ASHTON v POLICE - [2008] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ASHTON v POLICE
[2008] SASC 174
Judgment of The Honourable Justice David
2 July 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - IRRELEVANT FACTORS
Appellant pleaded guilty to numerous offences committed on different days - before sentencing appellant was recommended for, and participated in, the Drug Court Intervention Program - appellant secured accommodation and employment, attended counselling, improved support networks, complied with bail and did not re-offend - appellant returned negative drug test results for first six months and middle two months of the latter six months - magistrate imposed sentence of five years and six months imprisonment and declined to suspend the sentence - whether magistrate erred in not further adjourning sentencing pursuant to s 19B of the Criminal Law (Sentencing) Act 1988 (SA) - no error can be shown - whether magistrate erred in exercising his discretion to suspend the period of imprisonment imposed by placing undue emphasis on appellant's relapse into drug use towards the end of the program and by not giving sufficient consideration to the appellant's rehabilitation - application of s 10 (5) and (6) of the Act - magistrate failed to apply s 10(6) of the Act - when considering afresh whether there is good reason to suspend the sentence pursuant to s 38(1) of the Act, likelihood of re-offending and need for protection of the public outweighs appellant's successes in the program though they are taken into account pursuant to s 10(5) of the Act.
Held: Sentence of magistrate upheld, appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134, s 169, s 170; Criminal Law (Sentencing) Act 1988 (SA) s 10(5), s 10(6), s 18A, s 19B, s 38(1); Statutes Amendment (Intervention Programs and Procedures) Act 2005 (SA), referred to.
Crockford v Adelaide Magistrates Court & Anor [2008] SASC 62; Dinsdale v The Queen (2000) 202 CLR 321; Elliott v Harris (No 2) (1976) 13 SASR 516; Marschall (2002) 129 A Crim R 381; R v Regan [2003] SASC 287, considered.

ASHTON v POLICE
[2008] SASC 174
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against a sentence imposed by a magistrate. The appellant pleaded guilty to numerous offences committed on different days over a time span of approximately eighteen months. The magistrate imposed a head sentence of five years and six months imprisonment with a non‑parole period of eighteen months. Although the appellant was a participant in the Drug Court Intervention Program (“the Program”) from 21 February 2007 until sentencing on 5 March 2008 and made notable achievements in the Program, the magistrate declined to suspend the sentence.
The appellant argues that the magistrate erred in his decision not to suspend the sentence, by placing undue emphasis on his relapse into methylamphetamine use towards the end of his participation in the Program and by not giving sufficient consideration to his rehabilitation. The appellant also argues that the magistrate erred in not adjourning sentencing for a further period.
Background
The appellant pleaded guilty to thirty-one charges, laid on both Information and Complaint, for offences committed between 13 December 2004 and 25 June 2006. These offences comprised:
·eleven offences of non‑aggravated serious criminal trespass, three of which were residential;
·twelve offences of theft;
·two offences of damaging property;
·one offence of possessing implements for housebreaking;
·three offences of breaching bail;
·one offence of driving whilst unlicensed; and
·one offence of creating undue noise and smoke.
The appellant has an extensive criminal history, which is set out in his antecedent report.[1] He has previously been subject to fourteen sentences of immediate imprisonment and four suspended sentences of imprisonment. Of the sentences of immediate imprisonment imposed, five were for theft‑related offences, five were for driving whilst disqualified, three were for breaches of either bail or intensive supervision orders and one was for reckless driving.
[1] Antecedent Report, 22 October 2007.
The maximum penalty for an offence of non‑aggravated serious criminal trespass in a residential place is imprisonment for fifteen years.[2] If the offence is committed in a non‑residential building the maximum penalty is imprisonment for ten years.[3] The maximum penalty for theft is also imprisonment for ten years.[4]
[2]    Criminal Law Consolidation Act 1935 (SA) s 169(1).
[3]    Criminal Law Consolidation Act 1935 (SA) s 170(1).
[4]    Criminal Law Consolidation Act 1935 (SA) s 134(1).
The magistrate recorded convictions in relation to each count and passed a single head sentence, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), of five years and six months imprisonment with a non‑parole period of eighteen months for the charges laid on Information, and a concurrent sentence of six months imprisonment for the charges laid on Complaint. There is no appeal against the severity of the sentence or the methodology used in respect to its severity. It is therefore not necessary to go into any more detail about each offence except to say that none of them involved any form of violence, the three trespass offences committed in residential places were committed while none of the residential occupants were present inside their homes and the greatest value of property stolen by the appellant was $3,000. The offending was, nevertheless, very serious in its repetitive and persistent nature.
The appellant was in custody between October to December 2005 and July 2006 to February 2007. Having been recommended for the Program, he commenced on 21 February 2007. His bail conditions eased as he progressed through the Program. He began the Program on home detention bail with electronic monitoring, moved subsequently to a curfew and in the latter stages of the Program was simply required to remain in a set place of residence.
At the time of his offending, the appellant had been struggling with an addiction to methylamphetamine and could not find stable accommodation or employment. During the time he was on the Program, he secured full‑time employment, gained permanent accommodation, attended counselling, improved his support network, complied with bail conditions and demonstrated extended periods of abstinence from illicit drug use. He punctually attended all appointments and his rehabilitation through the Program seemed to be on track.
In Crockford v Adelaide Magistrates Court & Anor,[5] a case concerning judicial review of a magistrate’s decision to terminate an offender’s participation in the Program, Layton J made these observations about the Program:
An initiative of the Government of South Australia, the [Drug Court] Program is a diversionary program of the Magistrates Court pursuant to the Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA). The Program aims to reduce recidivism in drug abuse offenders by diverting participants from the conventional court process to a judicially supervised program involving drug testing, escalating sanctions, treatment and support services.
Although the Program was established without any statutory authority in May 2000, the Statutes Amendment (Intervention Programs and Sentencing Procedures) Act 2005 (SA) amended the Bail Act 1985 (SA) (“the Bail Act”), the Criminal Law (Sentencing) Act 1988 (SA), the District Court Act 1991 (SA), the Magistrates Court Act 1991 (SA) and the Supreme Court Act 1935 (SA) to allow for the processes and procedures necessary [for the administration of the Program].
…
It should be emphasised that participation [in the Program] is voluntary. A person must first apply for an assessment by the Program Supervisors to be considered as a participant. A Supervisor will then compile an assessment report, providing a recommendation to the Magistrates Court on whether the person should be accepted into the Program.
Once the Magistrates Court officially accepts a person into the Program, the participant must sign a “Declaration of Participation”, stating their intention to participate in all activities and adhere to the rules of the Program. A team of Program Supervisors closely supervise the participants, monitor their progress and compile regular review reports for the Drug Court Magistrate …
… Throughout the Program, which typically lasts up to 12 months, [participants] must submit to random but regular drug tests. A range of treatment and support services are also made available to participants to assist with their long-term rehabilitation.
[5] [2008] SASC 62.
From the time of commencing the Program until September 2007, all of the appellant’s urine tests returned negative results. The appellant had declared methylamphetamine use in August 2007. Throughout September and October 2007 the appellant’s urine tests returned positive results, with a final reading for methylamphetamine on 2 November 2007. After returning negative test results in the intervening months, the appellant then suffered a further relapse into illicit drug use commencing on 14 January 2008, which he initially declared and for which he was later tested in February 2008. On 11 February 2008, 18 February 2008 and 25 February 2008, the appellant tested positive for methylamphetamine. Two subsequent positive results were considered to have arisen from the appellant’s methylamphetamine use in late February 2008.
On 11 February 2008, the appellant appeared in the Drug Court for a review of his progress in the Program. The parties are in agreement that the magistrate then presiding told the appellant that should he return to court on the next occasion with a report indicating all clean urine tests, he could expect to receive a suspended sentence when his matters were finalised. A date in mid‑March was set for the appellant’s graduation from the Program, submissions and sentencing. On 3 March 2008, the appellant appeared in the Drug Court for a further review. The appellant’s program supervisor prompted this further review due to his concerns about the appellant’s positive test results for methylamphetamine. At that review, the appellant submitted that the stress of impending sentence had triggered another relapse. The matter was listed for sentencing on 5 March 2008.
The final progress report provided by the appellant’s program supervisor to the Drug Court at sentencing on 5 March 2008 (incorrectly dated 14 March 2008), said random testing had disclosed that the appellant had relapsed into methylamphetamine use. The appellant was offered increased testing to curtail his drug use. The author of the report could not accept the appellant’s reasons for his relapse into drug use and had “grave concerns for his ability to maintain his stability in the community if all [the] restrictions [he was on were to stop].”[6] The appellant was encouraged to seek further structured support and counselling.
[6] Drug Court Progress Report - Final Report, 14 March 2008, Exhibit “A” to the Affidavit of D Misell, 2 May 2008.
The magistrate was also presented with a psychological report from Dr Jack White which set out the appellant’s background. He was aged thirty at the time of sentencing. He was abused as a child, became involved with drugs at school at a very young age and has an extensive history of offending against the criminal law, mainly for driving offences, dishonesty offences, property offences and breaches of bail. Most of his criminal behaviour has been due to drug addiction. According to Dr White, the appellant fits the diagnostic criteria for a number of conditions, including post‑traumatic stress disorder, anxiety and depression.
Magistrate’s Sentencing Remarks
In his sentencing remarks, the magistrate noted the achievements the appellant had made while on the Program, including those relating to his employment, counselling, improved family relationships and overall participation. In relation to the Program test results, the magistrate said:
Yours has been an unusual journey in that you had done very very well on the programme for the first 6 months or so, thereafter a gradual slide occurred, which was almost like a death wish that you imposed upon yourself and resulted in the escalation of your drug use as you moved towards the end of your time on the programme.
I have heard some figures from the clinical staff regarding a very recent use of amphetamines by you. The amount taken by you was extremely and dangerously high and I am certain would have been of some considerable danger to your health. The fact of that recent, extremely heavy use of amphetamine and your recent generally escalating use is a factor I take into account when I decide what to do with you today. Given those matters, I query whether it’s appropriate to release you into the community. Such levels of use have to put your health at risk and at risk of re-offending.
Further in his remarks he said:
I do not consider it is appropriate to suspend given the large number of offences, and the serious nature of the offending and your very worrying and poor performance especially relating to escalating drug use in recent times. To avoid an immediate term of imprisonment I believe you need to complete the program with a “gold star” as opposed to what I have to classify as being a failure.
Noting the many plusses that you have gained along the way, I have nevertheless tried to reflect your efforts by imposing a much lesser head sentence and non‑parole period then [sic] you would otherwise have deserved.
The magistrate reduced the head sentence and non‑parole period each by one year as credit for the appellant’s achievements while on the Program.
Appeal
Mr Mead, counsel for the appellant, now argues that the magistrate erred in placing too much emphasis on the final progress report and the fact that the appellant relapsed into drug use at the end of the Program. He argues that the magistrate did not sufficiently counterbalance the appellant’s poor final test results with the other positive outcomes he had achieved while on the Program.
Mr Mead argues that the appellant had made significant headway, had been able to abstain from drug use for extended periods during the early stages of the Program and had not re‑offended for the entire duration of the Program. Despite the last report being negative, Mr Mead argues that the Program started the appellant’s rehabilitative process and the magistrate erred in not allowing that process to continue by either adjourning the sentencing of the appellant for a further period, pursuant to s 19B of the Act, or by having the appellant enter into a suspended sentence bond with strict conditions, pursuant to s 38(1) of the Act.
Adjournment of Sentencing
Dealing first with the matter of adjournment, s 19B of the Act provides:
…
(2)As a general rule, proceedings may not be adjourned under this section (whether by a single adjournment or a series of adjournments) for more than 12 months from the date of the finding of guilt (the "usual maximum”).
(3)A court may adjourn proceedings for a period exceeding the usual maximum if the defendant is, or will be, participating in an intervention program and the court is satisfied that—
(a) the defendant has, by participating in, or agreeing to participate in, the intervention program, demonstrated a commitment to addressing the problems out of which his or her offending arose; and
(b) if the proceedings were not adjourned for such a period—
(i)the defendant would be prevented from completing, or participating in, the intervention program; and
(ii)the defendant's rehabilitation would be prejudiced.
…
It is unclear whether this option was specifically put to the magistrate. In any event, no error on the part of the magistrate in not further adjourning the matter can be shown. In my view the appellant has not demonstrated a commitment to addressing the problems (the primary one being drug use) out of which his offending arose. Adjourning the matter for a further period would unsatisfactorily place the appellant’s status in limbo, and may not further his rehabilitation, especially since he claimed to have relapsed due to his impending sentencing.
Suspension of the Sentence
As noted earlier in the passage of Layton J, amendments made to the Act in 2005 now formally reflect the role of the Program in the criminal justice system. They provide for referrals to the Program, as touched upon above, and for how results may be used in sentencing. Sections 10(5) and (6) of the Act provide:
(5)If a defendant has participated in an intervention program, a court may treat the defendant's participation in the program, and the defendant’s achievements in the program, as relevant to sentence.
(6)However, the fact that a defendant—
(a) has not participated in, or has not had the opportunity to participate in, an intervention program; or
(b) has performed badly in, or has failed to make satisfactory progress in, such a program,
is not relevant to sentence.
The policy underlying the decision to formally reflect the Program in the Act is clear from the second reading speech to the amending legislation:[7]
When determining sentence, the court may take a defendant’s participation and achievements in an intervention program into account. Equally, it is important not to deter people from undertaking intervention by penalising them for failing in their attempt … [G]iving legislative backing to these programs recognises their value to criminal justice … Intervention programs help people to learn to take responsibility for the underlying causes of their behaviour and to live in a law-abiding way.
[7] South Australia, Parliamentary Debates, House of Assembly, 22 September 2005, 3557-3559 (Michael Atkinson, Attorney‑General).
The purpose of s 10(6) is to prevent the results of an offender’s participation in such a program from being used in a manner that would deter others from volunteering and being assessed for participation in the Program.
The magistrate properly considered s 10(5) and (6) of the Act when setting a term of imprisonment lower than he would have otherwise set. It is now well settled, however, that the considerations relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend that sentence.[8]
[8] Dinsdale v The Queen (2000) 202 CLR 321, 348.
I am of the view that when considering whether or not to suspend the sentence, the magistrate has erred by classifying the appellant’s test results in the latter part of the Program as a failure and taking them into account accordingly. Section 10(6) clearly says that such considerations are not relevant to sentence.
I can certainly understand the difficult position in which the magistrate found himself, because, when considering whether or not to suspend the sentence, the positive test results the appellant returned whilst participating in the Program would cause concern. Nevertheless, the legislation clearly states that bad performance or a failure to achieve satisfactory progress in a program should not be regarded as relevant to sentence. As a result of the magistrate’s consideration and attendant interpretation of the appellant’s positive results for methylamphetamine in the context of his decision whether to suspend the sentence the sentencing discretion has miscarried.

Although I have found that the magistrate has erred in respect to this aspect of sentencing, having considered the matter afresh, I am of the view that the sentence imposed was nevertheless appropriate.
Pursuant to s 38(1) of the Act, the Court must find good reason exists before suspending a sentence. Both this Court[9] and other Courts[10] acknowledge that relapses are to be expected along the pathway to recovery. To his credit, the appellant has certainly begun to rehabilitate, as evident by his having obtained accommodation and employment, improved his support networks, behaved and abstained from the use of illicit drugs for extended periods. However, as noted by Kirby J in Dinsdale v The Queen:[11]
Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy.
[9] See R v Regan [2003] SASC 287 [26].
[10] See Marschall (2002) 129 A Crim R 381, 384.
[11] (2000) 202 CLR 321, 348-349.
Although a suspended sentence is still a significant sentence,[12] and could include strict conditions, the appellant’s offences were serious and persistent.
[12] See Elliott v Harris (No. 2) (1976) 13 SASR 516, 527.
Bearing in mind the nature of the offending, the appellant’s significant prior criminal history and the likelihood of him re-offending, despite not doing so whilst on the Program, there does not appear to be “good reason” to suspend the sentence hoping that the appellant will rehabilitate himself. Even allowing for those positive aspects of his involvement in the Program, and taking those into account pursuant to s 10(5) of the Act, the considerations going to whether the sentence should be suspended are outweighed by the likelihood of the appellant re‑offending and the need for the protection of the community.
Conclusion
I dismiss the appeal.