Claridge v White

[1990] TASSC 111

Serial No B34/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Claridge v White [1990] TASSC 111; B34/1990

PARTIES:  CLARIDGE
  v
  WHITE

FILE NO/S:  6/1990
DELIVERED ON:  13 July 1990
JUDGMENT OF:  Crawford J

Judgment Number:  B34/1990
Number of paragraphs:  8

Serial No B34/1990
List "B"
File No 6/1990

CLARIDGE v WHITE

REASONS FOR JUDGMENT  CRAWFORD J

13 July 1990

1. This is an application to review one conviction and two sentences of imprisonment imposed by a magistrate in a Court of Petty Sessions on 15 February 1990. The applicant appeared without counsel on two charges of failing to comply with bail orders contrary to s35(7) of the Justices Act 1959. The complaint alleged on the first count that on the previous day, the applicant contravened a bail order made on 12 January 1990 requiring him to remain "at his address between the hours of 9pm and 8am" and on the second count a further contravention of that order which, the count said, required him to "reside at 43 Reservoir Road, Rocherlea".

1. The applicant pleaded guilty. The prosecutor informed the magistrate that at about 9.35pm police officers saw the applicant sitting in the rear of a motor vehicle in York Street, Launceston, apparently in breach of the bail order. He was arrested and his explanation to the police was that "I've just got back from Beaconsfield and I was just about to go home". Subsequently, it was ascertained that he was living at 29 Lemonwood Street, Rocherlea and that he had moved into that address with his mother. He was single, aged 18, unemployed and receiving benefits of $200 per fortnight. He had prior convictions. They included a considerable number of petty offences. From March 1986 he had been dealt with on twenty different occasions for over thirty offences including underage drinking, traffic offences, disturbing the peace, indecent and threatening language, committing a nuisance, receiving, obstructing police, failing to attend work orders and failing to appear at court. Sentences had included fines, probation, driver's licence disqualifications and community service orders.

1. The applicant did not avail himself of the opportunity to address the magistrate who then imposed sentence, saying the following:–

"Breaching bail conditions is a very serious offence and you are allowed liberty but the conditions under which you are allowed liberty impose upon you, well, that the court discharges you on its trust in you, that you will do the right thing while you are on bail and if you fail to do that you're obviously don't have total regard for the conditions imposed upon you as serious and to breach them without explanation in the circumstances I think that a term of imprisonment is the only means I can deal with this matter. In relation to each offence I imprison you to seven days, a total period of imprisonment of fourteen days on the complaint."

1. The applicant seeks to set aside the conviction and sentence on the second count. Counsel for the respondent agreed that he should succeed because of facts which were not known to the magistrate. The agreed facts before me were that on 12 January 1990 the applicant had appeared in a Court of Petty Sessions charged with certain offences, the hearing was adjourned to 1 March 1990, and a bail order was made, a condition of which was that he remain at 43 Reservoir Road between the hours of 9pm and 8am.

1. There was also a reporting condition. It is therefore clear that the applicant committed only one offence and for this reason, and with the agreement of counsel for the respondent, I will order that the conviction and sentence on the second count be set aside.

1. In relation to the first count, it was submitted that the magistrate erred in law and in fact and acted contrary to the evidence, in finding that the applicant had breached the bail order without explanation. This ground must fail. There was no explanation of the reason for the breach, that is to say of any mitigatory reason. The applicant had the opportunity to explain what excuse he had for failing to be at his residence by 9pm but said nothing. His statement to the police that he had just returned from Beaconsfield and was about to go home, provided no excuse for failure to be at 43 Reservoir Road between the prescribed hours.

1. The next ground of appeal was that the learned magistrate erred in law in holding that in the circumstances, imprisonment was "the only means I can deal with this matter". I reject this ground upon the basis that it is clear that all the magistrate was saying was that in the circumstances of the case, imprisonment was the only appropriate sentence. I am not persuaded that the magistrate considered that there were no other sentencing options as a matter of law.

1. The final ground of the application is that the sentence of one week's imprisonment was manifestly excessive. The learned magistrate could in any event have revoked the bail order pursuant to the provisions of s35(6A) of the Justices Act 1959. There would have been strong grounds for doing so. However, he did not but simply sentenced the applicant for the offence created by subsection (7). The prescribed penalty is three months imprisonment or $500. The applicant had been released from custody on bail with conditions. One of those conditions, in effect, required him to live at 43 Reservoir Road and to be there between 9pm and 8am each night. He disregarded that and moved his address to a different place. Further, he was clearly in breach of the requirement that he be at the specified address at night after 9pm He had no explanation for what he did and the learned magistrate was entitled to assume that it was a wilful breach of the bail order with no excuse. The applicant should have been well aware that he was running the risk of being returned to custody if he did not comply with the terms of his conditional release on bail. Only about five months earlier he had been convicted of failing to appear at court, presumably in breach of a bail order. The period of seven days imprisonment was justified. The application to review the sentence of seven days imprisonment on the first count will fail.