Dyer v Police No. Scgrg-97-1320 Judgment No. S6414

[1997] SASC 6414

DYER  v  POLICE

Magistrates Appeal
Criminal

Nyland J

This is an appeal against sentence.  The appellant appeared before a stipendiary magistrate in the Port Adelaide Magistrates Court on 12 September 1997 charged on two complaints. 

The first complaint alleged that on 8 December 1996 at Salisbury in the State of South Australia she had stolen after shave of a value of $40, the property of Harris Scarfe Limited, contrary to the provisions of s131 of the Criminal Law Consolidation Act 1935. The second complaint alleged two counts. The first alleged that on 23 December 1996 at Kilkenny in the said State she stole a toy and two t-shirts together to the value of $43.85, the property of John Martin’s Retailers Limited, contrary to s131 of the Criminal Law Consolidation Act 1935.

The second count alleged that on the same date and at the same place, being a person recently suspected by a member of the police force of committing the offence of larceny, she had given a false name and address, contrary to s 74a of the Summary Offences Act 1953.

At the same hearing, an application was made to the court for the enforcement of two breached bonds. On 28 March 1984, the appellant had appeared before a stipendiary magistrate in the Port Adelaide Magistrates Court charged with the offence that on 27 November 1992 at Kilkenny, she had stolen a variety of items which were the property of Venture Stores Ltd, contrary to s131 of the Criminal Law Consolidation Act 1935. She was convicted and sentenced to be imprisoned for a period of two months. The sentence was suspended upon the appellant entering into a bond in the sum of $600 for a period of 18 months, with conditions requiring her to be of good behaviour and to be under the supervision of a probation officer for a period of 18 months.

On 8 August 1996, the appellant appeared before a stipendiary magistrate sitting in the Magistrates Court at Port Adelaide on a charge that on 11 June 1991 at Whyalla, she had stolen a number of items which were the property of Coles Myer Limited, contrary to the provisions of s131 of the Criminal Law Consolidation Act 1935. She was convicted with respect to that matter and discharged upon entering into a bond in the sum of $300 for a period of 12 months on condition that she be of good behaviour and that she appear before a court for sentence if she failed during the term of the bond to comply with the condition thereof.

At the hearing before the magistrate on 12 September 1997, the appellant was represented by Mr Sloan of counsel.  The appellant pleaded guilty to all three charges before the court and admitted to breaching the two bonds.  The magistrate, after hearing submissions from the police prosecutor and Mr Sloan, made an order revoking the order for suspension of sentence made on 28 March 1994 and directed that the appellant serve the period of two months imprisonment with respect thereto.  He took no further action with respect to the bond entered into on 8 August 1996.  On the charge of larceny committed on 8 December 1996, he convicted the appellant without penalty and on the charge of larceny and giving a false name on 23 December 1997, he recorded convictions and sentenced the appellant to be imprisoned for a period of seven days cumulative upon the sentence of two months which the appellant was required to serve as a result of the revocation of the suspended sentence.

The learned magistrate in the course of his sentencing remarks referred to the submissions made by Mr Sloan and went on to say that he had -

"... no choice in this matter.  There is a discretion I can exercise but I can’t for the life of me find a reason to suspend or to continue the suspension of your bonds.  You have been given the benefit of two suspended sentences in the 1990’s, the latter of which you have breached and you have been given every opportunity to go straight and not offend, particularly in the way that gave rise to the suspended sentences in the first place but there is a limit to any court’s patience - your sins have caught up with you."

The appellant now argues that the sentence imposed by the magistrate was manifestly excessive, having regard to the circumstances of the offending, the period of time between the offences and the fact that the appellant had demonstrated the potential for rehabilitation.  Accordingly, the magistrate had fallen into error in concluding that his discretion was fettered and that he had no alternative but to impose an immediate custodial sentence.

In the course of the sentencing submissions, the police prosecutor recited the facts of the matter to the court.  He gave the magistrate particulars as to the appellant’s antecedents which were as follows:

"October 1995, the appellant was convicted of larceny and fined $50.

6 November 1992 the appellant was convicted of six counts of larceny which had occurred in 1990 to 1991.  The appellant was fined on two counts of larceny and imprisoned for two weeks on each remaining count which was suspended upon the appellant entering into a nine month good behaviour bond.

July 1993, the appellant was convicted of unlawful possession and was ordered to complete 75 hours of community service.

August 1993, the appellant was convicted of larceny committed on 27 November 1992.  The appellant was imprisoned for two months which was suspended upon the appellant entering into an 18 month good behaviour bond in the sum of $600.  This bond was entered into on 28 March 1994.

August 1993 an application was made for enforcement of a breached bond which was entered into on 6 November 1992.  The breach was found proved and the bond was extended for a period of nine months.

January 1995, the appellant was fined for a drug offence."

In addition, the prosecutor alleged the antecedents which were the subject of the two applications for enforcement of the breached bonds which were before the court.  The magistrate was also provided with a pre-sentence report which described the appellant as a 30 year old single mother who resided with her 10 year old daughter in Housing Trust accommodation at Burton.  The report gave particulars as to the appellant’s substance abuse which had commenced when she was aged about 23 years.  It mentioned that she was currently on the methadone program.  The report stated that she had been sentenced to community service and supervised bonds as a result of past offending and that she had failed to complete 75 hours of community service ordered in 1993 and was returned to court on two occasions with respect to that matter but subsequently completed it in December 1996. According to the report the appellant attributed the current offence to mixing with the wrong people whilst she was completing community work.

Mr Sloan made detailed submissions to the magistrate with respect to penalty.  In paragraph 11 of Mr Sloan’s affidavit, which I received on the hearing of this appeal, he said that the effect of those submissions were as follows:

"11.1 I submitted to the court that there were a number of features which the court could look to to see that there were genuine and positive signs as to the rehabilitation of the appellant notwithstanding the offences before the court.

11.2 It was submitted that whilst the appellant did have a significant history of offending, the offences before the court could be seen as isolated incidents which both occurred in December 1996.

11.3 It was submitted that at this time the appellant had unfortunately began (sic) using heroin again after coming into contact and mixing with the wrong people during the completion of a Community Service Order in 1996.  It was submitted that she was reintroduced to heroin by acquaintances also completing Community Service at that time.

11.4         It was submitted, however, that the use of heroin at this time was an isolated occurrence and that the appellant had been on the methadone program for a period of two years prior to this and had since returned to the program in February of 1997.

11.5 It was submitted that the use of heroin at this time, placed a significant financial strain upon the appellant.  It was submitted that the offences were committed at a time shortly before Christmas 1996 and given the appellant’s financial difficulties the appellant stole items which she was intending to utilise as gifts for her daughter and relatives for Christmas.

11.6 It was submitted that the appellant in recent times had demonstrated real prospects of rehabilitation given that there had been no offending of a similar nature at all and no offending of any substantive or significant nature since 1993 and that following the offences before the Court the appellant had remained offending free throughout the remainder of 1996 and all of 1997.  It was submitted that this in itself demonstrated the offending to be an isolated occurrence within the context of the appellant’s long term rehabilitation.

11.7 It was submitted to the Court that the bonds which were the subject of the Breach proceedings related to offences which in fact were committed on the 11th day of June 1991 and 27th day of November 1992.  It was submitted that no explanation could be given as to why these offences were so long in being finalised before the courts.  It was submitted that these offences actually predated the last of the dishonesty matters to which the appellant had been dealt with in 1993.  It was submitted that it was unfortunate that these matters were also not finalised at that time particularly given that the offence of the 27th of November 1992 carried with it a suspended sentence of two months imprisonment which was imposed on the 28th day of March 1994 and which was extended on the 8th day of August 1996 for the failure of the appellant to comply with the condition that she was to be under the supervision of a probation officer and obey the lawful directions of the probation officer to whom she was assigned.

11.8 It was submitted to the court that the appellant was first introduced to heroin approximately seven years ago whereupon she developed a heroin habit.  It was submitted that the road to rehabilitation for long term heroin users is not always a smooth one and whilst the appellant had slipped up during 1996 by using heroin again, and subsequently committing further offences, the appellant had now taken stock of the situation and had continued on with her long term rehabilitation by returning to the methadone program and remaining offending free since December of 1996.

11.9 It was submitted that the appellant was the primary care giver of her 10 year old daughter.  The appellant had been involved in relationships which were characterised by domestic violence and in fact the appellant had been involved in a further relationship in 1996, which was also characterised by domestic violence, but was not otherwise described in the pre-sentence report. It was submitted that the appellant had recently moved to Burton and was living in a much more stable environment away from the instabilities of violent relationships.  The appellant was heavily involved in her daughter’s schooling and was in fact coaching her daughter’s netball team and not playing netball as described in the pre-sentence report.

11.10 It was submitted that an immediate term of imprisonment would significantly impact upon the appellant’s self rehabilitation and particularly so given that she is the primary care giver of her 10 year old daughter.

11.11 It was submitted that this offending was a blemish upon the appellant’s long term rehabilitation which she demonstrated she was capable of from about 1993 until the current offending and since the current offending for all of 1997."

Mr Sloan invited the court to consider granting the appellant a Griffiths Remand to enable the appellant to further demonstrate to the court that the offending was an isolated incident within the context of her long term rehabilitation.  His Honour refused that application and stated that it was not appropriate in the circumstances.

The thrust of the argument presented by Mr Barnett, who appeared for the appellant on the hearing of this appeal was that the magistrate should have regarded the appellant’s offending in December 1996 as merely a "slip" rather than a return to her prior offending.  She had not committed an offence of dishonesty for a period of approximately four years.  She had commenced on the methadone program in 1994 and had remained on that program for a period of two years.  In December 1996 she was re-introduced to heroin as a result of being acquainted with people during her period of community service.  This led her back to her former lifestyle behaviour.  She had committed the two shoplifting offences in 1996 due to financial pressures occurring as a result of wanting to obtain Christmas presents for other people.  Mr Barnett submitted that the appellant should be given one more opportunity to demonstrate that she was continuing a process of rehabilitation and that a Griffiths Remand would have established that the offending was not a return to her former behaviour.

The powers of the court in relation to a breach of bond are contained in s58 of the Criminal Law (Sentencing) Act 1988, s58(1)(d) provides:

1. Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court -

...

(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."

Section 58(3), however, provides as follows:

"Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probation 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

1. if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year."

The approach to be taken by the court when considering whether there are proper grounds to exercise the failure to comply with a condition of choice was discussed by King CJ in R v Buckman .  In that case, King CJ observed at p304 that:

"There is clear a legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended.  A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life.  It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse in non-law-abiding ways.  The court will not lightly interfere with the ordinary consequence of a breach of the recognisance."

He went on to say (at p304):

"It is to be remembered that the sentence which is activated is the sentence for the original offence.  The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing."

In this case, the sentencing remarks of the magistrate are relatively brief.  It must be remembered, however, that they were ex tempore remarks delivered by an experienced magistrate in the course of what was undoubtedly a busy list.  His reference to his lack of discretion in this case in my view does not suggest any belief by him that his discretion was fettered.  Rather, that he was mindful of the comments of King CJ in R v Buckman (supra).

The magistrate was confronted by a person who had a long history of prior offending for crimes of a similar nature.  Although the appellant had not committed any offences of dishonesty for a period of about four years, she had not been completely offence free throughout that period given the drug offence for which she was convicted and fined in January 1995.  The appellant has had the advantage of considerable leniency in the past.  The sentence imposed with respect to the 1997 offences is extremely modest.  I do not think a Griffiths remand was appropriate in the circumstances of this case.  It must be borne in mind that in an appeal of this nature, the sentencing discretion is that of the primary sentencing court.  In my opinion, this case does not disclose any demonstrable error of fact or law on the part of the sentencing magistrate.  The sentence imposed cannot be described as unreasonable or plainly unjust.  It should also be borne in mind that the appellate court is not to interfere merely because it might have dealt with the matter differently.

In all of the circumstances I am not persuaded that the sentencing discretion has miscarried.  The appeal is therefore dismissed.