FRANZI v Police - [2014] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FRANZI v POLICE
[2014] SASC 161
Reasons for Decision of The Honourable Justice Nicholson
5 November 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - IRREGULARITIES
This is an application for permission to appeal, out of time, against a sentence of a Magistrate. The applicant pleaded guilty to and was convicted of the offences of aggravated assault, damage to property and breach of an intervention order. Those offences emanated from the applicant’s conduct on 8 March 2012 when he forcibly gained entry into his former domestic partner’s home and violently assaulted her. The applicant was sentenced for that offending on 23 August 2012. In imposing a term of imprisonment, the Magistrate reduced her starting point of 12 months to ten months and 16 days on account of the applicant’s guilty pleas and then had regard to five months and 16 days already served, leaving a balance of five months. The sentence was suspended upon the applicant entering into a good behaviour bond for a term of three years. Both the handwritten file endorsement and the Certificate of Record recorded the applicant’s head sentence as being imprisonment for ten months and 16 days.
On 26 August 2013, the applicant was charged with two counts of driving whilst disqualified to which he pleaded guilty on 8 August 2014 in the Elizabeth Magistrates Court. An application for breach of bond was subsequently filed by the police. The applicant now seeks to appeal against the sentence imposed for his previous offending on the basis that the Magistrate incorrectly applied s38 of the Criminal Law (Sentencing) Act 1988 (as then in force) when imposing a bond of three years duration. The applicant contends that, as the applicant’s sentence included a period for time already served, the Magistrate effected a partial suspension of the sentence pursuant to s38(2a) and therefore was limited, pursuant to s38(2b), to imposing a bond for the length of the balance suspended, being a period of five months.
Held: (1) Application for permission to appeal out of time refused. (2) When ordering the suspended sentence bond, the Magistrate exercised the power available under s38(1) of the Act, not s38(2a). (3) The file endorsement and the Certificate of Record in the Magistrates Court incorrectly recorded the terms of the sentence passed. (4) The Magistrates Court is directed to correct the file endorsement and Certificate of Record to accurately record the sentence imposed, being a sentence of five months imprisonment suspended upon entering into a bond to be of good behaviour for three years.
Criminal Law (Sentencing) Act 1988 s18A, s38, s58; Criminal Law Consolidation Act 1935 s20, s85; Intervention Orders (Prevention of Abuse) Act 2009 s31; Supreme Court Civil Rules 2006 r281; Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2013 (SA), referred to.
R v Hussey [2013] SASCFC 41; R v Williams [2006] SASC 237, considered.

FRANZI v POLICE
[2014] SASC 161
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an application for permission to appeal out of time, against a sentence imposed by a Magistrate. On 23 August 2012, the Magistrate imposed a suspended sentence bond for a term of three years. The applicant now contends that the Magistrate, in so doing, acted contrary to s38(2b) of the Criminal Law (Sentencing) Act 1988 (as then in force). The applicant submits that, given the way in which the prison sentence imposed was structured, the Magistrate effected a partial suspension pursuant to s38(2a) and therefore the length of any bond was to be no more than five months (the length of the period of imprisonment to be suspended). This submission misconceives the nature of the sentence that was imposed. The Magistrate exercised the power to suspend provided for by s38(1) of the Sentencing Act, not that provided for by s38(2a). For the reasons that follow, the application for permission to appeal out of time is refused.
Background
In the early hours of 8 March 2012, the applicant forcibly gained entry to his former domestic partner’s home by ripping the screen door off its track. Having gained entry, the applicant violently assaulted the victim. This included grabbing her by the throat and choking her and also striking her on several occasions. The applicant threatened and detained the victim against her will when she attempted to flee from the rear of the premises. After a period of time the appellant dozed off. This allowed the victim to escape and alert neighbours as to her situation. By attending his former partner’s home, the applicant breached an intervention order that had been put in place on 10 November 2011. In addition, he was charged with a number of serious offences, although three (aggravated serious criminal trespass, endangering life and unlawful detention) were withdrawn upon his entering pleas of guilty to aggravated assault,[1] damage property[2] and breach of an intervention order.[3]
[1]    Criminal Law Consolidation Act 1935, s20(3),
[2]    Criminal Law Consolidation Act 1935, s85(2).
[3]    Intervention Orders (Prevention of Abuse) Act 2009, s31.
On 23 August 2012, the Magistrate recorded convictions for each of these offences and imposed a single sentence pursuant to s18A of the Sentencing Act. In doing so, the Magistrate indicated in her sentencing remarks that she had reduced her starting point of 12 months imprisonment to ten months and 16 days, by way of a discount for the applicant’s guilty pleas. The applicant was in custody on remand at the time of sentencing and had been so for five months and 16 days. The Magistrate gave credit for this period of five months and 16 days already served, leaving a balance of five months imprisonment. That period of imprisonment was suspended upon the appellant entering into a suspended sentence bond to be of good behaviour for a period of three years. The terms of the bond included a provision that the appellant was to be under the supervision of the Department of Correctional Services for a period of 18 months.
On 26 August 2013, the applicant was charged with two counts of driving whilst disqualified to which he entered pleas of guilty on 8 August 2014 in the Elizabeth Magistrates Court. As a consequence, the police filed an application for breach of the bond. The matter came before the Magistrates Court on 3 September 2014 at which time it occurred to counsel for the applicant that the bond imposed in relation to the 2012 offending was either “invalid” or “unenforceable”. As earlier identified, the premise of that submission is that the sentencing Magistrate erred when imposing a bond of three years duration by failing to comply with the requirement of s38(2b) of the Sentencing Act.
This application for permission to appeal has been filed some two years after the bond was imposed, well outside the 21 day period within which such an appeal is to be commenced under rule 281 of the Supreme Court Civil Rules 2006. The basis on which the applicant seeks an extension of time is that the asserted error made by the Magistrate did not come to the applicant’s attention until consideration was given to the breach of bond application; as such, to refuse permission simply because of the delay would lead to a miscarriage of justice.
The sentence imposed on 23 August 2012 was either according to law and valid or not according to law and invalid. An unlawful and therefore invalid sentence cannot be allowed to stand. In this case, the question of permission to appeal out of time will turn entirely on the merits of the appeal were it to be heard.
The issue on appeal
Section 38 of the Sentencing Act, according to its terms at the time the appellant was sentenced,[4] provided (relevantly) as follows.
[4]    Section 38 was amended in 2013 to a substantial extent, including by the repeal of ss(2b). Subsection (2b) was re-enacted but in its new form covers quite different subject matter. The restriction imposed by the former version of ss(2b) no longer applies with respect to sentences imposed relating to offences committed on or after 24 November 2013. See the Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2013.
(1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(b)     to comply with the other conditions (if any) of the bond.
(2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.
(2a)However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order—
(a)     direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b)     suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
(2b)The term of a bond under subsection (2a) cannot extend beyond the period of the suspended imprisonment.
(2c)...
(3)...
Subsection 38(1) provides for a general power to suspend a sentence of imprisonment provided that the sentencing court “thinks that good reason exists for doing so.” This power to suspend can only be exercised upon the condition that the defendant enter into a bond requiring the defendant to be of good behaviour and to comply with any other conditions included in the bond. This power to suspend is constrained, expressly, by s38(2) and, by implication or necessary intendment, by s38(2a) and (2b).
Where a sentence to be imposed is more than three months but less than one year (as in the present case) the sentencing court enjoys an added discretion. In such a case, the sentencing court may (but is not obliged to) suspend part of the sentence.
Where the whole of a prison term is suspended pursuant to s38(1) the length of the bond is at large but subject to a maximum period of three years.[5] However, where a sentence is partially suspended pursuant to s38(2a) the length of the bond was, at the time, constrained by s38(2b).
[5] Criminal Law (Sentencing) Act, s40.
The sole question on appeal is whether the Magistrate exercised the power to suspend under s38(1) alone or in conjunction with the power to partially suspend under s38(2a). The issue is complicated by the conflicting terminology employed to describe the length of the sentence in the Remarks on Penalty, the Certificate of Record and the Suspended Sentence Bond itself.
I turn first to the paragraph in the Magistrate’s Remarks on Penalty which served to impose the sentence.
I indicate to you that you are convicted for all of the offences. I utilise Section 18A of the Criminal Law Sentencing Act and impose one penalty. I indicate to you that had it not been for your pleas of guilty I would have sentenced you to 12 months imprisonment. I reduce that to 10 months and 16 days. I take into account the 5 months and 16 days you have served which leaves a further 5 months imprisonment. I am satisfied that on the basis of the material that has been provided to me regarding a number of things, firstly your apparent preparedness to get some help and secondly the fact that you have guaranteed employment and I note the presence of your employer here today that it is appropriate to suspend that sentence of imprisonment on condition you enter into a bond for a period of 3 years. For 18 months of that 3 years you will be under supervision of Community Corrections. You are to be under their supervision for that 18 months and you are to attend assessment for drug and alcohol prevention programs, prevention of abuse programs and anger management programs and if you are deemed appropriate to participate in those programs, you are to attend those programs as directed by Community Corrections. You are to report within 2 working days at Community Corrections at 13 Gillingham Road, Elizabeth. I waive court fees, there will have to be Prosecution fees and Victims of Crime Levies paid. You are to pay $500 compensation. (My emphasis.)
It is quite apparent from the passage just set out, when read in the context of the whole of the Remarks on Penalty, that the Magistrate saw a three year bond term as integral to the sentence she wished to impose. Given the nature of the offending and the applicant’s history and personal circumstances, it clearly was important to the Magistrate that the applicant be supervised for a lengthy period (18 months) and be exposed to rehabilitation programs particularly dealing with drug and alcohol abuse and anger management. The Magistrate was, with respect, right to form this view.
When faced with a defendant who has served time on remand awaiting sentence, a sentencing court that wishes to impose a prison term to be immediately served has two primary options. It can backdate any sentence imposed, usually to the date the defendant was taken into custody, or the court can allow credit for time spent in custody, reduce the head sentence that otherwise would have been imposed accordingly, and order the balance to be served from the date of imposition of sentence. Which of these alternatives is chosen will be a matter for the sentencing court and will depend on the particular circumstances. Ordinarily, it will be preferable, where possible, to backdate rather than give credit (and therefore a “lower” sentence) because this permits the court record to more accurately reflect the actual period of imprisonment served for the offence.
However, a backdated prison sentence cannot be suspended[6] and, if suspension is to be ordered, the allowance of credit method, ordinarily, will need to be employed. This is what the Magistrate, in this case, intended to do and, in fact, did. Her Honour imposed a sentence of five months imprisonment after taking account of all due allowances. At no time did she impose a head sentence of 10 months and 16 days partially suspended as to five months. I find this for three reasons.
(i)The language of the sentencing remarks supports this conclusion. Her Honour explained, in orthodox fashion, the calculation process whereby she arrived at a sentence of five months imprisonment after all due allowances. It is true that she identified this sentence by describing it as a “further” five months. However, this is just a use of language to explain the mathematical calculation. Her Honour started with 12 months – in other words, “I would have sentenced you to 12 months,” but for the allowances I will now take into account. She then, in words, explained her mathematics resulting in a “further 5 months”. The word “further” is used to contrast time already served with time not yet served. Her Honour then explained why suspension was justified and concluded this portion of her remarks by announcing suspension of “that sentence of imprisonment...”. She did not refer to suspending that “period” or the “remainder” of a term of imprisonment (the language used in s38(2a)). The phrase “that sentence” can only be a reference to the “further 5 months” earlier referred to. In other words, her Honour identified the “further 5 months” as the sentence she had imposed.
(ii)It was not possible, in my view, for the Magistrate to have invoked s38(2a) in the circumstances of this case. At no time did the Magistrate “by order direct that the defendant serve a specified period” (the five months and 16 days). Nor could she have done so; the time had already been served by the time the Magistrate delivered the sentence. The terms of s38(2a) were simply inapplicable to that which the Magistrate did. Of course, her Honour could have sentenced the applicant to five months imprisonment (as she did), order that he remain in prison and serve a further period (greater than one month but less than five months) and suspend the balance. This would have been a proper application of s38(2a).
(iii)There is no reference to s38(2a) in the sentencing remarks. True it is that there is no reference to s38(1) either. However, this is the well known fons et origo of the power to suspend and is rarely referred to unless a specific point about its construction or application to particular facts is to be made. Nevertheless, one would expect a sentencing court to specifically advert to (even if it did not mention) the express, but quite limited, power available under s38(2a) to partially suspend and the cognate restriction provided for in the very next subsection (s38(2b)). In other words, for a court to reach for a partial suspension in ignorance of the restriction under s38(2b) is not an error one would expect to occur often, if at all.
[6] R v Hussey [2013] SASCFC 41.
The hand written endorsement of the sentencing outcome on the court file, apparently initialled by the Magistrate, is in these terms.
Deft to be imprisoned for a period of 10 months and 16 days commencing from 8/3/12. HH takes into account 5 months and 16 days imprisonment already served. HH orders that the remaining 5 months imprisonment be suspended upon entering into $200 G.B. Bond for a period of 3 years [with conditions as there set out].
The typed record of outcome, as it appears in the Certificate of Record (presumably as a result of the handwritten endorsement having been entered into the computer system) is in these terms.
IMPRISONMENT – For 10 MONTHS 16 DAYS
Her Honour takes into account 5 months and 16 days imprisonment already served. Her Honour orders that the remaining 5 months be suspended upon entering a Bond.
        SUSPENDED – see below.
COSTS ONLY – V.I.C, Levy $680.00 Prosecution Costs $100.00 Total $780.00
        Time To Pay 28 DAYS Due 20/09/12
Court Fees waived.
COMPENSATION – Compensation $500.00 to Barry GODFREY, 16 Cherry Tree Court, BLAKEVIEW, SA 5114
Time To Pay 28 DAYS Due 20/09/12
Court Fees waived.
HEAD SENTENCE – 5 MONTHS 16 DAYS
SUSPENDED SENTENCE BOND – Length of Bond 3 YEARS Amount $200.00.
1.    To be of good behaviour and comply with all of the conditions of this bond.
2.    To be under the supervision of the Department of Correctional Services for 18 months and obey all lawful directions.
3.    To attend assessment for drug and alcohol prevention programs, prevention of abuse programs, anger management programs. If it is deemed appropriate to participate in those programs you are to attend those programs as directed by Community Corrections.
4.    To report, within two working days of having signed this bond, at the offices of the Department of Correctional Services / Probation and Parole Branch / the Community Correctional Centre 13 Gillingham Road, ELIZABETH, SA 5112 Phone: (09) 8282-7020. (NOTE: There is no need to report if, within the two day period, a notice from the Department of Correction Services that it is not necessary to do so, is received.)
The Certificate of Record contains an inconsistency between “IMPRISONMENT – For 10 MONTHS 16 DAYS” at the commencement of this portion of the Record (“Sentence Reference No 1”) and the statement, immediately above the details of the “SUSPENDED SENTENCE BOND” which records “HEAD SENTENCE – 5 MONTHS 16 DAYS” (“Sentence Reference No 2”).

Immediately under Sentence Reference No 1, an explanation of the process employed by the Magistrate leading to her order “that the remaining 5 months be suspended...” is recorded. It is this Sentence Reference No 1 and accompanying explanation that is relied on by the applicant in support of his argument that the Magistrate’s sentencing remarks are to be construed as representing an exercise of the discretion to partially suspend under s38(2a).
This part of the Record of Outcome, together with a modified version of Sentence Reference No 2 are replicated in the Suspended Sentence Bond document.
Details of the Sentences that the Court has Imposed.
3,5-6 Aggravated Assault (No Weapon) Against Child Or Spouse/Damage Property Not Building Or M/V (Not Graffiti Or Fire)/Contravene Term of Intervention Order- Other Than Programs (MCPAR-12-1909 Ct 1)
IMPRISONMENT – For 10 MONTHS 16 DAYS
Her Honour takes into account 5 months and 16 days imprisonment already served. Her Honour orders that the remaining 5 months be suspended upon entering a Bond.
Total sentence of 5 MONTHS 16 DAYS
imprisonment to be served
The Sentence Reference No 2 has been modified in the Bond document because “5 months 16 days” is no longer described as “HEAD SENTENCE” but as “Total sentence of imprisonment to be served”. The applicant also relies on the terms of the Suspended Sentence Bond to support his argument as to the true nature of the sentence imposed.
The sentence imposed is that declared in open court by the sentencing court. I have already found that her Honour imposed a prison term of five months after all due allowances which was wholly suspended. As such, it was not necessary nor appropriate to order a commencement date. There was no ambiguity in the terms of the sentence actually imposed, notwithstanding the terms of the endorsement and Certificate of Record. In the absence of any ambiguity in the Remarks on Penalty in this respect, the endorsement and the Certificate of Record are to be seen as having incorrectly recorded the sentence as passed.
The Certificate of Record, itself, speaks with two voices – on the one hand “IMPRISONMENT – For 10 MONTHS 16 DAYS” and on the other “HEAD SENTENCE – 5 MONTHS 16 DAYS”. The latter, Sentence Reference No 2, contains another, clearly mathematical or typographical, error. On any analysis, the sentence or the remaining period, to be suspended, was five months not five months and 16 days.
The terms of the sentence as set out in the Suspended Sentence Bond are also incorrectly recorded. There has been no prejudice to the applicant. At all material times, the applicant must be taken to have understood that he was subject to a Good Behaviour Bond for three years with the risk that he would be ordered to serve a further period of five months imprisonment if he breached that Bond. The explanation provided immediately under the reference to “10 MONTHS 16 DAYS” is clear to the effect that the period to be served, but for the suspension, is five months. The reference later in the Bond document to “5 MONTHS 16 DAYS” is clearly a typographical error on the face of the document.
Conclusion
The appeal against sentence has no prospects of success and for this reason the application for permission is to be dismissed. However, the inaccuracies in the court records should not be allowed to stand. This Court has the power to correct a court record where the terms of any endorsement and subsequent Certificate of Record are inconsistent with the sentence as passed.[7]
[7] R v Williams [2006] SASC 237 at [42]-[47].
Like in R v Williams,[8] both the handwritten endorsement and the Certificate of Record are incorrect and confusing. The court record is the formal record either signed by a Judge[9] or based on an endorsement signed by a Magistrate.[10] It should accurately record the sentence imposed. Various authorities, including the Department of Correctional Services, rely on the court record as being the formal record of the court.[11]
[8] [2006] SASC 237.
[9] The practice in the District and Supreme Courts is for the Judge to sign a “report as to prisoner tried”.
[10] The practice in the Magistrates Court.
[11] R v Williams [2006] SASC 237 at [45].
The endorsement and the Certificate of Record, in this case, should be corrected to show the sentence passed as being one of imprisonment for five months fully suspended upon the terms as to the Suspended Sentence Bond ordered by the Magistrate as presently recorded.
The question of correcting the terms of the Bond raises different considerations. It is not immediately clear to me that the powers of this Court, as explained in R v Williams, inherent, or otherwise, extend to the unilateral correction of the terms of a Bond which, by its nature, is the written record of an agreement reached by a defendant and the Court. However, I do not need to explore this issue further.
For the purposes of this appeal, it is sufficient that the sentence the subject of the Bond be properly described in the Certificate of Record. The Suspended Sentence Bond is not itself the formal court record of any prison sentence actually imposed other than as to the terms of the Bond itself. The statement of the sentence in the Bond document forms part of the basis upon which the applicant agreed to enter the Bond and give to the Court an undertaking to comply with its conditions. It also is a statement of the sentence that the applicant might be ordered to serve following any breach. However, as earlier explained, the applicant has not, in this or any respect, been misled or suffered prejudice. It will be a matter for the court, hearing any application for breach of Bond, as to how the terms of the Bond are to be construed, whether or not the Bond remains enforceable and whether or not to impose the term shown in the Bond or “any lesser term of imprisonment as may be fixed by the Court”. The latter qualification is a reference to the power to reduce a suspended prison term conferred by and in the circumstances referred to in s58(4) of the Sentencing Act. However, the terms of the Bond must be considered in conjunction with the correct form of the Certificate of Record. The maximum period of imprisonment that the applicant could ever be ordered to serve is five months.
Nevertheless, with respect to the typographical error on the face of the Bond, I would be prepared, if invited by the applicant, to order that the reference next to the heading “Total sentence of imprisonment to be served” be amended to read 5 months in lieu of 5 months 16 days. Any such correction would be ordered to operate nunc pro tunc.
I make the following order and direction.
(i)The application for permission to appeal out of time is refused.
(ii)The Magistrates Court is directed to correct the endorsement and the Certificate of Record to accurately record the sentence imposed, being five months imprisonment suspended upon entering into a bond to be of good behaviour for three years and containing the terms as imposed by the Magistrate.