Duff v Police - [2015] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DUFF v POLICE
[2015] SASC 24
Reasons for Decision of The Honourable Justice Nicholson
24 February 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL
The appellant pleaded guilty to, and was convicted of, one count of theft contrary to section 134 of the Criminal Law Consolidation Act 1935, and was sentenced to two months imprisonment for that offending. However, the offending constituted a breach of a good behaviour bond that had been imposed for previous offending for which the appellant had been given a suspended sentence of five months and two weeks imprisonment. The Magistrate revoked the suspension, but exercised the discretion available to him under subsection 58(4) of the Criminal Law (Sentencing) Act 1988 to reduce the sentence of imprisonment to two months. That left the appellant, in total, with a sentence of imprisonment for four months.
The appellant appeals on the basis that the Magistrate erred in finding that the substantive offending was not “trivial”, and in failing to find proper grounds to excuse the breach of bond.
Held: The Appeal is dismissed. No error identified as to the Magistrate’s finding that the appellant’s offending was not, in all the circumstances, “trivial”, or as to the finding that no proper grounds exist for excusing the appellant’s breach of bond.
Criminal Law Consolidation 1935 s134; Criminal Law (Sentencing) Act 1988 s18A, s38, s58, s134; Offenders Probation Act 1913 s9, referred to.
R v Scott [2014] SASCFC 131; Walden v Hensler [1987] HCA 54, (1987) 163 CLR 561; Siviour-Ashman v Police [2003] SASC 29, (2003) 85 SASR 23; Mancini v Vallelonga (1981) 28 SASR 236; Verran v Roberts [1938] SASR 256; R v Buckman (1988) 47 SASR 303; House v The King [1936] HCA 40, (1936) 55 CLR 499; R v Pham [2003] SASC 386, considered.

DUFF v POLICE
[2015] SASC 24
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This in an appeal from a sentencing outcome ordered by a Magistrate after the appellant pleaded guilty to, and was convicted of, the offence of theft (in the nature of receiving stolen property) contrary to section 134 of the Criminal Law Consolidation 1935.
The appellant was sentenced to two months imprisonment after an allowance for the guilty plea. However, by committing the offence of theft the appellant breached the terms of a bond to be of good behaviour which supported a suspended prison sentence of five months and two weeks on account of previous offending. The Magistrate revoked the suspension and ordered the prison term to be served but exercised the discretion available under section 58(4) of the Criminal Law (Sentencing) Act 1988 to reduce the term of that sentence to two months. Having revoked the suspension, it was not open to the Magistrate to order other than that the two month sentence for the breaching offence be served.[1] The Magistrate ordered that this period of two months imprisonment be served cumulatively on the earlier (but now reduced) sentence of two months resulting in a total head sentence of four months imprisonment. Bail was granted pending an appeal to this Court.
[1] Criminal Law (Sentencing) Act, subsection 38(2).
The notice of appeal filed by the appellant records four grounds of appeal but, at the hearing of the appeal, grounds three and four were abandoned and ground one was amended without objection by the respondent. The two extant grounds of appeal are in the following terms.
1.The learned Magistrate erred in failing to find proper grounds and in failing to excuse the breach [of bond].
2. The learned Magistrate erred in finding the substantive offending was not trifling.
In essence, the appellant submits that, in all the circumstances, the Magistrate should have exercised the discretion available to him under section 58(3) of the Sentencing Act to excuse the breach of bond and that his Honour erred in not doing so. On the finding of any such error, the whole sentence would be set aside and it would be open to this Court when resentencing: to excuse the breach and refrain from revoking the suspended sentence; if thought fit, to extend the term of the bond; and to order that any term of imprisonment imposed for the theft offence also be suspended.
I propose to dismiss the appeal for the following reasons.
Circumstances of the offending
The appellant’s version of events, essentially conceded by the Crown and adopted by the Magistrate, was that at 9.30am on 13 January 2014 he was walking with his girlfriend in a reserve near her house and saw a man running. He then saw a laptop and an iPad on the ground. The appellant picked up the items and took them inside the house in which the girlfriend was living with her mother. Later that day he heard from his girlfriend’s mother that a neighbour’s house had been broken into and a laptop and an iPad had been stolen. Upon hearing this, the appellant hid both items inside the house.
As is canvassed briefly below, the appellant has some history with the police. It was his case, on appeal, that he only hid the items because he was concerned that the police would not believe he had simply found them. He was concerned that they would accuse him of, and perhaps charge him with, the breaking and entering (serious criminal trespass) of the neighbour’s property. On any analysis, the offence of theft, as now defined under section 134 of the Sentencing Act, was committed. The Magistrate made the following finding which was open on the evidence and is a finding with which I agree.[2]
You picked up the laptop and ipad that he had dropped and believed that they could have been stolen at the time. You returned to your girlfriend’s premises, and you heard when you were at those premises that a neighbour’s house had been broken into and laptop and Ipad were stolen and you hid the laptop and Ipad. By your plea you acknowledge that you formed the intention to permanently deprive the owner of that laptop and Ipad.
[2] Police v Duff, MCCHB-14-675, MCCHB-14-574, Remarks on Penalty, 10 December 2014 at [2].
Background circumstances
The appellant is 21 years of age. His offender history dates back to when he was 14 years old and primarily includes theft and other dishonesty based offences. In the Magistrates Court on 25 July 2013, the appellant pleaded guilty to and was convicted of a number of offences. These were committed when the appellant was no longer a youth. The offences included one count of assault committed on 13 December 2012, two counts of failure to comply with a bail agreement and two counts of theft committed in January 2013, one count of theft and one of unlawful possession committed on 29 April 2013 and a further count of theft committed on 10 May 2013.
The assault was objectively serious. It involved the appellant approaching another young man sitting in a shopping centre and punching him in the face with a closed fist without provocation. The various thefts were each relatively minor in the sense that they involved property of low value and were opportunistic. Nevertheless, the repeated nature of this conduct is plainly of concern and discloses a continuing pattern of behaviour as an adult similar to that by the appellant as a youth.
The Magistrate dealt with these matters pursuant to section 18A of the Sentencing Act and imposed the one penalty of imprisonment for a period of five months and two weeks, suspended upon the appellant agreeing to enter into a bond to be of good behaviour for 18 months.
However, it was only some six months or so later that the appellant committed the theft of the laptop and the iPad. As it happens, it was the same Magistrate who was called upon to sentence the appellant for this offence and to consider whether or not to revoke the suspended prison sentence that he had earlier ordered. The Magistrate also had to sentence the appellant for being in unlawful possession of a midi bike. However, this offence was committed before the bond was entered into. The Magistrate, in the circumstances, entered a conviction but no further penalty.
The appellant’s girlfriend, a co-offender with respect to the laptop and iPad theft, was dealt with in the Youth Court. She was ordered to attend a family conference without a conviction being recorded. Parity considerations do not apply. As Blue J (with whom Nicholson and Bampton JJ agreed) noted in R v Scott:[3]
The sentencing regime for youths under the Young Offenders Act cannot be directly compared with the sentencing regime for adults under the Criminal Law (Sentencing) Act 1988 (SA). Parity issues do not arise between a sentence imposed on an adult and a sentence imposed on a youth who are involved in joint offending.
Nevertheless, the appellant is only 21 years old and, as Blue J also pointed out, the emphasis given to rehabilitation does not cease to have any effect merely because a youth has turned 18 and is sentenced as an adult.
[3] [2014] SASCFC 131 at [18].
The appellant’s personal circumstances include the following. He began permanent part time work at an Adelaide nursery on 29 April 2014 and as at the time of the appeal was still engaged in that employment. In September and October 2014 his mother underwent two operations for liver and bowel cancer. She is receiving ongoing chemotherapy. During the period between the date of sentencing and the time of hearing this appeal, the mother’s condition deteriorated. Apparently, the cancer has spread to her lungs. During the hearing of the appeal, I received information to this effect from the bar table together with the terms of an email from a medical practitioner which was read onto the transcript without objection from the respondent.
The appellant plays a significant role in caring for his mother and assisting with the running of the household. He takes some responsibility for his 18 year old brother and 16 year old brother who still live at home. He also has two younger siblings, aged 6 and 4, who are being looked after by grandparents.
Was the theft a trivial offence?
According to subsection 58(1) of the Sentencing Act:
(1)Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
(a)     may, ...
(b)     may, ...
(c)     may, ...
(d)     if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
It is the conventional understanding that where a bond to be of good behaviour which supports a suspended prison sentence has been breached, the sentencing officer has no choice but to revoke the suspension and order that the sentence be carried into effect unless the circumstances can be said to fall within subsection 58(3).[4] That subsection provides:
(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— [thereafter follows a number of alternative possible orders falling short of ordering an immediate term of imprisonment to be served]
[4]    There is a further qualification. Even where a suspension is revoked there remains a discretion in limited circumstances, as prescribed by subsection 58(4), to reduce the length of the prison term to be served.
The appellant submits that the circumstances of the theft of the laptop and the iPad were such as to render the offence committed as trivial and that the Magistrate erred in not so finding. I disagree.
Whether or not an offence is trivial (or trifling)[5] is to be determined by having regard to the conduct which constitutes the offence as committed when considered in the context of its surrounding circumstances.[6] An offence will be trivial if it is of slight importance, insignificant or of little moment.[7] An offence which is a normal or typical example of its type, ordinarily, will not be trivial.[8] The notion of trivial or trifling is intended to be applied to or to accommodate the unusual or exceptional case.[9] Deliberate offending will only rarely be characterised as trivial.[10]
[5] The interchangeable term "trifling" is used in sections 15, 16 and 17 of the Sentencing Act.
[6]    Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 at 557 (Brennan J) and 595 (Dawson J).
[7]    Siviour-Ashman v Police [2003] SASC 29; (2003) 85 SASR 23.
[8]    Siviour-Ashman v Police at [25], Mancini v Vallelonga (1981) 28 SASR 236 at 239 (Mitchell J).
[9]    Verran v Roberts [1938] SASR 256 at 259-60 (Napier J); Mancini v Vallelonga at 239, Siviour-Ashman v Police at [25].
[10] Mancini v Vallelonga at 239.
I accept the submission of the appellant that the theft of the laptop and iPad was towards the low end of the scale of objective seriousness for offences of theft. Nevertheless, it is still to be considered a normal or typical example of the offence. The fact that it was theft by way of receiving does not make it otherwise. Under section 134 of the Criminal Law Consolidation Act, an act of receiving now qualifies as an offence of theft and is subject to the same maximum penalty. Further, the appellant’s hiding and retention of the laptop and iPad, in the circumstances, is not to be characterised as of slight importance, insignificant or of little moment. Importantly, the offence was committed only about six months after the appellant had been placed on a bond to be of good behaviour for multiple offending of the same type. The Magistrate did not err in failing to find the offence to be trivial.
Were there proper grounds not to revoke the suspension?
The appellant submitted that, even if the offending were not to be characterised as trivial, it was towards the low end of the scale of seriousness and that, in all of the circumstances, the Magistrate should have found proper grounds for not revoking the suspension.
In R v Buckman[11] King CJ explained the meaning of “proper grounds” as that term was employed in a progenitor provision[12] which, in material respects, was in the same terms as subsection 58(3)(a). His Honour’s explanation has been generally adopted as applicable to subsection 58(3)(a).
[The subsection] authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds on which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be quite a disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
In the present case it seems to me that there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated. It is not irrelevant, moreover, that the offence constituting that breach is of a quite different character from that for which the sentence was imposed.
[11] (1988) 47 SASR 303 at 304-305.
[12] Offenders Probation Act 1913, subsection 9(5).
The fact that the appellant has offended again with respect to the very type of offending that the suspended sentence was intended to deter, is a factor in favour of revocation and a factor that can limit the extent to which any lack of proportionality might otherwise be relied on to avoid revocation.[13]
[13] R v Pham [2003] SASC 386.
The Magistrate’s reasoning on this point was succinct. His Honour found that the breaching offence was not trivial and also found “there is nothing about the circumstances of this breaching offence which would excuse the breach”. His Honour had earlier said: that the appellant had been told, at the time that bond was entered into, that if he reoffended within the 18 month period he would have to serve the five months and two weeks; that the appellant had now reoffended; and that “the legislation that deals with these circumstances is pretty clear”. Whilst the Magistrate might have provided a little more detail as to his reasoning process I am satisfied that he applied the correct test.
In any event, the final outcome is not to be seen as markedly disproportionate to the gravity of the breaching offence, particularly given that the breaching offence was of the very same type committed on multiple occasions just six months or so before. A lenient approach was taken on that occasion which did not have the desired deterrent effect. It was well within the discretion of the Magistrate to revoke the suspension. No specific error of the type referred to in House v The King[14] has been identified.
[14] [1936] HCA 40; (1936) 55 CLR 499.
Even if it might be said that the Magistrate failed to give adequate reasons for refusing to find proper grounds or that the economy of his Honour’s reasons in this respect was indicative of error, I would not, in exercising the discretion afresh, have come to a different conclusion in this case.
The Magistrate proceeded to consider the difficult personal circumstances in which the appellant now finds himself, particularly having regard to his mother’s illness. These have come about since the appellant received the suspended sentence. As earlier mentioned, the mother’s circumstances have worsened since the most recent sentence was delivered. Such circumstances, ordinarily, are not relevant to the question of whether proper grounds exist to refuse to revoke a suspended sentence.[15] The Magistrate did not take them into account in this respect and no argument to the contrary was put by the appellant. However, the Magistrate did, quite properly, take them into account when considering the discretion available under subsection 58(4) of the Sentencing Act to reduce the length of the suspended prison sentence that he directed be served. There has been no challenge to the Magistrate’s exercise of discretion in this respect by either the appellant or the respondent. Having decided to revoke the suspension, the Magistrate reduced the term of imprisonment to be served from five months and two weeks to two months. This was justified in the circumstances and reflected a merciful approach.
[15] R v Buckman (1988) 47 SASR 303.
The appeal is dismissed. In the result, the total sentence of four months imprisonment to be served, as ordered by the Magistrate, is not to be disturbed. I will hear the parties on the question of any consequential orders that should be made.