NEILL v POLICE No. SCGRG-99-249 Judgment No. S270 [1999] SASC 270

Supreme Court of SA|1999-06-16|Before: Doyle CJ

DOYLE CJ. (ex tempore) This is an appeal against a sentence imposed by the Magistrates Court. There are two grounds. The first is that the sentence is manifestly excessive in light of the material before the magistrate. The second is that an event occurring after sentence was passed should be taken into account and, in light of that, the sentence is manifestly excessive.

The appellant pleaded guilty in the Magistrates Court to six counts of breaking and entering a dwelling and stealing property from the dwelling. The offences were in April, August, September and October 1998. The value of the property taken ranged from $305 in one case, to about $2,500 in another case. I calculate the total value at about $10,000. Some of the property was apparently recovered but how much is unclear. Some of the property was pawned; that resulted in two counts of obtaining property by false pretences. The appellant pleaded guilty to these counts.

There was one count of being in possession of property suspected of being stolen, the appellant pleaded guilty to that. There was also a count alleging a breach of bail conditions; the appellant pleaded guilty to that.

The appellant was charged on two informations. The first information alleged four counts of breaking and entering and two counts of obtaining property by false pretences. On that information the magistrate imposed a single sentence of 2 years 6 months' imprisonment. The second information alleged two counts of breaking and entering and also the breach of bail. The magistrate imposed a single sentence of 1 year 6 months' imprisonment, cumulative on the first sentence.

In relation to the combined head sentence of 4 years, the magistrate fixed a non-parole period of 2 years 6 months. The head sentence and non-parole period run from 21 October 1998.

The breaking and entering offences are serious offences. The offence is a prevalent offence. It often has significant effects on the home owner and occupier. It is an offence that causes real community concern. The magistrate was right to regard these offences as serious.

The offences of obtaining property by false pretences and possessing property suspected of being stolen do not involve the same effects on victims, but remain serious. They indicate an ongoing disregard of the rights of other members of society.

I turn now to the matters that were put to the magistrate.

First of all the appellant pleaded guilty. The magistrate had a helpful pre-sentence report and a psychiatric report. Mr Neill is 33 years of age. He had an upbringing that can truly be called abnormal, judged by what he has told the report writers. As a child he was treated by a de facto stepfather in a fashion that left him ill equipped to participate in society in a normal manner. He has been heroin dependent since about the age of 16. He has used heroin regularly since then, except when in gaol.

Mr Neill has been admitted into a methadone program aimed at breaking his heroin dependence. This has had some success. Mr Neill has not had employment for some years, and obviously lacks the skills and attitudes that would be required if he is to get employment. All in all, Mr Neill is caught in a cycle of drug addiction, lack of any structure to his life, and crime committed to support his addiction.

Mr Neill told the psychiatrist that he would like to break the cycle for his own sake and his children's sake. He will do so, as both report writers agree, only if he receives proper psychiatric follow-up and the support of an appropriate programme. Even then a lot will depend on Mr Neill's own attitude. One cannot be too optimistic.

Mr Neill has a significant record of offending. He has a long list of dishonesty and drug offences and some other minor offences of various types. The pattern that is revealed here is tragic and sadly all too common. Mr Neill has reached a point at which a court has no choice but to rely upon the deterrent effect of punishment. There is no easy solution to Mr Neill's difficulties with life. There is no way that a court can accept that Mr Neill will simply change his ways. He is only going to do that if he commits himself to a real effort and is given the right support.

All of these matters were considered by the magistrate. The magistrate overlooked nothing relevant. He took account of the guilty plea, of the reports provided to him and of the other matters to which I have referred.

Bearing in mind Mr Neill's age and record it cannot be said that the sentence imposed is excessive. The magistrate referred to the Full Court decision in R v Halse (1985) 38 SASR 595 for guidance on the level of penalty. That case has been regarded as setting guidelines for break and enter offences.

The sentence that the magistrate imposed was well within the appropriate range. It may be that the sentence for the offences on the second information is rather heavy compared with the first group, but the magistrate clearly had in mind the principle of totality. If I were to interfere as between the two informations I would only rearrange the components, I would not impose a lesser sentence.

In my opinion the complaint about the sentence based on what was before the magistrate fails. The magistrate made proper allowance for Mr Neill's personal circumstances. The point has been reached at which those circumstances must begin to have less effect although they remain relevant.

The other matter relied upon is this. Mr Neill has lived in a de facto relationship with Ms Pavey for about eight years. He has two daughters by her. They are seven years of age and four years of age. He says that he is very attached to them and they to him. Sadly, Ms Pavey was killed in a motor vehicle accident in April 1999, about three months after Mr Neill was sentenced. There is no relative in South Australia who can care for the girls. They have gone to live in Sydney with Mr Neill's brother, his wife and their two children. Mr Neill says in an affidavit that this is a struggle for his brother and his wife and I accept that it would be. Mr Neill says that his daughters are distressed by the mother's death and their separation from him. I accept that also.

I consider that I should receive the affidavit in which Mr Neil deposes to these matters. The respondent does not oppose me doing so.

The court's power to receive such evidence, that is evidence of events occurring after sentence was passed, is found in s42(4) of the Magistrates Court Act. That section provides that on appeal the court may if the interests of justice so require, receive fresh evidence. I refer also to Supreme Court Rule 97.18(b).

It is only in limited circumstances that it is appropriate to receive such evidence. In R v Smith (1987) 44 SASR 587 the court dealt with the power of the Court of Criminal Appeal to admit fresh evidence in an appeal against sentence under the Criminal Law Consolidation Act. It may be that the test under that Act is not the same as the test under the Magistrates Court Act. The power to receive fresh evidence in appeals pursuant to s42 of the Magistrates Court Act may be a wider power, but I do not have to decide that.

In Smith the court held that fresh evidence could be admitted if it relates to a matter that was before the court when sentence was passed, but the fresh matter reveals an aspect of that matter that would not have been known at the time. I refer to the judgment of King CJ at 588 and also to the decision in R v Amuso (1987) 138 LSJS 53 at 56 to 57. I mention in passing that the power of the court to receive fresh evidence cannot be fettered by hard and fast rules, see Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 395 Gibbs CJ.

So even if the test under the Criminal Law Consolidation Act has to be applied here, it is satisfied in this case. The impact of the sentence on Mr Neill's family was a matter relied on before the magistrate. The death of Ms Pavey and its effect on the children could not have been known at the time. For those reasons I can act on the further material.

I then have to consider whether, in light of that material, the magistrate would have imposed a lesser sentence. It is not simply a matter of me imposing a fresh sentence because there is new material. I have to be satisfied that had the magistrate known of the material he would not have imposed the sentence that he did, see R v Amuso (1987) 138 LSJS 53 at 57.

The magistrate was obliged to consider the impact on Mr Neill's family of a sentence of imprisonment. He was required to do that by s10(n) of the Sentencing Act. In R v Adami [1989] SASC 1640; (1989) 51 SASR 229 the court held, applying principles that the court has long applied, that the effect of a sentence on the offender's family will be used to reduce the sentence only in exceptional cases. That has to be so. A sentence of imprisonment will usually affect the family of the offender. In the ordinary case that is not a matter that will provide a basis to reduce a sentence. But there are cases when the effect is so great that the court can rely on it to reduce the sentence that is otherwise appropriate. The court does so out of consideration of the welfare of the family, and society's interest in their welfare, and not merely as an act of mercy to the offender. Even then the court must still give weight to the other relevant factors. The process of sentencing does not become one in which the impact on the offender's family controls the outcome, or even is a dominating factor. The true position is that the interests of the offender's family may be given effect to by reducing an otherwise appropriate sentence.

There are some unanswered questions in the present case. For example, when Mr Neill is released, what accommodation and support will he be able to provide to his children? Will he be able to undergo the recommended treatment for his drug addiction if he is caring for the children? How will he re-establish himself and what do his daughters say about all this? Ideally I would like to have information about these matters, but I realise that reliable information on some of them is probably unobtainable at this time because of the element of speculation and as to others it would be difficult to get reliable information. I propose to proceed on the limited information before me.

I do not consider that the further information calls for any reduction in the head sentence. The head sentence is quite moderate. Even allowing for the plight of Mr Neill's daughters the head sentence has to stand.

I turn to the non-parole period. Bearing in mind Mr Neill's record and limited prospects of rehabilitation, the non-parole period fixed by the magistrate is also quite moderate. Deciding whether it should have been less under the altered circumstances it not easy. However, having given the matter a lot of thought, I consider that the interests of Mr Neill's daughters should be taken into account to reduce the non-parole period to 22 months or 1 year 10 months. That is a much greater reduction than the appellant's own circumstances warrant. An offender who commits this many offences with the record that Mr Neill has, and Mr Neill's prospects, could never expect such a low non-parole period. But I am prepared to reduce the non-parole period to this level to reduce to the minimum the time for which Mr Neill's daughters will have no support from either parent. Unfortunately, it would not be proper to go any further. The non-parole period still has to reflect the seriousness of the offending. Once he has been released, Mr Neill will have to establish himself in circumstances in which he can support his daughters and he will have to avoid further offending.

I hope that the welfare of Mr Neill's daughters will be the spur that causes him to change. If he offends again, he cannot expect further leniency, and both he and his daughters are going to suffer. I therefore order as follows:

2. That the sentence imposed by the Magistrates Court be set aside.

3. That for that sentence be substituted a single sentence of imprisonment for 2 years 6 months for the offences on the information in matter number AMC-98-14658 and a single sentence of imprisonment for 1 year 6 months for the offences on the information in matter number AMC-98-13682.

4. That the second sentence be cumulative on the first, making a total head sentence of 4 years.

5. That in relation to the combined head sentence of 4 years, a non-parole period of 22 months be fixed.

6. That the head sentence and non-parole period operate from 21 October 1998.

Magistrates Court Act 1991(SA)

Criminal Law (Sentencing) Act 1998(SA)

Magistrates Court Act 1991(SA)

Criminal Law (Sentencing) Act 1998(SA)

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