Sabato v The Queen
[2021] SASCA 65
•24 June 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SABATO v THE QUEEN
[2021] SASCA 65
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Bleby)
24 June 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against conviction and sentence.
On 15 August 2018, the appellant was sentenced to 3 years 6 months imprisonment for various drug offences, suspended upon his entering into a bond to be of good behaviour.
The appellant subsequently committed 19 further offences, and by so doing failed to comply with his bond. He pleaded guilty to this offending, which included one count of unlawful possession, two counts of driving while suspended, and several offences committed on 17 April 2020, namely serious criminal trespass (non-residential), theft, carrying an article of disguise (the disguise offence), possessing an article to commit an offence (the equipment offence), and possessing a prohibited weapon.
For the unlawful possession offence, the sentencing Judge gave a head sentence of 6 months imprisonment, discounted to 3 months 19 days. For the two driving while suspended offences, his Honour identified head sentences of 6 months and 8 months imprisonment, discounted to 3 months 19 days and 6 months, respectively. In respect of the 17 April 2020 offending, the Judge adopted a starting point of 3 years, discounted to 1 year 9 months 19 days imprisonment. For the remaining offences, his Honour recorded a conviction without further penalty.
The Judge ordered that the sentences be served cumulatively, giving a total sentence for the fresh offending of 2 years 10 months 27 days imprisonment. His Honour revoked the bond, and ordered that the sentence for the fresh offending be served cumulatively upon the sentence on account of the breach of bond, leading to a total sentence of 6 years 4 months 27 days imprisonment. His Honour fixed a non-parole period of 4 years 2 months 23 days.
The appellant appeals his convictions for the disguise and equipment offences on three grounds, each asserting miscarriage of justice. The first complains that the appellant could not in law have been convicted of the equipment offence upon the admitted facts, focussing upon the offence’s preparatory nature and the fact that the appellant had already committed serious criminal trespass and theft when apprehended. The second contends that the conviction for the disguise offence was precluded by the conviction for the equipment offence, as the face mask the subject of the former charge was also particularised, amongst other items, in the latter charge. The third complains that, in pleading guilty to the equipment offence, the appellant did not appreciate the nature of the charge he was admitting.
The appellant also appeals his sentence. He contends that the head sentence and non-parole period were manifestly excessive; that the sentencing Judge erred on account of his failure to consider whether to make any of the sentences partially concurrent or reduce the sentence on account of the principle of totality; and that his Honour erred on account of his failure to identify the factual basis for the sentence imposed in respect of the 17 April 2020 offending.
Held, per Doyle JA (Kelly P and Bleby JA agreeing), dismissing the appeal against conviction:
1. It is sufficient to sustain the appellant’s conviction for the equipment offence that his offending at the subject premises was not complete, and that he intended to steal further items.
2. Given that the admission inherent in a plea of guilty is confined to the essential elements of an offence, the plea to the equipment offence did not necessarily entail any admission in respect of the face mask as opposed to the other particularised articles. Declining to set aside the convictions for those pleas would not entail any miscarriage of justice.
3. As the appellant’s plea to the equipment offence merely entailed an acknowledgement of an intention to steal further items from the premises in which he was found, and it was apparent that he had such an intention, any lack of appreciation as to the nature of the offence charged was not sufficient to establish a miscarriage of justice.
Held, per Doyle JA (Kelly P and Bleby JA agreeing), allowing the appeal against sentence on grounds 1 and 4:
1. The sentences imposed in respect of the driving while suspended offences, and the unlawful possession offence, were manifestly excessive.
2. The sentencing Judge did not undertake the exercise required to avoid the risk of double punishment inherent in the overlapping nature of the charges arising out of the appellant’s conduct on 17 April 2020.
3. The sentence is set aside, and the appellant resentenced.
Summary Offences Act 1953 (SA) s 21C, s 21F, s 41; Motor Vehicles Act 1959 (SA) s 9, s 81A, s 91, s 102; Road Traffic Act 1961 (SA) s 145; Criminal Law Consolidation Act 1935 (SA) s 134, s 169, s 170, s 270C; Bail Act 1985 (SA) s 17; Sentencing Act 2017 (SA) s 26, referred to.
Tsavalas v Police [2016] SASC 103; R v Simmons [2017] SASCFC 49; R v Hamnett (2018) 132 SASR 155; R v Caruso (1988) 49 SASR 465; Pearce v The Queen (1998) 194 CLR 610; Rucioch v Police (2004) 88 SASR 326; R v Waugh (2005) 93 SASR 274; R v Graham [2011] SASCFC 52; Magaming v The Queen (2013) 252 CLR 381; R v De Simoni (1981) 147 CLR 383; Ndreka v The Queen [2021] SASCA 11; Police v Cadd (1997) 69 SASR 150; Police v Nissen (2014) 120 SASR 50; Police v Chilton (2014) 120 SASR 32; M, PA v Police (2012) 218 A Crim R 276; R v Delphin (2001) 79 SASR 429; R v Smith [2002] SASC 330; R v Meschede [2016] SASCFC 49; R v W, PL [2017] SASCFC 119; Giordimania v The Queen [2020] SASCFC 28, considered.
SABATO v THE QUEEN
[2021] SASCA 65
Court of Appeal – Criminal: Kelly P, Doyle and Bleby JJA
KELLY P: I agree with the reasons given by Doyle JA and with the orders his Honour proposes.
DOYLE JA: On 15 August 2018, the appellant was sentenced to 3 years 6 months imprisonment following his pleas of guilty to charges of manufacturing a controlled drug (methylamphetamine) for sale, and possessing prescribed equipment. That sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of 3 years. The bond was subsequently extended for a further year.
Between 1 August 2019 and 8 June 2020, the appellant committed 19 further offences, and by so doing failed to comply with his bond.
On 4 December 2020, having pleaded guilty to this fresh offending, the appellant was sentenced as follows:
Offence Date Maximum Starting Point Discount[1] Sentence 1 Unlawful Possession[2] 01.08.19 $10,000
or 2 years6 months 40% 3 months 19 days 2 Drive Unregistered[3] 16.11.19 $7,500 Conviction w/o
further penalty25% - 3 Drive Uninsured[4] $10,000 Conviction w/o
further penalty- 4 Drive contrary to
Defect Notice[5]$2,500 Conviction w/o
further penalty- 5 Alter Defect Notice
from Vehicle[6]$2,500 Conviction w/o
further penalty- 6 Failure to Display Provisional Plates[7] $1,250 Conviction w/o
further penalty- 7 Drive while Suspended[8] 08.04.20 2 years 6 months 40% 3 months 19 days 8 Drive Unregistered $7,500 Conviction w/o
further penalty- 9 Drive Uninsured $10,000 Conviction w/o
further penalty- 10 Drive contrary to
Defect Notice$2,500 Conviction w/o
further penalty- 11 Serious Criminal Trespass
(non-residential)[9]17.04.20 10 years 3 years 40% 1 year
9 months 19 days12 Theft[10] 10 years 13 Carry Article
of Disguise[11]$2,500
or 6 months14 Possess Article
to Commit Offence[12]½ maximum for intended offence 15 Possess Prohibited Weapon[13] $20,000
or 2 years16 Breach Bail[14] 15.05.20 $10,000
or 2 yearsConviction w/o
further penalty40% - 17 Breach Bail 16.05.20 $10,000
or 2 yearsConviction w/o
further penalty- 18 Breach Bail 17.05.20 $10,000
or 2 yearsConviction w/o
further penalty- 19
Drive while suspended
08.06.20
2 years
8 months
25%
6 months
[1] Each discount given accorded with the maximum available.
[2] Summary Offences Act 1953 (SA) (SOA), s 41(1).
[3] Motor Vehicles Act 1959 (SA) (MVA), s 9(1).
[4] MVA, s 102(1).
[5] Road Traffic Act 1961 (SA) (RTA), s 145(6).
[6] RTA, s 145(5f).
[7] MVA, s 81A(15)(b).
[8] MVA, s 91(5).
[9] Criminal Law Consolidation Act 1935 (SA) (CLCA), s 169(1).
[10] CLCA, s 134(1).
[11] SOA, s 21C(1)(a)
[12] CLCA, s 270C(1).
[13] SOA, s 21F(1)(b).
[14] Bail Act 1985 (SA), s 17(1).
The sentencing Judge ordered that each of the above sentences of imprisonment be served cumulatively, giving a total sentence for the fresh offending of 2 years 10 months 27 days imprisonment.
The appellant accepted that there were neither proper grounds to excuse the breaches of bond, nor special reasons to justify reducing the sentence. The sentencing Judge thus revoked the bond, and ordered that the sentence for the fresh offending be served cumulatively upon the sentence of 3 years 6 months imposed on account of the breach of bond.
The total head sentence was thus 6 years 4 months 27 days imprisonment. The sentencing Judge fixed a non-parole period of 4 years 2 months 23 days, being 66 per cent of the head sentence. The sentence and non-parole period were ordered to commence from 8 June 2020, when the appellant was taken into custody.
The appellant appeals his convictions for the 17 April 2020 offences of possess article to commit offence and carry article of disguise. He does so on the grounds of contended miscarriage of justice in that:
1. upon the admitted facts, the appellant could not in law have been convicted of possessing an article to commit an offence;
2. the conviction for carrying an article of disguise precluded conviction for possessing an article to commit an offence; and
3. in pleading guilty to possessing an article to commit an offence, the appellant did not appreciate the nature of the charge he was admitting.
The appellant appeals his sentence on the grounds that the sentencing Judge erred:[15]
1. in imposing a head sentence and non-parole period that were manifestly excessive;
2. in failing to consider whether to make any of the sentences partially concurrent;
3. in failing to reduce the sentence on account of the principle of totality; and
4. in failing to identify the factual basis for the sentence imposed in respect of the 17 April 2020 offending.
[15] Noting that there was an additional ground that was abandoned, and that the final ground was added during the course of oral argument.
Circumstances of the offending
The following description of the appellant’s fresh offending is taken from the sentencing remarks and is not in dispute.
On 1 August 2019, the appellant was driving along Nelson Road, Valley View. He was stopped by police and a search of his vehicle was conducted. Police located a backpack in the boot of his vehicle which contained six personal cards in the names of people other than the appellant and four sets of keys. The appellant told the police that he found the cards and the keys on a park bench in Mile End about two weeks earlier. He said that he had intended to hand them in to police, but had forgotten he had them. He was later charged with unlawful possession of these items, being offence 1 (the 1 August 2019 offence) in the table of offences set out earlier in these reasons.
On 16 November 2019, police on mobile patrol observed the appellant driving a black Nissan utility sedan in an easterly direction along Oaklands Road, Park Holme. A check revealed that the vehicle was unregistered. The appellant was stopped by police. He was aware the vehicle was unregistered, but instead told police that the vehicle was registered under his father’s name. Further checks revealed that the vehicle had also been defected by police on 27 July 2019. After an initial inspection, police could not locate a defect label. The appellant told police that it was under the sun visor of the driver’s side of the vehicle. The condition of the label was such that it could be inferred that it had been removed. Police also discovered that the appellant held a provisional licence, but was not displaying provisional plates on either the front or the rear of his vehicle. The appellant was charged with offences 2 to 6 (the 16 November 2019 offences), and his vehicle was impounded.
On 8 April 2020, police on mobile patrol observed the appellant driving a black Nissan utility sedan in a westerly direction on Jewell Street, Oaklands Park. The appellant was stopped by police and a check was conducted on his provisional licence. This revealed that his licence had been suspended for the non-payment of fines. The suspension period had commenced on 9 February 2020, with his licence having been suspended indefinitely. Further checks were conducted on the vehicle which revealed that it was unregistered, uninsured and subject to a defect notice. The appellant was charged with offences 7 to 10 (the 8 April 2020 offences), and his vehicle was impounded.
In the early hours of 17 April 2020, the appellant entered a building occupied by a software company called Bluize Pty Ltd. In so doing he was a trespasser. He was wearing a black bandana across his face and a pair of black gloves on his hands. He was in possession of a backpack, a crowbar, a torch and a double-edged knife. Once inside the building, the appellant took two mobile phones (with a value of less than $2,500) that belonged to Bluize.
While the appellant was still in the building, the owner of Bluize received a telephone call from a security company, notifying him that the alarm at the premises had been activated. Police on mobile patrol were tasked to the premises. When they arrived at the premises, they located the appellant inside the building. The officers apprehended, arrested and searched the appellant. They found the two mobile phones in his possession. They also located several other items that the appellant had collected and placed in boxes near the door to the premises. The appellant had used the crowbar to enter through a door, and had disturbed papers and other items while searching for things to steal, but had not otherwise caused any damage to the premises. The appellant was taken to the police station and ultimately charged with offences 11 to 15 (the 17 April 2020 offending).
When interviewed in relation to the 17 April 2020 offending, the appellant acknowledged that he did not have any reason to be inside the victim’s premises. He gave an account to the effect that he was walking to a service station that night and was not really thinking. He acknowledged that he had been “caught red-handed” and admitted his guilt. The appellant subsequently entered into a bail agreement in respect of these offences.
On 15 May 2020, at about 12.55 am, police attended the appellant’s home address to conduct a curfew bail check upon him. His curfew hours under his bail agreement were 9.00 pm to 7.00 am. In breach of the curfew condition of his bail agreement, he was not present at his home (offence 16).
On 16 May 2020, at about 3.49 am, police attended again at the appellant’s home address. He was not present, and so again failed to comply with his bail agreement (offence 17).
On 17 May 2020, at about 5.59 am, police attended again at the appellant’s premises. He was not present, thus failing to comply with his bail agreement for a third time (offence 18).
The appellant was arrested and charged with the above breaches of bail on 22 May 2020. He told police that his reason for not being present at his address on these occasions was that he was unwell and did not want to infect his grandmother, who was also a resident at the address.
On 8 June 2020, police conducted a check on the appellant’s motor vehicle whilst on mobile patrol. The check revealed that the appellant was not the registered owner of the vehicle. The appellant parked his vehicle and attempted to run away. He was soon stopped by police. After conducting further checks, police learnt that the appellant was still suspended from driving a motor vehicle on account of his non-payment of fines, and that he had been reported for driving while suspended on 8 April 2020. He was arrested, taken to the Adelaide City Watch House, and charged with driving while suspended (offence 19). He told police that he was not aware of his licence suspension and that he could not recall being stopped by police on 8 April 2020.
The appellant’s personal circumstances
The appellant was 32 years of age when sentenced for the fresh offending.
He was born in Adelaide. His parents separated about 18 months after he was born. He and his brother remained with their father after the separation. While their mother initially had fortnightly access to the appellant and his brother, this ceased over time. Their mother suffered from a number of issues associated with her mental health and substance abuse. She had very little contact with the appellant and his brother during their childhood.
The appellant’s paternal grandparents assisted with their care, as their father also had substance abuse issues. Their father was also prone to violent outbursts, and subjected the appellant and his brother to physical and emotional abuse.
Tragically, the appellant’s brother, whom the appellant described as his best friend, committed suicide on New Year’s Eve 2007. The appellant and his family were traumatised by his death. Since that time the appellant has suffered from depression. He has taken medication, but has continued to be affected by his grief and depression. It would seem that the appellant has never really recovered from the loss of his brother. At the time of sentencing he was seeking counselling in prison to assist him to address his underlying grief.
During primary school, the appellant was diagnosed with attention deficit disorder. He found it difficult to concentrate in class. He went to high school, but was expelled in year 11 for fighting.
After leaving school, the appellant worked as a mechanic for a couple of months before then working as a shelf stacker at a supermarket. Over the following years he held several jobs, including working as a tiler, a labourer and in retail.
The appellant has a long history of using illicit drugs. At the age of 18, he began using cannabis and ecstasy. In 2016, he commenced smoking methylamphetamine on a regular basis, and developed a serious addiction.
By way of background to the appellant’s present offending, his counsel submitted that when the appellant lost his job through redundancy in 2019, this caused him to “fall off the rails” and resume his drug-taking and offending.
As the sentencing Judge noted, the appellant is unfortunately no stranger to the offences for which he fell to be sentenced. He has multiple earlier convictions for the offences of drive unregistered, drive while disqualified or suspended, drive vehicle contrary to defect notice and failure to comply with his bail agreements. He has also been convicted of theft and possessing a firearm without a licence. The sentencing Judge observed that there was a clear pattern in the appellant’s history and behaviour.
The sentencing remarks
After summarising the circumstances of the appellant’s offending, and his personal circumstances, the sentencing Judge mentioned the letters the appellant had written to Bluize Pty Ltd and the Court. In those letters he both acknowledged his wrongdoing and expressed remorse for his actions. The Judge also noted the appellant’s indication, through his counsel, that he intended to continue to see his counsellor, and that upon his release he would like to join a church group in order to reintegrate back into the community. He hopes to be able to support his grandparents as they age.
Against this background, the sentencing Judge commenced by addressing the application by the Director of Public Prosecutions to enforce the breached good behaviour bond. His Honour revoked the bond, and ordered that the original sentence of 3 years 6 months imprisonment for his earlier drug offending be carried into effect.
The sentencing Judge then turned to the fresh offending. His Honour announced the various sentences set out in the table at the commencement of these reasons. His Honour dealt with the offences individually, save that in respect of the 17 April 2020 offences (serious criminal trespass, theft, carry an article of disguise, possess an article to commit an offence and possess prohibited weapon) he imposed a single sentence under s 26 of the Sentencing Act 2017 (SA).
The sentencing Judge directed that the sentence that was to come into effect as a result of the appellant’s breached bond be served cumulatively upon the sentence imposed for the fresh offending, giving a total head sentence of 6 years 4 months 27 days imprisonment. His Honour fixed a non-parole period of 4 years 2 months 23 days, being a period that equated to 66 per cent of the total sentence. His Honour directed that the sentence and non-parole period be backdated to 8 June 2020, being the date on which the appellant was remanded in custody. His Honour ordered forfeiture of the crowbar and double-edged knife, but declined to make an order for compensation in respect of the cost of impounding the appellant’s vehicle (on the basis that the appellant did not have the means to pay this compensation).
The appeal against conviction
The appellant appeals his convictions for two of the 17 April 2020 offences; namely, the offence of carrying an article of disguise (contrary to s 21C(1)(a) of the SOA) and possessing an article to commit an offence (contrary to s 270C(1) of the CLCA). For convenience, I shall adopt the parties’ reference to these offences as ‘the disguise offence’ and ‘the equipment offence’ respectively.
As elaborated upon below, the Court may permit an appellant to withdraw a plea of guilty even following conviction and sentence when satisfied that the circumstances in which the plea was entered involved a miscarriage of justice. Before coming to address the grounds upon which the appellant contends there was a miscarriage in the present case, it is appropriate to commence by identifying the charges to which the pleas relate, the terms of the relevant offence provisions, and the appellant’s evidence as to the circumstances in which he entered his pleas of guilty to the disguise and equipment offences.
The offences alleged
The Information relating to the 17 April 2020 offending charged five counts, being serious criminal trespass (count 1), theft (count 2), the disguise offence (count 3), the equipment offence (count 4) and possessing a prohibited weapon (count 5):
1. On the 17th day of April 2020 at SOMERTON PARK in the said State, entered a non-residential building of Bluize Pty Ltd as a trespasser with the intention of committing an offence to which this section applies namely theft of property of the value of less than $30,000.
Section 169(1) of the Criminal Law Consolidation Act, 1935.
…
2. On the 17th day of April 2020 at SOMERTON PARK in the said State, committed theft by taking property namely mobile phones of a value involving $2,500 or less, the property of Bluiz Pty Ltd, dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights.
Section 134 of the Criminal Law Consolidation Act 1935.
…
3. On the 17th day of April 2020 at SOMERTON PARK in the said State, without lawful excuse carried an article of disguise.
Section 21C(1)(a) of the Summary Offences Act 1953.
…
4. On the 17th day of April 2020 at SOMERTON PARK in the said State, in suspicious circumstances, was in possession of articles namely a crowbar, gloves, torch and a face mask intending to use them to commit an offence namely theft or an offence of which theft is an element, an offence to which section 270C(2) of the Criminal Law Consolidation Act, 1935 applies.
Section 270C(1) of the Criminal Law Consolidation Act, 1935.
…
5. On the 17th day of April 2020 at SOMERTON PARK in the said State, had possession of a prohibited weapon.
Section 21F(1)(b) of the Summary Offences Act, 1953.
…
The disguise offence involved an alleged contravention of s 21C(1)(a) of the SOA, which is the following terms:
21C—Offensive weapons and dangerous articles etc
(1) A person who, without lawful excuse—
(a) carries an offensive weapon or an article of disguise; or
(b) has possession of an implement of housebreaking,
is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
So far as the equipment offence is concerned, s 270C appears in Part 9, Division 4 (Preparatory conduct) of the CLCA, and is in the following terms:
270C—Going equipped for commission of offence of dishonesty or offence against property
(1)A person who is, in suspicious circumstances, in possession of an article intending to use it to commit an offence to which this section applies is guilty of an offence.
Maximum penalty:
(a) if the maximum penalty for the intended offence is life imprisonment or imprisonment for 14 years or more—imprisonment for 7 years;
(b) in any other case—imprisonment for one-half the maximum period of imprisonment fixed for the intended offence.
(2) This section applies to the following offences:
(a) theft (or receiving) or an offence of which theft is an element;
(b) an offence against Part 6A (Serious criminal trespass);
(c) unlawfully driving, using or interfering with a motor vehicle;
(d) an offence against Part 5 Division 6 (Dishonest dealings with documents);
(e) an offence against Part 5 Division 7 (Dishonest manipulation of machines);
(f) an offence involving interference with, damage to or destruction of property punishable by imprisonment for 3 years or more.
(3)A person is in suspicious circumstances if it can be reasonably inferred from the person's conduct or circumstances surrounding the person's conduct (or both) that the person—
(a) is proceeding to the scene of a proposed offence; or
(b) is keeping the scene of a proposed offence under surveillance; or
(c) is in, or in the vicinity of, the scene of a proposed offence awaiting an opportunity to commit the offence.
The appellant’s evidence
The appellant swore an affidavit and was cross-examined by counsel for the Director. His evidence was to the following effect.
He acknowledged that in the early hours of 17 April 2020, he trespassed upon a business premises in Somerton Park. When he entered the building, he was wearing a bandana or mask across his face, and a pair of gloves. He had with him a backpack, crowbar, torch and knife.
He acknowledged that he had these items with him to assist with breaking into the premises and stealing things. While also mentioning ‘COVID’ and the cold weather, he accepted that he was wearing the mask so as to disguise his face, and the gloves so as not to leave fingerprints. He used the crowbar to break into the premises, and had the torch to assist him to rummage around and steal things from inside the premises.
He was found inside the premises by the police. He had two mobile phones on his person which he had found in the premises. He was in the process of going through the place and collecting other things that he intended to steal. Indeed, he had already collected some items and put them in boxes near the door of the premises.
The appellant denied having any intention of breaking into any other premises that night or morning.
The appellant knew at the time that he had been charged with several offences arising out of his conduct on 17 April 2020. While he was aware of each of the charges, his focus was on the serious criminal trespass and theft charges; he did not really take note of the others.
When asked about his pleas of guilty in respect of each of the charges that were read out to him when he appeared at the Magistrates Court on 6 August 2020, he explained that he pleaded guilty because he had been given advice by his then solicitor “to plead guilty to all of it because I was caught red-handed in the property so I’m guilty of serious criminal trespass and theft. And that I should – I assumed that I was guilty of everything, that’s why I pled guilty.”
The appellant was told by his solicitor that he would get a discount, and hence a better sentence, if he pleaded guilty.
The appellant said that the advice he was given by his solicitor was limited to the offences of serious criminal trespass and theft, and he knew he was guilty of these offences. He did not recall receiving any advice about the disguise, equipment and prohibited weapon offences. He just assumed he should be pleading guilty to them when they were read out because he was guilty of the serious criminal trespass and theft and so must be guilty of them all.
He was not given any advice about what the equipment offence involved. He assumed it related to him breaking into the building, and did not understand (or intend to admit) that he was intending to commit any other offence.
While he intended to acknowledge by his pleas that he had broken into the premises, that he had been caught with the phones and equipment that he had with him, and that he was in the process of trying to steal other things, he did not intend to acknowledge that he intended to commit any other offence (in the sense of breaking into any other building) on 17 April 2020.
The appellant also said that he did not understand that in addition to the disguise offence relating to his mask, the equipment offence also included the mask in its particulars.
I accept the appellant’s evidence as summarised above. To the extent that concessions were made by him during cross-examination, they have been incorporated within the above summary, and did not serve to undermine the central thrust of his evidence in chief.
Withdrawal of plea following conviction
The principles governing the withdrawal of a plea of guilty upon an appeal against conviction are not in dispute. The relevant authorities are conveniently summarised in the following passage from my reasons in Tsavalas v Police:[16]
[16] Tsavalas v Police [2016] SASC 103 at [13]-[15]; approved in R v Simmons [2017] SASCFC 49 at [34], [54].
In the ordinary course, a plea of guilty is an admission of all of the essential elements of the charge.[17] It is sometimes described as the most cogent admission of guilt that can be made, its significance resting in part upon the high public interest in the finality of legal proceedings.[18] It follows that a court will ordinarily act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice by the person entering the plea.[19]
The Court nevertheless has power to permit a defendant to withdraw his or her plea of guilty, both prior to a conviction being entered and also upon an appeal against conviction. The test on an appeal against conviction is whether the circumstances in which the plea was entered involved a miscarriage of justice.[20] The appellant bears the onus of establishing such miscarriage.
While a miscarriage of justice remains the ultimate test, there are a number of circumstances which the authorities recognise will be relevant. These include:[21]
· Whether the plea reflects a consciousness of guilt.
· Whether there is a real question as to the guilt of the appellant.
· Whether the plea was based on imprudent or inappropriate advice.
· Whether the defendant lacked an appreciation of the nature of the charges, or the facts alleged against him.
· Whether the plea was the result of a free choice on the part of the defendant, and not the product of his will being overborne by inappropriate pressure or threats.
[17] Meissner v The Queen (1995) 184 CLR 132; Groom v Police (No 2) (2013) 115 SASR 446; Green v Police (1999) 108 A Crim R 246 at [26].
[18] R v Sagiv (1986) 22 A Crim R 73 at 81.
[19] Meissner v The Queen (1995) 184 CLR 132 at 141.
[20] Meissner v The Queen (1995) 184 CLR 132 at 141-142, 157.
[21] Meissner v The Queen (1995) 184 CLR 132; R v Pugh (2005) 158 A Crim R 302 at [36]-[41]; R v Stevens [2011] SASC 69 at [14]-[19].
The appellant in the present case also referred in this context to the decision of this Court in R v Hamnett.[22] In that case, the Court observed that the circumstances in which a conviction based upon a plea of guilty may be set aside on appeal include not only where the defendant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, but also where, upon the admitted facts, the defendant could not in law have been convicted of the offence charged.[23]
[22] R v Hamnett (2018) 132 SASR 155.
[23] R v Hamnett (2018) 132 SASR 155 at [24], citing R v Caruso (1988) 49 SASR 465 at 489.
However, as explained in Tsavalas v Police, none of the above circumstances are necessarily decisive:[24]
None of these matters is necessarily decisive in a particular case. The law recognises that a person may plead guilty, and be held to that plea, even though it was entered for reasons that extend beyond a person’s belief in their guilt. There is not necessarily a miscarriage of justice in a court acting on a plea which does not reflect a consciousness of guilt, or even in circumstances where the person entering the plea is not in truth guilty of the offence.[25]
The relevance of the above considerations means that it will be appropriate to inquire into the circumstances in which the impugned plea of guilt was entered, and hence the integrity of that plea. However, it does not follow that a court will readily conclude that a miscarriage has occurred. To the contrary, given the high public interest in the finality of legal proceedings, the courts have generally approached attempts on appeal to set aside a guilty plea with “caution bordering on circumspection”. [26]
[24] Tsavalas v Police [2016] SASC 103 at [16]-[17].
[25] R v Pugh (2005) 158 A Crim R 302 at [37]-[38], [40]; Meissner v The Queen (1995) 184 CLR 132 at 157.
[26] R v Liberti (1991) 55 A Crim R 120 at 122.
Double jeopardy
Various of the appellant’s submissions on both the conviction and sentence appeals invoked principles reflecting the criminal law’s concern to protect accused persons from double jeopardy. As such, it is convenient at this point to summarise the operation of those principles, and to do so by reference to the decision of the High Court in Pearce v The Queen[27] and its application in subsequent decisions of this Court.
[27] Pearce v The Queen (1998) 194 CLR 610.
In Pearce v The Queen[28], the appellant was charged with offences that included maliciously inflicting grievous bodily harm with intent to do grievous bodily harm to the victim (contrary to s 33 of the Crimes Act 1900 (NSW) (count 9)), and breaking and entering the dwelling-house of the same victim and, while therein, inflicting grievous bodily harm upon him (contrary to s 110 of the Crimes Act) (count 10)). These two charges arose out of a single incident; the appellant broke into the victim’s home and beat him.
[28] Pearce v The Queen (1998) 194 CLR 610.
The appellant applied for a stay of proceedings before the primary judge on the ground that the indictment was oppressive or an abuse of process, submitting that he was placed in double jeopardy. The application was refused, and the appellant pleaded guilty to several counts, including counts 9 and 10. He was sentenced to 12 years imprisonment (less time served) in respect of each. The judge ordered that the two sentences be served concurrently, but cumulatively upon the sentence for another offence for which he was sentenced at the same time.
On appeal to the High Court (McHugh, Gummow, Kirby, Hayne and Callinan JJ), it was held that a plea in bar was not available where, as in that case, the charges contained different elements and the elements of one offence were not otherwise wholly included within the elements of the other offence. The elements of the two offences were different because the s 33 offence required a specific intent to do bodily harm which was absent from s 110; and the s 110 offence required a breaking and entering which was absent from s 33.[29] It was also held that the prosecution did not involve an abuse of process given the differing elements of the offences.[30]
[29] Pearce v The Queen (1998) 194 CLR 610 at [16] (McHugh, Hayne and Callinan JJ).
[30] Pearce v The Queen (1998) 194 CLR 610 at [31] (McHugh, Hayne and Callinan JJ).
However, the appeal against sentence was allowed (Kirby J dissenting) on the basis that it could be inferred from the identical sentences imposed for counts 9 and 10 that each contained a portion which was to punish the appellant for his inflicting grievous bodily harm upon his victim.[31]
[31] Pearce v The Queen (1998) 194 CLR 610 at [43], [49]-[50] (McHugh, Hayne and Callinan JJ); at [69] (Gummow J).
In the course of reaching these conclusions, the members of the Court made a number of observations about the operation of the concept of double jeopardy at both the prosecution and punishment stages of the criminal justice process.
The plurality (McHugh, Hayne and Callinan JJ) commenced their consideration of the concept of double jeopardy by noting its range of uses:[32]
The expression “double jeopardy” is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be “punished again for the same matter”. Further, “double jeopardy” is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.
[32] Pearce v The Queen (1998) 194 CLR 610 at [9] (omitting citations).
After explaining that the rationale underlying the rule or rules against double jeopardy was the idea that a person should not be vexed, or put in jeopardy, more than once for the same offence, their Honours emphasised the need to understand the operation of double jeopardy in the context of other forces operating within the common law:[33]
It may be seen as a value which underpins and affects much of the criminal law. But pervasive as it is, this value is not the only force at work in the development of these parts of the common law. Three further forces can be identified.
First, as the range of crimes and punishment for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach.
Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged [that is, the principle in R v De Simoni (1981) 147 CLR 383 at 389].
Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused’s criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of the conduct.
…
In this case it is helpful to consider the stages in the criminal justice process separately from issues of double punishment. At the stage of prosecution, it is necessary to consider first whether the appellant was entitled to enter a plea in bar to one or more counts on the indictment, and secondly whether he was entitled to a stay of proceedings on one or more counts. At the stage of punishment, it is necessary to consider whether he was entitled to be sentenced in some way differently from the sentences imposed upon him.
[33] Pearce v The Queen (1998) 194 CLR 610 at [10]-[15]; see also the discussion per Kirby J at [92]-[98].
The plurality then addressed the availability of a plea in bar, concluding that its availability required that the elements of the two offences be the same, or at least that the elements of one offence be encompassed within the elements of another offence. It is not enough that there is merely an overlap in the elements of the two offences, let alone that the offences arise out of the same incident or might be established by relying upon the same evidence or facts:[34]
… Moreover, there are sound reasons to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other.
Shifting attention to whether the offences arise out of the same conduct, or out of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the charges that it is sought to lay as a result of a single episode of offending. …
… In any event, such a test would, as we have said, shift attention away from the principal focus of the rule underlying the pleas in bar which is a rule against repeated prosecution for a single offence. It would be a test which would deny operation to some or all of the three other forces at work in this area: that several different offences may be committed in the course of a single series of events, that an offender can be punished only for the offence charged, not some other offence, and that charges will usually be framed in a way that reflects all of the criminal conduct of the accused.
[34] Pearce v The Queen (1998) 194 CLR 610 at [24]-[26]; see also the discussion per Kirby J at [99]-[113] and [125]-[127], including by reference to the decision of this Court in R v O’Loughlin (1971) 1 SASR 219.
The plurality concluded that as each of the offences with which the appellant in that case had been charged required proof of a fact which the other did not, no plea in bar was available in respect of counts 9 or 10.[35]
[35] Pearce v The Queen (1998) 194 CLR 610 at [28] (McHugh, Hayne and Callinan JJ); at [63] (Gummow J).
In also concluding that the primary judge was correct to decline to order a stay of counts 9 and 10, the plurality said:[36]
Confining the availability of the plea in bar in this way does not deny the existence of the inherent powers of a court to prevent abuse of its process. That there may be cases in which the repeated prosecution of an offender in circumstances where that offender has no plea in bar available would be an abuse of process is illustrated by Rogers v The Queen.[37]
The decision about what charges should be laid and prosecuted is for the prosecution.[38] Ordinarily prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.
There was, however, no abuse of process in charging this appellant with both counts 9 and 10. The short answer to the contention that the charging of both counts was an abuse of process is that because the offences are different (and different in important respects) the laying of both charges could not be said to be vexatious or oppressive or for some improper or ulterior purpose.[39] To hold otherwise would be to preclude the laying of charges that, together, reflect the whole criminality of the accused and, consonant with what was held in R v De Simoni,[40] would require the accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused’s conduct that could have been charged separately.
It follows that the primary judge was right to conclude that the proceedings on the indictment (or counts 9 and 10 in particular) should not be stayed.
[36] Pearce v The Queen (1998) 194 CLR 610 at [29]-[32] (McHugh, Hayne and Callinan JJ); see also the discussion per Kirby J at [115]-[118] and [128].
[37] Rogers v The Queen (1994) 181 CLR 251.
[38] Maxwell v The Queen (1996) 184 CLR 501 at 512 (Dawson and McHugh JJ); at 534 (Gaudron and Gummow JJ).
[39] cf Williams v Spautz (1992) 174 CLR 509.
[40] R v De Simoni (1981) 147 CLR 383.
The plurality then addressed the topic of double punishment. Their Honours reasoned:[41]
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
In the present case we need not decide whether this result is properly to be characterised as good sentencing practice or as a positive rule of law. There is nothing in ss 33 or 110 of the Crimes Act more generally which suggests that Parliament intended that an offender such as the appellant should be twice punished for his inflicting grievous bodily harm on his victim …
It is clear in this case that a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences under s33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by “excessive subtleties and refinements”. It should be approached as a matter of common sense, not as a matter of semantics.
The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act.
[41] Pearce v The Queen (1998) 194 CLR 610 at [40]-[43] (McHugh, Hayne and Callinan JJ) (omitting citations); see also at [68]-[69] (Gummow J); and at [129]-[133] (Kirby J, agreeing as a matter of principle, but dissenting as to the outcome).
Their Honours went on to observe that the mere fact that the sentences imposed in respect of the two offences were to be served concurrently did not avoid the conclusion that there had been double punishment warranting the appeal against sentence being allowed.[42]
[42] Pearce v The Queen (1998) 194 CLR 610 at [44]-[50] (McHugh, Hayne and Callinan JJ); at [120]-[121] (Kirby J).
This decision was applied by Doyle CJ in Rucioch v Police.[43] In that case, the appellant was driving a truck and turned right at an intersection. In so doing, he collided with a motorcycle travelling in the opposite direction. The appellant pleaded guilty to the offences of driving without due care and failing to give way. The Magistrate recorded a conviction on each count. The appellant appealed against his conviction and sentence.
[43] Rucioch v Police (2004) 88 SASR 326.
In challenging his conviction, the appellant contended that as each offence arose from a single incident and involved the same conduct (the appellant’s driving as he entered the intersection and began to turn right), he should not have been convicted of both offences. However, applying Pearce v The Queen, Doyle CJ held that the recording of a conviction on each count was only open to objection, as a matter of law, if the elements of each offence are the same, or at least the elements of one offence are included within the other offence.[44] In concluding that the two offences were not the same, and that the elements of one did not include the elements of the other within it, such that the Magistrate was entitled to enter a conviction on each count, his Honour explained:[45]
In the present case the elements of the offence of failing to give way (to express it briefly) involved proof that Mr Rucioch entered an intersection with traffic lights, that he turned right at that intersection, that at that time there were oncoming vehicles that were going straight ahead, and that he failed to give way to one of those vehicles. Failure to give way would require proof that the oncoming vehicles were sufficiently close to the intersection for Mr Rucioch’s conduct to amount to a failure to give way.
The elements of the offence of driving without due care involve proof that Mr Rucioch was driving a vehicle (an element of the failure to give way) and that he failed to exercise the care and consideration for another user of the road that a reasonably prudent driver would exercise. That failure could be established by proving that he turned across the path of an approaching vehicle. It would be relevant, while not essential in any way, to prove the presence of traffic lights and the obligation to give way under r 62(c). They were incidental matters, but not elements of the offence. Even if there were no traffic lights at the intersection, the driving in question would amount to a failure to exercise due care. The same would apply if the incident occurred, not at an intersection, but as a result of Mr Rucioch turning across the roadway to enter private premises at the side of the road. Moreover, an element of the offence of driving without due care includes a qualitative assessment of his conduct, as distinct from a determination of the more limited question of whether, in the circumstances, he drove his truck into position, such that he failed to give way to the approaching vehicles.
[44] Rucioch v Police (2004) 88 SASR 326 at [27].
[45] Rucioch v Police (2004) 88 SASR 326 at [28]-[29].
Doyle CJ went on to consider, but reject, the possibility that seeking a conviction in respect of both counts involved an abuse of process by the prosecution:[46]
It might be an abuse of process to do so in a case like this if, in the circumstances, it is oppressive to charge more than one offence. In that respect, observations made in O’Loughlin may be relevant, and all members of the High Court in Pearce recognised that the laying of multiple charges might be an abuse of process, even though no objection could be taken by way of a plea in bar: McHugh, Hayne and Callinan JJ (at [29]-[30]), Gummow J (at [67]), Kirby J (at [117]).
In the present case each count reflects different aspects of Mr Rucioch’s driving. The failure to give way and the driving without due care are both separate aspects of his driving. On the other hand, they are very closely linked, and it might be said that the case is borderline. Nevertheless, I am not satisfied that in the present case it is unfair or oppressive for a conviction to be sought on each count, but I repeat that no submissions were put on this point.
[46] Rucioch v Police (2004) 88 SASR 326 at [32]-[33].
Having dismissed the appeal against conviction, Doyle CJ turned to the issue of sentence, citing Pearce v The Queen and observing that the Magistrate was required to bear in mind that each offence arose from a single incident, and that the appellant was not to be punished twice for elements that were common to each offence, or indeed for conduct that was common to each offence.[47] While his Honour was not satisfied that the Magistrate overlooked this point, the appeal was nevertheless allowed on the basis that the penalty was manifestly excessive.[48]
[47] Rucioch v Police (2004) 88 SASR 326 at [35].
[48] Rucioch v Police (2004) 88 SASR 326 at [37].
Finally, I mention also the decision in R v Waugh.[49] Applying the approach in Pearce v The Queen, White J (Doyle CJ and Sulan J agreeing) held that no plea in bar was available to a defendant charged with the theft and illegal use of three motor vehicles; the elements of the two offences were not the same, and the elements of one were not included within the elements of the other.[50]
[49] R v Waugh (2005) 93 SASR 274 at [12]-[16].
[50] R v Waugh (2005) 93 SASR 274 at [12]-[16]; applied in McGuiness v Police (2016) 125 SASR 413 at [51]-[65].
I shall return to some of the above principles in considering the individual grounds of appeal.
Ground 1: the appellant could not in law have been convicted of the equipment offence
Ground 1 of the appeal against conviction involves a complaint of a miscarriage of justice on the basis that the appellant could not in law have been convicted of the equipment offence on the admitted facts.
In developing this ground, the appellant focussed upon the preparatory nature of the equipment offence. His counsel contended that in circumstances where he had already committed the offences of serious criminal trespass and theft when found by the police (as reflected in his pleas of guilty to those charges), he could not also be guilty of the equipment offence.
In support of the preparatory nature of the equipment offence in s 270C(1) of the CLCA, the appellant emphasised that the offence required that the defendant be in possession of an article (i) intending to use it to commit an offence to which the section applied, and (ii) in suspicious circumstances. It was accepted that the relevant limb of the definition of “suspicious circumstances” was s 270C(3)(c); namely, that the defendant was in, or in the vicinity of, the scene of a proposed offence awaiting an opportunity to commit the offence.
I accept the appellant’s characterisation of the offence as one that is directed towards preparatory conduct. The requirements of the offence emphasised by the appellant make this plain; they contemplate future or prospective offending rather than past or completed offending.
It would follow that if, at the time he was found by the police, there was no basis to find that the appellant was intending further offending, then there would have been no basis for him to have been convicted of an offence under s 270C(1). In submitting that this was an apt description of the present case, the appellant’s counsel pointed out that the appellant, while still on the subject premises when found by the police, had nevertheless already completed (in the sense of committed) the offences of serious criminal trespass and theft, and did not intend to commit any further offending at other premises.
The difficulty with this submission is that the prosecution case on the equipment offence did not depend upon prospective offending at some other premises. Rather, it was sufficient to sustain the conviction that the appellant intended to engage in further offending at the same premises. On the appellant’s own evidence, there was a sound factual basis for this conclusion. It is true that by the time he was found by police, the appellant had already completed a theft of the mobile phones (which theft was the subject of count 2), and may well have already dealt sufficiently with the items in the boxes near the door of the premises to have completed an (uncharged) theft of those items. However, it was apparent from his evidence that when found by the police, he was still in the process of going through the premises, looking for and collecting other items to steal.
In my view, this was sufficient to sustain the appellant’s conviction. His offending at the subject premises was not complete; he intended to steal further items. I do not think it matters for this purpose that, had he been successful in stealing further items, they would likely have been included within the single charged count of theft.
In my view, the s 270C(3)(c) limb of “suspicious circumstances” was capable of being made out, as a matter of law, on the admitted facts. While the terms of that limb are more naturally directed towards a situation where a person is found at or near a premises before having engaged in any offending at that premises, I consider that they nevertheless extend to the present situation. The appellant was “in … the scene of a proposed offence [namely a further theft] awaiting an opportunity to commit the offence.” The fact that the appellant had already taken the opportunity to commit the offences of serious criminal trespass and theft did not mean that he was not awaiting an opportunity to commit a further theft from the same premises.
For completeness, I note the decision of this Court in R v Graham.[51]When stopped by police, the appellant in that case was in a car, and in possession of a crowbar, two screwdrivers, a torch and a notebook containing a list of addresses. The appellant was charged with an offence under s 270C(1) of the CLCA. The prosecution case was that she was in possession of the items mentioned, in suspicious circumstances, and intending to use them to commit the offences of serious criminal trespass and theft. She was convicted by a jury. An issue on appeal was whether the notebook (which was said by the prosecution to contain the addresses of premises that were possible targets) was capable of constituting an item that the appellant intended “to use … to commit” the relevant offences. The Court held that it was not so capable, reasoning that the use of the notebook would have been spent prior to the commencement of the commission of the intended offences. The Court held that the s 270C(1) offence required proof that the defendant intended to use the relevant article, in the sense of employing it, once the commission of the postulated offence had begun.[52]
[51] R v Graham [2011] SASCFC 52.
[52] R v Graham [2011] SASCFC 52 at [31] (Doyle CJ); at [57] (David J); at [59] (Kourakis J).
Despite concluding that the trial judge erred in directing the jury in terms that assumed the notebook was capable of being an item that the appellant intended to use to commit the relevant offences, the Court nevertheless applied the proviso and dismissed the appeal. The Court did so on the basis that there was no doubt that the appellant possessed the other items intending to use them to commit an offence, and that it was sufficient to sustain the conviction for the s 270C(1) offence that the appellant was in possession of any one or more of the particularised items in the circumstances described.[53] The Court was satisfied that there was no risk that the jury had convicted the appellant based solely upon her possession of the notebook.
[53] R v Graham [2011] SASCFC 52 at [43]-[44] (Doyle CJ); at [57] (David J); at [65] (Kourakis J).
While this decision contains a helpful consideration of some aspects of the operation of the s 270C(1) offence, it was concerned primarily with the intended use of the particularised items, and does not include any direct consideration of the matters in issue on this appeal. There was no submission in the present appeal to the effect that any of the particularised items (namely the crowbar, gloves, torch and face mask) were incapable of making out the offence. To the extent that such an argument might have been made (for example, in respect of the crowbar on the basis that the appellant said that he only intended to use it to enter the premises, and not in the theft of further items[54]), the obvious riposte to this would have been that it was sufficient to sustain the conviction that possession of any one or more of the other items was nevertheless sufficient to establish the offence.
[54] cf the statement in R v Graham [2011] SASCFC 52 at [44] to the effect that it would be sufficient that the appellant intended to use it “if it was convenient to do so”, such that the conviction in the present case could have been sustained on the basis the appellant contemplated using the crowbar if necessary, for example, to open a locked door, cupboard or drawer that he might have encountered while inside the building.
Be that as it may, I consider that the difference in the policy rationale underpinning the different types of licence suspension or disqualification is nevertheless a matter relevant to the sentence to be imposed. All other things being equal, it seems to me that in cases where the reason for the suspension or disqualification does not reflect in any way upon the risk that the offender presents to the safety of other road users, the need for general and personal deterrence is less, and the offending should attract a lesser sentence. However, as always, the significance of this consideration in an individual case will depend upon a consideration of the range of other matters relevant to the sentencing exercise in respect of the particular offender and his or her offending.
In my view, the sentences imposed in respect of the drive while suspended offences in the present case were manifestly excessive.
The 17 April 2020 offences
The sentencing Judge imposed a single sentence in respect of the five offences comprising the 17 April 2020 offending. Having adopted a starting point of 3 years imprisonment, his Honour reduced this by 40 per cent on account of the pleas of guilty, arriving at a head sentence of 1 year 9 months 19 days imprisonment.
In contending that this sentence was manifestly excessive, the appellant focussed upon the offence of serious criminal trespass, which he submitted was the most serious of the 17 April 2020 offences. He contended, and I accept, that it can be inferred that the bulk of the sentence imposed was (or at least should have been) referrable to this offence given its relative seriousness.
Both parties referred to R v Delphin,[73] where the Court set a sentencing standard in relation to the offence of serious criminal trespass in a place of residence. The Court held that where such an offence is committed with a general intention to commit theft, and the offender pleads guilty, then a sentence in the order of 20 to 24 months would ordinarily be appropriate.[74] A higher penalty might be expected where the defendant has a history of similar offences.[75]
[73] R v Delphin (2001) 79 SASR 429.
[74] R v Delphin (2001) 79 SASR 429 at [47].
[75] R v Delphin (2001) 79 SASR 429 at [48].
The Court in R v Delphin did not purport to identify any standard sentence for a serious criminal trespass in a non-residential premises. While R v Delphin may still provide significant guidance in determining an appropriate penalty for the non-residential offence, nevertheless, as reflected by the lesser maximum penalty applicable to the non-residential offence,[76] it will generally (and all other things being equal) attract a lesser sentence than the residential offence.[77]
[76] Ten years for the basic non-residential offence under s 169(1) of the CLCA, compared with 15 years for the basic residential offence under s 170(1) of the CLCA.
[77] R v Smith [2002] SASC 330 at [16]; R v Meschede [2016] SASCFC 49 at [22].
I accept that the appellant’s serious criminal trespass was towards the less serious end of the scale of seriousness for such offences. Not only did the offence involve a non-residential premises, but also it was committed at a time (at around 1.00 am) when it was not to be expected that any person would be present. While the appellant forced entry, and created at least some disturbance or mess while searching for items to steal, he did not cause any other damage to the premises.
On the other hand, the appellant was not a first offender. He had a significant criminal history that relevantly included two counts of aggravated serious criminal trespass of non-residential premises, one count of theft, and one count of possess article to commit offence, for which he was sentenced in the Children’s Court in 2005; and a further three counts of theft, for which he was sentenced in the District Court in 2009.
It was also relevant that the offence was planned, at least in the sense that the appellant had with him the various items that were found on his person.
Further, and even allowing for an appropriate focus upon the serious criminal trespass, it was nevertheless necessary for the sentencing Judge to also take account of the additional criminality associated with the other four offences (while at the same time avoiding any double punishment by reason of the overlap in those offences).
The theft of the two mobile phones, and the possession of the prohibited weapon (the double-edged fishing knife), added materially to the seriousness or overall criminality of the appellant’s conduct. In so observing, I have not overlooked that the mobile phones were of limited value and immediately recovered, and that the timing of the trespass was such that it cannot be inferred that the appellant would have expected to encounter any person or any need to use the weapon in his possession. While the disguise and equipment offences also added to the seriousness and criminality of the appellant’s conduct, for the reasons explained earlier, I consider that they only did so to a limited extent.
It is at this point in my review of this component of the sentence imposed by the sentencing Judge that it becomes appropriate to refer to the matters raised under Ground 4. The complaint under this ground is essentially that the sentencing Judge imposed a single sentence for the 17 April 2020 offending without adequately identifying the factual basis for each of the constituent offences; and that the overlapping nature of the offences was such that his Honour therefore erred in failing to ensure that he avoided any double punishment in the sense explained by the High Court in Pearce v The Queen.[78]
[78] Pearce v The Queen (1998) 194 CLR 610.
In my view, there is merit in this complaint. As can be seen from my consideration of the appellant’s appeal against conviction, the overlapping nature of the charges arising out of the appellant’s conduct on 17 April 2020 meant that care was needed to ensure that the risk of double punishment was properly avoided. In particular, and properly understood, the equipment and disguise offences added very little to the overall criminality of the appellant’s conduct. Given the very general level at which the sentencing Judge addressed the task of sentencing the appellant for his 17 April 2020 offending, and the heavy sentence imposed in respect of this offending, I am satisfied that his Honour erred in the manner contended by the appellant.
To be fair to the sentencing Judge, neither of the parties sought to dissect the 17 April 2020 offending during the course of sentencing submissions. As such, the generality of his Honour’s approach reflected the generality of the parties’ submissions. While it is unsatisfactory that his Honour was left in this position, I do not consider that this is a complete answer to the complaint that the appellant now makes. The manner in which the charges were framed in this case meant that a fairly careful and subtle exercise was called for in order to avoid any risk of double punishment. That exercise was not undertaken.
The error I have identified makes it appropriate for this Court to allow the appeal against sentence so as to set aside the sentence referrable to the 17 April 2020 offending. As such, it is unnecessary to decide whether this component of the sentence imposed was, of itself, manifestly excessive. Certainly it was a heavy sentence for that offending.
Unlawful possession
The appellant contended that the starting point of 6 months imprisonment for the 1 August 2019 offence of unlawful possession was manifestly excessive. While this was not the subject of any significant attention in the parties’ submissions, I consider that this component of the overall sentence was also manifestly excessive, at least when considered in conjunction with the other sentences imposed upon the appellant.
Conclusion
The conclusions I have reached in relation to Grounds 1 and 4 make it appropriate to allow the appeal against sentence, and to resentence the appellant.
Grounds 2 and 3: concurrency and totality
Having already reached the conclusion that it is appropriate to allow the appeal against sentence, there is no need to address the grounds challenging the sentencing Judge’s failure to make any allowance for concurrency or totality in any detail.
It is sufficient to refer to this Court’s previous summaries of these principles; their role as mechanisms for ensuring proportionality between the penalty ultimately imposed and the circumstances of the offending and the offender; and the considerable latitude to be afforded to sentencing Judges in their application of these principles.[79]
[79] R v W, PL [2017] SASCFC 119 at [37]-[51]; Giordimania v The Queen [2020] SASCFC 28 at [35]-[36].
In circumstances where the sentencing Judge utilised s 26 of the Sentencing Act in respect of the 17 April 2020 offences, it is understandable that the Judge did not make express reference to the principles of concurrency or totality in respect of the sentence for those offences. It can be safely inferred that his Honour afforded at least some degree of concurrency in respect of those offences in arriving at the single penalty he identified.
As each of the other offences for which penalties were imposed involved separate incursions into criminality, it is difficult to criticise his Honour’s decision to make each of the individual sentences he identified cumulative upon the others. Nor do I think any criticism can be made of the Judge for not making any adjustment to the overall sentence on the grounds of totality.
In summary, while I have separately concluded that the sentence imposed by the Judge was manifestly excessive, I do not think any process error has been established by reason of his Honour’s decision to structure the sentence he imposed without any express allowance or adjustment for concurrency or totality.
Resentencing
Having decided to allow the appeal against sentence, it remains to resentence the appellant.
In so doing, I have had regard to the circumstances of each of the appellant’s offences, as well as his personal circumstances, as outlined in the course of these reasons. It is not necessary for me to repeat the detail of these matters.
Indeed, I do not need to say anything further about the circumstances of the various offences. As for the appellant’s personal circumstances, I have had regard to his difficult upbringing and personal history, and the fact that his offending occurred in circumstances where he had lost his job, was taking drugs and had effectively lost control of his life. It is significant that the appellant’s offending involved a large number of separate incursions into crime over a relatively extended period of time, particularly given his poor history of similar offending. At the same time, it is also significant that the appellant has shown a level of insight and remorse, including through his prompt admissions (in relation to the 17 April 2020 offending), his letters to Bluize Pty Ltd and the Court, and his pleas of guilty. I have also had regard to the fact that the appellant has not previously served any significant period of imprisonment.
In identifying the sentence I would impose, it is appropriate to commence by confirming the sentencing Judge’s revocation of the appellant’s good behaviour bond, and his order that the original sentence of 3 years 6 months imprisonment for his earlier drug offending be carried into effect.
In addressing the fresh offending, I would adopt the same sentence structure as the sentencing Judge; that is, I would impose separate sentences for those offences in respect of which his Honour imposed sentences of imprisonment, save for the 17 April 2020 offending. Like the sentencing Judge, I consider it appropriate to utilise s 26 of the Sentencing Act and impose a single sentence for the 17 April 2020 offending. I would also adopt the sentencing Judge’s approach of allowing discounts for the appellant’s pleas of guilty equivalent to the applicable maximum discounts identified in the table at the outset of these reasons.
For those offences in respect of which the sentencing Judge ordered convictions without further penalty, I would adopt the same approach.
In respect of the 1 August 2019 count of unlawful possession (offence 1), it was a less serious example of this offence. While there remains a need to ensure an appropriate level of general deterrence and personal deterrence for offending of this type, I consider that a starting point of 3 months imprisonment is sufficient and appropriate in all of the circumstances (including the extent to which the various sentencing objectives, particularly personal deterrence, will be achieved through the imposition of the overall sentence that I intend to impose). After a reduction of approximately 40 per cent on account of the appellant’s plea, I would impose a sentence of 1 month 24 days imprisonment for this offence.
For the 16 November 2019 driving offences (offences 2 to 6), I would impose convictions without further penalty.
For the 8 April 2020 offence of driving while suspended (offence 7), from a starting point of 2 months, and after a reduction of approximately 40 per cent for the appellant’s plea, I would impose a sentence of 1 month 6 days imprisonment.
For the balance of the 8 April 2020 driving offences (offences 8 to 10), I would impose convictions without penalty.
Turning to the 17 April 2020 offending (offences 11 to 15), and as foreshadowed, I would impose a single penalty. In arriving at an appropriate starting point, I have had close regard to the significant overlap between the offences in terms of the punishment necessary to achieve the objectives of the sentencing process. I have borne in mind the limited extent to which the equipment and disguise offences added to the overall criminality of the appellant’s offending on 17 April 2020. While general and personal deterrence must again loom large, I consider it sufficient and appropriate to adopt a starting point of 2 years 6 months imprisonment for this offending. After reducing this by 40 per cent on account of the appellant’s pleas of guilty in respect of this offending, I would impose a sentence of 1 year 6 months imprisonment.
For the breach of bail offences (offences 16 to 18), I would, like the sentencing Judge, enter convictions without further penalty.
That leaves the 8 June 2020 driving while suspended offence (offence 19). I would start with 3 months imprisonment for this offence, which after a 25 per cent reduction on account of his plea, results in a sentence of 2 months 7 days imprisonment.
As I have already had regard to the effect of the other sentences to be contemporaneously imposed in arriving at the individual sentences indicated above, and because each such sentence relates to a separate episode of offending, I would make each of the sentences I have announced cumulative upon the others. I would thus impose a sentence of 1 year 11 months 7 days imprisonment, which when added to the sentence to be imposed as a result of the revocation of the appellant’s good behaviour bond gives an aggregate of 5 years 5 months 7 days imprisonment. In my view, this sentence appropriately reflects the overall criminality of the appellant’s conduct. I do not consider that any allowance for concurrency or totality is required to ensure proportionality between the sentence to be imposed and the circumstances of the appellant and his offending.
In respect of this aggregate head sentence, and having particular regard to the appellant’s personal circumstances to which I have referred, I would fix a non-parole period of 3 years 6 months, being approximately the same proportion of the head sentence as the non-parole period fixed by the sentencing Judge.
Conclusion and orders
For the reasons above, in respect of the appeal against conviction, I would, to the extent necessary, grant permission to appeal but dismiss the appeal. In respect of the appeal against sentence, I would, to the extent necessary, grant permission to appeal and allow the appeal.
I would set aside the sentence imposed by the sentencing Judge and impose the sentences announced above, resulting in an aggregate head sentence of 5 years 5 months 7 days imprisonment. I would fix a non-parole period of 3 years 6 months. I would backdate both the head sentence and the non-parole period to commence on 8 June 2020, being the date the appellant was taken into custody.
BLEBY JA: I agree with the reasons given by Doyle JA and with the orders his Honour proposes.
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