SHANE ROBERT DEWAR and NEVILLE KEITH RICHARDS v. SA POLICE No. SCGRG 93/1000 Judgment No. 4069 Number of Pages - 4 Criminal Law

[1993] SASC 4069

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Criminal law - sentencing - breaking and entering of club rooms and larceny - pleas of guilty - offenders intoxicated with significant records of past offending - offence committed when both offenders on parole - sentences of sixteen months' imprisonment - not manifestly excessive - non-parole periods fixed - an incorrect factual basis.

HRNG ADELAIDE, 19 July 1993 #DATE 19:7:1993
Counsel for appellant:     Ms P Tresize
Solicitors for appellant:    Aboriginal Legal Rights
   Movement
Counsel for respondent:     Mr S Gupta
Solicitors for respondent: Crown Solicitor for
   South Australia

ORDER
Appeals against head sentences dismissed - appeal allowed with respect to non-parole periods and such periods reduced.

JUDGE1 MULLIGHAN J The appellants pleaded guilty to breaking and entering the clubrooms of the Returned Services League sub-branch at Barmera in April 1993 and stealing alcoholic liquor and softdrink to the value of about $50. 2. They were sentenced to imprisonment for sixteen months by a learned Special Magistrate sitting as the Magistrates Court (Criminal Division) at Barmera. At the time the offence was committed, and when they were sentenced, both of the appellants were on parole. The sentences imposed by the learned Special Magistrate are to commence at the expiration of the unexpired portion of their previous sentences in each case. 3. The learned Special Magistrate fixed a non-parole period in the case of the appellant Dewar at three years and three months on the mistaken understanding that the total head sentence, taking into account the sentence of sixteen months, would be three years, nine months and twenty-five days when, in fact, it was three years, six months and twenty-five days, and in the case of the appellant Richards, a non-parole period of three years on the mistaken understanding that the total head sentence to be served taking into account the sentence which he had imposed would be three years, three months and seventeen days, whereas it was, in fact, three years and seventeen days. That incorrect understanding has been accepted by the respondent on this appeal. 4. The appellants appeal against the sentence imposed on the grounds that the head sentence is manifestly excessive and the non-parole period was excessive in the circumstances. Both of these men went to Barmera to resume their respective relationships with a woman by the name of Bridgland who was a co-offender. Both of them were infatuated with her, and upon resuming living with her came under her influence. It was she who persuaded them to commit the crime with her. 5. It would seem that the purpose of the crime was to obtain drink as there were other items of significant value present in the clubrooms which were not taken by them. At the time both of the appellants were considerably affected by alcohol and by the drug Rohypnol. The crime was committed in an amateurish way. Blood of one of the appellants was left at the premises and was seen by police at the house where both appellants were living which enabled the police to connect the appellants with the crime. 6. It came to the knowledge of the appellants that the police wanted to speak to them about the crime and so both of them went to the police station voluntarily. The appellant Richards made a full confession at that time. The appellant Dewar refused to answer questions, but subsequently accepted his involvement in the crime by his plea of guilty. 7. The appellant Dewar has a long record of prior offending commencing in 1981 when he was a child and continuing with some regularity through to the present time. He has six prior convictions for offences of a similar nature, many convictions for other offences involving dishonesty and a considerable number of other offences. It would seem his life thus far has been characterised by criminal conduct. He is now aged twenty-eight years and has two children of his relationship with Ms. Bridgland. 8. The appellant Richards is now aged twenty-one years. He has one previous offence of breaking, entering and larceny as a child in 1988 when he was fined without conviction. In the following year he was found guilty of burglary and was released on a bond without conviction. In November 1992 he was found guilty, on his plea of guilty, of armed robbery, three counts of breaking and entering and larceny and three offences of illegal use. He was sentenced to a total head sentence of three years commencing on 14th March 1992 with a non-parole period of eighteen months. So, whilst his past record is nowhere near as extensive as that of the appellant Dewar, he has been convicted of a crime more serious than any of the previous offences committed by the appellant Dewar. 9. It was, of course, a matter of significant aggravation that the present offence was committed whilst both of the appellants were on parole. The learned Special Magistrate took a serious view of the appellants' offending and he was plainly justified in doing so. He took into account the pleas of guilty and features of the background of each of the appellants which attracted some sympathy. Having regard to their respective past records, he took the view that an appropriate sentence for each of them was imprisonment for two years, but he imposed the sentences of sixteen months, no doubt having regard to the mitigating factors of which he was aware. 10. Neither of the appellants was represented by a legal practitioner at the hearing and so it is that other features of their respective backgrounds were not made known to the learned Special Magistrate. I have been informed of those features on the hearing of this appeal and I have regard to them in the conclusion which I have reached. 11. Both men have had a difficult upbringing. Their young lives were characterised by alcohol abuse by their parents, violence in the home and petrol sniffing by them which has probably caused some degree of brain damage. There was no information before the learned Special Magistrate or before me on this appeal as to the nature and extent of the brain damage, but I accept that they have probably suffered the well-known consequences of extensive petrol sniffing, namely some degree of brain damage resulting in a measure of psychological dysfunctioning at times. 12. The offence of armed robbery committed by the appellant Richards is said to have been committed in circumstances not as serious as the usual type of such offence. He lived across the road from a service station, and whilst affected by alcohol went to the service station armed with a barbecue fork. He was well-known to the proprietor of the service station who saw him, and in the presence of staff of the service station he demanded that a woman customer hand over her purse. He was apprehended shortly thereafter having had temporary possession of the purse which contained $175. Even allowing for the immature aspects of that offence, and the other offences which the appellant Richards has committed, the armed robbery was nevertheless a very serious breach of the criminal law. 13. The learned Special Magistrate came to his sentencing task with the knowledge that neither of these appellants had reacted favourably to leniency which had been extended to each of them previously. Even if the features of the background of each appellant which I have mentioned had been before the learned Special Magistrate, there could be no question but that both of the appellants had to be sentenced to a term of imprisonment to be served immediately. In my view, the sentence of sixteen months was, in all the circumstances, a modest sentence. If a sentence in excess of two years had been imposed neither of these appellants could have justly complained. 14. I have had regard to all of the matters which Ms. Trezise has put on behalf of both appellants and in so far as the appeal relates to the head sentence imposed upon each of them it must fail. The head sentence cannot be characterised as being manifestly excessive. 15. I turn to the appeal with respect to the non-parole period. In the present context, the purpose of fixing a non-parole period is to determine how much of the sentence should be served in custody and how much should be served at liberty in the community under the strict conditions of parole. Usually it is desirable that an offender who has to serve a substantial period of imprisonment, as is the case here, should be at liberty in the community on parole for a significant period before the expiration of the head sentence in order to promote rehabilitation and to assist the offender in making the adjustment from life in prison to life in the community. Here the learned Special Magistrate has fixed a non-parole period that is very close to the head sentences. In his remarks on penalty he does not give any reason for so doing. The periods which he has fixed have been determined on an erroneous factual basis and therefore must be reconsidered on this appeal for that reason alone, but apart from that, I think the learned Special Magistrate erred in not fixing non-parole periods significantly less than the total head sentences to be served with respect to each appellant in order to promote their rehabilitation and enable them to adjust to life out of prison. Their pleas of guilty are some evidence of prospects of rehabilitation and, having regard to all of these matters, the non-parole period in each case should, in my view, approximate two-thirds of the total head sentence. 16. I allow both appeals against the non-parole periods. I set each non-parole period aside. In relation to the appellant Dewar, I fix a non-parole period of two years and four months and in relation to the appellant Richards, I fix a non-parole period of two years. The non-parole periods are to commence from 23rd April 1993.