Russell v Police No. Scciv-03-1217

[2003] SASC 395

RUSSELL v POLICE
[2003] SASC 395

Magistrates Appeal

1. GRAY J                 This is an appeal against sentence.

2. The appellant, Adam Lee Russell, was charged with the offences of illegal use and larceny. Following negotiations the information was amended. Mr Russell then pleaded guilty to two counts of receiving. All other charges were dismissed for want of prosecution. The magistrate sentenced Mr Russell pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) to a term of imprisonment of 18 months cumulative upon the balance of an unexpired parole period of six months and 17 days.

   The Circumstances of the Offending

3. Mr Russell was living at Hackham West.  The co-accused resided with him for a short time.  On the evening of 1 May 2002 the co-accused arrived at Mr Russell’s home.  He told Mr Russell that he had borrowed a friend’s car and was going to Blyth to collect some belongings from his parent’s house.  He invited Mr Russell to come for the drive.  The co-accused used a key to start the car. Mr Russell had no reason to suspect that the vehicle was stolen.

4. At around 4.00 am on 2 May 2002 Mr Russell and the co-accused stopped at Clare.  The two parted company to look for petrol.  Mr Russell looked for about an hour without success before returning to the car to find the co-accused waiting for him.  Mr Russell now believes that this was the time at which co-accused broke into the Golf Club and stole the items the subject of the receiving charges.

5. The co-accused to drive to his parent’s home.  On arrival Mr Russell remained in the vehicle.  The co-accused went inside to collect his belongings.  He later came out and invited Mr Russell into the house for coffee.  By this time it was about 6.00 am.  The co-accused’s mother, step-father and siblings were in the house.

6. A short time later Mr Russell walked to a telephone box to call his partner.  Mr Russell was away from the house for about 15 minutes.  When he returned the co-accused was loading items into the back of the vehicle.  Mr Russell asked about the items and was told that they were gifts for his 18^th birthday.  Mr Russell helped load the items into the vehicle.  Mr Russell conceded that it was at this point he suspected that the items had been stolen.  They then returned to Adelaide.  Upon arriving Mr Russell assisted the co-accused unload the vehicle.

7. At the time of the offending, counsel submitted to the learned magistrate that Mr Russell was ashamed of his behaviour and that he recognised that it was foolish.  A presentence report was also before the magistrate which detailed Mr Russell’s history of substance abuse.  Counsel submitted that whilst on parole Mr Russell had endeavoured to make changes in his life including the undertaking of drug and alcohol programs.  Whilst in custody prior to being sentenced by the magistrate he participated in the methadone program.

   Magistrates Reasons

8. In sentencing the appellant the magistrate concluded:

   The defendant is convicted of both these counts. Under s18A of the Sentencing Act I impose one penalty namely a period of 18 months imprisonment cumulative upon the unexpired period of the parole, that is a period of 6 months and 17 days, which is to commence on 17 March 2003. So, the head sentence is 24 months and 17 days with effect from 17 March 2003. That is to be reduced by a further period of 6 days, making it a period for 24 months and 11 days. In practical terms with effect from today there also has to be a period of 4 months and 27 days deducted from that, namely a period of 19 months and 20 days. The head sentence, therefore, is 19 months and 20 days.

   I now consider the terms of the non-parole period and in that regard my view of his prospects for the future are reflected in my decision to fix it at two thirds or thereabouts. The defendant’s non-parole period, therefore, will be a period of 15 months with effect from today.

   Issues on Appeal

   Error of Fact

9. In his remarks on sentencing the magistrate observed:

   I was supplied with details of the defendant’s offender history report which, including the formal parts, runs to 16 pages. His first appearance was in Whyalla Children’s Court on 30 April 1993 for offences of dishonesty, including housebreaking. In all, as a juvenile, he has appearances on six separate occasions for like offences of dishonesty. The usual gamut of sentencing options in that jurisdiction was explored. As an adult his first appearance was on 20 January 1995, which was for a building break. Thence follows another seven appearances for offence of dishonesty, including robbery with violence in March 1996 in the District Court. The defendant has served time in custody.

   It was accepted by counsel for the Crown that the magistrate erred in his understanding of Mr Russell’s antecedents.  Mr Russell had in fact appeared before the Children’ Court on four occasions for like offences of dishonesty and before an adult court on four occasions for offences of dishonesty.

10. Mr Russell’s criminal antecedents are both numerous and serious.  However, he was entitled to be sentenced on the basis of his criminal antecedents and not a more extensive history of prior offending.  The magistrate erred in this respect and sentenced Mr Russell on a materially incorrect factual basis.

    Reduction for Plea of Guilty

11. Counsel for the appellant further submitted that the magistrate had not had sufficient regard to Mr Russell’s plea of guilty in sentencing.  The magistrate did not mention the pleas of guilty when sentencing.

12. The court has a discretion to make a reduction in sentence on account of a timely plea of guilty.[1]  As a general rule the earlier the plea the greater the reduction.  Each case must be judged on its own facts.  It is important that the fact and extent of the reduction be specified in the public interest.[2]  The magistrate did not comply with the direction of this court to indicate the reduction for the pleas of guilty.

    [1] Cameron v R (2002) 187 ALR 65

    [2] R v Wall (2000) 209 LSJS 135

13. In the circumstances, the sentence imposed suggests that the magistrate failed to adequately take into account the guilty pleas.

    Manifestly Excessive

14. Counsel for the appellant submitted that the magistrate erred in imposing both a term of imprisonment and a non-parole period that were manifestly excessive.  Mr Russell’s criminal conduct in this case was at the lower end of the scale of seriousness.  His involvement was limited to assist the co-offender in the unloading of the stolen goods.  He was unaware of the planned theft, and received none of the proceeds or any other reward.

15. Even if the magistrate did take the pleas of guilty into account in sentencing the appellant, the starting point of the sentence that he then imposed was too high.  The head sentence in the circumstances of this case was manifestly excessive.

    Re-sentence

16. It is appropriate for this court to re-sentence Mr Russell.

17. Mr Russell is 27 years old.  His parents separated when he was six years of age.  He spent time with both parents.  He was largely left to look after himself with little adult guidance.  Mr Russell has no apparent family support.  His mother passed away some years ago.  He has had no contact with his father or siblings for many years.  He has had one serious relationship.  His former partner was heavily addicted to drugs.  He has distanced himself from his former partner who had been a major influence on his drug taking.  Since being in custody Mr Russell has engaged in drug rehabilitation programs.

18. Mr Russell’s offending on this occasion was at the lower end of the scale of seriousness.  The offences involved property totalling some $850.  On the material before this court, Mr Russell was not the instigator.  His offending was opportunistic and foolish.  He accepted responsibility for his actions.  He was contrite and remorseful.

19. However, there are circumstances of aggravation.  Mr Russell has an extensive prior record of offending for offences of dishonesty.  Mr Russell was on parole for a previous offence of dishonesty at the time of the present offending.

20. In re-sentencing it is appropriate to impose one penalty pursuant to section 18A of the Sentencing Act.  Mr Russell is to be imprisoned for nine months.  In arriving at this sentence a reduction of three months has been made on account of the pleas of guilty and Mr Russell’s contrition and remorse.  It is not appropriate to suspend the sentence.  This sentence is to be cumulative on the unexpired period of parole of six months 17 days.  Accordingly I impose a total head sentence of 15 months and 17 days.  I fix a non-parole period of nine months.  This sentence is to commence on 17 March 2003 the date on which Mr Russell was taken into custody.

    JUDGMENT CITATIONS LISTED IN ORDER OF APEARANCE IN JUDGMENT

21. 1      Cameron v R (2002) 187 ALR 65

    2      R v Wall (2000) 209 LSJS 135