Juckers v Police No. Scciv-01-1496

[2002] SASC 91

JUCKERS  v  POLICE
[2002] SASC 91

Magistrates Appeal
Nyland J

1. This is an appeal against sentence. 

2. On the morning of 23 August 2001, the appellant appeared in the Magistrates Court at Kadina with respect to an application brought by a community corrections officer of the Department of Correctional Services (“the department”).  The application alleged that the appellant had failed to comply with obligations as to community service.

3. The appellant had previously appeared in the Magistrates Court on 19 April 2001 on a charge of committing an assault on a family member and resisting police.  He was sentenced to four months imprisonment which was suspended on condition that he enter into a bond to be of good behaviour for a period of two years and that he be under the supervision of a probation officer for the duration of the bond.  It was a further condition of the bond that the appellant undertake 100 hours of community service within a period of 12 months. 

4. The application before the court on 23 August 2001, alleged that the appellant had only performed 28.5 hours of his community service, leaving a balance of 71.5 hours. The magistrate found that the appellant was in breach of his obligations and pursuant to s 71 Criminal Law (Sentencing) Act 1988 (“the Act”), ordered that the appellant serve a sentence of nine days imprisonment. The appellant was then taken into custody to commence his sentence. On the afternoon of the same day the appellant was returned to court. It appears that an approach was made to the court by the same Correctional Services officer for the court to deal further with the appellant for a breach of the term of the bond imposed on 19 April 2001 which required him to be under the supervision of a probation officer. The Correctional Services officer did not, however, have any power to make that application. As a result, the magistrate made arrangements for a prosecutor from the South Australian Police force to attend on the hearing of the application. The prosecutor then made an oral application pursuant to s 58(1) of the Act for the estreatment of the bond imposed on 19 April 2001.

5. The magistrate found that the appellant had failed to comply with the condition of the bond as to supervision.  He revoked the order for suspension of sentence and directed that sentence be carried into effect.  He considered that there were not any grounds to excuse the breach, nor any special circumstances  which would justify the reduction of the sentence of four months.  The magistrate did, however, order that the sentence be served concurrently with the sentence of nine days which he had imposed earlier in the day.  The appellant thereafter remained in custody for a period of 21 days before being released on bail on 13 September 2001.

6. The appellant was unrepresented throughout the proceedings in the Magistrates Court.  In his affidavit filed on the hearing of the appeal, the appellant admitted that he had only performed 28.5 hours of community service.  He said, however, that he had not received any letter advising him of the breach of his conditions.  He said that he believed he had 12 months within which to complete his hours. 

7. He maintained that prior to his appearance in court in the morning, he did not know that he would be sent to gaol.  He did not therefore think that he needed his lawyer to be present.  The appellant said he was not given an opportunity to make an application to extend or vary the terms of the order.  After he was sentenced to the nine days imprisonment, the police arranged for him to contact his lawyer by telephone.  His lawyer was based in Adelaide, however, and was unable immediately to attend at court on his behalf.  In any event he did not know when he spoke to her that he was going to be required to re-appear in the court that afternoon.  He said that he did not know why he was returned to court.  He was not given a further opportunity to telephone his solicitor, nor was he able to say anything on his behalf.  He also maintained that he was not given the opportunity to inform the magistrate that he had a lawyer acting for him.

8. The question of what advice and/or opportunity was given to the appellant to obtain legal representation is confusing, but in the course of sentencing the appellant in the proceedings which took place in the afternoon, the magistrate commented:

   “This morning, as you are not legally represented and there was no Police Prosecutor present, I decided to proceed under s 71(1) of the Sentencing Act and in the meantime I arranged for the matter to be listed after I had the Police Prosecutor alerted to the facts.”

9. It is not clear what the magistrate meant by these remarks, nor the extent to which the appellant may have been advised of his right to legal representation.  It is well established, however, that it is the duty of a court to assist an unrepresented person by informing him or her of the need to place certain information before the court.  It is also appropriate to give such a person an adequate opportunity to obtain legal representation.  In this regard it is useful to refer to the matters referred to by Wells J in Cooling v Steel (1971) 2 SASR 249 which are helpfully summarised by Sangster J in Ivanoff v Linnane (1979) 20 SASR 279 (at 282), as follows:

   “(i)Ensuring before a plea is taken that the defendant is told, briefly and simply, what he is charged with.

   (ii)Making the defendant appreciate that the plea is a matter for his own independent decision, that he is entitled to legal advice and representation, and to a reasonable adjournment to seek legal advice or representation.

   (iii)If the question of bail arises, making the defendant clearly aware of what bail is, that he can apply for bail, what matters a court takes into account, and that he can make representations.

   (iv)If the case is to be proceeded with the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed – especially where the court has power to disqualify from holding or obtaining a driving licence, or order compensation, or direct forfeiture of property, or order imprisonment.

   (v)On a plea of guilty the defendant should have it made clear that he may put matters in mitigation by statement or on oath (especially if the offence may be held to be trifling) and that he may call witnesses or produce other relevant material.

   (vi)On a plea of guilty, before the prosecutor places the facts before the court the defendant should be informed that he is entitled to dispute or comment on the facts about to be alleged (including previous convictions).

   (vii)If facts are disputed, the defendant should be given the opportunity to support his version by sworn evidence and/or calling witnesses, or (if appropriate) consideration should be given to treating the defendant’s contention as to the facts as a plea of ‘not guilty’.”

10. Wells J went on to say in Cooling v Steel (at 251), that:

    “In general, the court should ensure that the defendant is appraised of his rights and his duties at all times, and be vigilant to keep the proceedings free of error or misunderstanding.”

11. In this case the appellant does not appear to have been given an adequate opportunity to obtain legal advice. It was essential that he should have been given that opportunity in light of the impending custodial penalty. As it happened, the magistrate fell into error in dealing with the appellant at the hearing in the morning by purporting to rely upon s 71 of the Act to order the appellant to serve nine days imprisonment for the breach of his community service obligations.

12. Section 71 is available to be used when a defendant is required to perform community service as a discrete sentence. It cannot, however, be used where the community service obligation is imposed as part of a bond pursuant to which a sentence is suspended. In the latter case, the court cannot impose by way of penalty a prison sentence under s 71 but must instead act in accordance with the provisions of s 58 of the Act which relate to a breach of conditions of bond: McAvaney v Modbourne (1993) 174 LSJS 287. Accordingly, in this case, once the magistrate was satisfied that the appellant had breached a term of his bond, he was obliged to apply the provisions of s 58 of the Act. In so doing, the learned magistrate was obliged to inform himself of all of the circumstances relating to the breach in order to determine whether there were any grounds upon which the breach could be excused.

13. The Crown conceded on the hearing of the appeal that the magistrate had fallen into error by relying on s 71 and that the appeal should be allowed to the extent of quashing the sentence of nine days imprisonment. The appellant further complained, however, that the learned magistrate had also erred in exercising his discretion to revoke the order for suspension of sentence, as he failed adequately to inform himself of all relevant matters affecting the exercise of that discretion under s 58(4) of the Act. As a result the appellant was required to serve the sentence of four months imprisonment which was disproportionate to the nature of the breach.

14. In order to consider this aspect of the matter it is necessary to consider the circumstances in which the breach occurred.  The offence for which the appellant was placed on the original bond related to an assault upon his father at the family home at Port Road, Kadina.  As a result of that assault, the appellant was ejected from his parents’ home.  In the approximate 12 months that followed he resided at five different addresses.  He has not returned to the family home since 2 January 2001.  During 2001 the appellant relied on friends and acquaintances for accommodation and seasonal work for his income.  He did not have stable work but was not in receipt of Centrelink benefits. 

15. The community services attendance record indicates that the appellant commenced his community service on 17 May 2001 and that he also attended on 24 May, 31 May, 2 June and 14 June 2001, accruing a total of 28.5 hours.  His last attendance was on 14 June 2001. 

16. On 6 July 2001, the department sent a letter warning the appellant of his suspension from community service.  In view of his absences the appellant was directed to report to a work base at Kadina on or before 12 July 2001 and each week thereafter until he completed his community service.  On 20 July 2001, a further letter was sent notifying the appellant that he would suspended from the scheme until such time as the court made a decision on the matter.  Both of these letters were, however, sent to the appellant’s family home, and were not received by him. 

17. It appears that an effort was made to contact the appellant at an address at a Frances Terrace in Kadina, following an advice by the clerk of the Kadina Magistrates Court that the appellant was then residing at that address.  The probation officer said that she attended at that address and left a direction in writing for the appellant to phone her on 4 July 2001 between 1 pm and 4.30 pm to advise of his official address.  There was, however, no record of the appellant thereafter contacting her.

18. The appellant, in his affidavit said that he was not living at the Frances Street address at the relevant time and did not receive that message.  The appellant said that he believed that he had 12 months within which to perform his community service and that he believed that he was complying with his obligations under the bond by informing the court from time to time of his changes in address.  He was not aware of the proceedings taken against him with respect to his failure to attend for community service until he was served personally with the application on 21 August 2001 which was only two days before he appeared in court with respect to it.

19. The making of a community service order is a serious matter and the court must ensure that offenders strictly comply with the terms thereof.  In this case, the appellant was absent without leave from his community service program on five occasions between 7 June and 19 July 2001 and he failed to report to his probation officer to notify of his change of address.  In those circumstances, I agree with the finding made by the learned magistrate that the breach was not trivial.  The magistrate further found, however, that there were not any proper grounds upon which the breach could be excused.

20. In considering whether there are proper grounds to excuse a breach, the court is obliged to look to the nature of the breach and the circumstances in which it was committed and not the personal circumstances of the offender:  Marshall v Police [1999] SASC 397. In this case, however, there is a close relationship between the circumstances of the breach and the appellant’s personal situation, and each of those matters is surrounded by a large degree of confusion. The bond required the completion of the community service within 12 months from the date of entry into the bond. That period had not expired at the time that the proceedings for the breach were taken. Absent the appellant receiving specific advice that the failure to attend for appointments might lead to a suspension from the program, it is understandable that he believed that he had several more months to comply with the requirements imposed upon him by the bond. The written advice warning him of the possibility of proceedings being taken as a result of his failure to attend for community service was sent to his home address although, given the assault on his father, it must have been obvious that the appellant was no longer residing there.

21. Notwithstanding that matter, the appellant had an obligation to keep his probation officer informed of his current address.  It was not, however, disputed on the hearing of the appeal, that the appellant had notified the court at Kadina of his change of address from time to time, notwithstanding that he was homeless and was moving about in the community.  Although in some respects the appellant was rather casual with respect to his ongoing contact with the authorities, I do not think that, when all of the circumstances of this matter are taken into account, that his failure to comply with his obligations amounted to a deliberate flouting of the authority of the court or a relapse into non-law abiding ways as discussed by me in R v Harvey [1999] SCSA S5519 (unreported, delivered 27 March 1996).  Furthermore, the appellant was not given any written notice of the application to estreat the bond but was confronted by an oral application made at short notice and at a time when the appellant did not have the benefit of legal advice.

22. In my opinion, there were proper grounds to excuse the appellant’s failure to comply with the condition as to community service.  The learned magistrate, by revoking the order for suspension of sentence and requiring the appellant to serve the sentence of four months of imprisonment, fell into error.  The appeal will therefore be allowed. 

23. As there was no power to order the appellant to serve the period of nine days imprisonment pursuant to s 71 of the Act, that sentence is quashed. I set aside the order made by the learned magistrate revoking the order for suspension of sentence. I find that there are proper reasons to excuse the appellant’s failure to comply with the conditions of the bond. The appellant has served a period of 21 days imprisonment with respect to this matter. I trust that this has brought home to him the need to comply strictly with his obligations under the bond. As the bond has not yet expired, I order, pursuant to s 58(3)(b)(i)(B) of the Act, that the time within which the remaining hours of community service are to be performed be extended by six months.