Wood v Police No. Scgrg-99-721 Judgment No. S356

WOOD v POLICE
[1999] SASC 356

Magistrates Appeal: Criminal

MULLIGHAN J The appellants were jointly charged with breaking and entering and larceny. They pleaded guilty to the charge and were sentenced to imprisonment. They appeal against those sentences. The appellant, Ireland, appeared on the hearing of this appeal this morning with counsel, Mr Katsaras who informed me that he wished to apply for permission to withdraw from the case which was granted. Mr Ireland sought an adjournment of the appeal because he wished to investigate who represented him on the hearing before the learned Magistrate, it not being accepted by him that that person was Mr Voumard, who deposed in an affidavit that he had done so. It is not clear to me why the appellant, Ireland, would consider that as a matter of any importance. But as he was without counsel, after Mr Katsaras withdrew, I considered that he should have the opportunity of obtaining legal representation for the presentation of his appeal, and I granted the adjournment accordingly.
The appellant Wood proceeded with his appeal. The offence was committed on 4th May 1999 at Peterborough. The appellant was sentenced on 26th May by the learned Magistrate to imprisonment for three months. He appeals against that sentence. The appellants and another man, who was not before the Magistrate on 26th May, broke and entered a shed on the premises of a firm of freight carriers at 38 Main Street Peterborough. At about 1.30 am on that day, a witness who lived nearby was awakened by his dog. He went outside to the yard and saw the appellant, Wood, who was a neighbour, walking east along Railway Terrace, with two other males. One of them was the appellant, Ireland, and the other was the other man.
It is unnecessary for present purposes to describe what he saw in any detail. It is sufficient to say that he saw and heard indications of the offence being committed, and he saw the three men on two occasions walking and carrying items which had been stolen from the premises of the freight carriers. He contacted one of the proprietors of that business, who in turn must have contacted the police. He kept watching the men until the police arrived at about 3.20 am. By that time, the three men had loaded most of the stolen items onto a station wagon and trailer. The proprietor of the freight business, who had been contacted, came and identified the items as his property. They have a value of $7,538. The three men had gained entry into the premises by removing iron from a fence at the premises. The appellant, Wood, refused to answer any questions of the police. I shall hereafter refer to him as the appellant.
The appellant is aged 34 years. He has a record of prior offending which commenced when he was a youth. He committed the offence of breaking and entering and committing a felony in 1981, and he committed two offences of larceny in 1983. He has no other convictions for offences involving dishonesty, but he has convictions for drink driving offences and other traffic offences, and some street offences in the nature of offensive language and disorderly behaviour, and damaging property. Of particular significance, he has been released on a bond on three occasions.
In 1990, having been convicted of driving a motor vehicle whilst disqualified from holding or obtaining a licence, he was sentenced to three weeks’ imprisonment and that sentence was suspended upon his entering into a bond over a period of 12 months and undertaking a substantial amount of community service.
On 3rd May 1991 he was convicted of the same offence again, shortly after the bond had expired, and he was sentenced to imprisonment for six weeks, and that sentence was suspended upon his entering into a bond for a period of 18 months. He did not breach either of those bonds.
On 25th February 1998, having been convicted of damaging property, he was released on a bond for a period of one year, to come up for sentence if in breach of that bond. The subject offence was committed towards the end of the period of that bond, and constituted a breach of it.
The offence of damage property was committed after the appellant had been injured in a fight at a hotel. As he left the hotel, in anger, he struck and broke a window.
The appellant left school in Year 10 and has a sound employment history until a few years ago, when he was injured at work. He has not since worked, but has been receiving compensation. He is married and, until recently, lived at Peterborough with his wife and their three-year old daughter, and his wife's three children who are aged 15, eight, and seven years. He also has a nine-year old son from a previous relationship, who stays at their home on weekends.
The appellant and his family left Peterborough to live in accommodation in Adelaide, to be closer to medical treatment. He and his wife were injured in a motor vehicle accident which aggravated his shoulder injury and she suffered a whiplash injury requiring regular medical attention. She suffers from depression and the learned Magistrate was informed that the appellant undertakes the principal responsibility for the care of the children. He also suffers from depression and has received psychiatric treatment and has taken antidepressant medication which he has now ceased.
At the time of committing the offence, the appellant claims to have been grossly affected by alcohol, so much so that he claims to have no recollection of his offending. He pleaded guilty on the basis that he accepted the allegations of the prosecution. The learned Magistrate took a very serious view of the offence. He said that offences of this nature are prevalent and regarded seriously, that the courts have a responsibility to protect the community against this type of behaviour and that it is necessary for the courts to “consistently send a clear signal to all who might be tempted to behave in this way”. As to the submission that the appellant was grossly intoxicated by alcohol and that he had no recollection of what had happened, the learned Magistrate said that he rejected that assertion because of the nature of the circumstances of the offence, and what the appellant had been seen to do, including the loading of the trailer, ready to take to Adelaide.
The learned Magistrate said that he took into account the plea of guilty at an early stage, that he said that the appellant was entitled to a discount in penalty, and that he also took into account his personal situation and his health and his family responsibility.
The appellant acknowledged that he was in breach of the bond that he had entered into on 25th February 1998, and the magistrate estreated that bond but did not impose any further penalty.
He sentenced the appellant to imprisonment for three months and declined to suspend the sentence.
The first ground of appeal is, in effect, that the learned Magistrate erred in not accepting the submission as to the state of intoxication and degree of intoxication of the appellant. It is submitted that he should have indicated that he did not accept that submission so that the appellant could have had the opportunity to call evidence to make it good. I do not think it is necessary in the circumstances to review the authorities as to when the sentencer should indicate that a basis of sentencing is to be adopted contrary to that submitted by the offender, because I do not think this is a matter of great significance in the present circumstances.
If I had taken a different view, I would have remitted this matter to the Magistrate so that the appellant could have placed before a Magistrate the evidence relevant to the state of intoxication. In my view, the intoxication of the appellant, such as it is, is of limited significance in the present circumstances. Clearly, as the magistrate acknowledged, the appellant was not so intoxicated as to be unable to commit the offence. His plea of guilty acknowledged both the actus reus and the mens rea of the offence. He had been seen by an independent witness to be participating in the offence without any suggestion of lack of coordination or incapacity. Lack of memory of the offence is not a matter which, in itself, is a mitigating factor, but, if true, might say something about the degree of intoxication.
During the course of the appeal, the significance of alcohol came down to this. The appellant had been drinking alcohol during the day, at various times. He was moving property to Adelaide and in the course of the various journeys, some drinking occurred. He became sufficiently intoxicated for his judgment to be affected. It was submitted that the intoxication was significant in that he would not have committed the offence if he had been sober. That submission is, quite properly in all of the circumstances, not contested by Ms Boord, who appeared for the respondent. I think that is a matter of some significance when considering the exercise of the sentencing discretion. Otherwise, I do not think the degree of intoxication is of much significance.
Apart from the various offences which I have mentioned, the appellant had not committed an offence of this seriousness since he was a youth and just after having attained his majority. It is reasonable in all of the circumstances, given his background, to accept that intoxication was a factor in his decision to participate in this crime. Having reached that conclusion, the commission of the degree of intoxication need not be the subject of evidence. Consequently there is no need to refer the matter back to the Magistrate to make findings of fact, or to give the appellant the opportunity of calling evidence.
The remainder of the grounds of appeal raise the question of whether the learned Magistrate erred in giving too much emphasis to general and personal deterrence, and insufficient emphasis to the personal circumstances of the appellant and his prospects of rehabilitation. Without question, the learned Magistrate had taken a very lenient course in the sentence which he imposed. The standards of sentencing for this offence are well known and set out in the case of R v Halse (1985) 38 SASR 594. Upon the basis of those standards for an offence of this nature, by an offender with no prior convictions, that the sentence should be about three times that imposed upon the appellant. However, the question remains as to whether too much emphasis was given to notions of punishment of deterrence when exercising the discretion as to whether to suspend that sentence.
As Ms Boord points out, it is relevant that the appellant has had the benefit of suspended sentences in the past and it has not deterred him from subsequent offending, but it is also significant that when admitted to probation, the appellant has discharged his obligations under the bonds. That gives some encouragement to prospects of rehabilitation, in my view. However, it is not a matter of great weight. What is of more significance are the appellant's present circumstances. It is no easy task to discharge domestic responsibilities with a number of children. It is all the more difficult when ill health is present. The appellant has suffered significant ill health himself, and so has his wife. It is submitted and may be accepted that he discharges a considerable part of the responsibilities of caring for the children. Whilst that matter indicates that his dependants will be greatly affected if he is to serve the sentence of imprisonment, which is a matter to be brought to account, although not a dominant matter, it also says something about the appellant himself, and the way in which he has been leading his life. I think it is an indicator of prospects of successful rehabilitation.
The learned Magistrate said nothing in his sentencing remarks about the prospects of rehabilitation. He is an experienced Magistrate and it may be accepted that he considered that matter, but I do not think he considered it adequately. This was undoubtedly a serious offence and it justified a sentence of imprisonment and, as I have said, one much greater than that imposed. If I was to sentence entirely afresh I would impose a sentence in the order of about 12 months, but there is no appeal against that aspect of the sentence, and for good reason, and so I do not think it is appropriate to interfere with that part of the sentence. However, I do think it is in the community interest to give the appellant the opportunity of not having to serve this sentence. His rehabilitation is very much in the community interest, as well as in the interests of his wife and his and her children.
Obviously the Magistrate took a lenient view and he must have recognised positive features in the circumstances of the appellant, by reason of the low sentence which he imposed, but I do not think he gave enough emphasis to the personal circumstances of the appellant as they were at the time of the sentence and as they have continued.
I think he erred in not suspending the sentence in those circumstances, and I would allow the appeal for that limited purpose. I confirm the sentence of imprisonment, but I order that it be suspended upon the appellant entering into a bond for a period of 18 months, in the sum of $100, to be of good behaviour, to be under the supervision of a probation officer, to obey the lawful directions of the probation officer as to place of residence, employment, and treatment.
It must, of course, be a condition of the bond that the appellant report to an appropriate office of the Department for Corrections within two days from today.

[1999] SASC 356

20 August 1999