CHATTERTON v Police
[2020] SASC 71
•6 May 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
CHATTERTON v POLICE
[2020] SASC 71
Judgment of The Honourable Justice Parker
6 May 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES - CONDITIONS
This is an appeal against sentence. The appellant was sentenced by a Magistrate to 18 months and two weeks’ imprisonment with a nine-month non-parole period for offences committed on 5 January 2019, 3 February 2019, 25 April 2019 and 10 September 2019 and for breach of suspended sentence bond.
The appellant appealed to this Court on four grounds:
1. The sentence imposed was manifestly excessive;
2. The Magistrate erred in sentencing on an incorrect factual basis as to the appellant's antecedents;
3. The Magistrate erred in falling to apply a reduction in penalty of 40% in relation to the offence of theft committed on 25 April 2019; and
4. The Magistrate erred in enforcing the suspended sentence bond, which was unenforceable against the appellant because first, the bond only related to 16 of the 19 offences to which it should have related, and secondly, the bond contained an acknowledgement that the probationer had explained to him two facts which were not correct as a matter of law.
Held, per Parker J, allowing the appeal in part:
1. The mistake about the appellant’s antecedents was a process error. That error did not affect the sentences imposed. Ground 2 is dismissed.
2. The respondent conceded that the Magistrate erred in failing to apply a reduction in penalty of 40% in relation to the 25 April 2019 offence of theft. A discount of 30% was incorrectly applied. Ground 3 is allowed. The sentence for that offence will be reduced to two weeks and four days.
3. The bond entered into by the appellant on 4 August 2018 was valid. Ground 4 is dismissed.
4. It was appropriate to make the sentences for the two number plate offences committed on 10 September 2019 concurrent with the unlawful use of a motor vehicle offence. Ground 1 allowed to a limited extent.
5. The appellant is resentenced to a term of imprisonment of 16 months, two weeks and three days with a non-parole period of eight months. The sentence and non-parole period are both to commence from 10 September 2019.
Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 2017 (SA), referred to.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; R v Horstmann [2010] SASC 103, applied.
Director of Public Prosecutions (Cth) v Cole (1972) 2 SASR 105; Hodgins v Police [2008] SASC 176; Mann v Yannacos (1977) 16 SASR 54; Nollen v Police (2001) 78 SASR 421; R v Greengrass (2009) 104 SASR 262; R v Yazarlou [2014] ACTSC 283, discussed.
R v Bagnato (2011) 112 SASR 39; R v Belczacki (2012) 112 SASR 95; R v Blain (1984) 115 LSJS 270, considered.
CHATTERTON v POLICE
[2020] SASC 71Magistrates Appeal: Criminal
PARKER J: This is an appeal against sentence. For the reasons that follow I uphold the appeal on Grounds 1 and 3 and re-sentence the appellant. I otherwise dismiss the appeal.
Background
On 21 January 2020, the appellant was sentenced by a Magistrate to 18 months and two weeks’ imprisonment with a nine-month non-parole period for offences committed on 5 January 2019, 3 February 2019, 25 April 2019 and 10 September 2019 and for breach of suspended sentence bond. The sentence was backdated to commence on 10 September 2019.
Due to the timing of his guilty pleas, the appellant was entitled to the statutory discounts of up to 30 per cent and 40 per cent on the penalties imposed for those offences. The penalties imposed by the sentencing Magistrate were as follows:
Offence Maximum Penalty Discount Sentence imposed MCPAR-19-13347 Application for Enforcement of Bond N/A N/A Suspension revoked. Imprisonment of three months and three weeks carried into effect. MCPAR-19-4678
5 January 2019Dishonestly Take Property Without Consent, contrary Criminal Law Consolidation Act 1935 (SA) (“CLCA") s 134 – Playstation and purse 10 years’ imprisonment 30% Imprisonment for two months, to be served cumulatively with revoked suspended sentence. MCPAR- 19-2569
3 February 20191 State False Personal Details, contrary to Summary Offences Act 1953 (SA) (“SOA”) s 74A(3)(b)(i)
$1,250 or three months’ imprisonment 30% One penalty imposed pursuant to s 26 of the Sentencing Act 2017 (SA).
Imprisonment for three months and two weeks, to be served cumulatively with sentence imposed on MCPAR-19-4678 and 19-13347.
2 Hinder Police, contrary to SOA s 6(2) – flee on bicycle
$2,500 or six months’ imprisonment 30% 3 Carry an Offensive Weapon, contrary to SOA s 21C(1)(a) – knife $2,500 or six months’ imprisonment 30% 4 Possess a Housebreaking Implement, contrary to SOA s 21C(1)(b) $2,500 or six months’ imprisonment 30% MCPAR- 19-9007
25 April 2019Dishonestly take Property Without Consent, contrary to CLCA s 134 – food worth $85 10 years’ imprisonment 30%
(should have been 40%)Imprisonment for three weeks, to be served cumulatively with sentence imposed on MCPAR-19-2569; 19-4678 and 19-13347. MCPAR-19-9671
10 September 20191 Drive unauthorised, Licence or Learner’s Permit Previously Held, contrary to Motor Vehicles act 1959 (SA) (“MVA”) s 74(1) $1,250 40% $350 fine. 2 Drive Motor Vehicle with Incorrect Number on Number Plate, contrary to the MVA s 47D(1)(a) $5,000 40% $350 fine. 4 Dishonestly Receive Property Without Consent, contrary to CLCA s 134 – a number plate 10 years’ imprisonment 40% One penalty imposed pursuant to s 26 of the Sentencing Act 2017.
Imprisonment for eight months and two weeks, to be served cumulatively with the sentence imposed on MCPAR-19-9007; 19-2569; 19-4678 and 19-13347.
5 Dishonestly Receive Property Without Consent, contrary to CLCA s 134 - a different number plate 10 years’ imprisonment 40% 6 Unlawful Possession, contrary to SOA s 41(1) – bicycle and related equipment $10,000 or two years’ imprisonment 40% 7 Drive or Use Motor Vehicle Without Consent, contrary to CLCA s 86A(1) Two years’ imprisonment 40% 8 Possess Controlled Drug (not Cannabis), contrary to Controlled Substances Act 1984 (SA) (“the CSA") s 33L $2,000 or two years’ imprisonment, or both 40% Convicted without further penalty. 9 Possess Equipment to Use with Controlled Drug (not Cannabis), contrary to the CSA s 33L(1)(c) $2,000 or two years’ imprisonment, or both 40% Convicted without further penalty. Of the offences charged in relation to the appellant’s conduct on 10 September 2019, count 3 was withdrawn.
Grounds of appeal
The appellant agitates four grounds of appeal:
1.The sentence imposed was manifestly excessive;
2.The learned Magistrate erred in sentencing on an incorrect factual basis as to the appellant’s antecedents;
3.The learned Magistrate erred in failing to apply a reduction in penalty of 40 per cent in relation to the offence of theft in MCPAR-19-9007; and
4.The learned Magistrate erred in enforcing the suspended sentence bond, which was unenforceable against the appellant.
For reasons which will become apparent, I will consider Ground 1 after Grounds 2, 3 and 4.
The offending
On 5 January 2019, the appellant stole a PlayStation and a purse and its contents from an unlocked vehicle. The appellant made full admissions when interviewed by Police. All items were recovered. For this offending, the appellant was charged with one count of theft.
At about 10:50 pm on 3 February 2019, Police observed the appellant leaving an address of interest. Police suspected the appellant of attending that address to obtain drugs. They stopped the appellant and asked for his personal details. The appellant gave a false name. While Police were verifying his details, the appellant took off on a bicycle. After a pursuit of about one kilometre the appellant was stopped and Police searched his backpack. Police found three screwdrivers, two cutting pliers, a torch, a jemmy bar, a glass breaker and a knife of about 10cm in length. When interviewed by Police, the appellant stated that he had provided a false name and ridden off because he was concerned Police would locate the methamphetamine he had just purchased. For this offending, the appellant was charged with one count of giving false information to Police, one count of hinder police, one count of carrying an offensive weapon (the knife) and one count of possession of housebreaking implements.
On 25 April 2019, the appellant entered an On The Run convenience store. He stole various food items to the value of $86.21. When interviewed by Police, the appellant made full admissions. He told Police that he took the items because he was hungry and did not have money to pay for them. For this offending, the appellant was charged with one count of theft.
On the evening of 10 September 2019, the appellant was seen in connection with a stolen vehicle. There is no suggestion that the appellant had stolen the vehicle. There were false number plates affixed to the vehicle. The front of the vehicle had different plates to the rear. Both plates had been stolen. Police observed the appellant remove a bicycle from the tray of the vehicle and attempt to walk away. Police found in the appellant’s possession the keys to the vehicle, a stolen bicycle pump and helmet, as well as methamphetamine and an instrument used to smoke methamphetamine. The appellant’s partner informed Police that the appellant had driven the vehicle and that she was a passenger. The appellant did not hold a driver’s licence at the time. For this offending, the appellant was charged with one count each of driving unauthorised, illegal use of a motor vehicle, driving that vehicle with false number plates affixed, unlawful possession, two counts of dishonestly receiving property without consent (the number plates), one count of possessing a controlled drug and one count of possessing equipment to use with a controlled drug.
On 4 October 2019, the appellant pleaded guilty to the theft committed on 25 April 2019 (MCPAR-19-9007) and for seven offences committed on 10 September 2019 (MCPAR-19-9671). However, on the latter action he did not enter a plea to the count of unlawful possession of the bicycle and ancillary equipment. He pleaded guilty to that count on 20 November 2019. On 25 October 2019, the appellant pleaded guilty to the offences committed on 3 February 2019 (MCPAR-19-2569) and the theft committed on 5 January 2019 (MCPAR-19-4678).
Each of the offences was committed whilst the appellant was subject to a suspended sentence. The Department of Correctional Services (DCS) filed an application for the enforcement of the suspended sentence bond on 2 August 2019 (MCPAR-19-7884). DCS contended that the appellant had failed to comply with the terms of the bond by returning positive drug tests on three occasions, failed to engage in substance abuse counselling as directed, and failed to attend for supervision on four occasions.
On 29 November 2019, the Police filed an application for enforcement of the same suspended sentence bond (MCPR-19-13347). It was contended that the guilty pleas entered by the appellant for offences committed during the course of the bond demonstrated that he was not of good behaviour. Counsel for the respondent indicated that it would not make separate submissions to the DCS.
On 9 January 2020, the Magistrate ruled that the bond was enforceable.
Personal circumstances
The appellant was aged 32 years at the time of the offending and is now aged 33 years. He was diagnosed with dyslexia at age 10 and required assistance with his schooling. He left school upon completing year 9 and attended a TAFE course in metal fabrication.
The appellant’s parents separated when he was aged 14 years. This was traumatic for the appellant. He and his two siblings remained living with his mother. He began living independently of his family at age 17 years.
The appellant was employed for a time with a motorcycle dealer and later worked for an aluminium window manufacturer for five years. In his free time, the appellant assisted his father in his lawnmowing and landscaping business. He eventually set up his own gardening and home maintenance business that he ran for nine years. He lost all his customers when he was imprisoned in July 2018.
The appellant has one child from a casual relationship. The mother often withheld access to the child. The appellant was of the view that the child was being neglected and notified the Department of Child Protection (DCP). The appellant felt that nothing had been done by DCP.
The breakdown of a relationship, the estrangement from his child and his frustration to the reaction of others about his concerns about the child, lead the appellant to suffer from depression. As a result, he was hospitalised for one week.
The appellant began using amphetamines to cope with his depression. He became addicted and fell into financial difficulties. He stripped himself of any assets in order to fund his addiction. He continued to use drugs up until he was remanded into custody on 5 April 2019.
The appellant was sentenced to seven months and three weeks’ imprisonment in July 2018 in relation to offences of dishonesty and breaching bail. He was released on a suspended sentence bond in August 2018. The DCS assessed the appellant as having “made minimal progress” while subject to the suspended sentence bond. The appellant’s participation in supervision was described as “superficial in nature as he failed to address his drug issues and attend for supervision as directed”. He tested positive for amphetamines in October and November 2018 and February 2019. He was directed to attend substance abuse counselling but failed to do so. He also failed to attend for supervision on four separate occasions.
Prior to his imprisonment in July 2018, the appellant commenced a relationship with a new partner. He re-commenced that relationship upon his release from custody in August 2018. There is one child of that relationship. The mother, the child and her two young children of a previous relationship live in Western Australia. The appellant intends to join them in Western Australia upon his release from prison. He wishes to get away from negative influences and drug users and leave his offending past behind him. He says that he wishes to undertake drug counselling and to see a psychologist.
Remarks on penalty
The Magistrate noted the personal history to which I have referred and accepted that the offending occurred when the appellant’s life began to spiral out of control and he fell back into drug use. However, his Honour correctly noted that committing offences to supply a drug habit is not a mitigating circumstance.
The Magistrate found no good reason to refrain from revoking the suspended sentence. The current offences constituted a breach of the suspended sentence bond, imposed for similar offending. His Honour revoked the suspension and also found that there were no special circumstances to warrant reducing the suspended term of imprisonment. That brought into effect the sentence of three months and three weeks, to begin on the day that he was taken into custody on 10 September 2019.
In sentencing the appellant for the theft committed on 5 January 2019 (MCPAR-19-4678), the Magistrate recognised that this was an “opportunistic theft”. Against this his Honour noted that the offence was committed whilst the appellant was on a suspended sentence. The appellant “took advantage of the court’s leniency”. His Honour imposed a sentence of three months’ imprisonment. After a 30 per cent deduction for the appellant’s guilty plea, that sentence was reduced to imprisonment for two months.
In sentencing for the offences committed on 3 February 2019 (MCPAR‑19‑2569), the Magistrate imposed one penalty pursuant to s 26 of the Sentencing Act 2017 (SA) of five months’ imprisonment. After a 30 per cent deduction for the appellant’s guilty plea, that sentence was reduced to three months and two weeks to be served cumulatively with the sentence imposed in action no. MCPAR‑19‑4678.
In relation to the offence of theft on 24 April 2019 (MCPAR-19-9007), the Magistrate imposed a sentence of one month’s imprisonment. After a 30 per cent reduction for his guilty plea, that sentence was reduced to three weeks’ imprisonment to be served cumulatively with the sentences imposed in relation to the other counts.
The respondent conceded that the Magistrate erred in failing to apply a discount of 40 per cent for this offence. A guilty plea had been entered on this count on 4 October 2019. By virtue of s 39 of the Sentencing Act, the appellant was entitled to a reduction in penalty of up to 40 per cent. I will allow the appeal on this ground and resentence the appellant to imprisonment for two weeks and four days for this offence to reflect the applicable 40 per cent discount.
In sentencing for the offences committed on 10 September 2019 (MCPAR-19-9671), the Magistrate imposed one penalty for counts 4, 5, 6 and 7 of 14 months and two weeks’ imprisonment. The starting point for that sentence was imprisonment for two months for count 4, two months’ imprisonment for count 5, three months and two weeks’ imprisonment for count 6 and seven months’ imprisonment for count 7. After a 40 per cent deduction for the appellant’s guilty plea, the notional sentence was reduced to eight months and two weeks to be served cumulatively with the sentence imposed in relation to the other charges.
The total head sentence imposed by the Magistrate was 18 months and two weeks. His Honour set a non-parole period of nine months. Both the head sentence and non-parole period were backdated to commence on 10 September 2019.
In relation to the offence of illegal use of a motor vehicle (count 7), his Honour disqualified the appellant from holding or obtaining a driver’s licence for a period of 12 months to commence upon his release from prison. In relation to the offences of possession of methylamphetamine and possession of equipment (counts 8 and 9) the Magistrate convicted the appellant without further penalty. His Honour ordered both the methylamphetamine and the equipment be forfeited to the Crown. For driving unlicensed (count 1) the Magistrate imposed a fine of $350. For the offence of driving a vehicle with false number plates (count 2) the Magistrate imposed a fine of $350. His Honour noted that both fines had been reduced by 40 per cent.
In relation to the application by the DCS to enforce the breached bond (MCPAR-19-7884), the Magistrate found the matter proven, however, his Honour determined to take no further action.
Ground 2: Incorrect factual basis
Counsel for the appellant asserts that the Magistrate erred in sentencing on an incorrect factual basis as to the appellant’s antecedents. In his Remarks on Penalty, the Magistrate said:
You have, what a previous Magistrate describes as, a criminal history which is by no means extensive and up to the point that that Magistrate sentenced you to imprisonment, your only sentence of imprisonment was in connection for an offence of breaching bail. However you had prior to that been given the benefit of a suspended sentence.
Prior to the three days imprisonment imposed in 2018 for breaches of bail, the appellant had never been given the benefit of a suspended sentence. The correct position is that in July 2017 the appellant entered into to a good behaviour bond. Counsel for the appellant contends that there is a substantial risk that the severity of the Magistrate’s sentence was affected by a misapprehension about the appellant’s antecedents.
The respondent concedes that the Magistrates remarks, in so far as they state that the appellant had received the benefit of a suspended term of imprisonment, are wrong. However, the respondent contends that the error is one of process. There is nothing to indicate that the process error affected the severity of the sentence. Given the overall sentence imposed, the process error is not a basis to interfere with the sentence. The sentence is within the discretion available to the Magistrate. There is no outcome error.
Consideration of Ground 2
Kourakis J (as he then was) observed in R v Horstmann that an appellate court will not interfere with a sentence upon identification of a process error if it considers that the sentence was nevertheless appropriate.[1] While the mistake about the appellant’s antecedents constituted a process error, I am not persuaded that it affected the sentences imposed. Leaving aside the error identified by the appellant, the Magistrate gave detailed consideration to his personal circumstances. While some of the sentences tended towards the upper end of the range, they were within the sentencing discretion reasonably available to the Magistrate. I dismiss Ground 2.
[1] [2010] SASC 103 at [36]–[38]; (2010) 269 LSJS 42.
Ground 3: Incorrect discount applied
The respondent has conceded Ground 3 being that the Magistrate erred in failing to apply a reduction in penalty of 40 per cent in relation to the sentence for the offence of theft on 25 April 2019. A discount of 30 per cent was incorrectly applied to the starting point of imprisonment for one month thereby resulting in an effective sentence of imprisonment for three weeks. I will resentence the appellant and reduce the sentence by a further three days to reflect the 40 per cent discount that should have been applied. The result is that the sentence of three weeks’ imprisonment for the theft on 25 April 2019 will be reduced to 2 weeks and 4 days.
Ground 4: Validity of the suspended sentence bond
On 16 July 2018, the appellant was sentenced by a Magistrate for multiple offences committed between 8 July 2017 and 5 April 2018. The Magistrate imposed sentences of imprisonment for some of the offending. The sentence was separated into four groups of offences. Each group was dealt with through the imposition of one penalty pursuant to s 26 of the Sentencing Act. One breach of bail was dealt with separately.
The head sentence imposed by the Magistrate in 2018 was seven months and three weeks’ imprisonment, backdated to the time the appellant was remanded in custody. The Magistrate ordered four months of the head sentence to be served in custody and the balance of three months and three weeks to be suspended upon the appellant entering into a bond for 18 months with good behaviour and supervision conditions. The appellant entered that bond on 4 August 2018 before a Justice of the Peace. The bond was to expire on 3 February 2020.
As I have previously noted, there were two applications before the Magistrate for enforcement of the bond. First, by the respondent alleging that the commission of the present offences was a contravention of the good behaviour condition. Secondly, by the DCS alleging that the appellant had breached his supervision conditions and had also returned positive results to drug tests.
The appellant contends that the bond was not enforceable because the terms of the document that he signed did not accurately reflect the orders of the court. The appellant had been sentenced in 2018 for multiple offences that included three offences of interfering with a motor vehicle without consent. While the bond sets out the “Details of the Convicted Offences to which the Bond Relates”, it omits those three offences. The first of the illegal interference offences formed part of the one penalty imposed for the Group 1 offences and the second and third offences formed part of the one penalty imposed for the Group 2 offences. Accordingly, it is impossible to discern the period of imprisonment attributable to the three counts of illegal interference.
The appellant contended before the Magistrate that he could not be imprisoned further for the omitted charges because the bond document makes no reference to them. He referred to the decision of the Full Court in Director of Public Prosecutions (Cth) v Cole in support of that contention.[2] He also referred the Court to the decisions in R v Greengrass,[3] Hodgins v Police,[4] Mann v Yannacos[5] and R v Yazarlou.[6]
[2] (1972) 4 SASR 105.
[3] (2009) 104 SASR 262.
[4] [2008] SASC 176.
[5] (1977) 16 SASR 54.
[6] [2014] ACTSC 283.
The appellant further contended before the Magistrate that the bond is unenforceable because the form that the appellant signed refers to him being given an explanation as to the discharge and variation of the bond. However, that explanation would be incorrect as a matter of law because it refers to the provisions of the Criminal Law (Sentencing) Act 1988 (SA) (the “CLSA”) which had been repealed before the appellant signed the form.
The DCS submitted to the Magistrate that the bond was valid. The terms of the bond, i.e. the amount, duration and conditions and also the consequences of non-compliance, were correctly recorded and corresponded with the sentencing remarks made by the Magistrate. The appellant knew what he was convicted of when he entered the bond. His knowledge of what he was convicted of is not disputed and the sentence was not challenged.
Magistrate’s ruling
The Magistrate was satisfied that the bond entered into by the appellant on 4 August 2018 was valid and enforceable. His Honour held:
[26] … There is no doubt in my mind that when the [appellant] left court on 16 July 2018, he knew that he had been sentenced to seven months and three weeks imprisonment for offences which included the three illegal interference offences. It is clear to me that he knew he would have to serve at least four months in custody, but that, at that time, if he entered into a bond to abide by certain conditions for a period of 18 months, he would be released from custody thereafter, provided he complied with the conditions of that bond throughout the period of time, he would not have to serve the remaining three months and three weeks.
[27]There is no doubt in my mind that he was aware that if he did not comply with the conditions of the bond throughout the period of 18 months after his release, he risked serving a further portion, if not all, of the balance.
[28]When the defendant entered into the bond on 4 August 2018, the conditions that he promised to comply with were the same conditions which the Sentencing Magistrate had announced in open court in his presence and set out in the sentencing remarks. This was not a case where the bond signed by the defendant contained a condition which had not been announced in open court in the presence of the defendant or set out in the remarks on sentence. This is not a case where the defendant when offered the bond to enter was confronted with the pressure to enter into the bond that had a condition which he must obey in addition to the conditions which the Sentencing Magistrate had imposed upon him in his hearing in open court.
[29]It is clear that the illegal interference offences are not listed on the face of the bond form. However, this has not caused the [appellant] to stand in any greater jeopardy than if they had been. This is not a case where the defendant has entered into a bond which, on the face of it, related to a more serious offence than the one or the ones for which he dealt in open court.
The Magistrate further considered that the reference in the form to the provisions of the CLSA was wrong and whatever explanation the appellant received about the variation and discharge of the bond could not have been referrable to that Act. However, his Honour rejected the submission that reference to the incorrect Act and section in the form makes the bond defective and unenforceable. His Honour said:
[30]… There is no evidence or suggestion, certainly have been no submissions made, that [the appellant] was not given an explanation that the bond may be varied or discharged in accordance with the provisions of a statute. The manner in which a bond, once entered into, may be varied or discharged, was essentially the same under the repealed Criminal Law Sentencing Act as is now under the Sentencing Act. The way that a bond may be discharged or varied is, in my view, not an essential part of the sentencing process. It does not alter the conditions which the defendant accepts by entering into the bond.
Appellant’s submissions
The appellant contends that the Magistrate erred in enforcing the bond because first, the bond only related to 16 of the 19 offences to which it should have related, and secondly, the bond contained an acknowledgement that the probationer had explained to him two facts which were not correct as a matter of law.
Bond not relating to all offences
The appellant acknowledges that the omission of three offences from the bond was apparently due to a clerical error by court staff. However, he asserts that despite it being an undesirable result that an administrative error results in a probationer not receiving part of the sentence intended by the Court, justice necessitates a finding that the bond cannot be enforced.
The appellant contends that one of two injustices will result from the revocation of the suspended sentence. Neither outcome is consistent with the administration of justice, i.e.:
1a purported suspension of the term of imprisonment for three charges to which the bond should have, but did not, relate would be revoked. The appellant would serve a period of imprisonment for charges which were never suspended on the bond; or
2the penalty for the 16 charges to which the bond related would be artificially increased to compensate for the bond lacking the three omitted charges. However, it is impossible to discern what portions of the two groups of sentences are attributable to the omitted charges.
The appellant observes that a bond is a contractual agreement between the defendant and the Crown, which stipulates the consequences for a breach of its terms.[7] It can be void or voidable for reasons similar to those relevant to a deed or contract.[8]
[7] Fisher v Chambers (1972) 4 SASR 105 at 110-111; R v Collins (1976) 12 SASR 498 at 500; DPP (Cth) v Cole (2005) 91 SASR 480 at [14]; R v Greengrass (2009) 104 SASR 262 at [21].
[8] Fisher v Chambers (1972) 4 SASR 105 at 110-111.
The appellant relies primarily on the judgment of Bray CJ (with Bright J agreeing) in Mann v Yannacos. In that case, a bond document required the appellant to keep the peace and be of good behaviour. However, the Magistrate had not imposed a condition that he be of good behaviour. The Full Court held that the bond was invalid because of the attachment of the additional condition that was not supported by an order of the Court.
The Full Court in Cole followed Mann v Yannacos. The appellant had been sentenced for Commonwealth offences but the conditions of the bond agreement were entered on a form used for State offences rather than the form prescribed for entry into a recognizance under the Crimes Act 1914 (Cth). A breach of the Commonwealth recognizance had different consequences to the breach of a State bond. The Court held that the appellant had been misinformed about the consequences of breach.
The appellant contends that, in the present case, by signing the bond, he agreed that a breach of the listed conditions may result in the revocation of the suspension of imprisonment for the listed offences. He did not agree to the possible revocation of suspension in relation to any other offences that were omitted from the bond.
The appellant relies on the decisions in R v Greengrass and Hodgins v Police. In Greengrass, the appellant signed a bond containing a condition that the Magistrate had not mentioned when delivering the sentencing remarks. Because the condition was not consistent with the Magistrate’s order, the Court held that the bond was ineffective. In Hodgins, the appellant pleaded guilty to an assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the “CLCA”). He was convicted and released on a two-year good behaviour bond. The bond had the relevant offence recorded as assault cause harm contrary to s 20(4). Gray J, citing Mann v Yannacos, made an obiter observation that the bond was ineffective.
The appellant contends that the decisions in Cole, Hodgins, Greengrass and Yazarlou make it clear that the principle stated in Mann v Yannacos does not merely apply to the conditions of the bond. If the failure to correctly state the legal effect of a bond leads to unenforceability, it follows that an inaccurate statement of the offences to which the bond relates also leads to unenforceability.
In Nollen v Police a bond was held to be unenforceable because of sentencing errors.[9] The Court rejected a submission that the failure to specify the non-parole period in the bond must result in it being unenforceable. The appellant asserts that Nollen is distinguishable as the setting of the non‑parole period is a separate order from an order that the defendant be imprisoned or the sentence suspended. A non-parole period is not a period of imprisonment that is suspended under a bond. The failure to mention a non-parole period in a bond, unlike the omission of relevant offences that are the subject of the bond, does not render the bond inaccurate.
Acknowledgment of understanding
[9] (2001) 78 SASR 421.
The appellant asserts that the Full Court decision in Cole requires that a defendant must be fully and accurately informed of the ways in which a bond may be discharged and varied. The bond signed by the appellant contained an acknowledgement that the consequences that may follow if he failed “without reasonable excuse” to comply with the conditions had been explained to him. The appellant contends that there is no requirement in either the Sentencing Act or the CLSA that a failure to comply with the conditions of a bond be without reasonable excuse before consequences may follow. The correct position is that a failure to comply with a bond may be excused where the breach is trivial or where there are proper grounds. However, this is a different test to reasonable excuse. Consequences may follow even where the breach has been excused.
The appellant further submits that the bond he signed contained an acknowledgement that he had explained to him “that this Order/Bond may be discharged or varied under section 38(2a) of the CLSA”. The appellant contends that this explanation is incorrect. The CLSA had been repealed prior to his entry into the bond. Furthermore, s 38(2a) of that Act did not deal with the discharge and variation of bonds.
The appellant contends that the only mention of the consequences of a breach of bond by the Magistrate was at [46] of his remarks on penalty dated 16 July 2018 where his Honour stated:
If you breach your bond by committing any offences during the term of the bond or by failing to comply with supervision the suspension of the sentence of imprisonment may be revoked and the sentence carried into effect. You may also forfeit the $100 which has been fixed against the bond.
The fact that those remarks were made almost three weeks before the signing of the acknowledgement emphasises the importance of the requirement that the bond must accurately reflect the order of the Court. A defendant must be fully and accurately informed of the terms of the bond and the consequences of non-compliance when they enter a bond.
Respondent’s submissions
The respondent contends that there is no general rule that every defect in a bond results it being “ineffective” or a “nullity.” In the present matter, neither defect in the bond renders it ineffective or a nullity.
The pleas of guilty were entered in open court. There was no challenge to the sentencing process or the sentence imposed. The Magistrate identified the three offences of interfering with a motor vehicle that were later omitted from the bond, dealt with the facts of those offences and pronounced sentence in respect of those offences. Accordingly, the respondent contends that the appellant knew that he was sentenced for the three illegal interference offences and that the bond related to those offences. The Magistrate also explained the bond and its conditions to the appellant, and the possible consequences of a breach. Consistently with the comments of Gray J in Nollen v Police, these considerations are highly relevant.[10]
[10] (2001) 78 SASR 421 at [40]-[41].
The respondent contends, that unlike Greengrass, this is not a case where the appellant entered into a bond on terms not expressed in court during sentencing. Unlike Mann v Yannacos this is not a case where conditions not enunciated in court were subsequently added to the bond agreement. Unlike Cole, this is not a case where the papers signed were referrable to a completely different sentencing regime with different consequences. Unlike Hodgins, this is not a case where a person is sentenced for one offence and a different offence is entered on the bond so that the bond does not reflect the offence imposed by the court. This is not a case where the appellant entered into a bond not knowing or understanding the terms offered in open court (because of intoxication, illiteracy, mental illness or lack of legal representation). The respondent contends that the omission of three counts from the bond is analogous to the failure to record the non-parole period on the bond in Nollen.
The respondent contends that s 32(2a) of the CLSA and s 96(4) of the Sentencing Act are in almost identical terms. The partially suspended sentence announced by the Magistrate was clearly within power. There is nothing to suggest that the Magistrate purported to exercise power he did not have or failed to exercise a power appropriately. The terms of the order are consistent with the power conferred by s 96(4) of the Sentencing Act.
The respondent also contends that the erroneous reference to s 38(2a) of the CLSA is irrelevant to the obligations imposed on the appellant and the consequences of breach. The consequences were as stated in the bond papers and as warned by the Magistrate. There is nothing to suggest that reference to an incorrect statutory provision affected the appellant’s understanding of the conditions that he accepted or the consequences of breach.
The respondent additionally contends that the words “reasonable excuse” do no more than alert the probationer to the fact that there may be consequences if he fails to comply with the bond. However, it is not axiomatic that the bond will be enforced. The phrase “reasonable excuse” reflects s 114 of the Sentencing Act in that a failure to comply with the bond may be excused if the breach is trivial or there are proper grounds to do so.
The respondent contends that the ruling is plainly correct and the Magistrate’s reasons are apt. There is no challenge to the Magistrate’s conclusion that the appellant knew the offences for which he was sentenced, and which offences the bond applied to. There is also nothing before this Court to suggest that the appellant did not know the terms and conditions of his bond or the consequences of breaching those terms and conditions.
Consideration of Ground 4
In Mann v Yannacos Bray CJ (with Bright J concurring) stated:
[63]I add that, even if the order were good, the bond is not. For the learned Special Magistrate expressly ordered that the appellant be bound over to keep the peace towards the respondent. The bond as tendered to him and executed by him is conditioned on him keeping the peace and being of good behaviour. If the greater includes the less, the less does not include the greater. The appellant was not ordered to be bound over to be of good behaviour, though ironically enough, if I am right, that is the type of order which the learned Special Magistrate could correctly have made in the circumstances. It is true enough that the words “shall keep the peace and be of good behaviour” appear in the condition of the bond in form No. 37. Whether the words about good behaviour ought to be there as a matter of course admits of considerable question. Form 37 is the form provided for the recognizance to be entered into as the result of a complaint under s. 99 and that section empowers the Court to order a recognizance “to keep the peace, or be of good behaviour”. It is expressed in the disjunctive. The form is expressed in the conjunctive. It is correct to use it if both conditions are ordered by the Court. It is not correct if only one is ordered. Care should be taken in every case to see that the condition of the bond conforms to the actual words of the order. However that may be, the learned Special Magistrate in this case had no power to act under s. 99 at all. He could have acted on his own motion by ordering a bond to be of good behaviour. What he purported to do was to order the appellant to enter into a recognizance to keep the peace. Whether that was correct in the circumstances or not, he said nothing about good behaviour and the words relating to it should not have been in the bond.
That means, in my opinion, that the bond cannot stand, whether the order is valid or not. I think the true position is that when the condition of a bond is entire and any part of it is unlawful or void, the bond is entirely void, but where there are separate and independent conditions the bond will remain valid for such of the conditions as are good (Halsbury, Laws of England, 3rd ed. vol. 3, p. 335). I am not sure here whether the condition is entire or not, but in any event I think that if a bond is entered into under the compulsion of an order of the Court, backed by the sanction of imprisonment on refusal, it ought not to stand if it does not comply with the order of the Court. The power of this Court on appeal to cancel a recognizance entered into pursuant to an order of the Court appealed from was discussed and affirmed by this Court in Fischer v. Chambers.
(Footnotes omitted, emphasis added)
The appellant submits that the decisions in Cole, Hodgins and Yazarlou make clear that the principle stated by Bray CJ in Mann v Yannacos does not merely apply to the conditions stated in the bond. He submits that the principle that an inaccurate statement of the legal effect of a bond causes it to be unenforceable necessarily also extends to an inaccurate statement of the offences to which the bond relates. The appellant submits that Hodgins is an example of the latter principle being applied.
The appellant in Hodgins v Police had pleaded guilty to an offence of assault under s 20(3) of the CLCA, however, due to a clerical error, the good behaviour bond entered by the appellant recorded that he had been convicted of an assault causing harm contrary to s 20(4). That was a more serious offence. The appeal was allowed as the Crown conceded that the Magistrate had erred by failing to give reasons for the refusal to suspend the sentence. Although the appeal had been conceded on other grounds, Gray J referred to Mann v Yannacos and suggested that because of the misstatement of the offence, “the bond was ineffective and in all probability a nullity.”[11]
[11] Hodgins v Police [2008] SASC 176 at [5].
The statement made by Gray J in Hodgins was clearly obiter as the appeal was decided on other grounds. There is nothing in his Honour’s judgment to suggest that any submission was directed to the Court concerning the effect of the misstatement of the offence upon the validity of the bond. There is also no information as to whether or not the sentencing Magistrate had correctly identified the offence in his or her sentencing remarks, although that seems very likely. Most importantly, the observation made by Gray J was not supported by any analysis.
Sulan and Layton JJ held in Greengrass that the inclusion in a written bond of a condition requiring that if the defendant breached a condition of the bond he must appear before the Court for sentence, was ineffective as that condition had not been imposed by the Magistrate at the time of sentencing.[12] For that reason, s 39 of the CLSA operated to invalidate other conditions contained in the bond. Their Honours held that the additional conditions could be severed. Thus, the bond was valid but the only operative condition was the mandatory condition that the defendant be of good behaviour. In a separate judgment, White J agreed with Sulan and Layton JJ.
[12] (2009) 104 SASR 262 at [39].
I consider the Full Court’s analysis in Greengrass to be a direct application of the principle stated in Mann v Yannacos that the inclusion of an additional condition in a bond that goes beyond the requirement imposed by the sentencing court will result in the invalidity of the bond. In my view, the case does not stand for any wider principle.
In Cole, a Magistrate had ordered that the defendant be released pursuant to s 20(1)(b) of the Crimes Act upon entering a recognizance to be of good behaviour for two years. The document prepared by Court staff and signed by the defendant before a JP was actually in the form of a suspended sentence bond under the CLSA. That document did not include the explanation required under the Crimes Act. The Full Court also noted that while there are similarities between a suspended sentence bond under the CLSA and a recognizance release order under the Crimes Act, there are material differences between the State and Commonwealth regimes. The Full Court held that the defendant had not entered into a recognizance order as contemplated by the Crimes Act. On that basis, the bond was a nullity. The matter was remitted to the Magistrates Court to allow a new recognizance to be prepared.
The appellant has also referred to the decision of Refshauge J of the Australian Capital Territory Supreme Court in R v Yazarlou where his Honour followed Cole and found that a recognizance entered into by the defendant was not valid as it is not in the appropriate form under the Crimes Act. While it is not stated in the judgment, I infer that the document signed by the defendant may possibly have been that applicable under ACT legislation rather than under the Commonwealth sentencing regime. In any event, it is clear from the judgment that the defendant signed the wrong document.
The Full Court decision in Cole is clearly distinguishable from the present case on the basis that the document signed by the appellant related to an entirely different legislative scheme with different obligations and materially different consequences upon breach. The incomplete information available suggests that Yazarlou may also be distinguished on the same basis. The decisions in Cole and Yazarlou are simply examples of the application of the principle established in Mann v Yannacos and Greengrass that a bond cannot require a defendant to comply with obligations that go beyond those imposed by the sentencing court.
Quite apart from the fact that the observation made by Gray J was clearly obiter, it is unnecessary for me to consider whether his Honour’s statement was correct. That is because the facts of the present case are distinguishable. This is not a case where the bond mistakenly referred to conviction for a more serious offence. The present issue is whether the omission of three convictions invalidated the bond.
In Nollen v Police, Gray J rejected a submission that the failure to specify a non-parole period in a bond resulted in the bond being unenforceable.[13] His Honour held that the failure to inform the appellant in writing on the bond document that she would be eligible to apply for parole after the period specified did not mean that the bond was unenforceable.
[13] (2001) 78 SASR 421.
The appellant seeks to distinguish Nollen on the basis that a non-parole period comprises a separate order from the order of imprisonment and the order of suspension. The appellant observes that it is only the head sentence which is suspended and not the non-parole period. While I accept the correctness of the appellant’s submission that Nollen is distinguishable on the facts, it does serve to illustrate the point that not every omission from a bond will result in its invalidity.
While Bray CJ indicated in Mann v Yannacos that a bond that does not comply with the order made by the sentencing court will be invalid, that observation must be considered in light of the issue that was actually before the Full Court. The bond entered by the appellant imposed an additional obligation upon him that had not been ordered by the Magistrate. I consider that to be a very different matter to a failure to record accurately on the face of the bond document the offences of which the person entering the bond had been convicted. An erroneous description of the offences on the face of the bond does not operate to impose any lesser or greater obligation on the person entering into the bond.
I consider that Mann v Yannacos stands for the principle that the inclusion in a bond of an obligation that has not been imposed by the sentencing court will invalidate the bond, and that this extends to the misstatement of the rights held by a party to a bond. Those rights are the correlative to the obligations imposed by the bond. Thus, a failure to correctly state the defendant’s rights may potentially also invalidate a bond.
I consider that the Magistrate was correct to find that the appellant knew when he left Court on 16 July 2018 that he had been sentenced to imprisonment for seven months and three weeks for a series of offences including the three illegal interference offences. He also knew that he would be required to serve at least four months in prison but could then be released if he entered a bond for a period of 18 months.
I also agree with the Magistrate that the appellant would have been aware when he left Court in July 2018 that if he failed to comply with the conditions of the bond during the period of 18 months after his release from custody, he would risk being required to serve the balance or part of the balance of the sentence. Furthermore, the bond included each of the conditions that the sentencing Magistrate had stated in open court in the presence of the defendant.
I consider that the Magistrate correctly found that this was not a case where there was a condition included in the bond that had not been stated by the Magistrate in his sentencing remarks. In my view, the Magistrate correctly concluded that a failure to mention the three illegal interference offences did not place the appellant in any greater jeopardy than if those offences had been included on the face of the bond.
Because the appellant had been fully and accurately informed by the Magistrate in his sentencing remarks of the penalties imposed for each of the offences of which he was convicted and similarly informed about the conditions of the bond, I reject the appellant’s submission that the failure to include the three illegal interference offences on the face of the bond has given rise to an injustice.
While it is correct that the breach of the bond has led to the appellant being required to serve a period of imprisonment for offences which were not mentioned in the bond document, the appellant had been made aware of the offences to which the bond related in the Magistrate’s sentencing remarks in 2018. For the same reason, I do not accept the correctness of the appellant’s submission that the penalty attached to the 16 charges to which the bond related would be artificially increased to compensate for the failure to refer to the three illegal interference offences on the face of the bond. To the extent that there is an analogy between a bond and a contract, the omission of the three illegal interference offences is analogous to an error in the recitals to a contract that does not in any way affect the obligations contained in the operative part of the contract. As I have previously stated, I consider that Mann v Yannacos stands for the principle that the inclusion in a bond of a condition not required by the sentencing court may lead to a finding that the bond is invalid. This is not a case where the bond included an unauthorised condition.
For these reasons, I reject the appellant’s contention that the failure to mention the three illegal interference offences on the face of the bond resulted in its invalidity. I now turn to the other contentions advanced by the appellant concerning the validity of the bond.
The appellant contends that the statement immediately above his signature that he had “had explained to me: (iii) that this Order/Bond may be discharged or varied under section 38(2a) of the CLSA” is incorrect and results in the invalidity of the bond. The preceding statement is incorrect for two reasons. First, the CLSA had been repealed prior to the appellant signing the bond and replaced by the Sentencing Act. Secondly, s 38(2) of the CLSA did not deal with variation and discharge of bonds. That provision conferred power on a court to suspend part of a term of imprisonment. Section 44 of the CLSA dealt with the variation and discharge of bonds. That power is now conferred by s 103 of the Sentencing Act.
I reject the submission that the mistaken reference to s 38(2a) of the CLSA resulted in the invalidity of the bond. The important point is that the appellant was informed that the bond may be discharged or varied in accordance with a statute. A mistaken reference to a particular statutory provision as the source of a power does not lead to invalidity, provided that the relevant power exists, regardless of its source.[14] I also note that the heading of the bond referred to “Section 96(4) – Sentencing Act, 2017”. Thus, the bond correctly identified the section of the Sentencing Act that empowered the Magistrate to suspend partially the sentence of imprisonment.
[14] Moore v Attorney-General (Irish Free State) [1935] AC 484; R v Bevan; Ex parteElias and Gordon (1942) 66 CLR 452 Williams J at 487; Lockwood v Commonwealth (1954) 90 CLR 177 Fullagar J at 184; Brown v West (1990) 189 CLR 195 Mason CJ, Brennan, Deane, Dawson and Toohey JJ at 203; Attorney-General for South Australia v Adelaide City Corporation (2013) 249 CLR 1 Crennan and Kiefel JJ at [175].
The reference in the acknowledgement signed by the appellant to “the CLSA” is unlikely to have meant anything to the appellant. That is because the abbreviation “CLSA” was not defined earlier in the bond document. The heading to the document referred only to the current Sentencing Act and there is no other reference to a statutory provision. The important point is that the appellant was informed that the bond may be discharged or varied under a statute, even though the relevant statute was incorrectly identified.
I turn to the third ground upon which the appellant alleges that the bond is invalid. The basis for this submission is that the appellant acknowledged that it had been explained to him “the consequences that may follow if I fail, without reasonable excuse to comply with the conditions of the bond”.[15] The correct position under s 114(3) of the Sentencing Act is that the Court may determine not to revoke a suspended sentence if the breach was trivial or there are proper grounds not to do so. While the term “without reasonable excuse” does not provide a precise or comprehensive description of the effect of s 114(3), it makes clear that not every breach of a bond will result in the revocation of a suspended sentence, but there needs to be a sound reason before the Court will determine not to revoke. In my view, the words “without reasonable excuse” were sufficient to inform the appellant the nature of the obligation that he was entering. They were not an inappropriate substitute for the terms of the Act and provided a sufficient explanation to a lay person. I do not consider that the appellant would have been any better informed if the bond had stated that a court may refrain from revoking a suspended sentence if the failure to comply with the conditions of the bond was trivial or there are proper grounds on which the failure should be excused.
[15] Emphasis added.
For these reasons, I consider that the bond entered by the appellant on 4 August 2018 was valid and dismiss ground 4.
Ground 1: Manifestly excessive
Appellant’s submissions
The head sentence imposed by the Magistrate for the four groups of offences was 14 months and three weeks’ imprisonment (not including the enforcement of the bond). The total starting point was 23 months and two weeks’ imprisonment. Counsel for the appellant contends that this starting point is manifestly excessive. It is comparable to sentences imposed for some major indictable offences. The total criminality of the appellant’s conduct did not justify such a high starting point. Counsel further contends that no express consideration was given by the Magistrate to any degree of concurrency so that the sentence reflected the totality of the appellant’s conduct.
The appellant asserts that prior to the partially suspended sentence imposed on 16 July 2018, the appellant’s only prior sentence of imprisonment was a period of three days (backdated to allow for his immediate release on 19 February 2018) in relation to five breaches of bail. The appellant’s other antecedents are:
1Driving under disqualification or suspension on 12 May 2017, for which the appellant received a 12-month good behaviour bond on 26 July 2017;
2Failing to comply with bail on 2 April 2008, which was dismissed without conviction or penalty on 1 March 2010;
3Driving unregistered and uninsured on 10 March 2009, for which the appellant received convictions and a fine of $200 on 12 November 2009;
4Theft on 29 March 2008, for which the appellant received a fine of $150 without conviction; and
5Procuring use of a vehicle by dishonest representation on 22 September 2007, for which the appellant received a conviction and fine of $200.
Given this limited history, the appellant submits that starting point of five months’ imprisonment for the offences committed on 3 February 2019 is manifestly excessive. The starting point is only one month less than the maximum possible penalty for the most serious of those offences. The appellant did not have any relevant prior antecedents and this was a relatively low-level example of such offending. All that can be concluded from his pleas of guilty to the offences of possess housebreaking implements and carry an offensive weapon was that he could not satisfy the onus imposed by s 5 of establishing a lawful excuse. The appellant contends that it is unclear whether any degree of concurrency was allowed for these offences. No express mention was made by the Magistrate. A significant degree of concurrency was appropriate.
The appellant contends that the starting point of 14 months and two weeks’ imprisonment for the offending on 19 September 2019 is also manifestly excessive. The approach taken by the Magistrate is contrary to the requirement in s 41(2) of the Sentencing Act to determine the appropriate sentence for each offence before applying the discount, when imposing one penalty pursuant to s 26 for multiple offences. The appellant further contends that the Magistrate erred by not applying any degree of concurrency in the starting points for the four related offences. The offences were relatively simultaneous and related and comprise a course of conduct.
The appellant contends that the overarching factor present throughout all of the offending, which “binds the conduct together” in the way described by Peek J in R v Belczacki[16] and King CJ in R v Blain[17], is his drug addiction which has arisen against the background of mental health issues.
[16] (2012) 112 SASR 95 at [83]-[84].
[17] (1984) 115 LSJS 270 at 273.
Respondent’s submissions
The respondent contends that the sentence is not manifestly excessive, for the following reasons:
i. the appellant fell to be sentenced for serious offending of dishonesty;
ii. regard had to be had to the maximum penalty for each offence;
iii. the appellant breached a bond by further offending;
iv. the appellant’s time under supervision when released on the bond was poor as therefore were his prospects of rehabilitation;
v. the appellant was not a first offender;
vi. the court had to have regard to the impact on the victims;
vii. the court must punish the appellant for his conduct;
viii. to deter others from the same or similar conduct; and
ix. the court must give effect to the primary purpose of the Sentencing Act, being protection of the community.
(Footnotes omitted)
The respondent asserts that the Magistrate gave the appellant credit for his personal circumstances, made appropriate discounts for his guilty pleas and utilised s 26 of the Sentencing Act in respect of groups of offences to reduce the total sentence imposed and avoid a sentence that was “crushing”. The approach was consistent with Attorney-General (SA) v Tichy.[18] The respondent contends that the appellant’s criticism of the Magistrate’s approach does not demonstrate error that would allow an appellate court to intervene.
[18] (1982) 30 SASR 84.
The respondent contends that in applying s 26 to the 10 September 2019 offences, his Honour gave indicative sentences for the offences within that group and although not expressly stating that the indicative sentences are concurrent, where it is not stated that they are to be cumulative, they are to be treated as concurrent.[19] It cannot be said that the sentences imposed for the 10 September 2019 offences was not “within bounds”.
[19] Hawkett v Demichellis (1975) 12 SASR 274. The principle obviously also applies to the other grouped offences.
The respondent contends that Peek J in Belczacki ignored what Gray and Sulan JJ stated in R v Bagnato. [20]The issue is not so much the approach as to accumulation, concurrency or partial concurrency, but whether the overall sentence is manifestly excessive.
[20] (2011) 112 SASR 39 at [51]-[52].
The respondent contends that the Magistrate indicated where he imposed sentences for groups of offences; those offences were to be cumulative upon each other. Further, the sentences imposed for the grouped offences had to reflect he multiplicity of offences. It is not incumbent on a Magistrate to impose concurrency between different groups of offences because drug addiction is an overarching factor present throughout the period of the offending. Peek J’s comments in Belczacki were made during re-sentencing of the appellant. Thus, his Honour’s remarks are not binding authority on the approach to sentencing.
The respondent contends that there is no error in the approach of the Magistrate. Save for the concession on Ground 3, there is no basis for the Court to interfere with the sentence imposed.
Consideration of Ground 1
In essence, the appellant contends that the starting points adopted by the Magistrate for the various offences were simply too high having regard to the nature of his conduct and the maximum applicable penalties. The appellant also complains that the Magistrate failed to apply any degree of concurrency, even though the offences were closely related in time and effectively comprised a course of conduct.
The appellant has sought to draw support for that contention from the observations made by Peek J in Belczacki and King CJ in Blain. In the passages from those two judgments referred to by the appellant, King CJ and Peek J were discussing the use of partial concurrency so as “to reach a total punishment which is the proper punishment for the course of conduct disclosed”.[21] In resentencing the appellant, Peek J suggested that his drug addiction was an overarching factor which, to a limited extent, bound his conduct together and was of some relevance in considering the general approach to sentencing. His Honour did not suggest that drug addiction was, of itself, a basis to make sentences concurrent. However, on the facts of that case, Peek J held that partial concurrency was appropriate although it was not the only permissible approach.
[21] R v Blain (1984) 115 LSJS 270 at 273 (King CJ).
I have concluded at [110] below that a limited degree of concurrency was appropriate and have allowed the appeal to that extent. I have reached that conclusion in accordance with the principle stated by Wells J in Tichy and so as to give effect to the totality principle. Thus, in the words of King CJ in Blain I have done so “to reach a total punishment which is the proper punishment for the course of conduct disclosed”.
The property stolen from an unlocked car on 5 January 2019 was recovered and returned to the owner. This offending was described by the Magistrate as opportunistic. The circumstances of the offending were such that the starting point of three months was towards the higher end of the range of sentences reasonably available. However, I do not regard the sentence as manifestly excessive. The offence occurred while the appellant was subject to a bond and suspended sentence for similar offending and had apparently not taken the opportunity provided by that bond to deal with his drug addiction. Those considerations suggest that his rehabilitation prospects were less than optimum and the need for specific deterrence was important. The discount of 30 per cent resulted in a sentence of two months’ imprisonment.
I also do not regard the starting point of five months adopted by the Magistrate for the four offences committed on 3 February 2019 as being manifestly excessive. Once again, the offences occurred while the appellant was subject to a bond and suspended sentence following his conviction in 2018 for similar offending. After applying the discount of 40 per cent, the Magistrate imposed a sentence of three months and two weeks.
The offence of dishonestly taking property on 25 April 2019 was constituted by the taking of food to the value of about $85 when the appellant was hungry. When considered in isolation, that context might ordinarily suggest that a non-custodial sentence was appropriate. However, given the matters referred to in the preceding paragraphs, I do not regard the starting point of one month’s imprisonment as manifestly excessive. The sentence was within the range reasonably available to the Magistrate. The discount of 30 per cent resulted in a sentence of three weeks imprisonment. As I have previously noted, the respondent concedes in response to Ground 3 that the appellant was entitled to a discount of 40 per cent, rather than 30 per cent. Thus, it is necessary to reduce the sentence to two weeks and four days.
I turn to the sentencing for the eight offences committed by the appellant on 10 September 2019. The appellant has not contended that the fines imposed in relation to the driving offences comprised in counts 1 and 2 were manifestly excessive.
Counts 4 and 5, being the offences of dishonestly receiving property in the form of stolen number plates, were closely linked to the offence comprised in count 7 of driving or using a motor vehicle without consent. That is because the stolen number plates were affixed to the car unlawfully driven by the appellant. In that light, I consider that, in accordance with the principles stated by Wells J in Tichy and the discussion at [105] above, it was appropriate to make the sentences for the two number plate offences concurrent with the unlawful use offence. I will uphold the appeal to this extent.
However, I do not take the same view in relation to count 6. That is the offence of having possession of a bicycle, helmet, pump and related items reasonably suspected of being stolen or unlawfully obtained. While the appellant was found in possession of this property on the same occasion as he was making unlawful use of the motor vehicle, the nature of the property involved suggests that this foray into crime was unrelated to the unlawful use of the vehicle.
While there was no cross-appeal, the respondent submitted that the Magistrate erred in allowing a discount of 40 per cent with respect to count 6. The guilty plea for that offence was not entered at the first opportunity and thus the correct discount was up to 30 per cent. The appellant has not contended otherwise. As it is necessary for me to resentence the appellant, the correct discount of 30 per cent should be applied in respect of that count.
I consider that the notional starting point of three months and two weeks adopted by the Magistrate for count 6 was well within the range reasonably available. This element of the sentence was not manifestly excessive. The corrected discount of 30 per cent reduces the notional starting point to two months and two weeks.
While the applicable sentencing discounts now vary, it is permissible to apply s 26 to impose one sentence in respect of the eight offences committed by the appellant on 10 September 2019 provided that the individual discounts are clearly identified.
I would adopt a starting point of two months in respect of each of counts 4 and 5 but those sentences are to be concurrent with that for count 7. I do not consider that the starting point of seven months for count 7 was manifestly excessive. The starting point of seven months must be reduced by 40 per cent. That results in a notional sentence of four months and six days.
The end result is that in relation to the offences committed on 10 September 2019 I would apply s 26 of the Sentencing Act to impose a sentence of six months, two weeks and six days in respect of counts 4, 5, 6 and 7. While convictions were recorded, no penalty was imposed by the Magistrate in relation to the drug offences comprised in counts 8 and 9.
The total of the terms of imprisonment I have confirmed or varied amounts in relation to the offences that occurred on 5 January 2019, 3 February 2019, 25 April 2019 and 10 September 2019 to 12 months, three weeks and three days. I have reviewed that sentence in accordance with the totality principle. I consider that the decision to make concurrent the notional sentences of imprisonment for two months on each of counts 4 and 5 committed on 10 September 2019 give proper effect to the totality principle particularly when combined with the decision of the Magistrate to convict without further penalty on counts 8 and 9.
Conclusion
I uphold the appeal on Grounds 1 and 3. As there is no appeal against the decision of the Magistrate to revoke the suspension of the sentence of three months and three weeks, and as the bond is valid, the total sentence to be served is one year, four months, two weeks and three days.
I fix the non-parole period at eight months. The sentence and non-parole period are both to commence from 10 September 2019.
So as to remove any doubt, I record that I do not disturb the orders made by the Magistrate in relation to costs, the victims of crime levy, court fees and forfeiture of property to the Crown. The appellant has not challenged the fines imposed by the Magistrate and they stand. I also do not disturb the order by the Magistrate that the appellant’s drivers licence is to be suspended for a period of 12 months commencing upon his release from custody.
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