ANTHONY SHANE PAGE v COMMISSIONER OF POLICE [2024] SASC 1

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE FISHER) MCCHB-21-4862, MCCHB-22-515, MCCHB-21-4847, MCCHB-22-618 Appellant: ANTHONY SHANE PAGE Counsel: MR J MARCUS - Solicitor: BARBARO THLTHORPE LAWYERS Respondent: COMMISSIONER OF POLICE Counsel: MS G NICHOLSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 19/12/2023 File No/s: SCCRM-23-034890 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. PAGE v POLICE [2024] SASC 1 Judgment of the Honourable Justice Kimber 16 January 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE This is an appeal against the sentence imposed by the Magistrates Court following the appellant’s plea of guilty to a number of offences committed over three and a half months. The Magistrate imposed a single sentence of two years, five months and 18 days imprisonment with a non-parole period of seven months. The appellant contends the Magistrate failed to take into account time on home detention when fixing the non-parole period and that the Magistrate erred in not finding the appellant a suitable person to serve the sentence on home detention. Further, the appellant contends that the head sentence was manifestly excessive. Held: 1. The appeal is dismissed. 2. The Magistrate did not overlook the time on home detention bail in fixing the non-parole period. 3. It was open to the Magistrate to find the appellant was not a suitable person to serve his sentence on home detention. 4. The sentence was not manifestly excessive. -- 1 of 11 -- Sentencing Act 2017 (SA) ss 44(2), 71(1)(c), 71(3); referred to. Ribbon v The Queen [2022] SASCA 15; R v Allen [1999] SASC 346; R v Smoker (2016) 126 SASR 201; Brougham v R [2023] SASCA 75; Kentwell v The Queen (2014) 252 CLR 601; Hili v The Queen (2010) 242 CLR 520; Bugmy v The Queen (2013) 249 CLR 571; House v The King (1936) 55 CLR 499, applied. -- 2 of 11 -- PAGE v POLICE [2024] SASC 1 Magistrates Appeal: Criminal KIMBER J: 1 This is an appeal against sentence imposed in the Magistrates Court. The appellant pleaded guilty to the following offences: Being Unlawfully on Premises; three counts of Theft; two counts of Serious Criminal Trespass; two counts of Assault Prescribed Emergency Worker; and Damage Property. 2 The Magistrate recorded a conviction for the Damage Property offence but imposed no further penalty. With respect to the remaining offences, after reductions of 30 per cent for the pleas of guilty and having reduced one sentence by four months for time spent on home detention bail, the Magistrate arrived at an effective total head sentence of two years, five months and 18 days and a non-parole period of seven months. Good reason to suspend was not found and the Magistrate considered the appellant was not an appropriate person to serve the sentence on home detention. 3 The appellant appeals on three grounds. The appellant contends that the Magistrate failed to consider time on home detention bail when fixing the non-parole period; should have found the appellant was a suitable person to serve the sentence on home detention; and that the total head sentence was manifestly excessive. 4 I dismiss the appeal. My reasons follow. The offending 5 The offending for which the appellant was sentenced spanned approximately three and a half months from 17 October 2021. On that day, the appellant entered a building site at Morphett Vale and stole a number of building materials including blinds, fans, light fittings and taps. The value of the property taken was about $2,000. On 26 October 2021, the appellant broke into a Morphett Vale home through a rear door. He stole items from those premises including power tools, a camera and scuba equipment. The value of these items was less than $2,500. On 29 October 2021, the appellant again entered a residential premises and stole jewellery, cash, personal documents and a tablet. These items were valued at less than $2,500. 6 On 12 February 2022, the appellant was on home detention bail. Two officers from the Department for Correctional Services attended his residence for a compliance check. The appellant became argumentative with the officers and struck the first victim. The second victim was struck on the side of his face by a car door after the appellant had kicked that door. The appellant damaged that vehicle by ripping the mirror from it. -- 3 of 11 -- [2024] SASC 1 Kimber J 2 The personal circumstances of the appellant 7 At the time of sentence, the appellant was 34 years of age. He is now 35. The appellant has prior convictions for several offences, including affray and assault. Before the matters which came before the Magistrate, the appellant had also breached bonds. There was also a breach bond matter before the Magistrate. On 26 August 2020, the appellant had been sentenced to 11 months for offences which included, but were not limited to, Aggravated Assault of a Child or Spouse and Aggravated Assault of a Police Officer. That sentence was suspended upon entering a bond to be of good behaviour of 18 months. 8 The Magistrate had before him a psychological report authored by Dr Lim to which he made extensive reference in his remarks. The appellant had cancer as a child which resulted in hearing loss and adversely impacted upon his learning. The appellant left school at 14 to undertake an apprenticeship in baking. Shortly after the completion of that apprenticeship, the appellant was required to leave the family home because of his involvement in drugs. He was 19 years of age. The appellant had lived in the family home intermittently over the last decade or so. 9 The appellant commenced using cannabis when about 14 and cocaine, ecstasy, and MDMA in his early twenties. The appellant abstained from drug use when he was a member of an outlaw motorcycle gang but resumed after leaving the group. It appears that the dishonesty and trespass offences were committed to support the drug habit of the appellant and his former partner. After his arrest in 2021, the appellant spent almost 11 months in custody before being released on home detention bail. The appellant described that time in custody to Dr Lim as a ‘wake up call’ that helped him to break his pattern of drug use. 10 In the opinion of Dr Lim, the appellant expressed an appropriate level of contrition and insight into his offending. Dr Lim opined that the risk of recidivism posed by the appellant could be effectively reduced if he was prepared to commit to an extended course of rehabilitation. Dr Lim opined that the risk of recidivism was in the low to moderate range with a favourable prognosis being contingent upon abstinence from drugs. The sentences imposed by the Magistrate 11 The Magistrate revoked the suspended sentence and, given time already spent in custody of almost 11 months, reduced that sentence to zero. The respondent makes no complaint about that approach which was favourable to the appellant, for at least the following reasons. It avoided the Magistrate making the sentences he imposed cumulative upon the revoked sentence and permitted consideration of a suspended sentence;1 avoided a non-parole period being fixed on a total head 1 Section 96(4) of the Sentencing Act 2017 (SA) (Sentencing Act). -- 4 of 11 -- [2024] SASC 1 Kimber J 3 sentence which included the revoked sentence;2 and permitted the Magistrate to consider a home detention sentence.3 12 After reductions of 30 per cent for the pleas of guilty, the following sentences were imposed: • Unlawfully on Premises and Theft — four months and six days. • Serious Criminal Trespass and Theft on 26 October 2021 — a notional sentence of one year and 18 days, further reduced by four months for a period of seven months and 16 days on home detention bail to a sentence of eight months and 18 days. • Serious Criminal Trespass and Theft on 29 October 2021 — one year and 18 days. • The assaults on 12 February 2022, two sentences of four months and six days. 13 The Magistrate made the first three of the above sentences cumulative. The two sentences for the assaults were made concurrent with one another, but cumulative on the remaining sentences. This resulted in an effective total head sentence of two years, five months and 18 days. The grounds of appeal 14 There are six grounds of appeal in the Notice of Appeal, but the first three were abandoned by the appellant. I commence with Ground 4. Ground 4 — a failure to deduct four months from the non-parole period 15 As set out above, the Magistrate made a reduction of four months from one sentence on account of a period of seven months and 16 days on home detention bail. The effective total head sentence was two years, five months and 18 days with respect to which a non-parole period of seven months was imposed. When fixing the non-parole period, the Magistrate said: I now turn to the question of fixing a non-parole period. You have shown positive steps over the past seven months towards rehabilitation during your current period on home detention. I have also had regard to the salutary effect that the 11 months that you spent in custody serving the suspended sentence has had upon you. I will fix a shorter non-parole period, having regard to those positive steps you have taken in rehabilitation – a shorter non-parole period than I otherwise would have on that sentence. I fix a non-parole period of seven months. 16 The appellant submits the Magistrate made no reference to reducing the non-parole period by four months for the time on home detention bail when fixing 2 Section 47 of the Sentencing Act. 3 Section 71(2)(d) of the Sentencing Act. -- 5 of 11 -- [2024] SASC 1 Kimber J 4 the non-parole period. The appellant submits that the time on home detention was overlooked and that the non-parole period should have been reduced by four months, just as the sentence for the offending on 26 October 2021 had been. 17 Section 44(2) of the Sentencing Act 2017 (Sentencing Act) provides the Court with a discretion to give credit for time served in custody by reducing the sentence which would have been imposed or by backdating the sentence. Section 44(2) provides: (2) If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and— (a) make an appropriate reduction in the term of the sentence; or (b) direct that the sentence will be taken to have commenced— (i) on the day on which the defendant was taken into custody; or (ii) on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced. 18 In Ribbon v The Queen,4 the Court of Appeal said the following with respect to the approach to be taken to reducing the non-parole period: When reducing a sentence for time served, a common approach is to fix both the head sentence and non-parole period and then reduce both for time served. However, it is permissible for a sentencing judge to reduce the head sentence for time served in custody and then fix the non-parole period by reference to the head sentence, provided the time served in custody is not overlooked when fixing the non-parole period. In R v Tsonis, the Court of Criminal Appeal considered the operation of s 30(2) of the Criminal Law (Sentencing) Act 1988 (SA), the predecessor to s 44(2) of the Sentencing Act which is identical in its terms. The Court said that whilst the section gives a sentencing judge a discretion as to the extent of any credit given for time served in custody, a practice has developed to give a defendant full credit for time served in custody. The Court set out the policy reasons for this practice. The Court referred to this practice as having been described in earlier authorities ‘as the usual practice, the typical practice, and an almost universal practice’. Further, when credit is given for time served in custody, it is generally calculated to the day, although mathematical precision is not necessarily required. The Court said that where a sentencing judge does decide to give less than full credit there must be good reason to do so. In those circumstances it is incumbent upon the judge to disclose the amount of credit given for time served in custody and the reason or reasons for giving less than full credit. When giving a defendant credit for time served by adopting the approach of reducing the head sentence and then fixing a non-parole period by reference to the head sentence, the time spent in custody is directly deducted from the head sentence but not from the non- parole period. When adopting this approach, the deduction for time served is diluted so far 4 [2022] SASCA 15 (Ribbon v The Queen). -- 6 of 11 -- [2024] SASC 1 Kimber J 5 as the non-parole period is concerned. Only a proportion flows through to the non-parole period. For example, in the case of a 75 per cent non-parole period, only 75 per cent of it flows through; and in the case of a 50 per cent non-parole period, only 50 per cent of it flows through. In R v Malesevic (‘Malesevic’), Doyle CJ (with whom Bleby and Wicks JJ agreed) accepted that this approach is permissible. However, his Honour emphasised that because it would otherwise result in lesser credit being given for time served, this was a matter that must be borne in mind when setting the non-parole period. Relying upon an observation by King CJ in The Queen v Creed, Doyle CJ noted that this approach may warrant a ‘somewhat different’ (that is, lower) non-parole period as a proportion of the head sentence.5 (footnotes omitted) 19 The Court further observed: Courts have in recent times emphasised that in situations where it is not possible to backdate a sentence and the sentencing Judge reduces the sentence for time served, it is generally preferrable to fix a head sentence and non-parole period and then reduce both for time spent in custody. This approach allows for an explicit reduction from both the head sentence and non-parole period for time served by an exact period, which better reflects that a person has actually spent that time in custody. It also allows for transparency in the sentencing process so there can be no sense of grievance by a defendant that the time served has not properly been accounted for in the non-parole period.6 (footnote omitted) 20 The submission of the appellant that the Magistrate erred in not making a reduction of four months with respect to the non-parole period falls to be evaluated bearing in mind at least the following matters. 21 While it must be accepted that Ribbon v The Queen was a matter which involved both time in custody and time on home detention bail for which the sentencing Judge gave credit, understandably there was no discussion by the Court of whether the observations made applied with equal force when any reduction was solely for time spent on home detention bail. Section 44(2) provides a discretion to take into account time spent in custody but makes no reference to time spent on home detention bail. It is settled that time on home detention bail is not to be treated as equivalent to time in custody and that the Court is not obliged to make a reduction.7 That said, when a decision is made to reduce a head sentence solely for time on home detention bail, it is not obvious to me that a non-parole should not be fixed mindful of that reduction. 22 Putting the above completely aside, assuming, without deciding, the observations in Ribbon v The Queen apply with equal force to the position before the Magistrate in this case, the Court did not hold in Ribbon v The Queen that a 5 Ibid [27]–[31]. 6 Ibid [34]. 7 R v Allen [1999] SASC 346, [16]. -- 7 of 11 -- [2024] SASC 1 Kimber J 6 failure to make an express reduction from a non-parole period was an error. The error identified by the Court was to overlook that period.8 23 Obviously enough, the best indication of a period on home detention bail not having been overlooked is express reference to having considered that period in fixing the non-parole period. 24 In this case, for two reasons, I am not satisfied that the period of four months was overlooked in fixing the non-parole period. The Magistrate referred to the period of home detention in the paragraph of his remarks set out at [15] above. While that reference was specifically with respect to the relevance of rehabilitation, given the Magistrate had only shortly before made the reduction from one of the head sentences imposed, that is an indication that the reduction had not been overlooked. If the matter rested there, I would nevertheless likely conclude the Magistrate had overlooked the period of four months. However, any doubt is, in my mind, resolved once the non-parole period arrived at is borne in mind. The non-parole period of seven months was about 25 per cent of the effective total head sentence. That is well below what would ordinarily be an appropriate proportion of the head sentence and suggests that the time on home detention bail was not overlooked. 25 Even were I wrong in the above approach and the period of four months was overlooked in fixing the non-parole period, I would not allow the appeal on this ground alone. Assuming that the Magistrate overlooked the reduction of four months in fixing the non-parole period, and assuming the total head sentence was appropriate, were I to re-sentence, I would not impose a non-parole period of less than seven months. Ground 5 — home detention Section 71(1)(c) of the Sentencing Act provides: (1) Subject to this section, if— (a) a court has imposed a sentence of imprisonment on a defendant; and (b) the court considers that the sentence should not be suspended under Part 4 Division 2; and (c) the court considers that the defendant is a suitable person to serve the sentence on home detention, the court may order that the defendant serve the sentence on home detention (a home detention order). 26 Among the material before the Magistrate was a home detention report pursuant to s 71(1)(c) of the Sentencing Act and other reports from the appellant’s current supervisor on home detention bail. The report pursuant to s 71(3) raised 8 Ribbon v The Queen, [37]. -- 8 of 11 -- [2024] SASC 1 Kimber J 7 concerns about the appropriateness of the appellant residing at the address proposed and was otherwise unsupportive of the appellant serving a sentence on home detention. Understandably, those concerns were substantially based upon the appellant having assaulted the two officers who had been attempting to check his compliance with home detention bail. That said, the concerns were not only based on that conduct. Reference was also made to inappropriate conduct on other occasions. Namely, verbal abuse on at least one occasion and leaving work early without permission more than once. 27 The report of the current supervisor was far more positive about the compliance of the appellant since the assaults. That report suggested the appellant had progressed in a positive way since the assault. The author opined the appellant might regress if returned to custody. 28 The Magistrate outlined the relevant aspects of the reports and declined to order the sentence be served on home detention. The Magistrate said: … I have taken into account the positive report from your current supervisor and the fact that you have been compliant with home detention bail conditions since your release from custody; but nonetheless, the circumstances here are that your previous record with respect to home detention compliance was poor, culminating in the assault of two departmental officers. I have formed the conclusion that you would not be a suitable person to serve this sentence on home detention. 29 The appellant submits the Magistrate erred in not ordering the sentence be served on home detention. The appellant submits that it was not open to the Magistrate to find the appellant was not a suitable person given his behaviour on home detention bail since release from custody. 30 The finding of the Magistrate was open. The behaviour of the appellant since the assaults was a positive development but that had to be balanced with the two assaults being committed while on home detention bail. Those assaults were committed upon two persons tasked with checking the compliance of the appellant with home detention bail. That is sufficient to dispose of this ground. Nevertheless, it may be observed that also weighing against the appellant being a suitable person was that, by the time of sentence, the appellant had breached more than one suspended sentence bond. Ground 6 — manifest excess 31 The appellant makes no complaint about the separate sentences imposed. The submission of the appellant is that the effective total head sentence of two years, five month and 18 days was manifestly excessive. The appellant submits the Magistrate was obliged to consider totality and that an application of that principle would have avoided a manifestly excessive sentence. -- 9 of 11 -- [2024] SASC 1 Kimber J 8 32 In R v E, AD,9 Doyle CJ identified that totality had two aspects. First, that the Court must ensure that the aggregation of the sentence appropriate for each offence is a just and appropriate measure of the total criminality involved.10 Second, whether the aggregate sentence was so ‘crushing’ as to call for some reduction on the grounds of mercy. 33 The Magistrate did not say that he had considered the total head sentence, whether it was ‘crushing’ or whether it was a just and appropriate measure of the total criminality involved. Nonetheless, there is no obligation to undertake that exercise every time more than one sentence is accumulated. 34 Before turning to whether the effective total head sentence is manifestly excessive, it is helpful to briefly state some principles. 35 It is not sufficient for an appellate Court to merely conclude that it would have come to a different decision from that reached by the Magistrate, or that the sentence imposed is markedly different from the sentences imposed in other cases.11 For a sentence to be manifestly excessive, it must be established that the Magistrate came to a decision that was unreasonable or plainly unjust, or that a specific error was made.12 To put this another way, absent specific error, the sentence must be ‘outside the permissible range of sentences for the offender and the offence’ before an appellate Court may intervene.13 36 In Brougham v R, it was held:14 Whether a sentence is manifestly excessive requires consideration of a range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit on the scale of seriousness of crimes of that type, and the personal circumstances of the offender. There is, however, a limit to the amount of analysis that may be brought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not permit of lengthy exposition. 37 The approach of the Magistrate to the accumulation of the sentences imposed for the four sets of offending was one which was open. Each occasion was a separate incursion into criminal conduct on a different day, albeit that the dishonesty offences had the same motivation. The order that the two sentences for the two assaults be served wholly concurrently was open but was not an approach the Magistrate was obliged to adopt. 38 The approach of the Magistrate did not result in an outcome which was unreasonable or unjust. The applicant had shown some signs of rehabilitation, particularly as evidenced by his behaviour on home detention bail in more recent 9 (2005) 93 SASR 20, [37]–[38]. 10 Postiglione v The Queen (1997) 189 CLR 295, 307–308. 11 Hili v The Queen (2010) 242 CLR 520, 538–539; Bugmy v The Queen (2013) 249 CLR 571, 588–589. 12 House v The King (1936) 55 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, 370–371. 13 Kentwell v The Queen (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane JJ); Hili v The Queen (2010) 242 CLR 520, 539. 14 Brougham v R [2023] SASCA 75, [28] (the Court). -- 10 of 11 -- [2024] SASC 1 Kimber J 9 times. Nevertheless, the appellant fell to be sentenced for offending which had taken place on four separate occasions. It was a serious aspect of all offences that they had been committed while subject to a suspended sentence bond. The assaults were committed while subject to bail. The offences committed suggested that personal deterrence was important. The need to deter others from offending in order to support a drug habit and from assaulting people tasked to supervise those on bail is obvious. 39 An effective total head sentence of two years, five months and 18 days, after full regard is had to the reductions for the pleas of guilty, was not manifestly excessive. It was not a crushing sentence. It was not more than what was just and appropriate for the appellant and this offending. 40 I dismiss Ground 6. Orders 41 The appeal is dismissed. 42 I will hear the parties as to any further orders. -- 11 of 11 --