Whelan v Police No. Scciv-03-877

WHELAN v POLICE
[2003] SASC 267
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Adelaide following his plea of guilty to two counts of receiving, taking part in the production of cannabis, having possession of cannabis for the purpose of sale and having possession of certain other goods which were reasonably suspected of having been stolen or obtained.
The sentencing magistrate imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 with respect to the two counts of receiving, that penalty being a term of imprisonment for 10 months. The sentence was suspended upon entry by the appellant into a bond in the sum of $50 to be of good behaviour for two years, subject to a condition that he be under the supervision of a probation officer for the period of the bond.
On the other charges, the magistrate imposed a fine of $300 and ordered that the drugs seized be forfeited to the Crown.
I have had the benefit of an affidavit sworn by of the police prosecutor in which he sets out the circumstances of the offending as it was explained to the sentencing magistrate.
The first receiving charge related to a projector valued at over $4000 which was reported stolen during a break in at the Morphett Vale High School on 2 July 2002.
The second charge of receiving related to a carry bag which was reported stolen following a break in at the premises of the Reynella Primary School on 25 April 2002, the value of the bag being $100.
The appellant’s involvement in the offences came to light when police officers raided his home on 4 July 2002. They located the carry bag in a room in the house, and in another room equipment being used for the hydroponic cultivation of cannabis. One cannabis plant was growing and measured about a metre in height, and they located two shopping bags containing cannabis.
Another person on the premises who was also charged with the appellant, Mr McKerron, was arrested together with the appellant. Following information given by Mr McKerron, police returned to the premises and recovered the projector from the appellant’s bedroom.
Subsequently the appellant took part in a formal interview by the police when he admitted growing cannabis and possessing the cannabis in the house. He said that he had been selling it to obtain money and that with some of the money he had bought the projector for $600 knowing that it had just been stolen by the co-accused. On the same day he bought the carry bag from another person for $20 knowing that it had been stolen. According to the appellant he had received $600 for selling three ounces of cannabis and he informed the police that he would sell it to anyone who wanted it, normally selling it in amounts which fetched $200. He had been selling cannabis since February 2002.
The appellant was 28 years of age at the time of the offending and has now just turned 29. He lives alone in a house which he bought from his parents. He is unemployed.
The sentencing magistrate had the benefit of a comprehensive report prepared by Mr Richard Balfour, a psychologist. In the history which he obtained he noted that the appellant had a history of proneness to depression and was currently feeling depressed at having a limited income, at struggling financially, and as he had no clear plan about his future.
Perhaps more significantly, the offending occurred during a period of what the psychologist described as quite serious depression which in turn followed the death of a friend in a motor bike collision. After his friend’s death he drank to excess and attempted suicide by gassing himself with car exhaust fumes. Later he fell into bad company or, to use the psychologist’s term, a “negative peer group”, who took to loitering in his house and who encouraged the appellant in drug usage and illegal activities. To his credit the appellant attempted to evict one of the individuals concerned from his house but suffered some physical injury in the altercation which followed.
In his sentencing remarks the sentencing magistrate took Dr Balfour’s report into account and expressed the view that the appellant’s behaviour was entirely uncharacteristic and was explained by the various factors identified in the report. He described the offending as serious and he declined to yield to the submission by the appellant’s counsel that he refrain from entering a conviction.
Mr Clarke who appeared for the appellant both in the court below and on the hearing of the appeal put at the forefront of his arguments in support of the appeal that the sentencing magistrate failed to have regard to other sentencing options before imposing the sentence under appeal. In particular he drew attention to the power under s39 of the Criminal Law (Sentencing) Act 1988 pursuant to which, either with or without recording a conviction, his client might have been released on a good behaviour bond with appropriate conditions.
So that in one sense the appeal came down to a fairly short point as to whether or not the sentencing magistrate erred in imposing a sentence of imprisonment, albeit suspended, or whether he should have imposed a penalty pursuant to s 39 short of a sentence of imprisonment.
In support of the view that the magistrate should have invoked s 39, Mr Clarke submitted that there was good reason within the meaning of that section to rest content with the imposition of a bond, the good reason being a complex of factors including the appellant’s depression, his attempted suicide, and the fact that he was then 28 years of age and had not been in court before, these being his first offences. To that could be added the fact that the property was recovered.
It must be said that one remark by the sentencing magistrate might be thought to have been indicative of error. He said:
“In a transaction unlawful in every respect, the defendant used money gained from the sale of cannabis to buy property that had been stolen from a school.”
In so far as that passage might suggest that the sentencing magistrate regarded as an aggravating circumstance the fact that the appellant was using money from the sale of cannabis to buy the property which he was convicted of receiving, it could not have been so regarded. Using money from the sale of cannabis does not aggravate the charge or charges of receiving.
But at all events, the gravamen of the argument presented on the appeal was that pursuant to s 11 of the Criminal Law (Sentencing) Act, a sentence of imprisonment is clearly a sentence of last resort. Particularly in the case of a first offender, the sentencing court must first exhaust the possibility of imposing a sentence falling short of a sentence of imprisonment, before resorting to a custodial penalty.
In my opinion, that argument in its application to this case is correct. While it is true that the magistrate does not have to expressly refer to alternatives which he might have considered before reaching the conclusion which he did, it does seem to me on a consideration of the whole of his sentencing remarks that insufficient attention has been paid by the magistrate to the possibility of proceeding without imposing a sentence of imprisonment.
In so far as the question of general deterrence arises, it seems to me that there is nothing to choose between a suspended sentence of imprisonment and a bond under s 39. Both will be regarded by the public as no real penalty. It is symptomatic of public reaction to the work of the courts these days that the imposition of a suspended sentence is not commonly regarded as a sentence at all. So that if one talks in terms of general deterrence, there is in practical terms nothing to choose between the two.
In terms of the personal deterrence of the offender, again I think that if the appellant knows, on the one hand, that if he commits an offence there will be a likelihood that the sentence of 10 months imprisonment will be invoked, and if, on the other hand, he knows that if he commits an offence he will breach a bond which will bring him into court to be re-sentenced, with a possibility, even a likelihood of imprisonment, there is not much to choose between the two.
So it seems to me that the sentencing option of a bond under s 39 was clearly one which was available to be invoked in this case. Having regard to all of the circumstances, it seems to me that it is that option which should have been preferred in determining an appropriate punishment for the appellant.
I allow the appeal. I quash the sentence under appeal.
I substitute an order that pursuant to s 39 of the Criminal Law (Sentencing) Act 1988 the appellant be convicted and that without further penalty he be released on a two-year bond to be of good behaviour and to comply with all of the conditions of the bond.
Those conditions will be:
1.To be under the supervision of a probation officer for a period of two years, and to obey all of the lawful directions given by the probation officer, including directions as to psychological and/or psychiatric assessment, treatment or counselling, and to participate in programs to that end.
2.To appear before the court for sentence if he fails to comply with any condition of the bond.
3.To report within two working days of having signed the bond to the Department of Correctional Services at Noarlunga Centre.

[2003] SASC 267

11 August 2003