CRAIU v POLICE No. SCGRG-97-1646 Judgment No. S6553

[1998] SASC 6553

CRAIU V POLICE

Magistrates Appeal (Ex Tempore)

LANDER J

The appellant was charged that on 16 April 1997 he stole a section of irrigation pipe worth $40, the property of Remove All Rubbish Pty Ltd. 

On 31 May 1997 he was charged that with the intent to defraud he obtained $20 from Cash Converters by false pretences.  The second charge arose out of the appellant claiming to be the owner and pawning the irrigation pipe.   He pleaded guilty to both charges. 

On 13 May 1996 the appellant had been convicted of a number of offences including larceny, failure to cease loitering, offensive language and a number of road traffic offences.  In relation to all offences he was sentenced to be imprisoned for a term of three months, which was suspended on the condition that he enter into a bond to be of good behaviour for a period of 18 months and to perform community service of 240 hours within 12 months. 

The conditions of the bond were still operating at the time of the commission of the offences on 16 April 1997 and 31 May 1997. 

In the case of those offences the learned Magistrate imposed one penalty under s18A of the Criminal Law Sentencing Act and sentenced the appellant to an immediate term of imprisonment of three months, and ordered him to pay costs of $166 within five months.  The breach of the bond of 13 May 1996 having been admitted, it was ordered that the three months term of imprisonment for the earlier  offence be 'brought into effect', to use the magistrate's words, and served concurrently with the sentence imposed for the more recent offences. 

This is an appeal against the orders made by the learned Magistrate.  I think, although the Notice of Appeal is not clear, that the appellant complains about the sentence imposed in relation to the recent offences and the order revoking the suspension of the term of imprisonment imposed on 13 May 1996.  Ms Hicks, who appeared for the appellant, confirmed that her client sought the overturn of both orders on this appeal. 

The grounds of this appeal are that the learned Magistrate did not take into account the appellant's personal circumstances and that the sentence, in any event, is manifestly excessive.  There was no particular complaint about the powers exercised by the learned Magistrate in revoking the suspension of the sentence of imprisonment passed on 13 May 1996 but argument was put by Ms Hicks that his order in that regard was also wrong. 

The appellant was born on 7 March 1977, the eldest of three children.  His father deserted the family when the appellant was quite young.  His mother has supported the family on a supporting parent’s pension. 

He was educated at Paralowie High School but left school in 1992 when he was still in year 9.  He was then having learning difficulties of which he was ashamed.   However, since leaving school the appellant has undertaken a number of education programmes; obtaining certificates in various skills including fork lift operation, handling power tools, landscaping and fencing and has attended a course for pre-vocational youth business enterprises.  He has been employed for two and a half years and used his wages arising out of his employment for the maintenance of the family unit. 

He lost his job, through no fault of his own, shortly before he came before the Magistrate.  He then obtained employment with a crash repairer and lost that job when he was obliged to attend court.  He is presently employed through Prestige Trojan Recruitment.  He still lives at home and still contributes to the maintenance of the family. 

After he lost the job to which I have referred he became depressed about his lack of employment and became suicidal.  He attempted suicide on a number of occasions, the most recent being on 14 February 1997 and as a result of that attempt he was hospitalised.  He has been convicted of the previous offences to which I have referred, and to which I will make further reference.  He has also been convicted of other traffic offences which are not relevant to this matter. 

In January and February of 1994 whilst a juvenile he was found guilty, but released without conviction, on charges of larceny and robbery with violence.  I am told by Ms Hicks that the offence of robbery with violence arose out of taking a push bike from another boy when he was aged 15.   The suspended sentence of 13 May 1966 must have been primarily directed to the larceny offence.  The road traffic offences were not serious and ordinarily one would not have supposed that the offence of loitering and offensive language would give rise to a first time term of imprisonment of three months for a young man who had just turned 19.  The larceny offence was for stealing petrol of the value of $50.70, the property of Mobil. 

Without knowing much about the larceny offence and the other offences, a sentence of imprisonment of three months, albeit suspended for a first relatively minor dishonesty offence as an adult, appears harsh.  Apparently the appellant performed the 240 hours of the community service provided for as a condition of the bond.  He has apparently been of good behaviour for nearly 12 of the 18 months period of that bond. 

The goods which were the subject of these charges were found by the side of the road.  Apparently they were the product of some other person breaking and entering the premises of Remove All Rubbish.  There is no suggestion that the appellant was in any way involved in the break and enter of those premises.  His criminality consists of his failure to report the finding of the goods and to seek to ascertain the owner.  These offences were also of a less serious kind.  The appellant was frank and honest with the police.  He admitted that he could and should have tried to find the owner of the goods.  He pleaded guilty at the first available opportunity.  He has shown, in my opinion, true contrition and remorse. 

The learned Magistrate said that the recent offences were identical in principle to any other offence involving dishonesty.  Thus he said the previous conviction for stealing petrol, for which the appellant had received the three months prison sentence suspended, was not unlike the offence in question.  The learned Magistrate dealt with the circumstances of the recent offences.  He noted that the appellant found the black pipe, being the goods referred to, and:

“Without any compunction whatsoever and without making any enquiries to the police or anyone else, he took it to Cash Converters and there obtained $20 by lying to them that it was his personal property, causing Cash Converters to part with $20.”

The learned Magistrate went on to say:

“The defendant does not appear in court as a first offender.  In January 1994, when still a juvenile, he was dealt with for robbery with violence.  In February that same year he was convicted of larceny.  He was dealt with an offence of larceny in 1996, and here it is 1997 and dare I say he is still at it.  There comes a time when notwithstanding his age, enough is simply enough.  The community expects people to undertake to abide the conditions of their bond.

There is a mound of authorities that has fallen from the Supreme Court, including cases such as Leech v Coco and Buckman and numerous others.  I am not going to state (sic) to recite all of them.  The ratio of those cases is to the effect that when somebody breaches a bond, unless that person comes within the provisions of subss 3 and 4 of s58 referring to proper grounds upon which failure to comply with the conditions of the bond can be excused, or that the offence is trivial, or there are special circumstances justifying a reduction of penalty of imprisonment, then the bond which has been breached, ought to be brought into operation.  There was no excuse for the defendant's behaviour.  It was yet another example of his being a deliberate thief.  I cannot think of any other words that are appropriate.  In those circumstances, notwithstanding the submissions by learned counsel, I must impose a penalty of imprisonment.  He simply must stop this behaviour and hopefully such a penalty will bring home to him and others in the community who might be of a similar persuasion, that this sort of behaviour will not be tolerated.” 

I have some difficulty with the learned Magistrate's remarks.  First, the learned Magistrate implies that he believes that the appellant has committed other offences and goes on to say `And dare I say he is still at it'.  There was no reason to suppose that the appellant has committed any other offence at all.  Of course, he could only be sentenced on the matters before the learned Magistrate.  It would be wrong to suggest otherwise.  Secondly, the learned magistrate did not deal separately with the matters before him.  He has, it seems to me, lumped everything together and in that respect there is a risk of sentencing the appellant again in respect of previous conduct.  Of course, previous convictions and the bond were important and relevant to the sentence to be imposed, but they could not be used, as I believe they may have been, for the purpose of sentencing the appellant again.  In my opinion, the learned Magistrate erred in his approach to sentence in respect of the offences and I believe imposed a sentence which was, in the appellant's circumstances, manifestly excessive. 

The learned magistrate also revoked the suspension of the bond of 13 May 1996.  In doing so he had regard, so he said, to the provisions of s58(3) and (4), but, in having regard to those subsections, he appears not to have identified the separate roles that each of the subsections play in the scheme of s58. 

Section 58(3) and (4) provide:

“(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 on year.

(4)... 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;

(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.”

The two subsections are quite different.  Section 58(3) applies in circumstances where the court directs its attention to whether or not it will refrain from revoking the suspension.  Section 58(4) applies after the court has revoked the suspension and is designed to ameliorate the harshness of the revocation. 

The learned magistrate was obliged, it seems to me, to apply his mind to both s58(3) and s58(4) and logically to apply his mind to them as I have explained the different roles the sections perform. 

In my opinion he has erred in his approach to the application of s58(3).  It therefore follows that I should sentence the appellant again in respect of the offences of 16 April 1997 and 31 May 1997.  And it seems to me that I should apply my mind to whether or not I ought to revoke the bond of 13 May 1996. 

I will deal firstly with the bond.  The integrity of the sentencing option of suspending sentences will be undermined if the court does not require offenders to serve a period of imprisonment when they have failed to comply with the conditions of the bond which supports the suspension.  The system is even more likely to be undermined when the breach of the bond arises out of a failure to be of good behaviour and the commission of another offence.  That means that ordinarily it must result in the offender serving the original sentence and even more to reflect the later offence.  The legislation recognises there might be circumstances where the breach of the bond was so trivial it would be unjust to require the offender to serve the period of imprisonment.  If an offender cannot establish that the breach was trivial, the offender might still avoid having to serve the sentence of imprisonment if the offender can establish that there are proper grounds upon which the offender's failure to comply with the condition of the bond can be excused.  If the offender can establish that the failure to comply was trivial or that there are proper grounds, then the court will excuse a failure to comply and may refrain from revoking the suspension and may exercise any of the powers under s58(3)(b). 

The offences of 16 April 1997 and 31 May 1997 are almost the least serious circumstances giving rise to the offences for which he was charged.  The larceny was not premeditated but arose almost accidentally.  Whilst it may be too much to say that the offences were trivial, they were certainly minor.  I think to require the appellant to serve imprisonment; a young man who has suffered the disadvantages that this appellant has suffered; including his poor education; and who, notwithstanding those disadvantages and poor education, has been mainly employed and through his employment has supported his mother and siblings would be to inflict a disproportionate punishment upon him.  That is especially so in the circumstances of this case, where he has performed the obligations of community service.  Therefore, in my opinion, it would be appropriate to excuse the failure of the appellant to comply with the conditions of the bond and therefore refrain from revoking the suspension and I so order. 

I am entitled, however, in making that order, to extend the term of the bond supporting the suspension of the term of imprisonment or, if the bond has expired, require the appellant to enter into a further bond, the term of which must not exceed one year.  The bond has now expired, having expired in November of 1997.  It seems to me it would be appropriate to require the appellant to enter into a further bond to be of good behaviour for a period of 12 months. 

I turn then to the offences of 16 April 1997 and 31 May 1997.  Having regard to the circumstances of the appellant, it would be inappropriate to order that he serve a term of imprisonment for the reasons I have already given.  It would also be inappropriate to require him to pay a fine because his means are not such that I can be satisfied that he would be able to comply with the order.  Having regard to the order which I have made in relation to the bond of 13 May 1996, which I have extended, it would also be inappropriate to require him to enter into a further bond in relation to these later offences.  It seems to me the appropriate sentencing option in respect of the charges and convictions in relation to the matters of 16 April and 31 May 1997 is to require him to perform community service.  I therefore will order one penalty for the two offences and order that the appellant perform 120 hours of community service over a period of 12 months.  In making that order I have regard to the fact that the appellant presently works 38 hours a week.  He will be required, in respect of that community order, to report within two working days to the appropriate authority for the purpose of obtaining directions in relation to performance of the community service.