Schettini v Police - [2008] SASC 217

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHETTINI v POLICE
[2008] SASC 217
Judgment of The Honourable Justice Gray
11 August 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - TIME SPENT IN CUSTODY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION
Appeal against sentence - defendant sentenced by a Magistrate with respect to six counts of dishonesty and one count of aggravated assault - defendant sentenced for the dishonesty offending to a term of imprisonment of 16 months, from a starting point of 42 months, making a reduction to 31 months on account of the pleas of guilty and a further reduction of 15 months for time spent in custody with respect to this offending - defendant sentenced to one month imprisonment with respect to the offence of aggravated assault - 11 months and 28 days still to be served by defendant for prior offending - a total term of imprisonment imposed of 28 months and 28 days, with non-parole period of 19 months fixed, commencing as at the date of sentencing - Magistrate declined to exercise his discretion to suspend any of the sentences - whether the Magistrate had failed to properly bring to account a period of three months, two weeks and five days spent in custody by the defendant - whether Magistrate failed to have proper regard to the defendant’s assistance to the police in the recovery of part of the property the subject of the dishonesty offending.
Held: appeal dismissed - the charges with respect to the other unrelated offending were later withdrawn, and so the Magistrate was not required to consider that period served in custody - in any event, the Magistrate specifically gave the defendant benefit for this time spent in custody - evident from the Magistrate’s remarks that he did have regard to the defendant's assistance to the police - sentence imposed was not manifestly excessive.
Criminal Law (Sentencing) Act 1988 (SA) s 18A and s 30(2); Correctional Services Act 1982 (SA) s 75, referred to.
R v Hughey (2007) 252 LSJS 316; Hart v Police [2005] SASC 223; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321, considered.

SCHETTINI v POLICE
[2008] SASC 217
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
On 20 March 2008, following pleas of guilty, Mark Antony Schettini, the defendant and appellant, was sentenced by a Magistrate with respect to six counts of dishonesty and one count of aggravated assault.
The Offending
On 4 May 2004, the defendant took part in the deception of another person through the provision of a falsified cheque for $17,400 to purchase a Ducati motorbike. The motorbike was recovered with the assistance of the defendant. Between 19 May 2005 and 27 June 2005, the defendant took part in the deception of other persons in relation to the provision of a falsified money order for $1,995 to purchase musical instruments, the provision of falsified cheques for $4,750 to purchase musical instruments, for $26,250 to purchase a motor vehicle, and for $15,500 to purchase a boat. The motor vehicle was recovered and the purchase of the boat did not proceed. The musical instruments were not recovered. On 5 July 2005, the defendant took part in the attempted deception of other persons in relation to the provision of a falsified cheque for $12,950 to purchase jewellery.
The Magistrate summarised the circumstances of the defendant’s dishonesty offending as follows:
The offences were committed against persons selling or dealing in motor cycles, motor vehicles and boats and involved a total amount of benefits fraudulently obtained of about $79,000. The offending is serious. The facts indicate a devious and systematic approach to that course of offending. Some of the amounts have been recovered, others have not.
On 9 February 2007, the defendant assaulted his de facto partner. The Magistrate outlined the circumstances of the aggravated assault:
There had been a scuffle, police were called. After police left, the matter re-ignited. I accept that the assault consisted of pushing [your spouse] on several occasions. No injury is alleged. The dispute appears to have been protracted. You have some record for domestic assaults. … In my view an appropriate penalty for that domestic assault is a short sentence of imprisonment.
The Magistrate addressed the antecedents of the defendant:
It is clear that you have had a life punctuated by difficulties and crises. The conclusions of the psychiatrist, Mr Fugler, in his report are significant. He has described you as a person having a low self-esteem, a history of anti-social behaviour and a person who has often unwisely been drawn into offending behaviour in order to impress associates. You are 38 years of age. It is not suggested that your offending was affected by episodes of mental illness at the times at which it occurred. You have had a lot of contact with the criminal justice system. You have been afforded leniency on numerous occasions. You have not learnt from these experiences and you have been sent to prison on numerous occasions and have received varying periods of parole. My assessment of the reports and information before me is that you remain a person who is at risk of re-offending.
The Magistrate declined to exercise his discretion to suspend any of the sentences, observing:
You come before the court as a person with a long record of offending by way of dishonesty. As I mentioned you have received a variety of penalties over the years in Victoria and in this State. You have received sentences of imprisonment to be served on several occasions. This offending was serious. In my view there was not good reason to suspend.
The Magistrate sentenced the defendant to the one sentence for the dishonesty offending pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) – a term of imprisonment of 16 months. The Magistrate arrived at the sentence by taking a starting point of 42 months, making a reduction to 31 months on account of the pleas of guilty and a further reduction of 15 months for time spent in custody with respect to this offending. The Magistrate imposed a sentence of one-month imprisonment with respect to the offence of aggravated assault. This sentence was cumulative on the sentence of 16 months’ imprisonment. The aggravated assault offence involved conduct that breached a bond entered into by the defendant. As the bond related to offending of an entirely different nature, the Magistrate excused the breach.
At the time of sentencing the defendant still had to serve a term of imprisonment with respect to prior offending. The balance of that term as at the date of sentencing was 11 months and 28 days. In accordance with section 75 of the Correctional Services Act 1982 (SA), the Magistrate directed that the sentence of 16 months’ imprisonment commence at the expiration of the term of 11 months and 28 days. This led to a total term of imprisonment to be served of 28 months and 28 days. With respect to the total sentence, the Magistrate fixed a non-parole period of 19 months commencing as at the date of sentencing.
On appeal, the defendant’s primary submission was that the Magistrate had failed to properly bring to account a period of three months, two weeks and five days spent in custody by the defendant between 16 July 2004 and 3 November 2004 – the subject period. This was a period separate from the period of 15 months for which the defendant was given credit. It was submitted that the subject period was in respect of offending before the Magistrate and that accordingly the defendant was entitled to full credit for the subject period when being sentenced. It was acknowledged by the defendant that there may be some ambiguity in the Court records as to whether the subject period related to the offending before the Court. It was said that any such ambiguity should be resolved in favour of the defendant.
On the hearing of the appeal, documentary evidence was placed before the Court by consent. This evidence established that the subject period was as a result of the defendant being on remand in custody with respect to other unrelated offending. The charges with respect to the other unrelated offending were later withdrawn. In these circumstances the Magistrate was not required to consider the subject period as it was not “in respect of an offence to which the defendant is subsequently sentenced to imprisonment”.[1]
[1] Criminal Law (Sentencing) Act 1988 (SA), section 30(2); R v Hughey (2007) 252 LSJS 316.
In any event, it is to be observed that the Magistrate specifically gave the defendant benefit for the subject period when he observed “I take into account the time you spent in custody for periods in 2004 ... ”. This was an appropriate course to follow. It was a relevant personal circumstance.[2]
[2] Hart v Police [2005] SASC 223.
The other complaint advanced on appeal was that the Magistrate failed to have proper regard to the defendant’s assistance to the police in the recovery of part of the property the subject of the dishonesty offending.
The defendant’s assistance in effecting recovery is a relevant matter. It is evident from the Magistrate’s remarks that he did have regard to this consideration as his remarks record “some of the amounts have been recovered, others have not”.
The defendant’s poor criminal antecedents precluded leniency. The need for both personal and general deterrence was a relevant consideration. The sentence imposed was not manifestly excessive. It was a sentence well within the Magistrate’s sentencing discretion.[3] In my view there is no basis on which it may be suggested that the Magistrate failed to have proper regard to the assistance rendered by the defendant.
[3] House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321.
This appeal is dismissed.