Young v Police - [2005] SASC 370

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
YOUNG v POLICE
Judgment of The Honourable Justice Duggan
27 September 2005
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
Appeal against sentence - material errors in the information to which the appellant pleaded guilty - whether disputed facts hearing required - appeal allowed and matter remitted to Magistrates Court for re-sentencing.

YOUNG v POLICE
[2005] SASC 370
Magistrates Appeal

DUGGAN J. The appellant pleaded guilty to four property offences. I use that broad expression for reasons which appear below.
The offences arose out of two incidents. The appellant, who lived at Stirling North, entered the residence of his neighbour and stole property valued at approximately $2500. According to the complaint, this incident occurred between 21 December 2003 and 2 January 2004 when his neighbour was absent from the premises.
Approximately one week after the first incident, the appellant broke into a shed at a holiday house at Port Augusta which was situated near a house in which he was staying. He stole property valued at approximately $2500.
He was sentenced in the Port Augusta Magistrates Court to a global sentence for all offences of imprisonment for 18 months. A non-parole period of imprisonment for five months was imposed. The magistrate refused to suspend the sentence. The present appeal against sentence is confined to the decision not to suspend the sentence.
The information filed in the Magistrates Court alleged that the appellant:
1Between the 21^st day of December 2003 and the 2^nd day of January 2004 at Stirling North in the said State, entered a place of residence of Allison Patricia Bostock as a trespasser, with the intention of committing an offence to which this section applies namely theft of property of the value of less than $30,000. Section 170(2) of the Criminal Law Consolidation Act, 1935.
2Between the 21^st day of December 2003 and the 2^nd day of January 2004 at Stirling North in the said State, committed theft by taking a bread maker, computer monitor, computer keyboard, computer system unit, computer mouse, computer printer, compact disk storage unit, hand cream, 45 audio compact disks, 3 earrings, a stereo, a telephone table, 2 rings, an opal pendant, a scarf, a wooden chest, candelabra, and a perfume bottle of a value involving $30,000 or less and more than $2500, dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights. Section 134(1) of the Criminal Law Consolidation Act, 1935.
3Between the 1^st January 2003 and the 1^st January 2005 day at Port Augusta in the said State, entered a non-residential building of Maxwell John McLeod as a trespasser, with the intention of committing an offence to which this section applies namely theft of property of the value of less than $30,000. Section 170(2) of the Criminal Law Consolidation Act, 1935.
4On an unknown day at Port Augusta in the said State, committed theft by taking a quilt, a framed picture, a table, a clothes dryer, a chair, a power tool, a fishing rod, 2 tackle boxes, 2 power drills, 3 board games, a compass, fishing tackle, 4 fishing reels, 2 lamps, and 2 hand held fishing reels, of a value involving $30,000 or less and more than $2500, dishonestly and without the owner’s consent and intending to deprive the owner permanently of the property or to make a serious encroachment on the owner’s proprietary rights. Section 134(1) of the Criminal Law Consolidation Act, 1935.
The particulars in count 1 do not allege any of the circumstances of aggravation referred to in s 170(2) of the Criminal Law Consolidation Act 1935 (“the Act”) and it would appear that the charge should have been laid under s 170(1) of the Act. There is a significant difference in the maximum penalty applicable for an offence against s 170(1) compared with an offence against s 170(2).
Furthermore, as it was alleged in count 3 that the appellant entered a non-residential building, the charge for that offence should have been laid pursuant to s 169(1) of the Act instead of s 170(2). Again, there is a significant difference in the maximum penalties under these provisions.
It may be that the magistrate sentenced the appellant by reference to the particulars without regard to the sections of the Act referred to in the information. However, his sentencing remarks do not touch on this aspect.
There is a further difficulty. The appellant was interviewed by Mr Balfour, a psychologist. He suggested to Mr Balfour that the offences alleged in counts 1 and 2 were committed when a 13 year old girl, who was staying with the appellant and his wife, entered his neighbour’s house. Mr Balfour’s report states:
Mr Young said that Kim wanted to break into a neighbour’s house to steal a computer and stereo. He told her to get out of the house. Mr Young said that approximately four days later Kim illegally re-entered their neighbour’s house. He then followed her but became curious. She then started passing stolen property to him through a window.
Later in his report Mr Balfour said:
Mr Young’s offending behaviour is the actions of an immature man of low intelligence who was experiencing some financial pressure, intoxicated and succumbed to temptation as a result of allowing himself to be adversely influenced by a 13 year old girl.
According to the appellant’s counsel, the submissions made by the defence before the magistrate followed along the lines of the version given to Mr Balfour by the appellant. A written submission made by the appellant’s counsel on the hearing of the appeal states:
When Mr Weiss made submissions for the appellant on 20^th July 2005 he submitted the facts leading the offence were as detailed in Balfour’s report (page 9) and as per his affidavit of 22^nd August 2005 that there had not been any planning, rather, he had, when intoxicated, been drawn into an offence by the co-offender that he had never before contemplated.
Police Prosecutor Foster claims (in paragraph 22 of his affidavit of the 12^th August 2005), that there had been a concession that the appellant had planned the break-in offence on the neighbour’s premises.
There had been no such concession. Indeed the appellant’s instructions to Mr Weiss and his submissions to the court were to the contrary.
On 20^th July 2005 the appellant’s counsel Mr Weiss was oblivious to the suggestion that had been made, namely that the offence was planned and did not refute it.
If this is what occurred, then there was a conflict of versions on the prosecution and defence cases which was not resolved by way of a disputed facts hearing or other means.
In the light of the difficulties to which I have referred, counsel for the appellant and the respondent submitted that I should allow the appeal and remit the matter to the Magistrates Court for sentencing. I agree with this course of action. It will also provide the opportunity to amend the information so as to correct the anomalies to which I have referred. This may require re-pleading by the appellant.
I make it clear that my decision is not based on the inappropriateness or otherwise of the sentence. I did not hear any submissions on that aspect.
The appeal will be allowed, the sentence will be set aside and the matter remitted to another magistrate for sentencing.