HELBIG v Police No. Scgrg-99-665 Judgment No. S313
[1999] SASC 313
•27 July 1999
HELBIG v POLICE
[1999] SASC 313
Magistrates Appeal - Criminal
WILLIAMS J. This is an appeal against an order made in the Magistrates Court on 13 May 1999 upon an application for enforcement of a breached bond.
The bond was imposed on 15 November 1993, at the Elizabeth Magistrates Court, in respect of an assault committed on 8 June 1993. The sentence then imposed was imprisonment for four months, but suspended upon the appellant entering into a bond for three years, and requiring, amongst its conditions, performance of 100 hours of community service within six months from the date of the bond.
In June 1994, upon the sworn statement of a Community Services Officer made on 15 March 1994, a summons was issued requiring the appellant, as probationer, to appear before the Elizabeth Magistrates Court to answer an allegation of failure to comply with the community service conditions of the bond.
Extracts from the community services officer's report show that:
“From records maintained in this office, I can say that Robert Keith HELBIG was Absent Without Leave on 5 occasions, namely, 4 December 1993, 11 December 1993, 22 December 1993, 5 January 1994 and 12 January 1994.
On 5 January 1994, a Community Service Officer visited the address specified by Robert Keith HELBIG, 82 Goodman Road, Elizabeth South. No one was available and a written instruction was left direction(sic) the probation(sic) to contact the Elizabeth Community Correctional Centre within 48 hours. He responded.
On 11 December 1993 a Notice of Intent to suspend from Community Service was forwarded to Robert Keith HELBIG'S nominated address. Included on this notice was an offer for Robert Keith HELBIG to discuss his reasons for non attendance at a date and time specified. No response was forthcoming.
A Notice of Suspension was forwarded to Robert Keith HELBIG on 15 January 1994.
From records maintained in this office I can say that Robert Keith HELBIG has completed 8 hours community service.
From our records I can say that the offender has not report(sic) to any other Community Correctional Centre as established by the Justice Information System on 15 January 1994.”
The recital of facts then moved to the appellant's solicitor who, on her client’s behalf, acknowledged receiving the notice of suspension.
In submissions before the Magistrate the appellant's solicitor, amongst other matters, put the following:
“He said that when he received the Notice of Suspension he panicked and immediately left South Australia for New South Wales believing he was about to be imprisoned. He was particularly worried about being imprisoned as he had previously helped police with inquiries about a stolen motor vehicle, an offence which involved Donna's brothers. He had been threatened by them because of his involvement and was scared of meeting them or their associates in the prison.
...
He instructed that he had returned to South Australia in approximately June of 1996 knowing that there may be a warrant for his arrest. He did not surrender himself as he was scared of being imprisoned and worried about the effect of this on his family.In relation to his bail history he was subsequently arrested in August of 1996 and granted bail. He appeared in Court subsequently and then failed to appear on 25 September 1996 when his bail was estreated and a warrant for his arrest was issued. He was re-arrested on 12 January 1998 and re-admitted to bail to live at an address at Taperoo namely, 4 Nyora Crescent.”
The Magistrate on 13 May 1999 said:
“It was clearly the intention of the magistrate who sentenced you to four months imprisonment that you complete the community work, failing which, on that very long bond of three years, you were to be imprisoned.
Ms Griffith says that, since absconding from the community service work, you have substantially rehabilitated yourself. In my mind there are two reasons to attack that particular foundation. One, your departure to points interstate was no doubt in breach of your bond conditions.
Secondly, on your return from interstate, you were granted bail and absconded not once but twice.
So it is many months later that you come before the court, now asserting that the delay brought about by your behaviour and your breach of bail is evidence of your rehabilitation. I reject that submission.”
It appears that the appellant pleaded guilty before the Magistrate. But this was explained, that is to say, the Magistrate's comments were explained by the appellant's solicitor, pars14 and 15, from the appellant's solicitor's affidavit, which I have already read.
It was submitted before me that the Magistrate may not have understood the submission. The Magistrate ordered that the appellant be required to serve two months, not four months, with respect to the sentence previously imposed. The Magistrate said in the course of the sentencing remarks:
“In my opinion, the only feature of your case that excites any clemency is the fact that your wife is pregnant and due to be delivered of a second child.”
The grounds of appeal are that the:
“Learned Magistrate erred in holding that the breach of the bond was not excusable under s58(3) of the Criminal Law (Sentencing) Act 1989(sic), and ordering that the appellant serve an immediate term of imprisonment of 2 months.”
The appeal came before me on 8 July 1999 when counsel for the appellant argued that there were special circumstances under s58(3) of the Criminal Law (Sentencing) Act 1988 under which the appellant's failure to comply with conditions of the bond should be excused.
Counsel for the appellant submitted that the proper course would be now to impose a further bond.
Counsel for the appellant outlined what were claimed to be the peculiar circumstances and she relied upon the principles set out in Stanitzki v Higgins (1984) 63 SASR 309. I then sought to test the appellant's submissions but it then became apparent that the appellant was not available personally in Court to give instructions.
I thereupon noted that the terms of his bail agreement relating to prosecution of this appeal provided as follows:
“I, the undersigned defendant, being charged with application for Enforcement Of A Breached Bond/Common Assault (MCPAR-93-7281 Ct 1) at the SUPREME COURT OF SOUTH AUSTRALIA at the Sir Samuel Way Building, Victoria Square, ADELAIDE SA 5000, on the 5th day of July 1999 at 10.00 a.m., or at any other time when called upon, AND TO BE PRESENT THROUGHOUT ALL PROCEEDINGS RELATING TO THIS MATTER UNTIL THE MATTER IS DISPOSED OF.”
A notice at the foot of the agreement dated 14 May 1999 says:
“NOTE: Your first appearance is at the SUPREME COURT OF SOUTH AUSTRALIA at Sir Samuel Way Building, Victoria Square, ADELAIDE, SA 5000 on 5 July 1999 at 10.00 a.m.”
As the appellant was not present I adjourned the hearing of the appeal until 14 July 1999 and I secured an undertaking from the appellant's counsel as to the giving of personal notice to the appellant. Upon the matter resuming on 14 July 1999 the appellant's counsel informed me that her client could not be found. Inquiries showed that he had left his last known address. I acknowledge the efforts which have been made in this behalf by the appellant's legal representative.
In the circumstances, I then issued a warrant for the appellant's arrest and I stood over the present matter until today, Tuesday 27 July 1999, at 9.45 a.m.
The appellant still has not presented himself today and counsel, Mr Kelly, has appeared in place of Ms Griffith, the appellant's former counsel, as a matter of courtesy to me and I thank Mr Kelly for his attendance. He confirms that continuing efforts to find the appellant have been unsuccessful and that it appears that the appellant has left the State.
Whilst Ms Griffith of counsel has suggested a course which I might take in the disposing of the appeal, she was not able to establish the continuing willingness of her client to enter into a further bond, even if, at the end of the day, that course was considered appropriate.
The appellant has been given the opportunity of coming forward to prosecute his appeal with the appropriate instructions. However, in my opinion, it has not been demonstrated that there is any foundation for the course which Ms Griffith put forward. Moreover, it has not been demonstrated that there is any merit in the appeal. I have heard Ms Griffith's argument and I have heard the argument fully put by Mr Brooks on behalf of the respondent. In my opinion, in all the circumstances, after two adjournments, the appeal will now be dismissed upon its merits.
The order is that the appeal be dismissed.
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