Thompson v Police No. Scgrg-99-889 Judgment No. S383

[1999] SASC 383

THOMPSON V POLICE

[1999] SASC 383

Magistrate’s Appeal

1 MARTIN J.  (Ex tempore)           The appellant pleaded guilty in the Magistrates Court sitting at Christies Beach to larceny.  The learned Special Magistrate convicted the appellant and imposed a sentence of six months imprisonment.  The sentence was suspended upon the appellant entering into a bond in the amount of $400 to be of good behaviour for a period of eighteen months upon conditions that she be under the supervision of a probation officer and obey all the lawful directions given by the probation officer, including lawful directions as to her attendance at programmes and activities carried on by the Department of Correctional Services.  The appellant appeals against the sentence on the sole ground that it was manifestly excessive.
2 The offence is commonly known as shop lifting.  The appellant and a male co-offender moved around a store at the Noarlunga Shopping Centre pushing a trolley and selecting various items.  When they came to an exit, the defendant looked about and both then walked out of the store without paying for the goods.  The appellant and her co-offender stole six games, two tracksuits and a pair of shorts together of the value of $526.70.  The appellant was apprehended by security officers and, when spoken to by police, admitted the theft.  She said she had intended to keep the items of clothing and admitted telling the co-offender to wait before leaving the store as she knew she was being watched.
3 The Magistrate faced a difficult task.  He had before him a pre-sentence report dated 16 June 1999 which clearly demonstrated a tragic background.  The appellant had a traumatic upbringing and has had a most unfortunate adult life.  She has been involved in an abusive relationship and had numerous pregnancies, miscarriages and still births.  She is now 37 years of age and began abusing alcohol at the age of 16.  To her credit she successfully underwent alcohol rehabilitation and told the probation officer who prepared the pre-sentence report that she has not used alcohol in the past 12 months.  She gave birth to her youngest son on 29 April 1999 and abused a tranquilliser medication when seven weeks pregnant.  She was feeling depressed and didn’t care what happened to her. 
4 In August 1998 the appellant was placed on a twelve month good behaviour bond with a condition that she be under the supervision of a probation officer.  She was required to undertake medical treatment as directed, including psychological and psychiatric treatment as required.  The probation officer reported that the appellant needed intensive supervision during the course of the bond.  Her pregnancy was deemed to be high risk due to her previous miscarriages.  She was suffering from anxiety and depression.  Spasmodic contact was maintained with the main emphasis on crisis intervention.  In the view of the probation officer, the appellant will require ongoing psychiatric intervention and child support. 
5 The appellant told the probation officer that she was nearly sexually assaulted by her ex-partner during the night prior to the offences being committed.  She felt disgusted and degraded by the experience.  She was using her medication and, at the time of the offending, was "not thinking straight".  She was emotionally drained and up-tight. 
6 The probation officer reported that one of the appellant’s goals for the future is to improve her self-esteem and self-confidence.  The appellant realises that to achieve this aim she will need ongoing psychiatric assistance and must continue to abstain from using alcohol.  At the time of the report the appellant was utilising the services of a number of government and community agencies and there was a need for those services to be coordinated.  This could be achieved through ongoing probation supervision.
7 The Magistrate was required to balance those personal circumstances against the need for general and personal deterrence.  The appellant’s prior record of offending demonstrated a clear need for personal deterrence.  Her first appearance was in July 1990 when a charge of larceny was dismissed without penalty and without the recording of a conviction.  In October 1990 she was convicted of larceny and fined $350.  On 9 September 1994 the appellant appeared in the Elizabeth Magistrates Court on numerous charges.  She was convicted of a number of offences of larceny.  In respect of one of those offences, the appellant was sentenced to six months imprisonment.  That sentence was suspended upon entry into a bond for a period of eighteen months.  It appears that offence was committed on 6 December 1991.  The other offences of larceny occurred in February, March  and April 1991. 
8 On 15 July 1996, the appellant again committed the offence of larceny.  On 18 July 1996 she committed the offence of unlawful possession.  She pleaded guilty to both and on 25 August 1998 she was placed on a good behaviour bond for a period of twelve months in the amount of $375.  The conditions of the bond required that she be under the supervision of a probation officer for that period.  She was required to obey all lawful directions given by the probation officer, attend any programmes and projects as directed and undertake any medical treatment including psychological and psychiatric treatment as directed.  That bond having been entered into on 25 August 1998, less than one month later on 19 September 1998 the appellant committed the offence of larceny for which she received the suspended sentence that is currently under consideration.
9 At the time of imposing the suspended sentence, the Magistrate also estreated the previous bond and ordered that the defendant pay $375 within one month.
10 In brief reasons for sentence, the Magistrate said he found the appellant’s case very difficult.  He then said:
"I approach it on this basis.  You are a thief.  You go to shops and you steal things.  When you get caught you seek to rely upon your peculiar circumstances, the fact that you have had a number of children and in this particular case the fact that you have recently had another child and there are some health problems associated with the child, to save your neck.  The question becomes, in my mind, how many chances are you entitled to.  I might say that my own view is you must be getting awfully close to having exhausted all of your chances.  Your counsel has urged I give you one final opportunity to show that you can behave yourself."
11 His Honour indicated he was reluctant to give a further opportunity and sought to make clear to the appellant that if she appeared again before him on any offence involving an act of dishonesty, neither the appellant’s health problems or her children would save her from going to prison.
12 The appellant clearly needs help.  She also needs to be deterred from offending again.  The court cannot ignore the need to protect the public.  The Magistrate sought to achieve a proper balance by suspending the sentence and imposing conditions that will enable the appellant to obtain the assistance that she requires. 
13 The appellant did not submit that a sentence of imprisonment was beyond the range of sentencing discretion.  Counsel contended, however, that the period of six months was manifestly excessive.  He suggested that the reason his Honour imposed a sentence of that magnitude was that he had erred in not giving sufficient weight to the plea of guilty and in sentencing the appellant on the basis that the appellant was an habitual thief.  It is a reasonable inference that, when his Honour spoke of the appellant being a thief who goes to shops and steals, his Honour was finding for the purposes of sentence that the appellant was a regular offender.  In my opinion, there was no basis in the evidence or in the appellant’s antecedents to justify drawing that conclusion beyond reasonable doubt.  In addition, in my view his Honour erred in criticising the appellant for, as he put it, seeking to rely on her personal circumstances in mitigation. 
14 In my opinion the errors that I have identified mean that the sentencing discretion miscarried.  I am, therefore, required to fix an appropriate penalty.
15 As I have already indicated, counsel for the appellant did not suggest that a sentence of imprisonment should not be imposed.  He submitted it should be shorter than the six months imposed by the Magistrate and that suspension was appropriate.  The Crown conceded that, if appropriate allowance is made for the plea of guilty, to reach a sentence of six months would involve starting at nine or ten months which would be at the upper end of the scale.  Counsel suggested that an appropriate starting point would be closer to six months.  Although the Crown maintained that it would have been within the range of his Honour’s discretion to decline to suspend the sentence, it was not suggested that I should decline to do so.
16 In view of the appellant’s record of prior offending and the fact that this offence was a breach of a bond imposed only one month earlier, there is a need to impose a sentence that will act as a personal deterrent.  However, the plea of guilty and the powerful mitigating circumstances arising from the tragic background and the significant difficulties being experienced by the appellant at the time of the offending must be given considerable weight.  In view of those factors, and in particular the emotional and psychiatric condition of the appellant, I am satisfied that any sentence imposed should be suspended.
17 The appeal is allowed and the sentence of six months imprisonment is set aside.  I impose a sentence of four months imprisonment.  That sentence will be suspended upon the appellant entering into a bond in the amount of $400 to be of good behaviour for a period of eighteen months.  It will be a condition of the bond that the appellant be under the supervision of a probation officer and obey all lawful directions given by the probation officer including lawful directions as to her attendance at programmes and activities carried on by the Department of Correctional Services.