Hebberman v Police
[2010] SASC 98
•9 April 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
HEBBERMAN v POLICE
[2010] SASC 98
Judgment of The Honourable Justice Gray
9 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY SERVICE ORDERS
Appeal against sentence - defendant and appellant pleaded guilty to offence of being unlawfully on premises contrary to section 17(1) of the Summary Offences Act 1953 (SA) - defendant placed on good behaviour bond of six months in the sum of $500.00 - condition of bond that defendant not attend at premises the subject of the primary charge - defendant breached the condition of bond by attending at those premises - Magistrate convicted defendant of offence of being unlawfully on premises and ordered that defendant perform 100 hours of community service within six months - whether sentence manifestly excessive - whether Magistrate erred in failing to give adequate weight to impact that community service ordered would have on defendant's employment and failing to allow defendant to make submissions on that matter - whether defendant's non-compliance with bond could be characterised as trivial and requiring no further action - whether Magistrate erred in recording a conviction.
Held: appeal allowed - conviction and sentence imposed by Magistrate set aside - defendant placed on 12 month good behaviour bond supervised for six months - condition of bond that defendant perform 40 hours of community service within six months - Magistrate erred in failing to allow material relevant to impact of community service on defendant's employment to be put before Court - denial of procedural fairness requires reconsideration of matter - consideration of characterisation of bond - consideration of discretion to proceed without recording conviction - having regard to circumstances of offence and defendant good reason exists for Court to proceed without recording a conviction.
Summary Offences Act 1953 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39, s 47(1)(h) and s 58(1), referred to.
Cutting v Police [2009] SASC 326; Nollen v Police (2001) 78 SASR 421; Fischer v Chambers (1972) 4 SASR 105; Buttigieg v Police (1999) 74 SASR 229; McAvaney v Quigley (1992) 58 A Crim R 457; R v Lambert [2009] SASC 307; Hodgins v Police (2008) 256 LSJS 270, considered.
HEBBERMAN v POLICE
[2010] SASC 98Magistrates Appeal
GRAY J:
Introduction
This is an appeal against sentence.
On 8 July 2009, the defendant and appellant, Rhys Kym Hebberman, pleaded guilty to the offence of being unlawfully on premises situated behind Shapes Nite Club, Naracoorte on 15 February 2009 contrary to section 17(1) of the Summary Offences Act 1953 (SA).[1] The Magistrate sentenced the defendant without recording a conviction and imposed a bond in the sum of $500.00 to be of good behaviour for a period of six months. It was a condition of that bond that the defendant not attend at or on the premises of Shapes Nite Club. On 2 August 2009, the defendant breached the condition of his bond by attending at those premises.
[1] The maximum penalty for this offence is a fine of $2,500 or imprisonment for six months. Summary Offences Act 1953 (SA) section 17 provides:
(1)A person who has entered, or is present on, premises for an unlawful purpose or without lawful excuse is guilty of an offence.
Maximum penalty:
Where the unlawful purpose is the commission of an offence punishable by a maximum term of imprisonment of 2 years or more—imprisonment for 2 years.
In any other case—$2 500 or imprisonment for 6 months.
(1a) Despite section 5, the onus of proving absence of lawful excuse in proceedings for an offence against this section lies upon the prosecution.
(2)Where a police officer believes on reasonable grounds that a person has entered, or is present on, premises for the purpose of committing an offence, the officer may order the person to leave the premises.
(3)A person who fails to comply with an order under subsection (2) is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
(4)In this section—
premises means—
(a) any land; or
(b) any building or structure; or
(c) any aircraft, vehicle, ship or boat.
Following an application for the enforcement of the breached bond on 17 September 2009, the defendant was sentenced on 19 January 2010. The Magistrate convicted the defendant of the offence of being unlawfully on premises and ordered that the defendant perform 100 hours of community service within six months. It is against these orders that the defendant appeals.
The Magistrate revoked the good behaviour bond and ordered the defendant to pay the amount of the bond of $500.00. There is no appeal against these orders.
Background
The incident giving rise to the charge of being unlawfully on premises occurred in the early morning of 15 February 2009. On that occasion, the defendant had attended at Shapes Nite Club with his partner. At or about 1.50 am the defendant left the nightclub and spent some minutes on the front veranda area. On attempting to re-enter the venue a short time later, the defendant was informed that he could not gain entry to the nightclub, as it was after the nightclub’s 1.45 am curfew. Shortly thereafter, he was seen in the area to the rear of Shapes Nite Club. The defendant was escorted from that area by staff members and informed that he was trespassing on private property. Some ten minutes later, the defendant was again seen in the area to the rear of the nightclub, apparently attempting to gain entry via an emergency fire exit.
The apprehension report discloses that an employee of Shapes Nite Club observed the defendant’s partner talking on her mobile telephone near the fire exit and noted that she appeared as if she was about to open the fire exit. That employee opened the exit and observed the defendant near the fire exit, to the rear of the nightclub, on private property. The employee called out for the defendant to leave, which he did. The employee notified the police, who later attended on the defendant and reported him for being unlawfully on premises. The defendant on being questioned, stated that he could not remember much about the evening as a consequence of his intoxication, but agreed that if he had entered the yard to the rear of the nightclub, he had no lawful excuse for doing so. No incident of bad behaviour on the part of the defendant was alleged other than the fact of being unlawfully on premises.
On 2 August 2009, the defendant attended at Shapes Nite Club in breach of his good behaviour bond. An employee of the nightclub detected the defendant’s presence and ejected him before notifying the police. Again, there was no allegation of drunken or inappropriate behaviour on behalf of the defendant. The defendant paid a fee in order to gain entry to the nightclub and his ejection was as a consequence of an employee being aware that the defendant was subject to a bond barring him from the premises. There was no suggestion that the defendant failed to comply with the request made of him to leave the premises and it would appear that he was cooperative with the police on their arrival. On that occasion the defendant was assessed by the police as being moderately to grossly intoxicated.
It is to be observed that both the offending of 15 February 2009 and that of 2 August 2009 involved minor criminal misconduct. No other criminal intent on the part of the defendant is evident other than a desire to be on the premises of the nightclub for social entertainment purposes. No incidents of damage or aggression were involved. Both incidents occurred in circumstances of alcohol consumption. Apparently, in the time prior to the breach of bond, the defendant had experienced a breakdown in a long term relationship, which had resulted in the defendant increasing the frequency and extent of his alcohol consumption.
The Magistrate, when imposing the good behaviour bond on 8 July 2009, likened the defendant’s behaviour to that of a teenager attempting to gain access to a cinema without paying, but acknowledged that the defendant’s early guilty plea and lack of prior offending warranted proceeding without recording a conviction:
You have pleaded guilty at an early opportunity to being unlawfully on premises. It is perfectly apparent that you entertained some special fascination of getting back into Shapes Nightclub after it had closed. You were intoxicated. This offending sort of reminds me of the things teenage kids do to get into the pictures without paying. But here you are look at your age. I mean it is just absurd that your [sic] even here for this offending. I think intoxication has certainly got something to do with it. If you don’t’ deal with the intoxication part of your life I rather suspect you will be back here again.
But as I say you have pleaded guilty at an early opportunity. You’ve got no prior offending. I have noted the fact that you have been and apologised to the owner of Shapes Nightclub which is a [sic] very pleasing to hear and stands to your credit I also notice that you have a good future in front of you being a livestock agent unless you make a complete muck of it yourself with this kind of behaviour.
When sentencing the defendant on 19 January 2010 the Magistrate observed:
You appeared before this Court back on 8 July 2009 for being unlawfully on the premises. You were on the premises of another citizen who had the misfortune to have the premises on to which there exists an emergency door to a night club. You had been ejected from the night club, you were intoxicated and there you were in child like fashion, the sort of thing that kids do in terms of picture theatres and the like and other venues, trying to negotiate with somebody on the inside to open an emergency fire door so you can get back in.
I listened patiently to your plea on that last occasion. I heard about your good character and I heard about your employment and heard about your problems with alcohol and the like. I heard about your good prospects and all those things. I heard about the fact that you had no prior convictions and I was told most assuredly that you are unlikely to commit this offence again. What I did was, without recording any criminal conviction against your name, without imposing any penalty, I simply released you and asked for you to do two things. To be of good behaviour which means in effect that you are to be just like the rest of us. Now that was not asking anything much of you. The only minor impediment in your life was I asked you not to go back to Shapes Night Club for a period of six months. You could [not] manage it for even a month. Nothing changed after you left Court last time.
And here you are back in the same night club and so breaching your bond.
As earlier mentioned, the Magistrate revoked the bond and ordered that the defendant pay the amount of the bond of $500.00. The Magistrate recorded a conviction against the defendant for the charge of being unlawfully on premises and resentenced for that offending. The Magistrate then imposed 100 hours of community service to be performed within a period of three months. At this point in the proceedings, the following interchange took place:
HIS HONOUR: [Counsel for the defendant], would you mind not speaking to your client while I am speaking to him, I think that is extremely impolite.
[COUNSEL FOR DEFENDANT]: Sorry Sir, I needed to take some instructions but I should have asked.
HIS HONOUR: You don’t have to take instructions while I am talking to him.
[COUNSEL FOR DEFENDANT]: I apologise.
Now I wonder what part of that you did not hear. I was not looking up when [your counsel] commenced talking to you. Where did we get up to before [your counsel] interrupted.
DEFENDANT: I have to do community service.
You are to do 100 hours of community service, you are to complete it within three months. … If you do not complete the 100 hours within the three months, I will have to consider and will impose, unless certain circumstances exist, one day’s imprisonment for every eight hours you do not complete. Do you understand this.
DEFENDANT: Yes
Thank you very much. There will be Court costs.
[COUNSEL FOR DEFENDANT]: Sorry Sir, I need to address you. This man is in full time employment.
HIS HONOUR: I know that.
[COUNSEL FOR DEFENDANT]: And in those circumstances, simply doesn’t have the capacity to meet your Honour’s order.
HIS HONOUR: He can do eight hours every Saturday.
DEFENDANT: I work on Saturdays.
HIS HONOUR: Then you will have to make different arrangements with your employer.
DEFENDANT: They are my clients…
I will give you six months to complete it, thank you very much. You do your community service now and get on with it.
The Appeal
The Submissions
On appeal it was contended that the sentence was manifestly excessive. It was further submitted that the Magistrate erred in failing to give adequate weight to the impact that the community service ordered would have on the defendant’s employment,[2] and failing to allow the defendant to make submissions on that matter. Finally it was said that the Magistrate failed to classify the defendant’s non-compliance with the bond as trivial and requiring no further action and had erred in failing to proceed without recording a conviction.[3]
[2] See the requirements of section 47(1)(h) of the Criminal Law (Sentencing) Act 1988 (SA).
[3] Section 58(1) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
(1)Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
(a)may, if the bond requires the probationer to pay a sum in the event of non-compliance with a condition of the bond, order that the probationer pay the whole or a part of that sum;
(b) may order a guarantor to pay the whole or a part of the amount due under the guarantee;
(c) may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond—
(i)sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or
(ii)if the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, refrain from taking any action in respect of the failure;
(d)if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
Counsel for the defendant contended that having regard to the nature and circumstances of the February 2009 offending and the personal circumstances of the defendant, the defendant ought not to have been convicted. It was said further that the number of hours of community service ordered was excessive having regard to all of the circumstances and, in particular, the defendant’s employment. Counsel for the defendant drew the Court’s attention to the fact that the defendant’s behaviour at the nightclub in February 2009 and August 2009 did not result in any loss, harm or damage. It was said that both incidents could be characterised as arising from intoxicated stupidity causing minor nuisance but nothing more. It was submitted that the defendant’s intoxication on both occasions ought to have been taken into account as a matter in mitigation or at the very least as an explanation for his conduct. It was contended that it was significant that the defendant had provided the owner of the Shapes Nite Club with a written apology, which apology was accepted.
Counsel for the defendant submitted that the community service imposed could potentially lead to a loss of the defendant’s employment. It was said that the loss of employment would be a significant punishment not warranted by the defendant’s offending and would not in any way assist the defendant to rehabilitate and overcome the problems which gave rise to his offending. In these circumstances, it was said that the sentence imposed was manifestly excessive.
It was submitted that when dealing with the defendant for the breach of bond offence, the Magistrate should have taken account of these same factors and circumstances and refrained from taking any action in respect of the non-compliance with the bond, as the failure of the defendant to comply with those conditions could be classified as trivial.
Counsel for the defendant raised a further complaint in respect of the impact that the community service ordered would have on the defendant’s employment. It was submitted that in the circumstances, there was a real risk that the obligation to perform community service work as ordered by the Magistrate could interfere with the defendant’s regular employment, and this was a matter which the Magistrate was obliged to consider. It was further contended that the failure of the Magistrate to hear the defendant’s submissions in relation to his employment warranted a reconsideration of the matter.
Counsel for the Police contended that the penalty imposed by the Magistrate was not manifestly excessive and was the appropriate penalty in the circumstances. It was submitted that there was no error in the sentencing approach which justified a reconsideration of the conviction or penalty imposed. It was contended that having regard to the circumstances of the offending and the subsequent breach of bond by the defendant, there was no good reason for the Court to exercise its discretion not to impose a conviction. Counsel for the Police submitted that the circumstances of the breach of bond did not disclose any proper grounds upon which the failure to comply with the conditions of the bond should be excused by the Court, and that the breach could not be characterised as trivial. Finally, it was said that the Magistrate appropriately assessed the impact that the community service ordered would have on the defendant’s employment, and this was evidenced by the extension of time from three to six months granted by the Magistrate within which to complete the community service.
Want of Procedural Fairness
Section 47 of the Criminal Law (Sentencing) Act 1988 (SA) outlines a number of special provisions relating to community service and the matters to be taken into account by a Court when imposing community service. Of particular relevance to this proceeding is section 47(1)(h), which provides:
(1)Where a court imposes a sentence of community service, or includes in a bond a condition requiring the performance of community service, the following provisions apply:
…
(h)the person may not be required to perform community service at a time that would interfere with his or her remunerated employment or with a course of training or instruction relating to, or likely to assist him or her in obtaining, remunerated employment, or that would cause unreasonable disruption of the person's commitments in caring for his or her dependants; and
…
[Emphasis added]
Section 47(1)(h) was the subject of consideration by Doyle CJ in Cutting,[4] where his Honour made it clear that in accordance with that provision, the community service imposed should not interfere with the defendant’s employment. In that case, the Chief Justice concluded that although the Magistrate considered submissions put in relation to the impact on the defendant’s employment, he gave those matters insufficient weight and as a consequence the Magistrate’s sentencing discretion had miscarried:[5]
I have no reason to doubt that the Magistrate considered these matters, but I must say that it seems to me that he failed to give them adequate weight.
The brief note of the Magistrate’s decision does not suggest that he rejected the submissions put to him by counsel for [the defendant]. If one accepts that [the defendant] was in Mount Gambier about one week in three, he would be in Mount Gambier in about 17 weeks each year, and on the same basis for about three clear days on each occasion. That suggests something between about 50 days a year and 60 days a year. It would be difficult to discharge an obligation to perform 240 hours in that period, particularly if the days on which he was in Mount Gambier could not be identified well in advance. In light of that, it seems to me that there was a real risk that the obligation would cause problems with [the defendant] regular employment, a factor which one would ordinarily expect a magistrate to consider.
I am satisfied that the exercise of the discretion conferred on the Magistrate by s 13 has miscarried, in that the Magistrate has imposed an obligation that is unreasonable in all of the circumstances.
The appeal should be allowed. There is no reason why I should not exercise the discretion. The relevant information is in a small compass, and I am as well placed as another magistrate would be to decide the matter.
It is not possible to be precise. Having regard to the circumstances, I consider that an order that [the defendant] perform 100 hours of community service is appropriate. This is a substantial obligation, but one that should not interfere with his employment.
[4] Cutting v Police [2009] SASC 326.
[5] Cutting v Police [2009] SASC 326 at [30]-[34].
In the circumstances of the within proceeding, the Magistrate did not obtain a proper understanding of the defendant’s employment situation. In the course of sentencing, information was sought to be advanced on the topic of the defendant’s employment, a topic which section 47 of the Sentencing Act mandates that the Magistrate consider when imposing community service. It became apparent on appeal that there was relevant information to be put before the Magistrate in relation to the work commitments of the defendant and, in particular, the difficulties that the defendant would face to meet the obligation of performing community service on Saturdays. The failure of the Magistrate to allow that information to be placed before the Court resulted in a material denial of procedural fairness to the defendant.
The want of procedural fairness afforded to the defendant and his counsel requires this Court to consider the matter afresh.
Preliminary Matters
Four further matters call for preliminary comment.
The Magistrate misunderstood the circumstances of the offending of 15 February 2009 in that he proceeded on the basis that the defendant had been ejected from Shapes Nite Club. An examination of the apprehension report discloses that this was not the case. The defendant “exited” the nightclub voluntarily but was refused re-entry as a consequence of the operation of the nightclub’s curfew. Such curfews are known as “lock-out” curfews and operate to prevent patrons from entering a venue after a particular time, while those patrons inside are permitted to remain at the venue until the shutdown time of the venue. The shutdown time may be some hours after the commencement of the operation of the curfew. In the within proceeding it is apparent that the defendant’s partner was still inside the nightclub and that the defendant wished to re-enter in order to remain at the venue after the operation of the lock-out. There was no suggestion at any time that the defendant had been ejected from the nightclub and no suggestion that he had behaved at any time prior to seeking re-entry in a manner justifying ejection from the premises. The Magistrate’s categorisation of the defendant as having been ejected from the nightclub was incorrect in the circumstance, and constituted a material misunderstanding of fact.
The Magistrate also likened the defendant’s actions to that of a teenager attempting to gain access to a cinema without paying. Although such an activity is relatively minor, it is relevant to observe that in the circumstances of the present proceeding, there was no suggestion that the defendant’s motivation for the offending was an attempt to gain entry without paying. The Magistrate’s analogy in this respect overstated the actual conduct engaged in by the defendant.
It is also of significance to note that the Magistrate’s purported revocation of the bond on 19 January 2010 on the basis that it was a continuing obligation, was misconceived. The period of the bond had expired on 8 January 2010.
There is one final matter to be commented on. The Judge when sentencing for the breach of bond and re-sentencing for the offending of 15 February 2009 made only a very brief reference to the February offending. The bulk of the remarks as excerpted appear to relate to the breach of bond. An analysis of the remarks indicates that the Magistrate may have given the breaching conduct inappropriate weight when considering the penalty to impose for the February offending. It is to be noted that the later, breaching conduct does not constitute an aggravation of the conduct the subject of the February offending. It would appear from the remarks on penalty, that the Magistrate was upset by the breach of bond and the conduct of the defendant and his counsel in Court, and this led him to “cut across” both the defendant and his counsel in their attempts to make submissions and provide the Court with relevant information.
Characterisation of a Bond
During the course of submissions, the Crown emphasised the serious nature of the breach by the defendant of his bond, and characterised that breach as a non-compliance with a court order. That characterisation is incorrect. A breach of bond, although a serious matter, is not a breach of an undertaking to the court or a court order. Instead, a bond can be seen to be a contract or agreement between a defendant and the State. As was observed in Nollen:[6]
A bond is an agreement between a defendant and the Crown. - JD_tfn.LAWREP-AUS-078-SASR-0421-FN.13 It is not an undertaking to a court. The offer of a bond is not intended to operate as a penalty. To the contrary, it may ameliorate against hardship resulting from an immediate custodial sentence. The court has a discretion to suspend a sentence of imprisonment on condition that the offender enter into a bond on terms the court thinks appropriate. It is for a defendant to decide whether to enter into a bond. In Adams v Carr von Doussa J (with whom King CJ and Bollen J agreed) said:
"In my view, there is an important distinction between a custodial order and a condition is a recognisance requiring a person to perform community service on appointed days. A custodial order is imposed regardless of the wishes of the person concerned whereas community service, while arising in pursuance of a court order, may be declined by the person chosing [sic] not to enter the recognisance. An order for release upon recognisance is an order conditional upon the person accepting its terms: Stokes v Samuels (1973) 5 SASR 18 at 21. The order is an exercise of leniency in lieu of sentence for the offence, and the person concerned has chosen to accept the conditions of the order to gain that leniency."
[6] Nollen v Police (2001) 78 SASR 421 at [51]-[52].
In Fischer v Chambers,[7] Bray CJ, when discussing the power of the Court to set aside a recognizance, also characterised such a recognizance as a contract:
…I think, as I have said, that there must be a power somewhere in the judicial system of the State to set aside a recognizance which, in the opinion of the appropriate court, is void or voidable for reasons similar to those which would be fatal to a deed or a contract. It is not necessary to discuss here the appropriate jurisdiction or procedure for that purpose. I would add, however, that according to the old terminology, much criticised though it has been, a recognizance, whether to the Crown or to a private individual and whether imposed as the result of court proceedings or not, was called a contract, the highest species of contract, a contract of record; see, for example, Blackstone, Commentaries 19th ed. Book I Ch. III p. 464; Smith, Law of Contract 7th ed. (1878) pp. 3-4; Anson, Law of Contract 2nd ed. (1882) p. 47. In the book last referred to the learned author says, at p. 47:
“Recognizances have been aptly described as “contracts made with the Crown in its judicial capacity”. A recognizance is a writing acknowledged by the party to it before a judge or officer having authority for the purpose, and enrolled in a Court of Record. It may be a promise, with penalties for the breach of it, to keep the peace, or to appear at the assizes.”
And a debt due under a recognizance, though a debt of a higher nature, could be discharged by deed, at least when the recognizance was made to a private individual (Coke on Littleton, Book 3, ch. 8, sec 507, and see Smith above, at p. 4). And I see no reason why the same should not apply to a recognizance to the Crown and a discharge by any valid contractual means. I would have seen no difficulty, therefore, in the Crown agreeing to the discharge of the recognizance.
[7] Fischer v Chambers (1972) 4 SASR 105 at 111.
It is appropriate to proceed on the basis that a breach of bond is a serious matter, but does not constitute a breach of a court order or undertaking.
Discretion to Proceed without Recording a Conviction
As earlier observed, counsel for the defendant on the hearing of the appeal argued that the Magistrate should have refrained from recording a conviction. A discretion to proceed without recording a conviction is provided in two sections of the Sentencing Act. Section 16 provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
The exercise of the section 16 discretion is enlivened if the court is satisfied of a number of preconditions. First, the court must propose to impose a fine, a sentence of community service, or both. Secondly, it must be satisfied that the defendant is unlikely to commit such an offence again. Thirdly, the court must be satisfied that there is good reason not to record a conviction, having regard to one or more of the factors set out in section 16(b) as above. If those preconditions are satisfied, the Court is to consider whether in all the circumstances, there exists good reason for not recording a conviction.
The alternative provision under which the court may proceed without recording a conviction is section 39 which provides:
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(ab) to comply with the other conditions (if any) included in the bond; and
(b) if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2) Where a defendant is discharged under this section—
(a) no fresh prosecution may be commenced in respect of the offence; and
(b) the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
The terms of sections 16 and 39 contain a number of differences. Importantly, section 39 contemplates the ongoing monitoring or supervision of a defendant’s behaviour through the imposition of a bond. Although similar factors may be relevant in the exercise of the court’s discretion pursuant to both sections 16 and 39, it is important to recognise that the sections have different work to do and may operate in different circumstances.[8]
[8] Hodgins v Police (2008) 256 LSJS 270 at [15].
It is to be observed that the recording of a conviction may have serious adverse impacts on a defendant, particularly in relation to employment and future prosects of employment. These considerations have consistently been regarded as fundamental when considering whether to exercise the discretion not to record a conviction. It is to be further observed that the discretion may be exercised in circumstances of quite serious offending,[9] however, a court will be more inclined not to record a conviction where the offending has had no direct effect on a victim, and where the breach is not deliberate and blatant.[10]
[9] See eg the decision in Buttigieg v Police (1999) 74 SASR 229 which involved offences of break, enter and larceny and false pretences. See also McAvaney v Quigley (1992) 58 A Crim R 457 which involved a plea of guilty to the charge of assault occasioning actual bodily harm.
[10] R v Lambert [2009] SASC 307.
Recently in Lambert,[11] the Court of Criminal Appeal considered the discretion to proceed without recording a conviction. During the course of his reasons, Sulan J, with whom Duggan and Kourakis JJ agreed, observed:[12]
[11] R v Lambert [2009] SASC 307.
[12] R v Lambert [2009] SASC 307 at [19]-[24].
The recording of a conviction has a punitive aspect. In R v Yousef, Sulan and Layton JJ observed:
A conviction does not merely record a finding that the person committed the crime charged: it condemns him for the crime; it is a communicative act, communicating censure to the convicted person. The recording of a conviction acts as a general deterrent to others who may be inclined to offend in a similar way.
There is an important public interest in convictions being recorded to express community disapproval of a defendant’s conduct. A court will be more inclined not to record a conviction where the offending has had no direct effect on a victim, and where the breach is not deliberate and blatant.
The recording of a conviction can have serious consequences for an individual, as it may affect his future employment prospects, his ability to travel and his acceptance into professional or trade associations linked with his profession or trade. A submission to a court not to record a conviction is a matter that requires detailed consideration by the court.
In R v Briese, the Queensland Court of Appeal observed that the question of whether to record a conviction is one of considerable importance. The Court observed that there are persons and organisations, including prospective employers, companies such as credit providers, and government departments such as immigration authorities, which have a legitimate interest in knowing the truth about the character of persons who deal with them. Furthermore, if a court concludes that, in the circumstances of a particular case no conviction is to be recorded against an offender, that fact is of significance to any person or organisation which may have a legitimate interest in the background and character of that offender.
Parliament has recognized that the recording of a conviction can have a significant deleterious effect upon an offender. The offender will carry the conviction with them into many walks of life. It acts as continual punishment and may be a factor adverse to the rehabilitation of an offender. It follows that power has been given to courts not to record a conviction. I agree with the observations made in Briese, that a court will be more easily persuaded against the recording of a conviction where there are no prior convictions, or a very minor history, and where the offence in question is a so‑called “victimless” crime.
[Emphasis added – footnotes omitted]
The above observations are relevant and apposite in the circumstances of the within proceeding.
Resentencing
The defendant is a young man of good character without any history of prior offending. At the time of the offending, he was 22 years of age. It is relevant to note that subsequent to the offending of 15 February 2009, apart from the breaching of bond on 2 August 2009, there is no suggestion that he has behaved other than appropriately at all times.
The defendant is employed as a livestock agent at Elders Rural Services. That employment requires the defendant to work extended hours each week and requires that the defendant make himself available on weekends. This was the information that the defendant and his counsel attempted to bring before the Magistrate at the time of sentencing. A letter from the defendant’s supervisor was provided to the Court in the following terms:
[The defendant] has worked with me and under my supervision at Elders Lucindale for 3 years as a livestock agent. In that time [the defendant] has grown and matured into a responsible, reliable and well liked individual.
I understand he has been charged with an offence related to his after hours activities.
[The defendant] is acutely aware of the embarrassment this has caused him.
[The defendant] is a valued member of our staff. I am sure he will learn positively from this experience and curb his after hours enthusiasm in the future.
It would be a dreadful shame to see a conviction recorded against him at this time.
As earlier noted, both the offences of 15 February 2009 and 2 August 2009 involved minor criminal misconduct, occurring in circumstances of substantial alcohol consumption. No incidents involving violence, damage or harm were associated with the offending. The breach of the bond on 2 August 2009 did not involve a calculated, deliberate non-compliance by the defendant with his agreement with the State. The decision to attend at the nightclub appears to have resulted as a consequence of a domestic issue and substantial alcohol consumption. Although a poor decision in the circumstances, it is relevant that the decision was impulsive rather than deliberate.
The defendant’s attitude in regard to his offending is also relevant. The defendant on a number of occasions apologised for his behaviour. A letter from the owner of Shapes Nite Club addressing the offending of 15 February 2009 was provided to the Magistrate prior to sentencing. That letter relevantly stated:
[The defendant] was involved in no incident that evening and has written to me and contacted me since the incident, apologising for being where he was.
I have accepted his apology and would not like to see him being convicted.
I have written to the police to this effect.
No damage or other inconvenience was caused and the rear of the premises are open to the front.
I have imposed my own penalty on him by barring him from the Night Club for a month.
After this suspension, he has been in my Night Club on at least three occasions and on each occasion he has acted courteously and again apologised to me.
When assessing the appropriate sentence to be imposed in the circumstances, it is appropriate to have regard to the fact that the defendant is a young man without any history of prior offending, with good employment and positive prospects for a career in the future. The sentence to be imposed is in respect of being unlawfully on premises in circumstances where the owner of the premises has accepted the defendant’s apology and imposed his own sanction for the behaviour – a sanction which was complied with. In the circumstances as outlined, where the offending was not accompanied by any incident of violence, harm or other criminal activity, the offence with which he was charged was at the lower end of seriousness for offences involving being unlawfully on premises. As evidenced by the letter from the owner of Shapes Nite Club, the offending of the defendant was minor in nature. The comparative impact of a conviction would be severe. All of these matters are relevant when considering the discretion not to record a conviction pursuant to sections 16 and 39 of the Sentencing Act. In the circumstances as outlined, there is good reason for this Court to proceed without recording a conviction.
In the circumstances of the present proceeding, it is appropriate to exercise the power not to record a conviction pursuant to section 39 of the Sentencing Act rather than section 16. Section 39 allows for the imposition of a good behaviour bond. That section further allows for the defendant to be sentenced for the present offending in the event of a breach of that bond. Section 39 is the more appropriate source of power to be utilised, particularly having regard to the defendant’s previous breach of bond and his apparent problem with alcohol.
In the circumstances, I consider it appropriate to place the defendant on a good behaviour bond for 12 months. That bond is to be subject to supervision for the first six months. The defendant is to undertake such courses as may be directed with respect to alcohol abuse. It is a condition of the bond that the defendant perform 40 hours of community service within six months. During discussions with counsel, it was contemplated that the defendant may be able to undertake community service during a week of leave. I consider that 40 hours of community service over the course of 6 months will not interfere with the defendant’s employment.
In relation to the offence of breach of bond, the Magistrate’s order that the defendant pay the amount of the bond of $500.00 was appropriate in the circumstances. Despite the relatively minor nature of the defendant’s offending, the defendant breached his contract with the State and it is appropriate that he forfeit the amount of money stipulated by the terms of that contract. Although the bond expired on 8 January 2010, the amount of the bond was due as a consequence of the breach of 2 August 2009.
Conclusion
The appeal is allowed. The conviction and sentence imposed by the Magistrate is set aside. The defendant is placed on a 12 month good behaviour bond to be subject to supervision for six months. It is a condition of that bond that the defendant perform 40 hours of community service within six months.
16
5
1