SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
FISCHER v DEPARTMENT FOR CORRECTIONAL SERVICES
[2022] SASC 2
Judgment of the Honourable Justice Stein
11 January 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
On 28 February 2020, the appellant was sentenced in the Magistrates Court to a period of imprisonment. A portion of the sentence was suspended on the appellant entering into a bond to be of good behaviour for 18 months. On 20 May 2021, a Magistrate found that the appellant had committed several breaches of the bond and revoked the suspended sentence.
The appellant appealed against the sentence on three grounds. Ground one was that the Magistrate failed to provide proper reasons for revoking the suspended sentence.
Held, allowing the appeal on ground one and re-sentencing the appellant:
1.The Magistrate’s reasons were not adequate as they did not set out any reasons for finding the breaches were not trivial or that there were no proper grounds to excuse the breaches.
2.There are proper grounds to excuse the breach in the particular circumstances taking into account the disproportion between the extent of the departure from the obligation to be of good behaviour and the severity of the penalty resulting from revoking the suspension.
Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 114; Supreme Court Criminal Rules 2014 (SA) r 104V(1)(a), referred to.
Cross v Police [2001] SASC 47 at [21], [30]; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601 at [42]; Lowndes v The Queen (1999) 195 CLR 665 at [15]; M, MA v Police [2013] SASCFC 140 at [12]; NBM v The Queen [2021] SASCA 105 at [90]-[91]; Playford v Police [2017] SASC 26 at [23]; Police v Heritage (2019) 135 SASR 1 at [21]-[23]; Police v Peel [2021] SASCFC 7 at [2], [38]-[40], [44]; R v Buckman (1988) 47 SASR 303 at 304; R v Pham [2014] SASCFC 95 at [10]-[11]; R v Smith [2014] SASCFC 98 at [24]-[25]; R v Wilton (1981) 28 SASR 362 at 362, applied.
Wittwer v Police [2004] SASC 226 at [16], discussed.Police v Chilton (2014) 120 SASR 32 at [20]; R v McPhee [2014] SASCFC 107 at [34], considered.
FISCHER v DEPARTMENT FOR CORRECTIONAL SERVICES
[2022] SASC 2Overview
The appellant pleaded guilty to a number of offences and, on 28 February 2020, was sentenced to a period of imprisonment, a portion of which was suspended on the appellant entering into a bond.
Following a number of drug tests which showed positive results for cannabis, the Department for Correctional Services applied to revoke the appellant’s bond.
In May 2021, the appellant admitted the breaches of bond. A Magistrate revoked the suspended sentence and ordered the appellant serve the balance of four months of imprisonment.
The appellant…
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- Fischer v Department for Correctional Services [2022] SASC 2
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- [2022] SASC 2
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CaseChat Overview and Summary
The legal issue before the court was whether the reasons provided by the second Magistrate for revoking the suspension and imposing a custodial sentence were adequate. Specifically, the court had to determine if the Magistrate's reasons sufficiently explained why the breaches were not considered trivial or if there were proper grounds to excuse the breaches. The appellant argued that the reasons were inadequate, while the respondent maintained that the reasons were sufficient.
The court found that although the second Magistrate had read and referred to the appellant's personal circumstances and rehabilitation, the reasons for finding the breaches were not trivial or that there were no proper grounds to excuse the breaches were not explicitly stated in the Remarks. The court noted that while comprehensive reasons are not always necessary, an appellate court should not have to speculate on what a trial judge may have meant, particularly on an important issue. Given that the Remarks did not provide sufficient reasons for the critical factors taken into account in the decision, the court found the reasons were inadequate. The court also considered that there were proper grounds to excuse the breach, given the disproportion between the departure from the obligation and the severity of the penalty.
The court allowed the appeal on the ground that the reasons were inadequate and re-sentenced the appellant, taking into account the proper grounds to excuse the breach.
Orders
Orders of the court
Held, allowing the appeal on ground one and re-sentencing the appellant:
1. The Magistrate’s reasons were not adequate as they did not set out any reasons for finding the breaches were not trivial or that there were no proper grounds to excuse the breaches.
2. There are proper grounds to excuse the breach in the particular circumstances taking into account the disproportion between the extent of the departure from the obligation to be of good behaviour and the severity of the penalty resulting from revoking the suspension.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Counsel for the respondent submitted it was clear the second Magistrate had read the remarks of the first Magistrate in relation to the original offending, which included the appellant’s personal circumstances. The second Magistrate referred to the appellant’s rehabilitation, which indicated the second Magistrate had read the compliance report. The respondent’s counsel submitted that although the personal circumstances of the appellant are not expressly referred to in the Remarks, and the second Magistrate does not detail his reasons for finding the breaches were not trivial or there were no proper grounds to excuse the breaches, this did not mean those matters were not considered. She submitted in those circumstances the Remarks were sufficient.Consideration There is a possible factual error in the Remarks, that is, the reference to the appellant “continuing to deal in drugs” rather than consuming drugs. This reference may have simply been a slip of the tongue by the second Magistrate or may have indicated a misunderstanding of the breach offending. As counsel for the appellant did not place any reliance on that error, I have not taken it into consideration. It is important not to be unduly critical after the event or to expect comprehensive and fully developed sentence remarks to be given, especially in routine cases with routine penalties.[25] Reasons can be brief.[26] However, the reasons must be sufficient to enable understanding by the appeal court of the sentencing process.[25] Cross v Police [2001] SASC 42 at [21].[26] Playford v Police [2017] SASC 26 at [23]. In NBM v The Queen, Lovell JA stated:[27]The judicial obligation to give reasons is directed, in part, to facilitating the exercise of a party’s right of appeal, in addition to promoting public accountability as to how and why a judge has made a particular decision. […] The adequacy of a judge’s reasons (distinct from the adequacy of a judge’s reasoning) will depend on the circumstances of each case. […] Reasons are to be read as a whole. It is not necessary for a judge to give extensive and elaborate reasons. However, an appellate court should not have to guess or speculate as to what a trial judge may or may not have meant, particularly on an important issue. […][citations omitted][27] [2021] SASCA 105 at [90]-[91]. It can be inferred from the references in the Remarks to the appellant’s rehabilitation that the second Magistrate took into account issues as to rehabilitation. Comprehensive reasons were not required, particularly in the context of routine cases conducted by a Magistrate running a busy list. The second Magistrate’s reasoning may well have been adequate. However, the Remarks do not set out any reasons for the finding that the breaches were not trivial or there were no proper grounds to excuse the breaches and I cannot discern from the Remarks the critical factors which were taken into account in the decision[28] or how the process required by s 114 was undertaken.[29] Consequently, the Remarks were not adequate in the circumstances and the appellant has made out this ground of appeal. [28] Playford v Police [2017] SASC 26 at [23]; Cross v Police [2001] SASC 47 at [30].[29] R v Pham [2014] SASCFC 95 at [10]-[11]; M, MA v Police [2013] SASCFC 140 at [12].