BRADBURY v POLICE

[2005] SASC 362

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BRADBURY v POLICE

Judgment of The Honourable Justice Vanstone

20 September 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS

Appeal against sentence imposed by Magistrate- several offences of serious criminal trespass - breach of earlier suspended sentence bond - whether earlier bond should have been extended - whether new sentence manifestly excessive - appeal dismissed.

Criminal Law (Sentencing) Act 1988,  s 58, referred to.
R v Buckman (1988) 47 SASR 303, considered.

BRADBURY v POLICE
[2005] SASC 362

Magistrates Appeal

1. VANSTONE J:     The appellant pleaded guilty in the Magistrates Court to five counts of serious criminal trespass with associated thefts, together with other less serious offences.  These were committed during June 2003.  The offences were in breach of a bond acknowledged on 17 April 2002.  That was linked to a suspended sentence of 12 months imprisonment for several offences, including a serious criminal trespass.  As it turns out, though, estreatment proceedings were based on failure to report to the appointed community corrections officer. 

2. The Magistrate ordered that the suspended sentence come into effect.  He imposed a cumulative sentence of 15 months imprisonment for the fresh offences.  He reviewed the previous non-parole period of six months and extended it to nine months.  The appellant argues that the Magistrate erred in failing to excuse the breach of the bond or, at least, in failing to reduce the earlier sentence.  He puts that the total sentence to which the appellant became liable is manifestly excessive. 

3. Having found the breach proved, the Magistrate was required to revoke the suspension of the sentence unless the breach was “trivial”, or there were “proper grounds” to excuse it. Failing that, if he found there were “special circumstances”, he could reduce the term: s 58(3) and (4) Criminal Law (Sentencing) Act 1988.

4. In urging these courses, the appellant relied upon his personal circumstances.  The following is a summary of those.

5. The appellant is now 23 years of age, although he looks immature.  He suffered from learning difficulties at school which have affected his literacy.  His difficulties may well have been more than simply dyslexia.  He has never been employed.  He is said to be easily led by others.  He has a history of offending dating back to 1999.  About five years ago the appellant’s sister died.  His mother reports that he has had difficulty coming to terms with her death.  It is said that prior to the recent sentencing the appellant had taken steps towards rehabilitation.  He attributed that to having found stable accommodation.  His mother reported a change in his behaviour and attitude in this period.  For the first time he was said to have shown interest in obtaining employment and, she said, was “staying out of trouble”.  A pre-sentence report suggested that imprisonment might be a “retrograde step” in terms of the appellant’s rehabilitation. 

6. Significant difficulties face the appellant in his arguments directed towards the suspended sentence.  The subsequent offences could not be said to be trivial and any proper grounds used as a basis to excuse a breach must relate to the circumstances of the breach itself:  R v Buckman (1988) 47 SASR 303. In circumstances where the bond conditions were contravened not only by the failure to report, but also by multiple offences similar to the original offending, it would be all but impossible to find proper grounds. Special circumstances justifying reduction of a term of imprisonment do relate to personal matters, but they must be “such as to render the original sentence inappropriate”: R v Buckman at 304. The appellant’s claims to have embarked – in recent times – on a path to rehabilitation could not answer that description. Indeed I note that for the period November 2003 to September 2004 the appellant was illegally at large, having failed to answer bail in respect of the fresh charges. In my mind that clouds the issues of rehabilitation, acceptance of responsibility for these offences and contrition. I consider the Magistrate was correct to find that the suspended sentence had to be carried into effect, without reduction.

7. The appellant’s counsel did not, and could not, argue that the new head sentence was manifestly excessive.  Nor could there be any real argument that the decision to make the sentences consecutive was other than in accordance with settled principle. The new sentence could not, then, be suspended:  s 38(2).  The non-parole period extension, of three months, could only be described as very lenient.

8. This is a sad case.  One cannot but feel that the appellant will find his time in custody profoundly distressing.  Unfortunately, however laudable the appellant’s recent progress might be, the fact remains that he committed these serious offences whilst subject to a bond imposed with respect to similar offending.  In these circumstances there is little more the court could have done to ameliorate the consequences of his actions.  The appeal must be dismissed. 

9. I note for the benefit of the Chief Executive Officer, Department of Correctional Services, that prior to his release on bail pending appeal, the appellant served some nine days of his sentence.

10. I make the following orders:

    1.     appeal dismissed;

    2.     bail pending appeal revoked;

    3.     sentence imposed by the Magistrate to recommence today.