VENUS v Police

[2005] SASC 406

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

VENUS v POLICE

Judgment of The Honourable Justice Perry (ex tempore)

26 October 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Following the appellant's plea of guilty to multiple offences, the magistrate imposed a single, global sentence of imprisonment covering all of the offences - the penalty for some of the offences was limited to a fine - held on appeal that where a global sentence of imprisonment is imposed under s 18A of the Criminal Law (Sentencing) Act 1988, each individual offence must be punishable by a term of imprisonment - appeal allowed, sentence quashed and appellant re-sentenced.

Criminal Law (Sentencing) Act 1988 s 18A and s 58(1)(c)(ii), referred to.
Hermel v Police (2000) 76 SASR 336, considered.

VENUS v POLICE
[2005] SASC 406

Magistrates Appeal:  Criminal

1. PERRY J.  (ex tempore)     The appellant appeals against the penalty imposed upon him in the Magistrates Court sitting at Adelaide on 19 August 2005 following his plea of guilty to a number of offences.

2. In purported exercise of his power under s 18A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) the sentencing magistrate imposed a single penalty, namely, imprisonment for one month, suspended upon the entry by the appellant into a bond to be of good behaviour for one year in the sum of $100, subject to a number of conditions as to supervision and the like, and including a provision for the appellant to perform 160 hours of community service to be completed in one year.

3. In his amended notice of appeal the appellant complains that the sentence is manifestly excessive and raises a number of other grounds, the most important of which for present purposes is that the magistrate erred in sentencing the appellant in the way that he did, pursuant to s 18A of the Sentencing Act.

4. At the time when he was sentenced the appellant was before the court to answer to what might be described as three substantive offences.

5. The first was that on 6 September 2003 he urinated in a public place. The circumstances were that on that date he urinated into a rubbish bin in the foyer of Rundle Mall Plaza building on Stephens Place at Adelaide.

6. The second substantive offence was damaging property, committed on 23 November 2004. The circumstances of that offence were that he smashed a glass sliding door at a property at Ingle Farm, causing damage in the amount of $445.

7. The third substantive offence was dishonestly taking property without the owner’s consent. That offence was committed on 21 November 2004, when the appellant removed two candles from a shelf in the Harris Scarfe department store at Adelaide and was seen to carry them through the store and out into the street.

8. As well as his plea of guilty to those three offences the appellant pleaded guilty to an allegation that he had breached three bonds, all of which had been entered into when he was before the Magistrates Court on 5 June 2003.

9. All three bonds were for a period of 18 months in the sum of $500, on condition that the appellant be of good behaviour and that he come up for sentence if called upon. A number of other conditions as to supervision and monitoring for alcohol consumption and other matters were also imposed.

10. In addition he was ordered to perform 96 hours of community service.

11. It is unnecessary to go into the facts giving rise to the offences with respect to which the three bonds were imposed, except to say that one bond related to a number of traffic offences all committed on 7 December 2002 which included driving with excess blood alcohol; driving without a licence; and driving an uninsured and unregistered vehicle.

12. Another bond was imposed with respect to a number of other precisely similar traffic offences committed on 10 December 2002.

13. The third bond was imposed with respect to two counts of larceny and one count of being unlawfully on premises.

14. In addition to the two bonds on the traffic matters, he was subjected to a total period of licence disqualification of 3½ years dating from 5 June 2003.

15. I can come quickly to the main point involved in this appeal. It is illustrated in a table which is an appendix to the outline of the arguments adduced by counsel for the appellant.

    Type of offences and the corresponding maximum penalties for which the appellant was sentenced and given a single penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988.

Offence	Act	Penalty
Urinate in a public place	S 24 Summary Offences Act 1953	FINE $250
Drive vehicle with expired or false registration	S 53(1) Motor Vehicles Act 1959	FINE $250
Give an improper stop signal	S 53(1) Australian Road Rules	FINE $1250
Drive unregistered motor vehicle on road	S 9 Motor Vehicles Act 1959	FINE 2 x 12 month registration fee
Drive uninsured motor vehicle on road	S 102 Motor Vehicles Act 1959	FINE $1250
Drive vehicle without a licence	S 74 Motor Vehicles Act 1959	FINE $1250

Drive with excess blood alcohol	S 47b Road Traffic Act 1961	Both Category 3 first offence FINE not less $700 not more $1200 minimum 12 month licence disqualification
Damage Property	S 85(3)(a)(iii) Criminal Law Consolidation Act 1935	Imprisonment 2 years
Dishonest take property without owners consent	S 134 Criminal Law Consolidation Act 1935	Imprisonment 10 years
Larceny	S 131 Criminal Law Consolidation Act 1935 (repealed)	Imprisonment 5 years
Unlawfully on premises	S 17(1) Summary Offences Act 1953	FINE $2500 or imprisonment 6 months

1. It will be seen from the table that most of the offences involved a penalty in the form of fines of various amounts. Imprisonment was only an option with respect to the offences of damaging property, dishonestly taking property without consent, larceny and being unlawfully on premises.

2. Section 18A of the Sentencing Act provides:

   If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.

3. It has been held by Duggan J in the case of Hermel v Police[1] that where a global sentence of imprisonment is imposed under s 18A, each individual offence must be punishable by a term of imprisonment. An offence punishable by a fine only, cannot be one of the offences in respect of which a term of imprisonment is imposed.

   [1] (2000) 76 SASR 336.

4. I accept the authority of that decision, as does counsel for the respondent Mr Stratton-Smith. Very properly, he concedes that in view of the principle which finds expression in Hermel v Police, the sentence under appeal cannot stand. It follows that the appeal must be allowed and the sentence quashed.

5. I have been invited to re-sentence the appellant for all of these various offences. I must say that this is not an easy exercise, given the complexity of the number of offences and the fact that a good proportion of the disqualification which was imposed upon him, namely 2 years and 3 months out of the 3 years 6 months, has been served, and bearing in mind also that he has performed the full 96 hours of community service which he was ordered to complete.

6. I have reached the view, consistently with the submission put to me by Mr Blake of counsel for the appellant, that in all the circumstances, at least with respect to the two bonds imposed with respect to the various traffic offences, it is proper for me to exercise my discretion under s 58(1)(c)(ii) of the Sentencing Act and to refrain from taking any action in respect of the admitted failure by the appellant to comply with the conditions of those bonds. In my view, there are proper grounds for taking that course, given the community service which he has served and the extent of the time over which the disqualification has so far operated.

7. This means that he is still subject to the remaining obligations under those bonds, which will include an obligation to serve out the remaining period of disqualification.

8. However, I do not see that there are proper grounds for refraining from taking action with respect to the bond imposed on the larceny counts and the count of being unlawfully on premises. It seems to me that in the circumstances I should re-sentence the appellant for those offences. In doing so, I think it proper to impose a single sentence under s 18A of the Sentencing Act which will include the sentence which I consider to be appropriate for those offences, together with what I have described as the three substantive offences now in question.

9. In my view, for all of those offences it is proper to give the appellant the benefit of a further bond for a period of 18 months from the date upon which he enters into the bond, in the sum of $500, to be of good behaviour and subject to further conditions as follows.

   [FOLLOWING FURTHER DISCUSSION WITH COUNSEL]

10. PERRY J.              The conditions will be:

    1.To be of good behaviour and comply with all of the conditions of the bond.

    2.To come up to sentence if called upon.

    3.To be under the supervision of a probation officer/community corrections officer for a period of 18 months, and obey all lawful directions given by the probation officer/community corrections officer.

    4.To report forthwith upon signing the bond at the office of the Department of Correctional Services at Courts Unit, Adelaide Magistrates Court.

    5.To reside where directed by the supervising officer.

    6.At the direction of the community corrections officer to submit to assessment for drug or alcohol dependence or abuse, and undergo such counselling and/or treatments and participate in such courses or programmes as may from time to time be recommended by a suitably qualified person, and be available to him.

    7.At the direction of the community corrections officer, to submit to psychological or psychiatric assessment and undergo such counselling and/or treatment as may from time to time be recommended by a suitably qualified person, and be available to him.

    8.At the direction of the supervising officer to attend, participate in and complete such counselling, courses of programmes including grief counselling as the supervising officer may from time to time nominate.

11. Those conditions replicate the conditions which were imposed on the previous bonds. This means there will be an overlap to the extent that those bonds will still continue to run for the balance of the period involved, but as the conditions are the same there should be no tension between the service under the bond upon which he is now to be released, and the earlier bonds.

12. I direct that the appellant attend at the Magistrates Court sitting at Adelaide on or before Friday 4 November 2005 for the purpose of entering into a bond in those terms.

13. There will be no order as to costs.