Coulthard v Police No. Scgrg-99-278 Judgment No. S160

[1999] SASC 160

COULTHARD v POLICE

[1999] SASC 160
1 MARTIN J. (Ex tempore)             This is an appeal against orders made in the Port Augusta Magistrates Court on 9 March 1999 that the appellant serve a the total of seven days imprisonment, for failing to carry out periods of community service in accordance with previous court orders.  The single ground of appeal is that in exercising the discretion to direct service of that period, the magistrate failed adequately to take into account the personal circumstances of the appellant. 
2 By letter of 25 March 1999, the magistrate has properly drawn to the attention of the court some difficulties and misunderstandings that necessitate a brief recitation of the history of these matters.
3 There were two applications before the magistrate pursuant to s71 of the Criminal Law (Sentencing) Act 1988, (the "Sentencing Act") alleging non-compliance with previous orders.
4 The first application dated 10 July 1996 concerned an order made on 18 March 1996.  The appellant had been charged with a breach of a community service order by failing to complete any of the 75 hours ordered on 3 April 1995 by the Port Augusta Magistrates Court.  According to the application, on 18 March 1996, the court ordered that the appellant complete the outstanding 75 hours within three months, but as at 10 July 1996, she had only completed 27.25 hours.  The current application related a brief history of communication with the appellant concerning her failure to serve the hours and the fact that on 4 June 1996 she was advised of her suspension from the community service program.  
5 Subsequently, the appellant provided a letter from her doctor dated 11 June 1996 stating she had been unable to work for the period 12 to 31 May 1996.  According to the community service officer who swore an affidavit in support of the application, the appellant had failed to avail herself of the opportunity to complete a previously breached order and, apart from the period 12 to 31 May, no evidence to support her claim that various external factors had prevented her from working had been produced.  The officer expressed the view that the appellant is not a suitable subject for community service. 
6 In respect of this failure to carry out 47.75 community service hours, the magistrate ordered that the appellant undertake six days imprisonment to be served concurrently with the order in respect of the other failure. 
7 The second application was dated 13 May 1997.  It was again based upon a failure to carry out hours of community service that related to a previously breached order.  On 9 January 1997, the appellant was convicted of failing to complete community service orders that had previously been imposed.  The order for the completion of 58 hours of such service was extended for a period of three months from 9 January 1997.  It was a term of the order that until such time as the working of the required number of hours had finished, the appellant was to obey the lawful directions of the assigned community service officer. 
8 The community correctional officer who swore the affidavit in support of the current application related a history of non-compliance and failure to make contact when requested.  By 21 April 1997, over three months after the extension had been granted on 9 January 1997, the appellant had reported only once for work on 20 February 1997, when she worked seven hours.  A letter of suspension from the program was sent to her last known address on 23 April 1997.
9 The magistrate directed that the appellant serve seven days imprisonment for failing to carry out the 51 days of community service.  As mentioned, the other six days were to be served concurrently with this seven day period. 
10 Over a lengthy period, the appellant has had ample opportunity to comply with the orders or produce evidence of her inability to do so.  She has persistently disregarded the orders and failed to respond to the previous leniency extended to her.
11 On this appeal, counsel for the appellant has emphasised the appellant's unfortunate personal circumstances and submitted that the magistrate overlooked these circumstances and failed to properly consider the provisions of s71(1) of the Sentencing Act. In the letter of 25 March 1999, to which I have already referred, the magistrate took the opportunity of providing a report as to his approach to this matter. It is clear from that report that he took into account all the relevant matters. Even without the benefit of that report, I would not have doubted that the magistrate clearly considered all the relevant circumstances. In particular, there is no basis for the proposition contained in the ground of appeal that his Honour failed adequately to take into account the personal circumstances of the appellant or the matters to which he was required to address his attention pursuant to s71(1) of the Sentencing Act.
12 In his sentencing remarks, the magistrate observed that he is always prepared to allow people another chance, particularly when a reasonable explanation is available.  He correctly observed that the defendant had, on a number of occasions, not complied and been given extensions and fair treatment by the community services officers to whom she was assigned.  Notwithstanding that treatment, she continued to fail to comply with the orders. 
13 In his report, the magistrate indicates that he did not consider the failure to comply with either order was trivial or that there were proper grounds upon which the failure should be excused. Those are the criteria referred to in s71(7). Having arrived at that decision, the magistrate ordered that the sentences run concurrently, an order which he regarded as a "significant concession".
14 In my opinion, there is no basis for interfering with the exercise of his Honour's discretion.  Unfortunate as it obviously is to require this appellant to serve even a short period of imprisonment, subject to the following legal difficulty in respect of one application, the magistrate's decision was plainly correct.
15 The one matter of concern is the issue that his Honour properly brought to the attention of this court in his letter of 25 March 1999. It relates to the second of the applications, dated 2 May 1997. The application was said to be based on a breach of an order made on 9 January 1997. The application before the magistrate included a copy of the notice that had been sent to the appellant after the order was made on 9 January 1997. The notice was headed "Notice to confirm the terms of a Community Service Order made by a court" and advised the appellant that the order was made on an application for enforcement of a breached bond pursuant to s71(1)(a)(i) of the Sentencing Act. She was advised that orders were made extending the time for completion of the Community Service Order by three months and that she perform 58 hours of community service within three months from the date of the order. The notice also advised that until such time as working the required hours was finished, she was to obey the lawful directions of the Community Service Officer assigned to her.
16 It appears that the notice sent to the appellant in January 1997 was incorrect.  The notice was prepared on the basis that the breach was a breach of a simple Community Service Order.  The original order, however, made on 3 April 1995, was part of a bond granted when a sentence of imprisonment was suspended.  The appellant had been convicted of assaulting police.  On 3 April 1995, a sentence of two months imprisonment was imposed but suspended upon the appellant entering into a bond for a period of two years in the amount of $200.  It was a condition of the bond that the appellant perform 100 hours of community service within six months of the date of the bond and that until she completed those required hours she obey the lawful directions of the Community Service Officer assigned to her. 
17 The appellant served only 42 hours.  The complaint was, therefore, that she had breached the terms of the bond.  When the magistrate on 9 January 1997 made the order extending the period for completion of the community service by three months, it amounted to a variation of the original bond into which the appellant had entered upon suspension of the sentence.  By reason of a misunderstanding within the court, the appellant was not asked to sign an amended bond. 
18 In these circumstances, while the respondent submits that the issue of jurisdiction settles the appeal, the respondent has in essence properly conceded two matters which mean the appeal in respect of the second order based on the application dated 13 May 1997 must succeed. First, it is apparent that the appellant did not enter into a new bond. Secondly, the magistrate acted without jurisdiction. He purported to act under s71 of the Sentencing Act which relates solely to enforcing Community Service Orders. The enforcement of bonds is dealt with in s57 and s58.
19 In respect of the order based on the application dated 10 July 1996 that the appellant served six days imprisonment, the appeal is dismissed. 
20 As to the order based on the application dated 13 May 1997 that the appellant serve seven days currently with the six days, the appeal is allowed and the order is set aside.  In my opinion, no further action should be taken against the appellant with respect to that particular matter.