SUMNER v Police

[2007] SASC 295

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

SUMNER v POLICE

[2007] SASC 295

Judgment of The Honourable Justice Duggan

8 August 2007

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION

Appeal against sentence - reasons for decision not available - inability to review exercise of sentencing discretion without sentencing remarks - appeal allowed - sentencing discretion exercised afresh.

R v Keyte (2000) 78 SASR 68; Papps v Police (2000) 77 SASR 210; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied.

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

Admitted charge of damaging property - apology to victim and offer of compensation - previous convictions for similar offences, but no recent court appearances - consideration of Aboriginality - sentence of imprisonment for four months suspended reduced to sentence of imprisonment for six weeks suspended.

R v Fernando (1992) 76 A Crim R 58; R v Tjami [2000] SASC 311, applied.

SUMNER v POLICE
[2007] SASC 295

Magistrates Appeal

1. DUGGAN J.         The appellant appeared before the Murray Bridge Magistrates Court charged with damaging property.  He pleaded guilty and was sentenced to imprisonment for four months which was suspended upon him entering into a bond in the sum of $400 to be of good behaviour for two years.  The appellant was ordered to pay compensation to the victim in the sum of $475.

2. According to the grounds of appeal the sentence is manifestly excessive; insufficient discount was given for the plea of guilty; the magistrate erred in sentencing the appellant to imprisonment; and the period of the bond is excessive.

3. The following facts were agreed before the magistrate.  The appellant went to the house of an acquaintance on the afternoon of 17 February 2007.  The acquaintance, who is the victim, was inside the house with a former girlfriend of the appellant.  The appellant knocked on the door which was opened by the victim.  The appellant was in a drunken state.

4. The victim did not allow the appellant to enter the house and, when he looked through the windows, he saw the appellant kicking a barbeque.  The legs and lid of the barbeque were damaged.

5. The appellant then picked up three plastic fish boxes and threw one of them at the lounge room window.  He then threw the other two boxes at the lounge room windows and smashed a pane of glass.  The appellant’s former girlfriend contacted the police.

6. The police arrived and the appellant was arrested.  He made full and frank admissions to causing damage to the victim’s property.  He was affected by liquor at the time he was interviewed by the police.

7. The court was told that the appellant has previous convictions for damaging property.  The convictions arose out of the following incidents:

   1On 9 August 2004 the appellant was convicted for the offence of damaging property on 23 December 2002.  He was also charged with two counts of larceny and one count of refusing to state his name.  The appellant enter into a bond to be of good behaviour for a period of 12 months.  He was required to pay compensation to the Aboriginal Housing Trust in the sum of $138.65.

   2On 6 July 1998 the appellant was convicted of damaging property on 19 February 1997.  The appellant was sentenced to imprisonment for two months. He was also ordered to pay compensation in the sum of $1209.08.

   3On 2 September 1996 the appellant was convicted of the offence of damaging property on 21 May 1996.  He was fined the sum of $200.

8. It would appear that the magistrate in the present case made some remarks on sentencing.  However, although enquiries have been made at the magistrates court, no copy of the reasons is available.  It is important not only that a magistrate gives reasons for sentencing but that a copy of the reasons be retained for appellate purposes: R v Keyte[1].  As the magistrate’s process of reasoning is not available to the court the respondent has quite properly conceded that the appeal must be allowed and the sentencing discretion exercised afresh.

   [1] (2000) 78 SASR 68; See also Papps v Police (2000) 77 SASR 210; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

9. The appellant is a 36 year old indigenous person who is in receipt of a disability pension.  As his counsel, Mr Coates, pointed out he has lived a somewhat nomadic experience and now resides at Murray Bridge.  He has a number of previous convictions, but a significant number of them are for offences in the nature of disorderly behaviour.  He has an alcohol problem which might well be the explanation for a number of these offences.

10. Apart from the offences of damaging property to which reference has been made, Ms Hanson for the respondent, drew my attention to a further conviction of this nature recorded on 23 May 1990 for an offence committed on 21 February 1990.  The most recent previous offence took place in 2002 so that the appellant has demonstrated an ability to keep out of trouble for a reasonable length of time.

11. It is of significance that he expressed regret for his conduct to the police officers who questioned him immediately after the present offence.  He admitted the offence to them and apologised to the victim between the commission of the offence and his appearance in the magistrates court.  Furthermore, he undertook to stay away from the victim’s premises.  He agreed to pay compensation before the court made an order to that effect.

12. The fact that the appellant was intoxicated to an extent at the time of this offence and that this appears to have been an ongoing problem with him in the Aboriginal community in which he lives is also a factor to be taken into account.[2]

    [2]    R v Fernando (1992) 76 A Crim R 58; R v Tjami [2000] SASC 311.

13. Whilst taking these matters into account, it is also relevant to give effect to personal deterrence in determining the appropriate penalty.  This is not a case which calls for the type of leniency which a first offender or a person with few previous convictions might expect.  It is for this reason that I think that a period of imprisonment is warranted.  However, I am also of the view that it is appropriate to suspend that term.

14. I consider that the starting point for sentencing is imprisonment for two months.  After allowing for the plea of guilty, the co-operation with the police and the regret which the appellant has demonstrated, the sentence will be reduced to imprisonment for six weeks.  This will be suspended upon the appellant entering into a recognisance in the sum of $200 to be of good behaviour for 12 months.

15. I propose to make the following orders:

    1      Time to appeal extended to the date of the filing of the notice of appeal.

    2      Appeal allowed.

    3Sentence of the magistrate set aside with the exception of the orders relating to compensation, costs and the Victims of Crime Levy.

    4Appellant sentenced to imprisonment for six weeks to be suspended upon him entering into a recognisance in the sum of $200 to be of good behaviour for 12 months.