MACGREGOR v POLICE
[2015] SASC 107
•24 July 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MACGREGOR v POLICE
[2015] SASC 107
Judgment of The Honourable Justice Sulan
24 July 2015
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - GENERALLY
The appellant was charged with carrying an offensive weapon, damaging property and two counts of aggravated assault. The offensive weapon count was withdrawn before the Magistrates Court, and the appellant pleaded not guilty by reason of mental incompetence to the three remaining counts. The objective facts were admitted. The Magistrate imposed a limiting term of 12 months.
The appellant appeals on the ground that the Magistrate erred in determining the limiting term by reference to the period of the bond he would have imposed, rather than the length of the sentence he would have imposed.
The respondent conceded the appeal.
Held:
1 Appeal allowed.
2 The Magistrate's order that the limiting term be 12 months is set aside, and in substitution there be a limiting term of six weeks beginning on 22 July 2015.
3 Per Question of Law Reserved (No 1 of 1997) (1997) 79 SASR 251, the head sentence should be the sole determinant in setting the limiting term.
Criminal Law Consolidation Act 1935 (SA) s 20(3), s 85(2), s 269B(3), s 269GB(3)(a), s 269O, s 269O(2); Summary Offences Act 1988 (SA) s 21C(1), referred to.
Question of Law Reserved (No 1 of 1997) (1997) 79 SASR 251, applied.
R v Sumner [2010] SASC 43; R v T (1999) 75 SASR 235, discussed.
MACGREGOR v POLICE
[2015] SASC 107Magistrates Appeal: Criminal
SULAN J: The appellant and defendant, David Peter McGregor, was charged with the offences of carrying an offensive weapon, damaging property and two counts of aggravated assault, all committed on 24 January 2015.[1]
[1] Carrying an offensive weapon, contrary to the Summary Offences Act 1988 (SA) s 21C(1), damaging property, contrary to the Criminal Law Consolidation Act 1935 (SA) s 85(2), aggravated assault, contrary to Criminal Law Consolidation Act 1935(SA) s 20(3).
The charges arose as a consequence of an altercation between the defendant and his neighbour. The neighbour, Ms Spizzo, complained to the defendant that the music he was playing was too loud. The defendant pushed Ms Spizzo, who then returned to her home where she was speaking to Ms D’Avigdor, another neighbour. Whilst the two women were speaking, the defendant threatened them with a knife. When they ran inside the house, he damaged the front screen door with the knife. Ms Spizzo received a small scratch to her arm as a result of the knife coming through the door.
When the matter came before the Magistrates Court, the first count was withdrawn. The defendant pleaded not guilty to the remaining three counts, on the grounds of mental incompetence. The objective facts were admitted.
The Magistrate imposed a limiting term of 12 months. In the course of his reasons, the Magistrate said:
... Notwithstanding that your client’s got a previous conviction for an assault, that wasn’t dealt with by way of release but was dealt with in, I can say, conventional sense and I put into a different category incidents that resulted on a release on licence as opposed to a conviction in terms of how I might regard them for the purpose of determining sentence if I were to sentence and what I might have been inclined to do in the absence of a finding of mental incompetence would be to accept the time in custody as a – if he was still in custody – and as a period of imprisonment and suspend the balance of a period of about three months on release on a bond which I would have made for probably a significant period and that is how I propose to approach this. That is taking into account the time in custody plus any time in supervision and work out a limiting period and the licence conditions in that way. In those circumstances I would put a limiting condition of 12 months.
[Underlining is mine.]
The defendant referred the Magistrate to the decision of the Full Court in Question of Law Reserved (No 1 of 1997),[2] which dealt with Part 8A of the Criminal Law Consolidation Act 1935 (SA), in particular s 269O, which provides how the period of sentencing is to be determined. Duggan J, with whom Matheson and Nyland JJ agreed, explained in some detail how the operation of the mental impairment provisions apply. If a person is found to be mentally incompetent, then the defendant is liable to supervision.[3]
[2] (1997) 79 SASR 251.
[3] Section 269FB(3), s 269GB(3)(a).
The defendant appeals the decision on the ground that the Magistrate erred in determining the limiting term by reference to the period of the bond he would have imposed, rather than the length of the sentence he would have imposed.
When the matter was heard by me on 22 July 2015, counsel for the defendant and respondent each submitted that I should allow the appeal and reduce the limiting term to the period of six months indicated by the Magistrate as the period of imprisonment he would have imposed had the defendant been found guilty of the charges.
I imposed a limiting term of six weeks, having taken into account two months and 24 days the defendant had been in custody, and six weeks which had lapsed from the time the Magistrate determined the limiting term. The issue which has arisen is whether it was open to the Magistrate to determine the limiting term by reference to the period of 12 months’ supervision which he would have imposed as a condition of the suspended sentence bond had the defendant been sentenced for the offences. I was to provide my reasons.
The Act
If a defendant is declared liable to supervision the court so making the declaration may release the defendant unconditionally, or make an order (a supervision order) committing the defendant to detention or releasing the defendant on licence under certain conditions.[4] Section 269O(2) provides:
If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.
[Underlining is mine.]
[4] Criminal Law Consolidation Act 1935 (SA) s 269O.
There is a note to that section which states:
The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant’s mental impairment.
The question which arises is whether the words of s 269O(2) permit the Court to set a limiting term by reference to the length of a bond requiring supervision for a period in excess of the term of imprisonment to be suspended. In Question of Law Reserved (No 1 of 1997), Duggan J said:[5]
The phrase “the period of imprisonment” in subs (2) refers to the sentence of imprisonment which would have been passed by the court if the accused had been convicted. This cannot be anything other than the head sentence. The fixing or extending of a non-parole period is included in the definition of “sentence” in the Criminal Law (Sentencing) Act 1988 (SA), no doubt for purposes such as the appeal process. However, s 32 of the Sentencing Act makes a clear distinction between the sentence of imprisonment and the consequential order fixing a non-parole period. The approach to the task of sentencing “is to impose a sentence appropriate to the offence in all the circumstances and then but only then, to fix a minimum term in the light of the duration of the sentence imposed” ...
[Citations omitted.]
[5] (1997) 79 SASR 251 at 265.
Later, he said:[6]
[6] (1997) 79 SASR 251 at 265-66
Question 8 seeks guidance on the fixing of the limiting term in the event that a suspended term of imprisonment, a fine or some other penalty short of a custodial term would have been appropriate if the accused had been convicted of the relevant offence. The application of these provisions to suspended sentences gives rise to some difficulty. A sentence may be suspended on a bond which does not contain a condition for supervision. I do not accept the argument that the accused in those circumstances is subject to supervision simply because non-compliance may result in enforcement proceedings. If it would not have been appropriate to order a period of supervision as part of the bond, then the only way in which subs (2) could be applied is by reference to the head sentence which would have been imposed before it was suspended. If the case is one in which the court would have directed supervision as part of the bond then a literal interpretation of the subsection would allow either the head sentence or the period of supervision to be chosen in fixing the limiting period. However, as the head sentence is central to all suspended sentences and must be fixed as a true sentence appropriate to the circumstances of the offence and offender (Wood v Samuels (1974) 8 SASR 465; Weetra v Beshara (1987) 46 SASR 484 at 491) I think it provides a more appropriate guide to the limiting period than a period of supervision.
In a case where a non-custodial sentence incorporating a period of supervision as part of a bond would have been appropriate, then that period will provide the only determinant for the limiting period.
A fine is not a custodial penalty and in my view unconditional release would be appropriate in a case in which a fine would have been ordered if the offence had been proved in the normal way. The same applies to any other non-custodial sentence which would not require supervision.
I would answer question 8 as follows:
“If neither a custodial sentence nor a period of supervision would have been directed as part of the penalty which would have been imposed if the accused had been convicted of the offence, then an unconditional release would be appropriate.
In the case of a suspended sentence the head sentence should be the sole determinant in nominating the limiting term for the purposes of subs (2). (The head sentence includes a sentence in respect of which no non-parole period has been fixed.)”
[Underlining is mine.]
In R v T, Doyle CJ observed:[7]
It may be that in fixing the limiting term the Court does not engage in exactly the same process that it does when imposing a sentence. Note 1 requires the Court to fix a limiting term “by reference to the sentence that would have been imposed”. But, in my opinion, one cannot say that the Judge should not have regard to a matter such as general and personal deterrence when fixing a limiting term under this provision. I agree that the result may seem harsh, but the terms of the provision are clear. As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Pt 8A. ... [I]t is relevant to bear in mind that the limiting term does no more than fix the period during which [the defendant] may be subjected to restraints under Pt 8A.
[7] (1999) 75 SASR 235 at [43].
In R v Sumner,[8] I considered whether, in setting a limiting term, credit should be given for time spent in custody. I made the following observation:[9]
In setting limiting terms there should be consistency, insofar as is possible, in the period a person is to be incarcerated for particular alleged offending. If, for example, a defendant was on bail until the limiting term was set, there would be an injustice in imposing the same length of limiting term to someone who had been in custody for some length of time.
In this case, the defendant has been in custody for over two years. If that period were not taken into account in setting the limiting term, she would effectively have her freedom curtailed for over two years longer than if she had been on bail. In the circumstances, I consider that regard should be had to time spent in custody prior to setting the limiting term.
If the defendant can satisfy the Court that she should be released on licence, that can occur at any time during the limiting term. If, at the conclusion of the limiting term, she has not been released and she is still mentally unfit to be released into the community, the provisions of the Act can be utilised to ensure that she remains in a closed environment.
[8] (2010) SASC 43.
[9] (2010) SASC 43 at [37]-[39].
The Magistrate considered that, having regard to the time spent in custody of two months and 24 days, he would have then set a sentence of three months’ imprisonment, suspended upon the defendant being required to enter into a bond for a lengthy period which, in the Magistrate’s view, would have been at least 12 months. Therefore, the Magistrate considered that he could set a limiting term greater than the head sentence he would have imposed.
The words in parenthesis in s 269O(2) suggest that the limiting term can be set by the period of supervision. Counsel for the defendant submitted that, if the limiting term is longer than the head sentence would have been, it could lead to the result that a person who breached their licence conditions might be returned to custody for a significantly longer time than that person would have been incarcerated had they been guilty of the offence. She submitted that the legislation could not have intended that a person who would have received a suspended or partially-suspended sentence be subject to a longer limiting term than a person whose sentence would not have been suspended had they been guilty of the offence.
Counsel for the respondent submitted that a strict reading of the provision would permit a court to determine the length of a limiting term in the manner described but that to do so is an error, having regard to the judgment of the Full Court in Question of Law Reserved (No 1) and, in particular, Duggan J’s observation that the head sentence should be the sole determinant in nominating the limiting term.
Although on a strict reading of s 269O(2) the Magistrate could calculate the limiting term by reference to the period of suspension, the decision in Question of Law Reserved (No 1), consistent with my decision in Sumner, shows that was an erroneous approach. The limiting term should have been no longer than three months.
The sentence the Magistrate would have imposed, had it not been for the defendant’s mental incompetence, was three months’ imprisonment. That must, therefore, govern the period of the limiting term. Further, credit should be given for the period of six weeks which has elapsed since the Magistrate’s decision, during which time the defendant has been subject to supervision. Counsel for the Crown conceded that the Magistrate’s approach was erroneous and agreed the limiting term should be reduced to six weeks.
For these reasons, the appeal was allowed and orders made that:
(1) the Magistrate’s order that the limiting term be 12 months is set aside; and
(2) in substitution thereof there be a limiting term of six weeks.
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