AZADEGAN v Police - [2021] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
AZADEGAN v POLICE
[2021] SASC 34
Judgment of the Honourable Justice Parker
8 April 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
This is an appeal against a decision made by a Magistrate under s 73 of the Sentencing Act 2017 (SA) revoking an order that the appellant’s sentence be served on home detention and ordered that the balance of the sentence be served in custody.
On 17 September 2020, the appellant was convicted in the Magistrates Court for multiple driving and fail to comply with bail agreement offences and was sentenced to 5 months, 6 weeks and 58 days to be served on home detention.
On 18 November 2020, the Magistrate found that the appellant had committed two breaches of the home detention order which were not trivial and that there were no proper grounds to excuse the appellant’s failure to comply with the home detention order. In reaching this conclusion, the Magistrate observed that while the text of s 114(3) of the Sentencing Act, relating to breaches of suspended sentences, mirrors s 73(2), which applies to breaches of home detention sentences, there are different factors to consider when there is a breach of a home detention sentence.
The sole ground of appeal advanced by the appellant is that the Magistrate erred in failing to properly apply s 73(2) of the Sentencing Act 2017 (SA).
Held, per Parker J, dismissing the appeal:
1.The references by the Magistrate to “different factors” and “a different approach” were a recognition of the different responses to a breach authorised by s 73(2) and ss 114(3) and (5) respectively, and when viewed in context do not indicate that her Honour had narrowed the scope of the test to be applied when determining whether there are proper grounds to excuse the failure to comply with the conditions of a home detention order.
2.Parliament has made a clear policy choice by not including in s 73 a provision cognate to s 114(5). The omission of a provision permitting the reduction of a period of home detention if special circumstances exist, does not indicate that the phrase “proper grounds” should be given a wider meaning under s 73(2) than in the authorities decided under s 114 and its antecedent provisions.
3.The Magistrate did not err in finding that there were no proper grounds to excuse the failure of the appellant to comply with the home detention order.

Criminal Law (Sentencing) Act 1988 (SA) s 58; probationOffenders Probation Act 1913 (SA) s 9(5); Sentencing Act 2017 (SA) s 73, s 114, referred to.
R v Buckman (1988) 47 SASR 303; Police v Peel [2021] SASCFC 7, applied.
Police v Heritage (2019) 135 SASR 1, discussed.
CFMEU v Hadgkiss (2007) 169 FCR 15

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 AZADEGAN v Police

Details

AGLC: AZADEGAN v Police [2021] SASC 34
Case: [2021] SASC 34
Decision Date: 8 April 2021

CaseChat Overview and Summary

In the matter of Azadegan v Police, the appellant challenged the sentence imposed by the Magistrates Court, which involved a mix of fines and a home detention order. The key issue for the Supreme Court of South Australia to determine was whether the Magistrate erred in her approach to the appellant's breaches of the home detention order, particularly in considering what constituted proper grounds for excusing such breaches. The appeal hinged on the interpretation of the relevant statutory provisions governing breaches of home detention orders and whether the Magistrate had correctly applied the law in finding that there were no proper grounds to excuse the breaches.

The Supreme Court examined the statutory framework and noted that the legislative regime for breaches of a home detention order differs from that of a suspended sentence bond. Under the latter, a court has more extensive powers to address breaches, including the ability to reduce the sentence if special circumstances exist. However, in the case of home detention orders, the court's powers are more limited, and there is no statutory provision allowing for a reduction in the term of home detention due to special circumstances. The court held that the references by the Magistrate to "different factors" and "a different approach" were merely a reflection of the statutory differences and did not indicate any error in her application of the law. Furthermore, the omission of a provision permitting the reduction of a period of home detention in the event of special circumstances does not imply that the phrase "proper grounds" should be interpreted more broadly under the home detention provisions.

Ultimately, the Supreme Court dismissed the appeal, affirming the Magistrate's finding that there were no proper grounds to excuse the appellant's breaches of the home detention order. The court's decision underscored the importance of adhering to the statutory framework governing home detention orders and highlighted the limited scope of judicial discretion in such cases.

Orders

Orders of the court

Held, per Parker J, dismissing the appeal:

1. The references by the Magistrate to “different factors” and “a different approach” were a recognition of the different responses to a breach authorised by s 73(2) and ss 114(3) and (5) respectively, and when viewed in context do not indicate that her Honour had narrowed the scope of the test to be applied when determining whether there are proper grounds to excuse the failure to comply with the conditions of a home detention order.

2. Parliament has made a clear policy choice by not including in s 73 a provision cognate to s 114(5). The omission of a provision permitting the reduction of a period of home detention if special circumstances exist, does not indicate that the phrase “proper grounds” should be given a wider meaning under s 73(2) than in the authorities decided under s 114 and its antecedent provisions.

3. The Magistrate did not err in finding that there were no proper grounds to excuse the failure of the appellant to comply with the home detention order.

Background

Background to the litigation

At the commencement of the appeal hearing, the appellant’s counsel noted that the notice of appeal was filed out of time, 12 days late. The respondent did not object to an extension of time being granted. In the circumstances, I grant the appellant an extension of time to 21 December 2020 to file the notice of appeal. Background On 17 September 2020, the appellant was convicted in the Magistrates Court of the following offences: (a)One count of drive under disqualification or suspension committed on 7 December 2018;(b)One count of drive motor vehicle not authorised after drug driving disqualification committed on 20 September 2019;(c)One count of driving unregistered committed on 20 September 2019;(d)One count of driving uninsured committed on 20 September 2019;(e)One count of drive motor vehicle not authorised after drug driving disqualification committed on 20 November 2019;(f)One count of fail to comply with bail agreement committed on 20 November 2019;(g)One count of drive motor vehicle not authorised after drug driving disqualification committed on 14 March 2020;(h)One count of fail to comply with bail agreement committed on 14 March 2020;(i)One count of fail to comply with bail agreement committed on 24 April 2020; (j)One count of fail to comply with bail agreement committed on 1 May 2020;(k)One count of drive motor vehicle not authorised after drug driving disqualification committed on 7 July 2020; and(l)One count of fail to comply with bail agreement committed on 7 July 2020. The appellant was sentenced as follows: (1)In relation to sub-paragraphs (a), (b), (e), (f), (g), (h), (k) and (l) above, imprisonment for 5 months, 6 weeks and 58 days to be served on home detention;(2)In relation to sub-paragraphs (c) and (d) above, a $300 fine; and (3)In relation to sub-paragraphs (i) and (j) above, a $100 fine. The conditions of the home detention order relevantly included that the appellant was required to:(1)Not consume alcohol or any other drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage and that he submit to any drug and alcohol testing as directed by the Home Detention Officer to whom he is assigned and sign all required form and comply with the requirements of the testing procedures; The Court initially required testing to be undertaken fortnightly in relation to the latter condition. On 18 November 2020, the appellant was brought back before the Magistrate in relation to two breaches of the home detention order which occurred on 9 October 2020 and 15 October 2020. Those breaches related to drug tests returned by the appellant which indicated: (1)On 9 October 2020, a positive result to methylamphetamine and amphetamine; and (2)On 15 October 2020, a positive result to methylamphetamine, amphetamine and THC. The breaches of the home detention order were admitted. The explanation given by the appellant was that a friend came to visit him to do some manual work and brought drugs with him. The friend offered the appellant the drugs and he took them to deal with fatigue caused by the manual work. Ground of appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Further, the respondent contends that the arguments advanced by the appellant that proper grounds did exist, namely, that he had completed 22 days in full compliance, he took drugs offered by his friend to combat fatigue, his time in custody was a salutary experience and that the breaches were quite different to the original offending, did not amount to proper grounds to excuse his breach. Consideration The central issue in this appeal is whether the Magistrate erred by holding that “there are different factors to consider when there is a breach of a home detention sentence” and at a later point that “there is clearly a different approach to be taken to breaches of home detention sentences”. It appears to me those observations by her Honour were made in recognition of the differences in the legislative regime applicable to a breach of a suspended sentence bond as compared to a breach of a home detention order. Where a court finds that there has been a breach of a suspended sentence bond, if it is satisfied that the failure to comply with the conditions of the bond was either trivial or that there are proper grounds on which the failure should be excused, the court may refrain from revoking the suspension and take certain other action in its discretion. In the case of a bond that does not require the performance of community service, the term of the bond may be extended for up to 12 months, or a condition may be imposed requiring performance of a specified number of hours of community service, or any other condition of the bond may be revoked or varied. If the bond is already subject to the performance of a community service obligation various orders may be made in relation to that aspect of the matter. If the bond has already expired by the time the breach comes to be dealt with by the court, it may require the probationer to enter into a further bond for a term not exceeding 12 months. If the court revokes the suspension of the sentence of imprisonment, it may reduce that sentence under s 114(5) if it is satisfied that special circumstances exist. The range of powers available to a court are more limited where it is found that a failure to comply with the conditions of a home detention order was trivial or there are proper grounds to excuse the failure. In such a case, the court may refrain from revoking the order and may impose a further condition or revoke or vary a condition of the order. The court cannot extend the term of the home detention order and nor can it impose an obligation to perform community service. Furthermore, if the Court does revoke a home detention order and require the sentence to be served in custody, there is no power to reduce the term of imprisonment. However, any period spent on home detention prior to the breach, and also in the period between the date of the breach and the determination of the Court, must be deducted from the sentence originally imposed. That is simply a recognition of the time already served on home detention and not a discretionary reduction upon special circumstances being found as is the case under s 114(5).