Coombs v Police - [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 CLR 70; Owen v South Australia (1996) 66 SASR 251; Bechwith v The Queen (1976) 135 CLR 569, considered.

COOMBS v POLICE
[2013] SASC 158
Magistrates Appeal: Criminal

SULAN J: This is an appeal against sentence. The defendant and appellant, Andrew Coombs, 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 community service order and ordered that the defendant serve 12 days’ imprisonment.
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.
On 6 April 2012, the defendant was arrested and remained in police custody until his appearance in the Berri Magistrates Court on 10 April 2012. On that day he appeared in custody and was represented by a duty solicitor, Ms Amelia Baker. It was now approximately six months after the community service order was made. The Court ordered that the community service order be varied to reduce the outstanding hours of community service to 100 hours, and to then convert the 100 hours to a term of imprisonment of 12 days, commencing on 10 April 2012. The defendant had already been in custody from 6 April 2012 until his appearance in Court, therefore making a total of six days effective imprisonment referrable to the community service order and enforcement proceedings. There are no sentencing remarks.
The effect of the Magistrate’s order was that, after having served the 12 days’ imprisonment, the defendant was subject to completing 100 hours of community service within a period of 18 months from 12 October 2011.
The appeal
Procedural fairness
The defendant submits that a number of errors caused the sentencing process to miscarry. The first complaint is that when he appeared before the Magistrate on 10 April 2012 for failing to comply with the community service order, he was not afforded procedural fairness in that he was not arraigned, was not asked if he admitted the breach and his explanation for the alleged breach was not conveyed to the Court.
By affidavit sworn on 15 August 2013, the defendant deposes that when he appeared in the Magistrates Court on 10 April 2012, the Community Corrections Officer informed the Magistrate that the defendant was unwilling to participate in community service. The defendant states that the Community Corrections Officer provided to the Court a letter from Corrections informing the defendant that they could facilitate the completion of his community service despite the injury to his leg which he sustained in a car accident. The defendant states that he never received that letter from Corrections. He says that the duty solicitor made some submissions to the Magistrate but “did not highlight key points regarding [the defendant] not completing community service because of [his] injury.” The defendant says that the Magistrate’s response was to the effect that the defendant had no intention of abiding the order even after Corrections was willing to accommodate his needs. He states that he was not asked if he admitted the breach.
In an affidavit sworn by the duty solicitor who attended upon the defendant on 10 April 2012, Ms Baker states that her notes in relation to her attendance upon the defendant are limited. She says that, as a duty solicitor, she is not allowed to finalise a matter that could result in an immediate term of imprisonment. She states that when taking instructions from the defendant she would have done so on the basis that she would apply for the defendant’s bail to be reinstated and for the matter to be finalised in due course. Ms Baker does not recall the dialogue in Court that led to the matter being finalised on that day.
The Certificate of Record on the court file relevantly bears the following endorsement, “PLEA: NO PLEA”. It is conceded by the Crown on that basis alone there is sufficient material before this Court to conclude that an irregularity has occurred and that the sentence should be set aside.
Before dealing with the consequences of setting aside the order, it is instructive to deal with the defendant’s further grounds of appeal.
Cancelling unperformed hours and issuing a warrant of commitment
The next complaint is that the Magistrate erred in cancelling 100 hours of the defendant’s community service and issuing a warrant of commitment for breach of the order. It is submitted that the court’s power to cancel hours of community service pursuant to 71(7)(b)(ii) of the Sentencing Act could only be done if the court refrains from issuing a warrant of commitment pursuant to s 71(5)(a) of the Act. It is contended that a court cannot do both. Section 71 of the Sentencing Act provides as follows:
71—Community service orders may be enforced by imprisonment
(1)Subject to this section, an order of a court or authorised officer requiring performance of community service is enforceable by imprisonment in default of compliance.
(2)    The term of imprisonment to be served in default of compliance will be—
(a)     a term calculated on the basis of one day for each eight hours of community service remaining to be performed under the order; or
(b)     six months,
whichever is the lesser.
(3)If it appears to the court, by evidence given on oath, that a person has failed to comply with an order requiring performance of community service, the court may—
(a)     issue a notice requiring the person to appear before the court at the time and place specified in the notice to show cause why a warrant of commitment should not be issued against the person for the default; or
(b)     issue a warrant for the person's arrest.
(4)If a person fails to appear before the court as required by a notice issued under subsection (3), the court may issue a warrant for the person's arrest.
(5)If the court is satisfied that the person has failed to comply with the order requiring performance of community service—
(a)     the court may issue a warrant of commitment for the appropriate term of imprisonment fixed in accordance with subsection (2); but
(b)     if the person is a youth, the court may, instead of taking action under paragraph (a), make an order for home detention for a period fixed on the same basis.
(6)The court may, on issuing a warrant under subsection (5), direct that the imprisonment to which the person becomes liable by virtue of the warrant be cumulative on any other term of imprisonment being served, or to be served, by the person.
(7)Despite subsection (5), if the court is satisfied that the failure of a person to comply with an order requiring performance of community service was trivial or that there are proper grounds on which the failure should be excused, the court—
(a)     may refrain from issuing a warrant of commitment; and
(b)     may—
(i)extend the term of the order by such period, not exceeding six months, as the court thinks necessary for the purpose of enabling the person to perform the remaining hours of community service (if any);
(ii)if the order has expired, impose a further order, for a term not exceeding six months, requiring the person to perform the number of hours of community service unperformed under the previous order;
(iii)cancel the whole or a number of the unperformed hours of community service under the order.
(8)However, if the court is satisfied that the person who has failed to comply with the order requiring performance of community service has the means to pay a fine without the person or his or her dependants suffering hardship, the court may—
(a)     revoke the community service order; and
(b)     impose a fine not exceeding the maximum fine that may be imposed for the offence in respect of which the community service order was made (or, if the order was made in respect of more than one offence—the total of the maximum fines that may be imposed for the offences).
(9)In imposing a fine under subsection (8), the court must take into account the number of hours of community service (if any) that the person performed under the revoked order.
Counsel for the Crown concedes that the defendant’s construction of s 71 of the Act is correct and that the Magistrate’s approach discloses error. The Court can issue a warrant of commitment pursuant s 71(5) and order the defendant to serve the required period of imprisonment in lieu of completing the unperformed hours of community service. Alternatively, pursuant to s 71(7) the court can refrain from issuing a warrant for commitment, and take the alternative course described in the subsection. Accordingly, the Magistrate fell into error. The sentence was invalid. There is no power in the court to order that part of community service order be extinguished by serving a period of imprisonment and that the remaining period of community service be undertaken.
Was there a breach?
Having found two bases upon which the sentence imposed on 10 April 2012 should be set aside, it is necessary to address the antecedent question of whether there was a breach of the community service order. It is to be observed, however, that the above finding that the sentence should be set aside because there was no power to cancel unperformed hours of community service and issue a warrant of commitment is premised on the assumption that the defendant was in breach of the community service order.
The defendant submits that there was no breach. It is contended that the Court did not have power to make the part of the order requiring the defendant to obey the lawful directions of the community corrections officer or, alternatively, if there was power, that non-compliance with the part of the order is not amenable to enforcement by imprisonment under the Sentencing Act. In the further alternative, it is contended that the defendant was nonetheless not in breach of the order.
Determining the first of the defendant’s contentions – that a Court does not have power to make an order requiring a person to obey the lawful directions of the community corrections officer – involves determining the proper construction of the Sentencing Act. It is therefore appropriate to identify some relevant principles of statutory interpretation.
Principles of statutory construction
The adoption of a purposive construction is the usual or general approach to be taken to issues of statutory construction.[1] A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[1] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J).
In Palgo Holdings Pty Ltd v Gowans,[2] Kirby J made the following observations in relation to purposive construction:
... a purposive and not a literal approach[3] is the method of statutory construction that now prevails:[4]
“A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”
[2]    Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36].
[3]    Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290.
[4]    Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 (McHugh JA) approved in Bropho v Western Australia (1990) 171 CLR 1 at 20.
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question.[5] As Lord Diplock explained, in an extra-judicial comment,[6] “if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.[7]
[5]    Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.
[6]    Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641.
[7]    Lord Diplock, ‘The Courts as Legislators’ in Brian Harvey (ed), The Lawyer and Justice (1978) 263, 274; cited in Kingston (1987) 11 NSWLR 404 at 424.
The use of extrinsic materials was discussed by French CJ in K-Generation v Liquor Licensing Court:[8]
The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes.[9] In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.[10]
[8] K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501at [51]-[53].
[9] Gerhardy v Brown (1985) 159 CLR 70 at 104 (Mason J), 111 (Wilson J); Hoare v R (1989) 167 CLR 348 at 360-1.
[10] Owen v South Australia (1996) 66 SASR 251 at 256–7 (Cox J), 257 (Prior J); see also Nemer v Holloway (2003) 87 SASR 147 at 166–7 (Vanstone J); and generally, in relation to South Australia, Pearce, D C, and Geddes, R S, Statutory Interpretation in Australia (6th ed, 2006) at 70–1.

These principles apply equally to statutory provisions which create offences. It is only where the purposive approach fails to provide an unambiguous interpretation of a provision that a penal statute should be interpreted in favour of the defendant. In Beckwith v The Queen, Gibbs J observed: [11]
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences. … The rule is perhaps one of last resort.
[11] Beckwith v The Queen (1976) 135 CLR 569 at 576.
The enforcement provisions
It is convenient to commence with the power exercised by the Magistrate pursuant s 13 of The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA). That section provides as follows:
13—Court may decline to make order in certain circumstances
(1)     A court that records a conviction to which this Part applies may decline to make an order under this Part if satisfied that—
(a)     the making of the order would cause severe financial or physical hardship to a person; or
(b)     the offence occurred without the knowledge or consent of any person who was an owner of the motor vehicle at the time of the offence; or
(c)     the making of the order would significantly prejudice the rights of a credit provider; or
(d)     the motor vehicle the subject of the application is a motor vehicle referred to in section 11(c)(i) and has, since the date of the offence, been sold to a genuine purchaser or otherwise disposed of to a person who did not, at the time of the sale or disposal, know or have reason to suspect that the motor vehicle might be the subject of proceedings under this section.
(2)     If—
(a)     a court declines to make an order under this Part; and
(b)     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.
(3)An order to perform community service under subsection (2) must be dealt with and enforced as if it were a sentence of community service (and in any enforcement proceedings the court may exercise any power that it could exercise in relation to a sentence of community service).
[Emphasis is mine.]
Part 9 Division 4 of the Sentencing Act is concerned with enforcement of community service orders and other orders of a non-pecuniary nature. The sections therein provide for the powers of the court in respect of enforcement of community service orders by imprisonment, the procedure for the court being satisfied about such failure and the steps to be taken to bring a person allegedly in default before the court including by warrant for the person’s arrest or issuing a notice requiring a person to appear. Section 56(1) of the Sentencing Act provides that “Proceedings for enforcement of a sentence may not be commenced except under and in accordance with this Act”. The definition of “sentence” in s 3(1) includes “the making of any other order or direction affecting penalty” which is broad enough to encapsulate a community service order and a term of imprisonment fixed in accordance with s 71(2).
Part 6 of the Sentencing Act deals with a court’s powers with respect to community service and supervision. Section 46 provides:
46—Ancillary orders for supervision
A court may, in addition to sentencing a defendant to community service, order that the defendant be under the supervision of a community corrections officer for the duration of the sentence and make such other orders as the court thinks necessary for securing compliance with this Part.”
Section 47 provides for special provisions relating to community service. It appears in the following terms:
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:
(a)the court must specify the number of hours of community service to be performed by the person to whom the sentence or bond relates, being not less than 16 or more than 320; and
(b)the court must not specify a number of hours of community service to be performed by a person who is already performing, or is liable to perform, community service, where the aggregate of that number and the number of hours previously specified would exceed 320; and
(c)the court must specify a period, not exceeding 18 months, within which the community service is to be performed; and
(d)the person is required to report to a specified place not later than two working days after the date of the order or bond unless, within that period, the person receives a notice from the CEO to the contrary; and
(e)the person is required to perform community service for not less than 4 hours each week and on such day, or days, as the community corrections officer to whom the person is assigned may direct; and
(f)the person may not, except in circumstances approved by the Minister for Correctional Services, be required to perform community service for a continuous period exceeding eight hours; and
(g)if on any day a period of community service is to exceed four continuous hours, the next hour must be a meal break; and
(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
(i)the person may not be required to perform community service at a time that would cause him or her to offend against a rule of a religion that he or she practises; and
(j)the attendance of the person at any educational or recreational course of instruction approved by the Minister for Correctional Services will be taken to be performance of community service; and
(k)the person will not be remunerated for the performance of any community service pursuant to the order or bond; and
(l)the person must obey the lawful directions of the community corrections officer to whom he or she is assigned.
(2)This section does not apply in relation to the performance of community service by a youth
Order to obey lawful directions
In my view, there had been no breach of the part of the order requiring the defendant to perform 200 hours of community service within 18 months. The community service order was made on 21 November 2011 and less than six months had elapsed at the time the defendant was dealt with on 10 April 2012. Accordingly, the issue that falls to be determined is whether the court had power to order the defendant to obey the lawful directions of the community corrections officer and, if so, whether non-compliance with that order was enforceable by imprisonment pursuant to the Sentencing Act.
The defendant’s contention that the Court has no power to order a person whom is subject to a community service order to obey the lawful directions of a community corrections officer is premised on the submission that s 47 of the Sentencing Act covers the field and provides an exhaustive list with respect to the powers in relation to community service orders. I reject this submission. It ignores the interrelationship between sections 46 and 47 of the Act. If the defendant’s contention is correct, then s 46, which provides that a court may “make such other orders as it thinks necessary for securing compliance with this Part”, would have no work to do. While in some respects an order in these terms is superfluous given that a person subject to a community service order is required to do so in any event by operation of s 47(1)(l), it does not follow that making such an order is beyond power. Section 46 expressly gives a court power to make ancillary orders.
In the alternative, the defendant’s contention is that non-compliance with the lawful directions of a community corrections officer, is not punishable by imprisonment pursuant to the Sentencing Act. It is submitted that the enforcement powers in s 71 are applicable only where a person subject to a community service order fails to complete the stipulated hours once the time allowed within which to do so has elapsed. The defendant contends that the chapeau in s 71 - “requiring the performance of community service” - supports this interpretation. It is submitted that non-compliance with the directions of a community corrections officer can only be enforced pursuant to s 51 of the Sentencing Act. That section provides as follows:
51—Power of Minister in relation to default in performance of community service
(1)Where the Minister for Correctional Services is satisfied that a person who is required to perform community service has failed to obey a direction given by the community corrections officer to whom the person is assigned, the Minister, instead of commencing proceedings for breach of order or bond, may, by notice in writing served personally, increase the number of hours of community service that the person is required to perform.
(2)Where the Minister increases the hours of community service to be performed under an order or bond, the order or bond will be taken to have been amended accordingly.
(3)The number of hours of community service may not be increased under subsection (1) by more than 24 in aggregate, but such an increase may be made despite the fact that its effect is to increase the total number of hours to be performed beyond the normal limit.
(4)Where the Minister for Correctional Services is satisfied that a person has failed to comply with an order or bond requiring performance of community service, the Minister may, by notice in writing served personally or by post, suspend the operation of the order or the relevant condition of the bond until proceedings for breach of order or bond have been determined.
I consider that the powers conferred on the Minister by s 51 of the Act are coexistent with those available to a court under s 71. It is to be observed that the Minster also has power under s 50B to cancel unperformed hours of community service if satisfied of certain conditions. As stated earlier, a court also has power to cancel unperformed hours of community service under s 71(7)(b)(iii). I further reject the defendant’s submission that the enforcement provisions in s 71 of the Act only apply where a person is in default of an order to complete the required hours of community service once the specified time within which to complete the hours has elapsed. This interpretation is inconsistent with the purpose of the Act which is to “to consolidate and amend the law relating to sentencing and the enforcement”.
A breach in these circumstances?
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.