R v HUNTER No. SCCRM-00-48 [2000] SASC 137

Court of Criminal Appeal: Doyle CJ, Duggan and Lander JJ (ex tempore)

DOYLE CJ: The appellant appeals against a sentence imposed by the District Court.

The appellant pleaded guilty in the District Court to a charge of illegal use of a motor vehicle. The District Court Judge sentenced him to imprisonment for 18 months on this offence. The appellant submits that the sentence is excessive.

The District Court Judge also dealt with a breach of a bond admitted by the appellant, the offence of illegal use constituting the breach of the bond. A term of the bond required the appellant to appear for sentence if he breached the bond. For the offence of assault in respect of which the bond was entered into, the District Court Judge sentenced the appellant to imprisonment for 6 months, cumulative upon the other sentence. No complaint is made about this latter sentence.

At the time, the appellant was serving a sentence of imprisonment that was due to expire, on my calculations, on 21 March 2000. His non-parole period was due to expire on 20 December 1999, the day upon which the District Court Judge passed sentence. Accordingly, the District Court Judge had to extend the non-parole period. He extended it by 12 months. It is now due to expire, on my calculations, on 19 December 2000. The appellant submits that the non-parole period is excessive.

The appellant has a poor record. He has committed numerous offences, and a good number of them are relatively serious offences involving motor vehicles and sometimes involving as well offences the essence of which was linked to the consumption of alcohol. As well, and it is a significant feature of this case, this was the appellant's seventh offence of illegal use of a motor vehicle. The appellant has also been convicted several times for assaults and like offences, and has two convictions for the very serious offence of armed robbery.

The circumstances of the offence can be stated very briefly. The appellant was asked by acquaintances to obtain a car and deliver it to a certain address. He got the car by taking it unlawfully. When he realised that the car was to be used in connection with certain other quite serious offences, he departed and took no part in those offences.

That is to his credit, although it should be borne in mind that he must have realised that the car that he obtained was to be used for some unlawful purpose.

In view of the appellant's record, and six previous like offences, the sentence that the Judge imposed is understandable, although at first sight it would appear unusually high for the offence of illegal use.

The District Court Judge had the benefit of a helpful pre-sentence report. It describes, on the appellant's part, a history of drug and alcohol abuse and difficulty in domestic relationships. Violence has been a feature of his domestic relationships. As is often the case, the appellant also mixed with people of bad character, was susceptible to peer pressure and appears to have had no long term goals.

The appellant is now 35 years of age. The writer of the report saw some indications that the appellant might finally make a real effort to change his past behaviour. The writer said that he showed some insight into the consequences of his criminal behaviour. The appellant wished to regain custody of his daughter and also to avoid further hurting his mother by involving himself in crime. For these reasons, the writer thought the appellant was motivated to change his lifestyle.

To me, these matters and the early plea of guilty are the only matters that provide a basis for the appeal. But for them the sentence is unquestionably appropriate in light in particular of the appellant's record and the need for personal deterrence. The question is whether the Judge failed to take proper account of matters to which I have just referred.

Having considered carefully the matters put on behalf of the appellant, I cannot say that the sentence is excessive. The court is always anxious to respond to indications that a merciful sentence will facilitate rehabilitation. But rehabilitation has to be considered in the light of other factors. Here the appellant's very poor record and failure to respond to leniency in the past is very important. That does not exclude leniency now, but it was open to the Judge to take the view that the time for leniency had passed and to be somewhat sceptical of the appellant's own assurances about the future. The Judge was not obliged to accept at face value the appellant's assurances, and even allowing for them, the sentence was not outside the appropriate range.

However, it seems to me that the Judge was not satisfied of the appellant's assurance, and if that was his view, then the sentence that he imposed cannot be criticised.

The District Court Judge did not say what allowance he made for the early plea of guilty. It is unfortunate that he did not do so despite this court having, on a number of occasions, emphasised the importance of sentencing judges doing that. Under the circumstances, I would have expected the allowance for the plea of guilty to be of the order of 25% or thereabouts. That gives a starting point of about 2 years before allowing for the plea, the plea reducing the sentence to 18 months. In my opinion that starting point is not excessive in all the circumstances, referring in particular to the appellant's poor record generally, and in relation to this offence in particular.

In relation to offences of this sort, individual deterrence must play an increasing role in sentencing a persistent reoffender. Even making due allowance for the early plea of guilty, and I note the submission by Mr Slade that the plea of guilty to this particular offence was offered ahead of trial, the sentence was not in this respect excessive. I should add, because of its relevance to the sentence generally, that the appellant was on parole when the offence of illegal use was committed.

For all those reasons, in my opinion, the sentence the Judge imposed was, in all the circumstances, well within the appropriate range of penalty and for those reasons, I would dismiss the appeal.

DUGGAN J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

19. DOYLE CJ: Accordingly, the order of the court is that the appeal be dismissed.