Ryan v Police No. Scciv-03-193

[2003] SASC 108

RYAN v POLICE
[2003] SASC 108

Magistrates Appeal:  Criminal

1. PERRY J.  (ex tempore)     The appellant pleaded guilty in the Magistrates Court to charges alleging various offences committed between December 2001 and November 2002.

2. The various offences alleged, listed in order of the date of commission, were as follows:

   A.27 December 2001

   (1)Unlawful possession of a saxophone (Summary Offences Act 1953, s 41);

   (2)Providing a false statement to a second-hand dealer (Second-hand Dealers and Pawnbrokers Act 1996, s 20(2)).

   B.16 January 2002

   (1)Receiving a drill, knowing it to have been obtained in circumstances amounting to an offence (Criminal Law Consolidation Act 1935, s 196(1)).

   (2)Had in his possession a drill reasonably suspected of having been stolen (Summary Offences Act 1953, s 41(1)).

   C.14 March 2002

   (1)Illegal use of a motor vehicle at Elizabeth North (Criminal Law Consolidation Act 1935, s 86a);

   (2)Failing to comply with a request to stop a motor vehicle (Road Traffic Act 1961, s 42);

   (3)    Drove a motor vehicle in a manner dangerous (Road Traffic Act 1961, s 46);

   (4)Drove a motor vehicle while unlicensed (Motor Vehicles Act 1959, s 74);

   (5)Resisted a member of the police force in the execution of his duty (Summary Offences Act 1953, s 6(2)).

   D.3 May 2002

   (1)Illegal use of a motor vehicle at Elizabeth East (Criminal Law Consolidation Act 1935, s 86a);

   (2)Drove a motor vehicle whilst unlicensed (Motor Vehicles Act 1959, s 74);

   (3)Being the driver of a motor vehicle, failed to truly give his name when asked by a member of the police force (Road Traffic Act 1961, s 42);

   (4)Failed to comply with a direction by a member of the police force (Road Traffic Act 1961, s 41).

   E.13 November 2002

   (1)Illegal use of a motor vehicle (Criminal Law Consolidation Act 1935, s 86a);

   (2)Stole a packet of cigarettes and a cigarette lighter (Criminal Law Consolidation Act 1935, s 131);

   (3)Drove without due care (Road Traffic Act 1961, s 45);

   (4)Failed to stop when requested by a member of the police force (Road Traffic Act 1961, s 42);

   (5)Drove while unlicensed (Motor Vehicles Act 1959, s 74).

3. As at the date of the commission of the first of the offences, the appellant stood to serve out the balance of a previous sentence of imprisonment with respect to which he had been released on parole. That balance was 1 year, 3 months and 19 days.

4. After allowing for a period of five months which the appellant had spent in custody before being sentenced, and exercising his powers under s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing magistrate imposed a single penalty for the offences in question, namely imprisonment for a period of 19 months. He directed that sentence to be served at the expiration of the balance of the outstanding sentence. This gave a total head sentence of 2 years, 10 months and 19 days, against which the magistrate fixed a non-parole period of 15 months to date from the date upon which he pronounced sentence, that is to say, from 16 December 2002.

5. It is from that sentence that the appellant appeals to this Court.

6. In his notice of appeal the appellant advances two grounds, namely that the sentence was, in all the circumstances, manifestly excessive, and that the magistrate erred in not giving credit to the appellant for his pleas of guilty.

7. Mr Vadasz, who appeared for the appellant on the hearing of the appeal, argued that the main complaint was that there was an identifiable error in the remarks on penalty by the learned sentencing magistrate in failing to quantify the credit to be allowed for the plea of guilty which, as he submitted, had been made at the earliest occasion.

8. A separate argument put by Mr Vadasz that the sentencing magistrate erred in not deducting from the non-parole period the time that the appellant had spent in custody, was not pursued at the hearing.

9. At the time he was sentenced the appellant was aged 49 years. He has since turned 50. He had a lengthy history of prior offending. The sentencing magistrate thought that this included six prior convictions for illegal use, but it appears that that was more likely to be five. Be that as it may, regrettably, the appellant has built up a long list of prior offending commencing in 1969 to the present time. Much of the offending is drug related. There seems to be no doubt that the appellant has had the misfortune to suffer from drug addiction, including an addiction to heroin. This eventually resulted in his being admitted to the Drug Court program towards the end of August 2002. Although he made some progress, as was observed by the sentencing magistrate, when one looks overall at his performance in the Drug Court program, it was not promising. He tested positive for methylamphetamine on more than one occasion, although maintaining a denial of the use of the substance. There is a suggestion also that he was substituting someone else’s urine for urine tests.

10. The appellant wrote a letter to the sentencing magistrate apologising for the offending and repeating his denial of use of drugs while on the program.

11. During the course of his sentencing remarks the sentencing magistrate observed:

    “Your dishonest behaviour during that period of involvement in the program was of concern and does colour any positive outcomes. It also makes it very difficult for me to accept as genuine the pleas that you make to me in your letter.”

12. The sentencing magistrate went on to indicate that given the fact that the charges upon which the appellant stood to be sentenced included three illegal use counts, he would normally have imposed a sentence of two years imprisonment in all. However, he reduced it by five months to the period of 19 months in recognition of the time already spent in custody.

13. Mr Vadasz has said everything which could be said in favour of the case advanced by the appellant. He emphasised that clearly his client had drug problems with the drug program, but he had made some progress and that the magistrate had failed to allow sufficiently for this.

14. If the appellant had performed well in the drug program, this was a matter which might have offered some hope of rehabilitation which, in turn, could have been reflected in a lesser allowance for personal deterrence than that which might otherwise have been made. But in a case such as this where the performance in the drug program could not be described as promising, this meant that the opportunity for leniency which might have arisen if the performance had been better did not arise.

15. The central element in the sentencing process in a case such as this must be directed to the objective seriousness of the offending and the fact that it was repeat offending over a period of time, with several of the offences being committed whilst the appellant was released on bail and also while he was on parole. These circumstances aggravated the seriousness of the offending and made it difficult for the magistrate to make an allowance which could have enhanced the prospects of rehabilitation, as to which the appellant regrettably has not been shown to be a good candidate.

16. It is true that the sentencing magistrate failed to say specifically how much he was allowing for the plea of guilty. But as was pointed out by Ms Richardson who appeared for the respondent, it does not follow that this Court should necessarily interfere with the sentence which was ultimately pronounced. [1]

    [1]    See R v Place (2002) 81 SASR 395, R v Wall and Richards (2000 209 LSJS 135 and R v Sutherland, (unreported) Court of Criminal Appeal, 16 November 1992, judgment No S3705.

17. At the end of the day, the question remains whether or not the appellant has demonstrated that the sentence is manifestly excessive.

18. I have made allowance for all of the points advanced by Mr Vadasz, but I am unpersuaded that this is a case in which it is shown that the penalty imposed was affected by appealable error. It seems to me that both the head sentence and the non-parole period were well within the proper exercise of the magistrate’s sentencing discretion.

19. The appeal is dismissed.

    JUDGMENT CITATIONS
    LISTED IN ORDER OF APPEARANCE IN JUDGMENT

    1.    See R v Place (2002) 81 SASR 395, R v Wall and Richards (2000 209 LSJS 135 and R v Sutherland, (unreported) Court of Criminal Appeal, 16 November 1992, judgment No S3705.