Dittman v Police - [2006] SASC 133

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
DITTMAN v POLICE
[2006] SASC 133
Judgment of The Honourable Chief Justice Doyle (ex tempore)
4 May 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
Appellant pleaded guilty to charge of failing to comply with term or condition of bail agreement - Magistrate imposed sentence of 21 days' imprisonment - sentence suspended upon appellant entering into good behaviour bond for period of 12 months - appeal on grounds that sentence is manifestly excessive - appellant of very limited intellectual ability - appellant said to be at risk in adult prison system - consideration of likelihood of re-offending - consideration of effectiveness of deterrence - appeal allowed - sentence of three days' imprisonment imposed - sentence suspended upon appellant entering good behaviour bond for a period of two months.

DITTMAN v POLICE
[2006] SASC 133
Magistrates Appeal: Criminal

DOYLE CJ (ex tempore): The appellant is a young man 19 years of age. He pleaded guilty before a Magistrate to a charge of failing to comply with the term or condition of a bail agreement entered into on 20 September 2005 when he was granted police bail.
He had been in custody for four days. The Magistrate recorded a conviction and sentenced Mr Dittman to imprisonment for 21 days. He suspended the sentence upon Mr Dittman entering into a bond to be of good behaviour for a period of 12 months.
The appeal is on the grounds that the sentence is manifestly excessive. On the face of things the appeal might seem to have no prospects of success. Mr Dittman has a lengthy record of appearances before the Youth Court. Most matters are fairly minor, but his appearances include numerous breach of bail offences and some of the later offences are of moderate seriousness.
The pattern of offending is depressing, suggesting on its face that Mr Dittman will not learn or accept the limits that have to be accepted in society. The relevant bail condition was that Mr Dittman not be away from his home address between 9 am and 6 pm, a fairly common curfew condition. The condition was a reasonable one on its face for a young man with his record. However, it is of some relevance that later, without opposition, the curfew condition was lifted. I assume this was because of an acceptance of Mr Dittman’s personal circumstances, to which I will come in a moment.
The police found Mr Dittman in the parklands in the early hours of the morning. He admitted the breach. His explanation, not disputed, was that he had been in the city and found that he had no money to get home. He intended to sleep rough in the parklands as he had often done in the past.
As I have said, on those bare facts the Magistrate’s decision was to be expected, but there was substantial material before the Magistrate that required careful consideration. I will deal with it briefly.
Mr Dittman has very limited intellectual ability. He has been assessed as low in the retarded range. He has what was described as “survival level literacy” but not numeracy. It seems his comprehension level is lower than his reading age. He has a history of drug and alcohol abuse and of solvent abuse. He was described by a psychologist as “A physically immature thin youth who is responsive but stubborn and single minded”. He was also said to be “Relatively ignorant of his own emotions”, with “Next to no comprehension of the feelings of others and the effect of his behaviour on them”.
He has been offered a lot of help in the past, but without success. The psychologist commented that it is hard enough to find suitable programs, but even if they are found it is difficult to get him to attend. His immaturity and lack of insight suggest that programs are unlikely to change him, at least in the short term.
Mr Dittman is also said to be extremely vulnerable because of his various limitations. He is at risk in the adult prison system. Mr Dittman was under the guardianship of the Minister until he turned 18. The public advocate has appointed Mr Dittman’s mother and another as his joint guardians.
Mr Dittman’s case is complex and depressing. A lot has been done to help him, but so far with no real success. Nevertheless, he is legally responsible for his actions. And there is a high likelihood that he will continue to offend, and if granted bail, to breach bail conditions. I say this because of his circumstances which make me think that his own limitations make it likely that he will further breach bail conditions.
Sentencing principle requires the court to recognise Mr Dittman’s limitations and incapacities, and to recognise the fact that punishment will have virtually no deterrent effect having regard to his limited intellect. But the court also has to consider society’s protection. Sadly, if the day comes when Mr Dittman commits a serious offence, imprisonment may be the only response that is appropriate.
I can understand the frustration experienced by those who have to deal with Mr Dittman, and that is not a criticism of him. I can understand the frustration of the police officers who have to deal with Mr Dittman, to whom he appears to be fairly well-known and also the frustrations of others who have to deal with him.
In this case I consider that the Magistrate did err. Having regard to the circumstances of the breach and having regard to Mr Dittman’s personal circumstances the penalty is too heavy.
Indeed, there is every chance that Mr Dittman will fail to comply with the bond that the Magistrate imposed and would finish up having to serve the full 21 days. However, I understand the Magistrate’s difficulty in knowing what to do. I face the same difficulty. I agree with the Magistrate that some attempt at deterrence has to be made, even though I fear it will not work. Mr Dittman’s disabilities cannot purchase him immunity from the consequences of his actions, although the response to his actions has to be moderated by a recognition of his particular circumstances.
One certainly cannot treat Mr Dittman as one would treat an ordinary offender. But I cannot disregard the obligation that I have to try to deter him from further breaches of bail.
I consider that in all the circumstances a sentence of imprisonment of one week was an appropriate punishment. That allows for the plea of guilty. Mr Dittman has served four days imprisonment. In my opinion an appropriate sentence allowing for that is a sentence of three days imprisonment. Ordinarily, one would not impose such a short sentence of imprisonment. But, by saying that I do not mean that I am imposing a short term of imprisonment because of Mr Dittman’s disabilities. What I mean is, ordinarily the penalty would be a good deal greater and one would not be left looking at such a short term as three days. I think in this case it is appropriate to impose such a short term of imprisonment in the hope that it can be used by those who have to deal with Mr Dittman, to bring home to him there will be some consequences of his actions should he fail to comply with his bail agreement.
However, in the circumstances I consider it appropriate to suspend the sentence. Accordingly, I allow the appeal, I set aside the sentence imposed by the Magistrates Court. I order that the following sentence be substituted:
1. That a conviction be recorded.
2. That Mr Dittman be imprisoned for three days.
3. That the sentence be suspended upon Mr Dittman entering into a bond to be of good behaviour for a period of two months, the bond to be in the sum of $10.