STRUGNELL v Police

[2007] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

STRUGNELL v POLICE

[2007] SASC 33

Judgment of The Honourable Justice David

9 February 2007

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING

Appeal against sentence – appellant pleaded guilty to 25 offences – sentencing principles – whether head sentence and non-parole period were manifestly excessive – whether magistrate failed to consider properly the time spent in custody prior to sentencing – whether magistrate erred in failing to make allowance for time spent in custody prior to sentencing when setting non-parole period – whether magistrate correctly applied totality principle – held, appeal dismissed – sentence imposed was not manifestly excessive – no requirement for magistrate to necessarily take into account time spent in custody.

Criminal Law (Sentencing) Act 1988 s 3, s 18A, s 30(2); Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 86A(2), referred to.
R v Sevo (2006) 94 SASR 403, applied.

STRUGNELL v POLICE
[2007] SASC 33

Magistrates Appeal

DAVID J.

Background

1. This is an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991.

2. On 8 November 2006 the appellant was sentenced in relation to 25 offences committed between 13 May 2003 and 8 July 2006. The sentencing magistrate imposed a head sentence of 38 months and 14 days with a non-parole period of 18 months. The details of those offences are set out later in these reasons.

3. There are two grounds of appeal:

   1.the head sentence was manifestly excessive; and

   2.when fixing the non-parole period the sentencing magistrate failed to take into consideration the time spent in custody prior to the appellant being sentenced.

   Charges and Penalties

   Offences - 8 July 2006 - originally Magistrates Court file number MCCH 06‑3836 - later transferred to Magistrates Court file number AMC‑06‑10611

4. The appellant was charged with:

   1.one count of illegal use of a motor vehicle, contrary to s 86A of the Criminal Law Consolidation Act 1935;

   2.a further count of illegal use of a motor vehicle, contrary to s 86A of the Criminal Law Consolidation Act;

   3.hindering police, contrary to s 6 of the Summary Offences Act 1953;

   4.driving whilst disqualified, contrary to s 91 of the Motor Vehicles Act 1959;

   5.providing a false name and address, contrary to s 74A(3) of the Summary Offences Act; and

   6.unlawful possession, contrary to s 74A(3) of the Summary Offences Act.

5. In relation to these charges, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), the magistrate imposed one penalty. The magistrate started with a notional sentence of 12 months imprisonment, but because of the appellant’s pleas of guilty, reduced that to a sentence of eight months imprisonment. He ordered that the sentence be served cumulatively with the sentence of five months imprisonment in relation to the charges of theft on 4 July 2006 and between 6 and 7 July 2006 (Magistrates Court file number AMC‑06‑10612). In relation to counts 1 and 2, the appellant was also disqualified from holding or obtaining a driver’s licence for a period of 12 months, pursuant to s 86A(2) of the Criminal Law Consolidation Act.

   Offences - 4 July 2006 and between 6 and 7 July 2006 - originally Magistrates Court file number MCCHB‑06‑3840 – later transferred to Magistrates Court file number AMC‑06‑10612

6. The appellant was further charged with:

   7.one count of theft of number plates valued at $2,500 or less, contrary to s 134(1) of the Criminal Law Consolidation Act; and

   8.a second count of theft of various items valued at $2,500 or less, contrary to s 134(1) of the Criminal Law Consolidation Act.

7. In relation to these charges, pursuant to s 18A of the Sentencing Act, the magistrate imposed one penalty. The magistrate started with a notional sentence of eight months imprisonment, but because of the appellant’s pleas of guilty, reduced that to a sentence of five months imprisonment. He ordered that the sentence be served cumulatively with the sentence of eight months imprisonment in relation to the offences committed on 14 November 2005 (Magistrates Court file number AMC 05-15710).

   Offences - between 27 June 2006 and 8 July 2006 - Magistrates Court file number MCCHB‑06‑3841

8. The appellant was charged with:

   9 - 11.three counts of breach of home detention bail, contrary to s 17 of the Bail Act 1985; and

   12.damaging property, being an electronic monitoring bracelet valued at $85, contrary to s 85(3) of the Criminal Law Consolidation Act.

9. In relation to these charges the magistrate recorded a conviction without further penalty.

   Offences - 5 April 2006 and 28 March 2006 - Magistrates Court file number MCCHB‑06‑1980

10. The appellant was charged with:

    13.providing a false name to police, contrary to s 74A(3) of the Summary Offences Act;

    14.hindering police, contrary to s 6(2) of the Summary Offences Act; and

    15.breach of a bail condition that he abstain from drugs, contrary to s 17 of the Bail Act.

11. In relation to these charges the magistrate recorded a conviction without further penalty.

    Offences - 14 November 2005 - Magistrates Court file number AMC‑05‑15710

12. The appellant was charged with:

    16.one count of theft of a bicycle and helmet, contrary to s 134(1) of the Criminal Law Consolidation Act;

    17.one count of going equipped to commit an offence of theft or an offence of which theft is an element, contrary to s 270C(1) of the Criminal Law Consolidation Act; and

    18.providing a false name and address to police, pursuant to s 74A(3) of the Summary Offences Act.

13. In relation to these charges, pursuant to s 18A of the Sentencing Act the magistrate imposed one penalty of eight months imprisonment, to be served concurrently with the term of imprisonment of eight months imposed in relation to the offence of illegal use committed on 11 November 2005 (Magistrates Court file number AMC‑06‑7711).

    Offence - 11 November 2005 - Magistrates Court file number MCCHB-06‑2129 - later transferred to Magistrates Court file number AMC‑06‑7711

14. The appellant was charged with:

    19.one count of illegal use of a motor vehicle, contrary to s 86A of the Criminal Law Consolidation Act.

15. In relation to this charge the magistrate started with a notional sentence of 12 months imprisonment, but because of the appellant’s plea of guilty, reduced that to a sentence of eight months imprisonment. He ordered that the sentence be served cumulatively with the sentence of six months imprisonment in relation to the charge of illegal use committed 5 November 2005 (Magistrates Court file number AMC‑06‑7709). The appellant was also disqualified from holding or obtaining a driver’s licence for a period of 12 months pursuant to s 86A(2) of the Criminal Law Consolidation Act.

    Offences - between 5 and 8 November 2005 and on 14 November 2005 - originally Magistrates Court file number MCHHL‑05‑6410 - subsequently transferred to Magistrates Court file number AMC‑05‑17072, then Magistrates Court file number MCCHB‑06‑46 and then Magistrates Court file number AMC‑06‑7709

16. The appellant was charged with:

    20.one count of illegal use of a motor vehicle, contrary to s 86A of the Criminal Law Consolidation Act; and

    21.one count of unlawful possession of a large quantity of items, contrary to s 41(1) of the Summary Offences Act.

17. In relation to the charge of illegal use of a motor vehicle the magistrate started with a notional sentence of nine months imprisonment, but because of the appellant’s plea of guilty, reduced that to a sentence of six months imprisonment. He ordered that the sentence be served cumulatively with the sentence of two months imprisonment in relation to the charge of theft on 20 January 2005 (Magistrates Court file number AMC‑05‑11866). The appellant was also disqualified from driving for a period of 12 months pursuant to s 86A(2) of the Criminal Law Consolidation Act.

18. In relation to the charge of unlawful possession the magistrate started with a notional sentence of four months imprisonment, but because of the appellant’s plea of guilty, reduced that to a sentence of two months imprisonment. He ordered that the sentence be served concurrently with the sentence of six months imprisonment in relation to count 1, the charge of illegal use.

    Offence - 20 January 2005 - Magistrates Court file number AMC‑05‑11866

19. The appellant was charged with:

    22.one count of theft of numerous items valued at $4,500 in total, contrary to s 134(1) of the Criminal Law Consolidation Act.

20. In relation to this charge the magistrate started with a notional sentence of four months imprisonment, but because of the appellant’s plea of guilty, reduced that to a sentence of two months imprisonment. He ordered that the sentence be served cumulatively with the sentence of one month imprisonment in relation to the offence of theft on 27 December 2004 (Magistrates Court file number AMC 05‑15666).

    Offence - 27 December 2004 - Magistrates Court file number AMC‑05‑15666

21. The appellant was charged with:

    23.one count of theft of a number of items valued at less than $2,500, contrary to s 134(1) of the Criminal Law Consolidation Act.

22. The appellant breached his parole by committing these offences. The unexpired portion of his parole was six months and 14 days.

23. In relation to the charge of theft on 27 December 2004, the magistrate started with a notional sentence of two months imprisonment, but because of the appellant’s plea of guilty, reduced that to a sentence of one month imprisonment. He ordered that this sentence was to commence after the appellant had served the duration of his unexpired parole.

    Offences - 13 May 2003 - originally Magistrates Court file number MCMUB 04‑1341 - subsequently transferred to Magistrates Court file number MCCHB 04‑4989 and then Magistrates Court file number AMC‑05‑2132

24. The appellant was charged with:

    24.serious criminal trespass in a place of residence, contrary to s 170(1) of the Criminal Law Consolidation Act; and

    25.larceny of numerous goods of a total value of $7,310 and cash in the sum of $54, contrary to s 131 of the Criminal Law Consolidation Act.

25. In relation to these charges, pursuant to s 18A of the Sentencing Act, the magistrate imposed one penalty. The magistrate started with a notional sentence of 24 months imprisonment, but because of the appellant’s guilty pleas, reduced that to a sentence of 18 months imprisonment. He then deducted 16 months for time the appellant had already spent in custody, leaving a sentence of two months imprisonment. He ordered that the sentence be served cumulatively with the sentence of eight months imprisonment in relation to offences committed on 8 July 2006 (Magistrates Court file number AMC‑06‑10611).

    Total Sentence

26. The total sentence imposed in respect of the offences outlined above was 32 months imprisonment, which was to be cumulative on the unexpired portion of parole of 6 months and 14 days. Therefore, the total head sentence imposed on the appellant was 38 months and 14 days imprisonment. The magistrate set a non‑parole period of 18 months imprisonment.

    Arguments on Appeal

27. The appellant now argues that the head sentence was manifestly excessive in that the magistrate did not give an appropriate reduction, if any, to allow for the principle of totality in sentencing. He argues that a head sentence of 38 months and 14 days, bearing in mind that 16 months was allowed for time already spent in prison, is manifestly excessive.

28. The appellant further argues that if one sentence had been imposed pursuant to s 18A of the Sentencing Act, that would have enabled the magistrate to reduce the sentence to allow for the totality principle. Because of the number of offences for which he had to sentence and the different nature of the offences, the magistrate had a difficult task. In my view, the way he went about his task was correct. He dealt with the sentences in appropriate groups, and when imposing a sentence to each group pursuant to s 18A of the Sentencing Act, he allowed the appropriate reduction for pleas of guilty. He also reduced the sentence in relation to one group of offences by 16 months to reflect time spent in custody. In my view this was consistent with the decision of the South Australian Court of Criminal Appeal in R v Sevo,[1] which held that when giving separate sentences as distinct from one sentence pursuant to s 18A of the Sentencing Act, each of those separate sentences had to reflect any reduction for pleas of guilty.[2]

    [1] (2006) 94 SASR 403.

    [2] Ibid 407 (Doyle CJ).

29. The appellant also argues that in relation to the sentence of 18 months for offences committed on 13 May 2003, a reduction of 16 months because of time spent in custody was only taken from the head sentence, and should also have been taken from the non-parole period.

30. Section 30(2) of the Sentencing Act states:

    (2)Where a defendant has been in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may -

    (a)     make an appropriate reduction in the term of the sentence, having regard to the period for which the defendant has been in custody; or

    (b)     direct that the sentence be taken to have commenced on the day on which the defendant was taken into custody (emphasis added).

    It is also to be noted that pursuant to s 3 of the Sentencing Act, sentence means:

    (a)     the imposition of a penalty; or

    (b)     the decision of a court to offer a defendant an opportunity to enter into a bond; or

    (c)     the fixing or extending of a non-parole period; or

    (d)     the making of any other order or direction affecting penalty (emphasis added).

31. With regard to the above sections, there is no necessity for the magistrate to take time spent in custody into account, although he may. If he does reduce the sentence, there is no necessity to reduce both the head sentence and the non‑parole period. By reducing the head sentence as he did for one of the offences in the present matter, and therefore affecting the total head sentence, he is necessarily reducing the non‑parole period. In my view the magistrate has not erred in the way he went about his task.

32. Even allowing for the period of 16 months spent in custody, in my view the sentence of 38 months and 14 days, with a non-parole period of 18 months imposed by the magistrate was not manifestly excessive and does not require further reduction according to the principle of totality in sentencing. The magistrate took into account the fact that the appellant is 27 years of age, but has an extensive history of offending, has been sentenced to terms of imprisonment from time to time, has prior convictions for driving whilst disqualified and has four previous convictions for driving or using a motor vehicle without consent.

    Conclusion

33. In my view, because of the nature and extent of the appellant’s offending the sentence imposed is not manifestly excessive, and the way in which the magistrate has gone about his task was according to principle. I would dismiss the appeal.