TALLBOY v POLICE

[2007] SASC 17

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

TALLBOY v POLICE

[2007] SASC 17

Judgment of The Honourable Justice David (ex tempore)

16 January 2007

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appeal against sentence – the appellant pleaded guilty to 20 offences – in relation to nine of these offences, being three counts of being unlawfully on the premises, two counts of possessing articles for the purpose of committing an offence, two counts of theft and two counts of illegal use of a motor vehicle, the magistrate imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 of 11 months imprisonment, allowing for four months already spent in custody, and 14 months driving disqualification – the magistrate declined to suspend the sentence in whole or in part – in relation to the other offences, the appellant was convicted without penalty – whether the sentence of imprisonment was manifestly excessive – whether the magistrate erred in not suspending either the whole or part of the term of imprisonment – held, appeal dismissed – the term of imprisonment was not excessive and could almost be described as moderate – suspending the sentence either partially or wholly would have been totally inappropriate given the appellant’s prior offending and the persistent nature of the present offences.

Criminal Law (Sentencing) Act 1988 s 18A, s 38(2a), referred to.

TALLBOY v POLICE
[2007] SASC 17

Magistrates Appeal

David J.

Background

1. This is an appeal against a sentence of 11 months imprisonment with disqualification of driving licence of 14 months.

2. The appellant was charged with 20 separate offences, but was imprisoned for one term of 11 months for 9 of those offences. In relation to the other offences the magistrate convicted him without penalty.

3. The offences for which he was imprisoned were three counts of being unlawfully on the premises, two counts of possessing articles for the purpose of committing an offence, two counts of theft and two counts of illegal use of a motor vehicle. Seven of the offences took place between 23 August 2005 and 26 October 2005. After that latter date, the appellant was arrested and detained in custody until 9 March 2006. On being released on bail, he then committed the final two offences of being unlawfully on the premises and theft on 4 August 2006.

4. The appellant, in his notice of appeal and in argument, argues that the term of imprisonment of 11 months, being one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”), is manifestly excessive. He does not argue about the periods of disqualification which are attached to the charges of illegal use.

5. The appellant also argues that either the whole of that term of imprisonment should have been suspended, or at least, part of the term should have been suspended, pursuant to s 38(2a) of the Sentencing Act.

   The First Ground of Appeal

6. I deal with the first ground of appeal.

7. The appellant argued that the magistrate erred in starting with a sentence of 20 months and then reducing that by five months to reflect his pleas of guilty, and by a further four months to take into account the time already spent in custody. That left a term of imprisonment of 11 months.

8. The magistrate was presented with the previous criminal convictions of the appellant, namely that he was convicted on 15 July 2004 for illegal use and was sentenced to four months imprisonment. He was also sentenced to a term of six months imprisonment for non-aggravated serious criminal trespass and that sentence was suspended. On that occasion he was also dealt with for five breaches of bail. He also appeared on 23 June 2004 at the Port Adelaide Magistrates Court for being unlawfully on premises and possessing articles to commit an offence but no conviction was recorded.

9. The magistrate took into account the appellant’s personal history in his reasons. He especially took into account the circumstances of a tragic motor accident that took place in February 2003 in which a person was killed, and he said that as a result of that incident the appellant may have been suffering from post‑traumatic stress disorder.

10. In his sentencing remarks the magistrate referred to the fact that:

    You continued to commit offences of dishonesty to obtain money to purchase amphetamines.

    The magistrate then went on to consider that a term of imprisonment was warranted but, bearing in mind the appellant’s history and the continuing nature of these offences (although they of themselves were not the most serious examples of their type), he started with a head sentence of 20 months. As I indicated, he reduced that to 11 months to take into account the pleas of guilty and the time spent in custody.

11. I cannot say that that sentence is manifestly excessive, bearing in mind the maximum penalty for each of these offences as set out in the respondent’s outline of argument and bearing in mind the persistent nature of the offending. In my view, a term of 11 months could almost be described as moderate.

    The Second Ground of Appeal

12. I turn to the question of suspension, both in whole and partially.

13. In my view, suspension of the sentence, either partially or wholly, would have been totally inappropriate. The magistrate, of course, in the exercise of his discretion would bear in mind the appellant’s previous offending and the persistent nature of the present offences.

14. An interesting argument was presented by his counsel, Ms Demertzis, to the effect that if the period of 15 months (20 months as a starting point less five months reduction for pleas of guilty) was not further reduced for time spent in custody, then the magistrate would have to set a non-parole period, and the non‑parole period would most certainly have been less than 11 months. She argues that in order to rectify this anomaly it would be best if I could partially suspend the sentence.

15. Although I find that argument interesting, and the anomaly interesting, the fact is that in his sentencing régime the magistrate’s final sentence of 11 months is not manifestly excessive, and the way he came to it does not disclose any error.

    Conclusion

16. For the reasons set out above, I would dismiss the appeal.