Wilson v Police - [2008] SASC 212

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WILSON v POLICE
[2008] SASC 212
Judgment of The Honourable Justice Gray
11 August 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - PROPERTY OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - RECOGNISANCES - GENERALLY
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - DISCRETION TO NOT RECORD CONVICTION
Appeal against sentence – appellant pleaded guilty to offence of unlawful possession of motor vehicle keys, contrary to section 41(1) Summary Offences Act 1953 (SA) – defendant convicted by magistrate and sentenced to term of imprisonment of 2 months – sentence suspended on appellant’s entering a 18-month, $500 good behaviour bond – whether sentence manifestly excessive.
Held, allowing the appeal: Magistrate erred in imposing sentence of imprisonment – appellant’s conviction should be set aside – appellant should be re-sentenced – relevant factors to sentencing discretion include appellant’s Aboriginality, youth, intelligence, time already spent in custody and prospects of rehabilitation – appellant released without conviction on his entering a supervised three-year good behaviour bond.
Summary Offences Act 1953 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 11(1) and s 38, referred to.
Bastian v Police [2008] SASC 91; Gannon v Harper (SC(SA), Bollen J, 20 July 1989, Jud No 1627, unreported); James (1985) 14 A Crim R 364; R v Clarke (2004) 89 SASR 13; R v Doecke (1999) 205 LSJS 304; R v JB [2007] SASC 67; R v O’Keefe [1969] 2 QB 29; R v Palliaer (1984) 35 SASR 569; R v Vasin (1985) 39 SASR 45 ; Skipper (1992) 64 A Crim R 260; Wood v Samuels (1974) 8 SASR 465, considered.

WILSON v POLICE
[2008] SASC 212
Magistrates Appeal
GRAY J:

This is an appeal against sentence.
Background
The defendant and appellant, Cecil Spencer Wilson, pleaded guilty to the offence of unlawful possession contrary to section 41(1) of the Summary Offences Act 1953 (SA).[1] The particulars of the offence were that on 21 February 2008 at Koonibba, the defendant had in his possession vehicle keys which were reasonably suspected of having been stolen or obtained by unlawful means.
[1] Section 41(1) of the Summary Offences Act 1953 (SA) provides:
“A person who has possession of personal property which, either at the time of possession or at any subsequent time before the making of a complaint under this section in respect of the possession, is reasonably suspected of having been stolen or obtained by unlawful means, is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.”
The defendant was convicted and sentenced by a Magistrate on 1 April 2008 to a term of imprisonment of two months. This sentence was suspended on the defendant’s entry into a $500.00, 18-month good behaviour bond. In determining this sentence the Magistrate had regard to the defendant’s plea of guilty and the fact that he had spent 41 days in custody on remand. When sentencing, the Magistrate remarked:
I begin by saying that you have helped the court by pleading guilty to this charge of unlawful possession. I am aware that this is your first charge as an adult person and it happened quite soon after you turned 18. You were found in possession of car keys to a particular vehicle. You apparently obtained those keys through your cousin and you knew that he at the time did not have a motor car. You should have realised that he had no real excuse or entitlement or right to have those keys. You have a long record of quite serious dishonesty offending as a youth and there are still some matters which are outstanding. Ignoring those, you have quite a record for a person of your age which include matters of unlawful possession, theft and housebreaks. I remind myself that you are not to be punished again for that. I am aware that you have spent nearly six weeks in custody, most of it in either Yatala or Port Augusta Gaol, that has come as something of a shock to you.
The Pre-Sentence Report is a very helpful report. ... You have had your ups and downs and difficulties while you have been a child and a teenager. The school system seems to have failed you and you have reached the age of 18 where you have trouble filling out forms, reading and writing and you have trouble working with figures. I think it is very important that you have the chance to learn how to do those basic things because you will be at a big disadvantage if you do not know how to fill out your own forms and do your own sums.
...
As I said, this is your first adult offence. Sadly, it is a continuation of the stream of offending and pattern of offending which has developed during your teenage years. I think that the appropriate starting point is a short sentence of imprisonment and allowing for your plea I would impose a sentence of a little more than 3 months. Allowing for the time you have spent in custody I will reduce that to 2 months. I think that there are good reasons to suspend the sentence and to release you on a bond with conditions of supervision and conditions that you take part in programs to learn some skills and to try to break the cycle. What you do about that is eventually up to you, but it gives you the chance to change your ways if that is what you want to do. If you offend again during the time of the bond you will have to come back to court and probably go back to gaol for 2 months.
The Appeal
On the hearing of the appeal, the defendant continued to acknowledge his guilt. It was said, however, that notwithstanding the defendant’s acknowledgement of guilt, the circumstances were such that the Magistrate should have exercised his sentencing powers to proceed without recording a conviction.
It was further submitted that the sentence was manifestly excessive. It was said that a term of imprisonment was an inappropriate sentence to be imposed on this offender who had just attained his majority by one day. It was contended that the Magistrate had failed to give adequate consideration to other sentencing options and, in particular, had failed to recognise that imprisonment was a sentence of last resort.[2]
[2] See section 11(1) of the Criminal Law (Sentencing) Act 1988 (SA). See also Bastian v Police [2008] SASC 91 at [14]; R v JB [2007] SASC 67 at [18]-[20]; R v Doecke (1999) 205 LSJS 304 at [14]–[15]; Skipper (1992) 64 A Crim R 260 at 262-3; Gannon v Harper (SC(SA), Bollen J, 20 July 1989, Jud No 1627, unreported); R v Vasin (1985) 39 SASR 45 at 48; James (1985) 14 A Crim R 364 at 365-6; R v Palliaer (1984) 35 SASR 569; Wood v Samuels (1974) 8 SASR 465 at 468-469; R v O’Keefe [1969] 2 QB 29 at 32.
In my view the Magistrate erred in imposing a sentence of imprisonment, despite that sentence being suspended. Error arose in the sentencing process. The Magistrate failed to have adequate regard to the youth of the defendant, the defendant’s Aboriginality, his prospects of rehabilitation and the 41 days spent in custody on remand. Further, the Magistrate did not give proper consideration to other sentencing options.
Imprisonment was a course open to the Magistrate pursuant to section 11 of the Criminal Law (Sentencing) Act 1988 (SA), given the appellant’s prior Youth Court convictions. However, before a sentence of imprisonment is imposed, all other sentencing options must be eliminated. This well established principle flows from the oft-cited decision of Walters J in Wood v Samuels:[3]
[A] suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case.
[3] Wood v Samuels (1974) 8 SASR 465 at 468.
The Court in Samuels adopted Lord Parker’s observations in O’Keefe:[4]
[I]t seems to this court that before one gets a suspended sentence at all, the court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, should be: is immediate imprisonment required, or can a suspended sentence be given?
[4] R v O’Keefe [1969] 2 QB 29 at 32.
The seriousness of the defendant’s conduct in the present proceedings was not such that it warranted a further term of imprisonment over and above that already served. There is no indication in the Magistrate’s reasons that any consideration was given to any lesser penalty. To the contrary, the Magistrate identified his starting point as a short sentence of imprisonment.
The Magistrate had materials before him indicating support available to the defendant, particularly with the “Breaking the Cycle” program for young Aboriginal offenders. He received submissions about the impact of the time already served in custody on both the defendant and his family – an extended Aboriginal family suffering clear and apparent disadvantage. The option of a bond with conditions of supervision to foster the rehabilitation of the appellant needed to be explored by the Magistrate and was not.
The Magistrate made no explicit reference to the defendant’s Aboriginality. The Magistrate had dealt with many young Aboriginal people in country areas and was well aware of the problems that they face. It is, however, still a factor which deserved particular attention, and militated against the imposition of a sentence of imprisonment in the face of other available sentencing options. As the court observed in Clarke:[5]
It is clear that an Aboriginal offender cannot expect special treatment just because he or she is Aboriginal: Wanganeen v Smith (1977) 73 LSJS 139; R v Fernando (1992) 76 ACrimR 58; R v Smith [2003] SASC 263. However, as those cases acknowledge, aboriginality may be relevant to the sentencing process in a particular case. It is to be expected that in many cases the aboriginality of an offender will be a relevant and important factor in the sentencing process. Many Aboriginal people are marginalised by society and lack opportunities that are more available to others. For many, realisation of legitimate expectations is unlikely. In many cases, there is an inability to fit in with the non-aboriginal community which contributes to isolation and dissatisfaction. However, those general and other similar observations may not be applied as a matter of course.
[5] R v Clarke (2004) 89 SASR 13 at [22].
Aboriginality was especially relevant in this case given the defendant’s background at the Koonibba mission and the disadvantage that has followed him. He has had a disrupted education, leaving him illiterate and innumerate at 18 years of age. He has had an exposure to drugs and alcohol from an early age. Unsurprisingly, he and his peer group are prone to offending. Aboriginality should have been given express recognition in the sentencing process.
For any young offender before the court, rehabilitation is a factor which must loom large in the sentencing process. In the defendant’s submission, this was given insufficient weight by the Magistrate. A supervised bond would enhance rehabilitation without the need for a further term of imprisonment being imposed. This is particularly so in a case where a short period of imprisonment, the first for the appellant as an adult, has already been served and may be expected to have been something of a “wake up call” for him.
The Magistrate in this case did utilise a supervised suspended sentence bond to address rehabilitation. However, this was available to be considered without attaching the bond to a term of imprisonment.
Counsel for the Crown accepted that the Magistrate had erred and that this Court should re-sentence the defendant.
Re-sentencing
It is appropriate that this Court re-sentence the defendant. At the time of the offending he was aged 18 years and one day. His criminal antecedents included a significant history as a young offender. His personal antecedents indicate a troubled family life. His parents were unable to care for him. His early years were spent with his paternal grandmother and a cousin whom he treated as his brother. His cousin’s suicide in February 2008 had a profound effect on him and the current offending occurred within days of this event. From the age of 10 years he had been without appropriate adult supervision.
The defendant attended school but those attendances were sporadic. He finished any serious schooling at the age of 10 years. As earlier observed, his literacy and numeracy skills are extremely limited. A psychological assessment concluded that he was functioning in the borderline range of intelligence. His unfortunate family background, borderline intelligence and lack of parental guidance are no doubt major reasons for his youth offending.
On appeal, counsel for the defendant tendered a psychological report prepared on 16 June 2008 by the Chief Clinical Psychologist of the Youth Justice Psychology Team. Dr Putnins reported that the defendant does not have “survival” level reading skill – defined as a reading age of at least 10 years. He has not mastered elementary multiplication and division, and is likely to be deficient in basic money handling skills. He is functioning in the “borderline” range of intelligence, with his verbal IQ most likely to fall within the “mildly disabled” to “borderline” range.
Dr Putnins considered that the defendant’s reasons for his offending were peer group related. His cousins and some of his friends were offenders. His main behavioural role models were offenders and he tended to conform with their actions. On the likelihood of the defendant re-offending, Dr Putnins observed:
An actuarial (i.e., statistical) risk assessment carried out as part of the current assessment found that Cecil is currently at a high risk of reoffending. His assessment and offending profile, compared to that of about 700 previously assessed youths who were followed up in the community after their release from secure care, suggests that the likelihood of his reoffending within 6 months after release is about 70%. The [seriousness] of any possible new offence is not, however, predicted. This result does not mean that reoffending is inevitable, but it does suggest that he will probably require intensive intervention and supervision after his release from secure care to manage and reduce his reoffending risk.
Dr Putnins concluded that the defendant has no obvious psychological disturbance – the defendant is not particularly aggressive, does not have a mood disorder and does not have attention deficient hyperactivity disorder. The main factors influencing his offending are too much unstructured time and the company he keeps. Dr Putnins recommended the following areas for increased intervention:
-Intensive basic skills remediation, particularly literacy;
-Facilitating the defendant’s involvement in football and other regular structured recreational activities, both to keep him occupied and to reduce time spent with his offender peers, but only where a majority of the other participants are non-offenders;
-Either providing work training with the goal of eventually getting a job or immediately getting a job (but the latter option is less likely without preparation);
-Supervision through the Breaking the Cycle program in order to implement the above, as well as to work on increasing his level of victim awareness.
The defendant spent 41 days in custody with respect to the present offending. This time was spent in an adult gaol. This, I am told, has been a salutary experience. It represents a significant punishment for a young first offender. In the ordinary course, it would have been expected that bail would have been granted. However, this did not occur.
In all the circumstances, I propose, pursuant to section 38 of the Criminal Law (Sentencing) Act, to exercise my discretion not to record a conviction. I consider it appropriate for the defendant to be released on a supervised three-year good behaviour bond. It is to be a term of his bond that he undertake such courses as are recommended by his supervising Correctional Services officer. A copy of these reasons should be forwarded to his supervising officer. It is to be hoped that the defendant will be assisted in acquiring literacy and numeracy skills as well as instruction in regard to alcohol and drug abuse. It is in the community’s interest that the defendant be assisted in his rehabilitation and, to that end, special efforts should be made in the assistance provided to the defendant.
Conclusion
This appeal is allowed. The sentence imposed by the Magistrate is set aside. The conviction recorded by the Magistrate is set aside. The defendant is re-sentenced. He is to be released without conviction on his entry into a supervised three-year good behaviour bond.