Harris v Police No. Scgrg-98-909 Judgment No. S6907

[1998] SASC 6907

HARRIS v POLICE

[1998] SASC 6907

Magistrates Appeals

1 WICKS J (Ex tempore) The appellant was convicted of common assault on a person other than a family member, contrary to s39(1) of the Criminal Law Consolidation Act 1935. The offence occurred on 23 August 1997. A sentence of two months imprisonment was imposed, suspended if the appellant should enter into a bond of $200 for two years. The conditions of the bond were that the appellant was to be of good behaviour for a period of two years and perform 100 hours of community service within six months. The conviction was entered and the sentence imposed on 8 December 1997.
2 The appellant failed to carry out his community service.  Only 14 hours were completed and proceedings for estreatment of the bond were taken on the basis of an affidavit of George Kokotis, the appellant's Community Service Officer. 
3 It was alleged that the appellant was unwilling to co-operate with his supervisor in the performance of community service, that he was irrational, extremely agitated and fractious, that he was unwilling to obey directions from his Community Service Officer and that he refused to do work as directed. 
4 Proceedings for estreatment were heard on 10 June 1998.  The appellant admitted a breach of the bond.  The learned stipendiary Magistrate found the breach of the bond proved and made an order for estreatment.  She ordered that suspension of the sentence be revoked and the sentence of two months be carried into effect to commence forthwith.  The learned stipendiary Magistrate was unable to find grounds for excusing the failure of the appellant to comply with the conditions of the bond. 
5 It was alleged by the appellant in these proceedings, in his outline of submissions:

1. that the learned stipendiary Magistrate did not ask the appellant if he was aware of the consequences of the admission of his breach and should have done so: Cooling v Steel (1971) 2 SASR 249 at 251;

2. that the learned stipendiary Magistrate did not enquire whether legal representation or advice was required;

3. that the learned stipendiary Magistrate should have warned the appellant that he was facing the prospect of imprisonment: McFadzean v Hayes (1986) 133 LSJS 142 at 145;

4. that no submissions on penalty were made on behalf of the appellant;

5. that nothing was said about the reasons for his failure to perform community service;

6. that his personal circumstances were not put before the court: Cooling v Steel (supra).

6 It was also alleged that knowledge of the personal circumstances of the appellant were essential before contemplating an order for imprisonment: R v Eckhardt (1971) SASR 347.
7 On the hearing of the appeal, I gave leave to amend the grounds of appeal and the grounds now read:

1. That her Honour, the learned stipendiary Magistrate erred in not making it abundantly clear to the appellant that he stood in grave jeopardy of imprisonment if he did not obtain proper advice;

1. That her Honour, the learned stipendiary Magistrate erred in sentencing the appellant without sufficient knowledge of his personal circumstances, in particular his psychiatric illness;

1. That her Honour, the learned stipendiary Magistrate erred in not extending the period of time in which the appellant could complete his remaining hours of community service, in view of his psychiatric illness;

1. That in all the circumstances the sentence of imprisonment was manifestly excessive. 

8 I requested a report on this matter from the learned stipendiary Magistrate, pursuant to Rule 97.14 of the Supreme Court Rules and a report was duly obtained.  In the report the learned stipendiary Magistrate said:
"I do not have a clear recollection of the above defendant, however my notebook and the court documents tell me that he did appear unrepresented, and although I cannot specifically recall so doing, it has always been my practice where a person is unrepresented and potentially facing imprisonment, to explain their rights and the consequences of the application and offer an opportunity to obtain legal advice. 

As to the basis upon which I made the order that I did, I refer his Honour to the contents of the affidavit of George Kokotis of the local Department for Correctional Services on the 20th of February, 1998, which sets out the history of the matter. 

The defendant was recalcitrant in court, argumentative with Mr Kokotis, and offered no explanation (let alone an adequate explanation) for performing but 14 of the 100 hours ordered within the six months allowed, or for his failure to co-operate with the Department for Correctional Services authorities as set out in Mr Kokotis's affidavit. However, whilst I cannot recall the details, I do recall that the matter was ventilated at length between the defendant, Mr Kokotis and myself and before I activated the sentence as sought. I could find no grounds under S.58(3) or (4) of the Criminal Law (Sentencing) Act 1988 to do otherwise.

Finally, no person raised with me, nor was it apparent, that the psychiatric report was required, and I mention the references to the medical certificates in the affidavit of Mr Kokotis."

9 Those were the material parts of the learned stipendiary Magistrate's letter which I thought I should put on record.  It may well be that the learned stipendiary Magistrate raised with the appellant all or some of the matters referred to above, but that the appellant, being in a strange environment, did not fully comprehend the situation.  In the circumstances I do not find it necessary to resolve this issue. 
10 On the last occasion of the hearing of this appeal, I indicated that I would seek a psychiatric report in relation to the appellant and, following the hearing, I did so and supplied a copy to counsel.  I indicate that no such report was available to the learned stipendiary Magistrate at the time of sentencing and no one raised with her the question of such a document.  The report I have now received is from Dr K P O'Brien, Consultant Forensic Psychiatrist at the Forensic Mental Health Services, a specialist unit of the Royal Adelaide Hospital.  Dr O’Brien said on p3 of his report:
"It is my view that this is a rather unfortunate affair.  It would seem that Mr Harris' psychiatric condition has been stable for quite some time and because of this perhaps insufficient attention was paid as to how his illness might impact on his working capacity and particularly he[sic] capacity to interact with other people.  Furthermore, it is clear to me that Mr Harris has quite marked obsessional/paranoid attitudes which are probably partly related to his personality and also to his illness.  It would seem that he is an individual best left to his own devices and under such circumstances he functions quite well with minimal support.  It is with respect that I say that the making of a Community Service Order, and the insistence (for entirely proper reasons) that it be policed was like ‘waving a red flag to a bull’.  In retrospect, the outcome was hardly surprising, and again in retrospect, could perhaps have been avoided.  Unfortunately, in the meantime Mr Harris has had to serve a short period of time in gaol and now is having to cope with an appeal process before the Supreme Court.  He and his sister are both perplexed and angered that, what they see as, a simple matter has reached this stage. 

It is my opinion that Mr Harris is quite unsuitable for community service work.  His personality structure and, more importantly aspects/vestiges of his illness make him a most unsuitable candidate for that kind of activity.  If an alternative penalty is still considered to be necessary (bearing in mind that he has spent some time in gaol) then perhaps a monetary penalty could be considered."

11 Evidence was also put before me as to the personal circumstances of the appellant, although the evidence was somewhat brief.  It appears that he is 41 years of age, single and unemployed. 
12 It also appears that he has not offended since the imposition of the bond. 
13 Following revocation of the order for suspension, the appellant was in custody for 21 days, after which he obtained bail pending the hearing of this appeal. 
14 Section 58(3) of the Criminal Law Sentencing Act provides that where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that there are proper grounds upon which the failure should be excused, the court may refrain from revoking the suspension, cancel the unperformed hours of community service and revoke, or vary, any other conditions of the bond. Having taken into account all the circumstances of this matter and in particular the matters mentioned by Dr O'Brien in his report, I consider that there are proper grounds to excuse the failure of the appellant to comply with the conditions of the bond. I refer, as authority, to the two cases R v Bates (Court of Criminal Appeal per Nyland J, S6004 23 January 1997, unreported), and R v Mason-Woods (Court of Criminal Appeal per Nyland J, S6513 18 December 1997, unreported). So far as the appellant is concerned, community service is an unsuitable penalty.
15 I allow the appeal. Pursuant to s58(3) of the Sentencing Act, I set aside the order revoking the order for suspension of sentence, I cancel the unperformed hours of community service and I order that the conditions of the bond be varied to provide that during the period of the bond the appellant be under the supervision of a probation officer and that he undergo such psychiatric treatment as may be directed by his probation officer.
16 Further consideration of this matter is adjourned to Wednesday, 28 October 1998 at 9 am.  to enable the appellant in the meantime to acknowledge the bond as varied.