Stehbens v Police - [2004] SASC 227

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STEHBENS v POLICE
Judgment of The Honourable Justice White
28 July 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - NON-PAROLE PERIOD OR MINIMUM TERM
SOUTH AUSTRALIA - GENERALLY
Appeal against sentence - Appellant convicted of theft/receiving - Appellant had extensive history of criminal offending - Offences committed while on parole - Term of imprisonment cumulative upon unserved sentence for previous offence - Setting of non-parole period in relation to new period of imprisonment - Magistrate erred in backdating non-parole period so as to commence before the term of imprisonment to which it related - Magistrare erred in failing to take account of six months spent in custody in calculating head sentence - The limitation of two years imprisonment which may be imposed by the Magistrates Court under s 19 of the Magistrates Court Act not a maximum by reference to which all sentences in the Magistrates Court should be scaled - Appeal allowed - Appellant re-sentenced - Sentence of six months imprisonment imposed - Total sentence including unserved previous sentence is two years, seven months, 23 days - Non-parole period of 14 months set.
Magistrates Court Act 1921 s 42; Criminal Law Consolidation Act 1935 s 10, s 134; Criminal Law (Sentencing) Act 1988 s 19, s 31, s 32; Correctional Services Act 1982 s 75, referred to.
R v Creed (1985) 37 SASR 566; R v Slater (1984) 36 SASR 524; R v Bartels (1986) 44 SASR 260; Kennett v The Queen (SACCA, 18 February 1992, Unreported), applied.
R v Khim [2002] SASC 343; R v Power [2003] SASC 288, considered.

STEHBENS v POLICE
[2004] SASC 227
Magistrates Appeal
WHITE J
Introduction

This is an appeal, pursuant to s 42 of the Magistrates Act 1991, against sentence.
On 28 April 2004, the appellant pleaded guilty to a charge of theft, contrary to s 134(1) of the Criminal Law Consolidation 1935. The offence was committed on 8 September 2003 and involved the obtaining or receiving of property to the value of approximately $1,305, namely a DVD player and remote control, an amplifier, two bags, a mobile telephone and charger, and a bracelet. The appellant was also charged with two other counts on the same information. Those charges were withdrawn upon the appellant entering his plea of guilty to the theft.
The Appellant’s Antecedents
The appellant was born on 1 April 1975 and was therefore 29 years old when he appeared before the Magistrate. His Offender History Report was tendered before the Magistrate. It is extensive.
The appellant has 16 previous convictions for offences involving dishonesty, 11 previous convictions for breaking and entering or criminal trespass, and four convictions for illegal use of a motor vehicle in addition to numerous other convictions and court appearances. Four of the appellant’s court appearances have involved presentations for breach of a bond.
Of particular significance is the appellant’s recent history. That is a history of commission of offences by the appellant shortly after release from custody and whilst on parole. On 10 October 2001, the appellant was sentenced to imprisonment following conviction on one count of aggravated criminal trespass, one count of attempted aggravated criminal trespass, one count of non-aggravated serious criminal trespass and other related offences. The total of the head sentence was two years and nine months. A non-parole period of 17 months was fixed. Each of the head sentence and the non-parole period commenced on 1 May 2001. The date of the appellant’s release from custody on parole is unclear but was presumably in October 2002.
On 19 November 2002, the appellant offended again, resulting in him being sentenced in the Adelaide Magistrates Court on 20 February 2003. On this occasion, the appellant was sentenced to imprisonment for 18 months for one count of trespass in a place of residence knowing another was present, and one count of larceny, together with some driving offences. This sentence had to be served cumulatively on the unexpired portion of the sentence imposed on 10 October 2001. The total period of imprisonment to be served was therefore some 32 months. A non-parole period of five months was fixed.
Again, the date of release from custody on parole is not known but must have been in or about August 2003. As noted above, the offence of theft for which the Magistrate sentenced the appellant, was committed on 8 September 2003.
Circumstances of the Offending
The circumstances of the detection of the appellant for the present offence are set out in the affidavit from the police prosecutor, which I received on the appeal:
“… At about 12.45 pm on 8 September 2004, the witness was driving along Victoria Street, Mile End. He saw the defendant walking along the footpath bearing two large bags. The witness drove past the defendant, did a U-turn and when he next saw the defendant, the defendant no longer had the bags. The witness located the bags, dumped in a pile of rubbish. Inside the bags was property, as listed in the Information, stolen from the victim’s home address at Seacombe Gardens between 9.30 am and 11.20 am that day. The witness collected the bags and put them in his car. As he did so, he again noticed the defendant. Using his digital camera, the witness photographed the defendant. As he did so, the defendant yelled out to him ‘you’ve got something of mine’. The witness printed the photograph and supplied it to police. The police recognised the defendant and attended at his home address at Brighton on 10 September 2003. The defendant was arrested and interviewed. He told the police that he knew nothing of the break-in and denied possession of the bags.”
In her submissions to the Magistrate, the appellant’s counsel said that the defendant had come into possession of the property at Mile End from a man who knew his girlfriend. The defendant had become confused, it was said, not knowing what to do with the property. He felt bad about having taken the property and dumped it in a pile of hard rubbish. However, remaining confused, he had come back to reassess what should be done with it.
Events Following Arrest
Following his arrest on 10 September 2003, the appellant was detained in custody until 22 October 2003 (a period of six weeks). On 22 October 2003, the appellant was granted bail. However, he breached conditions of the bail and was returned to custody on 24 November 2003. He remained in custody until sentenced by the Magistrate on 28 April 2004.
The Sentence of the Magistrate
In sentencing the appellant, the Magistrate said:
“[The defendant] has a very bad record. … He has regular offending of interfering with other people’s property rights. He has been dealt with quite leniently on various occasions but with his repeat offending the leniency has understandably been less and less.
The defendant has reached a stage of his offending history that any offence involving a potential gaol penalty is likely to be met by a gaol penalty.”
The Magistrate recorded a conviction. He took as a starting point a sentence of two years. He gave the appellant credit for his plea of guilty and, after taking account of the six weeks from 10 September to 22 October 2003 which the appellant had already spent in custody, reduced that sentence to 18 months. That means that he discounted the starting point by 20 weeks on account of the plea of guilty.
The Magistrate held, pursuant to s 31(2) of the Criminal Law (Sentencing) Act 1988, that the sentence of 18 months which he imposed had to be cumulative on the unexpired period of the previous sentence, viz, two years, one month and 23 days. The total sentence to be served was therefore three years, seven months and 23 days. The Magistrate then fixed a new non-parole period of two years and six months and ordered that that non-parole period commence on 24 November 2003.
Grounds of Appeal
There are two grounds specified in the notice of appeal. First, it is said that both the head sentence and the non-parole period are manifestly excessive. Secondly, it is said that the non-parole period is a disproportionately long period of the head sentence. Both counsel for the appellant and counsel for the Crown submitted that the sentencing Magistrate had erred by backdating the commencement of the non-parole period which he had fixed, and by failing to give the appellant credit for the whole period which he had spent in custody prior to 28 April 2004.
Extension of Time
The notice of appeal was filed in this Court two days outside the stipulated 14 day period. The delay was caused by the time taken to obtain a written copy of the Magistrate’s reasons and to obtain legal aid. The respondent does not claim any prejudice. In those circumstances I grant the appellant an extension of time to 14 May 2004 for the institution of the appeal.
Backdating of Non-parole Period
The Magistrate ordered that the non-parole period of two years and six months, which he fixed on 28 April, should commence on 24 November 2003. It was not open to the Magistrate to make that determination.
The Magistrate identified, correctly, that the sentence of imprisonment for the offence committed on 8 September 2003 had to be cumulative upon that part of the sentence of 20 February 2003 which had not been served.[1] This was because the offence was committed whilst the appellant was on parole.
[1] Criminal Law (Sentencing) Act 1988 s 31(2); Correctional Services Act 1982 s 75(1)
However, the appellant could begin to serve the balance of the previous sentence only upon his sentencing on 28 April 2004. This conclusion follows from s 75(1) of the Correctional Services Act 1982 (the defendant becomes liable to serve the balance of the previous sentence when he is sentenced to imprisonment for the later offence), and from s 75(3) (the parole is cancelled upon the conviction for the later offence).[2] The sentence imposed for the offence committed on 8 September 2003, being cumulative upon that sentence, had to commence upon the completion of the service of the prior sentence. Neither sentence, nor the total period to be served, could commence on 24 November 2003.
[2] See also R v Slater (1984) 36 SASR 524 at 530; R v Bartels (1986) 44 SASR 260 at 276 - 277 and at 289 - 291
A non-parole period must be fixed by reference to the period of imprisonment to which it relates.[3] A non-parole period cannot commence on a date earlier than the date of commencement of the term of imprisonment to which it relates.[4] In this case that was 28 April 2004. Accordingly, the order of the Magistrate in this respect was in error.
[3] Criminal Law (Sentencing) Act s 32(1), s 32(2); Kennett v The Queen (SACCA, 18 February 1992, Unreported)
[4] R v Bartels (1986) 44 SASR 260 at 267.
Credit for the Period in Custody
The Magistrate gave the appellant credit for the six weeks he spent in custody between 10 September 2003 and 22 October 2003. Apart from his backdating the non-parole period to 24 November 2003, the Magistrate did not give the appellant any credit for the period of six months he had spent in custody since 24 November 2003.
This too was in error. There was no reason to differentiate between the two periods spent in custody before 28 April 2003. The effect of the error was that the Magistrate determined that a sentence of 18 months, in addition to the six months already served, in addition to the six weeks already served, and in addition to the 20 weeks credit for the guilty plea (30 months in all) was appropriate as a starting point in this case. Even when regard is had to the appellant’s appalling record, and to the aggravating feature that the offence was committed whilst the appellant was on parole, such a sentence should be regarded, in the circumstances of this case, as unreasonable and unjust.
The two identified errors, and the unreasonableness of the outcome, warrant the Magistrate’s sentence being quashed and this Court exercising its own discretion as to an appropriate sentence.
Other Alleged Errors
The appellant argued three other matters in support of the submission that the sentence was manifestly excessive. First, it was said that the Magistrate’s starting point of a term of imprisonment of two years was erroneous, as two years was the maximum term of imprisonment which a Magistrate could impose by reason of s 19(3) of the Criminal Law (Sentencing) Act 1988. Secondly, it was argued that the discount of 20 weeks (or approximately 20 per cent) on account of the plea of guilty was inadequate. Thirdly, it was argued that the Magistrate paid insufficient attention to the appellant’s personal circumstances.
In addition, it was argued that the non-parole period of 30 months fixed by the Magistrate was too high a proportion of an overall sentence of three years, seven months, 23 days (just under 24 months). In view of the conclusion which I have already reached, it is, strictly speaking, unnecessary for me to say anything about those submissions. However, I do express my view about the submission based on s 19(3) of the Criminal Law (Sentencing) Act 1988 as that submission, if upheld, would have some effect upon the sentence which I will substitute.
Section 19 of the Magistrates Court Act and a Starting Point of Two Years
Section 19(3) of the Criminal Law (Sentencing) Act 1988 provides that a Magistrate may not impose a sentence of imprisonment which exceeds two years. Therefore, a sentence of two years should, so the appellant submitted, be reserved for offences of the most serious kind which come before the Magistrates Court. The present offending, described by the appellant’s counsel as “a transient and opportunistic offence involving a relatively small monetary value” should not, so the appellant submitted, be characterised as an offence of that kind. Hence it was argued that the Magistrate had erred in taking as a starting point a term of two years.
I do not accept this submission.
In the first place, all that s 19 does is to impose a limit on the sentencing powers of Magistrates. It does not operate, in addition, to fix a reference point to which all penalties imposed by the Magistrates Court must be scaled. A Magistrate should impose a penalty which, having regard to the factors specified in s 10 of Criminal Law Consolidation Act, and other relevant sentencing provisions or guidelines, is appropriate to the offence in question. If the appropriate penalty, having regard to those matters, is imprisonment for two years or less, it may be imposed by the Magistrate. If, on the other hand, having regard to those matters, the Magistrate considers that imprisonment of more than two years is appropriate, then the Magistrate may remand the defendant to appear for sentence in the District Court (s 19(5)).
Put slightly differently, s 19(3) imposes a limitation on the power of a Magistrate, and not a limitation on the appropriate penalty for an offence.
Secondly, the two year maximum does not preclude a Magistrate taking, as a starting point, a sentence which exceeds two years: R v Delphin (2001) 79 SASR 429 at 443. Section 19(3) does not therefore operate in any event to inhibit the starting point which a Magistrate may adopt.
Re-sentence
The maximum sentence for the offence of theft contrary to s 134(1) of the Criminal Law Consolidation Act is 10 years imprisonment. The offending in the present case was aggravated by the fact that it occurred whilst the appellant was on parole. The value of the goods stolen, whilst not large, is not insignificant, $1,305). The items stolen may well have had a value greater than that to the victim. I note that the goods have been returned to the victim. I also accept the submission of the Crown that the receiving of stolen property underpins the occurrence of many offences of theft, trespass and other offences of dishonesty.
General deterrence is important with offences of this kind. In addition, because of the appellant’s long history of criminal offending, including offences of dishonesty, considerations of punishment and personal deterrence are important in this case. Furthermore, as was pointed out by the Magistrate, the appellant has had lenient treatment from the courts in the past. The submission that the appellant was confused and did not know what to do with the property should not be given much weight. It does not seem altogether consistent with the statement of the appellant to the witness who recovered the bags, “you’ve got something of mine”. I accept however that it would be proper for the appellant to be sentenced on the basis that his offence was unpremeditated and opportunistic.
Taking all these factors into account, I consider that an appropriate starting point in this case is a sentence of 15 months imprisonment. From that starting point, the periods of six weeks and six months spent in custody prior to 28 April 2003 should be deducted. In addition, the appellant should be given credit for his guilty plea. Although the appellant denied to the investigating police that he had had possession of the bags, it was agreed by the Crown that the appellant had indicated his willingness to plead guilty to the offence of which he was ultimately convicted at a very early stage. The matter was set down for trial only because the prosecution was not prepared to accept a plea on that basis and persisted with a charge that the appellant had entered the property and had himself stolen the goods later found in his own possession. I will therefore reduce the sentence to six months. I therefore impose a sentence of imprisonment of six months in respect of the offence of theft contrary to s 134(1) of the Criminal Law Consolidation Act, committed on 8 September 2003. That sentence is to be served cumulatively with the unexpired portion of the previous sentence as at 8 September 2003 of two years, one month and 23 days. The total period of imprisonment to be served is therefore two years, seven months and 23 days.
A parole period must be fixed having regard to that total period. The parole period is to be fixed having regard to the facts and circumstances of each case. There is no fixed practice as to the length of a non-parole period in relation to a head sentence.
In R v Creed (1985) 37 SASR 566, King CJ said (at 569):
“Counsel for the respondent mentioned, in the course of submissions, what I gathered from him was regarded as something of a norm, namely that the non-parole period should represent two thirds, if an ordinary case, of the head sentence. The members of this Bench no of no such practice and speaking for myself, and I think the other two members of this Court, I wish to say that the Court does not regard a non-parole period of two thirds, nor indeed any other proportion, of the head sentence as being the norm. Every case has to be considered upon its own facts and a non-parole period has to be fixed in every case which reflects the considerations which are peculiar to that case. In some cases, the punitive, deterrent and preventative aspects will play an important part, in others the prospects of rehabilitation by means of parole will play a much greater part. Nothing in the nature of a norm can be acceptable.”
See also R v Khim [2002] SASC 343 at [23]; R v Power [2003] SASC 288 at [26].
A relevant consideration in the fixing of the non-parole period in this case is the response of the appellant to the grant of parole on previous occasions. That history suggests that the appellant does not respond to parole in a positive and useful way.

It is also necessary to consider the punitive, deterrent and preventative purposes of punishment in fixing the non-parole period: In addition to the appellant’s rehabilitation, the community must be protected from his conduct. When one has regard to the appellant’s extensive criminal history, his non-response to leniency and to release on parole on previous occasions, and the considerations of deterrence and prevention, I consider that a non-parole period of 14 months should be fixed. This will allow an assessment of the progress of his rehabilitation after a reasonable period has elapsed.
The non-parole period, like the service of the balance of the sentence of imprisonment in respect of the prior offence, is to commence on 28 April 2004.
The Order of the Court
Accordingly, the order of the Court is:
1.An extension of time to 14 May 2004 for the institution of the appeal is granted.
2.        The appeal is allowed.
3.The conviction and orders of the Magistrate made on 28 April 2004 are set aside.
4.        In lieu thereof I enter a conviction.
5.The appellant is sentenced to imprisonment of six months. That period of imprisonment is cumulative on the unexpired portion of the sentence in respect of which the appellant was released on parole, namely two years, one month and 23 days.
6.        I fix a non-parole period of 14 months.
7.        The non-parole period is to commence on 28 April 2004.