CROSS v POLICE No. SCCIV-01-28 [2001] SASC 47

2 The appellant, a single man now aged 43 years, entered a timely plea of guilty to a charge that, on 13 February 2000 at Adelaide, knowing or believing that Sascha Dion Perna had committed an offence, he did an act with the intention of assisting him to dispose of the proceeds of the offence, contrary to the provisions of s 241(1)(b) of the Criminal Law Consolidation Act, 1935.

3 The narrative facts relating to the circumstances of the offending were not in dispute.

4 In the early hours of 13 February 2000 a uniformed police patrol pulled over a vehicle owned and driven by the appellant in Stanley Street, North Adelaide. The appellant did not possess a driver's licence. The person Perna was a passenger in the vehicle.

5 Police suspicions that all was not well were said to have been aroused by various circumstances. However, notable amongst these was the presence, in the rear of the appellant's vehicle, of a large boxed and packaged computer monitor.

6 When questioned by the police the appellant said that he had previously picked Perna up in Hindley Street. The latter had placed the monitor and other items (comprising computer and electrical equipment and tools) in the vehicle.

7 Enquiries made by the police revealed that the monitor and other items had been stolen from a vehicle near the intersection of Hutt Street and South Terrace, Adelaide between 2.00 am and 4.00 am the same morning. Their collective value was about $2,077.00.

8 When questioned by the police, the appellant admitted that he had realized, at some stage, that the items had probably been stolen by Perna. Both men were arrested. Perna declined to answer questions. As I understand the situation the appellant had no particular suspicions when he picked Perna up. He developed them after he picked him up.

9 The learned magistrate was informed by the appellant's solicitor that, on what I take to be 12 February 2000, he had cut his finger quite badly. He had been unable to sleep due to a throbbing pain in the finger. In the early hours of the morning he got up and went for a walk in the neighbourhood with his dog.

10 In so doing he walked past Perna's home in Arthur Street, Pennington. He there encountered Perna's girlfriend in a state of some distress. Perna's little daughter "was standing there screaming for her father".

11 The girlfriend told the appellant that she had been contacted by Perna, who said that he was stranded in Hindley Street and had no transport. The girlfriend said that she was unable to pick Perna up because she did not have a car. She asked the appellant if he could assist her by doing so.

12 The appellant owned a motor vehicle, with which he was fond of tinkering. However, due to his intellectual deficits, to which I shall, in due course, refer in somewhat greater detail, he had never been able to secure a driver's licence. (He could not cope with answering a written examination paper.) It is to be inferred that, notwithstanding that situation, he was physically able to drive his motor vehicle and, from time to time, did so.

13 Be that as it may, the appellant drove his vehicle in to Hindley Street, where he was "waved down" by Perna. The latter directed him to reverse into a small laneway running off Hindley Street and then loaded the items the subject of the charge into the appellant's vehicle. The appellant simply remained sitting in the vehicle whilst this was occurring.

14 Perna thereafter got into the vehicle and instructed him to drive in a direction that was not on the way home. The appellant conceded that, in all the circumstances, he then formed a belief that the items placed in his vehicle had been stolen from premises near where he met Perna, but was never told anything of their origin. He was merely seeking to assist Perna's girlfriend and stood to gain nothing by rendering his assistance.

15 When first pulled over by the police the appellant thought that he was being stopped for driving without a licence.

16 The police prosecutor informed the learned magistrate that the only relevant prior conviction of the appellant was recorded at the Port Adelaide Magistrates Court on 28 April 1997, when he was convicted of interfering with a motor vehicle without consent and ordered to perform 96 hours of community service and $100 by way of compensation.

17 Counsel for the appellant tendered a lengthy and definitive report prepared by Mr Richard Balfour, a well known forensic psychologist.

18 It is neither practical, nor necessary, to cite the contents of this report in extenso at this time. However, the highlights of it may be summarised in these terms:-

. The appellant comes from a dysfunctional family background, due, in large measure, to his violent, alcoholic father.

. He is illiterate and enumerate, having left school at the age of 13 after a somewhat turbulent school history. He learnt little and no steps were ever taken by the education system to recognise his deficits or provide remedial tuition for him.

. The appellant's deficits stem from the fact that he suffers from intellectual disability, whereby his level of intelligence is in the bottom 0.5 per cent of the general population for his age group. His ability to read, spell and do arithmetic is, in fact, in the bottom 0.2 per cent of that population.

. His birth was complicated, he exhibited evidence of developmental delays (eg delayed walking) and exhibits a stutter.

. He is what is described as a "concrete thinker", with a limited capacity for solving socially abstract and complex problems.

. Despite the foregoing he has no history of juvenile offending, even given the lack of a positive peer support network and poor social skills.

. It is reported that, due to his limited insight, the appellant "is vulnerable to being led astray by negative peers. He struggles to deal with routine daily problems and challenges and this makes him dependent on others for support and guidance. However, this makes him vulnerable to exploitation in the community and he is vulnerable to manipulation ... He suffers from some unresolved residual feelings of grief regarding the death of his mother ten years ago". The Public Trustee manages his finances and he was assigned a Housing Trust home about two years ago.

. It is noteworthy that, despite all of his problems, he managed to obtain steady employment of a relatively unskilled type from the age of 13 when he left school, until he ultimately suffered work related injuries. In the last ten years he has been in receipt of a Disability Support Pension. He lives alone, two streets away from his father's home, does most of his own domestic chores, has no significant debts, has never been in financial trouble and does not gamble or ingest alcohol. He is not involved in other substance abuse. His stepmother has provided him with invaluable assistance in setting up his present residence and providing him with ongoing support.

19 In short, this is a most unusual background. There was much to be said for and considered in mitigation of the appellant's offending behaviour.

20 The sentencing remarks of the learned magistrate are, with respect, noteworthy for their brevity. Having merely commented:-

"Mr Cross, you are going to have to choose your friends more wisely. People like Perna will lead you into gaol. As I intimated, I am prepared to impose a suspended sentence for your offending. You have to understand that you cannot afford to get into further trouble otherwise that is where you will also end up.",

he then proceeded to convict the appellant and imprison him for four months, such sentence to be suspended upon entering into a conditional bond to be of good behaviour for a period of 18 months.

21 It is important not to be unduly critical and wise after the event in relation to busy magistrates who have to grapple with very lengthy lists on a day to day basis. However, I am bound to comment that the remarks as to penalty in this case were, with respect, so inadequate that it is really impossible to discern the basis upon which the learned magistrate arrived at the sentence which he imposed.

22 There is no indication of the manner and extent to which he took into account the most unusual personal background and diminished level of responsibility of the appellant, or the quite unusual circumstances leading to the commission of the offence. He made no reference to the lengthy report of Mr Balfour, which had been placed before him. Nor is there even any indication that due allowance has been made for the timely plea of guilty entered by the appellant. If an appropriate allowance was made for this particular appellant, then the starting point for computation of sentence must have been upwards of six months imprisonment.

23 In my view, such a sentence would have been manifestly excessive, as a first custodial sentence, even for an offender who did not suffer from the appellant's intellectual disabilities, but had little in the way of antecedent record, as was the case with the appellant.

24 It seems to me that, if a substantial custodial sentence is in contemplation, even if it is to be suspended, then it is imperative that a sentencing magistrate express, at least in note form, sufficiently adequate reasons to disclose how the sentence is arrived at and what factors have been taken into account so that, if an appeal is prosecuted, this court can properly review what has occurred.

25 In the instant case, such a process of review is not possible by reason of the total absence of meaningful reasons.

26 As to this the reasoning of Gray J (concurred in by myself and Wicks J) in Papps v Police (2000) 209 LSJS 407 is directly apposite. In the instant case the failure to express adequate reasons plainly constituted an error of law.

27 In so concluding I am constrained to express some concern that this is but one of a number of instances in which files have recently come on appeal in circumstances in which little or no reasons have been given by way of sentencing remarks.

28 Bearing in mind the heavy - if not somewhat unrealistic workloads apparently experienced by magistrates on general list days - it is not to be expected that fully developed and comprehensive sentencing remarks will be given in what might fairly be described as routine cases attracting fairly routine penalties.

29 However, even in such cases, defendants are entitled to have their matters adequately considered. It would be most unfortunate if, due simply to work overload, an impression was gained that matters were being disposed of at high speed and without in-depth consideration, simply to enable a long list to be disposed of.

30 But where, as here, a matter potentially attracts a significant custodial sentence (or some other substantial penalty which could occasion severe hardship or difficulty to the defendant concerned) it is, in my view, imperative that adequate remarks as to penalty be expressed. This is so that the parties and any appellate court are able to discern what factors have been taken into account and in what manner, what has led to the sentence actually imposed and, where a timely plea has been entered, what has been taken as the commencement point for any custodial sentence imposed.

31 It is, with respect, truly remarkable that, in the instant case, a matter exhibiting such unusual features should have been dealt with in such a summary fashion without even a passing reference to the detailed circumstances or Mr Balfour's report or what discount, if any, was allowed for the timely plea. If this was primarily due to listing exigencies then I would suggest that there is a serious administrative problem to be addressed.

32 As Mr Ahern, of counsel for the respondent accepted, s 9(2) of the Criminal Law (Sentencing) Act 1988 cannot fairly be read as negating, for appellate purposes, the clear obligation of a judicial officer to give proper reasons for sentence both at common law and as contemplated by s 9(1) of that Act. It simply stipulates that a failure to state reasons does not give rise to automatic invalidity. The classic illustration is that to which I have already referred - the imposition of a routine penalty for a routine offence.

33 By virtue of the demonstrated error in this case, it falls to me to exercise the sentencing discretion afresh in this matter.

34 In proceeding to do so I particularly keep in mind the following extract from Mr Balfour's report:-

". His intellectual disability has never been formally identified and consequently he has never been networked with appropriate support agencies for intellectually disable [sic] individuals (eg, Intellectual Disability Services Council, etc). He has struggled to live independently in the community due to a lack of social supports and rehabilitation.

. He lives a largely unstructured, aimless lifestyle and is bored.

. He is naive and easily manipulated and exploited by members of his family and casual acquaintances. He does not readily appreciate the hidden motives of casual acquaintances when they ask him seemingly simple favours.

I asked Mr Cross why he offended and he replied 'I was asked to pick him up in town. I'm a softie. I'm easily lead. I just thought I was just going into town to pick him up to bring him to his daughter'.

Mr Cross' offending behaviour is the behaviour of an intellectually disabled man who is struggling to live independently in the community and is vulnerable to exploitation and manipulation.

I asked Mr Cross who was responsible for his offending behaviour and he replied 'I am responsible for my own reactions. I should think before I do anything'.

I asked Mr Cross what is his general attitude towards his offending behaviour and he replied 'I'm very sorry what I did. I knew it was wrong. When I picked him up in town - I should have gone straight to the police station. I didn't think anything of it until the police pulled us over'.

I asked Mr Cross to explain to me why his offending behaviour is wrong and he replied 'Yes. Because it's the theft, stealing and all that. Nothin' else I can think of'.

I asked Mr Cross who were the victims of his offending behaviour and he replied 'A lot of people. My mum [step-mother] and dad really. The person who he ripped off - I went and picked him up in town. I've buggerised around the police. The police are good. They're there for crowd protection'.

I asked Mr Cross to describe what impact his offending behaviour would have had on the victims and he replied 'I know how it feels now because I was recently ripped off by my sister [Bronwyn]. Not a very nice feeling at all. A horrible feeling. If I could do anything to make amends I would. If I could go and do their garden for free or anything like that.

I asked Mr Cross what important lessons had he learned as a result of his offending behaviour and he replied 'Never to do it again. To think. This is a very valuable lesson I've learnt. That I'm very sorry for what I did. If I gotta help anybody - I'll make sure it's all legal - above board.'."

36 First, it somewhat poignantly reveals the simple, but inadequate level of the appellant's intellectual functioning.

37 Second, it demonstrates, in stark terms, how it was that the offending behaviour came about and that there was, in real terms, little (if any) positive, true criminal intent in what the appellant did. He seems to have had no real appreciation, at the time, of the danger and seriousness of acceding to what was asked of him, in the circumstances in which the request was made.

38 Finally, it clearly indicates a proper degree of contrition on the part of the appellant, now that his situation has been brought home to him.

39 In truth the appellant is as much to be pitied as condemned. He was dealt a cruel, initial blow by his dysfunctional family environment, he was ill served by a school experience which did little or nothing to assist him and his vulnerable intellectual state led him to offend in a situation in which he was simply responding to what, initially, seemed a mere innocent request for assistance from Perna's girlfriend. He has not had the benefit of community support from agencies such as the Intellectual Disability Services Council.

40 A combination of the total mitigating circumstances, low moral culpability on the part of the appellant and low likelihood of reoffending demand the extension to him of what would otherwise be an exceptional degree of mercy. I consider that, on any view, quite apart from the error referred to, the sentence of four months' imprisonment was manifestly excessive, in that it failed, adequately to recognise the matters discussed above. This was a very atypical case of its type which required quite special treatment.

41 In my view this is a case which, on a proper application of all relevant sentencing factors, prima facie cried aloud for resort to the provisions of s 32 of the Criminal Law (Sentencing) Act, 1988, but for one consideration.

42 It cannot be ignored that, on 28 April 1997 the appellant was convicted of the offence of interfering with a motor vehicle without consent, as mentioned above.

43 He has, therefore, already had the benefit of that section.

44 It seems to me that, notwithstanding the weighty mitigating factors in his favour, it is not appropriate to again extend the same degree of leniency. There is a need to impress upon him a need to resist the overtures of those who would lead him into trouble.

45 I have come to the view that the appropriate approach is to impose a modest custodial sentence and then suspend it on the same terms as were stipulated by the learned magistrate.

46 I consider that the appropriate commencement point ought to be a custodial sentence of 21 days. This should be reduced to 14 days in recognition of the plea of guilty.

47 The appeal will be allowed and the sentence of four months' imprisonment set aside. There will be substituted for it a sentence of 14 days' imprisonment, suspended on the basis of the bond already entered into by the appellant.