HART v Police

[2010] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HART v POLICE

[2010] SASC 47

Judgment of The Honourable Justice Nyland

3 March 2010

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

Appeal against sentence - appellant sentenced for multiple offences - error with respect to maximum sentence applicable to one sentence - appeal allowed - appellant re-sentenced - proper grounds to refrain from revoking order for suspension of earlier sentence but bond extended.

Summary Offences Act 1953 ss 6(2), 7(1)(a), 18(2); Criminal Law Consolidation Act 1935 ss 20(3), 85(3), referred to.
R v Buckman (1988) 47 SASR 303, applied.
Police v Lindblom [2009] SASC 168; R v Marston (1993) 60 SASR 320; R v Gannon (2009) 103 SASR 398; Drewett v Rowbottom (1987) 139 LSJS 468, considered.

HART v POLICE
[2010] SASC 47

1. NYLAND J:          This is an appeal against sentence. The appellant appeared before a Stipendiary Magistrate in the Magistrates Court at Mount Gambier on 14 October 2009 and pleaded guilty to an offence of loitering in a public place, contrary to s 18(2) Summary Offences Act 1953 (“SOA”). That offence was alleged to have occurred on 1 June 2008. The maximum penalty for that offence is a fine of $1,250 or imprisonment for three months. The charge had been set down for trial on 14 October 2009 and the plea was therefore entered very late. Notwithstanding the lateness of the plea, the Magistrate indicated he would give a small discount to the appellant for it. He sentenced the appellant to 60 days imprisonment, reduced by six days as discount for his plea of guilty, resulting in a sentence of 54 days.

2. On the same date, the appellant pleaded guilty to a charge of disorderly behaviour in a public place, contrary to the provisions of s 7(1)(a) SOA. That offence was alleged to have occurred in Mount Gambier on 7 March 2009. That offence carries a maximum penalty of $1,250 or imprisonment for three months. The learned Magistrate sentenced the appellant to a term of 20 days imprisonment for that offence, reduced from 30 days to reflect his plea of guilty.

3. The appellant had previously appeared in the Mount Gambier Magistrates Court on 15 October 2007. On that occasion, a sentence of five months imprisonment was imposed with respect to two counts of damage property, contrary to s 85(3) of the Criminal Law Consolidation Act 1935 (“CLCA”), one count of assault, contrary to s 20(3) CLCA and one count of hinder police, contrary to s 6(2) SOA. That sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of three years. It also included a provision that the appellant be under the supervision of a probation officer for a period of 12 months.

4. The appellant’s convictions for loitering and disorderly behaviour breached that bond and the learned Magistrate therefore made an order revoking the order for suspension of sentence.  He was not prepared to find any special circumstances which would permit him to reduce that sentence, nor any reason to refrain from making an order for revocation of the order for suspension.  The present sentence was made cumulative on the five months to be served pursuant to the suspended sentence.  That left the appellant subject to a total sentence of seven months and 14 days. 

5. The Magistrate gave detailed reasons for the imposition of his sentence and made it clear that he took a serious view of the conduct of the appellant.  In imposing the penalty with respect to the disorderly behaviour offence, however, the learned Magistrate fell into error as he sentenced on the basis that the maximum penalty was six months imprisonment when in fact the correct maximum penalty was three months imprisonment.  On the hearing of the appeal Counsel for the respondent conceded that the Magistrate had fallen into error and it was therefore open to this court to exercise the sentencing discretion afresh. 

6. The circumstances relating to the loitering charge are set out in Exhibit CWO2 to the affidavit of Craig Warren Otterspoor, sworn on 4 December 2009.  Mr Otterspoor was the police prosecutor who appeared in court at the time of sentence.  This offence occurred at about 2.10am on Sunday, 1 June 2008 outside an entertainment complex in Mount Gambier.  Police were called as a result of a disturbance.  The appellant appears to have attempted to intervene when the police were arresting a friend.  The appellant was told to move away by the police and eventually did so, but as he did, he used offensive language to them.  The appellant was arrested and taken into police custody.  It appeared that he was slightly affected by alcohol at the time. 

7. The details of the disorderly behaviour charge are contained in Exhibit CWO1 to Mr Otterspoor’s affidavit of the same date.  This offence occurred at about 1.00am on 7 March 2009.  Police were tasked to a disturbance on Bay Road, Mount Gambier, as a result of two men fighting outside the Rivers clothing store.  The two men had hold of each other’s shirts and were pulling each other’s shirts towards themselves.  CCTV footage from the camera affixed to the nearby street light showed the two men grabbing each other and pushing each other back and forth for about 35 seconds before the police arrived and arrested them both.  The appellant denied acting in a disorderly manner and told the police that the man with whom he was fighting was his mate.  The appellant was also intoxicated on this occasion.

8. The appellant’s antecedent report is Exhibit CWO4 to Mr Otterspoor’s affidavit.  The learned Magistrate was clearly influenced by matters contained therein, as he referred to the appellant’s history of violence and disturbance and resisting police.  These were relevant matters which limited the ability of the court to take a lenient approach to the present offences.  In my opinion, the Magistrate was correct in deciding that it was appropriate to impose a sentence of imprisonment for each of these matters. 

9. In the scheme of things however, these offences appear to be at the lower end of the scale of seriousness.  In my opinion, an appropriate sentence with respect to the charge of loitering would have been 14 days, reduced to 12 days to reflect the plea of guilty.  I would not, however, interfere with the sentence imposed with respect to the disorderly behaviour charge.  As these were separate incursions into criminal conduct, it is appropriate for the sentences to be cumulative upon each other.  That would make a total sentence of 32 days. 

10. The more difficult problem arises with respect to the revocation of the order for suspension of sentence.  The circumstances of the offending which led to the imposition of a sentence of five months imprisonment are set out in the Police Apprehension Report which is annexed to the affidavit of Anthony Shane McMahon dated 9 December 2009.  It is a concern that the present offences appear to be of a similar character to those which resulted in the suspended sentence. Counsel for the appellant acknowledged that matter but submitted on the hearing of the appeal that the appellant’s conduct did not amount to a premeditated or considered return to the type of behaviour which gave rise to the bond and described them as “acts of spontaneous stupidity whilst in an intoxicated state”. 

11. Mr Pasin appeared as counsel for the appellant at the hearing in the Magistrates Court and the matters of mitigation which he put to the learned Magistrate are set out in his affidavit, sworn on 11 December 2009.  He refers to the fact that the appellant was aged 29 years, had the full support of his family and was residing with his parents and two younger brothers at his parents’ home in Millicent.  The Magistrate accepted that in the period since he committed these offences the appellant had adopted a more stable lifestyle but was not prepared to rely on that matter as providing good reason to refrain from revoking the order for suspension. 

12. In R v Buckman[1] King CJ discussed the proper approach to a breach of a condition in a bond upon which a sentence has been suspended, and said:[2]

    There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.

    [1] (1988) 47 SASR 303.

    [2] (1988) 47 SASR 303 at 304

13. He went on to say, however, that where there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence to be activated, that might amount to proper grounds for which the breach should be excused.

14. In R v Marston,[3] King CJ (with whom Perry and Duggan JJ agreed) again referred to the importance of the courts adhering to the principle expressed in Buckman and pointed out that:[4]

    Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.

    [3] (1993) 60 SASR 320.

    [4] (1993) 60 SASR 320 at 322.

15. King CJ nevertheless went on to refer to the marked disproportion between the seriousness of the breaching offence and the length of the sentence which was to be activated if the suspension were revoked in that case.  He referred to it as “a very important consideration”.[5]

    [5] (1993) 60 SASR 320 at 322.

16. Buckman was later cited with approval by Sulan J in R v Gannon[6] wherein he said: - #

    … when considering similar provisions under the Offenders Probation Act 1913 (SA), King CJ and Jacobs J decided that the question of whether the failure of a person to comply with the conditions of their bond is trivial, or whether there are proper grounds upon which the failure should be excused, is limited to a consideration of looking at the nature of the breach and the circumstances in which it was committed. If there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated, then this might amount to proper grounds upon which the failure should be excused. In considering that question, matters such as the relatively minor nature of the offence constituting the breach, the difference in character between it and the offence for which the original sentence was imposed, and the disproportion between the seriousness of the offence constituting the breach and the sentence which would be activated, are factors to which the court will have regard in considering whether proper grounds exist to excuse the failure to observe the conditions of bond.

    [6] (2009) 103 SASR 398 at 404-5.

17. In Drewett v Rowbottom[7] White J recognised that the grant of too many bonds has the potential to make “a mockery of the system”[8].  However, he went on to say:[9]

    The discretion to grant a further bond in a particular case is an unfettered judicial discretion.  It cannot be pre-empted by a blanket policy to the contrary.

    [7] (1987) 139 LSJS 468.

    [8] (1987) 139 LSJS 468 at 470.

    [9] (1987) 139 LSJS 468 at 470.

18. In considering these matters it is important to bear in mind the question of the rehabilitation of the offender.  Gray J said in Police v Lindblom:[10]

    The hearing of the appeal extended from July 2008 until May 2009 and allowed this Court the opportunity to monitor the defendant’s progress. This has assisted in the conclusion that the defendant is taking significant steps toward his rehabilitation. It is to be recognised that one of the primary purposes of the criminal justice system is to provide protection to the community. Rehabilitation of an offender has been said to be one of the best means of providing that protection.

    [10] [2009] SASC 168 at [17].

19. I consider that the appellant has good prospects for rehabilitation. 

20. As to the nature of the offending, it would not be appropriate to categorise the breaching offences as trivial.  I consider, however, that they can be described as impulsive and fleeting acts of stupidity.  In such a circumstance, I believe that to activate the previously suspended sentence of five months imprisonment would be to impose a punishment disproportionate to the seriousness of those offences.  This provides good reason to excuse the failure to comply with the terms of the bond.  As it happens, the appellant was in custody from 14 October 2009 until 14 December 2009 when he was released on bail, pending the resolution of the appeal.  I trust that period of imprisonment has been a salutary experience for him.

21. The appeal will be allowed.  I set aside the sentence imposed in the Mount Gambier Magistrates Court.  In lieu thereof, with respect to the charge of loitering, I sentence the appellant to 12 days imprisonment.  As to the charge of disorderly behaviour I sentence the appellant to 20 days imprisonment.  That makes a total sentence of 32 days, which will commence from 14 October 2009.  I set aside the order revoking the suspension of the sentence imposed on 15 October 2007.  I find that there are proper grounds to refrain from revoking the suspension of sentence.  The bond entered into by the appellant on 15 October 2007 will therefore remain in force, but I reduce the sentence included therein to a sentence of four months, to give some credit to the appellant for time already served.  I consider, however, that it is appropriate to extend the bond by a further period of six months.  It will be a condition of the extended bond that the appellant be under the supervision of a Community Corrections Officer for a period of three months from the date hereof, whose lawful directions he shall obey.