Coombs v Police

Case [2013] SASC 158

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

COOMBS v POLICE

[2013] SASC 158

Judgment of The Honourable Justice Sulan

18 October 2013

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY SERVICE ORDERS

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION

The appellant was subject to a community service order requiring him to perform 200 hours of community service within 18 months and obey lawful directions of a community corrections officer.  Following a purported breach of the order, a Magistrate reduced the outstanding hours to complete under the order and ordered that heserve 12 days’ imprisonment.  The appellant submits that the sentencing process miscarried on the basis that it was not established that he was in breach of the community service order.  He further contends that the orders made were beyond power.

Held:  Allowing the appeal.

(1)  It was conceded by the Crown that there was sufficient material before the Court to conclude that an irregularity occurred in that the appellant was not arraigned and that it was not established that he was in breach of the order.

(2) It was further conceded by the Crown that there was no power under the Criminal Law (Sentencing) Act 1988 (SA) to order that part of a community service order be extinguished by serving a period of imprisonment and that the remaining period of community service be undertaken.

(3) Section 46 of the Criminal Law (Sentencing) Act 1988 (SA) expressly confers on a court the power to make ancillary orders including an order that a person subject to a community service order obey the lawful directions of a community service order.

(4) Non-compliance with an ancillary order made in connection with a community service order is punishable by imprisonment pursuant to s 71 of the Criminal Law (Sentencing) Act 1988 (SA).

(5)  There was insufficient material before the Court to determine whether the appellant was in breach of the community service order and it was appropriate to remit the matter to the Magistrates Court for determination.

Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) s 12(1)(a)(iii), s 13; Criminal Law (Sentencing) Act 1988 (SA) s 3(1), s 46, s 47, s 56(1), s 71; Acts Interpretation Act 1915 s 22(1), referred to.
Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Fothergill v Monarch Airlines Ltd [1981] AC 251; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Bropho v Western Australia (1990) 171 CLR 1; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Inland Revenue Commissioners v Ayshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; Gerhardy v Brown (1985) 159…

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Coombs v Police [2013] SASC 158
Case
[2013] SASC 158
Decision Date

CaseChat Overview and Summary

The appellant in this case, Coombs, appeals against the decision of the Berri Magistrates Court, which found him in breach of a community service order and sentenced him to imprisonment. The appeal was heard by the Supreme Court of South Australia, which was required to consider several legal issues, including whether there was an irregularity in the procedure that led to the appellant's sentencing and whether the orders made were beyond the court's power. The court was also required to consider whether there was sufficient material before it to determine whether the appellant was in breach of the community service order.

The court found that there was an irregularity in the procedure in that it was not established that the appellant was in breach of the order, as he was not asked whether he admitted the breach before the Magistrate. The court also found that there was no power to cancel unperformed hours of community service and issue a warrant of commitment, as conceded by the Crown. However, the court rejected the appellant's submission that there was no power to make the order that he obey the lawful directions of a community service officer and that the order is not enforceable under s 71 of the Sentencing Act. The court found that there was insufficient material before it to determine whether, in these circumstances, the appellant was in breach of the community service order and that the matter should be remitted to the Magistrates Court for determination.

The court made the following orders: (1) the order made on 10 April 2012 should be set aside, and (2) the matter should be remitted to the Berri Magistrates Court. The Crown conceded that there was sufficient material before the Court to conclude that an irregularity occurred in that the appellant was not arraigned and that it was not established that he was in breach of the order. The Crown also conceded that there was no power under the Criminal Law (Sentencing) Act 1988 (SA) to order that part of a community service order be extinguished by serving a period of imprisonment and that the remaining period of community service be undertaken. The court found that Section 46 of the Criminal Law (Sentencing) Act 1988 (SA) expressly confers on a court the power to make ancillary orders including an order that a person subject to a community service order obey the lawful directions of a community service order. Non-compliance with an ancillary order made in connection with a community service order is punishable by imprisonment pursuant to s 71 of the Criminal Law (Sentencing) Act 1988 (SA). The court found that there was insufficient material before it to determine whether the appellant was in breach of the community service order and it was appropriate to remit the matter to the Magistrates Court for determination.

Orders

Orders of the court

Held: Allowing the appeal.

(1) It was conceded by the Crown that there was sufficient material before the Court to conclude that an irregularity occurred in that the appellant was not arraigned and that it was not established that he was in breach of the order.

(2) It was further conceded by the Crown that there was no power under the Criminal Law (Sentencing) Act 1988 (SA) to order that part of a community service order be extinguished by serving a period of imprisonment and that the remaining period of community service be undertaken.

(3) Section 46 of the Criminal Law (Sentencing) Act 1988 (SA) expressly confers on a court the power to make ancillary orders including an order that a person subject to a community service order obey the lawful directions of a community service order.

(4) Non-compliance with an ancillary order made in connection with a community service order is punishable by imprisonment pursuant to s 71 of the Criminal Law (Sentencing) Act 1988 (SA).

(5) There was insufficient material before the Court to determine whether the appellant was in breach of the community service order and it was appropriate to remit the matter to the Magistrates Court for determination.

Background

Background to the litigation

The defendant appeals the decision of the Magistrate. He contends that there was an irregularity in the procedure in that it was not established that he was in breach of the order. He contends that the orders made were beyond power.Background On 21 November 2011, the defendant was subject to an order, pursuant to s 12(1)(a)(iii) of the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA) (“the Forfeiture Act”) that his motor vehicle be forfeited to the Crown. Section 13 of that Act provides that if a court declines to make an order and the court is satisfied that it would be reasonably practicable for the convicted person to instead perform community service, the court must order the convicted person to perform not more than 240 hours of community service. Following evidence given on oath by the defendant, a magistrate ordered that the defendant perform 200 hours of community service within a period of 18 months and obey lawful directions of a community corrections officer (“the community service order”). The terms of the order were as follows:To perform 200 hours of community service within 18 months from the date of this order and, until such time as working the required number of hours has finished, to obey the lawful directions of the community service officer assigned. On 5 February 2012, less than three months into the 18 month period within which the defendant had to complete the 200 hours of community service, the manager of Case Management, Berri Community Corrections Centre, requested the Registrar of the Berri Magistrates Court to make such arrangements as necessary to have the defendant brought before the Court to be dealt with for non-compliance of the order, pursuant to s 71 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). In support of the request, the Community Corrections Officer to whom the defendant had been assigned swore an affidavit in which he stated that none of the hours of community service had been completed, and that he had sent letters to the defendant on 6 December 2011 and 13 January 2012, and the defendant had failed to contact the office, as directed. In his affidavit, the Community Corrections Officer stated that he had had contact with the defendant on 22 December 2012 and again on 27 January 2012 when he provided a doctor’s certificate. The doctor’s certificate did not state that the defendant was unable to undertake community service. The defendant was told that the Community Corrections Officer would accommodate the defendant undertaking that service. On 23 February 2012, the Registrar of the Court issued a warrant of apprehension for failure to comply with the community service order and cancelled the defendant’s right to be at liberty. The defendant was arrested on that day and released on police bail to appear in the Berri Magistrates Court on 2 April 2012. He failed to appear on that date and the Magistrate issued a warrant of apprehension, excluding police bail.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The defendant’s alternative contention in the event, and as I have found, that there was power to make the order that he obey the lawful directions of a community corrections officer and non-compliance with that order is punishable by imprisonment under s 71 of the Act, is that he was nonetheless not in breach of order. In his affidavit, he states that he did not receive the warning letters dated 7 December 2011 and 17 January 2012 relied on by the Manager of Berri Community Corrections to establish that he was in breach. He further states that a medical certificate he supplied to his community corrections officer exempted him from performing the community service. He believes that this was a different medical certificate to the one relied on by the Manager of Berri Community Corrections. There is unchallenged evidence that the defendant did not admit the breach before the Magistrate. These are matters that ought to be considered when exercising the powers conferred by s 71.Conclusion I am satisfied there was an irregularity in the sentencing process that led to the defendant being sentenced to a term of imprisonment for breaching the community service order. There is unchallenged evidence that the defendant was not asked whether he admitted the breach. The Court record evinces the error. Accordingly, the order made on 10 April 2012 should be set aside. While I am also satisfied that there was no power to cancel unperformed hours of community service pursuant to 71(7)(b)(ii) of the Sentencing Act and issue a warrant of commitment under s 71(7)(b)(ii), given that I am not satisfied that a factual breach of the community service order occurred, this finding is immaterial. I reject the defendant’s submission that there was no power to make the order on 21 November 2012 that he obey the lawful directions of a community corrections officer and that the order is not enforceable under s 71 of the Sentencing Act. In my view, however, there is insufficient material for this Court to determine whether, in these circumstances, the defendant was in breach of the community service order. The matter should be remitted to the Magistrates Court for determination. For these reasons, I make the following orders:1.The order made on 10 April 2012 be set aside.2. The matter be remitted to the Berri Magistrates Court.

Ratio Decidendi

Legal Principle Established

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