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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] SASC 76
Decision Date: 3 June 2016

CaseChat Overview and Summary

The case of Hayes v Department for Correctional Services concerns the appeal by the appellant, who was subject to a community service order imposed by the Magistrates Court of South Australia. The appellant was a single mother experiencing significant personal difficulties, including domestic violence, financial hardship, and anxiety and depression. Despite these challenges, she failed to comply with the terms of her community service order, leading to a breach. The appeal was heard by the Supreme Court of South Australia, which was tasked with determining whether the appellant's personal circumstances could be considered in finding proper grounds for excusing her breach of the community service order.

The primary legal issue in this case was whether the personal circumstances of the appellant, which included domestic violence, financial hardship, and mental health issues, could be taken into account in determining whether proper grounds existed to excuse her breach of the community service order. The court needed to balance the appellant's challenging personal situation with her repeated failure to comply with the court's orders, which had been extended multiple times over the years. The appeal hinged on whether the appellant's personal circumstances were so closely connected to the breach that they could be considered in finding proper grounds under section 71(7) of the relevant Act.

The Supreme Court found that while the appellant's personal circumstances were indeed difficult and worthy of sympathy, they did not excuse her breach of the community service order. The court held that the existence of "proper grounds" in section 71(7) is confined to a consideration of the nature of the breach and the circumstances in which it was committed. The court agreed with the reasoning in Wonnocott that if an offender's personal circumstances necessarily inform the nature of the breach and the circumstances in which it was committed, those circumstances can be relevant. However, in this case, the court concluded that the appellant's personal circumstances did not sufficiently explain her breach. Despite multiple warnings and extensions, the appellant failed to prioritise her community service obligations, leading to the conclusion that there were no proper grounds to excuse her breach. Consequently, the appeal was dismissed.

The final orders of the court were to dismiss the appeal, thereby upholding the decision of the Magistrates Court. The court emphasised the importance of ensuring compliance with court orders to maintain the rule of law and the authority of the court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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.