Finn v Department of Correctional Services - [2012] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FINN v DEPARTMENT OF CORRECTIONAL SERVICES
[2012] SASC 88
Judgment of The Honourable Justice Blue
1 June 2012
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY SERVICE ORDERS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - PLEA AND STATEMENT OF DEFENCE - PLEA OF GUILTY - WHERE DEFENDANT NOT REPRESENTED
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - MATTERS OF PROCEDURAL FAIRNESS AND PROPRIETY
The appellant was ordered by a Magistrate to be imprisoned for 40 days for failure to comply with an order requiring him to perform 320 hours of community service. The appellant served 21 days imprisonment before being granted bail pending his appeal against the Magistrate’s orders.
Whether the Magistrate ought to have granted the appellant’s application for an adjournment to seek legal advice and representation – whether the Magistrate ought to have informed the appellant of his right to object, cross-examine and adduce evidence and make submissions – whether the Magistrate ought to have informed the appellant of the power to excuse a failure to comply – whether the Magistrate properly considered exercise of the power to excuse the failure to comply – whether the appellant ought to be excused for his failure to comply.
Held, allowing the appeal:
(1) the Magistrate failed to inform the appellant of his rights in relation to evidence and submissions on the substantive hearing and of the court’s power of excusal.
(2) the Magistrate erred in her consideration of the power of excusal.
(3) proper grounds existed for the failure to be excused.
Orders of the Magistrate set aside. Order made refraining from issuing a warrant of commitment, extending the term of the order made on 20 May 2011 and reducing the number of hours of community service to be performed to 152 hours, in accordance with time served by way of imprisonment.
Criminal Law (Sentencing) Act 1988 (SA) s 11, 64-71; Summary Offences Act 1953 (SA) s 15, 16, 17, referred to.
Caston v Police (2002) 132 A Crim R 11; Cooling v Steel (1971) 2 SASR 249; Stanford v Police [2006] SASC 143, applied.
R v Buckman (1987) 47 SASR 303, discussed.
Hodgins v Police [2008] SASC 176; R v Harvey [1996] SASC S5519; Stanitszki v Higgins (1994) 63 SASR 309, considered.

FINN v DEPARTMENT OF CORRECTIONAL SERVICES
[2012] SASC 88
Magistrates Appeal

BLUE J: The appellant Mr Finn was ordered by a Magistrate to be imprisoned for 40 days on the basis that the Magistrate was satisfied that he had failed to comply with an order requiring him to perform 320 hours of community service.[1]
[1] Criminal Law (Sentencing) Act 1988 (SA) s 71(5).
Mr Finn appeals against that order. The appeal raises the issues:
1.whether the Magistrate ought to have granted Mr Finn’s application for an adjournment to seek legal advice and representation;
2.how the Magistrate ought to have proceeded upon hearing and determining the section 71 application given that Mr Finn was not represented;
3.whether the Magistrate ought to have informed Mr Finn of the power to excuse a failure to comply;
4.whether the Magistrate properly considered exercise of the power to excuse the failure to comply; and
5.whether Mr Finn ought to have been excused for his failure to comply.
Background facts
Between October 2007 and September 2010, Mr Finn was fined a total of $7,004.98 as a result of the issue of expiation notices for vehicle offences and convictions of three offences involving the provision of false information.
On 20 May 2011, the Magistrates Court made an order pursuant to section 70I of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) revoking Mr Finn’s liability to pay the fines and ordering instead that he perform 320 hours of community service within 18 months.
On 16 June 2011, Mr Finn was required by his community correction officer to attend for community service at the local work base each Thursday commencing on 30 June 2011.
On 21 September 2011, the community correction officer lodged at the Elizabeth Magistrates Court a Report of Apparent Non-compliance. The alleged non-compliance comprised the failure by Mr Finn to attend for community service on six occasions, namely 30 June, 7 July, 14 July, 21 July, 4 August and 11 August 2011.
On 12 January 2012, the Elizabeth Magistrates Court issued a warrant for Mr Finn’s arrest[2] and he appeared before the Court on 17 January 2012. The matter was adjourned to 28 February 2012 for him to obtain legal advice.
[2] Criminal Law (Sentencing) Act 1988 (SA) s 71(3)(b).
On 28 February 2012, Mr Finn sought a further adjournment to obtain legal advice. The Magistrate made an order pursuant to section 71(5) that he be imprisoned for 40 days by reason of his failure to comply with the 20 May 2011 order.
On 16 March 2012, Mr Finn appealed. On 20 March 2012, having served 21 days imprisonment, he was granted bail pending the hearing and determination of the appeal.
The hearing before the Magistrate
There is no transcript of the hearing. I received without opposition two affidavits of Mr Finn and one affidavit of the correctional services courts unit officer who appeared on behalf of the Department. Neither deponent was cross‑examined.
Based upon the affidavits, the following occurred during the hearing:
1.Mr Finn informed the Magistrate that he was seeking an adjournment to apply for legal aid. He said that his application for legal aid had not been processed because he had not provided sufficient information about his finances.
2.The Magistrate asked Mr Finn about the community service. Mr Finn said that he had not undertaken it because he had obtained full-time employment not long after the order had been made.
3.The Magistrate asked the prosecuting officer to confirm that the full hours were outstanding and she did so.
4.The Magistrate asked the prosecuting officer about the reason why Mr Finn had not attended to perform community service. She confirmed that it was because of employment. She added that Mr Finn had not provided evidence of his employment to his community correction officer despite being asked for it.
5.The Magistrate asked the prosecuting officer to confirm that the community service order had been imposed in relation to fines and she did so.
6.Mr Finn told the Magistrate that, at the time of the breach, he could not do the community service because he was working six days a week. He said that he had since lost his job, that he had no income and could not pay the fines, but that he could now do the community service.
7.The Magistrate proceeded to deliver an ex tempore judgment.
There were some relatively minor differences between the versions of Mr Finn and the prosecuting officer. I proceed on the following basis.
1.The prosecuting officer deposed that, at the outset of the hearing, the Magistrate asked Mr Finn whether he had the information she had asked for and he said no. Mr Finn denied that this conversation occurred. I disregard this aspect because the Court file shows that Mr Finn had not previously appeared before that Magistrate on this matter and because, in any event, the prosecuting officer did not know what information was being referred to.
2.The prosecuting officer did not say in her affidavit that Mr Finn told the Magistrate that he could now do the community service. I have accepted that Mr Finn said this because it was objectively true, there was no reason for him not to say it and the prosecuting officer did not explicitly deny that Mr Finn said it.
3.Mr Finn and the prosecuting officer agreed that the Magistrate said at one point that it was a serious matter and that Mr Finn was not taking it seriously, but disagreed on the point at which this was said. I accept that it was said and do not need to find precisely when it was said.
In her ex tempore judgment, the Magistrate said:
I hear your explanation. I do not accept it as sufficient to excuse the breach. I find that the breach of the community service is made out. I regard this as a serious breach. You were given an order to perform these orders and then you went out and got full time employment and used that as a reason why you did not need to do your community service. There will be an order that you perform the equivalent days of imprisonment, that you acknowledge accompanied your obligation. It is enforceable by imprisonment. There will be an order for 40 days imprisonment.
The grounds of appeal
Refusal of application for adjournment
On an application pursuant to section 71 for enforcement of a community service order, the defendant should be warned of his or her potential liability to imprisonment and given the opportunity to seek legal advice.[3] In Stanford v Police,[4] Doyle CJ said:
This Court has said on many occasions that when a defendant is unrepresented, and particularly if imprisonment is a possibility, the defendant should be warned of that possibility and should be given an opportunity to get legal advice. Indeed, in a situation like the present case, the defendant should have been encouraged to get legal advice.
[3] Caston v Police [2002] SASC 222; (2002) 132 A Crim R 11 at [18]-[20] per Wicks J: Stanford v Police [2006] SASC 143 at [4]-[5] per Doyle CJ.
[4] [2006] SASC 143 at [4].
On the material before me, it appears and I find that Mr Finn had been aware on 17 January 2012 that he was facing a potential term of imprisonment and on that occasion he sought and was granted an adjournment for six weeks to seek legal advice. It also appears, and I find, that Mr Finn took no steps over that six week period to apply for legal aid. (In July 2011 he had applied for legal aid in respect of unrelated charges and had received a letter from the Legal Services Commission saying that his application could not be processed because the Commission required further details of a compensation payment which Mr Finn disclosed he had received some years previously.)
On the one hand, it is arguable that it was within the discretion of the Magistrate to refuse a further lengthy adjournment for the same purpose as the original adjournment if the Magistrate first established on inquiry that there was no possible issue as to Mr Finn’s breach of the order or as to excusal/variation/substitution under subsections 71(7) or (8).
On the other hand, upon establishing on inquiry that there was an issue as to possible excusal, it is arguable that the Magistrate ought at least to have given Mr Finn the opportunity to seek advice from the duty solicitor if not granted a substantive adjournment.
However, due to the course taken by the Magistrate to which I now turn, it is unnecessary to decide this question.
Obligations on hearing an unrepresented defendant
On the affidavits of both Mr Finn and the prosecuting officer, the Magistrate did not say that she was proceeding to a final hearing of the section 71 application or that she was refusing Mr Finn’s application for an adjournment.
Where a magistrate decides to refuse an adjournment and to proceed to a final hearing, it is the obligation of the magistrate to make that clear to the defendant. The magistrate should, in that event, undertake the hearing in the usual fashion, including dealing with any potential objections to affidavit evidence adduced by the prosecution, potential cross‑examination on such affidavit evidence, adducing of evidence by the defendant and submissions on the relevant issues. When a defendant is self represented, “the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding”.[5]
[5] Cooling v Steel (1971) 2 SASR 249 at 251 per Wells J applied in Caston v Police [2002] SASC 222; (2002) 132 A Crim R 11 at [20] per Wicks J.
In the present case, the Magistrate should have enquired of Mr Finn whether he objected to the tender of the community service officer’s affidavit, wished to cross-examine her or wished to adduce evidence himself.
The Magistrate ought also to have informed Mr Finn of the effect of subsection 71(7)[6] of the Act providing for excusal of the failure and enquired whether he wished to adduce evidence or make submissions in support of such an excusal.[7]
[6] On the material before the Magistrate it was apparent that no question of proceeding under section 71(8) arose.
[7] Stanford v Police [2006] SASC 143 at [6] per Doyle CJ.
On the material before me, Mr Finn was not made aware that the Magistrate was refusing an adjournment or undertaking a final hearing. He was not made aware of his rights in relation to evidence or submissions. He was not made aware of the provisions of subsection 71(7) of the Act. While there was and is no dispute that Mr Finn was in breach of the community service order, the question of excusal under subsection 71(7) was and is a live issue. It follows that the Magistrate erred in proceeding to hear and determine the matter in the way in which she did.
Magistrate’s approach to excusal
Mr Finn contends in the alternative that the Magistrate erred in her approach to the issue of excusal for the breach.
The Magistrate accepted Mr Finn’s statement to her that he obtained full‑time employment shortly after the orders and was employed at the time of the non-attendances to perform community service charged against him. The Magistrate’s finding on the question of excusal was as follows:
I hear your explanation. I do not accept it as sufficient to excuse the breach. … You were given an order to perform these orders and then you went out and got full-time employment and used that as a reason why you did not need to do your community service.
The Magistrate’s last sentence is ambiguous. If the Magistrate found that Mr Finn deliberately obtained employment to frustrate the community service order, there was no basis for that finding. Mr Finn had not said this to the Magistrate, the prosecuting officer had not contended that this was the position, and it had not been put to Mr Finn as an allegation.
On the other hand, if the Magistrate was merely narrating the fact that Mr Finn was explaining the reason why he had not performed his community service, it follows that the Magistrate did not address at all the merits of whether the employment constituted proper grounds on which the failure should be excused pursuant to subsection 71(7).
It follows that, however her reasons are construed, the Magistrate erred in concluding that Mr Finn should not be excused pursuant to subsection 71(7).
Conclusion
Because the hearing miscarried, and in any event the Magistrate’s reasoning on excusal was flawed, the appeal must be allowed and the Magistrate’s order set aside.
Rehearing
Both parties on appeal accepted that, if the order of the Magistrate is set aside, I have power to determine myself the section 71 application rather than remitting it to the Magistrates Court for rehearing.
In circumstances in which Mr Finn has now served 21 of the 40 days imprisonment imposed by the Magistrate’s order, and given the further delay which would be occasioned by a rehearing in the Magistrates Court and any subsequent appeal, it is preferable that I proceed to hear and determine the section 71 application myself.
For the purpose of that hearing, Mr Finn gave oral evidence before me and tendered a number of documents. He was cross‑examined by the Department, which also tendered documents. The evidence establishes the following facts.
1.Mr Finn commenced employment with a transport operator on 21 July 2011 and continued in that employment until 1 November 2011.
2.It was a term of Mr Finn’s employment that he report for work on Monday to Saturday and that he proceed to work on those days unless not required.
3. Over the course of his employment, Mr Finn usually did work six days a week. On six or seven weekdays and two or three Saturdays, he reported to work and was told that he could go home due to inclement weather or other reasons.
4.Mr Finn’s employment prevented his attending for community service on the last three of the occasions charged, namely 21 July, 4 August and 11 August 2011.
5.The reason why Mr Finn did not attend for community service on 14 July 2011 was that he was sick. His wife telephoned the Department on that day to inform it that he was sick. This is corroborated by the Department’s records, although they record “GF”, being presumably Mr Finn, rather than his wife making the phone call.
6.The reason why Mr Finn did not attend for community service on the first or second occasion (probably 7 July) was that he was being interviewed by his prospective employer for the employment which he subsequently obtained.
7.Mr Finn does not recall the reason why he did not attend for community service on the remaining occasion charged (probably 30 June).
Mr Finn contends that there are proper grounds on which his failure to comply with the community service order should be excused. He found his imprisonment for 21 days a sobering experience. He wishes to undertake and complete community service instead of completing the term of imprisonment imposed by the Magistrate.
Proper grounds for excusal
The first question is whether, on the evidence before me, there are “proper grounds on which the failure should be excused” within the meaning of subsection 71(7) of the Act.
The relevant provisions of section 71 are as follows:
71—Community service orders may be enforced by imprisonment
(1)Subject to this section, an order of a court or authorised officer requiring performance of community service is enforceable by imprisonment in default of compliance.
(2)The term of imprisonment to be served in default of compliance will be—
(a)a term calculated on the basis of one day for each eight hours of community    service remaining to be performed under the order; or
(b)six months,
whichever is lesser.
…
(5)If the court is satisfied that the person has failed to comply with the order requiring performance of community service—
(a)     the court may issue a warrant of commitment for the appropriate term of imprisonment fixed in accordance with subs (2); …
…
(7)Despite subsection (5), if the court is satisfied that the failure of a person to comply with an order requiring performance of community service was trivial or that there are proper grounds on which the failure should be excused, the court—
(a)     may refrain from issuing a warrant of commitment; and
(b)     may—
(i)extend the term of the order by such period, not exceeding six months, as the court thinks necessary for the purpose of enabling the person to perform the remaining hours of community service (if any);
(ii)if the order has expired, impose a further order, for a term not exceeding six months, requiring the person to perform the number of hours of community service unperformed under the previous order;
(iii)cancel the whole or a number of the unperformed hours of community service under the order.
(8)However, if the court is satisfied that the person's failure to comply with the order is excusable on the ground of the person's obligations to remunerated employment gained since the making of the order, and that the person has the means to pay a fine without the person or his or her dependants suffering hardship, the court may—
(a)     revoke the community service order; and
(b)     impose a fine not exceeding the maximum fine that may be imposed for the offence in respect of which the community service order was made (or, if the order was made in respect of more than one offence—the total of the maximum fines that may be imposed for the offences).

Subsection 71(8) indicates that remunerated employment gained since the making of the order is capable of comprising a ground on which a failure to comply should be excused under subsection 71(7). Read together, the effect of subsections (7) and (8) is that, if failure to comply is due to remunerated employment gained since the making of the order:
1.and if the person has the means to pay a fine without undue hardship, the court may impose a fine in lieu of the original community service;
2.in any event the court may refrain from imposing imprisonment and extend the period in which the community service is to be performed.
On the evidence before me, I am satisfied that Mr Finn’s failure to perform community service on and after 21 July 2011 was due to his obligations to remunerated employment gained since the making of the order and his failure to perform community service on 14 July 2011 was caused by his sickness and that there are proper grounds on which these failures should be excused.
In relation to Mr Finn’s failure to attend on 30 June and 7 July 2011, the position is less clear. This turns on the meaning of the phrase “there are proper grounds on which the failure should be excused”.
The consequences of excusal under subsections (7) and (8) vary. At one extreme, the court may cancel the unperformed hours of community service. At the other extreme, the person is still obliged to undertake the same number of hours (or to pay to an equivalent fine) and there is no overall reduction in the quantum of the penalty to be exacted. In addition, matters such as remunerated employment are capable of comprising an “excuse” even though they do not prevent or render impossible compliance with the order These considerations suggest that the concept of “excuse” is not the same as a “lawful excuse” which results in a complete “defence” to a substantive offence.[8] In the latter case, a “lawful excuse” is a complete justification. In the former case, the reason is considered sufficient to justify forgiveness of the past breach on the basis that it will be remedied in the future.
[8] For example, see Summary Offences Act 1953 (SA) ss 15, 16, 17.
This construction is supported by the overall approach which the Act takes to imprisonment, regarding it as a last resort. This applies generally in relation to offences pursuant to section 11 of the Act, and specifically to the regime for fines, community service and imprisonment pursuant to sections 64 to 71.
This construction is also consistent with the construction placed on subsection 58(3) of the Act which uses an almost identical structure and language for the excusal of a breach of a condition of a bond associated with a suspended sentence. In that context, it has been held that a court has power to excuse such a breach, including a breach of a condition involving community service,[9] notwithstanding an element of fault in the breach.[10] In R v Buckman,[11] King CJ said:
I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but in a relative sense of being excusable in relation to the consequences which would otherwise occur.
[9] Stanitzki v Higgins (1994) 63 SASR 309 at 316 per Olsson J; R v Harvey [1996] SASC S5519 (unreported, Nyland J, 27 March 1996).
[10] See for example R v Buckman (1987) 47 SASR 303 at 304 per King CJ, 309 per Jacobs J.
[11] (1987) 47 SASR 303 at 304
On this basis, I am satisfied that there a proper grounds on which Mr Finn’s failure to attend on 30 June and 7 July 2011 should be excused.
Exercise of discretion
Even where satisfied that there are proper grounds on which the failure should be excused, the court retains a discretion whether or not to refrain from issuing a warrant of commitment and whether or not to extend the term of the order for community service. This is indicated by the use of the word “may”, the use of the word “refrain” and the obviously discretionary power to cancel hours in whole or part. The position is analogous to the position under section 16 of the Act in respect of which it has been held there is a residual discretion (albeit one which would usually be exercised in favour of a defendant once the pre-conditions have been satisfied).[12]
[12] See for example Hodgins v Police [2008] SASC 176 at [14] per Gray J
At this point, it is relevant to take into account Mr Finn’s failure to produce a medical certificate (although he gave evidence that his wife did not tell him that it was required) on or after 14 July 2011, his failure to produce proof of his employment on or after 26 July 2011, his failure to inform the Department of the commencement of his employment until 26 July 2011 and his failure to contact the Department on 30 June, 7 July and 21 July in respect of his non-attendance. These matters involve a lack of communication by Mr Finn with his community correction officer. He ought to have communicated promptly with her and his failure to do so is to be deprecated.
On the other hand, these matters do not involve charged breaches of the community service order. They are not determinative in themselves. The provisions of the Act reflect an overall policy that it is preferable that fines are paid and community service performed rather than imprisonment being served.
In all of the circumstances, I am prepared to exercise my discretion to permit Mr Finn to complete the original community service ordered as opposed to completing a term of imprisonment.
Imprisonment already served
It is common ground on appeal that, if I exercise a discretion pursuant to subsection 71(7), the hours of community service ought to be reduced on a pro-rata basis to take into account the term of imprisonment which Mr Finn has already served.
As Mr Finn has served 21 days imprisonment, and subsection 71(2) provides for one day of imprisonment for each eight hours of community service, it is appropriate to reduce the community service remaining to be performed to the equivalent of 19 days imprisonment, being 152 hours.
Extension of the term
The order made on 20 May 2011 was for the performance of 320 hours of community service within 18 months expiring on 20 November 2012. On a pro‑rata basis, 152 hours would be performed within eight and a half months.
Pursuant to subsection 71(7)(b)(i), the term of the order may be extended by such a period, not exceeding six months, as it is thought necessary for the purpose of enabling the person to perform the remaining hours of community service.
I consider it is appropriate to apply the yardstick used by the Magistrate in making the order on 20 May 2011 to determine the period thought necessary to enable performance of the hours of community service.
It is therefore appropriate to extend the period during which the community service is to be performed by two and a half months so that it will expire on 4 February 2013.
Frequency of community service
Under section 47 of the Act, the frequency with which and dates and times at which community service is performed is left to determination by the community correction officer.
In the present case, the Department determined in June 2011 that Mr Finn should perform community service one day per week, being a Thursday.
There are a number of charges against Mr Finn for substantive offences which remain to be determined by the Magistrates Court. I was informed that the termination of those charges may involve his undertaking a program under the supervision of the Court. It is preferable, if possible, that any such program take into account community service being performed by him.
I was also informed that Mr Finn’s injury, which led to his compensation payment, affects his capacity to undertake physical work and this may limit the number of days on which he can perform community service to three days per week.
While it is ultimately a matter for Mr Finn’s community correction officer, I consider that it is desirable that he perform community service at a greater rate than one day per week and in particular at the rate of three days per week.
Conclusion
I allow the appeal. I set aside the order of the Magistrate. I substitute an order refraining from issuing a warrant of commitment, extending the term of the order made on 20 May 2011 to 4 February 2013 and reducing the number of hours of community service to be performed under the order to 152 hours.