 4 offences I would have sentenced the appellant to eight months imprisonment, which I reduce to six months imprisonment having regard to the pleas of guilty. As to the Group 5 offences I convict the appellant without penalty.
This makes a notional head sentence of twenty-six months and thirteen days and I impose a notional non‑parole period of sixteen months. I have regard to the period of three months and twenty-one days, which the appellant has spent in custody plus a further three months from the date of sentence until today. I reduce the notional head sentence by seven months and I reduce the notional non‑parole period by seven months, which results in a final overall sentence of nineteen months imprisonment with a non‑parole period of nine months imprisonment.
The sentence is therefore that the appellant be imprisoned for nineteen months with a non‑parole period of nine months. The sentence is to commence today.

[2003] SASC 160

6 June 2003