Schweinsberg v Police - [2007] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SCHWEINSBERG v POLICE
[2007] SASC 77
Judgment of The Honourable Justice Sulan
6 March 2007
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - PRACTICE AND PROCEDURE - SENTENCING
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - JUVENILE OFFENDERS - SENTENCING AS CHILD OR ADULT AND IMPRISONMENT
Appeal against sentence - appellant pleaded guilty to one count of driving whilst disqualified and one count of illegal use of a motor vehicle - appellant aged eighteen years and two months when offences were committed - Magistrate imposed one sentence of three months' imprisonment - consideration of factors when sentencing young offenders who are unrepresented and have not previously been incarcerated - appeal allowed.
Criminal Law Consolidation Act 1935 s 86A; Motor Vehicles Act 1959 s 91, referred to.
Hendy v Kraft (1991) 55 SASR 345; Kenchington v Shepherd (Olsson J, 17 January 1990, unreported); Stewart v Collins (1992) 58 SASR 291; Taormina v Cameron (1980) 24 SASR 59, considered.

SCHWEINSBERG v POLICE
[2007] SASC 77
Magistrates Appeal

SULAN J: On 7 September 2006, the appellant pleaded guilty to one count of driving whilst disqualified contrary to s 91 of the Motor Vehicles Act 1959 and to one count of illegal use of a motor vehicle contrary to s 86A of the Criminal Law Consolidation Act 1935. The maximum penalty for the offence of driving whilst disqualified is six months’ imprisonment for a first offence. It was the appellant’s first offence. The penalty for a first offence of illegal use of a motor vehicle is two years’ imprisonment and, for a subsequent offence, the penalty is imprisonment for not less than three months and not more than four years. The appellant admitted two previous offences of illegal use of a motor vehicle. In September 2004 and March 2006, the appellant had pleaded guilty in the Youth Court to illegal use of a motor vehicle. On each occasion no conviction was recorded, and he was placed under an obligation.
The Magistrate imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of imprisonment for three months. That was the minimum sentence that could be imposed, having regard to the two prior offences which had been admitted by the appellant. The appellant was disqualified from holding or obtaining a driver’s licence for a period of twelve months. The appellant was granted bail pending appeal.
The grounds of appeal are:
1.The learned Magistrate erred in failing to suspend the sentence of imprisonment.
2.The learned Magistrate erred in failing to order a pre-sentence report when he was contemplating imposing imprisonment.
3.The learned Magistrate erred in failing to elicit sufficient information from the appellant prior to sentencing him.
4.The sentence is manifestly excessive.
The appellant was unrepresented before the Magistrate. At the time that the offences were committed he was aged eighteen years and two months. It was his first appearance in an adult court.
The Magistrate explained to the appellant that he was entitled to legal representation. The Magistrate indicated that this was a serious matter as there was a term of imprisonment attached to the offences with which he was charged. He asked the appellant if he wished to obtain legal representation. The appellant declined the opportunity to obtain legal advice. He pleaded guilty to both counts.
The circumstances of the offending are as follows: Ms D’Ascanio drove her motor vehicle and parked it at the Hollywood Plaza Shopping Centre at Salisbury on Thursday, 27 July 2006. Approximately fifteen minutes later, she returned to the place where she had parked her car and her car was missing. Later that day, police observed the vehicle at St Marys. They apprehended the appellant who was driving. The appellant stated that he was not, and had never been, the holder of a driver’s licence. That turned out to be untrue. Subsequent inquiries revealed that the appellant had been disqualified from holding or obtaining a driver’s licence from 8 March 2006 to 7 March 2007. He said he had stolen the car to travel to Port Noarlunga to see a friend and that he intended to return it to the place from which he took it. He had used an old ignition key to start the car.
The appellant made short submissions to the Magistrate.
When imposing sentence, the Magistrate said:
I have resolved today that I impose one sentence for these offences and that will be three months imprisonment. I am very mindful of your age and powers vested in me to suspend periods of imprisonment. However, I see nothing in what I have heard either from the police or from yourself or indeed from your background and your recent like offending when you were given leniency in March this year and it is for these reasons I decline to suspend this period of imprisonment.[1]
The Magistrate disqualified the appellant from holding a driver’s licence for a period of twelve months.
[1] Police v Schweinsberg, Remarks on Penalty by Mr G R A Clark, 7 September 2006, [4].
Counsel for the appellant contends that the Magistrate failed to give sufficient weight to the appellant’s age and that the appellant had not previously had the benefit of a suspended sentence of imprisonment. She submits that his antecedent history in the Youth Court is not extensive, and that the Magistrate placed too much weight on personal and general deterrence and insufficient weight on the rehabilitation of the appellant.
She contends that the Magistrate erred in failing to order a pre‑sentence report when contemplating imposing an immediate term of imprisonment on an unrepresented defendant. She submits that it was incumbent upon the Magistrate to elicit more information from the appellant than he did, particularly as the appellant was unrepresented and his antecedent history revealed that he had a possible brain injury and a history of substance abuse.
She seeks to rely upon a social background report and a psychological report. The social background report had been obtained in March 2006 for a matter before the Youth Court and was prepared by an Officer of the Department for Families and Communities. A psychological report of Dr Melissa Taylor, dated 4 January 2007, was obtained after the appellant had been sentenced by the Magistrate. Counsel for the appellant submits that if a pre-sentence report had been obtained it would have revealed matters contained within the social background report and the psychological report which are now before this Court. The appellant sought leave to tender the reports. Counsel for the respondent consented to the application.
Counsel for the respondent concedes that the learned Magistrate should have informed himself of the personal circumstances of the appellant before proceeding to sentence. The concession is justified. I refer to observations of Olsson J in Kenchington v Shepherd,[2] which are apposite:
… At the outset I must say that I have the greatest sympathy for the magistracy in grappling with heavy lists. It is easy to be wise after the event. On the other hand the liberty of the subject and significant deprivations of rights (for example proposed disqualifications of licences) are very serious matters which can have disastrous consequences for the individual. Moreover it is a grave mistake to assume that lay offenders, in the unfamiliar environment of the dock, are likely to have any real appreciation of what ought to be said by them to ensure that the Court is truly in a position to impose penalty having regard to all relevant circumstances and considerations. Where, as here, the Court was contemplating impositions of a custodial sentence it is simply not satisfactory merely to say to a defendant at the outset of the hearing – if that was said – that matters of the type in question are serious and can attract a custodial penalty. In point of fact the learned magistrate knew relatively little about the personal circumstances of the appellant and it does not appear that he went to any great lengths to probe the situation. Moreover it is not suggested that, at any stage, he specifically warned the defendant that he was seriously contemplating imprisonment.[3]
[2] Olsson J, 17 January 1990, unreported.
[3] Kenchington v Shepherd (Olsson J, 17 January 1990, unreported).
It is incumbent upon a court contemplating a term of imprisonment in the case of a young offender who has no previous adult convictions, to obtain as much information about the offender as possible. Unrepresented persons do not have the ability to ensure that all relevant information is before the Court. The Court requires assistance and can order pre-sentence and other reports. If an immediate custodial sentence is contemplated, even if the defendant is urging the Court to finalise the matter, the Court should obtain appropriate reports. The effect of a custodial sentence on a young offender who has never been incarcerated is such that the Court should be fully informed about the offender before imposing a custodial sentence.
The Magistrate failed to make sufficient inquiries about the appellant’s background. The respondent accepts that the Magistrate erred and agrees that this Court should consider the sentence afresh.
I have had regard to the report of Dr Taylor and the social background report.
The social background report details the appellant’s early childhood. The appellant’s parents separated when he was four years old and he experienced difficulties from a relatively young age. The appellant has had little contact with his father. In 2004, the appellant spent a short time with his father in Melbourne. He had left his mother’s home because both he and his mother were not coping well. He returned to his mother’s home within months as his move to live with his father was unsuccessful. The appellant has been a regular consumer of marijuana. Until recently he has spent most of his money on purchasing marijuana and other drugs. He has been hospitalised for overdosing on ecstasy. His counsel informs me that he has now reduced his consumption of drugs.
He is currently unemployed. He has an interest in seeking an apprenticeship as a mechanic. Over recent months, the appellant has been distressed over the traumatic loss of two of his close friends. He is withdrawn and shows limited insight into his behaviour, or the consequences of his actions.
Dr Taylor concluded that his use of marijuana and consumption of alcohol appears to be linked to his offending behaviour. As a result of being the victim of two assaults, he may be suffering from a moderate brain injury. He did not display evidence of a major mental illness or a personality disorder. He has a number of negative risk factors and he lacks appropriate family support. At the hearing he was supported by his mother’s partner, who has offered to employ the appellant when work is available. Dr Taylor considered that the appellant is at risk of repeat offending.
The appellant is a young man who has expressed an intention to obtain work. He has stopped associating with persons who are involved in drugs. In Hendy v Kraft,[4] Olsson J said:
This Court has repeatedly stressed a concept, which is reinforced by the express provisions of the Criminal Law (Sentencing) Act, that, in the case of young offenders, considerations of rehabilitation must occupy a prominent role in the sentencing process: see R v Weaver (1973) 6 SASR 265; R v Rousseff (unreported, Court of Criminal Appeal, WA 17 September 1984). The imposition of crushing first custodial sentences upon young offenders is counter-productive to the attainment of such an aim.[5]
[4] (1991) 55 SASR 345.
[5] Hendy v Kraft (1991) 55 SASR 345, 347-348.
In Taormina v Cameron,[6] the defendant had committed serious fraud offences. King CJ said that one of the factors which the Court considered was the youth of the offender. Further, the Court was not satisfied that the appellant had embarked upon a criminal way of life. In Stewart v Collins,[7] the appellant was twenty years of age. He pleaded guilty to breaking and entering and larceny, and was sentenced to nine months’ imprisonment. Bollen J considered that the Magistrate had given too much weight to general factors, such as deterrence. He observed that, at times, the rehabilitative aspect of sentencing will outweigh other considerations. Bollen J suspended the sentence.
[6] (1980) 24 SASR 59.
[7] (1992) 58 SASR 291.
In this case, the Magistrate failed to give adequate consideration to the youth of the offender and to his background. This was the first occasion the appellant had appeared in an adult court. The Court is reluctant to impose an immediate custodial sentence on a young offender who is appearing in an adult court for the first time, unless the offending is so serious that an immediate custodial sentence is appropriate in the circumstances.
The appellant has demonstrated an intention to reform. He has stopped using illicit drugs. He is no longer associating with those who influenced him into drug use in the past. He is hoping to find employment. Good reason exists to suspend the sentence.
The appeal is allowed, and the sentence imposed by the Magistrate revoked. In respect of both offences, I impose one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of three months’ imprisonment. The sentence is suspended upon the appellant entering into a bond in the sum of $100 to be of good behaviour for two years on the condition that he be under the supervision of a Correctional Services Officer and obey that Officer’s directions as to any recommended treatment, including psychological treatment. I make it a further condition that the appellant undertake sixty hours of community service, to be performed within twelve months. I note that the appellant has not driven a motor vehicle since 7 September 2006. The appellant is suspended from holding or obtaining a driver’s licence for twelve months, the suspension to have commenced on 7 September 2006.