ARORA v Police - [2008] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ARORA v POLICE
[2008] SASC 2
Judgment of The Honourable Justice David
18 January 2008
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE
Appeal against sentence - breach of bail and threatening to cause harm - sentenced to 11 months imprisonment, partially suspended - whether magistrate erred in imposing a sentence of imprisonment - whether magistrate erred in failing to fully suspend the sentence.
Held: Appeal allowed - error in failing to fully suspend the sentence.
Criminal Law Consolidation Act 1935 (SA) s 19(2); Bail Act 1985 (SA) s 11, s 17; Criminal Law (Sentencing) Act 1988 (SA) s 11, s 18A, s 38(1), referred to.
House v King (1936) 55 CLR 499; White v Police [2007] SASC 428, applied.
Police v Petropoulos (1993) 168 LSJS 421; Van Roosmalen (1989) 43 A Crim R 358, discussed.

ARORA v POLICE
[2008] SASC 2
Magistrates Appeal
DAVID J.
Introduction

The appellant was charged with the offences of threatening to cause harm (contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA)) committed on 12 June 2004, and two counts of breaching a bail agreement (contrary to s 17 of the Bail Act 1985 (SA)) committed on 12 June 2004 and 16 June 2004 respectively. The appellant pleaded guilty in the Magistrates Court to all three charges. On 9 October 2007 a magistrate sentenced him to 11 months imprisonment, commencing forthwith. He was to be released from custody after serving two months, upon entering into a good behaviour bond for the remaining nine months of the sentence. The appellant appeals against that sentence on the basis that it is manifestly excessive.
Background
The three June 2004 offences, which are the subject of this appeal, were pre-dated by a number of offences committed on 26 April 2004, including false imprisonment, assault, aggravated serious criminal trespass and blackmail. The appellant also pleaded guilty to those charges and was sentenced in the District Court on 27 April 2007.
After being arrested for the offences committed on 26 April 2004, the appellant was granted bail. It was a condition of his bail agreement that he remain at his home address between the hours of 7.00 pm and 7.00 am each day. It was also a condition of his bail agreement that he not approach, intimidate, harass, communicate, or make contact with the victim by any means whatsoever.
On 12 June 2004, the victim’s girlfriend was at a nightclub in the city. At around 2.00 am she saw the appellant in the nightclub. She was aware of the charges that had been laid against the appellant, was fearful of him and immediately left the nightclub. The appellant followed her and said “we’ll get you one day”. The appellant was subsequently charged with threatening to cause harm, and breach of bail for failing to comply with his curfew condition.
On 16 June 2004, the victim of the offences committed on 26 April 2004 was in a restaurant in the city. He heard a voice, which he recognised as the voice of the appellant. He turned around and saw the appellant approaching him. The appellant had his hand outstretched, indicating that he wished to shake the victim’s hand. The appellant was subsequently charged with breach of bail, for failing to comply with the condition that he not approach the victim.
As already indicated, the appellant pleaded guilty in the Magistrates Court to the offences committed in June 2004. He was sentenced on 9 October 2007. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), and having regard to the principle of totality, the magistrate imposed a single sentence of 11 months imprisonment. He declined to suspend the whole of the custodial sentence, instead ordering that the appellant be released after serving two months in custody, on the condition that he enter into a bond to be of good behaviour for the remaining nine months. In sentencing, the magistrate explained that the starting point in regard to the offence of threatening to cause harm was imprisonment for a period 12 months, which was then reduced to 10 months to make allowance for the appellant’s plea of guilty. Similarly, with respect to each charge of breaching a bail agreement, the starting point for sentencing was imprisonment for three months, which was then reduced to two and a half months after making allowances for the appellant’s pleas of guilty.
Imprisonment
The appellant appeals on the ground that the sentence imposed is manifestly excessive. It is argued that the magistrate was in error in imposing a term of imprisonment.
It is true that a sentence of imprisonment should only be imposed as a last resort,[1] and that the offences of threatening to cause harm and breaching bail may not ordinarily attract a penalty of imprisonment. However, the offences in this case must be viewed in the circumstances in which they were committed.
[1] Criminal Law (Sentencing) Act 1988 (SA) s 11; Van Roosmalen (1989) 43 A Crim R 358, 360; Police v Petropoulos (1993) 168 LSJS 421, 423.
It is unclear why the appellant disobeyed the curfew imposed by his bail agreement when he attended the nightclub on 12 June 2004, just weeks after entering into the agreement. However, this breach was in total disregard of the law. Having breached the agreement, the appellant used the occasion to intimidate the victim’s girlfriend. I share the view of the magistrate, that this offence of threatening to cause harm was serious. He followed and threatened someone who was aware of the attack that had recently been made on her boyfriend. He must have known that it would make her extremely fearful. He must have also known that the threat would be made known to her boyfriend, and would act to intimidate him as well.
The second breach of bail, which was committed on 16 June 2004, involved the appellant deliberately approaching the victim. As set out above, it was a specific term of his bail agreement, in relation to the offences committed on 26 April 2004, that he not in any way contact the victim, who was the primary witness in the case against the appellant. The appellant should have realised that this would be, at the very least, intimidating for the victim. His action had the potential to compromise any trial of the offences committed on 26 April 2004.
In these circumstances, it cannot be said that it was manifestly excessive to impose a penalty of 11 months imprisonment for the three offences. This argument therefore fails.
Suspended Sentence
Alternatively, the appellant argues that the magistrate erred in failing to fully suspend the sentence of imprisonment, resulting in a sentence that is manifestly excessive.
The power to suspend a sentence, either partially or fully, is discretionary.[2] In order to interfere with this discretion, an appellate court must find that the magistrate was in error in suspending, or failing to suspend, the sentence. An appellate court cannot interfere simply because it would have made a different decision.[3] The requisite error can be explicit, where the magistrate considered irrelevant matters, failed to consider relevant matters or made a factual error. Alternatively, the error can be implicit, in that the sentence is so excessive that, while not evident on the record, the magistrate must have erred.[4]
[2] Criminal Law (Sentencing) Act 1988 (SA) s 38(1).
[3] House v King (1936) 55 CLR 499, 504-5.
[4] Ibid 505.
In this case, it was not argued that there was an error explicit in the magistrate’s reasons. Instead, it was argued that the decision not to fully suspend the sentence resulted in a sentence that is so excessive that there must be an error.
The issue of suspended sentences, for breaching bail conditions, was recently considered in White v Police.[5] In that case, Gray J said:
The breach of bail conditions is a serious matter. A primary purpose of bail is to ensure that a defendant attends court in accordance with the orders of the Court. A further purpose is the protection of the community, and to that end section 11 of the Bail Act 1985 (SA) authorises a bail authority to impose conditions of bail including supervision by a community corrections officer. There is a need to ensure that any penalty imposed acts as both a specific and general deterrent.
…
There appears to have developed a public misconception about the nature of a suspended sentence. Such a sentence is often described simply as a defendant being released on a bond without any reference being made to the suspended term of imprisonment or the consequences of a breach of the accompanying bond. This is regrettable. The gravity of a suspended sentence of imprisonment has been repeatedly emphasised by this Court. It is a sentencing option provided for by statute and is generally understood to be the second most serious sentence that a court may impose. It is a sentence that provides a balance between rehabilitation, punishment and community protection in an appropriate case. It is an important sentencing option. The value of this option should not be undermined by currency being given to the present public misconception.
…
The decision to suspend a sentence of imprisonment cannot be made on the basis of a formula, and undue weight should not be placed on the prospects of rehabilitation above the need for deterrence. These factors should be weighed together in determining an appropriate punishment for an offence.[6]
[5] White v Police [2007] SASC 428.
[6] Ibid [15]-[17] (footnotes omitted).
The appellant is 23 years old. At the time of the offending he was only 19 years old. He had no prior convictions, other than for the offences committed on 26 April 2004. He has not been charged with any further offences in the last three years. He completed school, obtaining a good tertiary entrance score, and has since obtained a degree from the University of South Australia. He was previously employed by the federal government, but now works in a family business. He pleaded guilty to all the offences with which he was charged. He has attended counselling for anger management and the counsellors report that this has been beneficial for him. It therefore appears that his rehabilitative prospects are good.
Given that there has been no further offending in the three years since these offences were committed, the need for a sentence that focuses on community protection or specific deterrence is significantly reduced.
In weighing the appellant’s rehabilitative prospects against the need to protect the community and to provide adequate deterrence (both general and specific), my view is that a fully suspended sentence is appropriate. As the appellant has no prior convictions, other than those for the offending in April 2004, and he has not previously been incarcerated, a sentence requiring the appellant to serve two months imprisonment is, in my view, manifestly excessive. I would therefore allow the appeal.
This outcome is supported by the decision of the sentencing judge in the District Court to fully suspend the sentence of imprisonment for the offences committed on 26 April 2004. It would be somewhat incongruous for the appellant to receive a suspended sentence for the serious offences of false imprisonment, assault, aggravated serious criminal trespass and blackmail, but to be required to serve a term of imprisonment for breaching bail and threatening to cause harm, particularly when the personal circumstances of the appellant relevant to sentencing for both sets of offences are almost identical.
Conclusion
The appeal is allowed. The sentence imposed by the magistrate is set aside. The appellant is sentenced to 11 months imprisonment, commencing forthwith. The sentence will be suspended upon the appellant entering into a bond, to be of good behaviour for 12 months.