West v Police No. Scciv-01-35

WEST v POLICE
[2001] SASC 46

Magistrates Appeal (Criminal)

OLSSON J

Introduction

On 29 November 2000 the appellant appeared before a stipendiary magistrate for sentence in relation to a series of matters, none of which were contested.
The learned magistrate elected to impose separate sentences in respect of each of them. The appellant now appeals against the sentences imposed in relation to two convictions on the grounds that they are manifestly excessive. There is also an appeal against the refusal of the learned magistrate to suspend them and also an order made for revocation of the suspension of an earlier custodial sentence imposed on the appellant.

The offences

The first of the convictions in question relates to a charge that, on 15 October 1999 at Morphett Vale, the appellant knowingly had in her possession a prohibited substance, namely amphetamine, contrary to the provisions of the Controlled Substances Act, 1984.
The second relates to a charge that, on 5 January 2000 at Morphett Vale, the appellant knowingly had in her possession a drug of dependence, namely amphetamine.
The address of the appellant nominated in the summons in this matter is a Housing Trust home, which the appellant was occupying with her de facto husband Michael Reed and a six year old child of that relationship.
There was no dispute as to the relevant facts. At about 1.50 pm on 15 October 1999 police attended at the house and searched it. Two grams of amphetamine were found in the appellant’s possession. On 5 January 2000 police officers stopped a vehicle at Morphett Vale. The appellant was a passenger in it. Half a gram of amphetamine was found in her bag.
It seems to have been common ground that the two quantities of amphetamine were for the appellant’s personal use. There was no evidence that she was dealing.
As appears from his remarks as to penalty, the appellant was no stranger to the learned magistrate. He had sentenced her on previous occasions for other offences. Inter alia, he expressed the view that, regrettably, the time had arrived at which he had to “impose a severe penalty ... to bring home to you once and for all that if you are going to involve yourself in these types of criminal activity there is a consequence and in your case the consequence involves actual imprisonment”.
The learned magistrate sentenced the appellant to imprisonment for two months in respect of the first offence, to run from 7 November 2000, when she was first taken into custody. As to the second offence he sentenced her to imprisonment for three months, cumulative upon the first sentence.

The breach of bond application

The appellant had earlier appeared before the Magistrates Court on 26 October 1998. She was charged with and convicted of unlawful possession. The sentence imposed was five days imprisonment, suspended upon entry into a bond of $200 to be of good behaviour for a period of 18 months.
That bond, inter alia, required her to be under the supervision of a probation officer, obey all lawful directions of that officer, and undertake programmes and projects as directed.
On 10 March 2000, application was made for enforcement of the bond, on the footing that the appellant had failed to comply with directions given to her by her Community Corrections Officer.
It was reported by that officer that, despite numerous warnings, she had persistently failed to report as directed. Indeed, although directed to report fortnightly, she attended on only 11 occasions over a 14 month period. This was admitted by the appellant.
It is also stating the obvious to say that the two offences above referred to, themselves, constituted breaches of the good behaviour requirement of the bond. True it was that they were offences of a different character, but they were nevertheless serious offences of their type.
Ms Ford, of counsel for the appellant, stressed that the present drug offences were not of the same type as that which gave rise to the bond and should largely have been disregarded for that reason. With respect, that is not the test. As Jacobs J pointed out in R v Buckman (1987) 47 SASR 303 at 309, the real issue is whether the person concerned has reverted to criminal conduct comparable, if not in kind, at least in its culpability and general criminal content with the offence which attracted the relevant suspended sentence. In the instant case the response to such a question inevitably has to be in the affirmative. The two drug offences were serious and attracted maximum prescribed penalties of a fine of $2,000 or imprisonment for two years, or both.
Be that as it may, the learned magistrate was content to base his decision on the narrower footing on which the application was made. He said:-
“It appears that you were not particularly responsive to that supervision. The suggestion from the Department of Correctional Services is that you were not motivated to attend appointments and you were unwilling to address any issues relating to your offending behaviour. You suggested to the probation officer that you had a close friend who was your confidante and therefore that you had no reason to attend the probation officer’s appointments. You were enrolled to attend an alcohol and other drugs course but for reasons best known to yourself you failed to attend. By virtue of your lack of response you breached the condition of the bond requiring that you be under supervision and that you obey the probation officer’s lawful directions.”
Having regard to the whole of the circumstances, the learned magistrate felt unable to excuse the breaches by the appellant. He ordered that the suspension of the five day custodial sentence be revoked.

The appellant’s profile

The appellant is a young woman 30 years of age. Her background and antecedent record are, to say the least, no basis for optimism.
Her antecedent record discloses a long list of convictions going back to 1985. These span convictions for drug offences, illegal use of motor vehicles, larceny, driving offences (including PCA), receiving, unlawful possession, drive unlicensed or whilst under suspension, driving an unregistered or uninsured vehicle, producing a controlled substance and damaging property.
In general, she has been dealt with very leniently and has not, until now, been required actually to serve a significant custodial sentence. She has had the benefit of a three month suspended sentence.
A pre sentence report, which was prepared for the learned magistrate, paints a somewhat depressing picture.
The appellant was born in Adelaide. Her parents were itinerant seasonal agricultural labourers. Her early years “were characterized by considerable instability and relative poverty”. She did not progress well with school work and was exempted from school at age 14.
The appellant’s parents settled in Adelaide when she was about 12 years old. She ran away from home about twelve months later and supported herself by working in bars and clubs and prostituting herself. She has had only limited stable employment.
The appellant has had two separate relationships, there being a child of each. One is ten years of age and the other six. She has, until recently, had custody of the younger child. Her former partner has had custody of the older child. Mr Reed’s mother cared for the younger child whilst the appellant was in custody.
A pre sentence report renders it clear that the appellant has had a long standing drug addiction problem “to provide some comfort in her life”. Of recent times, particularly because of concerns for the well being of her daughter, she has “felt increasingly confused and lost and unable to find any personal direction or control over her life”.
Generally speaking the appellant has not responded well to rehabilitative measures. Her “contract” with the Drug Assessment and Aid Panel was terminated by it, presumably for non co-operation and non-compliance. Her record of bond condition observance has been poor. She has had a bad record of reporting, several community work orders have expired in breach and she has been described as “generally uncooperative and unmotivated regarding her bond obligations”.
In recent times she has been involved in something of a rash of offending. When she appeared before the learned magistrate on 29 November 2000, she was also dealt with for multiple counts of drive disqualified and related driving offences.

The sentencing approach

In the course of his quite comprehensive sentencing remarks the learned magistrate reviewed the more recent offending history of the appellant and the somewhat abortive outcomes of attempts at rehabilitation. He particularly reflected upon the pre-sentence report which - he pointed out - was not particularly favourable to her.
He concluded his deliberations by commenting:-
“I am asked by your counsel to allow you a further opportunity to return to the community so as to care for your children. However, I must have regard to your past performance. As I have already pointed out you really haven’t done anything to assist yourself. Looking at the matter objectively, despite the fact that you say you are going to improve your ways and keep yourself out of trouble, there is absolutely no objective evidence to support that. To the contrary I suspect you have said the same things in the past but once you have been released back into the community you have quickly forgotten your otherwise good intentions.”
The learned magistrate commented that it was a tragedy when a mother is separated from her children, but pointed out that she had brought that on by her lifestyle; and that little was likely to change whilst she persisted with that lifestyle.
Although he did not make it clear as to what he took as his commencement point the learned magistrate said that, having regard to the impact on her children, he proposed to reduce the sentence below that which would otherwise be appropriate. He said that he also took into account the pleas of guilty and would impose sentences which gave credit for time already spent in custody.
In the lastmentioned regard it is to be noted that, following her arrest, the appellant was in custody for 23 days. In addition, after she had been sentenced, she remained in custody for a time until bail was obtained, pending appeal. In all, due allowance needs to be made for a total of 43 days spent in custody.

Appeal issues

At the outset Ms Ford sought to argue that the learned magistrate fell into error in revoking the suspended sentence of 5 days imprisonment. She essentially based that contention on two aspects, namely:-

.First, she sought to argue that, whilst there had been reporting and compliance breaches, due regard should be had to an asserted recognition, in the pre-sentence report, that the appellant had now confronted her problems and was determined to proceed to an offence and drug free lifestyle; and
.Second, the actual offences dealt with by the learned magistrate ought not to be regarded as relevant breaching offences, particularly because that there was no suggestion that the appellant was dealing in drugs.

It should be said that the first contention was based on the following comments in the final summary in the pre-sentence report:-
“The defendant’s recent time in custody has forced her to confront the reality of her behaviour and lifestyle, in the knowledge that she has, at least for a short period, lost her liberty and access to her children. She claimed that the pain she feels with those losses is, without question, enough to push her to seek an alternative way. She intends, apparently, to cease all drug use and make certain that she complies with any community based reporting or treatment requirements as directed by the court.”
The reporting probation officer went on to say that, if it was considered appropriate to impose a sentence which did not require immediate service of imprisonment, a period of supervision was desirable. This would, he said, enable the appellant to “access appropriate help, assistance and treatment to manage the inevitable difficulties in her transition to an offence and drug free lifestyle”.
I do not read the pre-sentence report as necessarily expressing great optimism. It certainly noted that the then recent period in custody seemed to have had some salutary effect on the appellant - at least to the point where she appreciated a need to change her lifestyle. However, it remained a serious question as to how far her changed perception could and would be translated into practical reality.
As to the second contention I have already pointed out that the offences with which the appellant was convicted were inherently serious. It is impossible to perceive how they could fairly be disregarded in considering whether or not she had failed to be of good behaviour.
I cannot see how it can reasonably be argued that the learned magistrate fell into error in making the order revoking the suspension of the sentence. When it is remembered that the appellant has had a long history of poor observance of bond conditions and of offending, the learned magistrate, realistically, had little option but to do what he did. He is to be pardoned for having some degree of scepticism concerning the new expressed resolve of the appellant.
Of course, the revocation of that suspended sentence had automatic repercussions by virtue of the operation of s 38(2) of the Criminal Law (Sentencing) Act 1988. It then became impossible to suspend any custodial sentences imposed in respect of the two drug offences.
On the other hand, the fairly recently enacted s 38(2a) potentially did have scope for operation.
That subsection reads as follows:-
“(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”.
I shall shortly return to the significance of it in the present context.
It was further argued by Ms Ford that, while no specific error of principle or approach could be identified, nevertheless the two custodial sentences imposed were, on the face of them, manifestly excessive, especially when it was borne in mind that this offender had never before actually been required to serve a substantial custodial sentence.
Having carefully reviewed the relevant sentencing remarks I am driven to the conclusion that there is substance in this contention.
Had these been sentences imposed without allowance for timely pleas of guilty and where there was little in the way of mitigating factors involved, I consider that no realistic criticism of them could be advanced. However, these are said to be net sentences arrived at after discount for timely pleas and the extension of a degree of leniency due to the impact of separation of the two young children from the appellant.
I do not pretend to know precisely what discounts were applied - these are not articulated in the sentencing remarks. But if notional, realistic discounts are added back onto the actual sentences imposed it suggests that the starting point adopted for the first sentence must have at least been of the order of three months or more, whilst the second must have been upwards of at least 4 months. The totality of the starting points must, accordingly, have been upwards of 7 months for what were cases of simple possession of relatively small quantities of amphetamine for personal use.
As a first real sentence to be served for this appellant, given her mitigating circumstances, this seems to me to demonstrate that, particularly having regard to the totality principle, the sentences are unduly high.
I by no means disagree with the learned magistrate when he concluded that the time had arrived at which the appellant had to be brought to a realisation that a continuance of her conduct can no longer be tolerated; and that she needed the experience of a custodial situation to bring that home to her.
Indeed, the pre-sentence report suggests that the time which she initially spent in custody may have brought her to some realisation of what the future inevitably holds if she does not take positive control of her life.
The appeal as to the breach of bond must be dismissed, it being noted that the appellant has, in any event, already served the five days in question.
I allow the appeals against the two other custodial sentences. They will be set aside.
In lieu I propose, pursuant to the provisions of s 18A of the Criminal Law (Sentencing) Act to substitute for both of those sentences a single sentence of imprisonment for a period of 13 weeks, cumulative upon the previous revoked sentence. (This takes into account, the 23 days served prior to sentencing, and about a 20% discount for timely pleas.)
It seems to me that the justice of the case requires a short, sharp actual period in custody, followed by a period in which the appellant will be subject to a s 38(1) bond, on breach of which she will be liable to re-committal to custody. This should then serve as a potent motivating factor for her to do what, she professes, she is now motivated to do - revert to an offence and drug free lifestyle.
Accordingly I order in lieu -
that the appellant be imprisoned for a period of 13 weeks to be served cumulatively upon the sentence the suspension of which was revoked by the learned magistrate;
that the appellant do forthwith complete service of one month of the total sentences in prison, credit being given however for a period of 15 days already served in addition to the five days imprisonment, suspension of which was revoked;
that the remainder of the sentence be suspended on condition that the appellant enter into a bond in the same terms and on the same conditions as were stipulated in the bond entered into by her on 26 October 1998, to have effect on her release from prison.
I will give counsel liberty to speak to the precise form of expression of the orders to be pronounced.

[2001] SASC 46

1 March 2001