TABACCO v Police
[2008] SASC 77
•19 March 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
TABACCO v POLICE
[2008] SASC 77
Judgment of The Honourable Justice White
19 March 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appellant sentenced to 13 months imprisonment for offences committed against South Australian law (the State sentence) - non-parole period of one day imposed - previous recognizance release order made in respect of federal offences revoked and appellant ordered to serve the sentence of six months imprisonment imposed for those offences - whether the magistrate was in error in ordering the appellant to serve the sentence of six months imprisonment for his breaches of federal law - whether State sentence is uncertain - whether the magistrate erred in the application of s 18A - whether the State sentence was fixed according to proper principles of sentencing.
Held: appeal against order that the appellant serve the six month imprisonment for breaches of federal law dismissed - State sentence not uncertain - magistrate erred in his belief about the maximum penalty which could be imposed for two of the State offences - sentence for State offences to be considered afresh - sentence of 13 months imprisonment set aside - appellant re-sentenced.
Criminal Law Consolidation Act 1935 (SA); Summary Offences Act 1953 (SA); Bail Act 1985 (SA); Crimes Act 1914 (Cth) s 20, s 20A, s 20AB; Social Security (Administration) Act 1999 (Cth) s 212; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32, s 58, referred to.
Harris v Police [2008] SASC 58; R v Campbell (1997) 95 A Crim R 391; Ferenczfy v Commonwealth DPP [2004] SASC 208, applied.
R v Wanganeen [2000] SASC 371; R v Bennett [2005] SASC 55, discussed.
Sweeney v Corporate Security Group [2003] SASC 324; (2003) 142 A Crim R 385; R v Capalbo [2005] SASC 47, considered.
TABACCO v POLICE
[2008] SASC 77Magistrates Appeal
WHITE J. The appellant was sentenced to imprisonment by a magistrate for a number of contraventions of the Criminal Law Consolidation Act 1935 (SA) (CLCA), the Summary Offences Act 1953 (SA) and the Bail Act 1985 (SA) (the State offences). At the same time, the magistrate revoked an order made on 14 August 2006 under s 20(1)(b) of the Crimes Act 1914 (Cth) under which the appellant had been released from custody upon entering into a recognizance to be of good behaviour. He then ordered that the appellant serve the sentence of six months imprisonment which had been imposed on 14 August 2006.
The appellant appeals against the order that he serve the six months imprisonment imposed on 14 August 2006. He also appeals against the sentence imposed for the contraventions of the State offences. The Police seek an extension of time in which to cross-appeal against the non-parole period fixed by the magistrate in respect of the State offences.
The State Offences
The State offences committed by the appellant commenced on 18 August 2006 and concluded on 6 June 2007. The offences, and information concerning them, are set out in the table which is Appendix A to these reasons.
The offence of theft on 18 August 2006 occurred at the Harris Scarfe store in Rundle Mall. The appellant stole a micro hi-fi system, a DVD player and a digital tuner by removing a security tag, placing the items in an empty Harris Scarfe bag which he had brought with him, and then leaving the store. The items were valued at $347.95 and were recovered by Harris Scarfe.
Eleven days later, on 29 August 2006, the appellant broke two security screen doors at a suburban residence. This occurred when the appellant was trying to force his way into the premises, late at night, in order to speak to the step-daughter of one of the occupants. The damage to the doors comprises the offence of unlawful damage.
The appellant was granted bail on 29 August 2006 in respect of the charge of unlawful damage. It was a condition of his bail that he not attend within 50 metres of the premises where the damage had occurred. The appellant breached that bail condition on four separate occasions: on 3 September 2006; twice on 9 September 2006 by driving slowly past the premises; and on 10 September 2006 by walking into the front yard of the premises.
The three offences on 20 April 2007 were committed at the intersection of Carrington and King William Streets in the City, just after 11.00 pm. The appellant committed the offence of behaving in a disorderly manner by kicking a glass door of Trims’ store, apparently in an attempt to break it. He refused to give his name and address when spoken to by the police and resisted violently their attempts to restrain him when he was arrested. It seems that the appellant was affected by alcohol at the time.
The offence of theft on 6 June 2007 was committed at the Coles store at Glenside. The appellant took two BBQ chickens and a large bottle of soft drink without paying for them. Before taking them, the appellant removed the bar code on the chickens, and the label from the bottle of soft drink. He was stopped as he left the store.
The appellant pleaded guilty to all of these offences.
Breach of the Federal Recognizance
On 14 August 2006 (only four days before the first of the State offences outlined above) the appellant was sentenced for four Social Security offences. Each of the offences involved the making of a false statement, contrary to s 212 of the Social Security (Administration) Act 1999 (Cth) (the federal offences). The appellant was in receipt of the NewStart Allowance for the period of eight months between 28 July 2004 and 9 March 2005, and had not disclosed to Centrelink that he had been employed as a cleaner from 18 June 2004. The appellant was convicted of the four offences and sentenced to imprisonment for six months. However, pursuant to s 20(1)(b) of the Crimes Act, the sentencing magistrate then ordered that the appellant be released immediately upon entering into a recognizance requiring him, amongst other things, to be of good behaviour for a period of 12 months.
The Director of Public Prosecutions (Cth) applied to have the appellant dealt with under s 20A(5) of the Crimes Act for the breach of the recognizance. The DPP relied upon the two offences of theft committed on 18 August 2006 and 6 June 2007 respectively, and the offence of unlawful damage committed on 29 August 2006, as constituting the breach of the recognizance.
The Sentence of the Magistrate
The magistrate heard submissions on sentence and on the application of the Commonwealth DPP on 22 November 2007 and sentenced the appellant on 7 December 2007.
In respect of the breach of the recognizance, the magistrate revoked the order for immediate release and ordered that the appellant serve the sentence of six months imprisonment which had been imposed on 14 August 2006. He directed that the six months imprisonment be taken to have commenced on 22 November 2007, being the date upon which the appellant had been remanded in custody.
In relation to the State offences the magistrate said:
… In light of the position where I want to arrive at in respect to the State matters and overall penalty based on totality, there will be a global penalty of 13 calendar months imprisonment for the State matters. In respect to that, I fix one day as a non-parole period, and that is to be served cumulatively upon and at the expiration of the Commonwealth sentence of six months.
Alleged Uncertainty in the Sentencing Remarks
The appellant submitted that the magistrate’s sentence for the State offences is uncertain in two respects. It is not clear, it was submitted, what the magistrate meant by “a global penalty” and it is not clear whether he intended the “global penalty” of 13 months imprisonment to be served cumulatively upon, or concurrently with, the sentence of six months ordered to be served for the federal offences. However, I think it clear enough that the magistrate invoked s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act), and imposed a single sentence of 13 months imprisonment in respect of all the State offences listed in Appendix A. He directed that the period of 13 months imprisonment commence at the expiry of the six months imprisonment which the appellant is to serve following the revocation of the immediate release order. This means that the appellant is liable to serve a total of 19 months in prison. Acting under s 32(1)(c) of the Sentencing Act, the magistrate fixed a non-parole period of one day. That non-parole period, together with the sentence of 13 months, was ordered to commence at the expiration of the six month sentence of imprisonment.
That understanding of the sentence is derived from the magistrate’s remarks quoted above, and from a reading of his sentencing remarks as a whole. The magistrate introduced his remarks concerning the State offences with the following:
You must also serve a period of imprisonment cumulatively, that is, on top of the six months, for the matters before the Court today, that is the matters which resulted in the breach and all those other matters before me. To do that and in order to fix a very low non-parole period on the State sentence, I must sentence you to at least 12 months imprisonment for the State offences. (Emphasis added)
That statement, in conjunction with the passage earlier quoted, makes it plain that the magistrate intended that the sentence of 13 months was to be cumulative upon the service of the sentence of six months imprisonment.
The appellant’s counsel emphasised that the magistrate had not referred explicitly to s 18A of the Sentencing Act. That is so, but counsel was unable to suggest any intended meaning, other than s 18A, in the magistrate’s reference to “a global penalty”.
Any residual doubt about the magistrate’s sentence is removed by the terms of the endorsement, authenticated by the magistrate, on the complaint in respect of the offence committed on 6 June 2007 (AMC-07-9259). All parties accepted that reference could be made to the endorsement for this purpose. After recording the conviction, the endorsement continues:
Pursuant to s 18A, one penalty imposed. Defendant to be imprisoned for 13 months. HH fixes a non-parole period of one day. Above sentence of imprisonment is to be served cumulatively upon and at the expiration of sentence of imprisonment of six months imposed on AMC-07-12200.
That endorsement refers explicitly to s 18A of the Sentencing Act. It also makes explicit that the sentence of 13 months is to be served cumulatively upon the period of six months ordered to be served in respect of the breach of the recognizance. The appellant’s counsel acknowledged that this was so but submitted that, in both respects, the endorsement was inconsistent with the sentencing remarks. I do not accept that submission. The alleged inconsistency arises only because of the construction which the appellant puts on the sentencing remarks. I have rejected that construction.
The appellant’s counsel drew attention to the endorsements on the complaints alleging the offences committed on 18 and 29 August 2006, September 2006 and 20 April 2007. Each of those endorsements recorded the convictions and then continued “[t]his offending taken into account in sentencing imposed on AMC-07-9259”. That endorsement suggests that account was taken of those offences in the fixing of the sentence for the offence committed on 6 June 2007 rather than a single penalty being imposed for a number of offences. For the reasons which I gave in Harris v Police,[1] this is not a correct usage of s 18A of the Sentencing Act. Section 18A cannot be used to “take account” of other offences for which an offender is being sentenced. It may be used only to impose a single penalty for two or more offences (although it may be permissible in doing so for account to be taken of other offences acknowledged by the offender which are not then before the Court). However, despite the inappropriate terminology used by the magistrate in the endorsements, I am satisfied that in referring to a global penalty in his sentencing remarks, the magistrate was intending to invoke s 18A so as to impose a single penalty, and that he did so.
[1] [2008] SASC 58 at [19]-[23].
Errors in the Application of s 18A
The appellant submitted that if, contrary to his first submission, the magistrate had invoked s 18A of the Sentencing Act, then there were errors in his application of that section.
The magistrate did not adopt the technique of identifying notional individual sentences for each offence, and then determining whether they should be served concurrently or cumulatively.[2] However, the magistrate did give indicative sentences in respect of some of the offences encompassed by the s 18A sentence. The magistrate said:
Looking at each of the offences before the Court and looking at your background, it is not, in my view, an excessive penalty to impose a term of imprisonment for the larceny of the three electrical items at Harris Scarfe’s, the damage to the screen doors, the disorderly behaviour and resist police officers. That, by the way, was a very bad incident outside of Trims. The Court can easily look at imposing three, four or five months for each of those incidents. Apart from those offences, you then have a further larceny in June of this year when you stole items worth $23.53 from Coles and of course you have four failure to comply with the bail conditions offences. Each of the latter offences attract a maximum penalty of two years imprisonment. On those offences alone the total maximum penalty is eight years imprisonment. (Emphasis added)
In the italicised passage, the magistrate indicates a belief that a sentence in the range of three to five months could be imposed for each of the offences of disorderly behaviour and refusing to give the police his name and address. The magistrate was incorrect in that respect as the maximum penalty for each of those offences was imprisonment for three months.[3] It is possible that when the magistrate referred to the “incidents” he was not referring to the individual offences but to the whole of the episodes in which the individual offences occurred. In context, however, I do not consider that that is the magistrate’s meaning. I am satisfied that the magistrate has erred.
[2] Cf R v Major [1998] SASC 6569; (1998) 70 SASR 488; R v Capalbo [2005] SASC 47 at [58]-[60].
[3] Summary Offences Act 1953 (SA) ss 7(1)(a) and 74A(3)(a) respectively.
The magistrate’s error as to the sentences available for the offences of disorderly behaviour and refusing to give the police his name and address may have affected his decision to fix 13 months as the single sentence for all offences. In R v Wanganeen,[4] an error of a different kind had been made. The sentencing judge had accepted a plea to an alternative offence, and included that offence in the offences for which a s 18A sentence was imposed, even though the offence was not a permissible alternative to the offence with which the defendant had been charged. Wicks J, with whom Doyle CJ and Williams J agreed, held that the error in relation to one offence for which the s 18A sentence had been imposed meant that the entire sentence had to be reconsidered.[5] Although the magistrate’s error in this case is of a different character, the same is required in the present case. This means that the appeal in respect of the sentence imposed for the State offences should be allowed and the matter considered afresh. It was Ms Sutcliffe, who appeared for the Police, who first pointed out, quite properly, this error in the magistrate’s approach to sentence. Ms Sutcliffe accepted that the appellant had to be sentenced afresh.
[4] [2000] SASC 371.
[5] Ibid at [17].
This conclusion makes it unnecessary, strictly speaking, to consider the remaining grounds of appeal against the sentence for the State offences. I mention, however, three of the other complaints of the appellant.
The first was that the magistrate’s remarks suggest that the sentence of 13 months was a contrived sentence, ie, fixed so as to have the minimum 12 months sentence necessary, so the magistrate believed, to allow a non-parole period to be fixed.[6] There are aspects of the sentencing remarks which provide support for that submission: the magistrate’s statement that “in order to fix a very low non-parole period on the State sentence, I must sentence you to at least 12 months imprisonment for the State offences”; the magistrate’s reference to “the position where I want to arrive at in respect of the State matters” and the fact that the magistrate fixed a non-parole period of only one day (to commence at the expiration of the six months imprisonment). The submission was that if the magistrate had contrived the head sentence so as to be able to fix a non-parole period, he could not have fixed the sentence of 13 months having regard to appropriate sentencing principles.
[6] Sentencing Act s 32(5)(a).
Secondly, it was submitted that the magistrate made inappropriate use of the totality principle in fixing sentence. The appellant submitted that the concept of totality should have had little part to play in the fixation of a s 18A sentence. He referred to R v Bennett[7] in which Doyle CJ said that the “concept of totality has little or no part to play when a sentence is imposed, exercising the powers conferred by s 18A and the judge considers it appropriate to determine that sentence without attributing a notional sentence to each offence and considering whether such offences should be cumulative or concurrent”.[8]
[7] [2005] SASC 55.
[8] Ibid at [15].
Thirdly, the appellant submitted that a single sentence of imprisonment had been imposed for offences for which imprisonment, even though available as a sentence as matter of law, was nevertheless inappropriate in the appellant’s circumstances. Put slightly differently, the submission was that an offence should only be included in the group of offences for which a single sentence of imprisonment under s 18A is imposed if, considered by itself, imprisonment would have been appropriate for the offence. The emphasis in the authorities concerning s 18A about the desirability of identifying individual notional sentences reflects this view of s 18A. The appellant submitted that imprisonment was inappropriate for several of his offences. These were the offences committed on 20 April 2007 and the breach of bail offences committed in September 2006.
Ms Sutcliffe’s submissions supported those of the appellant on the first and second of these complaints. It is not necessary for me to express a concluded view about each of those alleged errors. It is sufficient to say that the submissions appear to have some merit, and that account will be taken of them in the resentencing. There also appears to be merit in the third submission insofar as it concerns the proper application of s 18A.
The conclusion that the head sentence for the State offences must be reconsidered has the consequence that the non-parole period will also have to be reconsidered. That makes it unnecessary to consider the cross-appeal of the Police, or the application for an extension of time in relation to it.
The Order on the Breach of Recognizance
The appellant submitted that the magistrate was in error in ordering that he serve the sentence of imprisonment imposed on 14 August 2006.
Section 20A(5)(c) of the Crimes Act provided the alternatives available to the magistrate once he was satisfied that the breach of recognizance was “without reasonable cause or excuse”. They were the imposition of a monetary penalty of up to $1,000; extension of the period of the recognizance (even though the period of the bond had expired by the time of sentencing[9]); an order under s 20AB of the Crimes Act; revocation of the order for release and making an order that the appellant serve the sentence of six months imprisonment; or taking no action at all. It was not open to the magistrate to reduce the six month sentence imposed on 14 August 2006, nor to fix a non-parole period in respect of that sentence.[10]
[9] Sweeney v Corporate Security Group [2003] SASC 324 at [55]-[56]; (2003) 142 A Crim R 385 at 394.
[10] R v Campbell (1997) 95 A Crim R 391 at 398; Ferenczfy v Commonwealth DPP [2004] SASC 208 at [22]-[23].
The magistrate referred to the appellant’s background as outlined in a pre‑sentence report, a psychologist’s report, character references and other documents. He considered that there was “nothing unusual or exceptional” about the appellant’s profile. After referring to the circumstances of the offences constituting the breach of the recognizance the magistrate concluded:
So all those actions indicate that you were not taking the bond seriously at all, that you committed offences, you were not being of good behaviour during the period of the recognizance, notwithstanding a background where the courts have bent backwards to assist you by suspending sentences and giving you a chance to change your ways, a chance to rehabilitate.
You have previously received two suspended sentences, one is under consideration today, and the other in Victoria in November 2004. So you have been given the leniency of the Court before. The Court has shown mercy and compassion.
You have gone through a Mental Diversion Court Program. I have read all the reports. You have undertaken a number of programs. Services have been made available to you, but to no avail. The time has come for you to be accountable. There is nothing before me which would in any way lead me to a conclusion that the breach should be excused.
There are alternatives available to me as far as the breach is concerned. However, I have looked at each and every one of those alternatives and I have come back to the conclusion that I must revoke the recognizance and order that you serve the time on that.
The appellant submitted that the magistrate had erred in the assessment that there was nothing unusual in his profile. As I understood the submission, it involved two aspects. The first was that the conclusion that there was nothing unusual about the appellant’s profile indicated that the magistrate had approached the question of sentence too narrowly. Whatever the appellant’s profile, usual or unusual, it was his circumstances which had to be considered. They did not warrant any lesser consideration simply because they were not unusual. In addition, in approaching the matter in that way, the magistrate may unwittingly have introduced into s 20A(5)(c) considerations which are more pertinent to the South Australian analogue, s 58(3) of the Sentencing Act. That section enables the court to excuse a failure to comply with a bond if satisfied that the failure was trivial or that there are “proper grounds upon which the failure should be excused”. The second aspect of the submission was that contrary to the conclusion of the magistrate there were, in any event, aspects of the appellant’s presentation which were unusual.
It is true that the magistrate concluded his review of the appellant’s circumstances by saying that there was nothing which led him to conclude that the breach “should be excused”, ie, using an expression derived from s 58(3) of the Sentencing Act. However, read in context, that statement is also consistent with a conclusion that there was “no reasonable cause or excuse” for the breach, ie, the threshold requirement for the making of any order under s 20A(5). I consider that the magistrate’s statement should be regarded in that way. It was followed immediately by the statement that the magistrate had looked at “each and every one” of the alternatives available. There is no reason to suppose that the magistrate was not then referring to s 20A(5)(c). On the contrary, given that the magistrate’s attention had been drawn to the limitations on his powers under s 20A(5)(c) immediately before sentencing, it is highly probable that that is the provision to which he was referring.
Nor do I consider that the magistrate approached the matter too narrowly. His remarks indicate that he had read the written material provided during the course of sentencing several times, and that he had regard to all that material. In context, the magistrate’s statement that there was “nothing unusual or exceptional” about the appellant’s profile should be understood as an indication by him that he had some familiarity with the circumstances described in the written material and, further, that those circumstances, not being of an unusual kind, did not indicate that there was “reasonable cause or excuse” for the breach of the recognizance.
The material provided to the magistrate indicated that the appellant (who is now 48 years old) had had a troubled childhood and adolescence. His employment history has been intermittent. He has a history of illicit amphetamine use and mental health problems. His adulthood has been marked by dysfunctional and unstable personal relationships, often ending in acrimony. A report from a psychologist indicates that he has a borderline personality disorder, one of the features of which is impulsivity in his behaviour.
The appellant has received a substantial amount of community and social support since coming to South Australia from Victoria in 2005. In April 2005 he commenced a Centrecare Personal Support Program focussing on issues of mental health and drug use. This involved attending fortnightly counselling and group sessions for approximately two years. In late 2005, or early 2006, he commenced participation in the Magistrates Court Mental Health Diversion Program. This included six weeks residence in the Kuitpo Therapeutic Community, completed in June 2006. On completion of that program the appellant had the support of a Transition Support Worker for six months (to December 2006). During that period, by virtue of the recognizance into which he had entered on 14 August 2006, he also came under the supervision of a Community Corrections Officer in the Department of Correctional Services. While under that supervision, he has been provided with a number of other supports.
The authors of the reports regarding the appellant’s involvement in these programs generally speak well of him and of the progress which he has made while in those programs. It is, however, striking that few refer to the continued offending of the appellant during the currency of the programs or of the supervision by the Community Corrections Officer. The author of the pre‑sentence report provided to the magistrate gave the following explanation of the appellant’s conduct:
The current matters before the Court are typical of [the appellant’s] response to personal and social pressures since his first marriage failed. He acts out emotional turmoil and blatantly draws attention to himself. He understands the self-destructive nature of his dysfunction but nevertheless feels compelled to behave inappropriately and unlawfully. He states that he stole items from Harris Scarfe, for instance, in order to impress the latest object of his romantic intentions with gifts. …
[The appellant’s] offending history is clearly linked to the impact of his formative experience on his personality and relationships. Mood management is difficult for him and impulsivity is heightened as his emotions fluctuate. [The appellant] seems stuck in a recurring pattern of a strong drive to intensely form relationships, inability to sustain relationships and inability to cope with relationship breakdown. Withdrawal into drugs and depression, accompanied by florid and/or aggressive efforts to publicly draw attention to his emotional plight, are consistent hallmarks of his personal and social functioning when experiencing mixed fortune.
In all of these circumstances, I do not think that it can be concluded that the magistrate erred in revoking the order for immediate release and ordering the appellant to serve the six month sentence of imprisonment. The alternatives available to the magistrate were limited. Like Perry J in Sweeney v Corporate Security Group,[11] I doubt that s 20AB of the Crimes Act had any practical application in this case; a fine was clearly not appropriate and there was little to commend an extension of the period of the recognizance. The appellant had shown little regard for the obligations which he had accepted under the existing recognizance, and even with the extensive support available to him had still breached it several times. That history made appropriate an order that he serve the sentence of imprisonment.
[11] [2003] SASC 324 at [29]-[31]; (2003) 142 A Crim R 385, 391-92.
For these reasons, the appeal against the magistrate’s order with respect to the breach of the recognizance fails.
Resentencing for the State Offences
There are a number of aggravating features about the offending:
·the offence of theft on 18 August 2006 and the offence of unlawful damage on 29 August 2006 were committed only four days and 15 days respectively after the entry into the recognizance on 14 August 2008, and all of the State offences were committed during the currency of that bond;
·the offence of unlawful damage on 29 August 2006 was committed in circumstances involving violence and intimidation of the occupant of the premises;
·the breaches of bail involved contraventions of an express provision in the bail agreements put in place for the protection of the occupant at the house at which the offence on 29 August 2006 had been committed; and
·the offences in 2007 were committed while the appellant was on bail for the earlier offences.
It is also of concern that the appellant committed the offences despite the high level of community support which he was receiving.
The appellant has previous convictions for offences of dishonesty. In addition to the Social Security offences for which he was sentenced on 14 August 2006, the appellant had been convicted for four dishonesty offences in Victoria in 2004. He received a suspended sentence of imprisonment in respect of three of those offences.
The appellant also has a previous conviction for damaging property. I consider personal deterrence to be a particularly important consideration in sentencing in this case.
Even allowing for the appellant’s background, psychological profile, and the insights into his offending which is provided by the various report writers, my opinion is that imprisonment is appropriate for a number of the State offences. The theft from Harris Scarfe on 18 August 2006 was quite brazen. In addition, its commission indicated, at the very least, indifference to, if not defiance of, the serious obligation into which he had entered only four days previously. Imprisonment for a period of about four weeks would, in my opinion, be appropriate for that offence and also for the offence of resisting police committed on 20 April 2007. Imprisonment of the order of two weeks would be appropriate for the offence of unlawful damage committed on 29 August 2006, especially taking into account that it was committed only 15 days after the appellant had entered into the recognizance. A sentence of a similar period is appropriate in respect of the offence of disorderly behaviour committed on 20 April 2007 and in respect of the four offences of breaching bail in September 2006. I have taken into account that the appellant spent a short period in custody after being arrested for the breach of bail offences. Finally, a sentence of imprisonment of the order of four weeks would be appropriate in respect of the offence of theft committed on 6 June 2007. As I have said, that offence occurred while the appellant was on bail, during the course of the bond, and even after the appellant had been charged for the earlier offences.
I do consider that it is appropriate to invoke s 18A and impose a single sentence of imprisonment for the above offences. The sentences which I have outlined give some indication of the way in which I have reached that single sentence. If I had imposed those sentences, then I would have ordered that each be served cumulatively (with the exception of the sentence for the offence of disorderly behaviour which I would have ordered be served concurrently with the sentence for the offence of resisting police). That produces a starting point of 16 weeks. I reduce that starting point to 12 weeks on account of the appellant’s guilty pleas. Therefore, acting under s 18A of the Sentencing Act, I impose a single sentence of imprisonment for 12 weeks for the offences outlined above.
In respect of the offence of refusing to provide his name and address on 20 April 2007 I will record a conviction but will not impose any further penalty.
The total period of imprisonment to be served is less than 12 months. That means that a non-parole period cannot be fixed in this case.[12] Accordingly it is not necessary to consider the submissions about use of s 32 of the Sentencing Act in circumstances under federal and State sentences when the aggregate period of imprisonment exceeds 12 months.
[12] Sentencing Act s 32(5)(a).
The final matter is to fix a commencement date for the sentence of 12 weeks. Were it not for one consideration, I would order that the sentence commence on the expiry of the six month sentence imposed on 14 August 2006. However, to do that in this case would involve an element of double jeopardy. Under the magistrate’s order the appellant would have had to serve a minimum of six months and one day in custody. If the sentence I am imposing is made cumulative, he would have to serve six months and then a further 12 weeks. I pointed out to the appellant’s counsel during the hearing of the appeal that success on the appeal could nevertheless result in the appellant having to spend longer in custody than contemplated by the magistrate.
The appellant’s counsel acknowledged that possibility. It was an inevitable consequence that a successful challenge to the head sentence would require the non-parole period fixed by the magistrate also to be reviewed. Further, the nominal non-parole period fixed by the magistrate was the subject of challenge by the Police on the cross-appeal. It could be said that the risk that he would have to serve longer in custody as a result of the appeal was known to, and accepted by, the appellant. Nevertheless, it is desirable that double jeopardy should be avoided. It is also desirable that persons such as the present appellant not be constrained from appealing so as to have set aside an excessive head sentence imposed after an incorrect application of sentencing principles. In all these circumstances, I consider that justice will be done if the sentence of 12 weeks commences forthwith.
Conclusion
For the reasons given above, the appeal against the order made by the magistrate under s 20A(5)(c) of the Crimes Act is dismissed. The appeal against the sentence imposed by the magistrate for the State offences is allowed, and that sentence is set aside. In lieu thereof, acting under s 18A of the Sentencing Act, I impose a single sentence of imprisonment for 12 weeks for all the State offences, other than the offence of refusing to give his name and address (Count 2 on File AMC-07-9302). For that offence I impose a conviction without further penalty. The sentence of 12 weeks is to commence forthwith.
TABACCO v POLICE
APPENDIX ACOMPLAINT COUNT DATE OF OFFENCE OFFENCE MAXIMUM PENALTY PENALTY File AMC-07-1124
1 18/08/06 Dishonestly take property without owner’s consent s 134(1) Criminal Law Consolidation Act 1935 (SA) (CLCA) Imprisonment for 10 years. One sentence imposed for all counts (s 18A Criminal Law (Sentencing) Act 1988 (SA))
File AMC-06-13499
1 29/08/06 Unlawful damage to property: s 85(3) CLCA Imprisonment for 2 years (damage not exceeding $2,500) 13 months’ imprisonment with a non-parole period of one day. File AMC-06-14641
1 03/09/06 Failure to comply with term of bail s 17 Bail Act 1985 (SA) Imprisonment for 2 years or a fine of $10,000 Sentence to be served cumulatively on completion of six months imprisonment to be served in consequence of defendant’s breach of recognizance. 2 09/09/06 Failure to comply with term of bail s 17 Bail Act 1985 (SA) Imprisonment for 2 years or a fine of $10,000 3 09/09/06 Failure to comply with term of bail s 17 Bail Act 1985 (SA) Imprisonment for 2 years or a fine of $10,000 4 10/09/06 Failure to comply with term of bail s 17 Bail Act 1985 (SA) Imprisonment for 2 years or a fine of $10,000 File AMC-07-9302
1 20/04/07 Behave in disorderly manner s 7(1)(a) Summary Offences Act 1953 (SA) Imprisonment for 3 months or a fine of $1,250 2 20/04/07 Refuse name and address s 74A(3)(a) Summary Offences Act 1953 (SA) Imprisonment for 3 months or a fine of $1,250 3 20/04/07 Resist police s 6(2) Summary Offences Act 1953 (SA) Imprisonment for 6 months or a fine of $2,500
0
9
1