Antarakis v The Queen - [2020] SASCFC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
ANTARAKIS v THE QUEEN
[2020] SASCFC 105
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Doyle)
5 November 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
Appeal against a decision by a District Court Judge revoking the suspension of a suspended sentence of imprisonment.
The appellant tested positive for methylamphetamine on six occasions after entering into a suspended sentence bond. The Judge concluded that by taking methylamphetamine she breached a lawful direction by her community corrections officer not to use an illicit drug and also breached the obligation to be of good behaviour.
The appellant appeals, or seeks permission to appeal, on the following grounds:
1. The Judge erred in finding that the Direction Letter constituted a lawful direction to abstain from drug use because:
(a) the Ministerial Authorisation does not authorise a community corrections officer to impose a drug abstinence condition; or
(b) a proper objective construction of it reveals that it was only a direction to submit to drug testing.
2. The Judge erred in finding that the appellant breached the condition to be of good behaviour by using methylamphetamine.
3. The Judge erred by failing to find proper grounds to excuse the appellant’s breach of the suspended sentence bond.
4. The Judge erred by failing to find that special circumstances justified a reduction in the head sentence and non-parole period pursuant to section 114(5)(a) of the Sentencing Act 2017.
Held per Blue J (Kelly and Doyle JJ agreeing) dismissing the appeal:
1. The Direction Letter was not a lawful direction to abstain from drug use because the Ministerial Authorisation does not authorise a community corrections officer to impose a drug abstinence condition (at [46]).
2. On its objective construction, the Direction Letter was (purportedly) a direction to abstain from drug use (at [50]).
3. The Judge did not err in finding that the appellant breached the condition to be of good behaviour by using methylamphetamine (at [60]).
4. The Judge did not err in finding that there were not proper grounds to excuse the appellant’s breach of the suspended sentence bond (at [68]).
5. There were not special circumstances justifying a reduction in the head sentence or non-parole period (at [78]).
6. Appeal dismissed (at [84]).
Sentencing Act 2017 (SA) ss 96(1), 98, 108(1), 114(3), 114(5), referred to.
Higgins v Goldfinch (1981) 26 SASR 364; Police v Heritage (2019) 135 SASR 1; R v Marshall [2016] SASCFC 147, discussed.

ANTARAKIS v THE QUEEN
[2020] SASCFC 105
Court of Criminal Appeal: Kelly, Blue and Doyle JJ

KELLY J: I agree with the reasons of Blue J and would add with respect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Antarakis v The Queen

Details

AGLC: Antarakis v The Queen [2020] SASCFC 105
Case: [2020] SASCFC 105
Decision Date: 5 November 2020

CaseChat Overview and Summary

The appellant, Antarakis, appealed against a District Court decision that found she had breached the conditions of a suspended sentence. The suspended sentence was imposed following her conviction for possession of methylamphetamine with intent to sell. The conditions of the suspension included abstaining from drugs not lawfully prescribed and undergoing drug testing. The appeal concerned whether the appellant's use of methylamphetamine constituted a breach of the good behaviour condition and whether the drug abstinence condition was lawfully imposed.

The legal issues before the court were whether the Direction Letter, which imposed the drug abstinence and testing conditions, was a lawful direction from a community corrections officer. Specifically, the court had to determine if the Ministerial Authorisation permitted such a condition, or if the letter, when objectively construed, only directed submission to drug testing. Furthermore, the court considered whether the appellant's use of methylamphetamine constituted a breach of the good behaviour condition, and if so, whether there were proper grounds to excuse the breach or justify a reduction in the head sentence and non-parole period under section 114(5)(a) of the Sentencing Act 2017.

The Full Court of the Supreme Court of South Australia found that the first limb of the judge's finding, that the appellant breached the abstinence condition in the Direction Letter, was erroneous because that condition was unlawful. The court reasoned that the Ministerial Authorisation did not empower a community corrections officer to impose a drug abstinence condition. Regarding the alleged failure to be of good behaviour, the court reiterated that "good behaviour" in the context of a bond generally means observance of the criminal law, but not every breach of the criminal law constitutes a breach of this condition. The conduct must be examined in its circumstances and considered a relapse into non-law-abiding ways, rather than a minor infringement of regulatory rules.

The court concluded that Ground 2, concerning the alleged failure to be of good behaviour by using methylamphetamine, was not established and refused permission to appeal on that ground. However, the court found the first limb of the judge's finding that the appellant breached the abstinence condition to be erroneous due to the unlawfulness of that condition.

Orders

Orders of the court

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Background

Background to the litigation

The appellant appeals, or seeks permission to appeal, on the following grounds:1The Judge erred in finding that the Direction Letter constituted a lawful direction to abstain from drug use because:(a) the Ministerial Authorisation does not authorise a community corrections officer to impose a drug abstinence condition;[1] or(b) a proper objective construction of it reveals that it was only a direction to submit to drug testing.[2]2The Judge erred in finding that the appellant breached the condition to be of good behaviour by using methylamphetamine.[3]3The Judge erred by failing to find proper grounds to excuse the appellant’s breach of the suspended sentence bond.[4]4The Judge erred by failing to find that special circumstances justified a reduction in the head sentence and non-parole period pursuant to section 114(5)(a) of the Sentencing Act 2017 (the Act).[5][1] Ground 1. Permission to appeal granted by single Judge.[2] Ground 2. Permission to appeal referred to Full Court.[3] Ground 3. Permission to appeal referred to Full Court.[4] Ground 4. Permission to appeal granted by single Judge.[5] Ground 5. Permission to appeal referred to Full Court.Background On 31 December 2015 the appellant was found in possession of methylamphetamine with a value of approximately $5,000. She was intending to sell it to friends without making a profit. She was sentenced on the basis that she had engaged in similar exercises in social trafficking in the past. On 3 May 2017 the appellant was sentenced by a Judge in the District Court to imprisonment for two years and three months (reduced by ten per cent from a starting point of two years and six months on account of a late guilty plea), with a non-parole period of nine months. The sentence was suspended[6] on the appellant entering into a bond to be of good behaviour for two years with various conditions, including that she abstain from any drugs not lawfully prescribed and undergo tests for the presence of drugs in her system. [6] Pursuant to section 38 of the Criminal Law (Sentencing) Act 1988 (SA). The Judge sentenced the appellant on the basis that the offending was towards the lower end of the scale of seriousness for crimes of its kind, the appellant had been addicted to methylamphetamine for many years, she wanted to rehabilitate herself and her prospects of rehabilitation were reasonable. The Judge warned the appellant in the following terms:If you had of had any more drugs on you or if your record was worse, you would have been going straight to gaol. If you obey your supervising officer, if you stay off the drugs and if you stay out of trouble, all this will be behind you in two years. However, if you disobey your supervising officer, if you fail a drugs test, or if you commit any more offences, you will find yourself going to gaol and serving the sentence I have just suspended. So bear that in mind at all times and if you are ever tempted to step out of line, particularly by taking drugs or committing an offence, just remember where you will be going if you do.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ground 2 is not established. I would refuse permission to appeal on ground 2.Conclusion The first limb of the Judge’s finding that the appellant breached a condition of the Bond by breaching the abstinence condition contained in the Direction Letter was erroneous because that condition was unlawful.Alleged failure to be of good behaviour Good behaviour in the context of a condition of a bond under the Act generally means observance of the criminal law but not every breach of the criminal law comprises a breach of the obligation to be of good behaviour: the circumstances must be examined. In Higgins v Goldfinch,[17] this Court considered the meaning of “good behaviour” in the context of subsection 51(6) of the Children’s Protection and Young Offenders Act 1979 (SA), which was modelled on section 2a of the Offenders Probation Act 1913 (SA), which was a predecessor of section 98 of the Act. King CJ said:Section 2a of the Offenders Probation Act and s 51(6) of the Children’s Protection Act are concerned with the criminal law. Good behaviour as used in those sections may be taken to mean observance of the rules of the criminal law. The purpose of the sections is to rehabilitate convicted persons by encouraging them to abandon criminal ways. The suspended sentence offers them freedom in lieu of imprisonment in order to direct them away from criminal conduct and in the direction of a law abiding way of life. I think that the words “good behaviour” in those sections must be understood in that context and in the light of that purpose. I think that in order to amount to a departure from the standard of good behaviour so as to activate a suspended sentence, conduct must not only be such as to constitute a breach of the law attracting penal sanctions, but must constitute such a breach as can fairly be regarded as a relapse into non-law-abiding ways.It follows from what I have said that, in my opinion, there are many offences on the statute books the commission of which would not be a departure from the standard of good behaviour for present purposes. A person is not necessarily in breach of a good behaviour condition of his bond because he infringes one of the many rules prescribed by statute and by subordinate legislation for the regulation of social and economic activity and for the protection and safety of the public. Traffic offences would not generally be breaches of good behaviour. Nevertheless the fact that an offence is created by the Road Traffic Act does not mean that its commission cannot be a departure from good behaviour. For instance, the offence of using motor vehicle without consent is found in the Road Traffic Act (s 44) and that is a serious crime of dishonesty.[18]Legoe J said:Good behaviour is clearly a term of wide import. In the context of the Act the purpose of such a condition would appear to be mainly rehabilitative and designed to give the child an opportunity to mould into the community again. If the conduct of the child during the tenancy of the condition to be of good behaviour transgresses into the field of community aggression or harm then this promise to adhere to a standard of behaviour would probably be characterized as contrary to good behaviour.…Proof of the commission of an offence subsequent to the bond will not necessarily be on its own sufficient proof of a breach of the condition to be of good behaviour.[19][17] (1981) 26 SASR 364.[18] At 366-367.[19] At 383, 385.

Ratio Decidendi

Legal Principle Established

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