DROHAN v POLICE No. SCCRM-00-350 [2000] SASC 207

Supreme Court of SA|2000-06-14|Before: Debelle J

Judgment No. [2000] SASC 207

On Appeal from ELIZABETH MAGISTRATES COURT (MS R MCINNES SM)

1 DEBELLE J. (ex tempore) This is an appeal against sentence.

2 The appellant was convicted on her plea of guilty of break and entering a dwelling and stealing goods contrary to s 170 of the Criminal Law Consolidation Act 1935. The goods had a total value of about $7540. The appellant had stolen the goods in order to exchange them for drugs. She became intoxicated and the goods were stolen from her. The goods were not insured. The likelihood is the goods will never be recovered. The offence occurred on 15 November 1999. On 7 April 2000 a magistrate sentenced the appellant to a period of three months imprisonment. The appellant appeals against the sentence. The only ground of appeal is that the magistrate erred in failing to suspend the term of imprisonment.

3 The appellant is aged 27 years. She has no prior record. When sentenced she was unemployed. However, in the past she has been employed from time to time. A short time before she was sentenced she had been retrenched from her then employment. For approximately 10 years the appellant has been a regular user of amphetamines. She has been able to pay for the drugs from her savings and by pawning assets. She has not offended in any way for the purpose of providing funds to finance the use of drugs. Six months before the offence, her marriage of four years had broken down irretrievably. The appellant has two children aged ten years and five years, each by a different father. Each child lives with the natural father. The appellant had access to each child every second weekend. It was put to the magistrate that the appellant is concerned that an immediate custodial sentence will sever her relationship with the children. She is also concerned the sentence may be used by one, or both, of the fathers as a means to end arrangements as to access.

4 Before sentencing the appellant the magistrate had adjourned the matter to enable the victims of the offence to attend before the court. I make no criticism at all of that practice. There are obvious advantages in it. It makes the defendant confront those who are the victims of the crime. However, the magistrate went a little further. She invited each of the two victims to express their view as to the appropriate penalty. Both said they believed that the appellant should serve a period of imprisonment. I think it was undesirable for the magistrate to invite the victims to express a view as to penalty. Victims not skilled in the sentencing process will not usually have regard to all of the factors bearing upon the proper exercise of the sentencing discretion. The fact that the magistrate invited those views raises the question whether the magistrate believed it was necessary to impose a period of imprisonment because that view had been expressed by the victims. The magistrate should not invite victims to express views as to penalty.

5 When sentencing the appellant, the magistrate said:

"The case of Halse makes it perfectly clear that in relation to housebreak offences there are only two options for a sentencing court. One is immediate imprisonment and the other is a suspended sentence of imprisonment.

Whichever course is adopted, it has to be a sentence which is proportionate, and it has to be a sentence which achieves, as best the court can, the reconciliation of four primary sentencing purposes. These are deterrence of the offender and others like her; future protection of the community from the defendant and others like her; retribution both in the sense of revenge and recompense; and rehabilitation of the offender and others like her.

Halse indicates that the starting point to be used in a case of this kind is six months imprisonment.

Having heard everything that has been said it appears to me that issue which is ultimately decisive is the breach of trust issue. That is the aggravating feature of this case, just as much as the amount of money that was stolen. In my view an immediate sentence of imprisonment is called for. The matters personal to the defendant can be adequately reflected by reducing the term of the head sentence below that which would normally be imposed and, in my view in this case it is more appropriate to do that than to suspend a sentence the length prescribed by Halse."

The reference to the breach of trust is a reference to the fact that the house broken into by the appellant was a house occupied by a friend and a companion of that friend. The appellant had stolen goods belonging to her friend and to the other person who occupied the house with him. The appellant had gone to the house to see her friend and, on arriving at the house, she found it unoccupied. She decided to break into it and take what she could find in order to sell to raise funds to purchase drugs. It may not be entirely correct to describe the offence as a breach of trust. However, I have regard to the fact that these were the remarks of a busy magistrate. It was, nevertheless, as the magistrate herself called it, an aggravating feature of the offending.

6 The remarks of the magistrate raise questions as to whether she has correctly approached the sentencing process. Her first task was to determine whether or not it was necessary to order a period of imprisonment. That decision, having been made, her next task was to decide whether it was appropriate in all the circumstances to suspend the period of imprisonment: cf. R v Palliaer (1983) 35 SASR 569 at 571. In the usual course a magistrate would also consider whether there were other sentencing options. However, as this was a serious offence of its kind, the remarks in R v Halse (1985) 38 SASR 594 apply and the magistrate clearly had to consider imprisonment as one sentencing option.

7 There were at least three options available to the magistrate. Having determined the appropriate period of imprisonment, she could have required the appellant to serve that period. Alternatively, she could have determined the appropriate period of imprisonment and suspended it. The third alternative, which depends upon the sentence of imprisonment being at least 12 months, was to fix a non-parole period appropriate to the offence.

8 The sentence imposed by the magistrate was, on any view, extremely lenient. It is altogether outside the proper exercise of the sentencing discretion given the range of penalties suggested in Halse (supra), which start with sentences higher than six months. The magistrate appears not to have considered correctly the range of penalties in Halse. Had she done so, she might have imposed a higher penalty and, as I have said, either suspended it or, if the penalty was a sentence of at least 12 months imprisonment, ordered a short period of imprisonment and a long parole period. Either a suspended sentence or a short non-parole period would provide the appellant with an opportunity of supervision by a probation officer which would assist her in her rehabilitation.

9 There was a further difficulty with this sentence. Despite the fact that the magistrate mentions the need to have regard to the rehabilitation of the offender as being one of the four primary objects of sentencing, she does not appear to have had any regard to it in the course of her sentencing remarks. The appellant is a young woman aged 26 years. She has no prior convictions whatever. The offence was committed when she was suffering the effects of the separation from her former partner, a situation which was no doubt made more acute by her dependence on her drug habit. I do not suggest for one moment those factors excuse her conduct. They simply explain it. They were, nevertheless, factors to which a magistrate, in considering the prospects of rehabilitation of an offender, would have regard. The appellant had made full and frank admissions to the police. She had pleaded guilty at an early opportunity. She has expressed her contrition and her admissions to the police and her prompt plea of guilty bear testimony to the fact that she is contrite. Those are factors to which the magistrate ought to have had regard in determining whether to suspend a sentence of imprisonment. There is nothing in the magistrate's reasons which gives any hint of any consideration of those factors.

10 For these reasons, I believe the magistrate has erred in the exercise of her sentencing discretion. It is, therefore, necessary to sentence the appellant afresh. One of the difficulties which the sentence ordered by the magistrate presents is the fact that this is an extremely low penalty for this offence. It was a serious offence of dishonesty, quite deliberately committed. It was aggravated by the fact that it was a case of stealing from a friend. It is aggravated also by the fact that the goods stolen had a high value and there were no sensible prospects of those goods ever being recovered. It is a case which, on its face, called for a substantial period of imprisonment of the kind identified for a first offender in Halse. Since the decision in Halse, Parliament has markedly increased the penalties for the offence. Yet the offending continues to be prevalent. Given the increase in penalties, it may be necessary for this Court to one day review the penalties for this offence. This is not the occasion to do so.

11 This is a case where I think that a higher penalty ought to have been imposed and the sentence suspended or, if the sentence permitted it, the appellant should have served a short period of imprisonment with a long period of parole. As I have said, both are more likely to be conducive to the rehabilitation of this person who is offending for the first time. In the absence of any cross-appeal by the complainant as to the inadequacy of the sentence, I am not able to increase it: see Heal v Police (1999) 204 LSJS 477. It has been suggested that it is appropriate to set aside the sentence and remit the matter to the magistrate for further sentencing. I do not propose to do that. It seems to me to be inconsistent with the principles expressed in Heale. It also exposes the appellant to double jeopardy of sentence.

12 This appellant has served some four or five days in prison. Even that short period is likely to have been a sharp reminder of her obligations to other members of the community. The prospects of rehabilitation are sufficiently good to warrant the sentence of imprisonment being suspended. I regard this as a most unusual case, made the more difficult by the course which the magistrate has taken in imposing such an extraordinarily light sentence. It should not be seen as indicating that the magistrate has, in any respect, fixed an appropriate sentence. It is apparent from these reasons that I do not think she has. The magistrate has fixed a low penalty which, if suspended, might be perceived to be a penalty disproportionate to the offending. But I think there is no other course.

13 For these reasons, I allow the appeal. I set aside the sentence ordered by the magistrate and in lieu thereof order that the appellant be sentenced to a period of imprisonment for 11 weeks and three days. I order that penalty to be suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of 18 months. In addition to the terms that the appellant be of good behaviour, it will be a term of the bond that the appellant will be required to comply with the directions of a probation officer as to treatment in relation to her addiction to drugs. No order as to costs.

Criminal Law Consolidation Act 1935s 170, referred

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