Wayne Anthony Coombs v SA Police No. SCGRG 96/1489 Judgment No. 5740 Number of Pages 7 Criminal Law

[1996] SASC 5740

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law - breaking and entering - penalty - the appellant, a single man aged 27 years, was convicted of multiple counts of breaking and entering houses and also with obtaining money by falsely pretending to dealers that the stolen goods were his - long history of anti-social behaviour and drug abuse - held by reference to the principle of totality, that an aggregate sentence of four years imprisonment was excessive - reduced on appeal to three years with a non-parole period of two years - appeal against the refusal of the sentencing Magistrate to suspend the sentence dismissed.

Criminal law - sentencing - intemperate remarks by magistrate - during the course of the hearing and before sentencing the defendant, the sentencing Magistrate delivered a broadside against him, suggesting that the victim of a breaking and entering charge would have been "perfectly entitled" to blow the defendant away with a shotgun, that he was "evil", warranted no sympathy and made other remarks expressed in immoderate and extreme language - observations as to the desirability of maintaining decorum, preserving the dignity of the proceedings, and refraining from using the occasion of sentencing an offender as an opportunity to embark on a process of sounding off to the world at large about perceived evils in the community or other such issues.

HRNG ADELAIDE, 6 August 1996 #DATE 6:8:1996 #ADD 17:9:1996

Counsel for appellant:     Mr C Kourakis

Solicitors for appellant:    Legal Services Commission of
   South Australia

Counsel for respondent:     Ms R Gray

Solicitors for respondent: DPP (SA)

ORDER
Appeal allowed for the purpose of varying the terms of imprisonment.

JUDGE1 PERRY J The appellant was charged in the Magistrates Court sitting at Elizabeth on two informations.

2. The first alleged five counts. One of them, a receiving count, was withdrawn. He pleaded guilty to the other four counts on that information. The first count alleged that on 7 November 1995 at One Tree Hill he broke and entered a house from which he stole property valued at over $6,000, including a video cassette player, jewellery, watches and other electronic and fishing equipment. The other three counts relate to his conduct in obtaining money from various secondhand dealers by falsely pretending that part of the proceeds of the break and entering count were his own property.

3. The other information alleged two counts, as to both of which the appellant pleaded guilty. The first was an offence of breaking and entering a house at Angle Vale on 21 November 1995 and stealing various items, including a camera and a stereo of the value in excess of $1,000. The second count, which occurred on the same occasion, was a charge of assaulting a woman who was the occupier of the house.

4. On the information alleging the breaking and entering and larceny and obtaining by false pretences, the learned sentencing magistrate sentenced the appellant to one penalty, namely two years imprisonment. On the other complaint alleging the breaking and entering and assault he imposed a further term of two years imprisonment cumulative on the other sentence. With respect to the total head sentence of four years imprisonment he fixed a non-parole period of two years and eight months. In addition, he made an order for payment of compensation, but that is not the subject of appeal.

5. In his notice of appeal to this court the appellant complains that the gaol terms and the non-parole period are manifestly excessive; that the learned sentencing magistrate placed excessive weight on information contained in a medical report to the effect that the appellant had sold drugs in the past; and that the learned sentencing magistrate erred in failing to suspend the sentence.

6. The appellant is a young man, single, aged at the time 27 years. He was then living with his parents. He subsisted on unemployment benefits. The learned sentencing magistrate had the benefit of a lengthy psychiatric report which confirmed that the appellant had a long history of anti-social behaviour and multiple drug abuse since his childhood. It appears, however, that the main component in his record of prior offending occurred while he was a juvenile. It further appeared that between the date of the offending in question and his appearance in court he had moderated his drug abuse somewhat and he had kept to a course of drug treatment.

7. The psychiatric report concluded that the appellant's offending behaviour appeared to be related to the need to fund his drug habit. The psychiatrist said, with respect to future drug taking and future offending, "Unless the psychiatric problems are addressed as well as receiving formal drug counselling and rehabilitation"the prognosis must be guarded.

8. For reasons which are obscure to me, the juvenile record was apparently not before the learned sentencing magistrate, but his adult record was. The only relevant offences as an adult were breaking and entering offences upon which he was sentenced in 1987. There were several counts on which he received suspended sentences totalling 21 months imprisonment.

9. I have had the benefit of affidavits both from the Prosecutor responsible for presenting the matter in the court below and from Ms O'Connor, counsel who appeared for the appellant before the learned sentencing magistrate.

10. The breaking offence which occurred in association with the assault, involved an occasion upon which the appellant was surprised in a dwelling house after he had entered it, being confronted by the woman who lived there and her son. The appellant was making his way out of the premises carrying a stereo. He struck or pushed the stereo against the woman before dropping it. But it appears from one of Ms O'Connor's affidavits that it is accepted by the prosecution that that was an accidental touching. Be that as it may, in another part of the house he threatened the householder and her son with a chair which he held up as some sort of weapon, although it seems clear enough that no actual contact was made during the course of that incident.

11. With respect to the other offences, the property was taken from a house into which the appellant gained access by breaking a rear window while the occupants were not at home. The appellant then went to several dealers where he succeeded in obtaining money for some of the goods which he had stolen.

12. After referring to the circumstances, the learned sentencing magistrate said:
    "The only appropriate penalty is imprisonment, the only
    issue to concern myself (with) is whether that penalty of
    imprisonment should be suspended. Quite frankly, that
    thought simply does not even cross my mind, given the
    serious nature of the offences. The only real issue in my
    mind is what, if any - and I emphasise if any - non-parole
    period I should set."

13. The learned Special Magistrate then went on to refer to the appellant's history of drug taking, following which he imposed the sentences now under appeal.

14. Mr Kourakis, who appeared for the appellant, submitted that in each instance the sentence of two years was excessive, having regard to the circumstances of the appellant and the two offences. In the course of doing so he referred to the well known decision of this Court in R v Halse (1985) 38 SASR 594. In that case the then Chief Justice, King CJ, indicated: " ... the norm for single breaks committed by previously imprisoned offenders should be in the region of 12 to 18 months."

15. That case was decided in 1985. While I am of the view that it no longer can be regarded as a reliable indication of the sentencing tariff to be applied, I think it more appropriate that the Court of Criminal Appeal should reconsider the matter. On the other hand, I must say that there is a tendency to treat the suggested tariff as some sort of maximum for the offence, and to graduate penalties within the limits indicated in the passage to which I have just referred. In fact, the maximum penalty for the offence is eight years and there will be offences which will warrant the imposition of a penalty up to eight years. The indication of the tariff is not to be taken as some sort of amendment to the Act inserting some new maximum penalty. That penalty is at large up to the maximum of eight years. There will be cases where the imposition of a sentence closer to the maximum rather than to the minimum will be appropriate.

16. Be that as it may, it does seem to me that the sentence imposed in this case for these particular offences, when they are considered having regard to the principle of totality, did result in an overall sentence which was out of proportion to the total offending involved. It seems to me that although the individual sentences of two years imprisonment viewed separately might be thought to be unexceptional, the overall total of four years is sufficiently disproportionate to amount to a total sentence which is manifestly excessive.

17. In the circumstances I think it proper to quash the imposition of the two terms of two years imprisonment, and substitute in each case under s18a of the Criminal Law (Sentencing) Act 1988 a sentence of 18 months imprisonment. The substituted terms of imprisonment will remain cumulative on each other, with the result that the total head sentence becomes one of three years. I would fix a non-parole period of two years.

18. Mr Kourakis put an argument in support of the contention that the learned Special Magistrate erred in failing to suspend the sentence.

19. In support of that contention he referred to part of the sentencing remarks of the learned sentencing magistrate referred to in one of Ms O'Connor's affidavits in which she sets out some comments made by the learned sentencing magistrate which do not appear in the printed transcript of his remarks on sentence.

20. They include the following (the notes are obviously not complete, which is no reflection on Ms O'Connor):
    "You armed yourself with a weapon and threatened to cause
    ... injuries. Had they blown you away with their shotgun
    they would be perfectly entitled to. Conversely how many
    criminals like you are armed with a firearm? You bashed her
    with her stereo and attacked her with a chair. You only
    raised the chair above your head ... this makes you evil.
    This is why the punishment must be double. Nothing about
    your life warrants any sympathy at all. Sure, you were
    considered the black sheep of the family. You had a
    difficult relationship with your father and a good
    relationship with your mother and an average student at
    school. You got by ... you rebelled and were truant and
    disrupted behaviour. You always had regular work ... to
    show unconscionable attitude towards the community. For
    years you have funded your drug habit by dealing in drugs
    and now you want my sympathy. How many kids are dead? How
    parents have lost opportunity. You want my sympathy?
    Apparently you expressed some remorse. No, Mr Coombs, it is
    about time the law dealt with you with its own weight.
    Stealing thousands and thousands with ... homes when you
    have the temerity to attend at our home. (You need to be
    dealt with) with as much severity as provided."

21. There is no suggestion that, allowing for the imperfections in the contemporaneous note taking, the above comments have not been accurately reported.

22. When he indicated, as appears from that passage, that the appellant had dealt in drugs, he was interrupted by the appellant. The latter said that this was a mistake, whereupon the learned sentencing magistrate indicated that he was only quoting from the psychiatric report

23. Be that as it may, some of the remarks made by the learned sentencing magistrate were unfortunate. The occasion for sentencing an offender should not be regarded by a magistrate as an opportunity to embark on a process of sounding off to the world at large about perceived evils in the community or other social issues. While it may be perfectly in order on occasions to give a defendant, in plain language, a dressing down, as it were, some sense of decorum must be preserved. Any such remarks should be couched in terms which maintain the dignity of the proceedings. Some of the remarks in question would have been best left unsaid, and it would have been better for the learned sentencing magistrate to have confined his observations to the case in hand and couched them in more appropriate language

24. This is not the first time upon which I have come across instances where this magistrate has been responsible for intemperate outbursts of this kind. The stage has well and truly been reached where he must heed the concern expressed by this Court that he should continue to conduct proceedings before him in this fashion.

25. Having said that, the mere use of inappropriate language would not justify interference with the sentence. But looking at the matter overall, I am not satisfied that the learned sentencing magistrate did apply his mind in a satisfactory fashion to the question of suspension. In the interests of the appellant I have reconsidered that aspect of the matter.

26. The sentence might be suspended if there was good reason for doing so. I have previously indicated that there should be no attempt to categorise the circumstances in which it might be thought appropriate to suspend the sentence, and that the words of s38 of the Criminal Law (Sentencing) Act 1988, and in particular the words "good reason" should be left to speak for themselves.

27. In this case Mr Kourakis suggested that good reason to suspend existed in the circumstance that the appellant had kept to the bond imposed in 1987 and that he had undertaken a course for the drug treatment, albeit since the present offences came to light, and that the indications were that his turbulent teenage years were something which he had put behind him. In my opinion those matters considered in perspective do not amount to a sufficient reason to warrant suspension of the sentences in question.

28. In the first place, there were multiple offences, one group of offences occurring a fortnight apart from the other group, and the amount of property involved with the first group of offences being very substantial. With respect to the break and entering associated with the assault charge, this was accompanied by threats of violence, which must be taken to be an aggravating circumstance. Furthermore, the prognosis offered by the psychiatrist does not provide a satisfactory basis upon which to regard the appellant as an appropriate candidate for a suspended sentence. The offences were serious; the appellant had a prior record, albeit dated; and, generally speaking, multiple offences of breaking and offending and entering do not warrant a suspended sentence, particularly in the case of an offender with a prior history of offending. I would, therefore, decline to exercise the discretion to suspend. The appeal will be allowed for the purpose of varying the terms of imprisonment imposed on each information to 18 months in each case, with a non-parole period of two years.

29. The varied sentence will run from the date upon which the appellant commenced serving the sentences imposed by the learned magistrate.

30. The orders for compensation and other orders made by the learned Special Magistrate are confirmed.