Hayes v Department for Correctional Services

[2016] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HAYES v DEPARTMENT FOR CORRECTIONAL SERVICES

[2016] SASC 76

Judgment of The Honourable Justice Stanley

3 June 2016

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY SERVICE ORDERS

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

On 15 December 2015 a magistrate sentenced the appellant to 39 days imprisonment for breach of a community service order.  This is an appeal from that sentence. 

The appellant had been convicted of a number of offences, predominantly motor vehicle offences.  They resulted in fines totalling $17,093.65.  On 7 September 2010 a magistrate ordered the appellant to perform 320 hours of community service within 18 months pursuant to an application for remittance by the appellant. Over the succeeding five years the appellant repeatedly failed to perform her community service and the respondent brought a number of applications for enforcement.  On each occasion the appellant admitted breaching the orders. On 25 July 2012 a magistrate ordered the appellant to perform the outstanding 320 hours of community service within 18 months.  On 29 November 2013 a magistrate varied the community service order and gave the appellant a further six months to complete the outstanding community service of 316.5 hours.  On 17 December 2014 Magistrate Sprod ordered the appellant to perform the 304.5 hours of community service outstanding within six months.  In doing so he issued an unequivocal warning to the appellant that if she did not perform her community service she would go to jail.  The appellant next appeared in court on 9 October 2015 before Magistrate McLeod charged with breaching the order made by Magistrate Sprod.  She had not performed any community service subsequent to the order made on 17 December 2014.  The magistrate heard submissions on behalf of the appellant that she had medical and mental health issues, unstable accommodation and domestic violence problems.  The matter was adjourned to 15 December 2015. On 15 December 2015 Magistrate McLeod ordered the remaining community service hours to be converted to days imprisonment. The appellant was ordered to serve 39 days imprisonment, taking account of one day already spent in custody.

The sole ground of appeal is that the sentence imposed was manifestly excessive and the magistrate erred in failing to find proper grounds to excuse the breach and cancel the remaining hours or alternatively impose a fresh order to be completed within six months.

Held (per Stanley J):

1. If an offender’s personal circumstances necessarily inform the nature of the breach of the community service order and the circumstance in which it was committed, those personal circumstances can be relevant to finding the existence of proper grounds to excuse the offender’s failure to comply with the community service order pursuant to s 71 of the Criminal Law (Sentencing) Act 1988 (SA) (at [26]).

2.  It is not accepted that the circumstances in which the breach was committed can be explained by the appellant’s personal circumstances so as to establish that there exists proper grounds to excuse her breach.  There was no error on the part of the magistrate in failing to find that good reasons existed to excuse the breach (at [29] - [32]).

4.  Appeal dismissed (at [34]).

Criminal Law (Sentencing) Act 1988 (SA) s 71(7), s 47(1)(e), referred to.
R v Buckman (1988) 47 SASR 303, discussed.
R v Jongewaard (2009) 266 LSJS 283; House v The King (1936) 55 CLR 499; R v Kreutzer (2013) 118 SASR 211; R v Patzel [2012] SASCFC 108; R v Smith [2014] SASCFC 98; Wonnocott v The Department of Correctional Services [2009] SASC 18; Police v Vannarath [2015] SASC 187; Marshall v Police [1999] SASC 397; Manning v Police (1993) 59 SASR 427; Police v Summers [1998] SASC 6950, considered.

HAYES v DEPARTMENT FOR CORRECTIONAL SERVICES
[2016] SASC 76

Magistrates Appeal

STANLEY J:

Introduction

1. On 15 December 2015 a magistrate sentenced the appellant to 39 days imprisonment for breach of a community service order.  This is an appeal from that sentence. 

2. The appeal is out of time.  The respondent does not oppose an extension.  In the circumstances I extend the time within which to bring the appeal.

3. The appellant had been convicted of a number of offences.  These were predominantly motor vehicle offences.  They were extensive.  They resulted in fines totalling $17,093.65.  On 7 September 2010 a magistrate ordered the appellant to perform 320 hours of community service within 18 months pursuant to an application for remittance by the appellant.

4. Over the succeeding five years the appellant repeatedly failed to perform her community service and the respondent brought a number of applications for enforcement.  On each occasion the appellant admitted breaching the orders.

5. On 25 July 2012 a magistrate ordered the appellant to perform the outstanding 320 hours of community service within 18 months.  On 29 November 2013 a magistrate varied the community service order and gave the appellant a further six months to complete the outstanding community service of 316.5 hours.  On 17 December 2014 Magistrate Sprod ordered the appellant to perform the 304.5 hours of community service outstanding within six months.  In doing so he issued an unequivocal warning to the appellant that if she did not perform her community service she would go to jail. 

6. The appellant next appeared in court on 9 October 2015 before Magistrate McLeod charged with breaching the order made by Magistrate Sprod.  She had not performed any community service subsequent to the order made on 17 December 2014. 

7. Submissions were made to Magistrate McLeod setting out the history of the matter.  The respondent submitted that the appellant was not a suitable candidate for community service and that a further order of community service was opposed given that there had been four enforcement applications since 2010 during which time the appellant had only performed 15.5 hours of community service, had been afforded a number of opportunities to perform the required work, and had a poor rate of compliance with the programs provided by the Department for Correctional Services.  The magistrate heard submissions on behalf of the appellant that she had medical and mental health issues, unstable accommodation and domestic violence problems.  The matter was adjourned to 15 December 2015.

8. On this occasion the magistrate heard further submissions from the parties.  Counsel for the appellant submitted that she be given another opportunity to complete the 304.5 hours of community service within six months.  It was submitted that her general practitioner had completed a mental health care plan, that she had childcare in place and the support of her family, although her lease was going to end some time in the new year.  The respondent again opposed a further order for community service.

   Reasons of the magistrate

9. In imposing sentence Magistrate McLeod said:

   In this matter the defendant has admitted to breaching her community service order and before the court I have sworn evidence in the form of an affidavit from an officer of the Department of Correctional Services which sets out the admitted long and involved history of failure on the part of the defendant to comply with an order that was made now several years ago and the attempts that DCS has made to engage with the defendant over a long period of time and the many opportunities that have been afforded to her to comply with the order both by DCS and by the Court.

   …

   The law imposes a solemn obligation on this Court to ensure that orders are complied with and it is only as a matter of last resort essentially where a Court will take the step of imposing a term of imprisonment in relation to non-compliance with community service orders.  Usually there is a background to how the community service order came into force in the first place and it should not be forgotten that this community service order of 320 hours which was made in 2010, five years ago, covered such offences as drink driving, due care, drive unregistered, drive uninsured, speeding numerous times, some dishonesty offences, a slew of parking offences for which the defendant is yet to atone and which no doubt would have otherwise resulted in fines amassing a large figure.   So this is not a case of one particular incident that the defendant has received penalty which perhaps might have been suspended and now we are seeing whether or not the suspension should be revoked but it is a course of unlawful conduct which eventually was bundled up in the rather lenient approach of a community service order.

   Five years on and 3 further court hearings later when alternatives to prison were explored, that lenience has achieved little and the defendant has still to atone for the very reason underlying why the community service order was put in place.  Of the 320 hours ordered the defendant has only managed to attend on 4 occasions to do her community service with 304.5 hours left outstanding.  This, over a period of 5 years.

   Ms Ballans has put in her submissions both today and beforehand the reasons behind the defendant’s inability to comply with the order and has urged the court to find proper grounds to excuse the failure to comply.  I take all that into account, balanced against the history of this matter but at the end of the day I am satisfied that neither is this matter trifling nor are there proper grounds that exist to excuse the failure.  It is time for the defendant to face the responsibility of her actions.

   In my view the hours should convert to days imprisonment.  It converts to 40 days and I am satisfied that having already served one of those forty days the defendant should serve the balance of 39 days which I impose effective forthwith. 

   The appeal

10. The sole ground of appeal is that the sentence imposed was manifestly excessive and the magistrate erred in failing to find proper grounds to excuse the breach and cancel the remaining hours or alternatively impose a fresh order to be completed within six months in accordance with s 71(7) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act).

    Approach on appeal

11. The test to be applied in determining whether to interfere on appeal with a decision on sentence is set out in R v Jongewaard[1] where Doyle CJ said:[2]

    The issue for this Court is whether the Judge was wrong in imposing the sentence that he imposed … This Court does not substitute its opinion as to an appropriate sentence.  The Court will intervene only if error is established.  As Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]:

    As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as “manifest inadequacy”.

    [1] [2009] SASC 346, (2009) 266 LSJS 283.

    [2] [2009] SASC 346 at [40], (2009) 266 LSJS 283 at 288 – 289.

12. A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence.  Only if there is an error of the kind described in House v The King[3] does the appeal court have the power to quash the sentence passed below.  As was said in R v Kreutzer[4] by Kourakis CJ,[5]if the error identified by the court is manifest excess or inadequacy (an outcome error), the court will fix the sentence it thinks ought to have been imposed.  If the error identified by the court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable.  On the other hand, the court may, after finding the process error, nonetheless take the view that the same sentence should have been passed.  In such a case, it will dismiss the appeal. 

    Section 71 of the Sentencing Act

    [3] [1936] HCA 40, (1936) 55 CLR 499 at 504 - 505.

    [4] [2013] SASCFC 130, (2013) 118 SASR 211.

    [5] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214 – 215.

13. The term of imprisonment was imposed by the magistrate pursuant to s 71 of the Sentencing Act.

14. Section 71 of the Sentencing Act relevantly provides:

    (1) Subject to this section, an order requiring performance of community service is enforceable by imprisonment in default of compliance.

    (2) The term of imprisonment to be served in default of compliance will be—

    (a)     a term calculated on the basis of one day for each 7.5 hours of community service remaining to be performed under the order; or

    (b)     the prescribed period,

    whichever is the lesser.

    (3) If it appears to the court, by evidence given on oath, that a person has failed to comply with an order requiring performance of community service, the court may—

    (a)     issue a notice requiring the person to appear before the court at the time and place specified in the notice to show cause why a warrant of commitment should not be issued against the person for the default; or

    (b)     issue a warrant for the person's arrest.

    …

    (5) If the court is satisfied that the person has failed to comply with the order requiring performance of community service—

    (a)     the court may issue a warrant of commitment for the appropriate term of imprisonment fixed in accordance with subsection (2); but

    (b)     if the person is a youth, the court may, instead of taking action under paragraph (a), make an order for home detention for a period fixed on the same basis.

    (6) The court may, on issuing a warrant under subsection (5), direct that the imprisonment to which the person becomes liable by virtue of the warrant be cumulative on any other term of imprisonment being served, or to be served, by the person.

    (7) Despite subsection (5), if the court is satisfied that the failure of a person to comply with an order requiring performance of community service was trivial or that there are proper grounds on which the failure should be excused, the court—

    (a)     may refrain from issuing a warrant of commitment; and

    (b)     may—

    (i) extend the term of the order by such period, not exceeding six months, as the court thinks necessary for the purpose of enabling the person to perform the remaining hours of community service (if any);

    (ii) if the order has expired, impose a further order, for a term not exceeding six months, requiring the person to perform the number of hours of community service unperformed under the previous order;

    (iii) cancel the whole or a number of the unperformed hours of community service under the order.

    …

    Submissions on appeal

15. Ms Ballans, counsel for the appellant, submitted that the learned magistrate erred in failing to find that there were proper grounds to excuse the appellant’s failure to comply with the community service order made by Magistrate Sprod on 17 December 2014. 

16. She submits that the appellant’s life was in complete chaos.  She was the sole carer for her young daughter, she had difficulties with child care, she was the victim of serious domestic violence, she struggled to maintain suitable accommodation, she had mental health issues with anxiety and depression and experienced financial hardship.  She submitted that the appellant did not completely disregard her community service obligations and that she maintained communication with her community corrections officer, albeit on an erratic basis.  She submitted that the failure to comply with community service obligations must be understood against a background where once she was reported for breach, she was unable to undertake any community service until such time as the alleged breach had been dealt with by the court.  This meant that the time within which to undertake the community service obligation was about half the period of five years.  She acknowledges this was still a significant period. 

17. Ms Ballans submits that the one day the appellant has spent in custody had a salutary impact upon her and has confronted her with the terrifying prospect of six weeks in custody during which she does not know what would happen to her daughter.  She fears that the child’s father, who is the subject of a confirmed intervention order, would attempt to take custody of the child if she was in prison.  She submits the appellant is now in a better position to undertake her community service obligation as she is now protected by a confirmed intervention order which diminishes the fear of domestic violence, and she has been granted a full childcare rebate. 

18. Mr Metzer, counsel for the respondent, submits that there is no error in the approach taken by the magistrate. 

19. He submits that in considering whether to excuse a breach, proper grounds are confined to a consideration of the nature of the breach and the circumstances in which it was committed.  That focuses attention on the failure to comply with the order made by Magistrate Sprod on 17 December 2014.  The personal circumstances of the appellant are not relevant to that question.

20. He submits the failure to perform any more than 15.5 hours of community service over five years demonstrates that the appellant did not give priority to meeting her community service obligations. She was aware of her obligations and had ample opportunity to comply with them. This was the fifth order and no hours were performed under it before it expired. Over the period she should have been meeting those obligations she has continued to commit further offences of a similar nature to the original offences for which the community service was imposed. The appellant’s community service obligations have not been regarded by her as a deterrent. She has deliberately flouted the authority of the court. In the circumstances there was no basis for the magistrate to find that proper grounds existed to excuse the breach. In those circumstances, there was no alternative but to impose a period of imprisonment pursuant to s 71(7) of the Sentencing Act.

    Proper grounds and the appellant’s personal circumstances

21. The meaning of “proper grounds” in the context of s 71(7) and cognate legislation has been considered in a number of authorities.

22. In R v Patzel[6] Sulan J, with whom Gray J and I agreed, addressed the provisions of s 58 of the Sentencing Act which concerns the orders the court may make on breach of a bond. Section 58(3) is a cognate provision to s 71(7). Section 58(3) permits the court to refrain from revoking a suspension where there are proper grounds to excuse the failure to comply with the conditions of the bond. Sulan J said:[7]

    The test to determine whether a breach is to be excused and whether the Court should refrain from revoking a suspended sentence was discussed in Buckman.[8]  Proper grounds for excusing a breach look to the nature of the breach and the circumstances in which it was committed.[9]  The personal circumstances of a defendant as they exist are not relevant to that question.  As King CJ relevantly observed:[10]

    The purpose of subs (5) is different.  It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course.  One such factor is the trivial character of the breach.  The other is the existence of proper grounds upon which the breach might be excused.  I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it.  I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue.  The notion is that of the failure being excused from being the catalyst of the activation of the sentence.

    [6] [2012] SASCFC 108.

    [7] [2012] SASCFC 108 at [38].

    [8]    R v Buckman (1988) 47 SASR 303.

    [9]    R v Buckman (1988) 47 SASR 303, 307 per Jacobs J.

    [10]   R v Buckman (1988) 47 SASR 303, 304.

1. In R v Smith[11] Kourakis CJ, with whom Vanstone and Blue JJ agreed, also addressed the operation of s 58(3). This was an appeal from a judge who had excused a breach of bond. The judge below held that in considering whether there are proper grounds established pursuant to s 58(3) those grounds must relate to the nature of the breaching offence and not to the personal circumstances of the offender, citing Marshall v Police.[12] The Chief Justice held that there was no error in the approach taken by the judge. 

   [11] [2014] SASCFC 98.

   [12] [1999] SASC 397.

2. In Wonnocott v The Department of Correctional Services[13] David J, in considering an appeal from a magistrate who declined to find the existence of “proper grounds” to excuse an appellant’s breach of a community service order pursuant to s 71(7), referred to the decision of the Full Court in R v Buckman[14] cited by Sulan J in Patzel.  In Buckman King CJ held that in determining whether there are “proper grounds” to excuse a breach of bond, the court looks to the nature of the breach and the circumstances in which it was committed.  It does not specifically look to the offender’s personal circumstances.  However, David J considered an offender’s personal circumstances may become relevant if they necessarily inform the nature of the breach and the circumstances in which it was committed. 

   [13] [2009] SASC 18.

   [14] (1988) 47 SASR 303.

3. To similar effect, in Police v Vannarath[15] Nicholson J, in considering whether a magistrate erred in failing to find proper grounds pursuant to s 58(3), after citing the Full Court’s judgment in Buckman, noted that there are authorities to the effect that there will be occasions where a defendant’s personal circumstances, of an exceptional or special nature, might be relevant to the question of the existence of “proper grounds”.  He referred to Johnson v SA Police[16] and Reynolds v R.[17]Both of these authorities were cited in Marshall v Police.[18] In Marshall Mullighan J noted that there have been decisions of judges of this Court which differ from the approach in Buckman, referring to Johnson and Reynolds.  In the former case Debelle J expressed the view that s 58(3) of the Sentencing Act is not limited so as to confine the existence of “proper grounds” to the nature of the breaching offence, but went on to hold that the existence of proper grounds should depend upon special or exceptional circumstances.  Debelle J expressed a similar view in Reynolds.  The other members of the Court, namely, Mullighan and Nyland JJ, did not consider it necessary to express any view about the matter.  In Manning v Police[19] Perry J concluded that personal circumstances could contribute to the existence of proper grounds.  Olsson J took a similar view in Police v Summers.[20]Nonetheless in Marshall Mullighan J considered he was bound by Buckman in holding that proper grounds under s 58(3) look to the nature of the breach and the circumstances in which it was committed and not the personal circumstances of the offender.

   [15] [2015] SASC 187.

   [16]   Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995. 

   [17]   Unreported, Court of Criminal Appeal of South Australia, 27 October 1995. 

   [18] [1999] SASC 397.

   [19] (1993) 59 SASR 427.

   [20] [1998] SASC 6950.

4. In my view, the existence of “proper grounds” in s 71(7) is confined to a consideration of the nature of the breach and the circumstances in which it was committed.  I agree, however, with David J in Wonnocott that if an offender’s personal circumstances necessarily inform the nature of the breach of the community service order and the circumstance in which it was committed, those personal circumstances can be relevant to finding the existence of proper grounds.  It may be that the circumstances in which the breach occurred is so closely connected to features of the offender’s personal circumstances as to explain the breach.  In those circumstances, those features of the offender’s personal circumstances will be relevant to whether the court finds the existence of proper grounds to excuse the breach. 

   Consideration

5. Over the period from 2010 when the community service obligation of 320 hours was imposed, the appellant has experienced considerable difficulties in her life.  Her counsel has detailed those difficulties which I have summarised earlier.  The appellant’s personal circumstances can only attract sympathy.  She is the single mother of a small child, a victim of domestic violence and has experienced significant financial hardship.  In addition, although there was no evidence before the magistrate or this Court, I am prepared to accept the submission that she has suffered anxiety and depression.  Nevertheless, when Magistrate Sprod last extended lenience to the appellant, he put her on notice, in robust and unequivocal terms, that if she failed to comply with her community service obligations, she faced the real prospect of imprisonment.  That warning was well founded given her previous failure over a number of years to satisfy the terms of the community service order despite a number of extensions.  Yet it fell on deaf ears.  In the face of that warning the appellant failed to undertake a single hour of work before she again came before the Magistrates Court to be dealt with for the breach of a community service order.

6. At best, her conduct reflects a failure on her part to make the performance of her community service obligations a priority.  At worst, it suggests a deliberate flouting of the authority of the court.

7. I do not accept that the circumstances in which the breach was committed can be explained by the appellant’s personal circumstances so as to establish that there exists proper grounds to excuse her breach. The domestic violence to which she was subject predated the order of Magistrate Sprod of 17 December 2014. She was not the subject of further domestic violence after that time. No doubt the need for child care was an impediment to the performance of her work. However, pursuant to s 47(1)(e) of the Sentencing Act she was required to perform a minimum of four hours of community service per week.  Her counsel informed the court that she had access to child care which she had utilised, although plainly not for the purposes of fulfilling her obligation pursuant to the court order.  Financial hardship and unstable accommodation undoubtedly presented difficulties but no effort was made by the appellant to undertake any community service work during the period subsequent to 17 December 2014.  Further, while I accept that she was suffering from anxiety and depression, there is no evidence before the court that this incapacitated her from performing work in accordance with the order of the court.

8. Moreover, while the appellant came before the Magistrates Court to be dealt with for breach of the order made by Magistrate Sprod, in evaluating whether Magistrate McLeod erred in finding that proper grounds did not exist to excuse the breach, he was entitled to have regard to the repeated grants of leniency previously extended to the appellant by the courts to no avail. 

9. I do not accept the submission that the magistrate should have found the existence of proper grounds on which to excuse the breach on the basis that the one day the appellant had spent in custody had a sobering impact upon her, such that the court could have confidence that further lenience would result in her compliance with the court’s order.  The fact is that the appellant had already served time for previous failures to appear when warrants had been issued.   Plainly, they had not had the requisite salutary effect.  There is no reason to think the position now would be different.

10. Accordingly, I am not persuaded that there was any error on the part of the magistrate in failing to find that good reasons existed to excuse the breach.

11. The result is regrettable both for her and for her child.  But the community services orders imposed are punitive.  The courts must be vigilant to ensure those who are subject to them comply with them.  The rule of law will inexorably erode if the authority of the court is flouted with impunity.

    Conclusion

12. I would dismiss the appeal.