Robert Jildo Saga v Jarrod Reid and Tristan Allan Collett

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 01 July 2010
• Date: 01 July 2010
• Docket Number: No. SCA 70 of 2009

[2010] ACTSC 59

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SCA 70 of 2009

Between:

Robert Jildo Saga

Appellant

and

Jarrod Reid and Tristan Allan Collett

Respondents

Counsel for the appellant: Mr R Davies

Counsel for the respondents: Mr D Sahu Khan

Edwards v Buck (1991) 14 MVR 179

Nevard v Harley (1980) 31 ACTR 13

Barac v Thexton [2008] ACTSC 137

Spatolisano v Hyde [2009] ACTSC 161

Pope v Ewendt (1977) 17 SASR 45

R v Nguyen [2006] VSCA 184

Eliasen (1991) 53 A Crim R 391

Campbell v Fortey (1987) 85 FLR 462

R v Babic [1998] 2 VR 79

R v McLachlan (2004) 8 VR 403

Goodwin (1990) 51 A Crim R 328

House v The King (1936) 55 CLR 499

Battams (1979) 1 Cr App R (s) 15

Veen v The Queen (No 2) (1988) 164 CLR 465

Dinsdale v The Queen (2000) 202 CLR 321

Ly v The Queen [2007] NSWCCA 28

Ledson v Taylor & Ors [2010] ACTSC 42

White v Brown [2003] NTSC 51

Taylor v Bowden [2009] ACTSC 13

Director of Public Prosecutions (NSW) v Cooke and Anor (2007) 168 A Crim R 379

R v Marston (1993) 60 SASR 320

Thompson v Young [2008] ACTSC 11

R v Cooke [2007] NSWCCA 184

Salmon (1973) 57 Cr App R 953

R v JG [2005] VSCA 74

Cotter v Corvisy (2008) 1 ACTLR 299

Harper v Low & Wood [2009] ACTSC 136

R v Phay [2009] ACTSC 130

Arman v Wall [2008] ACTSC 61

Stead v State Government Insurance Commission (1986) 161 CLR 141

Criminal Code 2002 (ACT), ss 321, 324(1)

Drugs of Dependence Act 1989 (ACT)), ss 171, 171(1), 171A

Crimes (Sentencing) Act 2005 (ACT), ss 7, 10(2), 13(6), 17, 27, 37, 63, 65, Pt 3.2, 4.2

Crimes (Sentence Administration) Act 2005 (ACT), ss 86(1)(a)(i), 110, 110(1), 110(1)(b), 110(2), 110(2)(b), 110(4)

Magistrates Court Act 1930 (ACT), ss 208(1)(e)(i), 214(3), 214(3)(b), 214(4), 216(1), Pt 3.10

Court Procedures Rules 2006 (ACT), rule 5193

Legislation Act 2001 (ACT)), s 133

Bail Act 1992 (ACT)

Bartels L ‘The use of suspended sentences in Australia: Unsheathing the Sword of Damocles’ (2007) 31 Crim LJ 113

CRIMINAL LAW — Appeal from Magistrates Court of the ACT — section 208(1)(e)(i) Magistrates Court Act 1930 (ACT) —Ground of appeal, sentences of imprisonment manifestly excessive.

APPEAL — Consideration of fresh evidence not before Sentencing Magistrate — Different circumstances of the offender at the time of sentencing and at the time of the appeal.

APPEAL — Sentencing principles — Offender sentenced to rising of the court — Order of sentences — Consideration of plea of guilty

APPEAL — Re sentencing — Deferred sentence order

ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The sentences of the Magistrates Court imposed on 15 October 2009 be set aside.

3. Robert Jildo Saga appear before the ACT Supreme Court at 9.30 am on 22 February 2011 to be sentenced.

4. The conditions of this order are that:

• (a) he to appear before the ACT Supreme Court at 9.30 am on 27 October 2010 to assess his progress;

• (b) he accept the supervision of an officer of ACT Corrective Services delegated by the Chief Executive to supervise him and that he obey all reasonable directions of that officer except as to alcohol and drug counselling;

• (c) he continue participation in the methadone maintenance program of ACT Health and with counselling at the Alcohol and Drug Program of ACT Health and Directions ACT;

• (d) he accept supervision by the Court Alcohol and Drug Assessment Service (CADAS) and obey all reasonable directions as to alcohol and drug counselling by the staff of that agency directed to supervise him;

• (e) where any direction of the officer of ACT Corrective Services is inconsistent with a direction of the staff of CADAS, the direction of the officer of ACT Corrective Services shall prevail.

5. The Chief Executive be directed to prepare a Pre-Sentence Report under Pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT) limited to Mr Saga's compliance with the deferred sentence order and bail conditions for both the appearances on 27 October 2010 and on 22 February 2011 and also, for the latter date, his then suitability for a community service condition of a good behaviour order and periodic detention.

6. CADAS be requested to prepare a report on Mr Saga's alcohol and drug treatment and counselling for both the appearances on 27 October 2010 and on 22 February 2011.

7. Robert Jildo Saga be granted bail to appear on 27 October 2010 and on 22 February 2011 on the following conditions:

• (a) that he abstain from the use of illicit drugs;

• (b) that he submits to urinalysis when required;

• (c) that he report forthwith to ACT Corrective Services at Eclipse House, London Circuit, Canberra City for the purpose of arranging supervision under the deferred sentence order;

• (d) he report thereafter and, in any event, within 24 hours to CADAS at the ACT Magistrates Court or the Alcohol and Drug Program, ACT Health Building, Moore Street, Canberra City for the purposes of arranging supervision under the deferred sentence order.

1 When fresh evidence is adduced on an appeal, it can give quite a different complexion to the case so that while a decision was justified on the facts and circumstances known to the lower court, that decision can no longer be justified. This is the situation with this appeal.

2 The appellant, Robert Jildo Saga, pleaded guilty to three charges of dishonesty (one of theft and two of possession of property reasonably suspected of being stolen), one charge of possessing cannabis and to breaching a suspended sentence. He had a long history of offences of mid-range seriousness, such as unlawful possession of stolen property, driving whilst disqualified, theft and drug possession. It would appear that much of his offending was drug-related.

3 On 15 October 2009, the learned Sentencing Magistrate sentenced him to a total of eight months imprisonment. One day less than four weeks later, he appealed to this Court against the severity of the sentence. Fourteen days later he was released on bail pending the hearing of the appeal.

4 The appeal came on for hearing on 21 May 2010.

The facts of the offences

5 The four offences which brought Mr Saga before the court and to which he pleaded guilty occurred as follows.

6 On 1 May 2009, police received an anonymous letter advising them that Mr Saga had a stolen vehicle on his premises. Police attended at his premises three days later and found a vehicle at the back of his premises. A check of registration information showed that it had been stolen between 10.00 pm on 18 April 2009 and 7.00 am on 19 April 2009.

7 Later that day (though curiously, the Statement of Facts says one month earlier, presumably a typographical error), police attended at Mr Saga's home again. They confirmed that the stolen car was still there and found another stolen car also there. That other car was missing the front guards, bonnet, front grill, headlights and interior. They searched the house and found a small foil package containing cannabis. Mr Saga admitted that it was his cannabis.

8 Mr Saga was arrested and interviewed. He said that he had found the first car in a storm drain at the end of his street. He pushed it back towards his house and then started it with a screwdriver but ran alongside it, steering it from the outside ‘so as not to drive it … because he was a suspended driver’.

9 Despite his apparent sensitivity to his new-found need to respect the driving laws, Mr Saga was presumably not aware of decisions such as Edwards v Buck (1991) 14 MVR 179 where (at 184) White AJ followed English authority in holding that a person who ‘had been walking beside [a car] as it ran down a slight incline, and had steered it by placing his hand on the wheel’ was driving the vehicle because he was ‘in a substantial sense controlling the movement and direction of the car’.

10 When interviewed by police, Mr Saga said that he thought the car may have been stolen but made no inquiries. He intended to keep the car. He also said he knew what he had done was not the right thing to do.

11 As to the other car, he said to police that he had bought it for $500. He had not removed the various items from it but said he intended to buy another car of the same model in a similar condition and make one out of the two.

12 The police have made attempts to speak to the registered owner of the motor vehicle that was in the street to obtain a statement as to ownership, but he has refused to speak to them.

13 Mr Saga was charged under s 324(1) of the Criminal Code 2002 (ACT) (ACT Criminal Code) with two offences (one for each car) of having possession of property reasonably suspected of being stolen or otherwise unlawfully obtained.

14 In relation to the possession of cannabis, Mr Saga was issued with a Simple Cannabis Offence Notice (see s 171A of the Drugs of Dependence Act 1989 (ACT)) but failed to pay the specified prescribed penalty and a summons was issued for possession of cannabis.

15 On 30 July 2009, Mr Saga entered a supermarket in a southern Canberra suburb, pushing a trolley in which was a small boy. He picked up a small box from the front counter, placed it in the trolley, took off his jacket and covered the box with it.

16 A short time later, he returned to the counter, picked up another box and also covered it with his jacket. He then left the supermarket. All this was recorded on the store surveillance video system.

17 One of the supermarket's employees noticed that the two boxes were gone and reported the matter. Police attended, viewed the video and recognised Mr Saga. They later attended his home and found one of the boxes and some of the videos that had been in it. Mr Saga was arrested and charged with the theft of the contents of the two boxes, namely 17 DVDs and two mobile phones. The charge was laid under s 321 of the ACT...