WINTINNA v Police - [2004] SASC 219

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
WINTINNA v POLICE
Judgment of The Honourable Justice White (ex tempore)
20 July 2004
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - BURGLARY AND LIKE OFFENCES - ENTERING AS TRESPASSER OR WITH INTENT AND BEING OR BEING FOUND WITH INTENT
FOUND WITH INTENT - SERIOUS CRIMINAL TRESPASS - SENTENCING

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
FACTUAL BASIS FOR SENTENCE - PLEA OF GUILTY AND USE OF DEPOSITIONS
Appeal against sentence - Appellant committed two pairs of offences, each consisting of non-aggravated serious criminal trespass in a non-residential building and theft of alcohol - Magistrate imposed global penalty of two years imprisonment with six month non-parole period, suspended sentence - Comparison with tariff sentences for serious criminal trespass in a place of residence - Sentence lower when serious criminal trespass committed in place of residence - Offender intoxicated and affected by marijuana at time of offences - Early guilty plea and cooperation with authorities - Appropriate discount less than 40 per cent - Extension of time to institute appeal granted - Appeal dismissed.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 134, s 169; Criminal Law (Sentencing) Act 1988 s 18A; Supreme Court Rules r 96C, referred to.
R v Place (2002) 81 SASR 395; R v McDonnell [2001] SASC 162, applied.
R v Kelly [2002] SASC 293; R v Power (2002) 214 LSJS 58, distinguished.
R v Delphin (2001) 79 SASR 429, discussed.
R v Major (1998) 70 SASR 488; R v Harris (1992) 59 SASR 300, considered.

WINTINNA v POLICE
[2004] SASC 219
Magistrates Appeal (ex tempore)

WHITE J This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991, against a sentence imposed by a Magistrate.
The appellant was charged with a series of offences which she committed on two occasions during August 2003.
The first pair of offences occurred on 9 August 2003. The appellant broke into Traces Restaurant at Coober Pedy, a non-residential building, with the intention of committing an offence of theft, contrary to s 169(1) of the Criminal Law Consolidation Act 1935. She stole two bottles of St Agnes brandy, two bottles of Jim Beam and two casks of port wine, to the value of approximately $100, contrary to s 134(1) of the Criminal Law Consolidation Act.
The second pair of offences occurred on 19 August 2003. The appellant again broke into Traces Restaurant contrary to s 169(1) of the Criminal Law Consolidation Act, and stole goods and cash contrary to s 134(1) of that Act. There is some uncertainty as to the precise value of the goods and cash which were taken on this occasion. The affidavit from the police prosecutor suggests that the goods, together with the cash taken totalled $735.70, that being the amount specified in the information.
On 25 May 2004, the appellant appeared in Coober Pedy Magistrates Court, charged with the four offences described above. She pleaded guilty to each of the charges. The Magistrate applied s 18A of the Criminal Law (Sentencing) Act 1988, and imposed a global penalty with respect to all four charges. The appellant was sentenced to two years imprisonment with a six-month non-parole period. That sentence was suspended upon the appellant entering into a bond in the sum of $200 to be of good behaviour for a period of two years. There were other conditions of the bond.
The appeal to this Court is against the period of imprisonment only.
At the same time that the appellant was sentenced for the trespass and theft offences, she was also sentenced for other offences to which she had pleaded guilty, being two counts of illegal use of a motor vehicle, theft of a bicycle and two counts of breach bail. The Magistrate imposed convictions in relation to each of those offences, and released the appellant on a separate bond in the sum of $200 to be of good behaviour for two years. The Magistrate also disqualified the appellant from driving for 12 months. The appellant makes no complaint about that sentence.
By virtue of Supreme Court Rule 96C.02, the appellant should have filed her notice of appeal within 14 days of the Magistrate’s order, that is to say by 8 June 2004. The notice was in fact filed on 10 June 2004. The explanation given for the delay is that the filing fee had to be obtained, authorised and sent from the Adelaide office of the Aboriginal Legal Rights Movement to the Port Augusta office. That apparently could not be done until 8 June. The Port Augusta office received the fee on 9 June 2004 and the notice was filed the next day. In those circumstances, bearing in mind the shortness of the extension sought and the fact that the appeal was filed out of time was not a result of something for which the appellant was personally responsible, I consider that an extension of time for the filing of the notice of appeal should be granted. I grant an extension of time for the filing and service of the notice of appeal to 10 June 2004.
In determining whether the sentence imposed by the Magistrate in this case was excessive, it is important to keep in mind that a global penalty was fixed in relation to four offences, each of them serious. When imposing a global sentence under s 18A of the Criminal Law (Sentencing) Act, it is appropriate and necessary to have regard to the sort of sentences which might be imposed if each offence was dealt with separately: R v Major (1998) 70 SASR 488. Each count of serious criminal trespass in a non-residential building and each count of theft carried a maximum penalty of 10 years imprisonment. Because the offences took place on two separate occasions, it would have been open to the Magistrate, if s 18A had not been utilised, to require that the sentence for the offences of 19 August 2003 be served cumulatively upon the sentence for the offences of 9 August 2003. It would have been appropriate to order that the sentence for a theft which occurred during a trespass be served concurrently with the sentence for that trespass.
The sentencing principles applicable to the offence of serious criminal trespass were considered by the Full Court in R v Delphin (2001) 79 SASR 429. In that case, the Court pointed out that following legislative changes which took effect in December 1999, it is possible for an accused to be charged with both a criminal trespass and a further substantive offence committed on the premises. That is what happened in the present case. As was noted in Delphin, the legislative changes brought about substantial increases in maximum penalties for criminal trespass offences and those increases must be reflected in the sentences imposed by courts.
The Court said (at 440 [47]):
“In the circumstances now prevailing, it would seem that in the ordinary case of a single serious criminal trespass in a place of residence, where the intention upon entry is larceny generally, a penalty for a first offence must now be in the order of twenty to twenty-four months where a plea of guilty is involved, with serious consideration being given to suspension in the case of a first offender.”
The Court went on to say that, because the offences in Delphin took place in a place of residence, “it would be inappropriate to suggest any standard or tariff … for a serious criminal trespass committed in non-residential premises”.
Bearing in mind that the maximum penalty for serious criminal trespass in a place of residence is higher than the maximum penalty for serious criminal trespass in a non-residential building, it is reasonable to assume however, that sentences for the latter kind of offence will generally be lower than that suggested by the Full Court in Delphin.
The appellant has submitted that the sentencing Magistrate has erred by not explicitly referring to the amount of the discount which he allowed for the appellant’s guilty plea. This Court, on several occasions, has expressed the view that it is desirable for a sentencing Judge or a sentencing Magistrate to indicate what reduction he or she has allowed on account of a guilty plea: R v Harris (1992) 59 SASR 300. However, the failure of the Magistrate to indicate the extent of the credit given for a guilty plea is not, of itself, an error of principle warranting interference with the sentence: R v Place (2002) 81 SASR 395; Wessling v Police (2004) 88 SASR 57.
The appellant submitted, relying on R v Kelly [2000] SASC 293 at [16] and R v Power (2002) 214 LSJS 58 at 62 [19], that the appropriate reduction in a case such as the present, where the appellant cooperated fully with the police, confessed to charges when the offences might not otherwise have been proved, and entered an early guilty plea, was in the order of 30 – 40 per cent. The appellant then used this range of discounts to reason backwards. Because the ultimate sentence imposed in this case was two years imprisonment, it followed, on the appellant’s argument, that the starting point before reduction for the plea of guilty must have been in the order of three to three and a half years. That equated to 18 – 20 months as a starting point for each pair of offences. Having regard to what was said in Delphin, that in the ordinary case of serious criminal trespass in a place of residence, a penalty of 20 – 24 months imprisonment was appropriate, the appellant submitted that 18 – 20 months was too high a starting point in this case.
That reasoning is, I think, inappropriate. In Delphin the suggested tariff of 20 – 24 months referred not to a starting point from which a reduction for a guilty plea should be made, but rather to an appropriate head sentence in an ordinary case where there was a guilty plea: 79 SASR 429 at 440 [47]. I do not consider that by this line of reasoning therefore, the appellant has made out a case of error by the Magistrate.
Furthermore, I do not consider that a discount for a plea of guilty of the order of 40 per cent is appropriate in the circumstances of this case.
I observe that in R v McDonnell [2001] SASC 162 at [21] Martin J, with whom the Chief Justice and Williams J agreed, held that a discount of 40 per cent was a figure that should be reserved for unusual cases. Although in this case the appellant is to be given full credit for her plea of guilty and her cooperation with the police, I do not consider that this case should be regarded as unusual so as to attract a discount of 40 per cent.
The sentencing Magistrate had before him a pre-sentencing report. In addition to the contents of that report, Mr Tamblyn, who appeared for the appellant before the Magistrate, made extensive submissions in mitigation of penalty. From those submissions and the pre-sentencing report, the following circumstances are apparent.
The appellant grew up in the northern parts of the State and attended school in Coober Pedy. When she was 14 years old, the appellant was violently raped by two strangers. As a result of that incident she was hospitalised and the incident was reported to the police. After that for a time, the appellant withdrew from society and began to drink alcohol and smoke marijuana. She did not receive any trauma counselling until she returned to school, this time in Adelaide, but some two or three years later. The appellant has done reasonably well at school and enrolled in year 12 in 2003. Unfortunately, as a result of some fighting with boys, she was asked to leave the school. The appellant considers, and there is material in the pre-sentence report to support this, that the problems she experienced at school are indirectly attributable to the traumatic rape experience, and lack of adequate counselling.
After leaving the school, the appellant returned to Coober Pedy. Shortly before committing the offences, the appellant began to associate with a group of young people who regularly used marijuana and alcohol and were often in trouble with the police. Since the offences, the appellant has reached the view that she no longer wishes to associate with these people, and wishes to discontinue the use of marijuana and alcohol. The appellant has expressed her willingness to attend drug and alcohol counselling, as well as counselling to help her deal with the events of her past.
The appellant is apparently an intelligent young woman who fluently speaks both the Yankunyjatjara and Pitjantjatjara languages. She would like to help her people by becoming either an interpreter or a nurse, and would like to return to school to complete year 12.
I note that in the course of Mr Tamblyn’s submissions on her behalf, the Magistrate spoke directly to the appellant and to her family, who were in court, both her parents being present in court before the Magistrate to support her. The Magistrate spoke in the way in which he would in the Aboriginal Sentencing Court.
At the time when she committed these offences, the appellant was 19 years old. Prior to these offences, she had a good record and had not been in trouble with the police before.
It is clear that the Magistrate took the personal circumstances of the appellant into account in setting the non-parole period of six months. This is a relatively short period when compared to a head sentence of two years. Many of the considerations relevant to the fixing of that non-parole period were also relevant to the Magistrate’s decision to suspend the sentence.
At the times when she committed the offences on 9 and 19 August 2003, she was under the influence of alcohol and affected by marijuana. The appellant submitted that this fact was a mitigating factor. Obviously alcohol and marijuana can affect a person’s judgment and it seems less likely that the appellant would have committed these offences were it not for the influence of alcohol and marijuana. However, I do not consider that the fact of the appellant’s being under that influence can of itself be given very much weight.
I should interfere with the Magistrate’s sentence only if I am satisfied that the Magistrate has made some error of principle, or if the sentencing process has miscarried by reason of some mistake, or if the Magistrate has failed to have regard to a relevant factor, or has regard to an irrelevant factor. Absent any of those circumstances, I should interfere only if, having regard to all the circumstances, it can be said that despite lack of identification of a precise error, the sentence imposed is excessive.
I am not satisfied that any of those circumstances exist in the present case. Although the head sentence of two years is substantial, I do not consider that it can be said to be unreasonable. This is particularly so when regard is had to the fact that the Magistrate was imposing a single sentence for two separate pairs of offences. The circumstances favourable to the appellant have not been ignored. They are no doubt reflected in the relatively short non-parole period which the Magistrate fixed, and in the suspension of the sentence.
When one has regard to the fact that these offences constituted two separate incursions into criminal offending, and to the need for both general and personal deterrence in offences of this kind, I do not consider that it can be held that a head sentence of two years imprisonment was unreasonable so as to warrant this Court’s interference.
I dismiss the appeal.