Yates v Police

YATES v POLICE

[2000] SASC 326

Magistrates Appeal

1................ LANDER J....... This is an appeal from the Magistrates Court sitting at Christies Beach. The appellant was convicted and sentenced for the offence of larceny on 1 December 1997 in relation to an offence said to be committed on 16 December 1996. She was sentenced to be imprisoned for nine months but the sentence was suspended on her entering into a good behaviour bond for a period of two years in the sum of $400. She was ordered to pay compensation of $553.

Originally in a Notice of Appeal dated 16 May 2000 the appellant only appealed against sentence. She sought in that Notice of Appeal an extension of time within which to appeal. After her solicitor had examined the Court file she filed an amended Notice of Appeal dated 29 June 2000, seeking to appeal against both conviction and sentence and on 30 June she made an application seeking an extension of time within which to appeal. During the hearing of the appeal the appeal against conviction was abandoned. The matters to be decided therefore are whether the appellant should be granted an extension of time within which to appeal against sentence, and if so, whether the sentence should be set aside.
The appellant was charged and on 1 December 1997 pleaded guilty to an offence of larceny, committed on 16 December 1996.
She went to Radio Rentals and using a false name she entered into a rental purchase agreement for a television set, a video set, a hi-fi set and furniture to accommodate those items to the total value of $3,646. Those goods were delivered to a nominated address and the appellant signed a receipt for the goods using a false name. Immediately after delivery all the property was moved to different premises. It was alleged and not disputed that Ms Yates made no payments by way of rental payments.
When Radio Rentals sought to recover the goods they approached the person whose name the appellant had given. That person knew nothing about the matter. Police eventually apprehended Ms Yates and recovered the goods. When first interviewed Ms Yates denied any involvement in the offences but later made full admissions.
The appellant had no prior convictions for offences of dishonesty.
The Magistrate ordered and obtained a pre-sentence report.
That report showed that the appellant was 30 years of age and the fourth of five children. She married her husband in 1990 and there is one child of the marriage who was in the care of the appellant.
The appellant’s husband had become violent towards her and the relationship had ended.
The appellant’s husband continued to harass the appellant until December 1996 when she returned to live with her parents.
At the time she came before the Magistrate she was involved in a de facto relationship with a gentleman she had known in her employment for many years. She was pregnant and she was to undergo a caesarean section on 4 December 1997 (three days after the court hearing).
She was aware that the child, when delivered, would require immediate surgery.
The pre-sentence report indicated that the appellant was well educated and had a history of stable employment until the breakdown of her marriage. She ceased employment at that time because her husband worked in the same company.
The report indicated that she had no history of offending behaviour. She presented to the author of the report as remorseful. She said that when she and her husband separated he kept all of their belongings and remained in the house. He did not pay their bills and as a result she was unable to obtain a good credit rating. For that reason she applied for these rental goods under a false name. She told the author that she had every intention of maintaining the rental contract with the hirer when she entered into the rental contract.
The appellant appeared before the Magistrate unrepresented. She had made application for a grant of legal aid but the application had been refused.
She pleaded guilty to the charge, she says, in an affidavit recently filed in this Court without understanding the specific charge to which she was pleading, or the nature of the charge. She did not realise at the time that she was pleading guilty to the charge of larceny believing that she was in fact facing a charge of false pretences.
She said that the Magistrate did not explain the charge to her nor, she said, did he explain to her that he intended to impose a sentence of imprisonment.
She said, prior to the sentence, she was not called upon by the Magistrate to elaborate on any matters raised in the pre-sentence report nor did he ask her for any explanation as to why she had committed the “offence”.
She said that she did not have the opportunity of telling the Magistrate that the reason why she had committed the “offence” was a desire to appease her abusive husband and her inability to obtain finance for hiring goods using her true name. She would have wished to tell the Magistrate that she did not hold an initial intent to deprive Radio Rentals of their goods or cause a monetary loss. The Magistrate should have been told, she said, that she was the principal care giver to a small child and she was pregnant with a child who would require surgery at birth. She would have wished for the opportunity to advise the Magistrate that she was remorseful for her actions and that she had never committed a criminal offence prior to this time.
A number of the matters which she says she would have wished to bring to the Magistrate’s attention were in fact included in the pre-sentence report. The Magistrate would have been aware that she was a first offender and that she was remorseful. He was aware that she was to undergo a caesarean section and that the child, when delivered, would require surgery.
The sentencing Magistrate believed the offence deserved an order for imprisonment. He sentenced her to be imprisoned for a period of nine months. Pursuant to the Criminal Law (Sentencing) Act 1988 he suspended that sentence upon Ms Yates entering into a good behaviour bond in the sum of $400 and for a period of two years. Ms Yates was to be under the supervision of a probation officer.
The appeal was lodged on 16 May 2000. An extension of time is sought. The grounds of appeal are:
“1.The Learned Sentencing Magistrate erred in failing to consider sentencing options other than a sentence of imprisonment, albeit a suspended one.

2.The sentence imposed was manifestly excessive in all the circumstances.

3.An extension of time is sought on the grounds that the applicant was unrepresented by Counsel at the time of sentencing, and was not advised of her right to appeal within the appropriate time frame.”

Rule 96C.02 of the Supreme Court Rules provides that any appeal pursuant to s 42 of the Magistrates Court Act 1991 (which this is) shall be instituted within 14 days of the making of the judgment.
It can be seen that this appeal is nearly two and a half years out of time.
There is no doubt that this Court does have power to extend the time within which the applicant has to appeal from the decision of the Magistrate (r 3.04(d)), but that power will not be exercised unless the justice of the case requires it. The discretion to extend the time for compliance with the Rules exists for the sole purpose of doing justice between the parties: Hughes v National Trustees Executors & Agency Co. of Australasia Ltd [1978] VR 257.
Four matters need to be considered before the Court can exercise its discretion; the length of the delay; the explanation for the delay; any prejudice suffered by the opposing party; and whether there are some prospects that the appeal will be successful.
She has been guilty of very lengthy delay. Indeed the delay has been so long that the period of the bond had expired before she lodged her first Notice of Appeal. In a sense therefore she will have served her sentence before the appeal, if an extension is granted, has been heard. That would mean, if the appeal was allowed that this Court would be faced with the dilemma of sentencing an offender in circumstances where she has already served a sentence which the Court believes to be manifestly excessive.
I cannot assume, however, that she complied with the bond. The appellant has very frankly and candidly advised me that she faces other charges relating to Social Security matters alleged to have been committed during the period of the bond. If convicted she might become liable to serve the period of imprisonment imposed by the Magistrate.
I think I can infer from the facts which have been put to me on this application for an extension of time that this appeal has been bought because of the real risk that the appellant may have to serve the sentence of imprisonment imposed.
The question for me is whether in those circumstances I ought to extend the time for the institution of this appeal.
Notwithstanding the dilemma to which I have referred it would not be appropriate in my opinion to refuse the appellant an extension of time if I did believe the sentence was manifestly excessive.
If I believed the sentence was manifestly excessive it would be unfair to the appellant to refuse her an extension of time. Otherwise, it would mean that she would be put in the further jeopardy that she may be called upon to serve the sentence of imprisonment for a failure to observe the terms of the bond supporting the sentence of imprisonment.
In this case I believe the proper approach is to consider whether or not the sentence is manifestly excessive and, if it is, whether in those circumstances it would be appropriate to extend the time within which the appellant has to institute this appeal.
It is for the appellant of course to establish that the sentencing discretion has miscarried. The appellant may establish that by showing that the sentencing Magistrate failed to have regard to a relevant fact or had regard to some irrelevant fact or failed to apply appropriate sentencing principles.
The first proposition put forward by the appellant is that the learned Magistrate failed to allow the appellant to provide the information to which I have referred before imposing sentencing her. There is no doubt that the Magistrate was obliged to adopt the procedure identified by Wells J in Cooling v Steel (1971) 2 SASR 249 so as to ensure that the appellant, who was unrepresented, was fully acquainted with her rights and was able to bring to the attention of the Court all matters relevant to the exercise of the sentencing discretion.
I am not satisfied that the Magistrate failed to observe the obligations cast upon him by the law in that regard. Nor am I satisfied that there are any relevant factors not brought to his attention before he sentenced the appellant.
He was fully acquainted with the pre-sentence report which he no doubt ordered because the appellant was unrepresented. He thereby acquainted himself with the material facts necessary for the exercise of the sentencing discretion.
It will not be in every case that a pre-sentence report will contain all of the information necessary for the sentencing process, but in this case I am satisfied that the Magistrate was aware of the material facts upon which he needed to act for the purpose of sentencing.
Next it is put that the sentence itself demonstrates that the learned Magistrate either failed to have regard to relevant facts or alternatively must have had regard to irrelevant facts. That follows so it was submitted by reason of the penalty itself. If the learned Magistrate had acted in accordance with proper sentencing principles it was submitted a sentence of imprisonment would not have been imposed.
Whilst accepting of course that a sentence of his imprisonment is reserved only for those who come within s 11 of the Criminal Law (Sentencing) Act, in my opinion, the sentencing Magistrate was entitled to conclude that the gravity or circumstances of the offence were such that a sentence of imprisonment was appropriate.
The learned Magistrate was entitled to be satisfied that this offence was a premeditated and deliberate offence of dishonesty which included circumstances of aggravation. Those circumstances included the false information which was provided to Radio Rentals when the offence was committed. The Magistrate was entitled to have regard to aspects of both personal and general deterrence in determining that a sentence of imprisonment was appropriate.
If a sentence of imprisonment was appropriate, in my opinion, the sentence imposed by the learned Magistrate was not excessive.
Of course, the Magistrate was right in my opinion to suspend the sentence of imprisonment having regard to the appellant’s antecedents. Good reason existed for suspending the sentence of imprisonment: s 38(1).
It is not for me to substitute my discretion for the sentencing Magistrate’s unless the appellant can make out any of the matters to which I have referred; Ienco v Kraft and Modra (1990) 53 SASR 40.
It follows, in my opinion, that I cannot conclude that the sentence imposed by the learned Magistrate exceeded the proper exercise of his sentencing discretion.
In those circumstances as the appellant’s appeal will fail, if an extension of time was granted, it follows that it would be inappropriate in the circumstances of this case to grant an extension of time.
I make the following orders:
(1) The extension of time to appeal is refused.
(2) The appeal is dismissed.

[2000] SASC 326

27 September 2000