Hann v Police
[2019] SASC 213
•20 December 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HANN v POLICE
[2019] SASC 213
Judgment of The Honourable Chief Justice Kourakis
20 December 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence imposed by a Magistrate.
On 28 May 2019 the appellant was sentenced for the offences of indecent behaviour, driving whilst disqualified, contravening an intervention order, being unlawfully on premises, failing to comply with his ANCOR obligations, and four counts of breach of bail. For each of the first three offences, he was sentenced to one month’s imprisonment, and was convicted without penalty for the remaining offences.
Each of the sentences of imprisonment were imposed cumulatively and the first of them cumulatively upon a revoked suspended sentence of five months’ imprisonment, resulting in a total period of imprisonment for eight months. However, the Magistrate ordered that the appellant only serve five months of his sentence of imprisonment with the remainder of the sentence being suspended upon the appellant entering into a bond to be of good behaviour for 12 months.
The appellant appealed to this Court against his sentence on the following seven grounds:
1. The Magistrate erred in refusing to order that the appellant be assessed as suitable for participation in the Treatment Intervention Court Program;
2. The Magistrate erred in failing to find proper grounds to excuse the breach of the suspended sentence;
3. The Magistrate erred in failing to find special circumstances to reduce the period of the revoked sentence;
4. The Magistrate erred in sentencing on an incorrect factual basis in relation to the charge of indecent behaviour;
5. The Magistrate erred in sentencing on irrelevant factual considerations in relation to the driving whilst disqualified charge;
6. The sentences imposed for the indecent behaviour and breach of intervention order charges were manifestly excessive;
7. The Magistrate erred in failing to take into account that the appellant would lose his accommodation if the revoked suspended sentence was not reduced, or, in the alternative, the Magistrate did not give sufficient reasons as to why she declined to reduce the sentence.
Held, allowing the appeal on grounds 3, 4, 6 and 7:
1. The revocation of the suspended sentence of imprisonment is confirmed and the term of imprisonment to be served is reduced to three months.
2. For the offences of indecent behaviour and drive whilst disqualified, the appellant is sentenced to a total period of imprisonment for one month and 21 days to be served cumulatively on the reduced term of the revoked suspended sentence.
3. The sentence imposed for the breach of the intervention order is set aside and the appellant is convicted without penalty.
4. The appellant is to serve three months of his sentence of imprisonment with the remainder of the sentence being suspended upon the appellant entering into a bond to be of good behaviour for two years.
5. The parties are to be heard on the conditions of the bond.
Bail Act 1985 (SA) s 17; Child Sex Offenders Registration Act 2006 (SA) s 44; Criminal Law Consolidation Act 1935 (SA) s 56(1); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31; Motor Vehicles Act 1959 (SA) s 91; Sentencing Act 2017 (SA) ss 29, 114; Summary Offences Act 1953 (SA) ss 17, 23, referred to.
Police v Heritage [2019] SASCFC 60; Police v Nissen (2014) 120 SASR 50; Police v Wanganeen [2012] SASC 237; R v Smith [2014] SASCFC 98, considered.
HANN v POLICE
[2019] SASC 213
KOURAKIS CJ: This is an appeal by Mr Hann against sentences imposed on him in the Magistrates Court. Mr Hann was sentenced for the following offences:
Date of offence The offence Maximum penalty Sentence imposed 18 March 2017 Indecent behaviour contrary to Summary Offences Act 1953 (SA) s 23(1)(a) (the Summary Offences Act) Three months’ imprisonment or fine of $1,250 Imprisonment for one month 24 January 2018 Unlawfully on premises contrary to the Summary Offences Act s 17(1) Six months’ imprisonment or fine of $2,500 Convicted without penalty 21 August 2018 Drive whilst disqualified contrary to Motor Vehicles Act 1959 (SA) s 91(5) Six months’ imprisonment (first offence)
Two months’ imprisonment (subsequent offence)Imprisonment for one month 20 September 2018 Fail to comply with ANCOR obligation contrary to Child Sex Offenders Registration Act 2006 (SA) s 44(1) Two years’ imprisonment or fine of $10,000 Convicted without penalty 17 October 2018 Contravene an intervention order contrary to Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2) Two years’ imprisonment or fine of $10,000 Imprisonment for one month 8 November 2018 Breach of bail condition contrary to Bail Act 1985 (SA) s 17(1) (the Bail Act) Two years’ imprisonment or fine of $10,000 Convicted without penalty 29 November 2018 Breach of bail condition contrary to the Bail Act s 17(1) Two years’ imprisonment or fine of $10,000 Convicted without further penalty 17 January 2019 Breach of bail condition contrary to the Bail Act s 17(1) Two years’ imprisonment or fine of $10,000 Convicted without further penalty 31 January 2019 Breach of bail condition contrary to the Bail Act s 17(1) Two years’ imprisonment or fine of $10,000 Convicted without further penalty
Each of those sentences of imprisonment were imposed cumulatively and the first of them cumulatively upon a revoked suspended sentence of five months’ imprisonment. Mr Hann had been sentenced to a term of imprisonment on 7 December 2016 for an offence of indecent assault,[1] but the last five months of that term was suspended on Mr Hann entering into a bond to be of good behaviour for a period of two years.
[1] Contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA).
The indecent assault was committed on 29 October 2015 against a 16‑year‑old girl, TK, in a public park near the Tea Tree Plaza shopping centre. Mr Hann touched her on the inner thigh whilst at the same time making a lewd remark. TK moved away. The police were eventually called. Mr Hann was convicted of the indecent assault on 24 May 2016. That offence breached an earlier seven-month suspended sentence bond and Mr Hann was ordered to serve that period. Mr Hann was only sentenced for the indecent assault after that sentence had been served. Mr Hann was sentenced to six months’ imprisonment but was ordered to serve one month of that term and the balance of five months was suspended. Accordingly, he was released on 6 January 2017.
The written application to revoke that suspension, which came before the Magistrate, was founded on the offence of indecent behaviour. The Magistrate revoked the suspension and declined to reduce the period of imprisonment.
The offence of indecent behaviour was an act of masturbation committed in a disability toilet cubicle. Mr Hann was found lying on the floor of the cubicle by a mother who was taking her child to the toilet. Mr Hann pleaded guilty on the basis that he honestly, but unreasonably, believed that he had locked the cubicle securely. Mr Hann was homeless at the time and was living out of his car. He claimed that he used the public toilet because he was homeless and wanted to masturbate somewhere with privacy.
The basis on which the plea was accepted is problematic. The evidence strongly supported an inference that Mr Hann at least foresaw the possibility that someone would walk in on him and was more than happy to take that risk. There was no evidence that the simple electronic door locking mechanism was malfunctioning. The agreed facts were silent as to how Mr Hann came to believe that the door was locked when it was not. However, on the facts accepted by the prosecution and the Magistrate, the offending could only be described as minor. The use of a locked toilet to masturbate is bizarre and socially unacceptable but not an offence. Mr Hann’s culpability was, therefore, in not taking all reasonable steps to ensure his privacy and avoid offending others by that otherwise lawful activity.
The offence of being unlawfully on premises was committed when Mr Hann, who was still homeless, walked down the side of a private residence to charge his phone on an external power socket.
The offence of driving whilst disqualified was committed after Mr Hann had found permanent Housing Trust accommodation in May 2018 but he committed the offence by driving his car from his home to a bank in a shopping centre. There was no mitigating reason for doing so, and, as we shall see, this was not Mr Hann’s first offence of this nature.
Mr Hann failed to comply with his ANCOR obligations by not notifying police of the subscriber number of a new mobile telephone. He was using the telephone number as a contact for his work as a gyprocker. The breach did not facilitate any offending or create any risk which his ANCOR obligations were calculated to stop.
The intervention order Mr Hann breached was imposed in 2014, after Mr Hann broke into the home of MR, a woman with whom he was keen to have a relationship, by entering through an air-conditioning duct in the roof. MR woke to find him stroking her back. Mr Hann was also convicted of criminal trespass and being unlawfully on premises for that conduct. A suspended sentence of seven months’ imprisonment was imposed. It was that sentence that was breached by the indecent assault. However, Mr Hann and MR crossed paths again and MR came to live at his Housing Trust home. Police found her, when they attended on an unrelated matter on 17 October 2018, living in a portable room under the carport. MR spoke to them and made no complaint about Mr Hann’s behaviour.
The first breach of bail was a failure to report to a police station, the second and third breach of bail offences were committed because Mr Hann tested positive for methamphetamine and amphetamine. On one of the latter two breaches Mr Hann took methamphetamine to get him through a long night-shift fixing gyprock. On the other breach, he took some of the drug offered to him free of charge by a workmate. The breach of bail on 31 January 2019 was committed by failing to report to police. The police station was busy and Mr Hann decided not to wait. In May 2018, Mr Hann secured Housing Trust accommodation but the lease can be terminated if he is absent for three months or more.
Mr Hann appeals on the following grounds:
1 The learned Magistrate erred in refusing to order the appellant be assessed for suitability for participation on the Treatment Intervention Court Program;
2 The learned Magistrate erred in failing to find proper grounds to excuse the breach of suspended sentence;
3 The learned Magistrate erred in failing to find special circumstances to reduce the period of the revoked suspended sentence;
4 The learned Magistrate erred by sentencing on an incorrect factual basis in relation to the charge of Indecent Behaviour;
5 The learned Magistrate erred by sentencing on irrelevant factual considerations in relation to the charge of Driving Disqualified;
6 The sentence was manifestly excessive in relation to the charges of Indecent Behaviour and Breach Intervention Order.
During the hearing of the appeal, I gave permission to Mr Hann to add an additional ground as follows:
7 The learned Magistrate erred in failing to take into account that the appellant would lose his accommodation if the revoked suspended sentence were not reduced and/or in the alternative failed to give sufficient reasons as to why her Honour declined to reduce the sentence having regard to the submission that he would lose his accommodation.
I would allow the appeal. The appellant has made out ground 4 because the Magistrate sentenced Mr Hann on the basis that his offence of indecent behaviour was reckless, when the agreed facts precluded any foresight of the possibility that the door was not locked. I would impose a sentence of 21 days’ imprisonment for that offence.
Even though that error necessarily tainted the Magistrate’s conclusion that Mr Hann had breached his bond by committing that offence, I would nonetheless confirm the order of revocation because, in committing the offences of indecent behaviour and drive disqualified, Mr Hann failed to meet the obligation of good behaviour.
I would allow the appeal on ground 6 in respect to the intervention order. It did not warrant imprisonment.
I would allow the appeal on grounds 3 and 7 because Mr Hann’s offending that breached his bond was to a large extent caused by his homelessness. The Magistrate did not address the submission that Mr Hann’s changed circumstances in finding stable accommodation amounted to special circumstances justifying a reduction in the term of the imprisonment. That was an error of law. Mr Hann’s prospects of successfully completing a sexual therapy course, and his rehabilitation more generally, would be enhanced by ensuring he did not lose his newly found accommodation. I would therefore reduce the revoked sentence to three months to ensure that Mr Hann’s Housing Trust accommodation is not put at risk.
I would partially suspend the sentences of imprisonment imposed on Mr Hann so that he is released after serving three months’ imprisonment.
I elaborate on my reasons below.
Personal antecedents
Mr Hann was born on 12 October 1974. He is now aged 45. He completed year 11. After he left school he found work as a gyprocker. Mr Hann suffers autism spectrum disorder (ASD). At the time of the indecent assault offence Mr Hann was homeless and living in a culvert tunnel. Mr Hann was homeless for a period of about four years, until he secured accommodation in May 2018. However, the Magistrate was informed that Mr Hann was likely to lose that accommodation if imprisoned for more than three months. That submission has been supported by evidential material placed before me.
Mr Hann was not offered the rehabilitation course for sexual offending, known as the SBC course, whilst he was in prison after his conviction for the indecent assault of TK because there was insufficient time for him to complete it before his release. After his release, he was found not to be suitable to complete the sexual behaviour course at Owenia House because only 14 months remained on that part of his bond during which he was subject to supervision, and because it was close to Tea Tree Plaza where he had committed the offence of indecent assault.
However, Mr Hann did attend two counselling sessions provided by an organisation known as PsychMed before he lost contact with them. An appointment for 16 May 2018 was made for him with PsychMed by his community corrections officer. Mr Hann later arranged a mental healthcare plan through his general practitioner, and he saw the psychologist, Ray Kukowicz.
Mr Hann started using cannabis in his teens but made a health decision at around the age of 20 to cease using cannabis and tobacco. He does not drink alcohol. Mr Hann began using amphetamines at the age of 25, initially when going out clubbing. He has used it throughout his life since then, apart from a five-year period of abstinence. He continues to use methylamphetamine now both for ‘energy’ in his work and as a leisure activity.
A report on Mr Hann’s suitability for an intensive correction order was provided to the Court by the Department for Correctional Services. The report concluded that he was not suitable for an intensive corrections order because his ASD was a significant barrier to participation in a rehabilitation program. It was considered that his needs would be better addressed by referral to Owenia House.
The report revealed that Mr Hann had tested positive for amphetamine/methamphetamine on four out of nine occasions between 14 November 2016 and 14 February 2019. Mr Hann told the report writer that he used drugs more when homeless to fill in his time, and when he was working because he both had the money to purchase drugs and felt tired from work.
Mr Hann told the report writer that if placed on community corrections orders to abstain from illicit substances he would ‘definitely’ abstain. Mr Hann said that even if he were not under any such condition ‘he would only use amphetamines rarely’. He told the report writer that he would like to be completely abstinent but acknowledged that he would find that difficult. He said that the court‑ordered conditions to abstain ‘sort of helps me’.
A psychological assessment rated Mr Hann a high risk for alcohol and drug problems.
Mr Hann has a fixed-term lease given by Housing SA on residential premises which expires on 14 June 2024. The Housing SA Temporary absences policy states:
How long a tenant can be absent
Tenants may be absent from their property with Housing SA’s approval for up to three months.
If the tenant has a genuine need to be absent longer, Housing SA may approve extending it for up to another three months.
Ground 4 – mistaken factual basis
It is convenient to start with the fourth ground because I have concluded that the Magistrate sentenced for the offence of indecent behaviour on a mistaken factual basis, and that her Honour’s error vitiated not just the sentence imposed for that offence but also the decision to revoke the suspended sentence.
The agreed facts were that Mr Hann thought that the door was locked when he was inside the toilet, but that his belief was unreasonable. Neither the agreed facts nor any submissions explained whether the belief was based on a mistaken assumption that he had locked the door when, in fact, he had absentmindedly forgotten to lock it when it automatically closed behind him, or whether he had ineffectually pressed an electronic button to lock the door, either because of his own clumsiness or because the locking mechanism malfunctioned.
The Magistrate’s remarks on the circumstances of the offence were:
[4]The witness reported what had happened to staff and security detained the defendant until police arrived. The police arrested him, he was taken to the Elizabeth Police Station for an interview. When interviewed by the police the defendant told them he used the public toilet as he is currently homeless and wanted to masturbate somewhere with some privacy. He also told police he thought the toilet door was locked. In consideration of the Agreed Statement of Facts I take into account the three digitally created photographs that I have got of the locking mechanism and on that Agreed Statement of Facts, on my view, the defendant was reckless. He was reckless for 35 minutes. He was reckless in that he did not touch a mechanism which would suggest to anybody to use to lock door, the word ‘Press’ has been removed, but there was a mechanism to lock and unlock, none of which was touched by the defendant.
[5]Mr Marsh interrupts my sentencing remarks to suggest that I have gone further than the agreed facts. I will sentence on a basis that I consider to be plausible. After 22 remands and a Statement of Agreed Facts there is no recital of how this door could have been unlocked. It could only have been unlocked if it had been pulled shut and a locking mechanism not activated. There is no suggestion that he fiddled around, touched buttons or did anything so on that basis he is reckless.
…
[24]Mr Marsh on his brief statement of facts suggests that this indecent behaviour is trivial and he could be discharged on a bond. I fundamentally disagree with that. This was a breach of the condition to be of good behaviour. It was self-serving behaviour, extremely reckless and obviously gave a very poor impression to the woman who was exposed to this spectacle. He needs to take responsibility for his behavioural issues.
I expressly observe that the Magistrate referred to, and thereby implicitly accepted, the agreed facts as the basis on which the sentence should be imposed. Nonetheless, it was open to the Magistrate to draw the inference from those facts that Mr Hann did not press the buttons to lock the door. That inference was reasonably open because there was no evidence of, or agreement on, any malfunction in the locking mechanism, and because if Mr Hann had pressed the button but it had failed to lock the door he was likely to have been very surprised by the woman and her child walking in, and was, therefore, very likely to have recalled doing so. However, it does not follow that Mr Hann acted recklessly. On the agreed facts, the most natural inference to draw is that Mr Hann absentmindedly entered the toilet cubicle and inadvertently forgot that he had not pressed the locking mechanism after the door closed behind him. Once it is accepted, as the Magistrate implicitly did, that Mr Hann honestly believed the cubicle was locked, it must follow that he did not appreciate that there was a risk or a possibility that someone else might enter the cubicle whilst he was in there.
The Magistrate’s use of the word ‘reckless’, and her references to ‘self‑serving behaviour’ and ‘behavioural issues’, disclose a departure from the agreed fact that Mr Hann honestly believed the door was locked. One of the ordinary meanings of reckless is utter carelessness. The agreed facts are consistent with carelessness in the loose sense of that word, but the plea was accepted on the basis that Mr Hann’s mistake was reasonable. It is unlikely, therefore, that the Magistrate was using the word ‘reckless’ to characterise Mr Hann’s behaviour as unreasonably mistaken. In law recklessness also refers to a state of mind in which a consequence is foreseen but a decision is made, without good reason, to proceed regardless. To describe Mr Hann’s conduct as reckless in that sense is inconsistent with the agreed fact that he honestly believed that the door was locked. Mr Hann cannot be said to have both honestly believed the door to be locked and to have foreseen that a member of the public might enter the cubicle. In the context of sentencing remarks, there is every reason to proceed on the basis that the Magistrate used the word ‘reckless’ in the criminal law sense of proceeding with foresight. That conclusion is reinforced by paragraph [24] of the Magistrate’s reasons. Being careless as to whether the door was locked is only relevantly self‑serving if Mr Hann had some foresight that it might not have been locked, and proceeded in the hope that he might be sexually excited by being found out. I acknowledge that his behaviour might also be described as self‑serving because masturbation is self-indulgent. However, the focus of that sentence of the Magistrate’s reasons is not the act of masturbation in itself, but his failure to ensure the door was locked, with the resulting exposure to the woman who entered the cubicle. Moreover, the Magistrate’s remark that Mr Hann needed to ‘take responsibility for his behavioural issues’ is more obviously directed to his sexual conduct than his carelessness in ensuring the cubicle door was locked. I am satisfied that the Magistrate proceeded on the basis that Mr Hann appreciated that the door might not be locked but proceeded to masturbate anyway. That basis is inconsistent with the agreed fact that he honestly believed the door was locked. If that basis is fully accepted the offence is at the very low end of the scale and a sentence as long as one half of the maximum (after the guilty plea reduction is allowed for) is manifestly excessive.
The sentence for the offence of indecent behaviour must be set aside. A sentence of no more than 30 days’ imprisonment, reduced to 21 days for his guilty plea, is warranted.
It also follows that the question of whether the suspended sentence should have been revoked must also be reconsidered, because the Magistrate proceeded on an erroneous view of Mr Hann’s culpability for the offence of indecent behaviour.
Ground 2 – revocation/reduction of the suspended sentence
Section 114 of the Sentencing Act 2017 (SA) (the Sentencing Act) provides:
114—Orders that court may make on breach of bond
(1) If the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
(a) may, if the bond requires the probationer to pay a sum in the event of non-compliance with a condition of the bond, order the probationer to pay the whole or a part of that sum; or
(b) may order a guarantor to pay the whole or a part of the amount due under the guarantee; or
(c) may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond—
(i) sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or
(ii) if 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 on which the failure should be excused, refrain from taking any action in respect of the failure; or
(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.
(2)The court may not order a person to pay an amount pursuant to subsection (1)(a) unless the court is satisfied that—
(a) the person has, or will within a reasonable time have, the means to pay the amount; and
(b) payment of the amount would not unduly prejudice the welfare of dependants of the person.
(3) If 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 on which the failure should be excused, the court may refrain from revoking the suspension and—
(a) in the case of a bond requiring performance of community service—may—
(i) extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or
(ii) extend the period within which any uncompleted hours of community service must be performed by not more than 6 months; or
(iii) if the period within which the community service must be performed has expired, impose a period of not more than 6 months within which any uncompleted hours of community service must be performed; or
(iv) cancel the whole or a number of any unperformed hours of community service; or
(v) revoke or vary any other condition of the bond; and
(b) in the case of any other bond—may—
(i) extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or
(ii) impose a condition on the bond requiring the probationer to perform a specified number of hours of community service; or
(iii) revoke or vary any other condition of the bond; and
(c) if the bond has expired in any case—may require the probationer to enter into a further bond, the term of which must not exceed 12 months.
(4) Section 105 applies in relation to a bond in respect of which a condition requiring the performance of community service is imposed under subsection (3)(b)(ii).
(5) If a court revokes the suspension of a sentence of imprisonment, the court may make any of the following orders:
(a) if it considers that there are special circumstances justifying it in so doing—an order reducing the term of the suspended sentence;
(b) an order directing that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(c) in the case of a probationer whose sentence of imprisonment was partially suspended under section 96(5) and even if the term of the sentence now to be served in custody is less than 12 months—an order fixing or extending a non-parole period taking into account the time spent in custody by the probationer before being released on the bond;
(e) an order directing that—
(i) in the case of a sentence partially suspended under section 96(4) or (5)—any part of the sentence that the probationer has not served in custody; or
(ii) in any other case—the suspended sentence,
be cumulative on another sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
(6) If a court other than the probative court sentences a probationer for the original offence, the court cannot impose a sentence that the probative court could not have imposed.
The applicable legal principles on an application to revoke a suspended sentence are conveniently summarised in the judgment of Blue J in Police v Heritage:[2]
[2] [2019] SASCFC 60 at [21]-[23].
[21]By reference to the text, context and evident purpose of section 58, it provides that, once the court finds that the probationer has failed to comply with a condition of a suspended sentence bond:
1 The first question to be addressed (where it is a live issue) is whether the court can and should revoke the suspension under subsection (3).
2 The court is only empowered to revoke the suspension if satisfied that:
(a)the failure was trivial; or
(b)there are proper grounds upon which the failure should be excused.
3 If the answer to the first question is no, the court must revoke the suspension.
4 Once the court revokes the suspension, the second question to be addressed (where it is a live issue) is whether the court can and should reduce the term of the original sentence under subsection (4).
5 The court is only empowered to reduce the term of the original sentence if satisfied that there are special circumstances justifying its so doing.
6 The power to refrain from revoking the suspension arises at an earlier stage and involves different conditions and criteria to the power to reduce the term of the original sentence.
7 There is a clear legislative policy that ordinarily a breach of a condition of a bond should result in the offender serving the full term of the original sentence and the court should not lightly interfere by refraining from revoking or reducing the term of the original sentence.
[22]Turning to the meaning of the expression “proper grounds upon which the failure should be excused” in subsection (3), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection (3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach. This follows from a combination of the juxtaposition between the criteria of trivial breach and proper grounds for excusal (the former giving colour to the latter), the concept of “excusal” of the breach suggesting that the circumstances of the breach justify excusal, the legislative policy that ordinarily a breach should result in the offender serving the full term of the original sentence and the contrast between excusing a breach under subsection (3) and reducing the term of the original sentence by reason of special circumstances under subsection (4).
[23]In respect of the expression “special circumstances justifying [the court] reduc[ing] the term of the suspended sentence” in subsection (4), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection (4) that those circumstances comprise new or different circumstances (which will usually if not invariably be personal circumstances) that have arisen or changed since the original sentence was imposed which if they had existed at that time would have justified a reduced sentence.
(Citations omitted)
In R v Smith I observed:[3]
[24]However, it is as well to make some additional comments on the appellant’s submissions to the effect that the breach should have been excused because the crime of drive disqualified is not of the “same ilk” or at the same “level of seriousness” as a serious assault. There is no express or implied requirement in s 58(3) of the CLSA that the breaching offence be similar in kind to the offence for which the probationer was placed on a bond. The Judge correctly observed that a suspended sentence bond requires the probationer to be of good behaviour generally, and not merely to refrain from committing offences of a similar kind to that for which the suspended sentence was imposed.
[25]Both the “trivial” and “proper grounds” limbs of s 58(3) of the CLSA invite attention to the nature, extent and circumstances of the breach of the condition to be of good behaviour. The word “proper” is a protean expression which takes its meaning from its context. In the context of s 58(3) of the CLSA, the word takes its meaning both from the other ground, the triviality of the breach, and the condition that the circumstances must be such as to “excuse” the breach. For that reason, the disproportion of which King CJ spoke in Buckman is between the extent of the departure from the obligation to be of good behaviour and the severity of the penalty resulting from revocation of the suspension. As King CJ observed, differences between the original offence and the breaching offence are not irrelevant but their relevance is limited. The question is whether the circumstances in which the breach was committed are of a nature which excuses the failure to abide the condition of the bond having regard to the purpose for which it was imposed.
[26]Even though different in kind to the offence of aggravated assault, the offences of drive disqualified were serious breaches of the obligation to be of good behaviour and were committed soon after entering into the bond which was calculated to give the appellant an opportunity to return to law abiding ways. There were no circumstances which called for the breach to be excused. Far from being disproportionate, the revocation was the condign consequence of the breach. It was a consequence demanded by the policy of the section articulated by King CJ in Marston.
[3] [2014] SASCFC 98 at [24]-[26].
The Magistrate’s reasons for revoking the suspended sentence were:
[24]Mr Marsh on his brief statement of facts suggests that this indecent behaviour is trivial and he could be discharged on a bond. I fundamentally disagree with that. This was a breach of the condition to be of good behaviour. It was self-serving behaviour, extremely reckless and obviously gave a very poor impression to the woman who was exposed to this spectacle. He needs to take responsibility for his behavioural issues.
[25]The defence submissions suggest that some of the blame for his lack of advancement in ending offending can be given to the Department for Correctional Services and the fact that efforts to get him into Owenia House have been frustrated. That may be so but the fact that the authorities are looking for that type of intensive assistance should make it clear to Mr Hann that he needs that type of intensive assistance. It is difficult for the Department to handle him given that he is friendly and responsive but hard to engage. The defendant should be aware that his failure to set up any type of meaningful rehabilitation, suggest that Dr Young’s opinion that his prognosis is good has been thwarted by his homelessness, which is not explained but is typical for somebody who uses disposable income for methamphetamine.
[26]I am concerned about the decisions that he makes, like having contact with Ms Ross, who seems to be a person who also struggles with methamphetamine. There may be some mutually convenient relationship but given his history and given the fact that he has been imprisoned for his behaviour, any sentence that is imposed on him must not only have a personal deterrent effect but it also has to be a deterrent to other members of the community who do not comply with sex offender registration, do not comply with intervention orders, breached bail, continued to commit offences having been granted bail in March 2017 and driving under disqualification.
It can be seen first from paragraph [24] that the Magistrate gave as a reason for revoking the suspended sentence her Honour’s erroneous characterisation of Mr Hann’s conduct as reckless. However, in paragraph [26] the Magistrate also relied on Mr Hann’s other offences. Her Honour was correct to do so. Even though only the indecent behaviour was alleged as a breach in the written application, and considered by the Magistrate, her Honour was entitled to consider all of the breaching offences in exercising her discretion to decide to revoke the suspended sentence.
A Magistrate may revoke a bond of a defendant who is before the court without a written application if the court is aware of the suspended sentence, and the court is aware that the defendant’s conduct has breached the bond.[4] Section 113(6) of the Sentencing Act requires that the Magistrate consider any evidence that may establish a failure to comply with the conditions of the bond.[5]
[4] Police v Wanganeen [2012] SASC 237 at [20] (Gray J); Police v Johns [2013] SASC 123 at [10]-[12] (David J).
[5] Police v Wanganeen [2012] SASC 237 at [18] (Gray J).
Considered in isolation, the peculiar mitigatory factors of the indecent behaviour may have supported a decision not to revoke the suspended sentence of imprisonment. So too, the mitigating factors in which the offences of unlawfully on premises, failing to comply with the ANCOR obligation and contravening intervention order were committed, and the breaches of bail. However, the offence of drive disqualified was a serious offence and was not attended by any mitigating circumstances. It was not trivial and there were no proper grounds on which to excuse that breach.
In any event, the Court must look at Mr Hann’s conduct during the period of the bond in its totality. Together the offending demonstrates a failure by Mr Hann to take seriously his bond to be of good behaviour on which the sentence of imprisonment was suspended. He has been all too prepared to lapse into offending when it suited him, making no or little effort to keep within the law. I confirm the decision to revoke the bond.
Grounds 3 and 7
Ground 3 complains that the Magistrate failed to make a finding of special circumstances based on Mr Hann securing Housing Trust accommodation after the commission of the offence of indecent assault at a time when he was homeless. Ground 7 complains more particularly of the Magistrate’s failure to have regard to that circumstance and to give any reason for rejecting the submission that it constitutes a special circumstance. It was a weighty submission deserving of close consideration. The Magistrate was not required to deal with the submission at length but the reason for declining to exercise the discretion should have been given, even if only in a few words. The Magistrate erred in law in failing to do so.
On exercising the discretion afresh, I am satisfied that there are special circumstances that justify a reduction. I accept that Mr Hann has a psychological difficulty in understanding or staying within the social and criminal norms of sexual behaviour. His offending shows that he is in need of counselling to correct his behaviour but there is also reason to think that it may be successfully addressed. That prospect will be greatly enhanced by stable accommodation. Accommodation, and the financial commitment it entails, is also likely to reduce the risk of his other antisocial behaviours. Imprisonment for more than three months will jeopardise it. I would therefore reduce the revoked suspended sentence to three months’ imprisonment.
Ground 1 – adjournment
The appellant’s first ground complains that the Magistrate erred in refusing to order that the appellant be assessed for suitability for participation in a Treatment Intervention Court Program.
Sections 29(1) and (2) of the Sentencing Act provide:
29—Deferral of sentence for rehabilitation and other purposes
(1) A court may, on finding a person guilty of an offence (whether or not it proceeds to conviction), make an order adjourning proceedings to a specified date, and granting bail to the defendant in accordance with the Bail Act 1985—
(a)for the purpose of assessing the defendant’s capacity and prospects for rehabilitation; or
(b)for the purpose of allowing the defendant to demonstrate that rehabilitation has taken place; or
(c)for the purpose of assessing the defendant’s eligibility for participation in an intervention program; or
(d)for the purpose of allowing the defendant to participate in an intervention program; or
(e)for any other purpose the court considers appropriate in the circumstances.
(2) As a general rule, proceedings may not be adjourned under this section (whether by a single adjournment or a series of adjournments) for more than 12 months from the date of the finding of guilt (the usual maximum).
Mr Hann’s solicitor made an application for an adjournment pursuant to s 29(1)(c) of the Sentencing Act on 21 May 2019, so that Mr Hann might be assessed for participation in the Treatment Intervention Program. He submitted that Mr Hann’s ‘admitted ongoing drug use’ and his four positive drug tests showed that he abused drugs. He submitted that Mr Hann’s homelessness, general disorganisation and decision‑making occurred in the context of his drug use. Although the transcript is not available, Mr Hann’s solicitor deposed that the Magistrate refused the application because Mr Hann would not receive sexual behaviour treatment on the Treatment Intervention Program.
On appeal, it was contended that the reason given by the Magistrate was an irrelevant consideration, and that this was a case in which an adjournment for that purpose should have been granted. I reject that submission. On the reports provided to the Magistrate, and in particular having regard to the nature of the offending, Mr Hann’s amphetamine use was not the predominant, and was probably a relatively minor, criminogenic factor. Insofar as Mr Hann’s general disorganisation contributed to his offending, the major cause of that is his ASD. Mr Katsaras contends that that condition was itself a mental illness which, on the information provided on the Courts Administration Authority website, qualified him for the Treatment Intervention Program. That submission was not put to the Magistrate. In any event, it conflates the administrative arrangements of the Courts Administration Authority in defining the programs it offers, and the persons who are eligible for them, with the independent decisions of sentencing courts. The Courts Administration Authority provides administrative support for the courts. The information on its website describes the rehabilitative programs it manages. However, decisions as to whether to adjourn a matter to have a particular defendant assessed, or to give a particular defendant an opportunity to participate in a program, is for the Court alone. The criteria of the Courts Administration Authority cannot govern or control the exercise of the Court’s discretion.
In the case of Mr Hann, the Magistrate was plainly right to conclude that the Treatment Intervention Program and the Drug Court Program would not appropriately address the major factors in Mr Hann’s offending. A six or 12‑month course or program is plainly too short to deal with Mr Hann’s ASD and assist him to reorganise his life. Nor could those programs provide the sexual behaviour counselling he requires. Moreover, it would have been an error to adjourn the revocation application for an extended period of time in the hope that some new material might be found to make out a ground for non‑revocation or reduction in the term of imprisonment. As a general rule, an application for breach should be dealt with expeditiously so that the consequences of the breach are visited on the offender soon thereafter.
I would, if it were necessary to decide, grant permission to appeal but would dismiss ground 1.
Ground 5 – drive disqualified
Ground 5 complains that the Magistrate erred in sentencing on an irrelevant factual consideration on the drive disqualified charge. The Magistrate said in that respect:
[8]The record generated by this court as to his expiation notices shows that the defendant has been issued with numerous expiation notices over a long period of time and there is no doubt that he would be aware of the system where accumulation of 12 demerit points would lead to a disqualification.
I accept that it appears that the Magistrate had informed herself of Mr Hann’s traffic violation history. Nonetheless, I would dismiss this ground. It is plain that her Honour’s reference to the expiation notices was used only to explain the Magistrate’s finding that Mr Hann was ‘aware of the system where accumulation of 12 demerit points would lead to a disqualification’. It was completely unnecessary to do so. It was accepted in the hearing before the Magistrate on the basis of the police apprehension report that Mr Hann had told police that he was the driver of the vehicle and knew that he was disqualified. He told them that he was ‘aware of his disqualification and that it was due to demerit points’. He told police that he was served paperwork to inform him of the disqualification and that he had signed it.
Mr Hann drove in flagrant disregard of his disqualification. He undoubtedly could have made his way to the bank without driving. This was the fifth occasion on which Mr Hann has driven whilst disqualified. On 5 December 2011 he was placed on a simple bond for driving whilst disqualified. On 25 November 1993 in the Holden Hill Magistrates Court he was convicted and was sentenced to imprisonment for 14 days, which was suspended. He was again convicted on 3 July 2013 in the Holden Hill Magistrates Court and released on a bond to be of good behaviour. On 25 July 2014 he received a four-week suspended sentence for an offence of driving whilst disqualified. The repeated leniency Mr Hann has been shown is difficult to explain. It was time to bring home to Mr Hann the seriousness of his offending.
A sentence of imprisonment was called for. In Police v Nissen I summarised the approach to sentencing for offences of drive disqualification:[6]
[26]The financial and human cost of personal injury and property damage caused by traffic offences weighs heavily on the community. The most effective measures for deterring serious and persistent traffic offenders and thereby protecting the public are licence disqualifications and suspensions. As King CJ observed in Coombe v Douris those orders are ineffective if they are generally disregarded. Driving in contravention of a licence disqualification or suspension is difficult to detect and, for that reason, it is critical that when an offender is apprehended the disqualification and suspension orders are strongly enforced.
[27]The feature of an offence of driving whilst disqualified from holding a licence, or whilst a licence is suspended, which most emphasises the need for general deterrence is a dismissive attitude to the disqualification or suspension order which places little importance on compliance with it. Contumaciousness is an extreme example of the attitude to which I refer. When an offence of driving under disqualification, or driving whilst holding a suspended licence, manifests a dismissive attitude to the order, general deterrence will demand relatively greater weight than the offender’s personal circumstances.
[28]The measure of an offender’s attitude to the importance of the order will generally be found in the strength of his or her reason for breaching it. As the judgments in Cadd make clear, reasons falling short of duress and medical emergency suggest that little importance was placed on the order. Moreover, the reasons in Cadd show that, speaking generally, loss of employment, financial loss and domestic reasons are weak excuses for a breach.
[29]It can generally be inferred that a person who drives when disqualified, or whilst holding a suspended licence, after having been convicted of an earlier offence, has a contempt for or, at least, a dismissive attitude to orders of disqualification or suspension. A subsequent offender is unlikely to benefit from a rehabilitative sentence and personal deterrence will have a relatively greater part to play in framing his or her sentence.
[30]It follows that, as a matter of principle, sentences of immediate imprisonment will often be justified in the case of first offenders who show little regard for orders of disqualification or suspension. As for repeat offenders like the appellant, it is difficult to contemplate circumstances which, consistently with the matters of general principle to which I have referred, would justify a non‑custodial sentence.
(Citation omitted)
[6] (2014) 120 SASR 50 at 58-59, [26]-[30].
The sentence of one month was lenient. I would dismiss the appeal. I would not have imposed any lesser sentence.
Conclusion
I revoke the suspended sentence of imprisonment. I reduce the term of imprisonment to be served to three months’ imprisonment. On the offence of indecent behaviour I sentence Mr Hann to imprisonment for 21 days, arrived at by reducing the sentence of 30 days I would have otherwise imposed by 30 per cent for his plea of guilty. I order that that sentence be served cumulatively on the reduced term of the revoked suspended sentence. I order that that sentence of one month’s imprisonment imposed by the Magistrate on the drive disqualified offence be served cumulatively on the sentence of 21 days I have imposed for the offence of indecent behaviour.
Mr Hann spent two days in custody after his arrest on the indecent behaviour offence. He remained in custody following his sentence on 28 May 2019, until he was released on 3 June 2019. Having regard to that time served, I set aside the sentence imposed for the breach of the intervention order and order instead that he be convicted without penalty. I would partially suspend the period of imprisonment Mr Hann is to serve by releasing him on a bond after he has served three months. The bond is to be for a period of two years and is to be supervised and to include a condition that he undertakes the Owenia House program. I will hear the parties on the other conditions of the bond.
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