Director of Public Prosecutions for the State of South Australia v Berry - [2019] SADC 48

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA v BERRY
[2019] SADC 48
Reasons for Decision of His Honour Judge Stretton
24 April 2019
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - OTHER MATTERS
The accused was convicted of the offence of performing an act likely to cause harm. On 6 April 2016 he was sentenced to a term of imprisonment suspended upon entering into a bond to be of good behavior subject to a number of further conditions. Mr Berry breached that bond on two occasions. On the first occasion the breach was excused. On the second occasion his bond was extended by 6 months.
The DPP applied on a third occasion for enforcement of the bond, on the basis that Mr Berry had failed on at least three further occasions to be of good behavior by continuing to consume illicit drugs.
Mr Berry contested the breach application on the basis that it was unlawful for him to have been directed to abstain from illicit drug use, the breaches were not admitted, and that even if his conduct were proven it did not constitute a failure to be of good behavior.
Held:
1. It was lawful for Community Corrections to direct Mr Berry abstain from illicit drug use.
2. Mr Berry did consume illicit drugs on the alleged occasions.
3. His conduct amounted to a failure to be of good behavior.
Observations as to what will constitute a failure to be of good behavior in these circumstances.
Criminal Law (Sentencing) Act 1988 (SA) s 50; Sentencing Act 2017 (SA) s 108, applied.
Higgins v Goldfinch (1981) 26 SASR 364, considered.

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA v BERRY
[2019] SADC 48

This is an application to establish that a bond entered into by Michael Christopher Berry in the District Court of South Australia on 6 April 2016 has been breached. It is alleged that Mr Berry has failed to observe the conditions of the bond, by consuming illicit substances, including methamphetamine and cannabis, on 28 June 2018, 30 July 2018 and 5 March 2019.
Mr Berry contends that the drug samples were taken unlawfully and in any event, that consuming illicit substances did not breach a condition of his bond that he be of good behaviour. On 5 April 2019 a hearing proceeded before me to determine the application.
Background
On 5 February 2015, Mr Berry committed the offence of performing an aggravated act likely to cause harm. On that day he drove his motorbike at a police officer who was attempting to apprehend him in a shopping centre at Smithfield Plains. He struck the officer on the left leg, upper right thigh, and left arm, dragging him for two to three metres before the officer was able to topple the bike over, pin Mr Berry to the ground, and place him under arrest.
In sentencing submissions for that offence, counsel tendered a report by a psychologist, Dr Fugler setting out a history of excessive drug and alcohol use that Dr Fugler concluded had impeded Mr Berry’s psychological functioning over time. Dr Fugler observed accompanying tendencies of paranoid ideation, distrust of the police and difficulty with impulse control. At that time, Mr Berry had some previous offending relating to the use of motor vehicles, including driving dangerously to cause police pursuit, driving with excess blood alcohol, and firearms and ammunition offending. Mr Berry’s Counsel told the sentencing judge that Mr Berry had taken active steps to rehabilitate himself and cease drug and alcohol use and, on that basis, the judge was persuaded to suspend the 18-month term of imprisonment on a bond to be of good behaviour. That bond also included a condition that Mr Berry obey lawful directions given by the Community Corrections Officer to whom he was assigned during the period of supervision. He was also disqualified from holding or obtaining a driver’s licence for a period of five years. That sentence was imposed on 6 April 2016.
On 8 April 2016 Mr Berry first reported for supervision in compliance with his bond obligations. He was allocated to a supervisor several days later. On 11 September 2017, Mr Berry was reported for a number of offences and was subsequently brought back before this Court on an application to breach his bond. The offences included unlicensed driving, contravening a defect notice, driving with a defaced numberplate and possessing controlled drugs. On 24 October 2017 her Honour Judge David had regard to the fact that those offences were “considerably less serious” than the original offending and excused the breaches, refraining from revoking the bond and ordering that the underlying sentence be served. Judge David said:
Mr Berry, you should understand that you have had your chance and should you commit any further offending or not comply with any condition of your bond, you will be hard-pressed to convince any court to again excuse your breaches. Do you understand?
Around that time his Community Corrections Officer Ms Chamberlain assessed Mr Berry and identified drug use as a significant factor in his offending, and that accordingly cessation of drug use was an important criminogenic need. Accordingly on 14 September 2017, Mr Berry was provided a formal written direction by Ms Chamberlain, requiring him to abstain from illicit drug use and undertake random drug testing as directed. Between that date and 22 January 2018, on two occasions Mr Berry was subjected to random drug testing which returned positive for cannabis, amphetamine, and methamphetamine use.
As a result, Mr Berry was brought back before the Court on a second occasion on a further application to breach his bond. The breach was admitted and on 26 April 2018, his Counsel, Ms Demertzis explained that the reason for the breaches was Mr Berry’s ongoing drug problem. She said that he had now completely ceased use of methamphetamine. Ms Demertzis explained that Mr Berry had been, through his general practitioner Dr Ng, referred under a Mental Health Care Plan to a psychologist at the Northern Health Network. At that time he had had three consultations.
On the basis of those submissions, his Honour Judge Millsteed extended the bond for six months. He informed Mr Berry that he needed to understand that he must comply with the directions given to him by his Community Corrections Officer and that it was imperative that he submit to regular drug testing. His Honour went on to inform Mr Berry that if he returned positive results in the future he was at grave risk of serving the sentence of imprisonment.
The current application to breach Mr Berry’s bond
On 28 June 2018, 30 July 2018, 11 October 2018 and 5 March 2019, tendered pathology results and the affidavit of Ms Chamberlain suggest that Mr Berry returned positive results on each occasion for a number of illicit substances including methamphetamine and cannabis.[1]
[1] Exhibit P1.
It is also suggested by that material that Mr Berry failed to attend for supervision on a number of occasions, including 7 May 2018, 23 May 2018, 24 July 2018, and 8 October 2018. The failure to attend on 7 May and 23 May meant that scheduled drug testing could not occur on those occasions.[2]
[2] T17, 4 April 2019.
Accordingly, the DPP has made a third application to enforce Mr Berry’s bond. The application alleges that Mr Berry failed to be of good behaviour by consuming methylamphetamine and cannabis on 28 June 2018, 30 July 2018 and 5 March 2019.[3]
[3] Application filed 22 March 2019, tendered as Exhibit P1.
On this occasion the breaches are not admitted. Accordingly the prosecution bears the onus of proving beyond reasonable doubt that Mr Berry has breached his bond.
Mr Berry contests the application on the basis outlined by his Counsel that:
1The prosecution is put to proof in relation to non-compliance.
2Obtaining of the samples which gave rise to the positive tests was unlawful and therefore should be excluded from evidence.
3The breaching conduct does not amount to bad behaviour.
The hearing
The matter was run in an efficient and collaborative way by counsel.
The application together with all supporting documentary evidence was tendered by consent, together with Mr Berry’s case notes and other formal documentation. None of this material was contested. Mr Berry’s supervising Correctional Officer gave evidence on oath. Her evidence was not contested. Mr Berry gave no evidence.[4]
[4] No adverse inference arises whatsoever thereby.
Having regard to the tendered pharmacological reports drawn together by Ms Chamberlain, her evidence on oath and the totality of the circumstances, the Court finds the positive urinalysis tests proven beyond reasonable doubt.
Ms Chamberlain set out Mr Berry’s history of supervision and the directions he was given in detail in her affidavit and her sworn evidence. That material was not disputed in cross-examination nor contradicted by any other evidence. The Court finds on the basis of Ms Chamberlain’s evidence and the tendered material, the fact of the directions to abstain from illicit drugs and the non‑attendances proved.
The defence also challenges the lawfulness of a Community Corrections Officer giving Mr Berry a direction to abstain from drug use and be subject to drug or alcohol testing.
At the time of Mr Berry’s sentence s 50 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) provided:
50—Community corrections officer to give reasonable directions
(1)     A community corrections officer responsible for supervising a person—
(aa)   must give reasonable directions to the person requiring the person to report to the officer on a regular basis; and
(a)     may give reasonable directions to the person—
(ii)requiring the person to notify the officer of any change in the person's place of residence or employment; or
(iv)requiring the person to reside, or not to reside, in any particular place or area or with any particular person; or
(v)requiring the person to take up, or not to take up, any particular employment, to be punctual in reporting to work or not to give up some particular employment; and
(b)     may give the person other directions of a kind authorised by the Minister for Correctional Services, either generally or in relation to that person.
(2)If the person is required to perform community service, the community corrections officer may also give reasonable directions to the person—
(a)     requiring the person to report to a community service centre or other place at certain times; or
(b)     requiring the person to perform certain projects or tasks as community service; or
(c)     requiring the person to undertake or participate in courses of instruction at a community service centre or other place; or
(d)     requiring the person to behave in a particular manner while undertaking community service.
This provision is now replicated by s 108 of the Sentencing Act 2017 (SA).
The Court notes that on 14 September 2016 pursuant to s 50(1)(b) of the Act abovementioned, the then Minister for Correctional Services formally authorised Community Corrections Officers to direct a person subject to their supervision to provide a biological sample for drug and/or alcohol testing where there is a reasonable suspicion that drugs or alcohol have been consumed, or where the use of drugs or alcohol have been assessed as a criminogenic risk factor relevant to the person’s offending behaviour.[5]
[5] Exhibit P4.
The Court also notes that on 18 June 2015 Ms Hayley Mills, Executive Director Community Corrections and Specialist Prisons, issued an Executive Director’s Instruction 04-15 to all Community Corrections staff that included the following:
When the courts have not issued an abstinence condition and in the case where drug use has been identified as a criminogenic need during the assessment period, the case manager should issue a direction and advise the offender of the following:
That they are issuing a reasonable direction that they must abstain from drug use. The offender should then be advised that a positive urinalysis may result in a breach being submitted to the courts. Positive urinalysis results should then be reported in the same way with the same degree of professional discretion as they would if an abstinence condition did exist.[6]
[6] Exhibit P3.
It is clear from s 50(1)(b)[7] of the Act that a Community Corrections Officer responsible for supervising a person may give that person directions of a kind generally authorised by the Minister for Correctional Services. It is clear from the structure of the legislation that such instructions may go beyond the conditions initially imposed by the bond, and beyond the topics already set out in s 50(1)(a).
[7] Now s 108(1)(c) of the Sentencing Act2017.
It is also clear from the Executive Director’s Instructions that a direction to abstain from drug use where drug use has been identified as a criminogenic need is consistent with the department’s policy.
Accordingly, the direction given to Mr Berry is prima facie a direction authorised by the Minister and consistent with the policy of the department.
Nonetheless, s 50[8] of the Act in my view limits the scope of the Minister’s authorisation to directions of a type that are objectively reasonable for the supervision of a person subject to the section.
[8] And s 108 in the Sentencing Act 2017.
Having said that, a direction to abstain from illicit drug use, possession of such drugs being itself a criminal offence, when a person on a bond to be of good behaviour is suspected of that use or where drug use has been assessed as a criminogenic factor, is in the Court’s view prima facie reasonable. The long experience of this court, also reflected in the dicta of numerous Court of Criminal Appeal judgments is that illicit drug use is very harmful. In particular methylamphetamine use is a significant factor in the commission of much of the crime that comes before the courts. Further, and especially in this case, continuing drug use so often both impedes rehabilitation, accompanies reoffending and perpetuates risk factors both to the individual and to the community they inhabit.
I conclude that it is lawful pursuant to s 50[9] of the Act to direct a person to abstain from illicit drug use where it is reasonable to do so, and that it was reasonable to do so in this case.
[9] And s 108 in the Sentencing Act 2017.
A failure to comply with such a direction is a failure to comply with the condition in a bond to obey the lawful directions of the assigned Community Corrections Officer.
In this matter, I find beyond reasonable doubt that:
1Mr Berry was given a lawful direction to abstain from illicit drug use.
2Mr Berry breached that direction on at least the three occasions alleged in the application.
The alleged breach in this matter is a failure to observe the conditions of the bond in failing to be of good behaviour by consuming illicit substances including cannabis and methylamphetamine on the dates alleged in the application.
The remaining issue is whether the proven conduct constitutes a failure to be of good behaviour. Defence counsel argue that mere drug use on those three occasions is not serious enough to constitute failing to be of good behaviour. In the court’s view, the nature of the drug use and whether it will constitute a departure from “good behaviour” will depend on both the context and the circumstances. See Higgins v Goldsmith (1981) 26 SASR at 364. For example, a single lapse on an isolated occasion when a person is beset by unusual pressure might well not be considered as a departure from the required overall “good behaviour”, particularly where drugs and drug use were not a factor in their offending nor was there a realistic risk of relapse into ongoing drug use or addiction. On the other hand, persistent drug use where such use is or has been associated with a person’s offending, and in ongoing defiance of lawful directions not to take illicit drugs may well constitute such a departure.
The conduct in this matter falls into the latter category, and is compounded by the fact that the refusal to stop taking illicit drugs has continued despite the clearest of warnings from this court that such conduct must stop. In doing so it has not been seriously disputed that on each occasion he undertook conduct that if charged would have amounted to the offence of possession of a controlled substance. But it is not the offence simpliciter that is the issue, it is the risk that this raises in the current case that his rehabilitation is being significantly impeded, with the accompanying increased risk of reoffending and the consequent potential harm to both himself and the community.
Conclusion
In the totality of the circumstances, I find that the prosecution has established beyond reasonable doubt that Mr Berry has breached the condition of his bond that he be of good behaviour. That condition was breached by virtue of Mr Berry consuming methylamphetamine and cannabis on or shortly before the dates he was drug tested, 28 June 2018, 30 July 2018, and 5 March 2019.