Jennings v Department of Correctional Services No. Scciv-03-870

JENNINGS v DEPARTMENT OF CORRECTIONAL SERVICES
[2003] SASC 299
Magistrates Appeal: Criminal

PERRY J. (ex tempore) The appellant appeals from an order made in the Magistrates Court sitting at Port Pirie pursuant to which he was ordered to be imprisoned for a period of nine days for his admitted failure to comply with a community service order.
In his amended grounds of appeal, the appellant advances the following complaints:
“1.The learned magistrate erred by failing to exercise his duty towards an unrepresented defendant, to explain to him his rights and the avenues available to him and the procedure for dealing with the matter.
2.Whereas the learned magistrate was contemplating a term of imprisonment, he erred in that he:
·       Failed to inform the defendant of that fact and affording him the opportunity to obtain legal representation.
·       Failed to refer the defendant to the duty solicitor.
·       Failed to inquire from the defendant his reasons for failing to comply with the court order so as to consider whether the failure was trivial or if there were proper grounds to excuse it.
3.The learned magistrate erred in conducting the proceedings in such a way that the unrepresented defendant was denied a fair hearing.
4.The learned magistrate erred in failing to give reasons for the sentence imposed.”
The order for performance of community service was made in the Port Pirie Magistrates Court on 5 March 2002 following a hearing of four charges arising out of an incident which occurred on 25 April 1999. The charges were: being unlawfully on premises; two counts of larceny; and one count of damaging property.
Following the appellant’s plea of guilty to those charges, he was ordered to perform 112 hours of community service within nine months.
On 30 December 2002, the manager of the Case Management Division of the Port Pirie Community Correctional Centre signed a report of non-compliance with the order. The report was addressed to the Registrar of the Port Pirie Magistrates Court where it was received on 3 January 2003. In the report, the community corrections officer reported that the appellant had completed only 36 of the 112 hours, and that the order had expired on 4 December 2002. He commented that the appellant had been given “every opportunity” to complete the community service, but had “shown little commitment” to the order.
The procedures set out in s 71 of the Criminal Law (Sentencing) Act 1998 were then invoked, and a warrant was issued for the appellant’s arrest.
Following that, he was given bail to appear on 8 July 2003 in answer to the allegation of non-compliance. It is from the order made on that date that the appellant now appeals to this Court.
The sentencing magistrate did not give any extended reasons for the action which he took. The only note of reasons appears by way of an endorsement signed by the magistrate on the court file, which reads:
“Breach is admitted.
No reason given not to be imprisoned.
Defendant imprisoned for a period of nine days to commence forthwith.”
On the same day, the appellant was given bail following his intimation that he would be lodging a notice of appeal.
At the hearing before the sentencing magistrate, there was no appearance for the Department of Correctional Services. In the result, the respondent is unable to confirm or deny the account of what transpired at the hearing which appears in the affidavit of the appellant which I received on the hearing of the appeal.
In that affidavit, the appellant acknowledges that he performed only about 36 hours of the community service which he was ordered to undertake and he accepts that he did not complete the remaining 76 hours.
He offers a number of reasons why he failed to complete his obligations. Some of them relate to personal difficulties which he sets out in his affidavit in connection with his de facto relationship with a lady whom he names. The break up of this relationship resulted in him losing all of his possessions and he ended up staying first with a friend and then at the men’s shelter at Port Pirie. He became depressed at the consequent lack of contact with his children which followed, and in combination with the difficulties that he had in obtaining accommodation, he failed to present himself for the community service work as required.
When he appeared in the court below in answer to the matter, he states that he was nervous and confused, and did not explain fully to the magistrate the problems which he had experienced. When he was asked whether he had any good reason for not doing the community service work, he states in his affidavit that he did not know what to say. He does not think that the magistrate asked him whether he wanted to see a lawyer, and he denies that he was told that he was at risk of being sent to gaol. He asserts that if he had been told that, he would have asked to see a lawyer.
The appellant deposes to the fact that he has previously had Youth Court obligations relating to community service work in the past which he has fulfilled. He is currently working at Lifeline at Port Pirie as part of the Work for the Dole Scheme. He suggests that it may be possible to do his community service work, if he is afforded an opportunity now to perform it, at Lifeline.
Dealing with the amended grounds upon which the appeal was advanced, in my view, there was an error of law in failing to give more adequate reasons for the order which was imposed. A failure to give any reasons at all, or a failure to give adequate reasons amounts to an error of law.
While it is true that one cannot expect busy magistrates to have a great deal to say when sentencing, there is an obligation under the Criminal Law (Sentencing) Act 1988 (s 9) to give reasons and to explain the effect of sentences at the time they are imposed.
Apart from that, there is a common law obligation to give reasons, particularly as in the case here, when there is a right of appeal. It is not possible effectively to exercise a right of appeal if the reasons given are inadequate or if no reasons at all are given.
I stress, however, that in cases such as this, the reasons do not need to be extensive. They may briefly identify the reason why the defendant is being dealt with by whatever order is imposed.
The fact that there is an error of law in failing to give sufficient reasons does not mean that an appeal must necessarily be allowed. It simply means that this Court must in those circumstances reassess the matter for itself. If, having done so, the sentence in fact imposed nonetheless appears reasonable, or at least not tainted with error, the appeal may be dismissed.
Here, after reassessing the matter for myself, and bearing in mind the matters deposed to in the appellant’s affidavit, I am of the view that there are proper grounds on which the failure to perform the service should be excused pursuant to s 71(7) of the Criminal Law (Sentencing) Act, and the appellant given an opportunity to complete the community service. Quite properly, Ms Geyer for the respondent does not oppose that course.
The appeal is allowed. I quash the order under appeal. In lieu thereof I order that the appellant perform 76 hours of community service within six months from today, and until such time as working the required number of hours is finished, to obey the lawful directions of the community service officer assigned.
I further order that the appellant report within two working days of the signing of the notice which will be given consequent of the notice of this order, at the office of Correctional Services Probation and Parole Branch, 9 King Street, Port Pirie, the details of which will be set out in the notice.
[NO APPLICATION WAS MADE FOR COSTS]
PERRY J. There will be no order as to costs.

[2003] SASC 299

27 August 2003