Sean Spokes v Police Nos. SCGRG 92/2613 and 2614 Judgment No. 3797 Number of Pages 4 Magistrates Appeal

[1993] SASC 3797

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA APPEAL FROM A COURT OF SUMMARY JURISDICTION AT HOLDEN HILL PERRY J.

CWDS
Magistrates Appeal - Appeal against suspended sentences of 3 months imprisonment imposed on each of three counts of breaking and entering - appellant, a 19 year old youth, shown by reports tendered before the Magistrate to suffer from serious intellectual deficits and had functional skills appropriate to a child aged 2 - 10 years - suspension of the sentences on the basis of a 3 year bond and to undergo such necessary treatment as he might be advised to by the probation officer and to perform 200 hours of community service - held that Magistrate had not erred in imposing a term of imprisonment, albeit suspended, but that the accumulation of the sentences should be eliminated and they should be directed to be served concurrently, resulting in a head sentence of 3 months. R v Halse (1985) 38 SASR 594 referred to.

HRNG ADELAIDE, 14 January 1993 #DATE 14:1:1993
Counsel for appellant:     Mr G Xatsaras
Solicitors for appellant: Legal Services Commission Of South
   Australia
Counsel for respondent:     Ms M Clements
Solicitors for respondent: Mr B M Selway, Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 PERRY J. The appellant appeals against the sentences imposed upon him on 4 November 1992 by a Magistrate constituting the Magistrates Court at Holden Hill with respect to three counts of breaking and entering. 2. The appellant pleaded guilty to between the 9th and 12th of June 1992 at Klemzig, breaking and entering a Salvation Army store and stealing from it one cassette tape recorder of the value of $7. Separately, he pleaded guilty to having on 26 September 1992 at Holden Hill, broke and entered the Holden Hill snack bar and stolen $20 from the till, and on 29 September, that is three days later, broke and entered the same snack bar with intent to steal. 3. After hearing submissions from counsel who appeared before him, the learned Magistrate convicted the appellant on all three counts. He imposed a sentence of three months imprisonment with respect to the June offence, and a similar sentence on each of offences committed in September 1992. He ordered that the terms of imprisonment for the September offences be served concurrently, but cumulatively upon the three months imprisonment ordered for the June offence. This gave rise to a total head sentence of six months imprisonment. 4. The learned Magistrate went on to order the suspension of the sentence of imprisonment upon the appellant entering into a bond in the sum of $10 for three years, subject to conditions that the appellant be of good behaviour and be under the supervision of a probation officer, and that the appellant obey the probation officer's directions with respect to "such programs, projects and assessments, and if necessary treatment as may be advised to address" the appellant's "behaviour, intellectual problems and disabilities". In addition, he ordered the performance of 200 hours of community service, and directed the payment of compensation totalling $855.60. 5. At the time of the offending the appellant was aged 19 years. The circumstances of the offences have been summarised in the affidavit of Mr Howland, the police prosecutor. With respect to the June offence it appears that overnight the glass front door of the Salvation Army store was smashed, and the recorder the subject of that charge was taken by the appellant. 6. As to the September offences, it appears that the appellant gained entry by smashing the front glass door to the shop on both occasions. 7. With respect to all of the counts the appellant made full and frank admissions to the investigating police officers. 8. The learned sentencing Magistrate had the benefit of a long report described as a psychological assessment which had been prepared by a psychologist in the employ of the Intellectual Disability Services Council. As well, there was a report which had been furnished by a social worker attached to the same organisation. 9. The psychological report, after dealing with the appellant's unfortunate upbringing, indicated that the appellant suffered from a pronounced intellectual disability. In the report the author concludes that the appellant had an intellectual ability in functional skills equivalent to a child aged approximately 7 to 10 years. It appears from the report that the appellant has had very serious difficulties in coping with life outside an institutional setting, and despite a good deal of support from the social workers and others, has been unable to settle down to life in the open community. 10. His finances are administered by Public Trustee, who held funds from which the Magistrate thought it appropriate to direct the payment of the compensation to which I have referred. 11. The Notice of Appeal complains that the sentences were manifestly excessive, that the Magistrate failed to give due consideration to the intellectual and other disabilities suffered by the appellant, and that he erred in imposing terms of imprisonment. 12. Mr Katsaras, who appeared for the appellant on the hearing of the appeal, advanced the argument that when regard was paid to the criteria to be found in s.11 of the Criminal Law Consolidation Act, none of that criteria was apt to characterise the circumstances of the case or of the appellant, and that it was for that reason, inappropriate for the imposition of a term of imprisonment, albeit suspended. 13. Miss Clements for the respondent drew the attention of the court to the well-known authority of R V Halse (1985) 38 SASR 594, and in particular the observations of His Honour King CJ in that case at p.595, in which His Honour expressed the view that:
    "...only an unusual case of breaking and entering should
    attract a sentence of less than nine to 12 months, even for a
    first offence, although, of course, suspension must be a
    serious option in the case of a first offender." It should be noted that in the case of Smith, an unreported decision of the Court of Criminal Appeal, 18 October 1990, Judgment No.2530, the Court indicated that the time may have arrived for the tariffs laid down in Halse to be reviewed. However, I was not directed by counsel to any authority in which there has been any such review. 14. In this case justification for imposing a sentence of imprisonment, lower than has generally been regarded as the tariff which finds expression in Halse, can only be found in the evidence before the learned sentencing Magistrate of the appellant's intellectual deficits. Mr Katsaras urged upon this Court the view that the learned Special Magistrate had failed to take into account the evidence before him as to that aspect of the matter, and should not have ordered imprisonment at all. In my opinion, the Magistrate clearly had regard to the psychological evidence. The learned Magistrate adjourned in order to consider the reports, and during the course of his sentencing remarks he referred to the appellant's "personal background" and "the matters contained in the reports". 15. It seems clear enough that the learned Magistrate went on to impose sentences falling far shorter than the tariff referred to in Halse after taking that material into account. No doubt it was also taken into account in the decision to suspend the sentences. 16. Mr Katsaras has said everything that could possibly be said with respect to the appellant's case on the appeal. However, I am not satisfied that in all the circumstances it was inappropriate for the learned Magistrate to impose a term of imprisonment. It does seem to me, however, that given all of the matters to which I have referred, and after making appropriate allowance for the appellant's mental condition, it would have been appropriate to make all of the terms of imprisonment concurrent. In my opinion, the failure to take that course may properly be regarded as giving rise to a penalty which overall was excessive. 17. For the reasons which I have just pronounced, the appeal should be allowed, and I so order, for the purposes of quashing the order as to the accumulation of the terms of imprisonment, and substituting an order that each of the terms of imprisonment, that is the three terms of three months, be served concurrently. That means that the effective head sentence becomes three months instead of six months. 18. In all other respects the sentence pronounced by the learned Magistrate, including the suspension of the term of imprisonment, which will now be a suspension of a three months term, will remain in full force and effect.