VAHLBERG v POLICE No. SCGRG-98-192 Judgment No. S6607

[1998] SASC 6607

VAHLBERG  v  POLICE

Magistrates Appeal

Bleby J

This is an appeal against sentence. The appellant pleaded guilty in the Magistrates Court at Holden Hill to two counts of larceny contrary to s131 of the Criminal Law Consolidation Act 1935, one count of driving without a licence contrary to s74 of the Motor Vehicles Act 1959, one count of driving without due care contrary to s45 of the Road Traffic Act 1961 and two counts of illegal use of a motor vehicle contrary to s86a of the Criminal Law Consolidation Act.  All the offences occurred on the one day in a course of behaviour which does no credit whatsoever to the appellant. 

Counts 1 and 2 allege the illegal use of a VN Commodore which had been taken from Brougham Place, North Adelaide, and the larceny of golf clubs from that vehicle.  The golf clubs were said to be of a value of $2,459.  At least that was the amount paid out by the insurance company for their loss, and the clubs have never been recovered.  Counts 3 and 4 occurred on the same day.  They involved illegal use of a VL Commodore sedan taken from Broadview, and the larceny of a Nokia mobile telephone valued at about $300 and a Pentax camera valued at about $350 and $500 in cash, which items were said to have been taken from the second VL Commodore.  The mobile phone and the camera were later recovered on the apprehension of the appellant. 

The maximum penalty for illegal use of a motor vehicle is two years imprisonment for a first offence.  For a second or subsequent offence it is a minimum of three months imprisonment and a maximum of four years imprisonment.  In both cases there is a mandatory licence disqualification for at least 12 months.  The maximum penalty for larceny, the other two offences the subject of those four counts I have just described, is imprisonment for five years. 

Count 5 alleges that he drove without a licence contrary to s74 of the Motor Vehicles Act. The maximum penalty for that is $1,000. Count 6 was that he drove without reasonable consideration for other persons using the road, a breach of s45 of the Road Traffic Act for which the maximum penalty is also $1,000.  The driving involved the same vehicle as was the subject of the illegal use in count 3. 

The circumstances of the offences as described by the police prosecutor were that in the early hours of the morning of 26 June 1997 the owner of the second car, which was the subject of count 3, was being driven by his sons to his office to ascertain the registered number of what was by then as his stolen vehicle.  The owner of that car was driving along Brook Avenue and saw his own car travelling east along Collingrove Avenue at Broadview.  The victim then followed the car and could see two occupants in the front seats.  The car then turned right into Poltawa Terrace.  The victim drove alongside his own car, the car then slowed down and then sped up and turned left into Hardy Terrace, made a U‑turn and turned right to travel south on Poltawa Terrace.  The car then turned into the car park of the Broadview Football Club and stopped.  The driver of the car got out of the car and ran away.  He was chased by the victim’s sons but he managed to get away by scaling a fence. 

The passenger of that car then got into the driver’s seat, the passenger being the appellant, and continued to drive the car. 

The victim then followed the car again as it turned left onto McInnes Avenue.  The appellant lost control of the steering of the car.  It mounted the footpath, hitting the kerb very hard, and the car then skidded around and hit a tree on the footpath, and the back of the car swung around and hit a stobie pole.  The appellant got out of the passenger side door, and tried to escape in a westerly direction along McInnes Avenue and then south along Galway Avenue.  He was chased and eventually caught and handed over to police when they arrived. 

The victim of the second illegal use searched his own car, and found that there was missing from that the Nokia mobile phone, the Pentax camera and $500 in cash.  The camera was later found in the possession of the appellant when he was arrested.  The mobile telephone was found in the first car, the subject of count one, then in the carpark at the Broadview Football Club. 

Damage to the vehicles was quite substantial.  The cost of repairs for damage to the first car - at least the amount paid out by the insurance company - was $1,222.88 and as I have already indicated an amount of $2,459 was paid for the loss of the golf clubs.  The court was told that the victim of those offences was out of pocket by some $775.  The second victim, who is the man who eventually apprehended the appellant, or his insurers suffered a loss of $8,499 in repairs to damage of the VL Commodore and the victim himself was out of pocket to the extent of about $1,000.  There was a total loss and damage bill therefore of something of the order of almost $14,000. 

Not only was there an attempt to escape arrest, but the appellant gave no information as to the unrecovered goods or the identity of the other driver. 

The appellant is aged 19.  He has a number of previous convictions.  On 25 March 1997 at Holden Hill Magistrates Court he was charged with driving an unregistered vehicle, an uninsured vehicle, and disobeying a learner’s permit.  He was convicted on those counts and fined a total of $350, and he was disqualified from holding or obtaining a driver’s licence for seven days.  On 2 August 1995 in the Adelaide Children's Court he came before that court on charges of driving or using a motor vehicle without consent, failing to comply with a request to stop the vehicle, endangering life and driving without a licence.  In relation to using the motor vehicle without consent, the appellant was convicted and lost his licence for 12 months.  He was ordered to pay a total of $2,100 compensation.  For the endangering life charge, he was sentenced to six months detention which was suspended upon his entering into a 12 month obligation with a condition that he be under supervision.  In relation to the other charges he was convicted without penalty.  On 6 December 1993 in the Adelaide Children’s Court he came before the court on a charge of building breaking and felony.  Without conviction, he was placed on a $200 12 month obligation. 

The magistrate in this case recorded a conviction on all the counts and ordered the appellant’s imprisonment for a period of nine months.  That sentence was not suspended.  He disqualified the appellant from holding or obtaining a driver’s licence for two years.  Before the magistrate, the appellant contended that he had not been the person predominantly involved.  The magistrate noted that the appellant had not disclosed who his co-offender was, and in those circumstances he took the appellant’s version to the effect that he was tagging along, to use the magistrate’s phrase, “with a grain of salt”.  He considered it was nevertheless serious behaviour and there was no doubt of course that he had driven and stolen from the second vehicle and caused substantial damage to it.  The magistrate referred to the previous history of the appellant and the fact that there was no explanation for the disappearance of the golf clubs from the first vehicle. 

The grounds of appeal to this court as amended are as follows:

1. That the sentence imposed was manifestly excessive in all the circumstances; 

1. That the learned special magistrate erred in that he failed to act upon the version of the facts which was most favourable to the appellant; 

1. That the learned special magistrate erred in placing undue weight on the appellant’s failure to disclose the identity of the co‑offender;

1. That the learned special magistrate erred in that he failed to give sufficient weight, if any, to the appellant’s pleas of guilty;

1. That the sentencing discretion of the special magistrate miscarried and the sentence should have been suspended. 

The appellant’s counsel did not argue that the head sentence was inappropriate, his argument was that it should have been suspended. 

I leave aside for the moment ground one, that is that the sentence was manifestly excessive in all circumstances. 

In relation to ground two, that is that the magistrate erred in that he failed to act upon the version of the facts which was most favourable to the appellant, I am not aware of any authority which says that the court must act on the version of the facts most favourable under any circumstances to the appellant.  Otherwise, counsel could make any assertion apparently consistent with the facts and rely on that.  If circumstances are relied on by way of aggravation and those facts are not admitted or proved beyond reasonable doubt, then the court must, of course, act on the version most favourable to the accused: Law v Deed [1970] SASR 374. But that does not mean that when mitigating circumstances favourable to the appellant are relied on, and there is reason to question their genuineness, that that version has to be necessarily accepted. The learned magistrate properly regarded the appellant’s version with some scepticism, given that he had been less than frank about the identity of his co-offender and about the missing golf clubs, and that he had pleaded guilty to larceny of the golf clubs and had chosen not to disclose what had happened to them.

In those circumstances there was in my opinion no obligation to accept everything that was put to the learned magistrate in mitigation on submissions as to penalty.  Of course where facts do come to light that are acceptable and which put the offending in a different light from that which it might otherwise bear, the sentencing court must proceed on that basis, but it is not obliged to proceed on doubtful speculation in circumstances where not only did the appellant attempt to escape detection, but did not disclose some essential detail of the total offending, and in circumstances where there seems to have been at least some element of a concerted plan being executed by him with his co-offender.  In my opinion there is no substance in this ground. 

Ground three, that is the ground that the learned magistrate erred in placing undue weight on the appellant’s failure to disclose the identity of the co-defendant, I have some difficulty in accepting also.  I do not consider that the magistrate placed undue weight on that fact.  It was proper that it should be mentioned for two reasons.  The first is the reason for not proceeding to sentence the appellant according to the version of facts proffered by the appellant.  I have dealt with that in discussion of ground two.  Secondly, although the failure to disclose did not amount to and was not put, as I understand it, as amounting to aggravating circumstances justifying any increase in penalty beyond that appropriate for the offence, where the plea of guilty was relied on in mitigation, as it was here, such non-disclosure is a relevant matter in determining whether and to what extent there should be any discount on the appropriate penalty for cooperation. 

It is noteworthy that the plea of guilty was in the circumstances little concession from reality.  A finding of guilt was virtually inevitable on all but perhaps the larceny of the golf clubs.  The plea of guilty was therefore not worth a great deal, especially when accompanied by concealment of that nature.  Therefore, I do not consider that there is any substance in ground three. 

Ground four is the ground that the learned magistrate erred in that he failed to give sufficient weight if any to the appellant’s pleas of guilty.  It should be reasonably obvious from what I have said about ground three, that not a great deal of credit was to be scored by the plea of guilty in the circumstances which were described.  The magistrate did not identify in his sentencing remarks any particular discount for a plea of guilty, but he did plainly take into account the fact that he had pleaded guilty and that he admitted to a role in respect of both vehicles; indeed he said as much.  I am not sure that in the circumstances a plea of guilty would have reflected, as I say, substantial discount in any event, and I would not be prepared to act on that ground alone. 

Ground five relates to the failure to suspend the sentence.  These were serious offences.  They are offences which regrettably are all too prevalent.  Some of the goods stolen were not recovered.  The damage to the vehicles was substantial; the behaviour was quite irresponsible.  It seems that other sentences which have been imposed on the appellant in the past, including an obligation, a fine and a suspended sentence for similar types of offences had not really acted as much of a deterrent in the long term to the appellant. 

In my opinion, a significant element in the sentence therefore had to reflect the need for deterrence, both personal to the appellant, and in general terms to the community, for this type of offence, especially to contemporaries of the appellant.  Other methods of rehabilitation apparently have not worked in this case.  In my opinion an immediate custodial sentence was called for, and the learned magistrate was not in error in failing to suspend the sentence. 

That leaves ground one, that the sentence was manifestly excessive.  As I said before, the appellant is not challenging the length of the head sentence and there is not a great deal more that can be said in support of the appeal once those other grounds have been eliminated.  Suffice it to say that this was the second offence of this nature.  It required a minimum sentence of three months, and on this occasion there were multiple offences.  They were serious ones; there was substantial damage to vehicles, let alone the unrecovered property. 

The loss and inconvenience to members of the public for such offences is substantial.  There has been no indication as far as I can see of any genuine contrition.  The elements of punishment, community protection and deterrence carried substantial weight in the sentencing process, and parliament has made clear its intention as to the levels of penalty that should be imposed. 

This being the appellant’s first immediate custodial sentence, it was perhaps, or could be seen as being a heavy sentence.  But I am unable to say that it was outside the reasonable scope of the learned magistrate’s sentencing discretion, and in my opinion ground one cannot be made out either. 

It follows that the appeal must be dismissed.  The appellant was released on bail on 29 January pending the outcome of this appeal.  The appellant, in accordance with the bail agreement which he then entered into, will be required to present himself within 14 days at the Holden Hill Magistrates Court for the purpose of resuming the sentence.  The formal order of the court will be that the appeal is dismissed and that there be no order as to costs.  The bail agreement will then take care of itself.