Cocchiaro v Police - [2015] SASC 106

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COCCHIARO v POLICE
[2015] SASC 106
Judgment of The Honourable Justice Kelly
24 July 2015
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY SERVICE ORDERS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - DETERRENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
Appeal against sentence. The appellant was convicted of driving under disqualification pursuant to s 91(5) of the Motor Vehicle Act 1959 (SA). The circumstances of the offending were that when alternative arrangements made fell through, the appellant drove his wife’s new Mercedes-Benz vehicle to the motor vehicle inspection station for registration. The appellant is a general practitioner.
The appellant agreed to enter into a bond to be of good behaviour for a period of 15 months. The sentencing Magistrate imposed as a condition of that bond that the appellant perform 100 hours of community service within 12 months. It was also a condition of the bond that the appellant return to the court for resentencing upon any breach of the bond.
The appellant appeals on four grounds: that the Magistrate failed to have regard to the impact of a community service order upon the appellant’s remunerated employment, that the Magistrate erred in finding that the circumstances of the offending disclosed a dismissive attitude towards licence disqualification, that the community service order as part of the bond was manifestly excessive and that the Magistrate erred in imposing community service as a condition of a bond pursuant to s 39(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act).
Whether the Magistrate failed to have regard to s 47(1)(h) of the Act. Whether the Magistrate erred in finding that the appellant’s breach of his licence disqualification disclosed a dismissive attitude. Whether the order to perform community service was manifestly excessive. Whether the Magistrate erred in imposing community service as a condition of a bond pursuant to s 39(1) of the Act.
Appeal dismissed.
Held (dismissing the appeal):
1. The modest figure of 100 hours of community service arrived at by the Magistrate took into account the particular circumstances of the appellant and the impact on his employment. The fact that community service may involve some inconvenience to the appellant is not a proper reason to refrain from making the order.
2. Upon determining that an order for imprisonment was not appropriate, and given the appellant’s circumstances, it was open to the Magistrate to find that a fine would not act as an effective deterrent. It was incumbent on the Magistrate to ensure that his approach to sentencing the appellant would constitute an appropriate deterrent.
3. After rejecting the appellant’s explanation that he simply forgot that he was disqualified from driving, the Magistrate’s finding that the circumstances of the breach disclosed a dismissive attitude towards the order of suspension was wellnigh inevitable.
4. The structure of the Act and the legislative history of ss 39(1) and 42 indicate that s 39(1) does not operate to prevent community service from being imposed as a condition of a good behaviour bond.
5. The condition of a bond requiring the appellant to appear before the sentencing court upon breach of bond, in circumstances where he has completed some of all of the community service imposed, does not offend the double jeopardy rule.
Criminal Law (Sentencing) Act 1988 (SA) s 18, s 38, s 39, s 42 and s 47; Motor Vehicles Act 1959 (SA) s 91; Offenders Probation Act 1913 (SA); Criminal Law (Sentencing) (Miscellaneous) Amendment Act 1995 (SA) s 6(b), referred to.
Police v Nissen (2014) 120 SASR 50; Cutting v Police [2009] SASC 326, applied.
Harding v Police (2011) 110 SASR 197; Nieto v Mill (1991) 55 SASR 379; Nollen v Police (2001) 78 SASR 421, discussed.
Police v Varma (2013) 116 SASR 532; Wood v McDonald (1988) 46 SASR 570; Holdsworth v Larcombe (1987) 44 SASR 294; Lavers v Fauser (Unreported, Supreme Court of South Australia, Olsson J, 26 February 1987); Janz v Woolven (1990) 55 SASR 239; Ellis v Police [2008] SASC 297, considered.

COCCHIARO v POLICE
[2015] SASC 106
Magistrates Appeal: Criminal
KELLY J.
Introduction

At about 4.00 pm on 13 October 2014 the appellant drove a Mercedes-Benz motor vehicle to the Regency Park motor vehicle inspection station intending to register that vehicle in the name of his wife. When he was asked by staff there to produce his driver’s licence as identification, checks conducted by staff revealed that his licence was suspended. He was charged with driving under disqualification contrary to s 91(5) of the Motor Vehicles Act 1959 (SA). That offence carries a maximum penalty of six months imprisonment for a first offence.
On 8 January 2015 the appellant pleaded guilty to that offence. After hearing submissions the sentencing Magistrate convicted the appellant of the offence and discharged him without further penalty under the provisions of s 39 of the Criminal Law (Sentencing) Act 1988 (SA) (the Act) upon the appellant agreeing to enter into a bond to be of good behaviour for a period of 15 months. The sentencing Magistrate imposed as a condition of that bond that the appellant perform 100 hours of community service within 12 months. A further term of the bond was that the appellant would be required to return to the court for resentencing upon any breach of the bond.
The Appeal
The appellant now appeals arguing four grounds of appeal namely:
1That the Magistrate failed to have regard to s 47(1)(h) of the Act;
2That the Magistrate erred in finding that the circumstances surrounding the appellant’s breach disclosed a dismissive attitude toward the order disqualifying him from driving;
3That the community service order as part of the bond imposed requiring the appellant to perform 100 hours community service within 12 months was manifestly excessive; and
4That the Magistrate erred in imposing the requirement to perform community service as a condition of the bond pursuant to s 39(1) of the Act.
An additional issue that arose in the course of submissions on appeal was whether a requirement in a bond to appear before a sentencing court upon breach of a bond, in circumstances where some of all of the community service has been performed, offends against the double jeopardy rule.
The Magistrates Approach
On 8 January 2015, after the appellant pleaded guilty to the offence as charged, the Magistrate heard extensive submissions in relation to both the circumstances of the offence and the appellant’s personal circumstances. During the course of those submissions the Magistrate indicated that he had some difficulty accepting the appellant’s explanation for the breach of the order of suspension, namely that due to his heavy workload and the pressure of work generally, he did not turn his mind to the issue of suspension. The appellant elected to call no evidence to support the explanation and in due course, unsurprisingly, the Magistrate found:
As I indicated at the sentencing hearing I consider it implausible that you did not appreciate or consider the fact of your suspension when you decided to drive to the vehicle inspection centre on 13 October 2014. On the account of the facts submitted on your behalf you went to some length following your suspension to make alternative arrangements for your transportation. You employed a driver and your wife was recruited to drive you when necessary. Because you were under suspension you made quite specific arrangements for the car to be driven to the inspection centre by your wife in your company. You also made arrangements for her to drive you back to your practice on Port Road following the inspection. However when those arrangements fell through you say, in effect, that the very circumstances that necessitated those arrangements evaporated or disappeared from your mind.
In order to accept that proposition I would necessarily have to accept that when you sat behind the wheel of the new Mercedes-Benz to drive it for the first time, not having driven any motor vehicle on a public road for one month and having been only a passenger for that period it did not occur to you that your licence was suspended.
Your account given through your counsel does not adequately address the issue of why it was necessary for your daughter to attend to collect your wife leaving the Mercedes-Benz with you at the medical practice despite the fact that you were not permitted to drive.
Even allowing for your heavy professional commitments I do not accept that it was a likelihood that the issue of your suspension had escaped your mind. Furthermore I am not satisfied that you would have realised that the breach of the suspension would be discovered or if discovered acted upon at the vehicle inspection centre.
I therefore find that the breach of the licence suspension occurred in circumstances where you were fully aware of the suspension, that you turned your mind to that suspension and that you drove nonetheless.
The Magistrate then dealt carefully with the state of the law in relation to the sentencing approach for offences of driving under disqualification and discussed the implications of this Court’s decision in Police v Nissen.[1]
[1] (2014) 120 SASR 50.
The Magistrate ultimately took the view that in the case of this particular appellant given the circumstances of the offending, the appellant’s unblemished record and his exemplary contribution and service to the general community, it was appropriate to exercise the discretion not to order a term of imprisonment. He convicted the appellant without further penalty upon the appellant agreeing to enter into a bond to be of good behaviour for a period of 15 months. As a condition of the bond his Honour ordered the appellant to perform 100 hours of community service within 12 months.
Discussion
The appellant’s first complaint is that the Magistrate failed to have regard to s 47(1)(h) of the Act. That section states:
47—Special provisions relating to community service
(1)Where a court imposes a sentence of community service, or includes in a bond a condition requiring the performance of community service, the following provisions apply:
…
(h) the person may not be required to perform community service at a time that would interfere with his or her remunerated employment or with a course of training or instruction relating to, or likely to assist him or her in obtaining, remunerated employment, or that would cause unreasonable disruption of the person's commitments in caring for his or her dependants; and
…
As I understood the argument on appeal the gravamen of the appellant’s complaint is that the Magistrate failed to obtain a proper understanding of the appellant’s employment situation before imposing community service. Had he done so, and given proper weight to the submissions made concerning the onerous hours worked by the appellant, the Magistrate would have been aware that the appellant would have to forego remunerated employment for at least 2.66 weeks over the 12 month period during which the community service had to be performed. The appellant submitted that the Magistrate’s response to the submission made by counsel for the appellant in relation to the appellant’s working hours indicates that the Magistrate fell into error. It was argued that the Magistrate’s error lay in his focus on the appellant’s ability to minimise disadvantage to his patients, instead of the impact an order to perform community service would have on the appellant’s remunerated employment as required by the Act.
In assessing this complaint I have had regard to the whole of the transcript of the proceedings before the Magistrate on 12 January 2015. I consider that it is plain from the Magistrate’s remarks during the course of those proceedings that he well understood the impact the order would have on the appellant’s employment situation. After convicting the appellant and imposing the bond his Honour said:
I have considered your personal and professional circumstances and find that the order of community service fixed at 100 hours should not adversely impact on your practice or the welfare of your patients.
Later, when counsel for the appellant complained about the onerous commitment his Honour said:
His Honour:                How so? I can order 300 hours. I’ve scaled that back significantly Mr Williams. Let me just explain to you Mr Williams. As I see, Mr Cocchiaro, is part of a large medical practice and it would seem to me scope for the other 13 practitioners there to make arrangements for patients to be seen without any undue impact upon their welfare. He has committed an offence. I don’t believe a fine in this case is appropriate. I have spared your client a sentence of imprisonment on the basis that a more appropriate penalty might be is, in my view, community service. If he wants me to go back to the alternative and I have found that a fine is not appropriate in his circumstances; it provides no deterrence in my view in this case. Is that what he is asking me to consider?
Mr Williams:        No, your Honour he’s not asking you to consider that. I am saying that 100 hours seems particularly onerous.
His Honour:        As I understand it they can do – five hours can be performed per day. That works out to about 20 days in 12 months. If you are suggesting altogether (Mr Williams I haven’t finished) is he suggesting that it is altogether improbable or is he saying that it’s just too high level in that time. Does he want more time, fewer hours or does he not want it at all.
Mr Williams:        Your Honour, you’ve heard that I haven’t had a great opportunity to speak to my client. My client says that he will accept the bond.
His Honour:        In the terms that I’ve proposed.
Mr Williams:        Yes. My client says that he will accept the bond.
His Honour:        In the terms that I’ve proposed.
Mr Williams:        Yes.
I can detect no error in the Magistrate’s approach to that complaint. The very fact that the Magistrate had heard submissions that the appellant was able to plan his working day on the day of the offence to avoid taking any patients between 2.00 pm to 5.00 pm, so that he could register his wife’s new Mercedes-Benz car was sufficient indication of the flexibility the appellant had in the conduct of his daily affairs. The order to perform 100 hours over the period of 12 months was not in the circumstances unduly onerous. It seems plain enough that the modest figure of 100 hours arrived at took into account the particular circumstances of the appellant and the impact on his employment. The fact that an order to perform any community service may necessarily involve some inconvenience to an offender, as was the case here, is not a reason to refrain from making such an order. What the provision in s 47(1)(h) requires, as Doyle CJ pointed out in Cutting v Police,[2] is that a Magistrate should have regard to the practicality of discharging an order to perform community service and to its potential impact on the person’s employment. The fact that it may involve some inconvenience to the appellant is not a proper reason to refrain from making the order.
[2] [2009] SASC 326.
Given that the Magistrate determined that an order for imprisonment was not appropriate, and given the appellant’s circumstances, the Magistrate’s view that a fine in the appellant’s case would not act as an effective deterrent was open to him. Upon making such a finding, it was incumbent upon the Magistrate to ensure that the sentence imposed would constitute an appropriate deterrent. As Kourakis CJ considered in Nissen:[3]
... sentences of disqualification and suspension imposed on traffic offenders are critically important in ensuring obedience to the rules of the road and thereby the safety of the public. Persons subject to disqualification orders should be left in no doubt about the serious consequences of disregarding them whether they do so occasionally, frequently, or totally.
[3] Police v Nissen (2014) 120 SASR 50 at [20].
For these reasons I consider the submission made in this Court that the appellant is not able to arrange his daily affairs in such a way to accommodate an order to perform a modest number of hours of community service over a 12 month period is somewhat disingenuous.
The complaint that the Magistrate erred in finding the circumstances of the breach disclosed a dismissive attitude towards the order of suspension can be dealt with briefly. That finding was wellnigh inevitable after rejection of the appellant’s explanation that he simply forgot. There was no pressing need to register his wife’s Mercedes-Benz on that day. As the Magistrate himself noted, it was precisely because he was disqualified that the appellant had gone to some lengths to make arrangements prior to the attendance of his wife at the surgery with the car on that day. It would be an affront to common sense to accept that he then simply forgot.
This was a deliberate and serious breach of the order for disqualification. It seems plain enough that what the appellant actually realised when he was asked to produce his licence at the Regency Park centre was not that he was disqualified but that his decision to drive in breach of that disqualification was about to be revealed.
I turn now to consider the appellant’s fourth complaint, namely, that the Magistrate erred in imposing, as a condition of the bond pursuant to s 39(1) of the Act, a requirement to perform community service. This complaint requires careful consideration of the relevant provisions of the Act.
Section 39 of the Act provides:
39—Discharge without sentence on defendant entering into bond
(1)     Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)to be of good behaviour; and
(ab)to comply with the other conditions (if any) included in the bond; and
(b)if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)   However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)     Where a defendant is discharged under this section—
(a)no fresh prosecution may be commenced in respect of the offence; and
(b)the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
Section 42 of the Act provides:
42—Conditions of bond
(a1) Subject to this Act, every bond under section 38 is subject to the following conditions:
(a)a condition prohibiting the defendant from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm;
(b)a condition requiring the defendant to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or class of persons or body specified by the court.
(1) Subject to this Act and without limiting subsection (a1), a bond under this Act may include such of the following conditions as the court thinks appropriate and directs be included:
(a)a condition requiring the defendant to be under the supervision of a community corrections officer for a specified period; or
(b)a condition requiring the defendant to reside with a specified person or in a specified place or area; or
(c)a condition requiring the defendant not to reside with a specified person or in a specified place or area; or
(d)a condition requiring the defendant to perform a specified number of hours of community service; or
(da)a condition requiring the defendant to undertake an intervention program; or
(e)a condition requiring the defendant to undergo medical or psychiatric treatment in accordance with the terms of the bond; or
(f)a condition requiring the defendant to abstain from drugs of a specified class or from alcohol; or
(g)a condition requiring the defendant—
(i)to restore misappropriated property to any person apparently entitled to possession of it; or
(ii)to pay compensation of a specified amount to any person for injury, loss or damage resulting from the offence; or
(ga)a condition requiring the defendant to attend and complete, within the term of the bond or such lesser period as the court may specify, a specified education programme approved by the Attorney-General for the offence of which the defendant has been found guilty; or
(h)any other condition that the court thinks appropriate.
…
[emphasis added]

It was argued for the appellant that the words “without imposing a penalty” in s 39(1) prevented the Magistrate from imposing any penalty as a condition of a good behaviour bond, including those conditions set out in s 42(1) of the Act.
In my view, the structure of the Act, and the legislative history of ss 39(1) and 42, indicate that s 39(1) does not operate to prevent community service from being imposed as a condition of good behaviour bond. My reasons follow.
When the Act was enacted, s 42(3) provided that:
A court must not include a condition requiring performance of community service, except where the bond is entered into as a pre-condition of the suspension of imprisonment.
At that time, community service was also introduced as a sentence in its own right; it had previously been available only as a condition to a bond under the Offenders Probation Act 1913 (SA).
The restriction on the imposition of community service as a condition of a suspended sentence was repealed in 1995, by the Criminal Law (Sentencing) (Miscellaneous) Amendment Act 1995 (SA) (the Amending Act).[4] During the second reading speech, it was noted that:[5]
Section 42(3) provides that a court must not include a condition in a bond requiring performance of community service except where the bond is entered into as a pre-condition of the suspension of a sentence of imprisonment.
The Judges consider that in some circumstances it is appropriate to impose a community service order when releasing an offender on a bond. In the event of the offender breaching a condition of the bond the court, in sentencing the offender could take into account the community service order and the extent of compliance with the order.
Section 42(3) was included in the Act for resource reasons. It was not clear how much demand there would be for community service and this was one way of limiting the demand.
[4] Criminal Law (Sentencing) (Miscellaneous) Amendment Act 1995 (SA), s 6(b).
[5] South Australia, Parliamentary Debates, House of Assembly, 11 October 1995 at 174 (Stephen Baker).
It is clear from the foregoing that it was the intention of Parliament, in repealing s 42(3), that community service should be available as a condition of not only suspended sentence bonds (pursuant to s 38 of the Act), but to bonds imposed under the Act more generally.
The language and structure of the section also make this clear: s 42(a1) imposes particular mandatory conditions for suspended sentence bonds, and s 42(1) outlines additional discretionary conditions for “a bond under this Act”, including s 42(1)(d).
The interpretation of s 42(1) contended for by counsel for the appellant would have the effect that the discretion under s 39(1) could only ever be exercised in circumstances where a sentencing judge intended to impose a good behaviour bond without additional conditions. Such an interpretation would leave no scope for the operation of ss 39(1)(ab) and 39(1a), and is plainly contrary to the intention of Parliament in repealing the provision restricting the imposition of community service on suspended sentence bonds.
In the course of argument I was referred to a number of authorities in which the penal nature of community service has been discussed. Those authorities include Police v Varma,[6] Wood v McDonald,[7] Holdsworth v Larcombe[8] and Lavers v Fauser.[9] These authorities were relied on in support of the proposition that a period of community service, even when ordered as a condition of a bond, is a penalty within the meaning of s 39(1) of the Act, effectively removing the jurisdiction of the court to make an order for community service pursuant to that section. Nieto v Mill[10] is also relevant.
[6] (2013) 116 SASR 532.
[7] (1988) 46 SASR 570.
[8] (1987) 44 SASR 294.
[9] (Unreported, Supreme Court of South Australia, Olsson J, 26 February 1987).
[10] (1991) 55 SASR 379.
In Harding v Police,[11] Gray J also considered the issue in another context. There the sentencing Magistrate had declined to exercise the discretion under s 39(1) on the basis that the offence for which the defendant was being sentenced imposed a mandatory minimum period of licence disqualification. The Magistrate considered that this penalty prevented the use of s 39(1). In overturning that decision Gray J, referring to Janz v Woolven,[12] considered that where there are two penalties imposed, only one of which can be reduced, mitigated or substituted, the words of s 39 should be read as “without otherwise imposing a penalty”, in addition to the mandatory minimum penalty imposed for a particular offence.[13]
[11] (2011) 110 SASR 197.
[12] (1990) 55 SASR 239.
[13] Harding v Police (2011) 110 SASR 197 at [20].
In Ellis v Police[14] I examined authorities relevant to the interpretation of s 39(1), and concluded that the powers under that section may be exercised for ameliorative purposes, to allow a Magistrate to forego the imposition of a sentence of imprisonment in appropriate circumstances, and deal with an offender in a more lenient way. I was not required in that case to deal with the precise question of construction arising in these circumstances.
[14] [2008] SASC 297.
In my view, it is appropriate to distinguish between cases and circumstances in which community service is imposed as a separate sentence, pursuant to s 18(1) of the Act, and those in which it is imposed as a condition of a bond. In the former circumstance, the imposition of community service is imposed as a punitive measure, akin to a sentence of imprisonment, or fine. In the latter, the discretion for a sentencing Judge to impose a period of community service arises in circumstances in which a sentencing Judge wants to exercise leniency in imposing a bond, instead of a sentence of imprisonment, but also provide a measure of deterrence.
The discretion to include community service as a bond condition should be read in the context of the other bond conditions available in s 42(1). These include conditions requiring supervision of a community corrections officer, the undertaking of intervention programs, medical or psychiatric treatment, and completion of educational programs. Such conditions are plainly not penalties. This construction of section 42(1) fortifies the interpretation that community service, when imposed as a condition to a bond, is not a penalty for the purposes of s 39(1).
The discussion in Nieto was predicated on the then existing s 42(3) of the Act restricting the availability of community service orders to bonds imposed as a condition of suspending a sentence of imprisonment.
That an order for community service as a condition of a bond is not necessarily to be regarded as a penalty was implicitly recognised by Gray J in Nollen v Police.[15]
[15] (2001) 78 SASR 421.
Although in that case Gray J was dealing with an order for community service which had been imposed as a condition of a suspended sentence, his Honour’s analysis of the nature of a bond applies equally to any bond offered pursuant to the Act including s 39(1):[16]
In defining “sentence” the Sentencing Act treats the imposition of a penalty as being separate and distinct from a decision of a court to offer a defendant an opportunity to enter into a bond.
A bond is an agreement between a defendant and the Crown. It is not an undertaking to a court. The offer of a bond is not intended to operate as a penalty. To the contrary, it may ameliorate against hardship resulting from an immediate custodial sentence. The court has a discretion to suspend a sentence of imprisonment on condition that the offender enter into a bond on terms the court thinks appropriate. It is for a defendant to decide whether to enter into a bond. In Adams v Carr von Doussa J (with whom King CJ and Bollen J agreed) said (at 216):
“In my view, there is an important distinction between a custodial order and a condition is a recognisance requiring a person to perform community service on appointed days. A custodial order is imposed regardless of the wishes of the person concerned whereas community service, while arising in pursuance of a court order, may be declined by the person chosing [ [sic] ] not to enter the recognisance. An order for release upon recognisance is an order conditional upon the person accepting its terms: Stokes v Samuels (1973) 5 SASR 18 at 21 . The order is an exercise of leniency in lieu of sentence for the offence, and the person concerned has chosen to accept the conditions of the order to gain that leniency.”
[footnotes omitted]
[16] Nollen v Police (2001) 78 SASR 421 at [50]-[51].
To my mind the reasoning in Nollen supports the construction I prefer of ss 39 and 42 of the Act namely that the word “penalty” as used in s 39(1) does not refer to an order requiring an offender to perform community service when imposed as a condition of a bond under s 39(1).
As I have found, this construction of s 42 is the only construction which gives any real meaning and effect to the repeal of s 42(3) in 1995. Apart from bonds imposed under s 39 there is no other provision in the Act which enables a court to impose a bond.
For these reasons I consider that the submission that community service orders must always be characterised as “a penalty” in the narrow sense of that word is misconceived.
It needs to be borne in mind that prior to the introduction of community service orders as a sentencing option in the Act there was much debate and discussion about the philosophy behind the scheme. Whilst there is undeniably a punitive element in any order requiring community service to be performed, it is also a potential source of rehabilitation or therapeutic value to offenders. In Nieto, Legoe J referred to a publication by the Chief Secretary of the Department of Community Services in 1992, which is still apposite:[17]
The scheme is a potential source of rehabilitative or therapeutic value to offenders. By working alongside community minded volunteers, by assisting persons less fortunate than themselves, and by giving something back to society, offenders have the opportunity for character building, restoring their personal dignity, and improving their standing in the community. It will also enable them to establish constructive interests, develop worthwhile patterns of behaviour, and they may also be encouraged to resume lost work habits or to develop new employment skills. Finally, through participation in suitable educational activities as arranged through the scheme, the offender will be offered the opportunity to do something constructive about the reasons which brought him into contact with the law in the first place, thereby lessening the probability of re-offending.
[17] Nieto v Mill (1991) 55 SASR 379 at 382.
For these reasons I consider that each of the bond conditions stipulated in s 42(1) of the Act, including the option of community service, are important tools in the armoury of sentencing options available to a sentencing Magistrate or Judge under s 39(1) of the Act.
I do not consider that the condition of the bond requiring the appellant to appear before the sentencing court should he breach his bond, in circumstances where he has completed some or all of the community service imposed offends the rule against double jeopardy. In such a circumstance, as the respondent properly submitted, the sentencing court would be obliged to consider the appellant’s compliance with that condition of the bond when considering rehabilitation, pursuant to s 10(1)(m) of the Act. That partial completion of community service could be taken into consideration was also made abundantly clear in the second reading speech for the Amending Act, extracted above at [23].
On these facts I am satisfied that the learned Magistrate exercised his discretion in accordance with the correct principles and by giving proper consideration to the competing needs to ensure that any order he made would act as an effective general and personal deterrent, while at the same time affording appropriate leniency to the appellant in circumstances where the overall circumstances of the offence, and in particular the appellant’s personal circumstances, justified it.
For these reasons I have reached the conclusion that there is no merit in any of the appellant’s complaints made on appeal. The appeal must be dismissed.