Van Schaik v Police - [2018] SASC 130

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
VAN SCHAIK v POLICE
[2018] SASC 130
Judgment of The Honourable Justice Kelly (ex tempore)
5 September 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appeal against a sentence imposed by a Magistrate.
The appellant entered guilty pleas in the Magistrates Court to a number of offences. The Magistrate sentenced the appellant to 24 months imprisonment with a non-parole period of 19 months. The appellant complains that he was entitled to a sentencing discount.
Held per Kelly J, allowing the appeal and resentencing the appellant:
1) The Magistrate erred in failing to apply the relevant discount.
2) The appellant is resentenced to a period of imprisonment of 16 months with a non-parole period of 12 months backdated to 15 December 2017.
Criminal Law Consolidation Act 1935 Sections 41, 86, 134 and 144; Criminal Law (Sentencing) Act 1988 Section 10B; Summary Offences Act 1953 Section 41, referred to.

VAN SCHAIK v POLICE
[2018] SASC 130

HER HONOUR: The appellant appeals a sentence imposed by a Magistrate in the Port Adelaide Magistrates Court on 25 June 2018. The appellant requires an extension of time within which to file the notice of appeal. That application is not opposed and accordingly the appellant is granted until 1 August 2018 to file the notice of appeal.
He has been charged on information originally with 13 counts of dishonesty, interfering with a motor vehicle without consent, being on premises for an unlawful purpose, and driving a motor vehicle without consent. He first appeared in the Court on 18 January 2018 and on two subsequent occasions the Court was informed that there were ongoing discussions.
On 25 June 2018 the appellant entered guilty pleas to a number of counts and the prosecution then withdrew the remaining counts.
The Magistrate heard submissions on that date and sentenced the appellant then in respect of guilty pleas to one count of using a motor vehicle without consent contrary to s.86A of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”), two counts of dishonestly making off without payment contrary to s.144 of the CLCA, three counts of theft contrary to s.134 of the CLCA, one count of unlawful possession contrary to s.41 of the Summary Offences Act1953 (SA), one count of interfering with a motor vehicle without consent contrary to s.86A of the CLCA, one count of being on premises for an unlawful purpose contrary to s.17 of the Summary Offences Act 1953 (SA) and one count of driving a motor vehicle without consent again contrary to s.86A of the CLCA.
The Magistrate sentenced the appellant to 24 months imprisonment with a non-parole period of 19 months backdated to 15 December 2017.
He also imposed a mandatory 12 month disqualification of the appellant's driver's licence in relation to those counts involving interference with a motor vehicle.
The appellant has appealed on one ground only, that the Magistrate failed to apply an appropriate reduction for the appellant's plea of guilty.
The appellant's guilty pleas were entered more than four weeks after the appellant's first appearance on 18 December 2017 but before the commencement of the trial as no date for trial was ever set. In those circumstances the discretion under s.10B(2)(b)(ii) of the Criminal Law (Sentencing) Act 1988 (SA) to award a discount of up to 30% was enlivened. In his sentencing remarks the Magistrate commenced by stating: 'I have had regard to all of those matters and I give the defendant credit for his pleas of guilty.' At the conclusion of the sentencing however counsel for the appellant reminded his Honour that he had not applied a discount to which the Magistrate responded: '
I do not consider that there is a discount. He did not plead within the prescribed periods. I take into account the lasting impact that the defendant’s behaviour had upon and the traumatic impact it must have had upon both the mother of these children and the children themselves, and I accept that they are still suffering consequences of the defendant’s behaviour .
Even though the Magistrate's comments were to the contrary it is plain from that exchange that the Magistrate was of the view that no discount was available to the appellant in the circumstances of this case. The Crown Solicitor has conceded this was in error. Accordingly there was no dispute on appeal that the error enlivens the discretion in this Court and requires this Court to resentence.
The factual circumstances of the offending in relation to the motor vehicle offences are quite serious.
On 8 November 2017 the owner of a Ford Territory vehicle drove into her premises at Rosewater and got out of the vehicle to remove some rubbish bins, leaving her two young children aged two and five years in the vehicle with the engine running and the driver's door open. At that moment the appellant ran to the vehicle, got into the driver's seat and began to reverse out. The woman banged on the window yelling that her children were in the vehicle, and when the appellant realised the children were in the car he immediately got out and ran to another vehicle. He then yelled out to the woman to give him the keys, grabbed a set of keys and then ran off again.
This offending has had a very bad effect on the victim. I regard it as the most serious aspect of the appellant's offending.
Between 11 and 12 November 2017 another vehicle was stolen from another premise. The appellant was captured on CCTV at a service station in Blair Athol driving a vehicle, filling it up with petrol and driving off without paying.
In relation to yet another vehicle on 23 November 2017 the appellant was captured on CCTV removing both registration plates and later that day was captured on CCTV at a service station in Wingfield driving a vehicle with stolen registration plates affixed. Again he filled up with petrol and drove off without payment.
In relation to the counts of theft the appellant admitted stealing a number of motorcycles from different premises around Adelaide in December 2017. The offending spanned a six week period of time in November-December 2017. As such it comprised a course of conduct. However the seriousness of the offending as I said earlier was aggravated by the presence of the children in the first vehicle he attempted to steal and his subsequent opportunistic targeting of the mother of those children to obtain the keys to another vehicle.
The appellant has an extensive criminal record as an adult for dishonesty, theft and other offences of violence, including one conviction for driving dangerously to escape police pursuit. He has served several terms of imprisonment.
In all of the circumstances after applying a discount of 30% pursuant to s.10B(2)(b)(ii) of the Criminal Law (Sentencing) Act 1988 (SA), I consider that the appellant should serve a head sentence of 16 months.
I impose a non-parole period of 12 months.
The disqualification will be the same as that imposed by the Magistrate for each of the offences of illegal use and illegal interference cumulative.
The head sentence of 16 months and the non-parole period of 12 months will be backdated to 15 December 2017.