Trotta v Police - [2008] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TROTTA v POLICE
[2008] SASC 16
Judgment of The Honourable Justice David
31 January 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - TIME SPENT IN CUSTODY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - CUMULATIVE OR CONCURRENT SENTENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - TOTALITY
Criminal law - appeal against sentence - 23 offences committed while on a good behaviour bond - guilty pleas - breach of bond admitted - sentenced to 32 months and two weeks imprisonment with a non-parole period of 17 months and ordered to pay $2,842.96 compensation - whether magistrate should have reduced sentence for time spent in custody - whether magistrate reduced sentence sufficiently for guilty pleas - whether magistrate reduced sentence sufficiently for compensation orders - whether sentence manifestly excessive - whether sentences should have been concurrent rather than cumulative - whether sentence should have been reduced under the totality principle.
Held: Appeal allowed - sentence should have been reduced to reflect time spent in custody - sentence should have been reduced as a result of guilty pleas - appellant re-sentenced to 26 months imprisonment with a non-parole period of 14 months and ordered to pay $2,842.96 compensation.
Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 10(f), s 18A, s 30(2); Criminal Law Consolidation Act 1935 (SA) s 85(3), s 134(1); Motor Vehicles Act 1959 (SA) s 9(1), s 47, s 91, s 102; Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994 reg 32(A); Road Traffic Act 1961 (SA) s 45; Summary Offences Act 1953 (SA) s 6(2), s 15(1)(a), s 15(1ba)(a), referred to.
Brooks v Police (2000) 76 SASR 279; Matulich v Police [2007] SASC 440; Police v Dyke (Unreported, SC (SA), King J, 1 August 1997); R v Harris & Simmonds (1992) 59 SASR 300; R v Healey (Unreported, CCA (SA), Prior, Lander and Wicks JJ, 22 September 1998); R v Rooke (Unreported, CCA (SA), Doyle CJ, Williams and Bleby JJ, 19 June 1998); R v Smith (Unreported, CCA (SA), King CJ, White and Bollen JJ, 10 December 1991); R v Sutherland (Unreported, CCA (SA), King CJ, Perry and Duggan JJ, 16 November 1992), applied.
House v King (1936) 55 CLR 499; Nixon v R (1993) 66 A Crim R 83; R v Becker (2005) 91 SASR 498; R v Knight (1981) 26 SASR 573, discussed.

TROTTA v POLICE
[2008] SASC 16
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against a sentence imposed by a magistrate on 26 September 2007, in relation to 23 offences and enforcement of a breached bond. The bond related to 40 offences, for which the appellant was convicted on 15 December 2006.
On 26 September 2007, the magistrate also sentenced the appellant for the offence of possessing a drug of dependence (contrary to s 31(1)(a) of the Controlled Substances Act 1984 (SA)), but the appellant does not appeal against the penalty imposed for that offence.
Background
After entering into the abovementioned bond, to be of good behaviour for a period of two years, the appellant was charged with 23 further offences on a number of separate Complaints and Informations. The appellant pleaded guilty to all charges and admitted that he had breached his bond. He also undertook to pay compensation.
The details of the 23 offences and the penalties imposed by the magistrate are set out below.
On 25 January 2007, the appellant smashed the window of a property where his girlfriend resided in Hectorville. The appellant says that this was an accident that occurred while he was knocking on the window. When police attempted to arrest him, the appellant struggled against efforts to place his hands behind his back. He was charged with damaging property (contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (SA) (hereinafter referred to as “the CLCA”) and resisting arrest (contrary to s 6(2) of the Summary Offences Act 1953 (SA)). The magistrate imposed one penalty for these offences (pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (hereinafter referred to as “the CLSA”), of seven days imprisonment, and ordered that he pay compensation in the amount of $80.
On 18 February 2007, the appellant was seen running along a street in Campbelltown, carrying a knife. In relation to this conduct he was charged with carrying an offensive weapon (contrary to s 15(1ba)(a) of the Summary Offences Act). For this offence the magistrate imposed a sentence of seven days imprisonment.
On 24 February 2007, the appellant removed a security camera from a National Australia Bank automatic teller machine which was located at the intersection of Pirie Street and Gawler Place, Adelaide. At this time the appellant was on bail. The appellant was charged with dishonestly taking property (contrary to s 134(1) of the CLCA) and breach of bail (contrary to s 17 of the Bail Act 1985 (SA)). In relation to these two offences the magistrate imposed one penalty of four months imprisonment (pursuant to s 18A of the CLSA). The magistrate also ordered that compensation be paid, in the amount of $1,373.96.
Next, on 28 February 2007, the appellant attended a car sales yard in Klemzig. He indicated that he wanted to test drive a white Subaru WRX Impreza. A car salesman sat in the passenger seat while the appellant drove the vehicle. The appellant allegedly drove the vehicle at speeds over 100 km/h along OG Road, Klemzig. He collided with another car, but failed to stop at the scene of the accident. Following a request from the salesman, the appellant stopped the car in a side street. As the salesman exited the car to inspect the damage, the appellant drove off, causing the salesman to spin around, fall to the ground and graze his hands. On 3 March 2007, police located the vehicle, and the appellant, at a service station on West Terrace, Adelaide. A small axe was located in the foot-well behind the front passenger seat. The Subaru WRX Impreza did not have numberplates, was unregistered and uninsured, and the appellant was disqualified from holding or obtaining a driver’s licence. When police recovered the vehicle, it had damage to the front spoiler and a broken boot release. The appellant was charged with nine offences in relation to this conduct, namely:
·two counts of driving while disqualified (contrary to s 91 of the Motor Vehicles Act 1959 (SA));
·driving without due care (contrary to s 45 of the Road Traffic Act 1961 (SA));
·dishonestly taking property (contrary to s 134(1) of the CLCA);
·breaching bail (contrary to s 17 of the Bail Act);
·driving a motor vehicle without numberplates attached (contrary to s 47 of the Motor Vehicles Act);
·driving an unregistered vehicle (contrary to s 9(1) of the Motor Vehicles Act);
·driving an uninsured vehicle (contrary to s 102 of the Motor Vehicles Act); and
·carrying an offensive weapon (contrary to s 15(1)(a) of the Summary Offences Act).
The magistrate found that these were the most serious of the offences committed by the appellant and accordingly recorded convictions for all offences. For the offences of dishonestly taking property, breaching bail, carrying an offensive weapon and the two counts of driving while disqualified, the magistrate imposed one penalty of 12 months imprisonment (pursuant to s 18A of the CLSA). In addition, the magistrate disqualified the appellant from driving for three months for driving without due care, and one month for driving an uninsured vehicle. These disqualifications were made cumulative, resulting in licence disqualification for four months. This period of disqualification was to commence on 15 December 2007, given that the appellant was already disqualified from driving until that date.
On 31 March 2007, the appellant entered a Cash Converters store at Klemzig. He jemmied open a video camera display cabinet, took a Panasonic video camera and left the store without paying for it. He was charged with dishonestly taking property (contrary to s 134(1) of the CLCA) and breaching bail (contrary to s 17 of the Bail Act). The appellant was also charged with breaching his bail on 3 April 2007 (contrary to s 17 of the Bail Act). Although the facts are somewhat unclear, it appears that on this date the appellant was given permission to attend a medical appointment but, instead, again attended at the Cash Converters store. For these offences the magistrate imposed one penalty of four months imprisonment (pursuant to s 18A of the CLSA) and ordered that $550 compensation be paid.
On 4 April 2007, on North‑East Road at Holden Hill, the appellant failed to leave a bus when requested to do so by an authorised person. Police attended and he resisted their attempts to arrest him. As a result of this conduct he was charged with resisting arrest (contrary to s 6(2) of the Summary Offences Act), failing to comply with directions (contrary to reg 32(A) of the Passenger Transport (Regular Passenger Services; Conduct of Passengers) Regulations 1994) and failing to comply with a bail agreement (contrary to s 17 of the Bail Act). The magistrate recorded a conviction for each offence. For the offences of resisting arrest and breaching bail the magistrate also imposed a penalty of one month imprisonment (pursuant to s 18A of the CLSA).
The appellant was also charged with three further counts of failing to comply with a bail agreement, two offences occurring on 11 May 2007 and one on 16 May 2007 (contrary to s 17 of the Bail Act). On 11 May 2007, the appellant obtained permission to attend a medical appointment but failed to attend the appointment and removed his electronic monitoring device. On 16 May 2007, the appellant was absent from his home address without permission. Again, the magistrate imposed one penalty for these three offences, of six weeks imprisonment (pursuant to s 18A of the CLSA).
At the time all of these offences were committed, the appellant was subject to the bond he had entered into on 15 December 2006. The police therefore made an application for enforcement of the breached bond. The magistrate ordered that the appellant serve the 12 month period of imprisonment which had been suspended upon entering into the bond.
With respect to the total time to be served, the magistrate said:
The sentences will be cumulative and together total 21 months. In addition you have breached the suspended sentence bond when a sentence of imprisonment of 12 months was imposed; together they total 33 months. A non-parole period must be set and reflect the punitive, deterrent and preventative purpose of punishment. You have previously been given the benefit of a suspended sentence bond and commenced offending almost straight away. It would be inappropriate for me to suspend the sentence of imprisonment that I have fixed today and good reason for doing so does not exist.
Given that you have offered to pay compensation I have ordered that it be paid. Had that submission not been made and given that you are facing a term of imprisonment, I would not have ordered compensation. As compensation was offered and ordered I intend to reduce the non-parole period that I would have set by one month. I would have fixed a non-parole period of 18 months, I will now fix a non-parole period of 17 months. Your sentence will be taken to have commenced on 15 May 2007 when you went into custody in relation to these matters. All court fees and prosecution fees are waived. You are to pay the levies. There will be compensation payable as ordered. There will be an order of forfeiture in relation to both offensive weapons.
As Mr Trotta was leaving, he advised the court that in relation to the offence relating to failing to comply with bail on 11 May 2007, he did in fact attend a medical appointment on that date. He asked that I consider this, as his counsel had not put this to me in submissions. I will now take this into account and reduce the sentence imposed for the three offences of failing to comply with bail from six weeks imprisonment to four weeks imprisonment. I will not reduce the non-parole period. The head sentence is therefore reduced by two weeks from 21 months, to 20 months and two weeks. When the suspended sentence of imprisonment pursuant to the breached bond is added, the head sentence is now 32 months [and] two weeks.
The appellant was therefore sentenced to a total of 32 months and two weeks imprisonment, with a non-parole period of 17 months. The appellant appeals against that sentence.
Appeal
The magistrate faced a difficult task, there being a large number of offences, of differing types, occurring on a number of separate occasions, over a five month period.
The appellant argues that the magistrate erred in:
·failing to adequately reduce the sentence for time spent in custody;
·failing to adequately reduce the sentence for his pleas of guilty;
·failing to adequately reduce the sentence as a consequence of the compensation orders made;
·setting excessive sentences for each offence, or set of offences;
·failing to make the total sentence for the 23 offences and the sentence resulting from enforcement of the breach bond run concurrently; and
·failing to reduce the head sentence and non-parole period under the principle of totality.
Time Spent in Custody
The appellant submits that the magistrate failed to give credit for time spent in custody. During the course of the commission of these offences, the appellant was taken into custody and released on bail on a number of occasions, prior to finally being taken into custody on 15 May 2007. In total, the appellant spent 41 days in custody in relation to these charges, prior to being taken into custody on 15 May 2007. The appellant argues that his sentence should have been reduced to reflect this. The magistrate made no reference to this period of time in the sentencing remarks.
The decision whether or not to reduce a sentence for time spent in custody is discretionary.[1] However, it is usual practice to allow a reduction in sentence equal to the length of time served. In this case, the magistrate has not allowed any reduction in the sentence for time spent in custody prior to 15 May 2007. The reason for this is unclear.
[1] Criminal Law (Sentencing) Act 1988 (SA) s 30(2).
The time spent in custody, which is currently unaccounted for, is quite lengthy, being almost six weeks. My view is that, although the magistrate has a discretion whether or not to allow a reduction in the sentence, in this case, allowance should be made for the six weeks the appellant has spent in custody.
Guilty Plea
The appellant pleaded guilty to all offences charged and admitted breaching his bond. The appellant argues that the magistrate did not sufficiently reduce his sentence to reflect these pleas.
Where possible, a sentencing court should indicate what discount has been allowed for a plea of guilty.[2] While a comprehensive explanation is not necessarily required, an appellate court must be able to discern the reasoning of the sentencing judge from the remarks.[3]
[2] R v Harris & Simmonds (1992) 59 SASR 300, 302; R v Smith (Unreported, CCA (SA), King CJ, White and Bollen JJ, 10 December 1991) 3; R v Sutherland (Unreported, CCA (SA), King CJ, Perry and Duggan JJ, 16 November 1992) 4.
[3] R v Becker (2005) 91 SASR 498, 503.
In sentencing the appellant, the magistrate did indicate that he had pleaded guilty to all offences. In particular, the magistrate said:
George Michael Trotta, you have admitted a breach of a suspended sentence bond that was imposed by this Court on 15 December 2006 for 12 months imprisonment and you have pleaded guilty to some 24 offences.
However, with the exception of the sentence imposed for the offences involving the Subaru WRX Impreza, the magistrate failed to indicate whether there had been any reduction allowed in the sentence as a result of these pleas and, if so, the amount of the reduction.
The failure to indicate what, if any, reduction had been made in the sentences as a result of the appellant’s guilty pleas is an error. From the court record it appears that the appellant entered guilty pleas at any early stage in the proceedings. It is usual practice to allow a reduction of between 15 per cent and 25 per cent for early guilty pleas.[4] I would therefore reduce any sentence imposed by approximately 20 per cent.
[4] R v Rooke (Unreported, CCA (SA), Doyle CJ, Williams and Bleby JJ, 19 June 1998) 3. See also Nixon v R (1993) 66 A Crim R 83, 90.
Compensation
The appellant also argues that the magistrate failed to adequately reduce his sentence to reflect the fact that he offered to pay compensation in respect of a number of offences, and that compensation orders were made.
The appellant agreed to pay a total of $2,842.96 in compensation. With respect to this, the magistrate said:
Given that you have offered to pay compensation I have ordered that it be paid. Had that submission not been made and given that you are facing a term of imprisonment, I would not have ordered compensation. As compensation was offered and ordered I intend to reduce the non-parole period that I would have set by one month. I would have fixed a non-parole period of 18 months, I will now fix a non-parole period of 17 months.
First, the appellant says that the reduction should have been made when looking at each offence, or set of offences, rather than at the end. Second, he argues that, given the amount of compensation ordered, a reduction of only one month is insufficient. Finally, he states that the reduction should have been made to the head sentence as well as the non-parole period, rather than only from the non‑parole period.
The role of an appellate court, on the hearing of an appeal against sentence by an accused, is well settled. It is insufficient for an appellate judge to decide that he or she would have imposed a different penalty in the circumstances. In order for an appeal to be successful it must be shown that the sentencing magistrate fell into error, either explicitly (eg by acting upon a wrong principle, failing to consider relevant material, or by making a factual error) or impliedly, because the sentence is “unreasonable or plainly unjust”.[5]
[5] House v King (1936) 55 CLR 499, 504-5.
The appellant’s willingness to have a compensation order made shows contrition and is a mitigating factor when considering what sentence to impose.[6] As already mentioned, the magistrate faced a difficult task in determining an appropriate sentence in this case. I can see no error in reducing the final sentence, rather than reducing each offence, or set of offences, for which compensation was ordered. I also see no error in the length of the reduction, ie four weeks. In addition, Matulich v Police[7] indicates that in some cases it may be appropriate to only reduce the non-parole period. While I might have allowed the reduction to apply to both the head sentence and the non-parole period, I can see no appealable error allowing this court to interfere with the magistrate’s discretion to apply the reduction only to the non‑parole period.
[6] Criminal Law (Sentencing) Act 1988 (SA) s 10(f); Matulich v Police [2007] SASC 440, [30]; Brooks v Police (2000) 76 SASR 279, 285-286.
[7] [2007] SASC 440, [68].

This argument therefore fails.
Excessive Sentences
In relation to each offence, or set of offences, the appellant argues that the sentence imposed is manifestly excessive. The appellant argues in each case that either a sentence of imprisonment was not warranted or that the length of the sentence was excessive.
The offending behaviour and the sentences imposed by the magistrate are set out earlier in these reasons.
The following excerpt from the magistrate’s remarks sets out the personal circumstances of the appellant:
You are 26 years of age, unemployed, single with no dependents. You have been in custody since 15 May 2007 and your sentence will be backdated to take into account the time you have spent in custody. There is a suggestion that at the end of your sentence you may enrol in literacy courses and are considering enrolling in a course to become an electrician. There is considerable support for you from your family and your aunty has offered you a hairdressing apprenticeship. You previously told counsellors you would like to work outside and there is mention in the [Court Assessment and Referral Drug Scheme] report that you hope to work as a concreter for a relative. To date you have done little work.
You have a history of drug abuse, had an addiction to heroin and more recently amphetamines. In the past you have made significant attempts to become drug free with some success for short periods of time. However, in September 2006 you relapsed and were involved in abusing methamphetamines and this continued at the time of this current offending.
The offending for which you are being sentenced today, occurred over an eight month period when your life was chaotic and affected by drug abuse. Counsel submitted that your offending was caused by your lack of maturity and social skills and was impulsive and spontaneous rather than premeditated.
You have a substantial record of criminal offending, the most recent being for 43 offences committed over 10 months that included multiple drive disqualified offences, dishonestly taking property, bribery and numerous road traffic offences. You received a suspended sentence bond that you have breached. There was earlier offending that occurred in 2002 and 2003 for driving whilst disqualified, larceny, carry offensive weapon and producing a controlled substance. In 1999 there were other convictions for driving whilst disqualified, unlawful possession, firearms offences and carrying an offensive weapon. You have previously been given a suspended sentence bond.
With the exception of the charge relating to possession of methamphetamines, the offences you are being sentenced for today occurred almost immediately after you entered into the suspended sentence bond. Indeed the only time that you seem to stop offending is when you are in custody. Home detention bail does not stop you from offending and some of the offences that you are before the court on today for sentence, relate to offending whilst you were on home detention bail.
In addition, the magistrate took into account letters and reports from:
·the appellant’s doctor;
·the appellant’s mother;
·the appellant’s aunty;
·the appellant;
·a counsellor from the Bridge Program, run by the Salvation Army; and
·the Court Assessment and Referral Drug Scheme.
I have also reviewed these letters and reports.
In all the circumstances, I cannot say that the sentence imposed for each offence, or set of offences, is so unreasonable or unjust as to allow this Court to interfere with the magistrate’s sentencing discretion, particularly given the appellant’s criminal history and the fact that these offences were committed while he was on a good behaviour bond.
This ground of appeal therefore fails.
Concurrent/Cumulative
The appellant argues that the magistrate should have ordered that the sentence for the 23 offences and the sentence which was brought into effect as a result of breaching his bond, be served concurrently rather than cumulatively.
In Police v Dyke,[8] King CJ stated:
As a general principle, sentences for subsequent offences which give rise to the activation of an earlier suspended sentence should be made cumulative upon the activated sentence.
This statement was approved by the Court of Criminal Appeal in R v Healey.[9]
[8] (Unreported, SC (SA), King J, 1 August 1997) 2.
[9] (Unreported, CCA (SA), Prior, Lander and Wicks JJ, 22 September 1998) [24].
The appellant has not suggested any reason why the Court should depart from the general rule and I have been unable to identify any reason for a departure when looking at the facts of this case. As such, the magistrate has not erred in ordering that the two sentences be cumulative.
This argument must therefore fail.
Totality Principle
Finally, the appellant argues that the total sentence imposed is excessive, because the magistrate failed to have regard to the principle of totality.
The totality principle requires a sentencer, who is setting a number of sentences for different offences, to review the aggregated sentence which will be imposed and ensure that it is not oppressive or crushing.[10]
[10] R v Knight (1981) 26 SASR 573, 575-576.
It is unclear from the magistrate’s remarks whether consideration was given to the issue of totality. I am of the view that such a consideration would not have affected the sentence. The sentence imposed effectively relates to 63 offences committed by the appellant, 23 of which were committed while he was on a bond. For these offences the appellant was sentenced to 32 months and two weeks imprisonment, with a non-parole period of 17 months. I understand that the appellant is relatively young. However, my view is that this is not a crushing sentence given the circumstances of the offending, particularly once the appellant is given credit for time spent in custody and his pleas of guilty.
The magistrate did not err in failing to reduce the sentence as a result of the totality principle.
Conclusion
The appeal is allowed, in order to give the appellant credit for time spent in custody and for his guilty pleas.
In respect of the 23 offences committed between 25 January 2007 and 16 May 2007, I would impose one sentence of 22 months and two weeks imprisonment, pursuant to s 18A of the CLSA. This is the same length of imprisonment as the magistrate imposed for these offences, plus two months, which was the period previously deducted from the head sentence for the appellant’s guilty plea with respect to the offences relating to the Subaru WRX Impreza. In addition, the appellant is to serve the 12 months imprisonment which had previously been suspended upon him entering into a good behaviour bond. This brings the total sentence to 34 months and two weeks imprisonment. The sentence is then to be reduced by approximately 20 per cent for the appellant’s early guilty pleas, resulting in a sentence of 27 months and two weeks imprisonment. I further reduce this sentence by six weeks for the time spent in custody in relation to these offences. This results in a final head sentence of 26 months imprisonment. I impose a non‑parole period of 14 months.
In addition, I order that the appellant pay compensation of $2,842.96. This amount comprises $80 for the offence of damaging property committed on 25 January 2007, $1,373.96 for the offence of dishonestly taking property on 24 February 2007, $839 for the damage caused to the Subaru WRX Impreza, and $550 for the offence of dishonestly taking property on 31 March 2007.
Finally, in accordance with the penalty imposed by the magistrate, I disqualify the appellant from driving for four months, commencing on 15 December 2007. Three months of this disqualification relates to the offence of driving without due care and the other month relates to the offence of driving uninsured.