Snow v Police No. Scgrg-98-1073 Judgment No. S6846

[1998] SASC 6846

SNOW V POLICE

[1998] SASC 6846
Magistrates Appeal
Perry J  (Ex tempore)
1 The appellant appeals against the sentences imposed in the Magistrates Court sitting at Elizabeth following his plea of guilty to a number of charges of breaking and entering, receiving and unlawful possession. 
2 The first offence in point of time was committed on 28 April 1993, being a charge of attempted breaking, entering and larceny.  The next two convictions were for receiving, the offences having been committed respectively on 16 and 17 September 1993.  He was separately charged with breaking, entering and larceny, that offence having been committed on 1 December 1994, then, unlawful possession committed on 9 December 1994, and, finally, a further break, enter and larceny count committed on 1 February 1998. 
3 It appears that, on the last mentioned date, the appellant broke and entered a house at Paralowie in broad daylight when the occupants were absent.  They returned home while he was still in the house, which he promptly left, only to be pursued by two of the occupants. 
4 After a chase around the neighbourhood, he eventually fell into a swimming pool in the rear yard of other premises, following which he was held on to until police arrived. 
5 A small amount of cash and three knives were missing from the house which he had entered, but it is clear that he was in the course of removing other property, in particular, a CD player, when he fled.  He had gained entry through a window, the flyscreen of which he had cut. 
6 With respect to the other offending, it will have been seen that that was all committed some years beforehand.   According to the remarks of the learned sentencing magistrate, the appellant failed to answer bail on two separate occasions with respect to the earlier matters, and failed to attend court on the third occasion on a separate matter. 
7 The appellant, now aged twenty-nine years, has a lengthy record of prior offending.  Many of the prior convictions were committed interstate where there was a similar record of non-appearance in answer to bail, so that most of the present offending was committed whilst on bail.  The last offence was committed, that is, the offence in February 1998, when the appellant was on a suspended sentence from the ACT Magistrates Court for burglary. 
8 The appellant was represented by counsel in the court below who made submissions on his behalf.  The learned sentencing magistrate thereupon pronounced sentence, being for the attempted break and enter and larceny, offence date 28 April 1993 - twelve months imprisonment, on the two receiving counts, each nine months imprisonment, to be served concurrently with each other, but cumulatively upon the first sentence of twelve months imprisonment, for the 1994 breaking and entering, eighteen months imprisonment, for the December 1994, unlawful possession, six months imprisonment, and for the 1998 housebreaking, eighteen months imprisonment.  The last three sentences were directed to be served cumulatively on the earlier sentences and on each other, with the result that the total head sentence was sixty-three months imprisonment.   Against that head sentence, the learned sentencing magistrate set a non-parole period of fifty months. 
9 The appellant was born and raised in Victoria and left home at the age of sixteen years to work in Western Australia.   He came to South Australia when he was seventeen and has lived here since then.  He is single and has no children.  He has no developed employment skills and has had only fragmentary employment in the work force in unskilled capacities. 
10 The learned sentencing magistrate had the benefit of a pre-sentence report furnished by a probation and parole officer, together with a psychiatric report furnished by Dr Nambiar of the Psychiatric Mental Health Services, James Nash House. 
11 It appears from this material that the appellant started experimenting with drugs and alcohol when he was eighteen years of age, and, before long, had a substance abuse problem.  He has a history of depression.  He has no specific major psychiatric disorder to account for his behaviour, and it seems clear enough that most of his offending is directly related to substance addiction, more particularly, to pay for his drug abuse. 
12 The grounds of appeal are that the total sentence was manifestly excessive, that it fails to take into account the principle of totality, and that the learned sentencing magistrate failed to give sufficient weight to the appellant's antecedents and prospects of rehabilitation. 
13 Mr Dixon, who appeared to advance the appeal before me, frankly conceded that, taken individually, the sentences could not be regarded as excessive.  However, he submitted that, having regard to the principle of totality, the overall sentence imposed was so crushing that this court should interfere. 
14 Mr Muscat, for the respondent, quite properly pointed out that there were five separate incursions into criminal activity, and that, bearing that in mind, the accumulation of the sentences was unexceptional, and, indeed, proper.
15 He emphasised as well that, given the appellant's history of offending, and failure before now to rehabilitate himself, the stage had been reached at which uppermost in the sentencing process should be the need to protect the community from the appellant's criminal conduct. 
16 They are weighty submissions.  They are properly based on the circumstances of the appellant and the history of offending which he has accumulated. 
17 As to the principle of totality, Mr Muscat referred to the judgment of the High Court in Postiglione  and particularly the passage in the judgment of McHugh J in that case (at 416 to 417.) 
18 I take careful note of the principles there set out, and also the submissions put by Mr Muscat.  However, at the end of the day, it does seem to me that the aggregation of the individual sentences in this case gave rise to an overall head sentence which was beyond that which was merited, having regard to the totality of the offending. 
19 I consider it proper that this court interfere in order to draw back the head sentence to an overall level which seems appropriate, having regard to the totality of the offending. 
20 In the circumstances, I will allow the appeal for the purpose of directing that the sentences relating to the 1994 and 1998 offences - that is, eighteen months imprisonment for break and entering in 1994, six months imprisonment for unlawful possession in 1994, and eighteen months imprisonment for housebreaking in 1998 - be served concurrently between themselves, but cumulatively on the other two sentences of twelve and nine months, which will remain cumulative.  So that the two sentences of twelve and nine months give rise to twenty-one months, on top of which the three sentences which I have indicated should now be served concurrently as between each other will add a further eighteen months, giving a total head sentence of thirty-nine months.  Against that, I would allow a reduced non-parole period, namely, a non-parole period of thirty  months. 
21 The varied head sentence and non-parole period will commence from the date ordered by the learned sentencing magistrate whose orders will otherwise remain in full force and effect.
22 (There was no application for costs.)