Jones v Police
[2020] SASC 188
•7 October 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JONES v POLICE
[2020] SASC 188
Judgment of The Honourable Justice Nicholson
7 October 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appeal against sentence.
A Magistrate convicted the appellant of three counts of breaching bail and three counts of contravening a term of an intervention order upon his pleas of guilty. It was further found that this offending breached an earlier suspended sentence bond. The appellant was sentenced to a total of eight months and two weeks imprisonment, five months of which arose from the revocation of the earlier suspended sentence. Six months was to be served in custody and the balance of two months and two weeks was suspended upon entering into a new bond to be of good behaviour for 15 months in the amount of $200.
The appellant has appealed against this sentence on two grounds; firstly, that the Magistrate erred in failing to give proper effect to subsection 10(2) of the Sentencing Act 2017 (SA) by imposing a sentence of imprisonment when it was not open to the Magistrate in the circumstances of the matter, and secondly that the sentence is manifestly excessive.
Held:
1. Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134; Bail Act 1985 (SA) s 17; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2aa); Sentencing Act 2017 (SA) ss10(2), s 26, s 120, referred to.
R v Horstmann (2010) 269 LSJS 42; Nicolle v Police (2019) 133 SASR 448; Craill v Police [2016] SASC 168; Police v Chilton (2014) 120 SASR 32; R v De Simone (1981) 147 CLR 383; Police v Cadd (1997) 69 SASR 150; Hilfy v The Queen [2020] SASCFC 72; House v The King (1936) 55 CLR 499; R v Morse (1979) 23 SASR 98; R v Buckman (1988) 47 SASR 303, considered.
JONES v POLICE
[2020] SASC 188Magistrates Appeal: Criminal
NICHOLSON J.
Introduction
On 20 May 2020, the appellant pleaded guilty to three counts of breaching bail[1] and three counts of contravening a term of an intervention order,[2] and admitted breaching a suspended sentence bond. On 10 June 2020, a Magistrate ordered a total period of imprisonment, with respect to all six offences and the revoked suspended sentence, of eight months and two weeks backdated to commence on 9 February 2020 on which date the appellant had been taken into custody.
[1] Contrary to s 17 of the Bail Act 1985 (SA) with a maximum penalty of a fine of $10,000 or two years imprisonment in the circumstances of this matter.
[2] The legislative scheme provides a tiered maximum penalty based on prior breaches. These offences fall within the category of a second or subsequent offence contrary to s 31(2aa) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) with the applicable maximum penalty being a fine of $20,000 or four years imprisonment.
For the three counts of contravening an intervention order his Honour indicated a notional starting single penalty of five months imprisonment.[3] After allowing a 30 per cent discount for the guilty pleas, the appellant was sentenced to imprisonment for three months and two weeks. This period was to be cumulative upon imprisonment for five months applicable following revocation of the suspended sentence. Of the total period of eight months and two weeks, the appellant was required to serve six months in custody and the balance, being two months and two weeks, was suspended upon his entering into a new bond to be of good behaviour for 15 months in the amount of $200.
[3] In accordance with the discretion available under section 26 of the Sentencing Act 2017 (SA).
For each of the three offences of breach of bail, the appellant was convicted without further penalty.
The appellant completed the custodial portion of his sentence on 8 August 2020 and the suspended sentence bond to be of good behaviour for 15 months came into effect on that day.
The appellant relies on two grounds of appeal.[4] First, that the Magistrate erred in failing to give proper effect to subsection 10(2) of the Sentencing Act 2017 (SA) (the Act) by imposing a sentence of imprisonment when such was not open to the Magistrate in the circumstances of this matter. Second, that the Magistrate erred in imposing a sentence that was manifestly excessive.
[4] Leave was sought, unopposed, and subsequently granted at the hearing of the appeal for the appellant to rely on the amended grounds of appeal filed on 21 August 2020.
Factual basis of offending
The offending largely concerned the appellant’s contact with his former partner, RR. On 7 August 2018, the Magistrates Court confirmed an intervention order prohibiting the appellant from contacting RR. On 1 January 2020, police were called to a disturbance at the home of the appellant’s father. On arrival, police found the appellant to be in the company of RR (breach of intervention order). The appellant submitted through his counsel that RR had arrived at the house unannounced and in a distraught state, having received notice of an adverse decision from the Department of Child Protection (DCP) concerning their child, IR.[5]
[5] The child’s last name is unknown. However, I have used “R” simply to identify the child that was born to the appellant and RR.
The appellant knew of the intervention order but had a concern about RR’s mental state and allowed her to stay. The appellant and RR discussed the effect of their relationship on the prospects of DCP returning IR to RR’s care. It is common ground that the contact was with the consent of the protected person, RR.
The appellant was arrested on 1 January 2020 and was granted bail the following day. The conditions of his bail agreement included that he subject himself to supervision by the Department for Correctional Services (DCS) and that he not approach or communicate with RR.
On 21 January 2020, the appellant was again found by police in the company of RR (breach of intervention order and breach of bail). On 28 January 2020, the appellant failed to attend an appointment with DCS as required by his conditions of bail (breach of bail).
On 9 February 2020, the appellant was again found in the company of RR (breach of intervention order and breach of bail). The appellant’s counsel submitted that on this occasion the appellant and RR were at a mutual friend’s house discussing a reconciliation. Following his arrest on these charges, the appellant was taken into custody where he remained until his release on 8 August 2020.
Personal circumstances
The Magistrate found that the appellant had experienced an unstable upbringing and had acquired a drug habit, although this may have resolved as at the time of sentencing. His antecedent report reveals an extensive offending history, including 10 prior breaches of a restraining order or intervention order dating back to 2010.[6]
[6] Involving at least five separate restraining orders and at least two protected persons.
The appellant has a number of children, including at least one with RR (IR). IR is now in the custody of DCP having been removed from the care of the appellant and RR. Following the appellant’s release from an earlier period of imprisonment, he was unsuccessful in obtaining supervised access visits with IR. The appellant felt he had “nothing to live for” as he had lost access to IR and contact with his partner. This was said by counsel to have caused an escalation in his drug use and a decrease in compliance with supervision requirements.
During the appellant’s most recent period in custody (that is, since 9 February 2020), he had been of good behaviour[7] and had been moved to Mobilong Prison as he was considered low risk. The appellant completed the Smart Recovery Drug Program which is designed to provide relapse prevention skills. Prior to the appellant’s arrest, he had been working on assembling and manufacturing pallets and at the time of sentence was hopeful that this would be available to him upon release.
[7] As at 21 August 2020.
In a report by DCS dated 27 November 2019, the report writer advised as follows:
Mr Jones disclosed during supervision that he was a frequent user of illicit substances … [and] advises he takes illicit substances as a coping mechanism and that a majority of his criminal offending is related directly to substance abuse.
…
If … the Court is … to provide Mr Jones with [an] opportunity to engage in community based supervision, it is … recommended that [the Court] consider adding an additional condition to remain abstinent from illicit substances and undergo urinalysis testing.
The appellant’s present bond includes such conditions and it has not been suggested by the prosecution that he has breached either of these conditions following his release on 8 August 2020.
The appeal
In R v Horstmann,[8] Kourakis J (as his Honour then was) explained the role of an appellate court hearing an appeal against sentence in terms that also apply to a single Judge appeal from a Magistrate.
On an appeal against sentence, the Court of Criminal Appeal has no power to set aside or vary that sentence unless it is satisfied that the sentence is affected by an error of the type identified in House v The King: a failure to take into account relevant matters; having regard to irrelevant matters; or unreasonableness (manifest excess or inadequacy). I shall refer to the first two errors as process errors and the last as an outcome error. Where either a process error or an outcome error has been made, the Court of Criminal Appeal may interfere.
Plainly enough, in the case of an outcome error it is implicit in a finding of manifest excess or inadequacy that the Court of Criminal Appeal has formed the view that a different sentence should have been passed and it will vary the sentence accordingly.
In the case of a process error, the Court of Criminal Appeal may yet refrain from interfering with the sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error. In such a case, the Court of Criminal Appeal will not vary the sentence if it thinks that the same or a higher sentence would be passed if it were to exercise the discretion itself. However, where a process error is demonstrated, the Court of Criminal Appeal may reduce the sentence if in the exercise of its own discretion it considers that a lesser sentence is appropriate, even though the sentence under appeal is not manifestly excessive.
(Footnotes omitted)
[8] [2010] SASC 103; (2010) 269 LSJS 42 at [36]-[38].
Appeal ground 1
The appellant submitted that the Magistrate erred in failing to comply with subsection 10(2) of the Act. It is contended that the Magistrate misapprehended the subsection 10(2) requirement and, ultimately, applied an incorrect test when deciding to impose a sentence of imprisonment. This ground asserts a process error which, if established, would call for consideration of whether or not the appellant should be resentenced.
Subsection 10(2) of the Act provides as follows.
Subject to this Act or any other Act, a court must not impose a sentence of imprisonment on a defendant unless the court decides that—
(a) the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or
(b) it is required for the purpose of protecting the safety of the community (whether as individuals or in general).
The appeal was primarily concerned with subsection 10(2)(a). Counsel for the appellant submitted that subsection 10(2)(a) first calls for an analysis of the seriousness of the offence in question. The Magistrate must then decide whether a term of imprisonment is the only justifiable penalty or whether some other penalty would satisfactorily address the level of seriousness.
In Nicolle v Police,[9] David J favoured an approach to the assessment of seriousness that encompassed considerations beyond the bare offence, including previous behaviour and criminal antecedents. The appellant submitted that in the present case, the question of seriousness should be confined to the offending itself. As such, it was at the lower end of the scale for offending of this (or any) nature. This was because the contact was either initiated by RR or consented to by her.
[9] [2019] SASC 134; (2019) 133 SASR 448 at [11]-[15].
Counsel also submitted that the Court had to consider whether imprisonment was the only justified penalty by balancing the seriousness of the offence against all available sentencing options. All other available penalties had to be excluded as not justifiable.
During the appeal, the appellant accepted that the alternatives in lieu of imprisonment available to the Magistrate were limited. According to counsel, the appellant is “uncomfortably close to being destitute” and a fine at the upper end of the scale would not be feasible.[10] However, the appellant could be placed on a bond to be of good behaviour.
[10] Section 120 of the Sentencing Act 2017 (SA).
The appellant focussed on the following remark by the Magistrate when passing sentence:
I am satisfied that a sentence of imprisonment is justified for the offence of breaching an intervention order.
This was said to be demonstrative of a misapprehension of the test required by subsection 10(2)(a). The finding that imprisonment was simply justified, rather than that it was the only justifiable penalty, formed the essence of the appellant’s complaint on this ground.
The respondent contended that the Magistrate did not make a process error. Upon reading the whole of the sentencing remarks, it is apparent that the Magistrate considered and properly applied subsection 10(2)(a).
The Magistrate was not required to formulaically set out the wording of subsection 10(2)(a), as long as the reason for imposing the term of imprisonment was clearly expressed and conformed with the statutory requirement. In this respect, the respondent referred to Craill v Police,[11] reaffirming Police v Chilton.[12]
[11] [2016] SASC 168.
[12] [2014] SASCFC 76; (2014) 120 SASR 32.
Consideration of appeal ground 1
It is clear from the Magistrate’s sentencing remarks that his Honour was aware of and purported to apply section 10 of the Act. The Magistrate summarised at some length the circumstances of the various offences for which the appellant was to be sentenced, his prior criminal record and his personal circumstances and then continued as follows.
I have considered the provisions of sections 9, 10 and 11 of the Sentencing Act and I am satisfied that a sentence of imprisonment is justified for the offences of breaching an intervention order. You have multiple previous convictions for the same offence and have been sentenced to imprisonment for the offences amongst others in the past. A penalty is required that provides adequate punishment and personal deterrence.
Section 9 of the Act prescribes that the primary purpose for sentencing (as defined in section 3) must be the paramount consideration when sentencing a defendant. Section 11 prescribes that the court must take into account such of a number of relevant factors (paragraphs (a) to (h)) as are known to the court and also sets out a number of other sentencing considerations and requirements. Subsection 10(1) reinforces that a number of common law principles (proportionality, parity, totality and the “rule” in De Simone’s[13] case) continue to apply. Subsection 10(2) has been set out above.
[13] R v De Simone [1981] HCA 31; (1981) 147 CLR 383.
It should be accepted that the Magistrate did give consideration, as his Honour said, to section 10 and, in particular, subsection 10(2). In the context of his Honour’s reference to section 10 (the same sentence) he declared himself to be satisfied that a sentence of imprisonment was “justified” (the word used in subsection 10(2)(a)). This can only be understood as a reference to the subsection 10(2)(a) requirement. In a sense, the use of the word “only” in the subsection adds little, if anything to the sentencing task. Imprisonment has always been a penalty of last resort; it has always been the case that, where a sentence not involving imprisonment which properly addresses the purposes of sentencing relevant to the particular case can be fashioned, such is to be adopted. In this context, to find, as the Magistrate did, that a sentence of imprisonment was justified was to find that only a penalty of imprisonment was justified in this case.
It is important that an appeal court does not too readily find error in what typically will be economical sentencing remarks, particularly where busy lists in the Magistrates Court are concerned.[14] Stanley J put the point in this way in Craill v Police.[15]
Imprisonment is a sentence of last resort. It is an error not to consider all of the properly available sentencing options. However, it does not follow that proper sentencing requires a busy magistrate to expressly consider every other sentencing option before concluding that a term of imprisonment is the appropriate sentence. That would impose an undue and unnecessary burden upon sentencing magistrates. In this case I am satisfied that a term of imprisonment was the appropriate penalty given the serious nature of the offences, the circumstances in which they were committed, the appellant’s antecedents and the particular need for personal and general deterrence for offending of this kind. Reading the magistrate’s reasons as a whole it is apparent she was of the same view. There was no error in the approach taken by the magistrate.
(Footnotes omitted)
[14] Police v Chilton [2014] SASCFC 76; (2014) 120 SASR 32 at [19].
[15] [2016] SASC 168 at [39].
I am satisfied that the Magistrate in this case was of the view that imprisonment was the only justified penalty and, as such, his Honour purported to apply the subsection 10(2)(a) proscription.
The second issue to arise under appeal ground 1 is whether the Magistrate was correct in so finding. In other words, was this a case where the seriousness of the offences are such that the only penalty that can be justified is imprisonment?
An offender is only to be punished for the offence with which he was been found guilty[16] and is only to be punished once for such an offence. Nevertheless, the fact that a defendant has a poor prior criminal record or has previously committed offences of a nature similar to that now to be sentenced for will render that offence more serious than otherwise. A penalty more severe than otherwise but still proportional can be expected not because previous offending is being revisited but because there is less scope for leniency.
[16] R v De Simone [1981] HCA 31; (1981) 147 CLR 383.
Where a person offends and is sentenced but goes on to offend again, particularly where of the same nature, that person has had an opportunity to reflect and to be deterred but has proceeded deliberately to offend again. There is greater moral culpability with respect to repeated offending of the same nature even though in factual terms it may be of the same ilk as earlier offending. Further, any prospects for future rehabilitation will be diminished. It may be that the only way to protect the safety of the community including individuals from harm or threat of harm,[17] and to protect society generally from having its laws repeatedly flouted will be to separate such a person from society.
[17] The primary purpose for sentencing, section 3 of the Sentencing Act 2017 (SA).
In Nicolle v Police,[18] David AJ had occasion to consider the terms of subsection 10(2)(a) and said this.
It could never be the intention of Parliament to so limit the sentencing options of a magistrate or judge by divorcing the actual offending from the offenders previous behaviour and antecedents. The present case is an illustration of that. The sentencing magistrate was placed in a situation where numerous similar offences had been committed, and the appellant had been given the benefit (except on one occasion) of various forms of non-custodial sentences. It follows that a sentencing magistrate or judge must be allowed to take into account those matters when considering whether to imprison or not. I find the first aspect of this ground fails.
With respect, I agree with his Honour’s observations. They are consistent with longstanding sentencing practice.
[18] [2019] SASC 134; (2019) 133 SASR 448 at [15].
To assess the seriousness of the appellant’s 11th, 12th, and 13th offences of breaching an intervention order by considering them in isolation, on the basis that each was “consensual” and posed, as events transpired, no threat to RR as the protected person, would be highly artificial.
The sentencing task in this respect is not dissimilar from that with respect to other areas of the criminal law such as sentencing for driving whilst disqualified offences. A first offender, typically will be fined or placed on a bond to be of good behaviour often without a suspended prison sentence. However, subsequent offences, particularly where contumacious, will place the offender at real risk of being imprisoned. Subsequent such offences are more serious and sufficiently so to render imprisonment as the only justifiable penalty,[19] even where, as often will be the case, no harm or other driving offence has resulted.
[19] See, for example, Police v Cadd (1997) 69 SASR 150 and Police v Chilton [2014] SASCFC 76; (2014) 120 SASR 32.
It is of the utmost importance that intervention orders be observed at all times. It is not to the point that, on a particular occasion, no harm or threat of harm has resulted. The Magistrate explained why this is so in terms with which I agree.
The orders made under the Intervention Orders (Prevention of Abuse) Act are an important response to incidents of domestic violence and abuse. The use of violence, threats, intimidation and other forms of abuse within the domestic relationships is a very serious and widespread problem in our community. The consequences often involve physical, psychological and emotional harm to victims, dislocation and possibly homelessness, financial loss and the loss of opportunity. Interventions Orders are preventative in nature and must be properly enforced to maintain the effectiveness of the protection provided under the orders to alleged victims of domestic abuse. The court is obliged to deal with breaches of the preventative orders in a way which demonstrates to the perpetrator and to the community generally that such conduct cannot be tolerated.
The Magistrate in this case was faced with not just the 11th, 12th, and 13th breaches of an intervention order but offences which caused the appellant to breach a suspended sentence bond. That bond was referrable to previous criminal offending that included a breach of intervention order. Plainly, personal deterrence was a very significant consideration. For the reasons summarised above, general deterrence was also a very significant consideration.
Notwithstanding the factual circumstances of each of these latest three breaches, I consider the offending to have been very serious as did the Magistrate. Condign punishment was called for. A moderate fine or a bond to be of good behaviour would have been manifestly inadequate. A term of imprisonment was the only justifiable penalty.
Appeal ground 2
I repeat the summary I provided in Hilfy v The Queen[20] of the proper approach to be taken where the appeal ground is manifest excess.
The question of whether or not a sentence is manifestly excessive is to be determined by asking whether, after considering all the circumstances relevant to sentencing, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust.
Ordinarily, an appellate court when deciding the question of manifest excess will include in the factors to be considered: the maximum penalty for the relevant offence; the range of sentences customarily observed for the type of offence; the seriousness of the offence committed; and the personal circumstances of the offender. The task for an appellate court (in the context of a consideration of the cognate notion of manifest inadequacy) was explained in more detail by the High Court in Hili v The Queen.
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”.
But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
(Footnotes omitted)
(Footnotes omitted)
[20] [2020] SASCFC 72 at [36]-[37].
It is not necessary to determine whether or not a sentencing judicial officer has made a specific error. Indeed usually, if this can be demonstrated, it will be raised in the notice of appeal as what is often described as a process error.[21] Nor is it necessary to consider whether or not the sentencing judicial officer has placed insufficient weight on individual sentencing factors. Such a finding, whilst, itself, not a process error may be inferred from a finding of manifest excess.[22]
[21] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505, R v Horstmann [2010] SASC 103; (2010) 269 LSJS 42 at [36]-[38].
[22] House v The King [1936] HCA 40; (1936) 55 CLR 499, R v Horstmann [2010] SASC 103; (2010) 269 LSJS 42.
For reasons already given, the offending in this case was serious and deterrence, both personal and general, is a very important consideration. It had to be made clear to the appellant that his repeated refusal to observe intervention orders will not be tolerated. After reflecting on the considerations relevant to the question of manifest excess, as explained by King CJ in R v Morse,[23] a starting point of five months was not outside the available range. The sentence, ultimately imposed for the three breaches of the intervention order, of three months and two weeks was not manifestly excessive.
[23] (1979) 23 SASR 98.
Conclusion
There was no appeal against the revocation of the suspended sentence. However, I raised with counsel at the appeal whether a successful appeal against the sentence for the intervention order breaches might cause the consequences following from the breach of bond generally to be revisited. I received further written submissions on this issue. In the circumstances where both appeal grounds have failed, it is now unnecessary to revisit the breach of bond.
In any event, the seriousness of the breaching offences and the fact that they are of the same character as previously committed including one underlying the suspended sentence bond, render revocation inevitable. No concern that the ultimate outcome would be disproportionate to the breaching offences arises. The Magistrate was correct to find that there were no proper grounds to excuse the breach. Finally, having reviewed the appellant’s personal circumstances and his further submissions there is no basis to justify a reduction of the suspended prison term pursuant to subsection 114(5)(a) of the Act.[24]
[24] See R v Buckman (1988) 47 SASR 303.
The appeal is dismissed.
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