Agnello v POLICE - [2004] SASC 231

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
AGNELLO v POLICE
Judgment of The Honourable Justice White
30 July 2004
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
CIRCUMSTANCES OF OFFENDER - MENTAL IMPAIRMENT

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
OTHER MATTERS - MISAPPREHENSION OF FACT BY TRIAL JUDGE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS
COMMUNITY BASED ORDERS
Appeal against order revoking suspension of term of imprisonment - Appellant had failed to comply with terms of bond requiring performance of community service - Appellant had organic brain impairment - Psychiatric and pre-sentence reports tendered on appeal - Reports not before Magistrate - Magistrate unaware of appellant's mental condition - Appellant appeared before Magistrate with counsel but counsel had not been instructed - Appellant's counsel applied for adjournment to seek instructions but Magistrate refused - Whether Magistrate erred in failing to allow adjournment - Appeal allowed - Appellant re-sentenced on appeal - Appropriateness of community service order having regard to appellant's mental condition - Extension of time to perform community service - Community service order hours reduced.
Criminal Law (Sentencing) Act 1988, s 58, s 71, referred to.

AGNELLO v POLICE
[2004] SASC 231
Magistrates Appeal
WHITE J
Introduction

This is an appeal against an order of a Magistrate revoking an order for suspension of a term of imprisonment. The suspension was revoked because of the appellant’s non-compliance with the terms of the bond upon which the sentence had been suspended.
Background
On 13 January 2003, the appellant pleaded guilty in the Magistrates Court to the offences of non-aggravated serious criminal trespass in non-residential premises and larceny.
He was sentenced that same day. Convictions were entered. The appellant was sentenced to imprisonment for six months but there was an order that that sentence be suspended upon the appellant entering into a bond in the sum of $100 to be of good behaviour and to comply with all of the conditions of the bond. It was a term of the bond that the appellant perform 150 hours of community service work within nine months. The appellant entered into a bond in those terms on 13 January 2004.
To date, the appellant has performed only 7.5 hours of community service work. Those hours of work were performed on 4 February 2003. He failed to attend nominated community service placements as directed on 22 February 2003, 27 February 2003, 15 March 2003 and 5 April 2003, despite two warning letters having been sent to him.
An application for enforcement of the bond was made on 21 October 2003.
The application for the enforcement of the bond first came on for hearing before Ms McInnes SM in the Magistrates Court at Port Adelaide on 27 November 2003. The application was then adjourned to 9 January 2004. The record of the hearing on 27 November 2003 bears the endorsements “Part-heard and adjourned” and “To seek legal advice – to lodge legal aid form immediately.”
Instead of 9 January 2004, the matter came on again before Ms McInnes SM on 8 January 2004. The file does not contain an explanation for the transfer of hearing dates. In any event, on that occasion, the matter was adjourned to 11 February 2004. The file again contains a typed endorsement “Part-heard and adjourned”, in addition to a handwritten endorsement “Part-heard”. It also bears the endorsement “To seek legal advice”.
On 11 February 2004 the matter was adjourned to 24 March 2004. The record on that occasion contains no endorsement to the effect that the matter was regarded as part-heard. The record did, however, include the endorsement “No further adjournments for any reason whatsoever – legal aid instr”.
For reasons unexplained, the matter came on again in the Magistrates Court on 23 March 2004, rather than on 24 March 2004. Furthermore, the application was heard on that day by Mr Ackland SM, not Ms McInnes SM.
The file does not indicate whether a hearing did commence before Ms McInnes SM on 27 November 2003 nor whether any submissions or evidence were taken on that day. It seems unlikely that a hearing did commence because no plea was taken from the appellant until 23 March 2004. It may be that the endorsements “Part-heard and adjourned” are not be understood as indicating that the matter was, in fact, part-heard before Ms McInnes SM but rather that, pursuant to administrative arrangements within the court, the matter had been assigned to Ms McInnes and that it was expected, in the ordinary course of events, that she would maintain the carriage of the matter.
On two of the three appearances before 23 March 2004, the appellant had been represented by a duty solicitor.
Legal aid was granted to the appellant on 25 January 2004. The matter was assigned to Ms Saraf, but the appellant had not, as at 23 March 2004, made any appointment to see her. The materials do not indicate why such a meeting had not been arranged. It may have been due, at least in part, to the appellant’s mental condition to which I refer below.
Ms Saraf attended with the appellant before Mr Ackland SM on 23 March 2004. Ms Saraf applied for the hearing to be adjourned so that she could obtain instructions. The Magistrate refused that application. Ms Saraf, being without instructions, then applied for, and was granted, leave to withdraw. Thus, the application for the enforcement of the bond was dealt with on 23 March 2004 whilst the applicant was unrepresented.
The Magistrate’s Decision
The appellant admitted the breach of bond. He proffered two explanations for his non-compliance. They were that he had had some problems with his son, and, secondly, that he had had some difficulty having some people, whom he had invited to live with him in his house, leave the house. The appellant wanted them to leave because he did not trust them and was unwilling to leave the house whilst they were present. The Magistrate did not regard those explanations as adequate.
The Magistrate revoked the suspension of the six months’ term of imprisonment and ordered it to be served forthwith. The Magistrate said:
“Orders made by courts of summary jurisdiction are made on behalf of the community. If, in appropriate cases, those courts do not have the courage and the willingness to enforce their own orders, those orders will increasingly be dealt with contempt. That will not be to the advantage of the community. In my discussion with Mr Agnello I have tried to discover any reason that might explain or excuse or mitigate his failure to do the work that he promised to do. I have not come anywhere near discovering any excuse, any explanation, any mitigation. He performed no more than 17½ (sic) hours because he simply had no respect for the order, for the court that made it or for the community represented by the court.”
The appellant spent 24 days in custody prior to being granted bail pending the outcome of this appeal.
Extension of Time
The notice of appeal was filed on 3 June 2004. This was well outside the 14 day prescribed period. The appellant had initially pursued the course of seeking a rehearing of the application for the enforcement of the bond. When he had not been able to obtain a expeditious hearing of that application, the appellant abandoned that course and filed the notice of appeal in this Court. The Crown did not oppose the grant of an extension of time. In these circumstances, I grant an extension of time to the appellant to 3 June 2004 for the filing of the notice of appeal.
Appellant’s Mental Impairment
On 16 February 1986, the appellant was involved in a car accident causing him head injuries. As a result of those injuries, the appellant has been left with some organic brain impairment.
I received into evidence on the appeal, and with the consent of both parties, a number of affidavits. Those affidavits included a report from Dr Raeside, psychiatrist, following an examination by him of the appellant on 21 May 2004 for the purposes of this appeal. In addition, I received a pre-sentence report prepared by Mr Patrick Greenrod dated 8 October 2003, in connection with other proceedings concerning the appellant which were before the Port Adelaide Magistrates Court on 9 October 2003. Mr Greenrod’s report contained an extract from a letter written by Mr G A J McCulloch, neurosurgeon, dated 18 May 1994 as follows:
“I confirm that he (the defendant) was an in-patient of the QEH from 16/2/86 to 14/4/86 following a motor vehicle accident in which he suffered major injuries including a major head injury … . The head injury would have given him some intellectual impairment, including impairment of judgment and short memory.”
Mr Greenrod noted that the appellant had a long antecedent history. His conclusion included the following:
“Community based supervision appears inappropriate for the defendant.
However, should the Court consider it as a component of penalty, supervision may help to investigate whether the head injury sustained by the defendant in the 16/2/86 vehicle accident contributed in any way to his continued offending.”
Dr Raeside’s report of 31 May 2004 including the following under the heading “Conclusions and Recommendations”:
“… he appears to have been significantly impaired by the effects of a brain injury, although I have no information that explicitly states any degree of impairment. However, on clinical grounds, he appears to have suffered frontal lobe impairment, with typical features of change of personality, impulsivity, poor judgment, and difficulty in organisational abilities and motivation. … I would agree with the previous pre-sentence report that Mr Agnello is likely to do poorly with general community service. He would require considerable assertive supervision by an experienced probation and parole officer in the community. With very close supervision he would probably be able to engage in some structured community programmes, but I doubt that he would be successful if left to his own motivation and organisation. Further, he appears to have significant literacy problems and traditional contact via letter is unlikely to be successful unless this is directed towards his mother. Telephone contacts and even personal visits would likely be much more successful … Finally I believe that Mr Agnello is barely fit to plead and participate in his legal matters. He has a very basic and concrete understanding of these matters and would require considerable assistance by his legal counsel and his mother. He certainly would be unfit should he seek to represent himself, as he seemed to indicate at an earlier time, although I have no information about this either.”
None of the information to which I have just referred was before the Magistrate on 23 March 2004.
The Refusal of the Adjournment
On the appeal, Mr Katsaras for the appellant submitted that the Magistrate had been in error in refusing the adjournment requested by Ms Saraf on 23 March 2004. He submitted that if the adjournment had been granted, even for a short time, Ms Saraf would have been able to take the instructions which she sought and to have investigated the matter. Given that the pre-sentence report from Mr Greenrod was already in existence, he submitted that it is likely that it would have come to Ms Saraf’s attention. Further, the appellant’s organic brain impairment would likely have come to attention as well.
It is understandable that the Magistrate refused the application for the adjournment. The matter had been before the court on three previous occasions. On each of those occasions the matter had been adjourned so as to give the appellant an opportunity to obtain legal assistance. Although legal aid had been granted on 25 January 2004, the appellant had not, as at 23 March 2004, had a meeting with the solicitor to whom he had been assigned. Furthermore, this occurred in the context of the court having to deal with a person who had not complied with previous obligations imposed as a result of court order. Further again, the court was not informed of the appellant’s intellectual impairment and so was unable to take that into account as a factor mitigating the delay in the appellant obtaining legal assistance.
Notwithstanding these features, I do consider that the Magistrate erred in not granting the adjournment sought by Ms Saraf on 23 March 2004. Although the appellant had delayed in obtaining legal assistance, the fact of the matter is that he was then before the court with counsel. The court must then have been contemplating the revocation of the suspension of the sentence and therefore that the appellant faced imprisonment for a not insubstantial period. It was an error, in my judgment, to require the appellant to face that prospect without the legal assistance which he had available to him. It is a serious matter to require a person to deal, without legal assistance, with proceedings which might result in a substantial term of imprisonment. Had Ms Saraf been given the opportunity to take instructions, and to investigate the matter, it is likely that she would have been able to put evidence before the court as to the appellant’s intellectual impairments. The court thereby would have been better informed and in a better position to consider an appropriate order. Those conclusions apply with even greater force if, as appears to be the case, the matter was called on on 23 March, one day earlier than the date to which it had been adjourned on 11 February 2004.
For that reason alone, the intervention by this Court is required. It is appropriate that I exercise the discretion afresh.
That being so, it is unnecessary for me to consider the further submissions of Mr Katsaras to the effect that the Magistrate erred by failing to refer the matter on 23 March 2004 to the duty solicitor or in failing to request a pre-sentence report, or in failing to make other forms of inquiry.
Reconsideration
The appellant submitted that his failure to attend the community service placements, and to comply with his bond, should be attributed to the impairments resulting from his head injury. In particular, the appellant pointed to his difficulties with memory and organisational ability to which Dr Raeside has also referred.
Although the material from Dr Raeside and Mr Greenrod questions the appropriateness of a community service order in the appellant’s case, the appellant submitted that, in the light of their reports, an appropriate order would be to grant, pursuant to s 58(3) of the Criminal Law (Sentencing) Act 1988, an extension of time to the appellant in which to perform the community service work. In addition, the appellant submitted that some reduction in the number of hours to be performed should be made because of the 24 days which the appellant has spent in custody.
Mr Jacobi, for the Crown, drew my attention to the fact that the appellant had on previous occasions complied with orders for the performance of community service work, and furthermore, had kept, regularly, appointments with his Community Corrections Officer. He submitted, therefore, that the intellectual impairment may not be so great as to prevent the appellant complying with his obligations for performance of work under a community service order. At the same time, however, the Crown’s submission was that if the Court found that the Magistrate had erred on 23 March 2004, it did not oppose the grant of an extension of time for the performance of the community service.
I am satisfied that the frontal lobe impairment of the appellant explains, at least in part, the appellant’s failure to perform the community service required of his bond. It may not be the whole explanation. The history of compliance with previous community service orders, and the history of compliance with appointments with the Community Corrections Officer suggests that there may have been other factors operating in early 2003 which led to the appellant not fulfilling his obligations. Dr Raeside was apparently not informed of this history. It is unknown whether knowledge of that history would cause any alteration of his views. I am told that a recent neuropsychological assessment of the appellant has been made. That report was not put in evidence before me, although I was told orally that it confirmed the appellant’s difficulties with organisational abilities, motivation and short-term memory.
Although I do not consider that I have been fully appraised of the appellant’s condition, I am satisfied that the appellant’s non-compliance with the terms of his bond was, at least in part, a manifestation of his intellectual impairment rather than a contumelious defiance of the authority of the court.
Although there are real doubts as to whether a requirement for performance of community service is appropriate in the appellant’s case, given the attitude taken by the appellant on the appeal, and by the Crown, it is appropriate that the appellant be given an extension of time of six months in which to perform the service required by his bond.
Given that the appellant has spent 24 days in custody, there should be a reduction, pursuant to s 58(3)(b)(C) of the Criminal Law (Sentencing) Act in the number of hours of community service required of him. I propose to reduce the number of hours to 47.5 which means, taking into account the 7.5 hours already performed, the appellant must perform a further 40 hours of community service. In determining the extent of the reduction, I have had regard to the relationship between imprisonment and hours of community service specified in s 71 of the Criminal law (Sentencing) Act. That section provides that a term of imprisonment to be served in default of compliance with an order of community service is to be calculated on the basis of one day for each eight hours of community service remaining to be performed. If I applied that relationship between imprisonment and community service in full I would reduce the hours of community service to be performed to nil. I have not done so because s 71 is not of immediate application, because of the appellant’s expressed willingness to perform further community service and because the appellant has shown some ability in the past to comply with community service orders.
Order
The order of the Court therefore is:
1.An extension of time to 3 June 2004 for the institution of the appeal is granted.
2. Appeal allowed.
3.The order of the Magistrate on 23 March 2004 revoking the order for suspension of the sentence is set aside.
4.The time within which the appellant is to perform the required community service is extended to 30 January 2005.
5.102.5 hours of the unperformed hours of community service are cancelled.