Chandra v R No. Sccrm-97-297 Judgment No. S6554

[1998] SASC 6554

CHANDRA v R

Court of Criminal Appeal
Coram:  Doyle CJ, Cox and Williams JJ  (ex tempore)

Doyle CJ

This is an appeal against sentence.  The appellant pleaded guilty to two counts alleging breach of a bond to be of good behaviour for two years.  That bond was entered into on 22 November 1994.  Upon the appellant entering into that bond, a sentence of six months imprisonment imposed upon the appellant had been suspended.

Two counts alleging a breach of bond came before the District Court.  A judge heard submissions and decided that the suspension of the sentence should be revoked.  He found that there were no special circumstances justifying him in reducing the term of the suspended sentence.  The appeal is against those decisions.

The appellant complains that the judge erred in deciding to revoke the suspension.  She complains that he should have found that there were proper grounds to excuse the failure to comply with the conditions of the bond.

The history of the matter is this.   In November 1994 the appellant was convicted, upon the verdict of a jury, for attempting to procure a person to become a prostitute.  That offence was committed in February 1994.  The sentencing judge sentenced her on the basis that what she did involved "no more than a fairly minor degree of persuasion."

The offence of procuring a person to become a prostitute attracts a maximum penalty of seven years’ imprisonment.  However, conviction for an attempt attracts a maximum sentence of two-thirds, and so the applicable maximum was four years, eight months.

It was accepted before the sentencing judge back in November 1994 that the appellant was involved in the `sex industry', as it is called.  It was clear that she had been so involved for sometime.  In 1986 and 1990 she was convicted for receiving money paid in a brothel.  In 1990 she was convicted for keeping a brothel, and again for the same offence in 1992.  For each of those offences she was fined. Her record includes convictions for a number of other relatively minor offences.

In any event, a suspended sentence was imposed.  The judge gave a warning that in the event of a breach of the bond, the appellant was likely to be imprisoned.

It is with that background that the appellant once again came before the District Court charged with breach of her bond. That arose out of two convictions for attending premises frequented by prostitutes.  Those offences were committed on 25 March 1996 and 30 April 1996.  The appellant pleaded guilty to each offence.  Although the appellant was convicted for the same offence on 12 December 1994, that conviction was in respect of events on 30 September 1994, thus taking place before the conviction that gave rise to the suspended sentence.

There is not a great deal to be said about the breaching offences, as I will call them.  The appellant was found on the premises in question in one case, and the circumstances of the other offence are unclear.  No doubt, in view of her history, she was well aware of the fact that it was against the law for her to be present on those premises, and well aware of the risk of imprisonment were she to be detected at the premises.

Charges of keeping a brothel were also brought in relation to both premises upon which she was found, but those charges were not proceeded with.  In connection with those charges furniture and other items worth about $12,000 were seized by the police.  The appellant had not sought to recover that property and so, on one view, had suffered a further penalty or detriment.  However, as I will indicate later, I regard this matter as irrelevant for present purposes.

For the breaching offences a magistrate imposed a fine of $50 on each count.

As to the appellant herself, it is relevant to record, as I have already mentioned, that she has been involved in what is called the `sex industry' for some years.  Her record shows that.  However, there is more to it than that.  She has been actively involved in campaigns for the decriminalisation of prostitution and to improve the conditions of work for sex workers.  Apparently she was involved in setting up the Prostitutes Association of South Australia. It was submitted to the judge, and I assume accepted by him, that the appellant has been actively involved in trying to improve conditions in the sex industry, and in trying to improve awareness of risks to health and to improve the approach taken to health risks.  In addition, there was material before the judge that the appellant had involved herself with a number of activities for the good of the community.  For example, she had done work aimed at helping children living on the streets.  Some other material was put before the judge testifying to good works that the appellant had done.  Thus it was fair to say that the appellant's involvement in the sex industry, which is involvement in an activity involving criminal offences, had some redeeming features to it.

Under the Sentencing Act the judge was obliged to revoke the suspension unless there were proper grounds upon which the failure to comply with the bond should be excused. In my opinion it could not be suggested that the failure was trivial. The basis for the making of the relevant decision is canvassed in R v Buckman (1988) 47 SASR 303, especially by Jacobs J at 309, and in R v Marston (1993) 60 SASR 320.

It was submitted to the judge that he should decide that the failure to comply with the bond should be excused.  A number of matters were put forward.  It was argued that the breaching offences only occurred because, with the appellant's long links to the sex industry, she went to the premises out of `human weakness and habit'.  In my opinion there is no substance in that submission.  The appellant must have decided to take her chances of being detected. This was the very thing that, in her circumstances, she knew she should not do.

Some reliance was placed upon the forfeiture of property worth about $12,000.  In my opinion that was irrelevant and I do not need to go into that any further.

Much reliance was placed upon the disproportion, as it was said to be, between the six months sentence to be activated and the relatively minor nature of the breaching offences. That is a factor to be taken into account and I refer again to R v Marston (1993) 60 SASR 320. Reliance was also placed upon the redeeming aspect of the appellant's involvement in the sex industry and upon the other good things that she had done.

The District Court judge considered all that.  He was not persuaded that there was any disproportion between the seriousness of the breaching offences and the length of the suspended sentence.  He found that there were no proper grounds upon which the failure to comply with the bond should be excused and he revoked the suspension of the sentence.

I begin by noting, as did King CJ in R v Marston (supra), that there is a clear legislative policy that, in general, a breach of a bond upon which a sentence has been suspended should result in the offender serving the sentence which was suspended. Departure from that principle runs the risk of undermining the integrity of the system of suspended sentences, and their effectiveness as a means of deterring future offenders.  To say that is in no sense to undermine the requirement to consider whether there are proper grounds upon which the failure should be excused.  What King CJ said merely reflects the context in which that question is to be considered. That is, a context in which a suspended sentence is to be regarded as a real sanction, and the sanction is the risk of activation of the suspended sentence if there is a breach of the terms of the relevant bond.

It is submitted that the judge erred in finding that there was `some similarity' between the original offence and the breaching offences.  I reject that submission, although the words used by the judge were not ideal.  The judge said that there were links to prostitution in each case.  I consider that there were, and that that is a relevant factor.

In a general sense it can be said that one of the purposes behind the suspended sentence was to deter the appellant from engaging in prostitution and any conduct related to prostitution.  Being at premises frequented by prostitutes, in my opinion, has a link to prostitution.  The breaching offences demonstrate that the intended deterrence had not been fully effective.  The judge was entitled to consider that factor.

It was submitted that the judge erred in saying that only two months after the appellant received the suspended sentence, she was involved in the offence of being on premises frequented by prostitutes.  The judge noted that that other offence took place in September 1994.  At first I thought it was a slip of the tongue that caused him to say that that offence was two months after the suspended sentence. However, he referred to the fact that no action was taken then to revoke the suspension.  That indicates that he did err, because an offence committed before the bond was entered into would not be a basis for alleging a breach of the bond.  Moreover, it is fair to say that the fact that the premises involved in one of the breaching offences were premises in respect of which the appellant had previously been convicted did not have much to do with the matters that the judge had to consider.

The reference that the judge made to the loss of property worth about $12,000 does display some confusion.  I think it likely that the judge took it into account in the appellant's favour as a further detriment that she had suffered, but I regard the matter as irrelevant in any event.

As I have said, the judge appears to have made an error and I cannot exclude the possibility that it affected his decision, accordingly the matter should be considered afresh.

In considering whether the suspended sentence should be reduced (a further matter the judge referred to), the judge referred to the history of the appellant's involvement in prostitution. He referred to the offence that attracted the suspended sentence as carrying a maximum sentence of seven years imprisonment.  In that respect also he was wrong, and he does appear to have put some weight upon that matter.  He emphasised in that context the apparent leniency of the sentence imposed and the appellant's failure to observe the warning that she had been given.  The leniency was not as great as it might have appeared when one bears in mind that the maximum sentence was, in fact, four years, eight months. I cannot exclude the possibility that the judge erred in this respect as well.  But, as I have to consider the matter afresh, that error can be put aside.

I therefore turn to a fresh consideration of the matter. As I said, I do not regard the breaching offences as trivial offences. I take into account all of the matters advanced before the sentencing judge.  I do not consider that the nature of the appellant's involvement in the sex industry is entitled to great weight.  The fact is that it is an industry that involves the commission of criminal offences, and the law is clear on that.  The fact that the appellant's participation in it has redeeming features cannot, in my opinion, be relied upon to excuse or significantly mitigate offences committed by her.  The nature of the offence and its deliberate character remains the same.

The one matter that gives me pause is the disproportion between the seriousness of the breaching offences and the length of the sentence which is to be activated. The sentences for the breaching offences are relatively minor, although their minor nature is, in the present case, to be weighed against the fact that they are offences that do bear similarities to, or have links to, the offence in respect of which the suspended sentence was imposed. In my opinion it cannot be said in this case that the breaching offences are, in the words of Jacobs J, offences of `a quite different character from that for which the [suspended] sentence was imposed'. I again refer to R v Buckman (1988) 47 SASR 303. There is a relevant relationship between the breaching offences and the original offence. Nevertheless, I am influenced by the disproportion.

I also take into account a matter not previously mentioned, the fact that some 17 months of the two year bond had been completed.  On the other hand, there are two breaching offences, suggesting a casual attitude to the bond.  As well, the offence committed before the bond was imposed, combines with the other two, to suggest that the breaching offences indicate that the appellant has not given up her involvement in this industry.  Her earlier record indicates an active involvement in that industry, and I remain of the view that the breaching offences have links to that involvement, although I put it no higher.

It is necessary to consider each of these matters in deciding whether the failure should be excused.

Having given the matter careful thought, in my opinion, taking all these things into account, there are not proper grounds to excuse the failure to comply with the conditions of the bond.  I consider that the appellant has shown a tendency to offend in the very area from which the suspended sentence was intended to deter her.  That is an area of illegal activity in which she has had a not insignificant involvement in the past.  The importance of maintaining the purpose behind the original suspended sentence is a significant factor, and for those reasons, despite the matters advanced by Ms Vanstone QC, which I accept are of some force, I would dismiss the appeal.  I add that, in my opinion, there are no grounds for reducing the term of the suspended sentence.

Cox J

I agree.  I have nothing to add.

Williams J

I agree.

Doyle CJ

The order of the court is that the appeal be dismissed.