Spakianos v Police No. Scgrg-00-351
[2000] SASC 218
•13 June 2000
SPAKIANOS v POLICE
[2000] SASC 218
Magistrates Appeal: Criminal
1................ DEBELLE J. (ex tempore) This is an appeal against sentence.
The appellant was convicted on his plea of guilty for two offences. The first was entering the Noarlunga TAFE Centre as a trespasser with the intention of committing an offence contrary to s 169(1) of the Criminal Law Consolidation Act 1935. The second was carrying an offensive weapon contrary to s 15(1)(a) of the Summary Offences Act 1953.
The offending occurred between about 2 o’clock and 3 o’clock on the morning of 21 January 2000. After the appellant had entered the TAFE building an alarm was triggered, the staff were alerted and, after a search, the appellant was found hiding in the building. He had in his possession a screwdriver and a knife with a 15 centimetre blade. The knife is the offensive weapon the subject of the second count.
Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, the magistrate imposed one sentence in respect of both offences. As the appellant had a prior offence for breaking and entering premises, the magistrate dealt with him as a second offender. He was inclined to order a minimum head sentence of 18 months and to fix a non-parole period of 16 months. However, he reduced the sentence and sentenced the appellant to a period of 11 months imprisonment.
The appellant appeals against the sentence on several grounds. Effectively, the appeal is limited to two issues. The first is that the magistrate failed to order a pre-sentence report and a psychiatric report after a request had been made for such reports to be obtained. The second is that the penalty is manifestly excessive in all the circumstances.
The appellant is aged 23. He has a shocking record. He commenced offending as a juvenile in 1992. His record includes offences of dishonesty such as false pretences, larceny, illegal interference with a motor vehicle, unlawful possession, being unlawfully on premises, and breaking and entering. His offending continued for a long while in a regular and unabated form. He has had numerous opportunities to reform his conduct. In the past, courts have been lenient towards him. He has been ordered to perform community service; he has entered into bonds to be of good behaviour; he has been fined. All sentencing options available to the courts have been explored but the appellant continued to offend. Ultimately in 1996, he was sentenced for a list of some 25 serious offences. He received a head sentence of 21 months with a non-parole period of 11 months. In October 1996, he committed an offence of larceny for which he received two months imprisonment. That offence appears to have been committed whilst the appellant was on bail pending the hearing of an unsuccessful appeal against the sentence ordered in 1996. Later, after he had been released, he was, in 1998, again imprisoned for the offence of larceny, on this occasion for a period of one month. He was released thereafter. He has not offended since. By the time of this offending, the appellant had not offended for a period of about 18 months.
The reason for the appellant’s offending on this occasion was said to be that he had been discovered by his father to be in possession of amphetamines and implements for administering it. His father was shocked and took the drugs to the police station. It is said that the appellant then received a thrashing from his father. It is also said the appellant entered these premises for the purposes of seeking to gain money in order to access controlled substances.
At the time of the offending, the appellant was living in a relationship with a young woman. There was some evidence before the magistrate that the appellant was suffering from a psychological disorder which had been exacerbated by the drugs which the appellant had in the past been taking.
I turn to the question whether the magistrate ought to have ordered a pre-sentence report and a psychiatric report.
Section 8 of the Criminal Law (Sentencing) Act empowers the court to order a pre-sentence report, if the court is of the opinion that it would assist in determining the sentence. The magistrate had expressed the view that, on this occasion, he did not believe that such a report would assist. Although the Supreme Court would normally accede to a request for a pre-sentence report, magistrates have a wider discretion. That was noted by Perry J in Wilson v Rowbottom (unreported, 14 December 1988, Judgment No. S1227). His Honour said:
“In courts of summary jurisdiction dealing with a large volume of cases many of them relatively minor, for a pre-sentence report to be obtained automatically upon request in many cases would seriously impair the ability of the court properly to despatch its business. This is not to say that, in the case of an offender with no substantial previous record of offending who faces the possibility of a prison term, a request of a pre-sentence report would normally be acceded to in any court, including a court of summary jurisdiction.”
In Molnar v Police (1998) 71 SASR 309, Olsson J expressed the view that an error in the sentencing process will occur if a magistrate fails to obtain a report where there is a proper and reasonable request. With respect, I prefer the reasons expressed by Perry J who, in Manning v Police (1993) 59 SASR 427, also expressed the view that when there is unchallenged evidence of psychiatric deficits, a magistrate would lean towards obtaining a pre-sentence report.
It is apparent from the sentencing remarks of the learned magistrate that he was aware that the appellant was suffering from a psychiatric condition. He refers to a previous psychiatrist’s report which had been furnished to the court concerning the appellant. It seems that the report was some four or so years old. The magistrate therefore did not have up-to-date evidence of the appellant’s condition. Furthermore, given the psychiatric condition of the appellant, it appears it would have been appropriate to obtain a pre-sentence report in order that all sentencing options were before the court. Clearly, an experienced magistrate, such as this magistrate, would be only too well aware of the range of sentencing options available to him but, nevertheless, there is advantage in the magistrate having the benefit of the view of an experienced probation officer. I do not, of course, suggest that the magistrate would, in any sense, be obliged to accede to whatever recommendation might have been made by the probation officer. The report is no more than a matter for consideration by the sentencing magistrate.
As the magistrate clearly knew that this appellant was suffering from a psychiatric condition, I will in a moment order that this appeal should be allowed.
It is, nevertheless, appropriate to note that counsel for the appellant did not, it seems, take every reasonable opportunity which had been afforded him to put material before the magistrate to assist him in deciding whether to obtain a pre-sentence report. This matter had been adjourned on a number of occasions most, it seems, at the appellant’s request. It came before the magistrate on 29 March. On that occasion, the magistrate heard submissions. Those submissions included submissions to the effect that it would be appropriate to order a pre-sentence report. The magistrate then indicated, in quite unambiguous terms, that he did not think such a report would be of benefit to him. Counsel for the appellant was plainly on notice that, if he sought to press the request, it was necessary to obtain some material to put before the magistrate to persuade him to obtain a pre-sentence report. It is apparent that counsel for the appellant did not obtain such material and, in its absence, the magistrate proceeded to impose a penalty without obtaining a report of any kind.
If it were not for the fact that the magistrate was aware of the appellant’s psychiatric condition I would not have disturbed this penalty. If counsel for parties seek an order that a pre-sentence report or a psychiatric report be obtained, it is necessary for them to place before the court evidence to justify the court in ordering such a report. In this respect, I again have regard to the observations of Perry J in Wilson v Rowbottom (supra) which properly refer to the fact that Magistrates Courts are busy and the ability properly to despatch their business should not be delayed unduly by mere requests for pre-sentence reports in matters which are relatively minor, or where the sentencing options are very clear.
A further matter which causes me to set aside this penalty is the fact that, depending on the terms of the pre-sentence report, the magistrate might have been disposed to have fixed a period of imprisonment which would have allowed for a non-parole period. Whilst, in one sense, the magistrate has been lenient in that he has ordered a lesser sentence than he was otherwise minded to do, the sentence which he ordered results in a sentence for which there can be no non-parole period. This appellant had at last begun to demonstrate some capacity for rehabilitation. It might have been appropriate to have sentenced him to a period of imprisonment for longer than 11 months, but with a parole period. This would have given the appellant a reminder, by serving the non-parole period of imprisonment, that his conduct would not be tolerated yet, at the same time, provide a parole period in which he would have the opportunity for rehabilitation with the benefit of a probation officer. That is an option which the magistrate may care to exercise when reconsidering the matter. In making these observations, I do not seek in any way to foreclose the sentencing options available to him. They will depend upon the reports that he receives. It may be, at the end of the day, that the magistrate will again impose the same sentence. It will all depend on how the magistrate views the matter in light of the pre-sentence report and the psychiatric report with which he will be furnished.
For these reasons, I will allow the appeal. The orders will be:
Appeal allowed.
The sentence ordered on 12 April 2000 be set aside.
Order that a pre-sentence report and a psychiatric report be obtained.
Order remitting the matter to be heard and determined by the same magistrate.
Order that bail continue on the same terms as the existing bail agreement, save and except for condition 5 and, in lieu thereof, there will be a condition that the appellant present himself at the Magistrates Court at Christies Beach when required to do so.
The respondent will pay the appellant’s costs, which I fix in the sum of $150, plus the cost of filing a notice of appeal.
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