SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LUDGATE v POLICE
[2018] SASC 175
Judgment of The Honourable Justice Hinton
22 November 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
On 9 December 2015 the appellant was sentenced to imprisonment for one year and four months with a non-parole period of seven months for a number of drug and firearm related offences. The sentence was suspended upon the appellant entering into a bond to be of good behavior for two years, which was extended for a further three months on 24 November 2016.
On 2 February 2018 the appellant was charged with cultivating more than the prescribed number of cannabis plants and possession of prescribed equipment. These offences were committed in breach of the suspended sentence bond. The breach of the bond prompted the respondent to apply for the revocation of the suspended sentence imposed on 9 December 2015. The appellant pleaded guilty to the 2 February 2018 offending and acknowledged the breach of the 9 December 2015 bond. On 13 September 2018 the Magistrate revoked the suspended sentence and ordered that the appellant serve the 9 December 2015 sentence in addition to sentencing the appellant to six weeks’ imprisonment for the 2 February 2018 offences, such sentence to be served cumulative upon the revoked suspended sentence.
The appellant appealed against the sentence on the grounds that the Magistrate erred in:
1. failing to consider whether the suspended sentence could be served on home detention;
2. concluding that an intensive corrections order could not be made in relation to the suspended sentence;
3. failing to excuse the breach of the bond and suspend the sentence for the 2 February 2018 offending;
4. in the alterative to ground 3, failing to find that special circumstances existed to justify reducing the term of the revoked suspended sentence; and
5. failing to provide adequate reasons for the sentences imposed.
Held, dismissing the appeal:
1. Section 114(3) of the Sentencing Act 2017 (SA) is exhaustive as to the options available to a court upon finding that a suspended sentence had been breached.
2. The Magistrate did not err in refusing to excuse the breach and did not err in concluding that special circumstances to reduce the revoked suspended sentence did not exist.
Criminal Law (Sentencing) Act 1988 (SA) s 58; Firearms Act 1977 (SA) ss 11, 23, 41(1), 61; Firearms Regulations 2008 (SA) regs 38(1), 61; Mental Health Act 2009 (SA); Sentencing Act 2017 (SA) ss 19, 71, 81, 114; Offenders Probation Act 1913 (SA) s 9, referred to.
Hodgson v Police [2002] SASC 35; Jones v Police [2009] SASC 137; M, PA v Police (2012) 218 A Crim R 276; R v Buckman (1988) 47 SASR 303; R v Marston (1993) 60 SASR 320; R v Hibeljic [2018] SASCFC 35;
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- Ludgate v Police [2018] SASC 175
- Case
- [2018] SASC 175
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CaseChat Overview and Summary
The court addressed the appeal by examining the provisions of the Sentencing Act, particularly sections 114(1)(d) and 114(3), which detail the circumstances under which a suspended sentence may be revoked. The appellant argued that there were proper grounds to excuse his breach of the conditions of his bond, which was linked to his failure to comply with a good behaviour obligation. The court held that the appellant's submission did not challenge the Magistrate's finding that the breach was not trivial but rather that there were proper grounds to excuse it. The court found that the appellant's argument failed as it was not open to the court to conclude that the Magistrate's view was not open to him. Furthermore, the court held that the Magistrate's reasons were adequate as they demonstrated a clear understanding of the sentencing task and the relevant legal framework.
The court dismissed the appeal, concluding that the appeal grounds were not made out. The reasoning of the Magistrate was found to be adequate, and there was no error of law that warranted intervention. The court's decision underscored the importance of correctly applying the provisions of the Sentencing Act when revoking a suspended sentence and highlighted the necessity for clear and sufficient reasons in such decisions. The final orders of the court were to dismiss the appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Turning to the fifth ground of appeal, the respondent submitted that as the Magistrate was only determining whether to give effect to a suspended sentence, rather than imposing a sentence for the first time, inadequacy of reasons may not amount to an error of law that warrants this Court’s intervention. In any event, the Magistrate’s reasons were adequate given that it is possible to discern the approach the Magistrate took to sentencing the appellant. Consideration It is convenient to deal with the third ground of appeal first. There is no dispute that in committing the offences of 2 February 2018 the appellant acted in breach of the bond he entered into on 9 December 2015. In the circumstances s 114(1)(d) of the Sentencing Act was enlivened. It provided:[i]f the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—[the sentencing court] must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect. Relevantly s 114(3) provided:If a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds on which the failure should be excused, the court may refrain from revoking the suspension and—(a)in the case of a bond requiring performance of community services—may—…(b)in the case of any other bond—may—(i) extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or(ii) impose a condition on the bond requiring the probationer to perform a specified number of hours of community service; or(iii) revoke or vary any other condition of the bond; and(c)if the bond has expired in any case—may require the probationer to enter into a further bond, the term of which must not exceed 12 months. It is important to note that s 114(3) is only engaged upon the court first being satisfied that the probationer has breached the bond. Thereafter the powers contained in s 114(3)(a), (b) and (c) are enlivened if the court is satisfied that the failure to comply with the conditions of the bond was, either, trivial, or, one in relation to which there are proper grounds to excuse. The appellant did not suggest that his failure to comply with the bond of 9 December 2015 was trivial. Rather, he submits that there were proper grounds to excuse his breach. That argument can only succeed if this Court concludes that it was not open to the Magistrate to arrive at the contrary view. Mixed in with this argument was the submission that the Magistrate had misunderstood the task that he was required to undertake in the application of s 114(3) in that he had not turned his mind to an assessment of the extent to which the appellant departed from the obligation contained in the bond to be of good behaviour for the period of the bond. This submission was also linked to the fifth ground of appeal in that the Magistrate’s conclusion that proper grounds do not exist “on the basis of the asserted disproportionality of the outcome” not only, it is said, supported the contention that he did not understand the task required, but amounted to inadequate reasons for concluding that proper grounds did not exist.