The Queen v Cutting

[1992] SASC 2936

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), COX(2) AND BOLLEN(3) JJ

CWDS
Criminal Law - Sentence - 19 offences including breaking and entering, larceny, illegal use and damage to property - 18 months' imprisonment for each offence concurrent with 12 months' non-parole period - Sentences suspended on bond for 2 years with supervision and 100 hours community service - man aged 19 years with low intelligence and inability to make friends - joined in offences to retain companionship of criminally minded youths - light suspended sentence justified in particular circumstances - sentence on 4 offences reduced to 6 months and another to 1 month - leave granted to Attorney-General and appeal allowed to make above adjustments - observations as to need of sentencing judge to assess penalty for each offence individually even where sentences concurrent - need to articulate order publicly and to identify any offences not charged which are taken into account.

HRNG ADELAIDE, 17 June 1992 #DATE 17:6:1992
Counsel for the Appellant:                Mr. P.J.L. Rofe
Solicitor for the Appellant:             B.M. Selway
  Crown Solicitor
Counsel for the Respondent:             Mr. S.M. Trueman
Solicitor for the Respondent:             Ringwood and Co.

ORDER
Appeal allowed.

JUDGE1 KING CJ The Attorney-General seeks leave to appeal against sentences imposed upon the respondent in the Central District Criminal Court for 19 offences. The offences consist of one offence of shopbreaking and larceny; two of shedbreaking and larceny; one of housebreaking and larceny; one of garagebreaking and larceny; eight of buildingbreaking and larceny; one of larceny; one of receiving; one of illegal use of a motor vehicle; and two damaging property. 2. The respondent pleaded guilty to each of those offences and asked that certain other matters be taken into account. In imposing sentence his Honour said:
    "What I am proposing to do for what I call the totality of
    all this offencing is sentence you to 18 months' gaol with a 12
    month non-parole period, but I am not going to send you to gaol. I
    will, in effect, give you a chance. I will say I have dealt with
    you pretty leniently and a lot of other people might not do this,
    but I will suspend that sentence and say if you are of good
    behaviour for two years there will be no further trouble, but if you
    go wrong in the next two years you will have to go to gaol. What I
    am saying is that it's up to you now, not to me. I have given you a
    chance." 3. His Honour did not say in express terms that he was imposing a sentence of 18 months' imprisonment on each charge, those sentences to be served concurrently with one another. That, however, is expressly stated in the report of prisoner tried which was signed by the sentencing judge and which is the official record of the court as to the sentences imposed. 4. Although his Honour did not use the precise words "on each count to be served concurrently" in passing sentence, I think that his reference to the totality of the offending and the general context makes it clear that that was his intention. I think that it is clear that his intention at that time was to impose a sentence of 18 months' imprisonment on each count, those sentences to be served concurrently, and that the report of prisoner tried merely gives effect to the intention of the sentencing judge at the time that he imposed sentence. 5. I think, however, that it is pertinent to say, lest there be any doubt about it in the minds of sentencing judges, that a sentencing judge ought to apply his mind to each individual offence and assess a penalty which is appropriate to that offence, even though he is making the sentences for the offences concurrent with one another and, moreover, that he ought to state clearly in open court the sentence for each offence and articulate the order that the sentences be served concurrently with one another. 6. I should add also, that where a judge is taking offences not charged into account in fixing sentence, it is important that he should state in open court at the time of passing sentence, that he is taking those offences into account, and that he should identify the offences which are being taken into account. 7. His Honour suspended the sentences which he imposed upon the respondent entering into a recognizance to be of good behaviour for a period of two years and to be under the supervision of a probation officer and to perform 100 hours' community service. 8. Mr. Rofe, who appeared for the Attorney-General, did not contest the sentencing judge's decision to suspend the sentences. Indeed, he was in no position to do that because counsel for the prosecution in the court below had not opposed that course. 9. Mr. Rofe contended, however, that the total head sentence for such a multiplicity of offences, was inadequate, and that there should have been some degree of accumulation. He particularly argued that four of the offences which were committed while the respondent was on bail for earlier offences, ought to have been given sentences which were made cumulative upon the sentences for the earlier offending. 10. There can be no doubt that the duration of the total head sentence is very light for such a multiplicity of offending. Under ordinary circumstances a multiplicity of offences of this degree, committed under the circumstances under which these offences were committed, would have attracted a much longer total sentence of imprisonment. 11. There were, however, very special circumstances about the present case. The respondent was aged 19 years, at the time of the commission of the offences. He had no prior convictions. He is a young man, of low intelligence. He has personality problems, which have meant that he has been unable to make friends or to enjoy the company of other young people, and there is no doubt that he has experienced a craving for the company of others. 12. He seemed to be accepted by two juveniles, and he was obviously delighted to have their company. Unfortunately, they were criminally minded, and he went along with these offences, as the means of retaining their company and their friendship. That that was his role is evident, apart from any other consideration, from the fact that they got pretty well all the property, and he received little. 13. It is a pathetic case. He is a young man who is living with his parents who are supportive and do the best they can, but there are obvious problems about caring for a 19 year old of limited intelligence and with personality problems. It seems to me in those circumstances, that the learned judge's decision to give the young man the chance of a suspended sentence was amply justified, and it also seems to me that the very considerations which make that decision a correct decision, also justify the imposition of strict limits on the total duration of the head sentence. It would be pointless and oppressive, in my view, to impose a long head sentence on a young man of this type, even while suspending it, and even while fixing a short non-parole period. I think that the learned judge, in the circumstances, exercised his discretion wisely in limiting the total head sentence to 18 months. 14. Unfortunately, however, his Honour appears to have given insufficient attention to the individual offences, when he imposed the same sentence for each of the offences. It is important, as I have already said, that a judge who is imposing concurrent sentences, should not, on that account, disregard the intrinsic character of the offences when fixing sentence. The sentencing process, and the record of the offender are distorted if the sentence imposed for each individual offence does not bear some proper proportion to the degree of criminality involved in that particular offence. 15. In the present case, on one of the counts, count 11 for the illegal use of a motor vehicle, the 18 months' sentence exceeds the maximum of 12 months which is permitted by law. The offences in counts 11, 12, 13 and 14, that is to say, the illegal use of a motor vehicle, damaging of property, larceny and a further offence of damaging property, were all committed as part of the same escapade, and I think that the practical and reasonable course in relation to those matters would be to reduce the sentence for each of those matters from 18 months to six months' imprisonment. Count 15 was a relatively minor offence of stealing a tape worth $4.95 from a shop, and I think that the sentence should be reduced from 18 months to one month. 16. I would, therefore, grant leave to the Attorney-General to appeal, and would allow the appeal for the purpose of making the two adjustments which I have indicated, but I would otherwise affirm the sentences which were imposed. The order of the court will be leave to appeal. Appeal allowed. The sentences for each of the offences alleged in the complaint dated 12th September 1990, and for the offences in the information dated 12th September 1990, are reduced to a sentence of six months' imprisonment, those sentences to be served concurrently with one another, and concurrently with the other sentences imposed. The sentence for the offence alleged in the information dated 23rd August 1990 is reduced to imprisonment for one month, to be served concurrently with the other sentences imposed.

JUDGE2 COX J I agree with the orders proposed by the Chief Justice and the reasons that he has given.

JUDGE3 BOLLEN J I too agree.