Abdilla v Police No. Sccrm-03-231
[2003] SASC 312
•4 September 2003
ABDILLA v POLICE
[2003] SASC 312
Criminal
BESANKO J: This is an application by the defendant for the review of a decision by a Magistrate to revoke bail. The application is brought pursuant to s 14 of the Bail Act 1985. By reason of s 14(3) of the Act, I must reconsider the application for release on bail, and I may make any decision on the application which should in my opinion, have been made in the first instance.
The defendant was born on 10 September 1980, and he is almost 23 years old.
On 28 July 2003 the defendant was charged with three counts of larceny, three counts of serious criminal trespass and one count of theft. The defendant had been arrested on 6 July 2003. He was granted police bail on that day. On 28 July 2003 the defendant appeared before a Magistrate sitting at the Tanunda Magistrates Court. He was granted bail.
On 25 August 2003 the defendant appeared before another Magistrate sitting at the Tanunda Magistrates Court. The Court record indicates that the prosecution tendered no evidence in relation to count 7, and that count was dismissed for want of prosecution. It also indicates that the defendant pleaded guilty to the offences alleged in counts 1 to 6. He was remanded in custody to 19 September 2003. The Magistrate ordered what he described as “a full comprehensive general pre-sentence report”. The Magistrate did not deliver written reasons for his decision to revoke bail.
The defendant has two previous convictions for larceny, and has been found guilty of other fairly minor offences. In relation to the most recent conviction for larceny, the defendant was convicted on 28 November 2001, and he entered into a two year good behaviour bond in relation to that conviction. It follows that the defendant committed the present offences during the period of the bond.
The summons for review is supported by an affidavit from the defendant’s solicitor. He deposes to his attendance before the Magistrate on 25 August 2003. He states that the Magistrate asked him whether he would be seeking a pre-sentence report, and that he advised the Court that he would not be seeking such a report. The Magistrate advised the defendant’s solicitor that given the nature of the charges he would have to consider a custodial sentence. The defendant’s counsel advised the Magistrate that he was aware of that fact. The Magistrate said that he believed a pre-sentence report was necessary. The defendant’s solicitor deposes to the fact that the prosecutor did not inform the Magistrate of the allegations in relation to the relevant offences. The defendant’s solicitor deposes to the fact that all of the offences occurred on one night (ie 5 July 2003) when the defendant was heavily intoxicated. The defendant appears not to remember what occurred. The defendant’s solicitor deposes to the fact that the majority of the stolen items have been retrieved by the police. The defendant’s solicitor deposes to the fact that the defendant has shown contrition for the offences. He has pleaded guilty to the charges and he has been cooperative with the police. The defendant’s solicitor deposes to the fact that the defendant is married and has been in a stable relationship with his wife for some time. The defendant suffers from various injuries including a painful back. The defendant’s solicitor asserts that the prospects for the rehabilitation of the defendant are good. The offences, and the previous offence of larceny, occurred while the defendant was with a Mr Johnson. The defendant’s wife has banned him from associating with Mr Johnson and has advised him that if there are any further incidents she will leave him. The defendant has taken steps to reduce his alcohol usage as a form of pain relief and he has the support of his immediate family. The defendant’s wife works full time for General Motors Holden at Elizabeth working the afternoon shift from 2:45PM to 10:45PM. The defendant is the sole carer for their eleven month old child while his wife works. The defendant’s wife has managed since the defendant’s imprisonment with the aid of the child’s grandmothers. However, this has been done at some inconvenience and will not be viable as a long term option.
Counsel for the defendant presented his argument on the assumption that the defendant had been convicted of the various offences to which he had pleaded guilty. I will proceed on that assumption. He acknowledged that in those circumstances the presumption of bail did not arise (see s 10(2) and Lavers v Fauser (1986) 41 SASR 593). The defendant’s counsel referred me to the decision of O’Loughlin J in Lavers v Fauser. In that case, the defendant was charged on complaint before a Court of Summary Jurisdiction with having driven an unregistered and uninsured motor vehicle, and also on information with having stolen a motor vehicle. At the time of the offences, the defendant was 19 years of age. He pleaded guilty to the charges. The Court ordered a pre-sentence report and a community work assessment report, and remanded the defendant in custody. The defendant’s application for bail was refused. On appeal, O’Loughlin J granted bail. Two important features of that case were that the defendant was remanded in custody for a period of 2 months, and that the Magistrate saw fit to order a community work assessment report. The order for a community work assessment report meant that the Magistrate was contemplating the possibility of discharging the defendant upon condition that he enter into a recognizance with or without sureties or of suspending a custodial sentence. O’Loughlin J said (at 598 – 599):
“But where, in a court of summary jurisdiction, there is proper cause to be uncertain about the actual sentence to be imposed upon an offender, the just course of action (unless extraneous circumstances renders it wholly inappropriate) is to refrain from placing a person in custody until all inquiries pertinent to the sentencing process have been completed. ‘[T]o remand a defendant in custody for sentence, even for an indictable crime, will not be by any means a matter of course in a court of summary jurisdiction’ (Ex parteRundle, per Cox J at 287). Indeed, there is much to be said for the proposition that in appropriate circumstances a court of summary jurisdiction should refrain from recording a conviction until the court is ready to proceed with the imposition of the sentence (see the remarks of Bray CJ and Cox J to this effect in Elliott v Harris (No 2) and Ex parte Burke).
It may have been that prior to the introduction of the Bail Act it would have been rare for the Supreme Court to grant bail to a defendant who had been found guilty in a court of summary jurisdiction and thereafter remanded in custody for sentence. I refer generally to the authorities collected on this subject and referred to in the judgment of Cox J in Ex parte Rundle.
However, the position has changed with the introduction of the Bail Act.”
I note that in one of the cases to which O’Loughlin J referred, Ex parte Rundle (1982) 30 SASR 282, Cox J said at (287):
“More important, whether or not the books expressly say so, I have no doubt that judges commonly remand the defendant for sentence in custody, not because they expect to give him a prison sentence at the end of the remand period but because they expect not to. There are many cases in which the best thing to do in a difficult case, is to let a defendant have a brief experience of what he is, by way of sentence, narrowly missing, and then to release him on a bond in the hope that he will not offend again. To deny such a power to the courts is to reduce the sentencing options available and, in a borderline case, possibly to tip the scales in favour of the sentence of imprisonment. Obviously that would be regrettable.”
Cox J also made the point that it is not possible to enunciate any rule of thumb that will cover all cases and he said (at 287):
“The test will always be, for the Magistrate as for this court on review, whether the remand in custody was a just order to make in all the circumstances. I do not think one can say more about it than that, except to repeat the statement that any order that has the effect of depriving a person of his liberty, particularly where it is unappealable, should only be made after very careful consideration.”
Although these observations were made in the context of the inherent jurisdiction of this Court to grant bail, I think a similar approach should be adopted in considering the matter under the Bail Act.
In my opinion, this case is finely balanced. There is no presumption in favour of bail. At the same time, the defendant is a person who is eligible for release on bail under the Bail Act (s 4). I do not think it can be said that a custodial sentence is unlikely. In making that observation, I do not wish in any way to influence the decision to be made. It may be, that after considering the pre-sentence report, the Magistrate takes the view that a non-custodial sentence is appropriate. That is a matter for him. It may be that if there is to be a substantial period of time between conviction and sentence, that consideration together with other considerations will be relevant to whether bail should be granted between conviction and sentence. That is not the case here. The defendant will be sentenced on 19 September 2003. In the end, the decision to grant or refuse bail must be made having regard to the particular circumstances of the case.
The offences of which the defendant has been convicted are relatively serious. They were committed by the defendant at a time when he was the subject of a good behaviour bond. It cannot be said that a custodial sentence is unlikely, although, as I have said, what sentence is ultimately imposed is a matter for the Magistrate. I am not satisfied that it is an appropriate case for bail. The application is refused.