Harmer v Police - [2017] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HARMER v POLICE
[2017] SASC 24
Judgment of The Honourable Justice Kelly
2 March 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE - OTHER OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - OTHER OFFENSIVE WEAPONS - POSSESSING, CARRYING OR BEING FOUND ARMED
Appeal against sentence. The appellant was sentenced in the Elizabeth Magistrates Court for a number of offences including possessing a knife in a public place, two counts of carrying an offensive weapon, five counts of driving whilst disqualified, and breach of a good behaviour bond. The head sentence of 228 days imprisonment was reduced to 168 days after allowances were made for time already spent in custody and on home detention. The head sentence was comprised of accumulated sentences for four of the driving offences, the weapons offences and the breach of bond. The sentence was partially suspended pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) and the appellant was ordered to serve 60 days imprisonment with the remainder to be suspended upon entering into a good behaviour bond for 18 months.
The appellant appeals on the sole ground that the Magistrate erred in the application of s 33BB of the Criminal Law (Sentencing) Act 1988 (SA) by failing to consider whether the period of 60 days imprisonment not suspended should be served on home detention.
Held (dismissing the appeal):
1. The Magistrate did not err in the application of s 33BB of the Criminal Law (Sentencing) Act 1988 (SA). The Magistrate was correct to decline to order home detention in circumstances where the decision to exercise the discretion under s 38(2a) of the of the Criminal Law (Sentencing) Act 1988 (SA) was to be exercised.
2. The appeal is dismissed.
Motor Vehicles Act 1959 (SA) s 91(5); Summary Offences Act 1953 (SA) s 21C(1), s 21E; Criminal Law (Sentencing) Act 1988 (SA) s 33BB, s 38, referred to.

HARMER v POLICE
[2017] SASC 24
Magistrates Appeals: Criminal
KELLY J.
Introduction

The appellant, Adam Alan Harmer, was sentenced in the Elizabeth Magistrates Court on 16 December 2016 for a number of offences including possessing a knife in a public place, two counts of carrying an offensive weapon, and five counts of driving whilst disqualified. In addition, there was an application for a breach of bond.
For a first offence of driving whilst disqualified contrary to s 91(5) of the Motor Vehicles Act 1959 (SA) there is a maximum term of imprisonment of six months. For a second and subsequent offence the maximum term of imprisonment prescribed is two years. For an offence of possessing a knife in a public place contrary to s 21E of the Summary Offences Act 1953 (SA) there is a maximum term of six months or a fine of $2,500 prescribed for a first offence. For a subsequent offence, the maximum term of imprisonment prescribed is 12 months or a fine of $5,000. For an offence of carrying an offensive weapon contrary to s 21C(1) of the Summary Offences Act 1953 (SA) there is a maximum sentence of six months imprisonment or a fine of $2,500.
For four of the offences of driving whilst disqualified the Magistrate imposed 42 days imprisonment per offence. For the offences of possessing a knife in a public place and the two offences of carrying an offensive weapon the Magistrate imposed a term of imprisonment of 20 days for those offences combined. An additional term of 40 days imprisonment was imposed for the breach of bond. All of these sentences were accumulated and after allowing a discount for time spent in custody and on home detention the overall head sentence imposed was 168 days imprisonment, reduced from 228 days. For the remaining offences the Magistrate recorded convictions and imposed one fine of $1,000.
The sentence was partially suspended pursuant to s 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act). The appellant was directed to serve 60 days imprisonment with the remaining 108 days suspended upon entering into a bond to be of good behaviour for a period of 18 months.
The appellant now complains that the Magistrate erred in the application of s 33BB of the Act by failing to consider whether the period of 60 days imprisonment not suspended under the provisions of s 38(2a) of the Act should be served on home detention.
It is necessary before considering the merits of the appellant’s complaint to set out in some detail the relevant background.
Background
The appellant was a 28 year old man at the time he came to be sentenced in relation to the following offences:
·Offences of driving without due care and driving whilst disqualified committed on 21 December 2015;
·Offences of speeding and driving whilst disqualified committed on 9 January 2016;
·An offence of driving whilst disqualified committed on 11 January 2016;
·Offences of speeding, driving whilst disqualified and breach of bail committed on 10 February 2016;
·An offence of driving whilst disqualified committed on 15 February 2016;
·An offence of possessing a controlled drug committed on 1 April 2016;
·An offence of possessing a knife in a public place committed on 1 April 2016;
·An offence of carrying an offensive weapon committed on 9 April 2016;
·Offences of possession of a controlled drug, possession of equipment and carrying an offensive weapon committed on 16 May 2016; and
·An offence of possession of a dangerous article committed on 10 October 2016.
The appellant also admitted that by these offences he had breached a bond to be of good behaviour which he entered into on 28 September 2015 in respect of an offence of damaging property which was committed on 30 October 2014.
In addition the appellant had some previous convictions for driving without due care, prescribed concentration of alcohol offences and a number of offences in 2010 which relevantly included three offences of driving whilst disqualified. At that time the appellant was sentenced to one month imprisonment which was suspended.
It is important to understand the course of proceedings in the court below in light of the complaint made on appeal that the Magistrate erred in failing to consider whether the period of 60 days immediate imprisonment should be served on home detention by virtue of the provisions in s 33BB of the Act.
On appeal two affidavits were tendered; one from the prosecutor and one from counsel who appeared for the appellant in the court below. Upon the hearing of this appeal both counsel agreed that the contents of those affidavits, insofar as each deponent was involved in the proceedings, comprehensively set out what happened between the date the appellant first entered pleas of guilty to some of the charges on 8 July 2016 and the date that the Magistrate sentenced the appellant for all outstanding matters on 16 December 2016.
After the appellant, who was then unrepresented, entered pleas of guilty on 8 July 2016, a pre-sentence report was ordered. That report was received on 25 August 2016. It was, as the Magistrate noted, not an encouraging report. The conclusion of the author of the pre-sentence report is best summarised in the following paragraph:
In sum, the defendant has a history of repetitive anti-social behaviour specifically related to driving offending. He has previously been consequence [sic] by the Court and warned about the consequences of continuing this behaviour. These warnings appeared to reduce his recidivism for a short period of time and trigger factors relating to his poor coping skills has escalated his behaviour again in 2014. He presents with criminogenic risk factors especially related to anti-social attitudes, associations, decision making deficits and failure to comply with societal rule. The defendant has acknowledged ‘that he needs to grow up’ and he has a protective factor in that his father is pro-social and has sold his vehicle. …
On 25 October 2016 counsel for the appellant made sentencing submissions to the Magistrate in which it was submitted that there was good reason to suspend any period of imprisonment, and if good reason was not established, then the appellant was a suitable person to serve any period of imprisonment on home detention conditions pursuant to s 33BB of the Act.
On the same date the matter was adjourned to 3 November 2016. According to counsel for the appellant, the adjournment was to enable a home detention enquiry report to be provided to the court pursuant to s 33BB of the Act in relation to the proposed address for home detention. According to the prosecutor, the purpose of the adjournment was to provide a supplementary home detention report for the purpose of addressing an issue raised in the first report about the presence of knives at the proposed home detention address. Be that as it may, the matter was adjourned for a further report of the kind referred to in s 33BB(4) of the Act.
On 3 November 2016 the appellant failed to appear in contravention of his bail conditions. Bail was revoked and the matter was adjourned further to 7 November, on which date the appellant’s home detention bail was reinstated. The matter was then adjourned to 6 December 2016.
On that date the prosecutor submitted that home detention as an option was not appropriate on the basis that the appellant would not comply with his home detention conditions. The prosecutor pointed out that the appellant had breached his home detention bail twice since he had been released on 7 November 2016 by refusing to provide a urine sample and by breaching his pass out privileges. The prosecution submitted that the appellant posed a threat to public safety, particularly in relation to the weapons offences.
The Magistrate indicated that it was his current thinking that the appellant was not a suitable candidate for home detention and that he would need some convincing. The matter was then adjourned for a second home detention sentencing report. The matter was further adjourned to 16 December 2016.
By 16 December 2016 the second home detention report had been provided to the Magistrate. That report was also somewhat pessimistic as to the capacity of the appellant to comply with conditions of home detention and also reported on issues of conflict between the appellant and his father at the proposed address.
It is apparent from the foregoing that on no less than three occasions after 8 July 2016 the matter was adjourned, first, to enable the preparation of a pre‑sentence report and then, specifically for reports pursuant to s 33BB(4) of the Act to be prepared. It is plain that the Magistrate specifically addressed the possibility of making a home detention order under s 33BB of the Act, even though he eventually declined to do so.
It is evident from the affidavits of the prosecutor and Mr Marsh that even though both home detention reports were relatively unfavourable, on 16 December 2016 the appellant’s counsel still maintained that the only appropriate way for the Magistrate to deal with the matter was to order that any term of imprisonment be served on home detention. The prosecution opposed that course on the basis not only of the unfavourable reports but also on the basis of concerns that the appellant posed a risk to public safety if released on home detention.
After hearing further submissions on 16 December 2016 the Magistrate sentenced the appellant. In the course of the sentencing remarks he said:
In my view, although it has been urged upon me, and having taken into account all that has been put to me, comprehensively by Mr Marsh who said everything that could be said on your behalf, I am satisfied no good reason exists to suspend that sentence in whole. I have taken that view because you have previously had the opportunity of a suspended gaol term and by reason of the repeated nature of this offending.
I am satisfied however, that it is appropriate to partially suspend that gaol term and I will order that you be released having served 60 of those 168 days upon you entering a good behaviour bond, in the sum of $50 for a period of 18 months. I include the conditions recommended by the author of the report as to supervision and which will be for a period of 12 months.
As to the balance of the offences I have not dealt with, I record convictions, I impose one fine of $1000 which would have been $1500 but for the plea. There will be a police order of costs of $100 on each file, I waive the court costs.
Mr Harmer you are going to have to serve 60 days whereupon you will be released for the balance of 108 days for a period of 18 months on a good behaviour bond with some conditions which I have included to try to assist you with your rehabilitation. Do you understand that? Thank you. The sentence will operate from today.
It is true that in his sentencing remarks the Magistrate made no reference to the issue of a home detention order. In my view it is clear from the exchange between the Magistrate and the appellant’s counsel during the proceedings earlier why that it so. The Magistrate expressed the view, contrary to the submission made by counsel for the appellant, that if he partially suspended any term of imprisonment imposed then the discretion to order home detention under the provisions of s 33BB was not enlivened.
Discussion
The appellant renews the same submissions on appeal, namely that the discretion in s 33BB is available to be exercised even where a sentence of imprisonment is partially suspended under s 38(2a).
This submission raises for consideration the interaction between s 33BB and s 38(2a) of the Act.
Section 33BB of the Act states:
33BB—Home detention orders
(1)Subject to this section, if—
(a)     a court has imposed a sentence of imprisonment on a defendant; and
(b)     the court considers that the sentence should not be suspended under Part 5; and
(c)     the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a home detention order).
(2)A home detention order—
(a)     must not be made—
(i)unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place; or
(ii)if the defendant is being sentenced to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; and
(b)     should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer.
(3)The paramount consideration of the court when determining whether to make a home detention order must be the safety of the community.
(4)The court must also take the following matters into consideration when determining whether to make a home detention order:
(a)     the impact that the home detention order is likely to have on—
(i)any victim of the offence for which the defendant is being sentenced; and
(ii)any spouse or domestic partner of the defendant; and
(iii)any person residing at the residence at which the prisoner would, if released, be required to reside;
(b)     any report ordered by the court from the CEO or any other person or body for the purpose of assisting the court in determining whether to make a home detention order;
(c)     any other matter the court thinks relevant.
Section 38 of the Act states:
38—Suspension of imprisonment on defendant entering into bond
(1)Subject to this section, if a court has imposed a sentence of imprisonment on 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 if the defendant is being sentenced—
(a)     to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; or
(b)     as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence; or
(c)     as an adult for a serious and organised crime offence or specified offence against police; or
(d)     as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.
(2a)Despite subsection (2)(a), if the period of imprisonment to which a defendant is liable under 1 or more sentences is more than 3 months but less than 1 year, the sentencing court may, by order—
(a)     direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison; and
(b)     suspend the remainder of the sentence 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)Despite subsection (2)(b), if a defendant is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence, the sentencing court may, by order—
(a)     direct that the defendant serve a specified period of the imprisonment in prison (which, if a non parole period has been fixed in respect of the defendant, must be a period that is one fifth of the non parole period fixed); and
(b)     suspend the remainder of the sentence 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.
(2ba)Despite subsection (2)(c) and (d), the court may, if satisfied that exceptional circumstances exist for doing so—
(a)     suspend a sentence of imprisonment imposed on a defendant for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2)(d), on condition that the defendant enter into a bond of a kind described in subsection (1); or
(b)     make an order under subsection (2a) in respect of a defendant being sentenced for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2)(d), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 1 year.
(2c)If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant's ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any other conditions included in the bond, include a condition (a home detention condition) requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:
(a)     remunerated employment;
(b)     necessary medical or dental treatment for the defendant;
(c)     averting or minimising a serious risk of death or injury (whether to the defendant or some other person);
(d)     any other purpose approved or directed by the community corrections officer to whom the defendant is assigned,
(and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period).
(3)If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished.
…

In my view, the exercise of the discretion given to a court in s 38(2a) is circumscribed on the basis that an offender will have to serve at least some time in prison as a condition of the exercise of the discretion in his or her favour under that section. I consider that consequence flows from the plain words of subsection (2a)(a) which stipulates that the order include a direction that the defendant serve a specified period (being not less than one month) of the imprisonment in prison. Section 38(2a) empowers the court, in addition to the order directing the offender to serve not less than one month of the term of imprisonment in prison, to suspend the remainder of the sentence on the condition that he enter into a bond.
Section 38(2c) sets out specific circumstances in which a home detention order might be included as a condition of a suspended sentence bond under s 38. The wording in s 38(2c) necessarily excludes an offender who has had the benefit of a favourable exercise of the discretion in s 38(2a). That is because s 38(2c) refers and applies to an offender in respect of whom “it would be unduly harsh … to serve any time in prison”.[1] Section 38(2a) clearly contemplates and necessarily requires that an offender serve at least one month of the sentence in prison.
[1] Emphasis added.
Thus the exercise of the discretion in favour of an offender under s 38(2a) will result in a partially suspended sentence even though it is circumscribed by the terms of s 38(2a)(a) and (b).
It follows that one of the preconditions for the exercise of the discretion to order home detention under s 33BB(1)(b) is not satisfied, namely that the court considers that the sentence should not be suspended under Part 5.
As it happens, on the facts here, it is implicit from the Magistrate’s comments during the proceedings in the court below that he did not consider the appellant to be a suitable person to serve the sentence on home detention either in accordance with s 33BB(1)(c), but that is a separate issue.
The appellant’s submission on appeal would require acceptance that the order made by the Magistrate under s 38(2a) was not a decision to suspend the term of imprisonment under Part 5. The respondent’s submission that such a construction of s 38(2a) fails at the threshold is, in my view, correct. Part 5 of the Act enables the court to suspend a sentence in whole or in part. A decision to make an order under s 38(2a) is a decision to suspend a term of imprisonment, albeit partially, under Part 5.
I consider that the scheme of the Act requires the court to consider first whether there is good reason to suspend a sentence of imprisonment under Part 5. If there is not good reason to suspend a term of imprisonment then the sentencing court may go on and consider whether any term of imprisonment should be served on home detention conditions under the provisions of s 33BB.
The appellant’s submission, if accepted, requires a conclusion that in making an order under s 38(2a) the court is in fact imposing two sentences; a custodial sentence and a non-custodial sentence. In my view this interpretation is not consistent with the purpose or scheme of s 33BB of the Act. Nor is it consistent with the actual wording of both s 33BB and the whole of s 38(1) and s 38(2).
Here the appellant has not demonstrated that the Magistrate’s approach to sentencing the appellant was in error. It is evident that he directed his mind to the issue of whether any sentence of imprisonment could be served on conditions of home detention under s 33BB. It is plain that there was no other purpose for the ordering of reports pursuant to that section. Ultimately the Magistrate made the decision to exercise the discretion to partially suspend under the provisions of s 38(2a) and in doing so he made no error. Having elected to exercise the discretion to partially suspend in the appellant’s favour, it was no longer an option to consider home detention for that portion of the sentence unsuspended and which by virtue of the section, the appellant was required to serve in prison.
It is plain from the history of the appellant’s offending and his response to that offending, as evidenced in the pre-sentence report, that considerations of both general and personal deterrence were important in sentencing this appellant. It is clear from the Magistrate’s remarks that although he considered whether an order should be made under s 33BB(1) he eventually concluded that those very same considerations of general and personal deterrence, necessitated that the appellant serve at least a portion of the sentence that he was about to impose in prison. Having made the decision to exercise the discretion in s 38(2a) it was not open to order home detention and the Magistrate was correct to so conclude.
The sentence ultimately imposed was a moderate if not merciful one and it is significant that no complaint is made about that.
The appeal is dismissed.