ARCHER v Police - [2006] SASC 41

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
ARCHER v POLICE
Judgment of The Honourable Justice Bleby (ex tempore)
8 February 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
Appeal against sentence - guilty plea to, inter alia, one count of breaching a condition of home detention bail by attending at a location without the express permission of his Community Corrections Officer - sentenced to 1 month'simprisonment, suspended upon entering into 12 month good behaviour bond - whether a term of imprisonment warranted given the circumstances of the offence and offender - Criminal Law (Sentencing) Act 1988, s 11 - whether sentencing process miscarried due to Magistrate's failure to take into account (a) time spent in custody, (b) likelihood of the imposition of a term of imprisonment in relation to offences for which appellant was on bail; and (c) possibility of estreatment of bail - order of Magistrate set aside - appellant ordered to forfeit the sum of $500.
Criminal Law (Sentencing) Act 1988 (SA) s 11; Bail Act 1985 (SA) s 17(2), s 19, referred to.
R v Readman (1990) 47 A Crim R 181, considered.

ARCHER v POLICE
[2006] SASC 41
Magistrates Appeal: Criminal

BLEBY J: (ex tempore) This is an appeal against sentence. The appellant appeared in the Adelaide Magistrates Court on 22 November 2005 and pleaded guilty to the following offences: driving an unregistered vehicle on a road; driving an uninsured vehicle on a road; unlawful possession of another person’s ATM card; and failing to comply with a bail agreement. Certain other charges were withdrawn. All the offences occurred on 19 February 2005.
The appellant was granted home detention bail on 25 February 2005, having spent six days in custody in relation to the matters the subject of the charges.
In relation to the driving offences the appellant was ordered to pay a fine of $200 and was disqualified from holding or obtaining a driver’s licence for a period of three months from 23 November 2005.
In relation to the offence of unlawful possession, the appellant was fined the sum of $400.
In relation to the offence of failing to comply with a bail agreement, the appellant was sentenced to one month’s imprisonment to be suspended upon the appellant entering into a bond in the sum of $100 to be of good behaviour for a period of 12 months. The appellant appeals against this latter sentence. There is no appeal against the other sentences imposed.
As amended, the grounds of appeal are that the Magistrate erred in imposing a term of imprisonment which was not warranted by the circumstances of the offence or of the offender and that the penalty was manifestly excessive.
In relation to the offence the subject of this appeal, the appellant had been granted bail on home detention conditions by the Magistrates Court in relation to alleged offences of aggravated robbery and illegal use of a motor vehicle. At the time the breach of bail offence was committed it was a condition that he reside at a nominated address at Kilburn “and not absent himself from that address except for the purpose of remunerated employment, necessary medical or dental treatment, to minimise the risk of serious injury or death to yourself or any other person or for any other purpose approved by your Community Corrections Officer”.
On the day in question police stopped the vehicle then being driven by the appellant on Hambledon Road, Campbelltown. The appellant told police that he was driving in Campbelltown for the purpose of meeting someone to collect a chain block for use on a vehicle. He told the police that he was aware that he was on home detention bail but stated that he had been given a pass by his Community Corrections Officer to leave home between 5 pm and 8 pm that day to collect a chain block. That was not true. His Community Corrections Officer had, in fact, given him permission to leave home but only to go to an address at Hawkesbury Avenue, Prospect and to return directly to his home again. He did not give the defendant permission to be in Campbelltown.
Furthermore, at the time of his arrest the appellant had not yet collected the chain block. That was at 7.52 pm. The inevitable inference is that the appellant had no intention of returning to his home by 8 pm.
As to the breach of bail, it was submitted before the Magistrate, on behalf of the appellant, that he had been given permission by his Community Corrections Officer to be absent from his home between 5 pm and 8 pm to go to Hawkesbury Avenue, Prospect in order to do some work on a car. While he was doing that the appellant spoke to a friend on the telephone and asked whether he knew where he could get hold of a block and chain to lift the motor out of the car. The friend said that he was aware of one at Campbelltown which he could borrow. When he heard about that he was anxious to get hold of the block and chain so he went to Campbelltown to pick it up. Therefore, while he had permission to be away from his home for a limited purpose, he did not have permission for the journey that he was in fact making.
In the course of an exchange with counsel the Magistrate noted that the appellant had not been released on police bail. His counsel submitted that he had been in custody for “a couple of days”.
In response to a question from the Magistrate it was explained that the appellant had been on home detention bail for some 18 months on a charge of robbery in company, to which he had already pleaded guilty in the District Court and was awaiting submissions on sentence.
The Magistrate inquired as to the appellant’s antecedents and was told by the prosecutor that he had been convicted of receiving some eight years previously.
The Magistrate’s sentencing remarks were brief. In imposing the sentences he did for the motor vehicle offences and the offence of receiving, it appears that the Magistrate did not take into account, as a matter of aggravation, as he could have done[1], that the appellant was on bail at the time of committing those offences.
[1] R v Readman (1990) 47 A Crim R 181.
In the course of discussion with counsel the Magistrate noted that he was not looking to gaol the appellant for the unlawful possession charge but would “give him something more for the breach of bail matter”.
That was a course open to the Magistrate in devising the sentencing package for the offences in question. The appellant argues, however, that the Magistrate was constrained by s 11 of the Criminal Law (Sentencing) Act1988 which relevantly provides that a sentence of imprisonment may only be imposed if, in the opinion of the court:
(i)the defendant has shown a tendency to violence towards other persons; or
(ii) the defendant is likely to commit a serious offence if allowed to go at large; or
(iii) the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate having regard to the gravity or circumstances of the offence.
In relation to placitum (i), there was no evidence that the defendant had shown a tendency to violence towards other persons. The Magistrate did not express a view that he was likely to commit a serious offence if allowed to go at large. The Magistrate had little information about the offence for which he was on bail, other than that it was submitted by his counsel that there was a reasonable prospect of a suspended sentence being imposed.
The Magistrate appeared not to have a complete history of the appellant’s antecedents. There were, therefore, few facts on which he could conclude that placitum (ii) had application.
Regarding placitum (iv), although any breach of bail must be taken seriously, particularly bail on home detention, the evidence showed that in this case the appellant was going on an unplanned excursion beyond the permission granted by his Community Corrections Officer and a time when he would almost inevitably have also breached the curfew imposed by the Community Corrections Officer. There was no suggestion that he would not have returned to his home later that evening.
I make further observations about the application of this placitum later in these reasons.
That leaves placitum (iii). On the information given to the Magistrate, the appellant had been previously convicted of an offence punishable by imprisonment. I consider that to be a relevant offence for these purposes.
The Magistrate was therefore justified in imposing a sentence of imprisonment if the circumstances otherwise warranted it.
To some extent the penalty for breach of a bail agreement is dictated by the maximum penalty provided for the offence or offences for which the accused person is on bail. The penalty cannot exceed the maximum penalty that may be imposed for the offence charged.[2] However, that imposes a maximum which is not relevant in this case. It does not require the penalty for breach of bail to be increased because of a high maximum penalty for the offence charged. Nor does it follow that merely because one of the criteria specified in s 11(1) of the Criminal Law (Sentencing) Act is met, a sentence of imprisonment must necessarily follow.
[2] Section 17(2) Bail Act 1985.
I have already mentioned the circumstances giving rise to the breach of bail agreement. What is relevant is the period of six days spent in custody for these offences. That appears not to have been taken into account by the Magistrate. It was not mentioned by the Magistrate in his sentencing remarks. To some extent the Magistrate may have been misled by the appellant’s counsel that the period was only a couple of days.
The appellant was on bail at the time he came before the Magistrate. A sentence of imprisonment was not justified in respect of the other offences. That was accepted by the Magistrate. The fact that the appellant had spent time in custody was therefore relevant to the sentencing of the appellant for the breach of bail. By apparently failing to have that taken into account, the sentencing process miscarried.
I also consider that suspension of the sentence for a period of 12 months when sentencing in the District Court for the offences charged was imminent, was an error. That sentence in the District Court was likely to involve, if not an immediate custodial sentence, at least a suspended sentence of imprisonment. It was therefore likely that the period of the bond imposed would overlap either a period in custody or a period on another bond thereby frustrating one of the important elements of the sentence imposed by the Magistrate.
Finally, the Magistrate seems to have given no consideration to the question of forfeiture of the amount agreed in the bail agreement, the sum of $1000. I therefore consider that the sentencing discretion miscarried and the sentence must be reconsidered.
A breach of bail condition must be taken seriously. Conditions are imposed for a reason. They are there to be observed. Personal deterrence of the appellant is a significant factor to take into account when fixing an appropriate penalty.
I consider that a custodial sentence was necessary and appropriate to bring home to the appellant in a meaningful way his obligation to observe the bail conditions. This is particularly so where, for good reason, an accused person is deliberately subject to strict conditions as an alternative to being remanded in custody.
Given the nature of the breach and the stringency of the conditions, a short period in custody was appropriate after giving credit for the time already spent in custody. In this case I would have imposed something a bit more than six days, I would not have imposed one month. However, the Magistrate chose to suspend the sentence he imposed, and to impose an immediate custodial sentence at this stage might be seen to contain an element of double jeopardy. Besides, any additional period would be relatively short. In lieu of that, however, there is no reason why the appellant should not be required to forfeit his bond, at least in part, another factor apparently overlooked by the Magistrate.
I therefore propose to allow the appeal. The orders I make are:
1. That the appeal be allowed.
2. That the order of the Magistrate for imprisonment be set aside.
3. That, pursuant to s19 of the Bail Act1985, an order that the appellant forfeit the sum of $500 being a portion of the sum stipulated for forfeiture in the bail agreement