HARDY JAMES WILSON v POLICE [2024] SASC 91

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE PANDYA) MCCRM-24-012847 Appellant: HARDY JAMES WILSON Counsel: MS C DEMERTZIS - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Respondent: POLICE Counsel: MS V RAJARAMANAN - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 04/07/2024 File No/s: SCCRM-24-014250 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. WILSON v POLICE [2024] SASC 91 Judgment of the Honourable Justice McDonald (ex tempore) 4 July 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE This was an appeal against sentence. Having entered a guilty plea to one count of aggravated theft, the appellant was sentenced in the Port Adelaide Magistrates Court to a term of imprisonment of eight months, which was reduced to four months and 24 days on account of the appellant’s early plea of guilty. This sentence was partially suspended upon the appellant entering into a good behaviour bond for a period of 12 months, which he did so on 10 May 2024. As a result of that partial suspension, the appellant was only required to serve one month of this sentence in custody. The appellant appeals against this sentence on two grounds: 1. That the sentence imposed by the Magistrate was manifestly excessive, and; 2. That the Magistrate erred in failing to exercise her discretion to wholly suspend the sentence. Held, allowing the appeal and resentencing the appellant: 1. The sentence imposed by the Magistrate was manifestly excessive, and a consideration of the totality of the appellant’s criminal conduct and personal circumstances did not warrant a starting point of eight months imprisonment. 2. The appellant is re-sentenced to a term of imprisonment of seven days, to be suspended upon him entering a bond to be of good behaviour for a period of six months Criminal Law Consolidation Act 1935 (SA) s 134(1); Sentencing Act 2017 (SA) s 94(4); Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2020 (SA) r 191.1(1), referred to. -- 1 of 8 -- House v the King (1936) 55 CLR 499; Wittwer v the Police [2004] SASC 226; Lowndes v The Queen (1999) 195 CLR 665; R v Wilton (1981) 28 SASR 362; Bugmy v The Queen (2013) 249 CLR 571; Kentwell v The Queen (2014) 252 CLR 601, considered. -- 2 of 8 -- WILSON v POLICE [2024] SASC 91 Single Judge Appeal McDONALD J (ex tempore): 1 This is an appeal against a sentence imposed by a Magistrate on 15 April 2024. The appellant was sentenced for one count of aggravated theft1 of four drinks and one item of food to the value of $28.05. 2 In sentencing the appellant, the Magistrate identified a starting point of eight months imprisonment. As the appellant had pleaded guilty at the first available opportunity he was entitled to the maximum discount. The sentence was reduced to four months and 24 days to take into account the guilty plea. The Magistrate partly suspended the term of imprisonment,2 requiring the appellant to serve one month before being released, with the remaining three months and 24 days to be suspended upon the appellant entering into a good behaviour bond for 12 months. 3 The grounds in the notice of appeal are: 1. The sentence is manifestly excessive; and 2. That the Magistrate erred in failing to exercise a discretion to wholly suspend the sentence. Principles on appeal 4 This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and r 191 of the Joint Criminal Rules 2022 (SA) (‘the Rules’). Appeals from a magistrate to a single judge of the Supreme Court are by way of rehearing pursuant to r 191.1(1) of the Rules. 5 In order to interfere with the exercise of a sentencing discretion there must be a demonstrated error of the kind described in House v The King.3 The approach to be adopted was summarised by White J in Wittwer v Police.4 The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or it if has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly … 1 Criminal Law Consolidation Act 1935 (SA) s 134(1). 2 Sentencing Act 2017 (SA) s 94(4). 3 (1936) 55 CLR 499. 4 [2004] SASC 226 at [16]. -- 3 of 8 -- [2024] SASC 91 McDonald J 2 6 The Court will not interfere merely because it would have exercised the sentencing discretion in a different way to the sentencing magistrate.5 7 It is the appellant’s submission that the sentence imposed by the Magistrate was infected by outcome error. In Lowndes v The Queen, the Court observed that:6 … a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. The facts 8 At about 10.00am on Saturday, 9 March 2024, the appellant attended at the On The Run at Brompton in the company of another. Between them the appellant and his co-offender stole two protein honeycomb chocolate drinks, two raspberry Coke drinks and one John West tuna lunch kit. 9 This offence was detected when police attended at the On The Run to obtain a statement in an unrelated matter. On arriving, the police saw the two offenders leaving the service station. The police viewed the CCTV footage and ascertained that the two offenders had taken items from the store without making payment. 10 At about 11.20 that morning the appellant was arrested and interviewed. He made full admissions. He said that he was aware that it is an offence to take items without making payment, however, he was not in the correct frame of mind at the time. 11 Following his arrest the appellant was given police bail to appear in the Port Adelaide Magistrates Court on 9 April 2024. He did not appear and a warrant was issued for his arrest. The warrant was executed on Friday, 12 April 2024 and the appellant remained in police custody awaiting court on Monday, 15 April 2024. On that date the appellant pleaded guilty and the Magistrate sentenced him to the sentence that I have set out. 12 Unfortunately, despite an appeal being lodged four days later, the appellant remained in custody and served the one month imprisonment. He, in fact, spent his 40th birthday incarcerated. 13 On 10 May 2024 the appellant entered into the suspended sentence bond. He now has a further three months and 24 days imprisonment hanging over his head until April of next year. 5 R v Wilton (1981) 28 SASR 362 at 363; Lowndes v The Queen (1999) 195 CLR 665 at [15]. 6 (1999) 195 CLR 665 at [15]. -- 4 of 8 -- [2024] SASC 91 McDonald J 3 The appellant’s personal circumstances 14 I turn to the appellant’s personal circumstances. The appellant is a 40-year- old Aboriginal man. Leading up to the commission of this offence the appellant had the care of five children, four of whom are young. Whilst the appellant was in custody his 17-year-old daughter was looking after the other four children. It would seem that during that time the children’s mother had moved from Ceduna to Adelaide to assist in the care of them once she was in a position to arrange suitable accommodation. I am advised that now that the appellant has been released from custody, he and the children’s mother are jointly caring for them. 15 The appellant has a not insignificant criminal history. Relevantly, he has a number of convictions for offences of dishonesty. These are set out in the table below: Date Court Offence(Offence Date Outcome 02/12/2020 Ceduna Magistrates Court Theft (02/10/2019) Convicted, imprisonment for 6 weeks, suspended upon entering into a bond to be of good behaviour for 18 months. Compensation - $565.00 to KIDSTUFF, Westfield Marion 09/07/2019 Christies Beach Magistrates Court Theft (09/03/2018) Theft (30/05/2018 Unlawful Possession (20/01/2019) Convicted, 1 month and 18 days imprisonment commencing on 02/03/2019. 30/05/2017 District Court of South Australia Theft (28/01/2015) Breach Bond – SS bond for offences of Aggravated Assault Police (06/03/2013) and Aggravated Assault (25/09/2011) Convicted, 2 months and 3 days imprisonment, suspended upon entering into a bond to be of good behaviour for 2 years. 30/12/2012 Port Adelaide Magistrates Court Theft x 2, Aggravated Assault (25/09/2011) Convicted, good behaviour bond for 18 months to come up for sentence if called upon. (This bond was later breached and appellant was resentenced for the Aggravated Assault, but no further action was taken in relation to the charges of theft.) 06/01/2009 Port Adelaide Magistrates Court Theft (08/07/2008) Convicted, costs only. -- 5 of 8 -- [2024] SASC 91 McDonald J 4 16 He has had five appearances before the Court for offences of theft between 2009 and 2020. Ground 1 – The sentence is manifestly excessive 17 I turn to consider ground 1, that is, that the sentence is manifestly excessive. 18 There is no sentencing standard for the offence of aggravated theft. The nature of the crime is such that the circumstances in which it will be committed will vary dramatically. Factors that will affect the seriousness of the offence will include the value of the property stolen, the nature of the victim and any impact on that victim and the audacity of the conduct involved in carrying out the offence. 19 The Magistrate characterised this offence as serious and observed that this “is reflected in the high maximum penalty”. The Magistrate also placed weight on the impact to the victims of the offending. She said: I ask you to think of what it is like for people who work at On The Run and what it must be like to be distressed and worried about their safety and regularly being the victims of crime. I take into account the impact on them. 20 It was submitted by the appellant that the Magistrate was in error in describing this offence as serious. That was on the basis that this offence was, in fact, at the lower end of the scale of seriousness for offences of theft. However, despite that it had attracted a sentence that would ordinarily be imposed for offences at the higher end of the scale of seriousness. 21 It was further submitted that the Magistrate placed undue weight on the impact to the victims of this offence in circumstances in which the two offenders left the store without their crime being noticed by any of the staff. The appellant contended that this compounded the error of the Magistrate in categorising this offence as serious. Matters favourable to the appellant 22 The Magistrate acknowledged that the appellant had made full admissions and had provided the police with an explanation for his conduct. The Magistrate also accepted that the appellant’s guilty plea was a reflection of genuine remorse. 23 The Magistrate took into account the fact that the appellant had the responsibility for parenting four children. She observed “[t]he impact on your children must be taken into account and it cannot be ignored, but I have to note that the mother of the children is available to look after the children once the housing issue is resolved”. 24 In her sentencing remarks the Magistrate provided a summary of the appellant’s relevant criminal history in the following terms: You are aware how serious the charge of theft is because you have been before this court on other occasions for dishonesty matters. You have been here in December 2020 for a -- 6 of 8 -- [2024] SASC 91 McDonald J 5 charge of theft which occurred in 2019 you received a six-week term of imprisonment. It was suspended upon you entering into a bond to be of good behaviour for the next 18 months. You were able to get through that bond. In 2019 you were before the court for three dishonesty matters. You again received a period of imprisonment of one month and 18 days which you served, and I can see that in 2017 you were sentenced again for theft, and you breached the bond that you were put on in relation to theft matters. 25 The Magistrate did not, however, identify in what way that history impacted on the sentence or how it was taken into account. 26 It was the appellant’s submission that the appellant’s prior offending was of some assistance in assessing the appropriate penalty for the current offence. It was submitted that:7 The most recent prior for a similar offence (which is also the most recent prior for any type of offending) appears to be for a more serious example of theft and it attracted a far more lenient penalty, as did all the other similar offences committed by the appellant. The disparity between the sentences imposed for previous offences and the notional head sentence for this, potentially less serious example of this type of offence, supports the argument that the notional head sentence is manifestly excessive. Is the sentence manifestly excessive? 27 In order to establish that a sentence is manifestly excessive it is not sufficient for an appellate court to merely conclude that it would have arrived at a different sentence or that the sentence imposed is markedly different from sentences imposed in other cases.8 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.9 To put it another way, absent the identification of specific error the sentence must be outside the permissible range of sentences for the offender and the offence before the appellate court may intervene.10 28 I have arrived at the view that the sentence imposed was manifestly excessive in that a consideration of the totality of the appellant’s criminal conduct and personal circumstances did not justify such a high starting point. 29 The theft was an offence that fell towards the lower end of the scale of seriousness for offences of this type. The conduct was impulsive and opportunistic, and the value of the property stolen was trifling. Further, whilst it was open for the Magistrate to take into account the general impact of the offending of this nature on employees of service stations, there had been no actual impact on the staff at the On The Run. They were unaware that an offence had been committed. 7 Written Submissions of Appellant for Hearing (FDN 5) at 3. 8 Bugmy v The Queen (2013) 249 CLR 571 at 588-589. 9 House v The King [1936] 55 CLR 499 at 505. 10 Kentwell v The Queen (2014) 252 CLR 601 at 615. -- 7 of 8 -- [2024] SASC 91 McDonald J 6 30 There were also matters personal to the appellant that warranted a lower starting point. These included his obvious remorse as evidenced by his admissions and early guilty plea. 31 The appellant’s antecedents were another important consideration. As mentioned, he is 40 years old, and whilst he has a number of prior convictions these are spread over many years. His most recent offence was a theft committed in 2019 that seems to have involved toys or some other child-related products. Prior to that there were thefts in 2018 and moving back in time relevant offences in 2015, 2011 and 2008. 32 This pattern of offending does not suggest that the appellant’s criminal conduct was escalating such that a sentence that was a strong personal deterrent was required. To the contrary, such unsophisticated offending of property of such a low value is indicative that, as the appellant said, he was not in the right frame of mind, or as his counsel put it, it was a poverty-driven offence. 33 In all of the circumstances, a starting point of a head sentence of eight months was manifestly excessive. I make the following orders: 1. I allow the appeal; 2. I revoke the sentence imposed on 15 April 2024; and 3. I re-sentence the appellant to seven days imprisonment, to be suspended upon him entering into a good behaviour bond for a period of six months. In arriving at that sentence I take into account that he has now served a term of one-month imprisonment and a period of time on a suspended sentence good behaviour bond. 34 In my view, given the appellant’s antecedent history, the fact that he was under the influence of alcohol at the time of this offence, it is appropriate that there be a period of supervision to assist the appellant, particularly in circumstances where he continues in the very difficult role of caring for five children. -- 8 of 8 --