Van Denham v Police No. Scciv-02-751

VAN DENHAM v POLICE
[2002] SASC 238
Magistrates Appeal (Extempore)

DUGGAN J. The appellant has appealed against the sentences imposed for a series of offences of dishonesty.
He appeared before the Christies Beach Magistrates Court on 23 May 2002 and pleaded guilty to the charges which I now summarise.
On 13 December 2001, the appellant entered the locked car yard of a car dealer at St Mary’s and stole three sets of tyres and mag wheels of the value of $10,800.
On 19 December 2001, he returned to the car yard and attempted to steal a mag wheel of the value of $630. However, he was observed by a security officer and was apprehended by the police. He was charged with being unlawfully on premises and attempting to steal the mag wheel. He was also charged with the larceny of a wheel locking nut of the value of $15 between 1 December 2001 and 20 December 2001.
There was a further offence of larceny committed on 28 February 2002. This was a shoplifting offence and the appellant was convicted of that offence, but no penalty was imposed.
On 29 November 2001, the appellant was sentenced to imprisonment for two months on a charge of unlawful possession. The sentence was suspended when he entered into a bond to be of good behaviour for a period of 18 months. The offences which are the subject of this appeal were committed during the period of the good behaviour bond. Indeed, as the learned magistrate pointed out in his sentencing remarks, the first offence took place only two weeks after the appellant entered into the bond.
The magistrate revoked the suspension of the sentence in relation to the previous matter and ordered that the sentence of two months’ imprisonment be served forthwith. He imposed one penalty for the offences committed on 13 December 2001. He said the sentences would normally merit a sentence of 12 months’ imprisonment, but he reduced this to 9 months by reason of the plea of guilty.
The sentence was ordered to be served cumulatively upon the sentence of 2 months, the suspension of which had been revoked. The magistrate then imposed a sentence of 14 months’ imprisonment for the offences committed on 19 December 2001 after observing that the offences would merit a sentence of 18 months if it had not been for the plea of guilty. He said nothing about penalty in relation to the larceny of the wheel nut and it seems that he decided to include it in the offences which he described as having taken place on 19 December 2001.
The sentence of imprisonment for 14 months was ordered to be served cumulatively upon the other sentences so that the total period of imprisonment was of 25 months. A non-parole period of 15 months was imposed.
The prosecutor advised the magistrate, during the sentencing submissions, that a security guard was present on 19 December, because there had been a number of offences committed on the premises in recent times. One of the offences had been committed on the previous evening.
In the course of his sentencing remarks, the magistrate said:
“I digress momentarily to note that the car yard had apparently been broken into on the preceding evening, 18 December 2001. There is no evidence linking you to that break, but between the two of us, I suspect it was probably you that did it.”
It was quite inappropriate for the magistrate to make this comment. His view as to whether the appellant committed this offence for which he was not charged was irrelevant to the sentencing process. He may not have taken it into account when fixing penalty, but when a remark of this nature is made, it gives rise to the possibility that this factor was wrongly taken into account and renders the sentence open to scrutiny.
There is a further matter which has been raised by counsel for the appellant. The offence of larceny committed on 13 December 2001 appears more serious than the offences committed on 19 December 2001, even if the offence of larceny of the wheel nut committed on another occasion is taken into account along with the two offences committed on 19 December. However, a sentence of 9 months was imposed for the earlier offences and a sentence of 14 months imposed for the later offences.
There is sufficient in what I have said to raise concern that the sentencing process miscarried. The appeal will be allowed. It is necessary for me now to revisit the penalties imposed by the magistrate.
I take into account the other circumstances put before the magistrate by Mr Tothill and the helpful submissions which he has made to me this morning.
The appellant is 26 years of age. He has been able to find employment since leaving school and I accept that during that period of time he has, for the most part, been quite industrious.
He has a history involving the commission of relatively minor offences. However, he does have a conviction for an offence of dishonesty which was recorded in 2000. And then there followed the commission of the unlawful possession for which he was sentenced to imprisonment, the sentence being suspended.
Mr Tothill has explained that he committed the present offences to finance his partner’s drug habit. The offences with which the appellant is charged are serious offences of dishonesty. They were planned and deliberate. On the first occasion property of considerable value was taken and the appellant then came back for more on a subsequent occasion. He had a previous warning by way of a suspended sentence and he seems to have ignored that experience.
I do not regard the commission of offences in order to finance his partner’s drug habit as being a mitigating factor.
The sentence of 18 months for the second lot of offences will be set aside and in lieu thereof the appellant will be sentenced to imprisonment for 7 months. Included in that group is the larceny of the wheel nut, along with the offences committed on 19 December. I have made a reduction of two months on what would otherwise have been a sentence of 9 months for these offences. I do that by reason of the plea of guilty.
There is no further adjustment required to the sentences. The appellant will be required to serve the period of two months, being the sentence previously suspended as from the date of revocation of the suspension, namely, 23 May 2002. The sentence of 9 months will be served at the expiration of that period and there will be a further cumulative sentence of 7 months after the period of 9 months is served.
The effect of this is that the appellant is required to serve a combined total of 18 months’ imprisonment from 23 May 2002. I set a non-parole period of 12 months to commence from the same date.
All other orders made by the magistrate will remain in force.

[2002] SASC 238

17 July 2002