Lacey v Police No. Scgrg-99-412 Judgment No. S177

LACEY v POLICE
[1999] SASC 177

Magistrates Appeal: Criminal

PERRY J (ex tempore). The appellant appeals against the activation of a sentence of six months imprisonment pursuant to an order made in the Magistrates Court upon proof that she had breached a bond on the basis of which the sentence had been suspended.
The circumstances are that on 25 June 1998 the appellant appeared in the Magistrates Court sitting at Berri on a building breaking and entering charge. She was convicted and sentenced to six months imprisonment. That sentence was suspended upon her entry into a bond to be of good behaviour for a period of 18 months on various conditions, which included a stipulation that she perform 56 hours of community service within 12 months of that date, and that she obey the lawful directions of the Community Service Officer.
It appears from the material before me that the appellant was already completing a period of community service imposed on a previous bond. The community service imposed on the previous bond was for a period of 96 hours.
She performed most of the work in connection with that period of community service at the Renmark and Paringa Tourist Office. Before finishing that period of community service she was transferred to the Olive Wood Homestead, where she completed the remaining hours of the 96 hours of community service, thereby satisfying the conditions imposed on the earlier bond.
She then commenced the community service imposed on the bond now in question. Her performance, however, proved most unsatisfactory. On the material before the learned Special Magistrate it appears that she was absent without leave on 17 and 18 October 1998 and had not attended her assigned duties since 16 October 1998.
Warning letters were sent to her on 22 October and 3 November 1998, but without securing her cooperation. In the result she completed only two and a half hours of the 56 hours which had been ordered.
She appeared before a Special Magistrate on 25 March 1999 at the Magistrates Court sitting in Berri, to answer to an application for enforcement of the breach of the bond.
According to the affidavit which she has filed, she cannot recall if she was told of her right to have legal representation. She does recall explaining to the learned Special Magistrate that she was pregnant. She apparently told him of that when asked why it was that she should not be imprisoned. It does not appear that she made any other submissions.
He thereupon activated the suspended sentence and ordered her imprisonment for six months. He did not give any reasons.
In my opinion the failure to give reasons was an error of law. I have been referred to a decision of Sangster J, namely, Campagnolo v Samuels,[1] in which His Honour observed that there was no legal obligation upon a magistrate upon imposing a penalty “to say anything by way of findings or reasons”.
[1] (1976) 15 SASR 226.
In my opinion, that case should no longer be followed. There is now much authority in favour of the view, which in my opinion is the correct view, that where there are rights of appeal, it is necessary for the court or judge at first instance to give such reasons as may be necessary for the right of appeal to be exercised effectively.[2] In the case of a sentencing order, the right of appeal under the Magistrates Court Act (1991) cannot properly be exercised without reasons having been given.
[2] Carlson v King (1947) 64 WN (NSW) 65 per Jordan CJ at 66:
“It has long been established that it is the duty of a Court at first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision.”
And see Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 per Gibbs CJ at 666:
“... judges are under an obligation to give reasons where that is necessary to enable the matter to be properly considered on appeal.”
But c/f Watson v Anderson (1976) 13 SASR 329 per Bray CJ at 332:
“The real criterion, it seems to me, must be whether the failure to give reasons frustrates the performance of its duty by the appellate court.”
See also De Iacovo v Lacanale [1957] VR 553 per Monahan J at 557-559; Brittingham v Williams [1932] VLR 237; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney CJ at 385-386 (affirmed sub nom Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 58 ALJR 553; 54 ALR 155); Wright v Australian Broadcasting Commission and Anor [1977] 1 NSWLR 697; Mifsud v Campbell (1990) 21 NSWLR 725; David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294; and Peters v Castuera (1994) 117 FCR 388 per Lindemayer J at 395 et seq.
As to whether the failure to give reasons in such circumstances is an error of law, see Pettitt v Dunkley (1971) 1 NSWLR 376 per Moffitt JA at 388:
“If it can be established that a judge failed or declined to give any reasons where there was a judicial duty ... to do so, then, as with other errors in the judicial process, ... he has erred in law.”
See also Stojkovski v Fitzgerald (1989) WAR 328 per Wallace J at 334.
I have previously observed in the context of magistrates appeals that where there is a failure to give reasons, I will simply deal with the matter de novo. I have followed that course here.
I have heard out Mr Petraccaro for the appellant and Mr Gow for the respondent on the footing that I would exercise the discretion afresh.
The discretion invoked by Mr Petraccaro was that given by s58(3) of the Criminal Law (Sentencing) Act 1988 which, for present purposes, is a discretion to refrain from revoking a suspension and to exercise various other stated powers, which include a power to extend the time for compliance with the order of community service by a period not exceeding six months (see s58(3)(b)(i)(B)).
Mr Petraccaro argued that the breach in this case was either trivial or that there were proper grounds upon which the failure by his client to comply with the requirement to perform community service might be excused or otherwise ameliorated.
Community service orders, or for that matter, any conditions included in a bond pursuant to which a sentence of imprisonment is suspended, are not to be treated lightly. A breach of such conditions smacks of a contempt of court. But the section itself recognises that there may be circumstances in which the breach may be properly regarded as trivial.
Here it is suggested that the appellant was not happy doing cleaning work in the way that she had been directed to perform it at Olive Wood; that her parents, with whom she was living, were experiencing marital problems, which eventually came to a head in June or July 1998; that she was unemployed, and had to give some time to looking for a job; that she was pregnant; and that she had an accident in January, when she cut her chin when she slipped at home, and that this was complicated by some swelling which occurred after she was later punched on the chin.
Mr Petraccaro also pointed out that there is still a little time to run of the period during which the community service was to be performed, which does not expire until 25 June this year.
Mr Gow for the respondent contended that the breach in this case was not trivial, and should not be so characterised.
I think that this was a borderline case. The reasons for non-compliance with the order could not, on the most favourable view of the case, be considered to be weighty or convincing. On the other hand, it seems to me, that even if, as I think is the case here, the breach cannot properly be characterised as trivial, it may, nonetheless, properly be regarded as not so serious as many breaches might be.
Here I think that the breach, although not trivial, was not so serious as would warrant the imprisonment of the appellant, when the nature of the breach is considered in the context of the other matters to which I have referred.
I would not, however, like it to be thought that I would condone a casual or easy going approach to breaches of bond, particularly those involving community service. It must be the case that the integrity of the sentencing process will be eroded if orders of the court, and conditions of a bond of this kind, are not observed. But in the particular circumstances of this case I think that the appellant should have been given another chance. I am prepared to do so.
I allow the appeal for the purpose of quashing the order under appeal. I substitute an order under s58(3) of the Criminal Law (Sentencing) Act 1988, extending the time for the performance of community service in accordance with the conditions of the bond in question, by a period of six months from now, that is to say, to and including 3 November 1999.
I would not like the appellant to leave the Court without realising that I have given her an opportunity which many courts may not have given to her to demonstrate her good faith by completing the community service order. She cannot expect further leniency to be extended to her in the future if there is any failure on her part strictly to comply with the order as varied by me today.

[AFTER HEARING COUNSEL]

No order as to costs.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

(1976) 15 SASR 226.
Carlson v King (1947) 64 WN (NSW) 65 per Jordan CJ at 66:

“It has long been established that it is the duty of a Court at first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision.”

And see Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 per Gibbs CJ at 666:

“... judges are under an obligation to give reasons where that is necessary to enable the matter to be properly considered on appeal.”

But c/f Watson v Anderson (1976) 13 SASR 329 per Bray CJ at 332:

“The real criterion, it seems to me, must be whether the failure to give reasons frustrates its duty by the appellate court.”

See also De Iacovo v Lacanale [1957] VR 553 per Monahan J at 557-559; Brittingham v Williams [1932] VLR 237; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney CJ at 385-386 (affirmed sub nom Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 58 ALJR 553; 54 ALR 155); Wright v Australian Broadcasting Commission and Anor [1977] 1 NSWLR 697; Mifsud v Campbell (1990) 21 NSWLR 725; David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294; and Peters v Castuera (1994) 117 FCR 388 per Lindemayer J at 395 et seq. As to whether the failure to give reasons in such circumstances is an error of law, see Pettitt v Dunkley (1971) 1 NSWLR 376 per Moffitt JA at 388:

“If it can be established that a judge failed or declined to give any reasons where there was a judicial duty ... to do so, then, as with other errors in the judicial process, ... he has erred in law.”

See also Stojkovski v Fitzgerald (1989) WAR 328 per Wallace J at 334.

[1999] SASC 177

3 May 1999