Commonwealth Director of Public Prosecutions v Cole - [2005] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v COLE
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Layton)
26 May 2005
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS
Appeal by Commonwealth Director of Public Prosecutions - appellant sentenced by magistrate to six months’ imprisonment - released forthwith on recognizance - court staff prepared incorrect form - a suspended sentence bond in accordance with Criminal Law (Sentencing) Act 1988 (SA) instead of form specifed under Crimes Act 1914 (Cth) was completed and signed by the appellant - appellant subsequently breached the terms of the bond - magistrate held appellant did not breach recognizance as never entered into a recognizance - single Judge of this Court dismissed the appeal - appeal on ground that Judge erred in finding that the bond failed to comply with the order of the magistrate.
Consideration of suspended sentence bonds under Criminal Law (Sentencing) Act 1988 (SA) - consideration of recognizance release orders under Crimes Act 1914 (Cth) - discussion of distinction between the two schemes.
Held - appeal allowed for the limited purpose of remitting proceedings to Magistrates Court to allow a new recognizance to be prepared.
Social Security Act 1991 (Cth) s 1347(b), s 1344(1)(a), s 1353; Crimes Act 1914 (Cth) s 16F(2), s 19AH, s 19B, s 20(1)(b), s 20A; Criminal Law (Sentencing) Act 1988 (SA) s 38(3), s 58(1); Social Security (Administration) Act 1999 (Cth) s 212, s 217; Crimes Regulations 1990 (Cth), referred to.
O'Shannassy v Taylor (1978) 21 ACTR 9; Fischer v Chambers (1972) 4 SASR 105; R v Collins (1976) 12 SASR 498; Nollen v Police (2001) 78 SASR 421; Veter v G [1981] 1 WLR 567; Mann v Yannacos (1997) 16 SASR 54; R v Smith [1925] 1 KB 603; R v McGregor [1945] 2 All ER 180; Weinert v Commonwealth Director of Public Prosecutions [1999] SASC 34, considered.

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v COLE
[2005] SASC 188
Full Court Gray, Sulan and Layton JJ
THE COURT

This is an appeal by the Commonwealth Director of Public Prosecutions.
The Primary Proceedings
On 27 September 2001 John Stanley Cole, the respondent and defendant, pleaded guilty to 13 counts of obtaining a “benefit not payable” contrary to section 1347(b) of the Social Security Act1991 (Cth) and 6 counts of making a false statement contrary to section 1344(1)(a) of the Social Security Act.
The sentencing magistrate, pursuant to section 1353 of the Social Security Act, imposed the one penalty for all offending – an order of imprisonment for 6 months. The magistrate pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth), ordered that Mr Cole be released forthwith upon giving security by recognizance in the sum of $10 to comply with the condition to be of good behaviour for a period of two years.
Mr Cole agreed to enter into the recognizance as provided by the terms of the order rather than immediately serve the six months’ imprisonment that had been imposed.
The staff at the Magistrates Court prepared, and Mr Cole signed before a Justice of the Peace, a document entitled “Suspended Sentence Bond”. When signing, Mr Cole believed that the document was the recognizance provided for in the magistrate’s order. Mr Cole was then released.
The Mistake
The document prepared by the Magistrates Court staff and signed by Mr Cole was in a form prepared and used when probationers are required to enter into suspended sentence bonds pursuant to the provisions of the Criminal Law (Sentencing) Act 1988 (SA).[1] The document provides for particulars of the court, the probationer and details of the offences to which the bond relates to be included. The document records the term of imprisonment imposed and then continues:
The Court has recorded a conviction against you for the offences listed above and has imposed the sentences shown for each matter. It has, however, ordered that the sentences be suspended if you enter into the bond.
Details of the suspended sentence bond and the conditions of the bond are then set out. Under the heading “What will happen if you comply with the conditions of this bond”, the following appears:
If at the end of this bond you have complied with all of the conditions mentioned above, the sentences of imprisonment ordered by the court will not have to be served, nor will you have to come back to court.
[1] See Schedule A of this judgment.
Under the heading, “What will happen if you fail to comply with the conditions of this bond” the following appears:
If you fail to comply with any of the conditions of your bond, the following things may happen –
1.You may be brought back to court and the court may cancel the order of suspension of the prison sentences imposed on you. You would then have to serve the sentences, or such lesser term of imprisonment as may be fixed by the court.
2.You may be ordered to pay the amount of the bond (as set out above), or any lesser amount fixed by the court.
3.Any person who has agreed to act as a guarantor to this bond may be ordered to pay the amount of money of which they have signed or any lesser amount fixed by the court.
Under the heading, “Acknowledgment by the probationer” the following appears:
I agree to enter into this bond. I acknowledge that I fully understand its conditions, and undertake to comply with those conditions. I also understand what will happen to me if I fail to do so.
The Subsequent Proceedings
The Commonwealth DPP issued an information alleging a breach of recognizance contrary to section 20A of the Crimes Act. It was said that Mr Cole had without reasonable cause or excuse failed to comply with the condition of the order that he be of good behaviour for a period of two years.
Mr Cole had not been of good behaviour during the two-year period of the bond following 27 September 2001. Between 23 April 2003 and 25 September 2003 Mr Cole committed seven further offences of making a false statement in connection with or in support of a claim for social security payments in breach of sections 212 and 217 of the Social Security (Administration) Act 1999 (Cth). Mr Cole acknowledged that by committing these offences he had failed to be of good behaviour.
On 8 October 2004 the information came on for hearing in the Magistrates Court. The magistrate concluded that Mr Cole had not breached “the recognizance he entered into” and dismissed the information:
This is an argument as to whether or not the defendant upon pleading guilty to offences relating to making false statements in relation to a claim for social security has breached the recognisance he entered into at the Holden Hill court on 27 September 2001.
…
There is no doubt in my mind that when the defendant left the Holden Hill court on 27 September 2001 he firmly knew that for the next two years at the very least, certainly whilst the recognisance was in existence, if he committed further offences, failed to be of good behaviour, he would be serving a period of imprisonment of six months. He did indeed do just that. In April of 2003 he committed similar offences and so breached the recognisance he had entered into. The problem arises in that when the magistrate made the order suspending a period of imprisonment in September of 2001 at the Holden Hill court he referred to the order in terms of what was required by the Crimes Act. Unfortunately at the front office a suspended sentence bond form was used which relates to a suspended sentence that is imposed as a result of State offending. That does not change the defendant’s state of mind as to his understanding of what was happening on the day.
The problem, however, arises in that the bond that he signed and took home refers to what would happen if he breached that bond and regrettably the repercussions that would flow from breaching that bond are not in reality what would occur if he breached the recognisance and the proper form had been provided to him and signed by him at the time that he was sentenced. In particular it is true that there is no provision for reducing the period of imprisonment should he breach his recognisance.
[Defence counsel] in his defence outline of argument he referred me to a decision of Mann v Yannacos and although that refers to conditions being included in a bond that were not ordered by the court, I agree with his submission that if the consequences of breaching a bond are improperly stated in the contract, as it were, that the defendant has signed and taken home with him, that is a more fundamental problem than that which arose in the decision to which he referred me.
I therefore find, with some reluctance, that the defendant has not breached the recognisance he entered into.
The magistrate’s conclusion that Mr Cole did not breach “the recognizance” does not appear to correctly address the issue. Mr Cole had breached the suspended sentence bond but did not breach the ordered recognizance. In substance, the magistrate concluded that Mr Cole did not enter into a legally binding recognizance and that as a result the information was dismissed.
An appeal by the Commonwealth DPP to a Judge of this Court was dismissed. In the course of his reasons, the learned Judge observed:
The argument involves the fact that following the Magistrate making the order of the court, and the defendant agreeing to enter into a recognisance, the actual document used when the formal agreement was entered into was wrong. It was a form which was appropriate under the provisions of the Criminal Law (Sentencing) Act1988 (SA) (“the State Act”) rather than a form provided by schedule 3 of the Crimes Regulations1990 (Cth).
…
Finally it was argued that the terms of the agreement are not enforceable because when the whole document is considered, it does not reflect the order made by the court. The parties did not appreciate that the document was erroneous. The document carries a very serious sanction of imprisonment, and therefore it is imperative that there should be no room for doubt. In my view, there was room for doubt on many of the differences which applied under the two different regimes during the period of the bond, and also at the end of the bond depending on whether there was a breach or not.
…
Therefore, also with some reluctance, I agree with the learned Magistrate in his reasoning, and I would dismiss the appeal for the reasons stated.
Recognizance – General Observations
A recognizance is a contract between a defendant and the Crown. An order for release upon recognizance is an order conditional upon a person accepting its terms. A defendant may refuse to enter into a recognizance.[2] In Fischer v Chambers[3] Bray CJ discussed the general nature of a recognizance:[4]
… But suppose the bond as a contract (and it is, in my view, as I shall develop later a contract, whatever else it may be) was void or voidable ab initio. Suppose it was entered into by a defendant who was drunk or insane or who acted under duress or who was deceived into entering into it by fraud or who could not read English and signed it under the genuine belief that it was an affidavit or some other document with no resemblance to a recognizance. Or suppose it was entered into as the result of an order made by a court which lacked jurisdiction. In such cases some court must have power to make an appropriate order for its recision, cancellation or destruction. Many, if not all, of the normal grounds of attack on the initial validity of a contract or a deed must be available in the case of a recognizance and, if so, many if not all, of the normal powers of a court, at least of a court of equity, consequent upon the success of such an attack, must be available also.
My view is, then, that if a recognizance is entered into consequent upon and under the compulsion of an order which the court of appeal thinks should have been made and which it sets aside, it can set aside the recognizance too.
[2] See O’Shannassy v Taylor (1978) 21 ACTR 9.
[3] (1972) 4 SASR 105.
[4] (1972) 4 SASR 105 at 110-111.
In the present case, both parties accepted the correctness of this analysis. It has direct application to recognizances entered into pursuant to the provisions of the Crimes Act.
In R v Collins,[5] Bray CJ further discussed the nature of a recognizance:[6]
The nature of the recognizance entered into by a convicted person as a result of the exercise by a court of the powers conferred by the Offenders Probation Act was discussed by this Court in Fischer v Chambers. ... It was there pointed out that, whatever else such a recognizance is, it is a contract, in the old terminology, a contract of record. As was also pointed out in that case, it is not something which can be imposed on the convicted person against his will. He always has the option of entering into it or not. It is true, of course, that if he does not enter into it a worse fate may befall him. Nevertheless the choice is his and cases are not unknown of convicted persons refusing the recognizance and accepting the alternative. If he does decide to enter in to the recognizance he acknowledges himself to owe the nominated sum to the Crown, but his obligation to pay it is subject to a condition of defeasance if he complies with the terms of the bond. Such was the normal form of a criminal court bond, both at common law and under the original provisions of the Offenders Probation Act. Before the introduction of the suspended sentence the consequences of a breach of bond in these cases were the liability to forfeit the money and, in the latter case, to appear before the appropriate court for conviction and sentence (s. 4(1) III(ii)) or for sentence (s. 4(1) III(ii), s. 4(2)(ii)). After the suspended sentence had been introduced in 1971 it was provided, perhaps not very artistically, that a further consequence of a breach of a bond could be the revocation of the suspension (s. 4(2a), s. 9(4)(b)).
[5] (1976) 12 SASR 498.
[6] (1976) 12 SASR 498 at 500; see also Nollen v Police (2001) 78 SASR 421 at [35]; Veter v G [1981] 1 WLR 567 at 577-578.
The onus of proof is on a prosecuting authority. It is settled that proof must be beyond reasonable doubt.[7] Accordingly, in the present case, in proving the breach of recognizance, the obligation was on the prosecution to prove beyond reasonable doubt that a recognizance within the meaning of the Crimes Act was entered into. The contractual nature of the recognizance requires that it be entered into by an informed defendant.
[7] R v Smith [1925] 1 KB 603; R v McGregor [1945] 2 All ER 180.
In Mann v Yannacos[8] the Court was concerned with a situation where a prepared bond did not accord with the terms of the order of the court. Bray CJ observed:[9]
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, 3^rd 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.
[8] (1977) 16 SASR 54.
[9] (1977) 16 SASR 54 at 63-64.
These observations of Bray CJ are apposite when addressing the nature of a Crimes Act recognizance. “Recognizance Release Order” is defined in section 16 of the Crimes Act to mean “an order made under paragraph 20(1)(b)”.
Recognizance – Crimes Act
Section 19B of the Crimes Act empowers a sentencing court dealing with a Commonwealth offence to discharge an offender without proceeding to a conviction. Section 19B relevantly provides:
Where:
(a)     a person is charged before a court with a federal offence or federal offences; and
(b)     the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:
(i)the character, antecedents, cultural background, age, health or mental condition of the person;
(ii)    the extent (if any) to which the offence is of a trivial nature; or
(iii)the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;
the court may, by order:
…
(d)     discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:
…
The court may discharge a defendant upon the giving of security by recognizance to comply with specified conditions. Section 20 empowers the court to order the conditional release of an offender after conviction. One of the sentencing options open to the court in that circumstance is to release a defendant upon the giving of security by recognizance to comply with the specified conditions. Section 20(1)(a) provides:
(1)Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit:
(a) by order, release the person, without passing sentence on him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:
...

An alternative sentencing option is for the court to sentence a defendant to imprisonment in respect of the offence but direct that the person be released upon the giving of security by recognizance to comply with the specified conditions and then to order the release of the defendant either forthwith or after he has served a specified period of imprisonment. Section 20(1)(b) provides:
Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit:
...
(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).
This case concerns the exercise by the magistrate of his powers pursuant to section 20(1)(b). The magistrate in the present proceedings had the power to impose a sentence of imprisonment but to offer the defendant release forthwith on his entering into a recognizance. The alternative to entering into the recognizance was for Mr Cole to serve the term of six months’ imprisonment. The Crimes Act authorises the use of a recommended form of order and recognizance. This is identified as Form 12.[10] The form, when signed by a defendant, acknowledges that the necessary statutory explanation has been given and that there is power to discharge or vary the order. However, the form does not set out the content of the explanation referred to in section 16F(2) and the content may vary between different defendants.
[10] See Schedule B of this judgment.
The Obligation to Explain
The Crimes Act requires a court imposing a sentence and making a recognizance release order in respect of that sentence to explain or cause to be explained to the person, in language likely to be readily understood, the purpose and consequences of making a recognizance release order.
In the present proceedings, there is no evidence that the sentencing magistrate provided an oral explanation to Mr Cole. However, the magistrate intended an appropriate written form of recognizance to be prepared. He left court staff to prepare the necessary papers and for the recognizance to be entered into before a Justice of the Peace. As will be discussed later in these reasons, the document provided to and signed by Mr Cole did not provide an explanation in terms of section 16F(2)(a), (c) and (d) of the Crimes Act.
The Different Statutory Regime
As earlier observed, the problem in the present case arose from the use of incorrect documentation. Instead of using the form prescribed by the Crimes Regulations 1990 (Cth), the form appropriate for use under the Sentencing Act was utilised.
There is a similarity between a suspended sentence bond pursuant to the Sentencing Act and a recognizance release order pursuant to the Crimes Act. However, when the respective legislative schemes are examined, material differences emerge.
The Sentence
A suspended sentence pursuant to the Sentencing Act proceeds on the basis that the sentence will not come into operation unless a court revokes the suspension order following a breach of bond. Section 58(1) of the Sentencing Act provides:
Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
…
(d)if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
In the case of the State sentencing regime, if conditions of the bond are complied with, the sentence is wholly extinguished. The sentence would have been served. Section 38(3) of the Sentencing Act provides:
If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished.
By contrast, a recognizance release order pursuant to the Crimes Act appears to be predicated on the basis that the sentence will be served at least partly, if not wholly, within the community. Section 20A(5)(c)(ic)(i) of the Crimes Act provides:
[I]n the case of a person who has been released by an order made under paragraph 20(1)(b):
…
(i) revoke the order and deal with the person for the offence or offences in respect of which the order was made by ordering that the person be imprisoned for that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release …
As previously mentioned, section 16F(2) of the Crimes Act provides:
Where a court imposes a federal sentence on a person and makes a recognizance release order in respect of that sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of making the recognizance release order including, in particular, an explanation:
(a) that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence; and
(b) of the conditions to which the order is subject; and
Both of these provisions appear to contemplate that following a breach of a recognizance the court may revoke the order for release and order imprisonment for the balance not served in accordance with the terms of section 20A(5)(c)(ic)(i).
Therefore, in the case of the recognizance release order, if the conditions of the recognizance are complied with, the sentence will have been served, albeit in part or in whole in the community rather than in prison. The date of release in the present case was the date on which Mr Cole was sentenced. Had he signed an appropriate recognizance, and breached that recognizance, he would have been liable to have the order discharged and to be ordered to be imprisoned for a period of six months.
Revocation of Suspension
There are other differences between a suspended sentence bond and a recognizance release order. If the conditions of a suspended sentence bond are not complied with, the court must revoke the suspension. The court must order that the original sentence be carried into effect unless a discretion to refrain from making a revocation order in specified circumstances is exercised. Section 58 of the Sentencing Act relevantly provides:
…
(3)Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a)     may refrain from revoking the suspension; and
(b)     may—
(i)     —
(A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
(B)in the case of a bond requiring performance of community service, extend, by not more than six months, the period within which any remaining hours of community service must be performed; or
(C)cancel the whole or a number of any unperformed hours of community service; or
(D)     revoke or vary any other condition of the bond; or
(ii)if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year.
In the case of a recognizance release order, if the conditions of the recognizance are not complied with, the court has the discretion to make a number of orders one of which includes a revocation of the earlier order and the imposition of a sentence of imprisonment for a period equal to that not already served under the original sentence at the time of release. Section 20A of the Crimes Act provides:
(5A)The court may not, under subparagraph (5)(c)(ib), extend a period so that the period as extended would be more than 5 years.
(5B)If a court, under subparagraph (5)(c)(ib), amends an order made in respect of a person under paragraph 20(1)(b), the security given by the person under that subsection is, by this section, taken to be a security that the person will be of good behaviour for the period stated in the order as amended.
(6)Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:
(a)     the fact that the order was made;
(b)     anything done under the order; and
(c)     any other order made in respect of the offence or offences.
(7)Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court may, in addition to dealing with him for that offence or those offences, order that any recognizance entered into by him, or by a surety for him, shall be estreated and any other security given by or in respect of him shall be enforced.
Reduction of Term of Imprisonment
Section 58(4) of the Sentencing Act provides:
Where a court revokes the suspension of a sentence of imprisonment, the court—
(a)     may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b)     may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(ba)   may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;
(c)     may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
This sub-section empowers a court on a breach of a bond being established to reduce the term of the suspended sentence and require the defendant to serve only part of the sentence in custody. The Crimes Act does not authorise a court to act in this way.
Conclusion of Different Statutory Regimes
The conclusion to be drawn from the above analysis is that a suspended sentence under the State regime and a recognizance release order under the Commonwealth regime are materially different orders with different consequences. Although both, if the conditions are complied with, have the effect of relieving a defendant from imprisonment, the means by which that is achieved differ.
Terms Differ from Consequences
Counsel for the Commonwealth sought to distinguish between the terms of a recognizance and advice of the consequences of a breach of that recognizance. It was said that the two were separate and distinct. The recognizance was the promise of Mr Cole to be of good behaviour for a period two years. The consequences that may follow from a breach are defined by statute. It was said that advice as to the consequences did not form part of the recognizance. In Police v Duri[11] Mullighan J addressed the provisions of the Sentencing Act and observed:[12]
… The explanatory notes as to what will happen are not terms of the bond. The terms are the amount, duration and conditions of the bond. If the respondent was to come up for sentence upon breach of the bond, there must be a term in the form of a condition of the bond to that effect as is shown in Form 2.
Counsel argued that for this reason the decision in Mann was distinguishable as in that case the error was in the recording of the order by the magistrate and not in the statement of the consequences that might follow.
[11] [1998] SASC 6999.
[12] [1998] SASC 6999 at [8].
There is an air of unreality in drawing the suggested distinction. A recognizance is a contract between a defendant and the Commonwealth. A defendant agrees to comply with conditions including the consequences of imprisonment or some other penalty in the event of a breach. The acceptance of those consequences is part of the essence of the contract.
As the authorities referred to later in these reasons demonstrate, a defendant’s consent must be an informed consent. If a defendant is not adequately and properly informed or is misinformed about the possible consequences of breach, it follows that an informed consent has not been given.
In the present case, the terms of section 16F(2) of the Crimes Act obliged the court to provide an explanation to Mr Cole so that he entered into the recognizance on an informed basis.
Counsel for the Commonwealth submitted that the form of suspended sentence bond entered into by Mr Cole adequately identified his obligation to be of good behaviour. It was said that the consequences of breach were also adequately identified. It was pointed out that if Mr Cole breached the recognizance, he might have to serve the sentence of imprisonment that had been imposed. It was submitted that this was adequate information. However, this was not strictly correct. He was liable to have the earlier order revoked and to be subject to an order that he be imprisoned for that part of the sentence that he had not served at the time of his release.
The Present Case
The explanation provided to Mr Cole was that, if he breached the bond, he could be brought back to court and the court could revoke the order of suspension of the prison sentence that was imposed on him. In that event, he would have to serve the sentence or such lesser term of imprisonment as may be fixed by the court. This explanation was incorrect. He was not advised of the consequences of breaching his recognizance as required by the Crimes Act. He was misinformed; he was advised of consequences that may not occur and was not advised of the consequences that could occur.
In the present case, the sentencing magistrate correctly exercised his powers pursuant to section 20(1)(b) of the Crimes Act. He imposed a sentence on Mr Cole that was within power. The sentence was within his discretion.
As earlier observed, that sentence was imprisonment for six months. However, the magistrate offered Mr Cole the opportunity to be released forthwith upon his entry into a recognizance on the condition that he be of good behaviour for a period of two years. Mr Cole agreed to enter into such a recognizance.
Matters then went awry. An agent of the Commonwealth authorised to enter into the contract misunderstood the task in hand. A suspended sentence bond was prepared pursuant to the requirements of the Sentencing Act. Information as to the consequences was included, informing of the consequences relevant to a State sentencing matter.
It is important that a defendant released on recognizance is fully and accurately informed of the consequences of a breach. The decision in Mann v Yannacos provides a good example of the strictness with which the courts view the terms of a recognizance. As earlier observed, in that case, the magistrate required a defendant to enter into a recognizance which did not correspond with the order in that the magistrate had included an additional requirement. The court held that the recognizance was not enforceable.
Mr Cole did not receive the explanation about the consequences of a breach of his recognizance. He did not receive the information required to be provided in accordance with section 16F of the Crimes Act. Mr Cole was not properly informed about the consequences or his rights. He entered into the contract without being able to form a judgment with respect to relevant matters. These were not minor and trivial matters. They went to substantive obligations and rights.
Section 19AH of the Crimes Act addresses the court’s powers when there has been a failure to properly make a recognizance release order. The section provides:
(1)Where a court fails to fix, or properly to fix, a non-parole period, or to make, or properly to make, a recognizance release order, under this Act:
(a) that failure does not affect the validity of any sentence imposed on a person; and
(b) the court must, at any time, on application by the Attorney-General, the Director of Public Prosecutions or the person, by order, set aside any non-parole period or recognizance release order that was not properly fixed or made and fix a non-parole period or make a recognizance release order under this Act.
(2)A court shall not, for the purposes of subsection (1), be taken to have failed to fix a non-parole period in respect of a sentence or sentences in respect of which it has made a recognizance release order to have failed to make a recognizance release order in respect of a sentence or sentences in respect of which it has fixed a non-parole period.
(3)Application under subsection (1) to the court that has sentenced a person may be dealt with by that court whether or not it is constituted in the way in which it was constituted when the person was sentenced.
No application was made by the Crown pursuant to this section. The section allowed the court in the present case to address the problem that arose. The section confirms that a failure to properly make a recognizance order does not affect the validity of the sentence imposed. The section empowers the court to set aside the non-complying recognizance release order and make a recognizance release order that complies with the legislative requirements.[13]
[13] Weinert v Commonwealth Director of Public Prosecutions [1999] SASC 34.
On the entry into the suspended sentence bond, both the Commonwealth and Mr Cole understood that his sentence was suspended and that if he complied with the conditions of the bond, the imprisonment order would be extinguished at the end of the term of the bond. However, the order of the magistrate involved Mr Cole serving his sentence in the community whilst released on his recognizance.
Mr Cole was not informed of his right to apply to the court for a variation of the terms of the court’s order. Mr Cole was led to believe that if he did breach the order, the court would have power to order part only of the sentence. As it can be seen, this raises difficulties concerning the nature of the sentence imposed and of the consequences of breach.
Conclusion
In the circumstances, the suspended sentence bond was a nullity. A recognizance order as contemplated by the Crimes Act was not entered into at all. The court did not meet its obligations pursuant to section 16F(2) of the Crimes Act. Mr Cole did not enter into the ordered recognizance. He entered into a suspended sentence bond drawn to meet the requirements of the Sentencing Act not the Crimes Act.
This appeal is allowed for the limited purpose of making consequential orders. It is not appropriate to simply dismiss the appeal. This would leave the order for imprisonment to take effect. Mr Cole did not enter into a recognizance. He should have the opportunity to do so. The proceedings should be remitted to the Magistrates Court to allow a new recognizance to be prepared.
SCHEDULE A
Form No. 2 - Criminal Law (Sentencing) Act 1988 (s 38)
SUSPENDED SENTENCE BOND
DETAILS OF THE COURT THAT IMPOSED THE SENTENCE(S)

Name of Court

Supreme Court of South Australia

DETAILS OF PROBATIONER

Name

Date of Birth

Address

DETAILS OF THE OFFENCE(S) TO WHICH THE BOND RELATES AND OF THE SENTENCE(S) THAT THE COURT HAS IMPOSED FOR THOSE OFFENCES

File No.

Count No.

Offence

Sentence Imposed

Total sentence of imprisonment to be served

Non-parole fixed (if sentence to be served 12 months or more

The court has recorded a conviction against you for the offence(s) listed above and has imposed the sentence(s) shown for each matter. It has, however, ordered that the sentence(s) be suspended if you enter into a bond.
DETAILS OF YOUR BOND ARE:

Length of bond term

(starting from when you sign this bond)

Amount of bond

Conditions of Your Bond Are:
1.     That you be of good behaviour, and comply with all the other conditions of this bond.
2.     That you be under the supervision of a community corrections officer for a period of ..................................... and obey the lawful directions given to you by the community corrections officer to whom you are assigned for the purposes of supervision.
3.     That you perform ......................... hours of community service within ............. months from the date of this bond, and obey the lawful directions of the community corrections officer to whom you are assigned for the purposes of community service.

Page 2
4.     That you report, within two working days of having signed this bond, at the offices of the Department for Correctional Services at ...........................................................................................
...........................................................................................................................................................
(NOTE:     You need not report, if within that two day period, you receive notice from the Department that it is not necessary to do so.)
WHAT WILL HAPPEN IF YOU COMPLY WITH CONDITIONS OF THIS BOND:
If, at the end of the term of this bond, you have complied with all of the conditions mentioned above, the sentence(s) of imprisonment ordered by the court will not have to be served, nor will you have to come back to court.
WHAT WILL HAPPEN IF YOU FAIL TO COMPLY WITH THE CONDITIONS OF THIS BOND:
If you fail to comply with any of the conditions of your bond, the following things may happen -
1.     You may be brought back to court, and the court may cancel the order of suspension of the sentence of prison sentence(s) imposed on you. You would then have to serve that sentence, or such lesser term of imprisonment fixed by the court.
2.     You may be ordered to pay the above amount of the bond, or any lesser amount fixed by the court.
3.     Any person who has agreed to act as a guarantor to this bond may be ordered to pay the amount of money for which they have signed, or any lesser amount fixed by the court.
ACKNOWLEDGMENT BY PROBATIONER
I agree to enter into this bond. I acknowledge that I fully understand its conditions, and I undertake to comply with those conditions. I also understand what will happen to me if I fail to do so.

Probationer

Bond taken before me and duplicate notice served this ........... day of ...................................... 20

Judge

SCHEDULE B
Form 12
Commonwealth of Australia
Crimes Act 1914
ORDER AND RECOGNISANCE UNDER PARAGRAPH 20 (1) (b)
IN THE [ insert name of court]
AT [insert location of court]
IN THE *STATE OF [insert State or Territory]
BETWEEN:
(*Informant/*Appellant)
-and-
(*Defendant/*Respondant)
ORDER
THE COURT ORDERS the release of the *defendant/*appellant under paragraph 20 (1) (b) of the Crimes Act 1914 *after serving [insert number of months] *month/*months of the term of imprisonment/*forthwith upon the *defendant/*appellant giving security *with *surety/*sureties of $ [insert amount of surety or sureties] by recognisance of $ [insert amount of recognizance] to comply with the following conditions:
(a) that the *defendant/*appellant is to be of good behaviour for [insert period] *months/*years; and
(b)that the *defendant/*appellant is to *make reparation/*make restitution/*pay compensation of $ [insert amount] to [insert to whom amount is to be paid] *by [insert date by which amount must be paid];/*by instalments of $ [insert details of instalments]; and
(c)that the *defendant/*appellant is to pay costs of this prosecution for the *offence/*offences specified below of $ [insert amount] to [insert to whom amount is to be paid] by [insert date by which amount must be paid];/*by instalments of $ [insert details of instalments]; and
(d)that the *defendant/*appellant is to pay to the Commonwealth a pecuniary penalty of $ [insert amount] to [insert to whom penalty is to be paid] *by [insert date by which amount must be paid];/*by instalments of $ [insert details of instalments]; and

(e)     that the *defendant/*appellant is to comply with the following further conditions:
(i)    [insert details of further conditions];
(ii)    [insert details of further conditions].

This Order has been issued because:
*(a)    the appellant, [insert name of defendant or appellant] of [insert address of appellant or defendant] appealed to this court against the *sentence/*conviction and sentence imposed by the [insert name of court] Magistrates' Court on [insert date] in respect of the following federal *offence/*offences:
(i)    [insert details of offences] ; and
(ii)    [insert details of offences] ; and

*(a)    the defendant, [insert name of defendant or appellant] , was charged with the following federal *offence/*offences:
(i)    [insert details of offences] ; and
(ii)    [insert details of offences] ;; and

(b) the Court has sentenced the *defendant/*appellant to a term of imprisonment; and
(c)the Court has decided that the *defendant/*appellant be released *after serving [insert number] *month/*months of the sentence/*forthwith if the *defendant/*appellant complies with the conditions of this Order.

Dated [insert date]
[signature of judge, magistrate, registrar, clerk or justice of the peace]
*Judge of [insert name of court] /*Magistrate/*Registrar of [insert name of court] /*Clerk of [insert name of court] /*Justice of the Peace
RECOGNISANCE
I, [insert name of defendant or appellant] , the *defendant/*appellant:
(a)     have had explained to me:
(i)    the purpose and effect of this Order; and
(ii)     the consequences that may follow if I fail, without reasonable excuse, to comply with the conditions of this Order; and
(iii) that this Order may be discharged or varied under section 20AA of the Crimes Act 1914; and

(b) agree that I am bound in accordance with this Order; and
(c) agree that I have been given a copy of this Order.
Dated [insert date].
[insert signature of defendant or appellant]
Before me:
[signature of registrar, clerk or justice of the peace]
*Registrar of [insert name of court] /*Clerk of [insert name of court] /*Justice of the Peace
UNDERTAKING BY *SURETY/*SURETIES
I undertake to pay to the Commonwealth of Australia the amount specified in this Order if the *defendant/*appellant fails to comply with a condition of this Order.
I agree that I have been given a copy of this Order.
First Surety: [signature of first surety]
Name: [insert full name of first surety]
Address: [insert address of first surety]
Second Surety: [insert signature of second surety]
Name: [insert full name of second surety]
Address: [insert address of second surety]

* omit if inapplicable.