Commonwealth Director of Public Prosecutions v Cole

[2005] SASC 9

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v COLE

Judgment of The Honourable Justice Anderson

21 January 2005

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - RECOGNISANCES - BREACH

Respondent convicted of a number of counts of both obtaining a benefit not payable and making a false statement - Magistrate ordered the respondent to be released forthwith on entering into a recognisance to be of good behaviour under s20(1)(b) of the Crimes Act 1914 (Cth) - wrong form filled out - respondent signed a suspended sentence bond form under the Criminal Law (Sentencing) Act 1988 (SA) - respondent breached agreement to be of good character - appellant sought to enforce the recognisance - Magistrate dismissed the application on the grounds that the recognisance was technically flawed - held: breaching a bond carries the serious sanction of imprisonment, and it is therefore imperative that the consequences of breach are clear - the content of the form used created confusion as to the consequences of a breach - appeal dismissed.

Crimes Act 1914 (Cth) s20(1)(b), s20A, s16F(2)(a); Social Security Act 1991 (Cth) s1347(b), s1344(1)(a); Criminal Law (Sentencing) Act 1988 (SA) s38(3), s58(1); Crimes Regulations 1990 (Cth), referred to.
Mann v Yannacos (1977) 16 SASR 54, applied.
Edwards v Pregnell (1994) 74 A Crim R 509; Police v Duri (unreported, SASC, 18 December 1998) Judgment No S6999, discussed.
R v Hung [2001] NSWCCA 233, considered.

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v COLE
[2005] SASC 9

Magistrates Appeal

1. ANDERSON J      This is an appeal by the Commonwealth Director of Public Prosecutions from a decision of a Magistrate relating to false statements made by the respondent in relation to a claim for social security, which false statements are in breach of a recognisance the respondent entered into on 27 September 2001.

2. On 27 September 2001 the respondent pleaded guilty to twenty counts on a complaint relating to breaches of the Social Security Act 1991 (Cth). The Magistrate imposed one penalty. The respondent was convicted and imprisoned for six months, but pursuant to s20(1)(b) of the Crimes Act 1914 (Cth), the defendant was released forthwith upon entering into a recognisance in the sum of $10. A condition of the recognisance was that the defendant was ordered to be of good behaviour for a period of two years.

3. I set out hereunder a statement of agreed facts which were provided to the Magistrate:

   “1.On 27 September 2001 the defendant attended the Holden Hill Magistrates Court before Mr Vass SM.

   2.The defendant pleaded guilty to 13 counts of Obtain Benefit not Payable contrary to section 1347(b) of the Social Security Act 1991 and 6 counts of Make False Statement contrary to section 1344(1)(a) of the Social Security Act 1991.

   3.The penalty imposed by the Learned Sentencing Magistrate is set out on the back sheet of the Court file, a true copy of which is annexed hereto and marked with the letter “A” (“the order”).

   4.The defendant agreed to enter into a recognizance as provided by the terms of the order rather than immediately serve the sentence of 6 months imprisonment imposed.

   5.The Court staff at the Holden Hill Magistrates Court prepared, and the defendant signed, the document entitled “Suspended Sentence Bond” (“the bond”), a true copy of which is annexed hereto and marked with the letter “B”.

   6.Upon signing the bond the defendant believed the bond was the recognizance provided for in the order and the defendant was released by court staff in compliance with the terms of the order.

   7.The defendant has not been of good behaviour during the two year period following 27 September 2001.  In particular the defendant admits the offending alleged in paragraphs numbered 1 to 3 inclusive of the Information alleging the breach of recognisance.”

4. 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) Act 1988 (SA) (“the State Act”) rather than a form provided by schedule 3 of the Crimes Regulations 1990 (Cth).

5. The learned Magistrate appealed from was no doubt correct when he said at [3]:

   “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.”

6. In those circumstances there is a real temptation to say pragmatically that it does not matter what form was used because the defendant well knew that he had to be of good behaviour for two years, and furthermore that if he was not of good behaviour there would be a potential for serving a period of imprisonment of six months.

7. Indeed, if it was the State legislation which applied, he would serve a period of imprisonment of six months whereas, as was pointed out during argument, under s20A of the Crimes Act 1914, imprisonment was only one of six options.

8. The argument put by the appellant was that this essentially was a clerical mistake. The order was properly made, it was said, and the respondent well knew the consequences of breaching the bond. It was argued that that part of the document, that is, the document provided under the State Act which provided certain advice should not be regarded as conditions of the agreement. In any event, it was argued that the respondent was not mislead by any inaccuracy in the advice.

9. It was argued by the appellant that the terms of the bond contained all the essential conditions which were required to enable an agreement to be recorded, including the fact that the parties were identified, the offences were identified, the sentence of imprisonment was identified, the period of the bond was identified, the payment in default was identified, and finally the important condition, namely, to be of good behaviour, was clearly identified.

10. The respondent on the other hand argued that it was not a case where you could merely enforce a pragmatic result by saying that the form was in fact good enough.  The respondent argued that the whole nature and concept of a suspended sentence bond and a recognisance release order are quite different.  The differences were elaborated in both written and oral argument as follows:

    1A suspended sentence envisages that the sentence will not come into operation unless the conditions of the bond are breached. See s58(1) Criminal Law (Sentencing) Act 1988;

    2A recognisance release order envisages that the sentence will be served at least partly (if not wholly) in the community. See s16F(2)(a) Crimes Act 1914;

    3With a suspended sentence, if the conditions of the bond are complied with, the sentence will not be served at all because it is ‘extinguished’. See s38(3) Criminal Law (Sentencing) Act 1988;

    4With a recognisance release order, if the conditions of the recognisance are complied with, the sentence will have been served, albeit in part or in whole, in the community rather than in prison. See s16F(2)(a) Crimes Act 1914;

    5With a suspended sentence, if the conditions of the bond are not complied with an order must be made that the original sentence be carried into effect. See s58(1) Criminal Law (Sentencing) Act 1988;

    6With a recognisance release order, if the conditions of the recognisance are not complied with, an order may be made imposing a new sentence of imprisonment for a period equivalent to that not already served under the original sentence at the time of the release. See s20A Crimes Act 1914.

11. The respondent pointed to other jurisdictions where the courts have recognised that a recognisance release order is of a different nature to a suspended sentence - See Edwards v Pregnell (1994) 74 A Crim R 509 at 511, and R v Hung [2001] NSWCCA 233 at [12].

12. In the matter of Edwards v Pregnell, the Magistrate acted beyond jurisdiction in imposing a suspended sentence when he had no power to do that pursuant to the Commonwealth Legislation.  To that extent, it is different from the present situation where the Magistrate correctly made an order requiring the respondent to enter into a recognisance, but then on the clerical follow-up to that order, the wrong form was used.  In the second of the cases referred to, it was simply a mistake by a sentencing Judge in allowing part of a total sentence to be suspended when that was not an option under the Crimes Act.  The cases do, however, emphasise the difference between the provisions available under the Crimes Act for a recognisance release order and for a suspended sentence under the State legislation.

13. In Police v Duri (unreported, SASC, 18 December 1998) Judgment No S6999, Mullighan J was dealing with a bond to be of good behaviour and to obey all reasonable directions from a probation officer. The appellant in that case was in breach of a bond, and in discussing that bond, the learned Judge dealt with the powers of the Magistrate under s58 of the Criminal Law (Sentencing) Act. The learned Magistrate had purported to exercise the powers under s58(1)(c)(ii) whereas the only relevant power was pursuant to s58(1)(a).

14. The discussion by his Honour concerned the characterisation of the nature of a bond, and ultimately the Magistrate was found to have erred in dealing with the matter in the way which he did.  This decision serves to illustrate the technical nature of a bond, which of course is a relevant consideration here.

15. The second argument of the respondent is that because it has been held to be not appropriate to use State sentencing legislation to sentence for Federal offences, therefore it follows that it is not appropriate to use forms prescribed by State sentencing legislation.

16. It seems to me that any form could be adapted for use provided that it correctly spelt out the terms of the order.  The use of the form per se is not, in my opinion, a determining factor, but rather the content of the form.

17. 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.

18. The learned Magistrate said at [4]:

    “… 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 that there is no provision for reducing the period of imprisonment should he breach his recognisance.”

19. The Magistrate found, as he says, ‘with some reluctance’, that there was no breach of the recognisance which was entered into. 

20. The Magistrate said at [5]:

    “Mr Lutt in his defence outline of argument has 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, there is a more fundamental problem than that which arose in the decision to which he referred me.”

21. Mann v Yannacos is reported in (1977) 16 SASR 54. That was a case in which a Magistrate required a defendant to enter into a recognisance which recognisance did not correspond with the order made by the Magistrate and included an additional requirement, namely, to be of good behaviour. Again, the decision shows the strictness in which the terms of a bond must be specified. It is authority for the proposition that a bond cannot stand if it does not comply with the order of the court.

22. Therefore, also with some reluctance, I agree with the learned Magistrate in his reasoning, and I would dismiss the appeal for the reasons stated.