Battle v Police - [2014] SASC 191

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BATTLE v POLICE
[2014] SASC 191
Reasons for Decision of The Honourable Justice Nicholson
16 December 2014
MAGISTRATES - ORDERS AND CONVICTIONS - SETTING ASIDE OR AMENDMENT OF ORDERS OR CONVICTIONS - ORDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
On 5 December 2013 the applicant was arrested and charged with the offences of indecent assault and attempted rape contrary to s56(1), and ss48(1)(a) and 270b(1), of the Criminal Law Consolidation Act 1935 respectively. Both the applicant and a female companion were sitting on the footpath outside a well known Adelaide nightclub in an inebriated state in the early hours of the morning. CCTV footage captured the female at one point lying down on the footpath and the applicant proceeding to climb on top of her and engage in groinal activity.
The applicant was held in custody on remand following his arrest until 11 April 2014 when he was released on bail. He had spent four months and six days in custody. The original offences with which the applicant was charged were subsequently withdrawn after the Crown came to accept that the behaviour was consensual. The applicant was then charged with, and pleaded guilty to, the summary offence of behaving in an offensive manner in a public place contrary to s7(1)(a) of the Summary Offences Act 1953.
In sentencing the Magistrate imposed a bond in the amount of $1,000 to be of good behaviour for a period of 12 months pursuant to s39 of the Criminal Law (Sentencing) Act 1988. A condition of that bond included the requirement to come up for sentence if called upon.
The applicant now appeals, one day out of time, on the basis that the sentence was manifestly excessive.
Held: Permission to appeal out of time and the appeal allowed. The imposition of the bond was, in all the circumstances, manifestly excessive. The bond is set aside and the applicant is resentenced to a term of 14 days imprisonment, backdated to commence on 29 March 2014, being 14 days prior to the date on which he was released on bail.
Summary Offences Act 1953 s7; Criminal Law (Sentencing) Act 1988 s15, s30, s39; Magistrates Court Act 1991 s3, s42, referred to.
Morley v Police [2005] SASC 233; R v Greengrass; Greengrass v Police [2009] SASC 194; Fischer v Chambers (1972) 4 SASR 105; Nollen v Police (2001) 78 SASR 421; PNJ v The Queen [2009] HCA 6; R v Witter (2011) 111 SASR 293; Police v Daniel [2013] SASC 174; Markarian v The Queen [2005] HCA 25, (2006) 228 CLR 357, considered.

BATTLE v POLICE
[2014] SASC 191
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

Mr Scott Ronald Battle has applied for an extension of time within which to appeal against a sentence imposed in the Magistrates Court for the offence, to which he pleaded guilty, of behaving in an offensive manner in a public place, contrary to s7(1)(a) of the Summary Offences Act 1953. The applicant filed his notice of appeal one day beyond the time prescribed by the Rules, hence the need for an extension of time.
The offence attracts a maximum penalty of a fine of $1,250 or imprisonment for three months. Originally the applicant was charged with one count of attempted rape and, in the alternative, one count of indecent assault. However, following further investigation the Crown came to accept that the behaviour, the subject of the charged offending, was consensual. The major and minor indictable offences of attempted rape and indecent assault, charged on information, were withdrawn (no evidence was tendered) and a new complaint was filed in the Magistrates Court charging the summary offence of behaving in an offensive manner in a public place.
Following the applicant’s plea of guilty the Magistrate imposed a bond to be of good behaviour for a period of 12 months pursuant to s39 of the Criminal Law (Sentencing) Act 1988. The bond carried a sum of $1,000 and contained conditions, including to the effect that the applicant was to be under the supervision of the Department for Correctional Services, was to receive counselling and or treatment deemed to be in his best interests in relation to alcohol abuse or any other issues and would be required to come up for sentence if called upon. A conviction was recorded. The applicant’s single ground of appeal is that the sentence imposed was manifestly excessive.
The appeal is pursuant to s42 of the Magistrates Court Act 1991. Such an appeal includes an appeal against a decision to impose a bond pursuant to s39 of the Criminal Law (Sentencing) Act 1988.[1]
[1] Magistrates Court Act 1991, s3; Morley v Police [2005] SASC 233.
Disconformity between the Remarks on Penalty and the bond entered into
The sentencing remarks do not expressly refer to the requirement to come up for sentence if called upon. However, that has been included as a term of the bond as entered into and signed by the applicant. In addition, the typed court record or endorsement which sets out the terms of the bond records this term and has been initialled by, it would seem, the Magistrate or someone on his Honour’s behalf.
Section 39 of the Sentencing Act provides a discretion in a sentencing officer either to require a defendant to appear for sentence if called upon or not to require this. However, there is no power to impose a condition of supervision and a condition requiring a defendant to undertake counselling and the like unless it is a term of the bond that the defendant appear before the court for sentence in the event of any failure during the term of the bond to comply with its conditions.[2] In the present case, there is a disconformity between the terms of the sentencing remarks and the bond as executed. Only the latter includes, as a condition, that the applicant be called up for sentence if required.
[2] Subsection 39(1a).
It is open to infer that it was the Magistrate’s intention to impose the bond as entered into. However, that was not the “sentence” in fact or in law, delivered by the Magistrate in court. A similar situation arose in R v Greengrass; Greengrass v Police,[3] where Sulan and Layton JJ[4] said this:
[3] [2009] SASC 194.
[4]    At [20], [21], [39], [40] and [41]. White J agreed in the result and provided separate reasons.
If a court decides to discharge a defendant without a sentence of imprisonment, s 39 requires that the bond include a condition to be of “good behaviour” as a mandatory condition. The other conditions, namely to appear before the court for sentence or conviction and sentence and other conditions, are optional. If the court requires a defendant to enter into conditions in addition to that of being of good behaviour, it is necessary for the court to articulate those conditions. This must occur at the time of sentencing. The defendant needs to be informed about the conditions which the court intends to impose and at the same time the court needs to know whether the defendant is prepared to enter into the bond upon those conditions. The defendant has the option of either agreeing to enter into the bond or not. If the defendant does not agree to enter into a bond or objects to a particular condition, then the court will need to know that so that it can determine whether or not to proceed under s 39.
If the defendant indicates that he agrees to enter into the bond and its conditions, then this can preferably be done forthwith before the court. Alternatively, depending on circumstances such as busy case lists, the signing of the bond may be done at a later time before an authorised person. The entering into a bond is a contractual arrangement[5] in which the court indicates the conditions upon which it is prepared to discharge the defendant. If the defendant accepts those conditions, the defendant may sign the bond and undertake to abide by the conditions in order to get the benefit of that discharge. The defendant is then released.
[5]    Fischer v Chambers (1972) 4 SASR 105, 110-111.
.  .  .  .
Section 39 of the Sentencing Act provides that a good behaviour bond may be imposed upon an offender in lieu of conviction and/or penalty. Such a bond cannot be imposed unilaterally, and is enforceable only if the offender knows and understands the conditions of the bond that he or she is offered. In every case, and particularly those cases where the Court is dealing with someone such as the appellant, who suffers from certain cognitive and learning deficiencies, it is imperative that the Court ensures the offender is made aware of each condition of the bond being offered to him or her. It is not sufficient for someone to later inform the offender of the conditions of the bond. If the bond is not taken before the Court but is instead later signed before a Justice of the Peace,[6] the conditions of the bond must accord with the conditions indicated by the Court and accepted by the offender. Whether a bond is taken by an offender before the Court or otherwise, the conditions of the written bond signed by the offender must be the same as those proposed and accepted before the Court. In contractual terms, the offender in this case was subsequently provided with a written document which did not accord with the conditions previously indicated to him by the Court. The written document purported to include an important statutory condition contained in s 39(1)(b), which had not been imposed by the Magistrate. The purported imposition of this additional condition was inappropriate and ineffective.
Further, the provisions of s 39(1a) become relevant. This subsection provides:
However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
It follows that all of the other conditions set out in the First Bond, other than to be of good behaviour, would be ineffective. The reference in s 39 (1)(ab) to ‘conditions (if any) included in the bond’ covers all potential conditions provided for by s 42 of the Sentencing Act. These conditions could not have been imposed in the absence of a valid condition that the defendant be required to appear before the court if called upon. Therefore, the only valid condition of the First Bond is the mandatory condition that the appellant be of “good behaviour”. The condition, if it stood alone, would mean that the good behaviour bond which was entered into was a valid bond. The issue then becomes whether or not the other invalid conditions thereby render the whole of the bond to be invalid. In our view, they do not. These were optional additional conditions which could be severed, leaving the mandatory condition as the sole condition.
The reasoning in Greengrass applies in this case. As a consequence, all conditions in the bond other than the requirement that the applicant be of good behaviour for 12 months are set aside.[7] Nevertheless, this being the “sentence” in fact and in law passed, the question still arises as to whether or not the imposition of a bond in these terms is manifestly excessive.
[6]    Nollen v Police (2001) 78 SASR 421, [58]-[60].
[7]    Even the inclusion of a condition that the applicant pay a specified sum ($1,000) in the event of non-compliance is discretionary, see s41(1)(a), and therefore an optional condition to be severed in accordance with the reasoning in Greengrass.
Circumstances of the offending
Briefly, the circumstances of the offending were that the applicant and a female companion had left a well known Adelaide nightclub in the early hours of the morning and were sitting on a footpath outside. It is common ground that they were both significantly affected by alcohol. There came a time when the female lay down on the footpath on her back and the applicant climbed on top of her. Various activities ensued as depicted on CCTV footage. Those activities included what a police officer, after having viewed the CCTV, described, in an affidavit relied upon by the prosecution, as groinal activity. There was evidence to the effect that at least three passersby found the conduct of the applicant, which they observed, to be highly offensive.
I am satisfied that, on the evidence before the Magistrate, the offending behaviour with respect to which the applicant pleaded guilty tended towards the high end of the scale for an offence of this nature.
Relevant personal circumstances
The Magistrate found, and rightly so, that the prior criminal record of the applicant was of “some concern”. The applicant has prior convictions for damaging property, indecent assault, failing to comply with a restraining order, breaches of bail and failure to comply with reporting conditions and offensive language. The applicant has been sentenced to at least one short period of imprisonment to be served and one lengthy period suspended.
When the applicant was charged with the original more serious offending he was remanded in custody. It is unnecessary to go into the background concerning his applications for bail during that early period. However, he was released on bail on 11 April 2014 before the more serious charges were withdrawn and replaced. He was on bail at the time of sentencing for the offensive behaviour offence, although he had spent four months and six days in custody on remand following his arrest on the more serious charges.
If the applicant had been sentenced to a term of imprisonment for the offensive behaviour offence, the question whether the discretion under s30(2) of the Sentencing Act, to allow credit for the four months and six days earlier spent in custody, was available would have arisen.[8] This time in custody was with respect to the very same conduct that related to both the withdrawn attempted rape and indecent assault charges and the offensive behaviour charge to which he ultimately pleaded guilty. Subsection 30(2) provides as follows.
(2)If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and—
(a) make an appropriate reduction in the term of the sentence; or
(b) direct that the sentence will be taken to have commenced—
(i)on the day on which the defendant was taken into custody; or
(ii)on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
[8] See s30, PNJ v The Queen [2009] HCA 6 and also R v Witter (2011) 111 SASR 293.
The High Court in PNJ v The Queen[9] considered the meaning and application of this subsection and observed the following.[10]
In the particular circumstances of this case, however, it may be that the power to backdate any sentence passed on the applicant (and to backdate the commencement of a non-parole period) is to be found in s 30(2)(b) rather than the general powers conferred by s 30(1). The expression used in s 30(2), about which the relevant operation of par (b) would hinge, is "[i]f a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment". No narrow construction should be given to the words "time in custody in respect of an offence". The better view may be that they are words that in this case would encompass the time the applicant has spent in custody following his arrest for and awaiting trial for the wounding, and the time he has spent in custody serving the sentence imposed on him for the wounding.
If a person is charged with an offence, taken into custody, and later convicted of that offence, there is no doubt that s 30(2) would apply. But if, as is often the case, the charge that is laid at the time of an offender's arrest is not the charge of which the offender is later convicted, it does not follow that the time served cannot be described as "time in custody in respect of an offence" of which the offender is later convicted. The question is whether the time in custody is "in respect of" (which is to say, is referable to) the offence in question. And where, as here, the applicant's conduct was complete when he was taken into custody but the offence of murder was not complete until the victim died, the expression "time in custody in respect of an offence" may be given the application that has been described.
[9] [2009] HCA 6.
[10] At [17]-[18] (emphasis supplied).
On any analysis, the fact that the applicant had spent four months and six days in custody in these circumstances was a personal circumstance to be taken into account at the time of sentencing. The Magistrate acknowledged this. However, it is arguable that the time served by the applicant is properly to be described as time in custody in respect of the offence for which the applicant was subsequently convicted. If so, he would be entitled to credit for time served if a prison term were to be ordered. Nevertheless, the reasoning in Police v Daniel[11] suggests that such a sentencing option may not be available in this case.
[11] [2013] SASC 174. On any view, the offending was not “trifling” such that s15 could not apply.
In Daniel, the appellant was in custody on remand, at the time he was to be sentenced, and had been so since his arrest. The Magistrate, after taking the time already served into account, convicted the appellant without further penalty. Kelly J held that this was an error. For reasons explained by her Honour, the discretion under s15 of the Sentencing Act to convict without penalty was not enlivened on the facts. Furthermore, s30(2) of the Sentencing Act did not permit this approach to be adopted. Under that subsection, the allowing of credit for time served is only to be permitted where an accused “is subsequently sentenced to imprisonment”. If after allowing credit for time served the starting point for a proposed sentence of imprisonment would be reduced to zero, leading to “no further penalty”, it could not, according to the reasoning in Daniel, be said that an accused was “subsequently sentenced to imprisonment”.
Counsel for the applicant submitted before the Magistrate that, in the circumstances, a discharge of the applicant with no further penalty should be considered. It may be that the Magistrate took the view that this was not open to him, bearing in mind the reasoning of Kelly J in Police v Daniel.[12] The Magistrate ordered that a conviction be recorded and proceeded to deal with the applicant by way of the s39 bond.
[12] [2013] SASC 174.
Manifest excess
I return to the question whether the bond actually imposed gave rise to a sentence that was manifestly excessive. In essence, the question of whether or not a sentence is manifestly excessive is to be determined by asking the question whether, upon the facts, the sentence imposed was unreasonable or plainly unjust. In Markarian v The Queen,[13] Gleeson CJ, Gummow, Hayne and Callinan JJ said this.
As with other discretionary judgments, the enquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[13] [2005] HCA 25; (2006) 228 CLR 357 at [25].

In this case, the elements of the “sentence” imposed by the Magistrate included the following:
(i)a conviction to be recorded; and
(ii)a requirement that the applicant be of “good behaviour” for 12 months.
Whether or not this was manifestly excessive has to be assessed by having regard to: the serious nature of the circumstances of the offending; the need for personal and general difference; the personal circumstances of the applicant; and in the context of an offence carrying a maximum penalty of a fine of $1,250 or imprisonment for three months where the applicant had already spent more than three months in custody.
It is conceivable that, in the event that the applicant were to breach the bond, he would have another entry (breach of bond) on his criminal record. This would apply in addition to any sentence imposed for any breaching offence(s). Further, the applicant will spend a period of 12 months living with the concern that he might commit the offence of breach of bond. This would be in addition to and notwithstanding that he has already spent more than four months in custody on account of his criminal conduct.
A simple bond is often seen as a relatively innocuous penalty and to characterise it as manifestly excessive might be regarded as somewhat peculiar. However, I take the view that, in the circumstances of this case, the imposition of such a bond was unreasonable and manifestly excessive.[14] The applicant had already been more than sufficiently punished. There was no call for him to become subject to any further enforceable obligation. The bond should be set aside and the applicant resentenced.
[14] This would be all the more so were the bond to be enforceable according to its terms as actually executed, so as to require the applicant to come up for sentence upon breach together with the additional terms including the estreatment amount of $1,000.
Given the serious nature of the offence, as committed, and the applicant’s prior criminal record, a term of imprisonment was warranted. I would impose a period of imprisonment for 14 days after allowing credit for the applicant’s plea. A conviction is to be recorded and the Court fee and other levies as ordered by the Magistrate are to remain in place.
At this point I am confronted with the problem that I expect caused concern to the Magistrate. To my mind, the circumstances do call for the time honoured approach of recording a conviction by imposing no further penalty, not even a bond. However, the decision in Police v Daniel[15] suggests that a sentence of imprisonment must be imposed before either credit for time served or backdating can be allowed pursuant to s30(2)(a) or (b) respectively. If this is correct, then to allow the applicant the full or even substantial credit on account of the time served, would result in no further penalty rather than a term of imprisonment being imposed and would fall outside the power available under s30(2).
[15] [2013] SASC 174.
I do not need to finally express a view on this issue. As artificial as it may appear, the appropriate course here, in any event, is to backdate the commencement of the term of 14 days imprisonment to a date 14 days prior to the applicant’s release on bail which occurred on 11 April 2014. My express intention is that the applicant is not to serve any further time in custody for his behaviour on the night in question. This approach has the advantage of ensuring that the applicant’s criminal record will accurately show the appropriate penalty imposed for this offence (14 days imprisonment).
I make the following orders:
(i)application for permission to appeal out of time is allowed;
(ii)the appeal is allowed;
(iii)the sentence imposed by the Magistrate on 26 September 2014 including the bond, entered into on that date, is set aside;
(iv)the applicant is resentenced such that:
(a)     a conviction is recorded;
(b)    the applicant is sentenced to a term of imprisonment for 14 days backdated to commence 29 March 2014; and
(c)    the Court fee, CIC levy and prosecution fee as ordered by the Magistrate are to remain in force.