CALWYN v Police

[2007] SASC 57

Supreme Court of South Australia

(Magistrates Appeals: Civil)

CALWYN v POLICE

[2007] SASC 57

Judgment of The Honourable Justice Sulan (ex tempore)

16 February 2007

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING

Appeal against sentence - appellant pleaded guilty to four counts of failing to comply with a bail agreement - Magistrate imposed a two-month suspended sentence of imprisonment - consideration of when it is appropriate to impose a sentence of imprisonment - consideration of s 11 of the Criminal Law (Sentencing) Act 1988 - appeal allowed.

Bail Act 1985 s 17; Criminal Law (Sentencing) Act 1988 s 11, s 18A, referred to.

CALWYN v POLICE
[2007] SASC 57

Magistrates Appeal

1. SULAN J: The appellant appeals against a sentence imposed by a Magistrate sitting at Whyalla. The appellant had pleaded guilty to four counts of failure to comply with a bail agreement contrary to s 17 of the Bail Act1985 (“the Act”). The Magistrate imposed one sentence of two months’ imprisonment pursuant to s 18A of the Criminal Law (Sentencing) Act1988. He suspended the sentence upon the appellant entering into a bond in the sum of $100 to be of good behaviour for a period of 12 months. The maximum penalty for the offence is imprisonment not exceeding two years or a fine not exceeding $10,000 or a lesser penalty not exceeding the maximum penalty for the principal offence.

2. The appellant has no relevant prior criminal history. The offences all relate to the appellant’s failure to report to the police, which was a specific term of bail imposed upon him in May 2006. During one period he failed to report on nine separate occasions, and on another on three separate occasions. As to a further matter, he failed to report to the police, as required, on two separate occasions.

3. The Magistrate regarded the failures to report as serious breaches of the Act. The appellant contends that a sentence of imprisonment, albeit suspended, is in all the circumstances excessive.

4. The respondent has conceded the appeal. The respondent’s counsel in her outline of argument referred to s 11 of the Criminal Law (Sentencing) Act1988 which provides that imprisonment may only be imposed if certain matters are established:  (1) the defendant has shown a tendency to violence towards other persons;  (2) the defendant is likely to commit a serious offence if allowed to go at large;  (3) the defendant has previously been convicted of an offence punishable by imprisonment;  or (4) any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence.

5. The respondent concedes that there was no information before the court that the appellant has a tendency to violence.  There was no basis for concluding that he was likely to commit a serious offence if allowed to go at large, and he has no previous convictions of relevance. There is no allegation that he had absconded during the time he was on bail. The gravity of the offences or their circumstances do not make it inappropriate to impose a non-custodial sentence.

6. The Magistrate was informed that although there were multiple breaches of bail the reasons for the appellant not reporting as required at the Whyalla Police Station were due to him being at a TAFE college at Whyalla on some of the days. On others he had been at Port Augusta and unable to return to Whyalla. As to a number of the later breaches of bail they occurred because the appellant mistakenly believed he was not required to report.

7. The appellant had been going through a difficult time. He had separated from his long-term partner who had returned to Western Australia.  He was having difficulty coping. He was drinking to excess and that contributed to his failures to attend and report. The Magistrate was informed that the appellant, who is 26 years of age, had now taken positive steps to help him get his life into order. He was seeking advice in relation to obtaining access to his child.  He had given up alcohol. He had commenced attending the Seventh Day Adventist Church and, since taking those steps in July 2006, he had complied with all his reporting conditions. He was attending TAFE at Whyalla. He had no criminal record.

8. The appeal was properly conceded. A sentence of imprisonment is not justified in the circumstances. The criteria of s 11 were not met. Even if some of the criteria of s 11 had been met, in the circumstances of this case, a prison sentence was not called for.

9. Although there were numerous occasions upon which the appellant failed to attend and report to the police station as required, his failure to do so posed no risk to the community. I accept that it is important and necessary that persons who are on bail comply with conditions of their bail. If they are unable to comply they have a responsibility to contact the bail authority and to advise the bail authority of the reasons as to why they cannot comply with the requirements of their bail. A failure to do so is serious and will attract a significant penalty. That penalty will, on occasions, include a custodial sentence in the case of serious offending or repeat offending.

10. The appellant was experiencing a difficult time in his personal life. He had been drinking to excess, his life was in turmoil and he was not coping. Nevertheless, he had taken a number of specific steps to overcome those problems. There was uncontested material before the Magistrate that the appellant had significantly changed his life.  The steps taken by the appellant were relevant.  It appears that the Magistrate failed to give them adequate weight.

11. The appeal is allowed.  Given that the appellant is not financially secure and given his circumstances, I would not impose a monetary penalty. The sentence of imprisonment is set aside. I record a conviction on each count but impose no further penalty.