Wakely v Police No. Scciv-02-515

WAKELY v POLICE
[2002] SASC 196
Magistrates Appeal

GRAY J This is an appeal against a sentence imposed by a magistrate.
Background
The appellant, Brad Alan John Wakely, was charged with attempted robbery, attempted larceny and assault.[1] On 4 April 2001 he attempted to steal a handbag from an elderly woman at a suburban shopping centre. He pleaded guilty to the second and third counts. The first count was dismissed.
[1] The complaint was in the following terms:
The learned magistrate (“the magistrate”) outlined the circumstances of the offending:
“The defendant [aged 22 years] went to the Port Canal Mall, which is one of the shopping centres in the Port Adelaide area. Whilst walking through the mall he saw an elderly couple Mrs Audrey Garland aged 78 years and Mr Ernest Garland aged 80 years sitting at a table at a café in the mall. The defendant impulsively approached them, asked them for the time, and then attempted to grab Mrs Garland’s handbag and run away with it in order the search it (sic) and obtain money. Mr Garland saw what was happening and grabbed the other side of the handbag. The defendant continued to pull at the handbag and this had the effect of causing Mr Garland to fall onto the ground. The defendant continued to pull at the handbag and that also caused him to drag Mr Garland along the ground pulling Mr Garland into tables and chairs. Eventually, the defendant must have seen that it was futile to attempt to wrestle the handbag away from Mr Garland and he desisted and ran from the scene.”
Counsel for the appellant relied on medical reports. Those reports addressed the appellant’s mental state at the time he committed the offences and subsequently. A psychiatrist was of the view that the appellant would have known the nature and quality of his actions. However, counsel submitted that his behaviour was impulsive, the appellant was remorseful and his troubled past provided an explanation for his conduct.
Counsel for the Crown emphasised the effect of the crimes on the two elderly victims. The offences occurred during the day, in a crowded shopping mall where the victims had felt safe. The seriousness of the offences was highlighted by their victim impact statements which outlined not only the physical injuries they suffered in the incident, but their ongoing emotional sequelae.
The magistrate concluded:
“… I find that there is no getting around the fact that this was a deliberate attack by the defendant on an elderly couple in a public area for the purpose of taking money with which to buy drugs. It has had very serious consequences for the victims of the offence. The fact that it was likely to have serious consequence for the victims of the offences could have been readily foreseen and anticipated by the defendant.
...
In all the circumstances I record a conviction on counts 2 and 3 and impose a sentence of imprisonment of 10 months. I order the defendant to serve a term of imprisonment of 3 months to commence as of today’s date and that pursuant to section 38(2a) Criminal Law (Sentencing Act) 1988. I order that the defendant be released upon him entering into a bond in the sum of $300, the bond to be for a period of 7 months, suspending the remaining term of 7 months imprisonment. I order that as a condition of that bond the defendant be placed under the supervision of a community corrections officer and obey that officer’s reasonable directions. I order the defendant to undertake psychiatric assessment and counselling as directed. I also order that the defendant undertake programs as directed. I further order that the defendant undertake alcohol assessment and counselling as directed. I order the defendant to report within two working days of his release from custody to the Department of Correctional Services at Port Adelaide.”
Issues on the Appeal
Counsel for the appellant’s complaints were numerous. It was said that the magistrate did not give adequate consideration to the guilty pleas. He placed too much emphasis on the need for deterrence. Insufficient regard was had to the personal circumstances of the appellant. More weight should have been given to his youth, mental condition and lack of criminal record. The magistrate erred in not suspending the term of imprisonment. The penalty imposed was manifestly excessive. It was further submitted that the magistrate misconstrued or alternatively failed to have proper regard to the terms of section 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”).
Counsel for the Crown submitted that the sentence was well within the magistrate’s sentencing discretion. It was accepted that no express reference had been made to the pleas of guilty or to any discount for those pleas. However it was said that an experienced magistrate would not have overlooked the obligation to make an appropriate discount. It was contended that the magistrate’s failure to refer to the guilty pleas or identify the discount given did not of itself amount to an error of law. It was said that the lenient sentence imposed indicated that regard had been given to the pleas. It was accepted that the magistrate’s paraphrase of section 38(2a) of the Act was inaccurate. However it was said that the sentencing remarks should not be construed with the same particularity as a conveyancing document[2]. Overall the sentence was appropriate.
[2] Giersch v Pennicott (1977) 15 SASR 300 at 305; Jones v Morley (1981) 29 SASR 57 at 67
Discussion of the Issues
The Gravity of the Offence
These offences were undoubtedly grave. The magistrate was correct in concluding that the gravity of the conduct, particularly having regard to the age of the victims called for a custodial sentence. At least some part of that sentence should take immediate effect. To confront and attempt to steal from an elderly couple during the day in a shopping mall is a serious matter. Although the magistrate accepted that the appellant’s conduct was impulsive, he concluded that it was deliberate. The appellant’s conduct represented a serious invasion of the rights of elderly persons to feel safe in public places. The fact that the assault gave rise to physical and emotional injuries is a matter of aggravation.
Pleas of Guilty
It is settled that it is important to recognise the benefits that accompany a plea of guilty and make an appropriate reduction to reflect those benefits. It is also important that magistrates disclose the extent of the reduction given.[3] The magistrate’s considered sentencing remarks do not expressly refer to the pleas of guilty or that discount was made in that regard. However, in this case it can be inferred from the sentence that the magistrate had regard to the pleas of guilty and that probably an appropriate reduction was made. It is unnecessary to finally resolve this issue given that other error is discernable.
3 R v Wall & Richards (2000) 209 LSJS 135 at 139 - 142; R v Place (2002) 219 LSJS 105 at 122
Misconstruction of Section 38
Section 38 of the Act relevantly provides:
“(1) Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(b)     to comply with the other conditions (if any) of the bond.
(2) A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.
(2a) However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order—
(a)     direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b)     suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
(2b) The term of a bond under subsection (2a) cannot extend beyond the period of the suspended imprisonment.
...
(3)    If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of the imprisonment is, on the expiration of the bond, wholly extinguished.”
The magistrate specifically addressed section 38(2a) in his reasons. Having identified a number of competing considerations and the need to balance them he continued:
“I have decided to utilise the power provided for in Section 38(2a) of Criminal Law (Sentencing Act) 1988, namely to impose a term of imprisonment of more than 3 months, but less than 12 months and require the defendant to serve a portion of that term in prison and then be released on a bond which provides for supervision and requirements as to psychiatric intervention. It seems to me that this option meets the particular requirements of sentencing in this case in that the sentence imposed on the defendant will be not too crushing a blow but sufficient to remind him that he must not engage in serious criminal acts against elderly people and also it will provide for his ongoing rehabilitation back into the community.”
The magistrate appears to have construed section 38(2a) as providing the power to impose a term of imprisonment of more than three months but less than 12 months and to require a defendant to serve a portion of that term in prison but then be released on a bond. Section 38 does not empower the court to impose a term of imprisonment. The power to imprison is found elsewhere.[4] The powers contained in section 38(2a) are conditional on a period of imprisonment being imposed pursuant to some other power. The period of imprisonment contemplated by section 38(2a) must be more than three months but less than 12 months. The jurisdiction conferred by section 38(2a) is enlivened on the fixing of the term of imprisonment. The court may direct that a defendant serve a period of not less than one month of the sentence in prison and then suspend the remainder on condition that the defendant enter into a bond.
[4] Sections 39 and 131 of the Criminal Law Consolidation Act 1935 (SA).
The magistrate’s construction was incorrect. He erred in his approach. Error has been demonstrated in the sentencing process. This error may explain why the magistrate sentenced Mr Wakely to serve an immediate custodial term of three months rather than a shorter term. It is necessary to set aside the orders of the magistrate and re-sentence the appellant. It is appropriate that this court perform that task.
Re-sentence
The appellant had no prior criminal antecedents other than some minor traffic violations. The appellant’s personal antecedents and medical and psychiatric condition offer some explanation for his behaviour although they provide no excuse. It is appropriate to exercise power under section 38(2a) and impose the minimum immediate custodial term. The other orders made by the magistrate are appropriate and consequently I make the same orders in re-sentencing.
A sentence of imprisonment of 10 months is imposed. The appellant is directed to serve one month of the imprisonment in prison. The remainder of the sentence, namely 9 months is suspended on condition that he enter into a bond.
The terms of the bond are that the appellant:
-       be of good behaviour for a period of 8 months.
-       undergo random breath testing/urine analysis.
-       obey all lawful instructions of his correctional services officer including attending and participating in such rehabilitation programs as directed by that officer.
The appellant has served one month in custody prior to being released on bail pending appeal. Accordingly the sentence is backdated to commence on the day on which he was first taken into custody.
JUDGMENT CITATIONS LISTED AS THEY APPEAR IN THE JUDGMENT
1 The complaint was in the following terms:
“On the 4^th day of April 2001 at Port Adelaide in the said State attempted to rob [EWG].
Sections 155 and 270a of the Criminal Law Consolidation Act, 1935.
On the 4^th day of April 2001 at Port Adelaide in the said State attempted to steal a shoulder bag and contents of value the property of [AG].
Sections 131 and 270a of the Criminal Law Consolidation Act, 1935.
On the 4^th day of April 2001 at Port Adelaide in the said State assaulted [EWG].
Section 39 of the Criminal Law Consolidation Act, 1935.”
2 Giersch v Pennicott (1977) 15 SASR 300 at 305; Jones v Macleay (1981) 29 SASR 57 at 67
3R v Wall & Richards (2000) 209 LSJS 135; R v Place (2002) 219 LSJS 105 at [46]
4 Sections 39 and 131 of the Criminal Law Consolidation Act 1935 (SA).

“On the 4^th day of April 2001 at Port Adelaide in the said State attempted to rob [EWG].
Sections 155 and 270a of the Criminal Law Consolidation Act, 1935.

On the 4^th day of April 2001 at Port Adelaide in the said State attempted to steal a shoulder bag and contents of value the property of [AG].
Sections 131 and 270a of the Criminal Law Consolidation Act, 1935.

On the 4^th day of April 2001 at Port Adelaide in the said State assaulted [EWG].
Section 39 of the Criminal Law Consolidation Act, 1935.”

[2002] SASC 196

28 June 2002