Cole v Police

Case [2015] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

COLE v POLICE

[2015] SASC 83

Judgment of The Honourable Justice Nicholson

2 June 2015

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES - GENERALLY

Application for permission to appeal, out of time, against a sentence imposed by a Magistrate.  On 12 March 2014, the appellant pleaded guilty in the Magistrates Court to the offences of behaving in a disorderly manner, causing damage to property and two counts of basic assault.  That offending caused the appellant to breach a good behaviour bond entered into on 26 October 2011 with respect to convictions for aggravated assault and damage to property.  The bond supported a suspended sentence of 15 months imprisonment with a non-parole period of seven months.

The appellant admitted the breach of bond on 11 September 2014 and was taken into custody on that day. He was sentenced soon after on 16 September 2014. The Magistrate revoked the suspension and backdated the sentence to commence on 11 September 2014. For the breaching offending, the Magistrate in reliance on section 18A of the Criminal Law (Sentencing) Act 1988, imposed the one penalty for all offences, of nine months imprisonment to be served cumulatively upon the activated sentence of 15 months imprisonment. This resulted in a total head sentence of 24 months imprisonment to commence 11 September 2014. The Magistrate extended the non-parole period by one month to eight months.

The appellant now contends that the Magistrate erred in failing to consider, pursuant to subsection 58(4) of the Sentencing Act, whether special circumstances existed to justify a reduction in the term of the activated sentence. The appellant contends that his recent efforts to pursue drug and other rehabilitation and the delay (through no fault of his) before he began receiving professional help for his various personal issues, warrant a reduction. The appellant submits that the sentence should be set aside and that he be sentenced afresh.

Held: Permission to appeal out of time refused. The Magistrate had proper regard to all of his sentencing options under the Sentencing Act as a consequence of the appellant’s breach of bond, including the discretion to reduce the activated sentence of 15 months imprisonment. In any event, the factors raised by the appellant do not, in this case, constitute special circumstances for the purpose of subsection 58(4)(a). It was well within the Magistrate’s discretion to refuse a reduction of the activated sentence and there is no basis upon which to disturb the sentence imposed. As the foreshadowed appeal has no prospect of success, permission to appeal out of…

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Cole v Police [2015] SASC 83
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[2015] SASC 83
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CaseChat Overview and Summary

The appeal in Cole v Police was brought by the appellant against a decision made by a magistrate in the Magistrates Court of South Australia. The appellant argued that the magistrate had erred in their sentencing decision after the appellant breached the terms of a suspended sentence. The primary issue was whether the magistrate correctly applied the relevant legal principles in determining the sentence for the breach of the suspended sentence. Specifically, the court had to determine whether the magistrate failed to consider special circumstances that might have warranted a reduction in the activated sentence of imprisonment.

The court reviewed the sentencing remarks of the magistrate, which included a detailed consideration of the appellant's previous offending history, the nature of the current breach, and the steps taken by the appellant towards rehabilitation. The magistrate had acknowledged the appellant's efforts in addressing substance abuse and mental health issues. However, the court found that while the magistrate had considered whether there were proper grounds to excuse the breach, they did not sufficiently address whether special circumstances justified a reduction in the activated sentence. The court concluded that this omission constituted an error of law. Despite this, the court determined that the appeal had no prospect of success and refused the application to extend the time for the appeal. The court also varied the magistrate's sentence to correctly reflect the entitlement to credit for time spent in custody prior to sentencing.

In summary, the court held that while the magistrate had considered the necessary factors in sentencing, they failed to properly address whether special circumstances justified a reduction in the activated sentence. This oversight was identified as an error of law. However, the appeal was ultimately dismissed as it had no prospect of success. The court also made a consequential order to correct the form of the magistrate’s sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J
In sentencing for the appellant’s breach of bond, it is clear that the Magistrate chose to reflect the significant strides taken by the appellant in terms of personal rehabilitation by setting a relatively low non-parole period of eight months (an increase of only one month on the suspended non-parole period). As earlier noted, it would appear that the Magistrate was of the view that the appellant’s continued rehabilitation would benefit from a reasonable period of supervision on parole.[26] It was well within the discretion available to the Magistrate to refuse a reduction of the activated sentence of 15 months imprisonment. As earlier indicated, I would not sentence any differently. [26] It is to be noted that, because the two assault offences each constitute an “offence of personal violence” as defined in section 66(3) of the Correctional Services Act 1982, the appellant does not enjoy an automatic right to release on parole; see generally section 66 of the Correctional Services Act 1982. The appellant’s non-parole period has now expired. According to his counsel an application for parole is to be considered by the Parole Board on 4 June 2015. If the application is successful, the appellant will not be released before 11 June 2015.Conclusion The appeal has no prospect of success. As such, a refusal of permission to appeal out of time would not cause a miscarriage of justice. I refuse the application to extend the time within which to appeal. However, I should correct the form of the Magistrate’s sentence. His Honour ordered that the activated sentence of 15 months be backdated to commence 11 September 2014 with the nine month sentence for the fresh offending to operate cumulatively. As earlier indicated,[27] an activated suspended sentence cannot be backdated. However, the appellant is entitled to credit for the period of time spent in custody prior to being sentenced. In reliance on the power available under section 58(4)(c)(ii) (see earlier), I order that the Magistrate’s sentence be varied so that the nine month sentence is to be backdated to 11 September 2014 and the activated suspended sentence of 15 months is to operate cumulatively on that sentence. In all other respects, the Magistrate’s orders remain unchanged. I will hear the parties with respect to any consequential matters.[27] See fn 5.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

The appellant’s sole argument on appeal is that the Magistrate erred by limiting his consideration of the options available to him under section 58 to whether or not there were proper grounds, under subsection 58(3)(a), to excuse the breach. The Magistrate’s refusal to find proper grounds has not been challenged. However, the appellant contends that upon finding that no proper grounds existed, the Magistrate failed to undertake the further necessary enquiry under subsection 58(4)(a) as to whether there were special circumstances justifying a reduction in the activated sentence of 15 months imprisonment.Consideration If a court decides that a breach of bond is not to be excused it must go on to consider whether special circumstances exist justifying a reduction in any suspended prison sentence to be activated. It will be an error of law not to do so.[18] With this in mind, I turn to consider the sentencing remarks delivered by the Magistrate on 16 September 2014. His Honour commenced by summarising, in some detail, the nature of the appellant’s breaching offending and the earlier offending underlying the suspended sentence. The Magistrate also had regard to the appellant’s offender history which included a conviction before the Youth Court in 1998 on a charge of assault occasioning actual bodily harm and at least one prior conviction for breach of bond. The Magistrate noted that whilst the appellant was not to be punished for his previous offending, it was a relevant factor to be taken into account in sentencing. [18] See generally R v Gannon [2009] SASC 73 at [30]-[33]. The Magistrate had regard to the significant steps taken by the appellant in addressing his substance abuse and mental health issues, as demonstrated by the medical reports made available. The Magistrate noted that the appellant had been engaging with various support services provided by Drug & Alcohol Services South Australia and was trying to overcome his various problems, including an addiction to amphetamine use. Reference was made to a letter from the appellant’s parents, which spoke of the change both had seen in their son since he had begun receiving professional help. The Magistrate also noted a submission from counsel to the effect that the appellant was now leading a healthier and more active lifestyle which had put him in a “much better place” than when he committed the offending in December 2012. Having summarised the various rehabilitative steps taken by the appellant, the Magistrate made the following prefatory remarks:I take all of those matters into account. I make it abundantly clear that there is much that can be said for the defendant’s efforts in recent times to improve himself and rehabilitate himself. I remind myself of all the matters I need to take into account pursuant to section 10 of the Criminal Law Sentencing Act. I am aware of all my various sentencing options, including options pursuant to section 58 in relation to the application before me to breach the suspended sentence.[19][19] Police v Cole, Magistrates Court of South Australia, MCCHL-14-1445, Remarks on Penalty, 16 September 2014 at [22] (emphasis added).