STEPHENS v Police - [2010] SASC 251

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STEPHENS v POLICE
[2010] SASC 251
Judgment of The Honourable Justice Anderson
16 August 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appellant seeks to appeal non-parole period imposed for offences of serious criminal trespass, two counts of theft, criminal trespass in a place of residence and interfering with a motor vehicle without consent - appellant also convicted of failing to comply with bail agreement, stating false personal details and hindering police - no additional penalty imposed for these offences.

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appellant seeks extention of time to appeal - appeal lodged out of time due to delay of receipt of magistrate's reasons - granting of extension not opposed by respondent - extension granted.

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Magistrate's reasons very brief - reasons do not reveal magistrate's intentions in sentencing - magistrate imposed 18 month head sentence taking into account 16 months time served - non-parole period set of 12 months - sentence commenced on date sentenced - whether sentence should have been backdated - whether magistrate intended to set non-parole equating to 82 per cent of head sentence - whether 82 per cent non-parole period excessive.
Held: It is preferable to backdate a sentence - however, failure to do so does not amount to an error of law - in this case, backdating the sentence would have assisted in interpreting the sentencing remarks - structure of magistrate's reasons appears to indicate an intention that the appellant have longer non-parole period in order to benefit from continued drug treatment - in all the circumstances, a non-parole period of 82 per cent of the head sentence was not excessive.
Appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Wilson [2010] SASC 89, applied.

STEPHENS v POLICE
[2010] SASC 251
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

The appellant appeals from a decision of a magistrate against the penalty imposed by the magistrate. The appellant pleaded guilty to and was sentenced for several offences as follows: serious criminal trespass, theft, criminal trespass in a place of residence, a second count of theft, and interfering with a motor vehicle without consent. He was also convicted for the following offences: failing to comply with a bail agreement, stating false personal details and hindering the police, but no further penalty was imposed for these offences.
The appellant seeks an extension of time in which to appeal, which is not opposed by the respondent. The circumstances are that the filing of the appeal was delayed whilst awaiting the reasons from the magistrate. In the circumstances, I grant an extension of time.
The magistrate sentenced the appellant pursuant to the provisions of s 18A of the Criminal Law (Sentencing) Act 1988 (SA) and imposed one sentence.
The magistrate’s reasons were very brief. He said at paragraph [4]:
[4]Having regard to all of those matters and taking into account the 16 months that he has spent in custody in relation to this offending, for the offences dated 22^nd January 2007, 3rd February 2007 and 18^th April 2007, I record convictions and pursuant to s 18A CLSA, I sentence him to 18 months imprisonment to commence forthwith and fix a non parole period of 12 months.
The appeal relates solely to the length of the non-parole period imposed.
Analysis of sentencing remarks
It is necessary to examine what the magistrate must have done in order to reach the sentence set out above. In taking into account 16 months which the appellant had already spent in custody at the time of sentence and imposing a head sentence of 18 months and a non-parole period of 12 months respectively, the magistrate when sentencing must have considered periods of 34 months for the head sentence and 28 months for the non-parole period to reach the number of months imposed.
The periods of sentence for both the head sentence and the non-parole period commenced on the day the appellant was sentenced by the magistrate, namely, 4 May 2010. It is argued that the sentences should have been backdated to 6 January 2009 when the appellant was taken into custody.
The appellant argues that the magistrate has erred somewhere in his calculations because the non-parole period, if it is regarded as 28 months, represents 82% of the head sentence of 34 months before any time in custody is taken into account.
Looking at it from the point of view of where the appellant now stands, he received a 34 month head sentence and has now served 19 months of that sentence, including the time since he was sentenced on 4 May 2010. He therefore has 15 months to go in relation to his head sentence.
In relation to the non-parole period, he has now served 19 months of the 28 month non-parole period and therefore has approximately 9 months to go before he is eligible for parole.
The magistrate made it clear that he took into account “his most unfortunate background and tragic circumstances within his family”. He found the motivation for the offending was to “feed his drug habit”. He referred to his “very serious history of offending”. That history is serious. There are many crimes committed between 1995 and this offending. The appellant has shown a disregard for authority and engaged many times in anti-social behaviour. He has also failed to comply with conditions of bail on at least eight occasions since 2005.
Arguments advanced
It is submitted by the appellant that the magistrate must have made a mistake in his calculations because he could not have meant to set the non-parole period at 82% of the head sentence. It is submitted that it would not follow from his brief sentencing remarks that he intended such a result.
In paragraph [3] of his remarks the magistrate said:
[3]… He has expressed that he wishes to resolve his negative personal issues and to get on with his life. Whilst he has been in custody he has been receiving some treatment in relation to his drug problems. No doubt that will continue and place him in a better position when he is released to become a law abiding and decent member of the community.
It is submitted by Ms Harvey, for the appellant, that those remarks indicate that the magistrate was taking a view that, despite his past, the appellant should be considered as having some reasonable prospects of rehabilitation. That being the case, it is submitted, the magistrate would not have imposed a non-parole period amounting to 82% of the head sentence but one more likely to be in the 60% or two-thirds/one-third range.
If, for instance, the non-parole was two-thirds of the head sentence, and if the sentence was backdated, the non-parole period would have been set at 22 months and the appellant would only have approximately 3 months to serve before becoming eligible for parole.
It is suggested by Ms Harvey that the magistrate erred because he did not backdate the sentence to the date when the appellant was taken into custody. Had he done so, it is submitted, it was likely that the suggested error would not have occurred. Ms Harvey argued that in any event the non-parole period is excessive in all the circumstances, that is, whether it was a mistake or was intentional.
Ms Paton for the respondent correctly points out that the failure to backdate a sentence does not amount to an error in the sentencing process. However, in view of the decision of the Court of Criminal Appeal in R v Wilson [2010] SASC 89 it is apparent that the preferred method is for the sentencing judge to backdate the sentences. In my view it would have been preferable to do that in this matter.
In R v Wilson Gray J analysed the relevant authorities at [16]-[19]. Doyle CJ agreed with the reasons given by Vanstone J but also indicated that he agreed as well with the comments made by Gray J regarding the advantages of backdating a sentence. Vanstone J referred in her reasons to the authorities relevant to backdating a sentence in the context of backdating a previously suspended term of imprisonment: see reasons at [44] and [45].
Ms Paton submitted that it was equally possible that the magistrate was saying at [3], as set out earlier, that the appellant will simply continue to receive treatment whilst in custody and will be better off when eventually released. She submitted that the remark was not intended as indicating reasonable prospects of rehabilitation. This is, in my view, an equally available interpretation of the very brief remarks of the magistrate.
Conclusion
As I have said, in my view it would have been preferable for the magistrate to have backdated the head sentence and the non-parole period to the time when the appellant was taken into custody. Had he done that, then his remarks would not have been as difficult to follow. It is not certain what the magistrate intended in his remarks at [3]. If the magistrate intended that the non-parole period should be 82% of the head sentence then, in my view, it is not possible to say that it is too high, because of the factors mentioned by the magistrate, in particular, the very serious history of offending which shows a disregard for authority and shows that lenient penalties in the past have not prevented further offending.
Although I cannot be certain what the magistrate meant in [3], I take the view that it was certainly meant to be related and relevant to his rehabilitation. The question is whether the magistrate intended to be lenient in the fixing of the non-parole period or whether he intended to impose one which is in keeping with the interpretation argued for by Ms Paton.
After considerable hesitation I have reached the conclusion that, because of the nature and spread of the appellant’s prior offending, the magistrate probably intended to reflect that past record in setting the non-parole period. In the circumstances it cannot be shown that the magistrate has erred in fixing the non-parole period at a relatively high percentage of the head sentence.
I would dismiss the appeal. I do suggest that it is preferable to backdate the sentence to the time when someone is taken into custody. This could have prevented some of the confusion with the remarks. Those remarks could also, with due respect to the magistrate, have been somewhat more expansive.