Mason v Police

[2020] SASC 238

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MASON v POLICE

[2020] SASC 238

Reasons for Decision of The Honourable Justice Parker

14 December 2020

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE

This is an appeal against a decision made by a Magistrate under s 73 of the Sentencing Act 2017 (SA) revoking an order that the appellant’s sentence be served on home detention and ordered that the balance of the sentence be served in custody.

On 12 May 2020, the appellant was convicted of the following offences:

1.      one count of drive under disqualification or suspension committed on 4 October 2019;

2.      one count of drive under disqualification or suspension committed on 20 August 2019; and

3.      one count of driving with excess blood alcohol also committed on 20 August 2019.

In relation to the first two offences the appellant was sentenced to imprisonment for four months, one week and 12 days to be served on home detention.

On 31 August 2020, the Magistrate found that the appellant had committed three breaches of the home detention order which were not trivial and that there were proper grounds to excuse the appellant’s failure to comply with the home detention order.  

The sole ground of appeal advanced by the appellant is that the Magistrate took into account irrelevant material in the exercise of her Honour’s discretion in revoking the home detention order.

Held, per Parker J, dismissing the appeal:

1.      The Magistrate did not err in concluding that the breaches of the home detention order were not trivial.

2. The Magistrate did not err in finding that there were no proper grounds on which the failure to comply with the conditions of the home detention order should be excused, in that the Magistrate: (1) did not take into account irrelevant considerations, (2) did not misconstrue the requirements of s 73 of the Sentencing Act 2017 (SA) and (3) did not make a decision that was irrational or lacked bona fides.

Sentencing Act 2017 (SA) s 73, referred to.
Chehade v Commissioner for Consumer Affairs (2016) 125 SASR 223; House v The King (1936) 55 CLR 499; R v Buckman (1988) 47 SASR 303; Siviour-Ashman v Police (2003) 85 SASR 23; The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; W v Marsh (1983) 35 SASR 333, applied.

MASON v POLICE
[2020] SASC 238

Magistrates Appeal: Criminal

1. PARKER J:  I provided brief oral reasons for dismissing an appeal against orders made by a Magistrate and indicated that I would publish more detailed reasons later. These are my reasons.

2. The Magistrate made an order under s 73 of the Sentencing Act 2017 (SA) revoking an order that a sentence be served on home detention and ordered that the balance of the sentence be served in custody.

3. A notice of appeal was filed by the legal practitioner then acting for the appellant. The sole ground of appeal is that the Magistrate took into account irrelevant material in exercising her discretion to revoke the home detention order.

4. This appeal was set down for hearing on 16 November 2020.  Mr Mason failed to appear and could not be contacted. I issued a bench warrant for his arrest as he had failed to comply with bail condition 3 which provided that “I am to prosecute the appeal with all due expedition.” Mr Mason was not located and arrested until 7 December 2020. He claimed that he had been unaware of the obligation to attend court on 16 November 2020 as his former solicitor had not told him. He had changed his address but had not informed the bail authority. Correspondence sent by the Crown Solicitor’s Office (CSO) and my Associate was returned to sender. Mr Mason also suggested that messages left on his mobile phone message bank by the CSO and my Associate had not been received.

5. A different practitioner appeared for Mr Mason on 8 December 2020 and sought an adjournment until 10 December 2020 so that he could obtain instructions. However, the practitioner subsequently advised the Court by email that legal aid had not been granted and a new application would not be decided until the middle of the week commencing 14 December 2020. He could not act in the meantime.

6. At the hearing on 10 December 2020 I indicated that in view of the failure by Mr Mason to attend court as required by his bail conditions, and the issue of a bench warrant, I was not prepared to grant bail pending a further hearing on about 16 December 2020. I stood the matter down to enable Mr Mason to consider, in consultation with his partner, whether he wanted to proceed without legal representation or have the matter adjourned until the possibility of legal representation was resolved with him remaining in custody in the meantime. I suggested that it was preferable that he be legally represented.

7. After some delay, Mr Mason elected to proceed without representation. I twice carefully explained to him what were the relevant issues on the appeal, i.e. was the Magistrate correct in finding that there had been breaches of the home detention conditions. If so, were the breaches trifling in the legal sense or were there otherwise proper grounds on which the breaches should have been excused. 

   Background

8. On 12 May 2020, Mr Mason was convicted in the Magistrates Court of the following offences:

   1One count of drive under disqualification or suspension committed on 4 October 2019;

   2One count of drive under disqualification or suspension committed on 20 August 2019; and

   3One count of driving with excess blood alcohol also committed on 20 August 2019.

9. He was sentenced as follows:

   1In relation to the two counts of driving whilst disqualified, imprisonment for four months, one week and 12 days to be served on home detention;

   2The conditions of the home detention order relevantly included that Mr Mason was required to:

   a.Reside at a certain address and not be absent from that address except for the purposes of:

   ·       remunerated employment;

   ·       urgent medical or dental treatment;

   ·       averting or minimising risk of serious injury or death to himself or any other person;

   ·       attendance at a course of education, training, instruction or any other activity as required by the Court or as approved or directed by the assigned home detention officer; and

   ·       for any other purpose approved by the assigned home detention officer;

   b.Wear an electronic transmitter and comply with the rules of electronic monitoring, including the requirement to fully charge the transmitter daily;

   c.Not consume alcohol or any other drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage and that he submit to any drug or alcohol testing as directed by the assigned home detention officer;

   3In relation to the one count of driving with excess blood alcohol, a fine of $1,500 was imposed and Mr Mason was disqualified from holding a driver’s licence for two years.

10. On 24 August 2020, the Department for Correctional Services (DCS) alleged that Mr Mason had breached his home detention order on nine occasions.  It was alleged that on 13 August 2020, 18 August 2020 and 21 August 2020 Mr Mason had failed to ensure that his ankle bracelet was properly charged.  It was also alleged that on 2 July 2020, 8 July 2020, 30 July 2020 and 11 August 2020 urine testing had returned a positive result for the presence of cannabinoid metabolites.  It was further alleged on 12 August 2020 that Mr Mason had attended a liquor store for two minutes during a period when he had been granted permission to travel to a car parts retailer.  It was further alleged that on 15 August 2020 Mr Mason had attended the Marion Shopping Centre for about 53 minutes during a period when he had been permitted to attend a nearby medical centre with his partner.

    Mr Mason’s submissions before the Magistrate

11. Mr Mason was legally represented when the alleged breaches of his home detention order came before the Magistrates Court on 31 August 2020.  Counsel submitted that the levels of cannabis recorded in the first three urine tests showed decreasing levels of concentration.  That concentration was due to residual cannabis use.  However, Mr Mason conceded that the test result recorded on 11 August 2020 was attributable to recent cannabis use.  Mr Mason said that he had used cannabis to assist him to sleep after spending time trying to get an unsettled baby to sleep.  He submitted that the unapproved attendance at the liquor store was a matter beyond his control.  He was travelling in a friend’s car and could not control where the friend went.  The unapproved attendance at the Marion Shopping centre had occurred because of COVID-19 restrictions at the nearby medical clinic.  The appellant had been granted approval to accompany his partner to a medical appointment.  However, due to the COVID‑19 restrictions, Mr Mason was not permitted to wait within the medical centre so he took two of his older children to the Marion Shopping Centre to pass some time until the appointment was finished.  Mr Mason submitted that in relation to the failure to properly charge the monitoring device, there had been a change of supervisor during his period of home detention.  The first supervisor was relatively relaxed in relation to not fully charging the device whereas the second supervisor took a stricter approach.

12. During the course of the hearing the Magistrate spoke to a DCS officer in the presence of the parties.  Her Honour was advised that when Mr Mason was released on home detention urine tests were not being conducted due to the COVID-19 restrictions.  As a result, the appellant was not tested prior to 2 July 2020.

    The Magistrate’s reasons

13. The Magistrate accepted that the prosecution could not prove that Mr Mason had breached a condition of his home detention order by using cannabis prior to 11 August 2020, due to the failure to conduct testing as originally ordered so as to provide a benchmark to measure cannabis use.  Her Honour accepted the prosecution submission that the cannabis levels recorded prior to 11 August 2020 reflected earlier use.  However, her Honour noted the creatinine ratio of 385.7 recorded on 11 August 2020 indicated a very high level of cannabis use. 

14. The Magistrate also observed that sleeplessness caused by a newborn baby is a common experience.  This did not excuse the use of cannabis while on home detention.  Her Honour also observed that it was no answer to say that Mr Mason had no choice but to travel in his friend’s car to the liquor store.  The Magistrate also observed that Mr Mason well knew not to attend the Marion Shopping Centre.

15. The Magistrate found that the breaches of the home detention conditions were not trivial and there were also no proper grounds upon which Mr Mason’s failure to comply should be excused.  Accordingly, Mr Mason was required to serve the balance of his sentence, being one month and 19 days.  However, the 10 days that Mr Mason had spent in custody was deducted from that period.  The result was that Mr Mason was required to serve a further one month and nine days in custody rather than home detention.

    Factual dispute at the appeal hearing

16. Mr Mason initially contended at the appeal hearing that his counsel had not properly explained to the Magistrate the circumstances of the breaches. He claimed that he had not attended at the liquor store as alleged but rather had walked past the liquor store at the Noarlunga Centre on the way to a pharmacy to purchase a butterfly closure to treat a hand injury suffered by his son. However, he later changed his position on the basis that he had become confused. He admitted attending at the liquor store with a friend but said that he had not purchased any alcohol as he does not drink. I take that to mean that he does not now drink, given that he was convicted of driving with excess blood alcohol on 20 August 2019.

17. Mr Mason did not dispute the correctness of the breach found by the Magistrate that he had used cannabis on 11 August 2020. However, contrary to her Honour’s finding, he asserted that the reading indicated a low level of cannabis use.

18. Mr Mason also initially claimed that he had been granted permission by his home detention supervisor to attend at the Marion Shopping Centre as due to the COVID-19 restrictions it was not possible for him and his three children to wait at the medical clinic while his partner received treatment. A staff member at the clinic had suggested that he wait in the car with his children. Mr Mason stated it was 32° that day and it was too hot to wait in the car.  I pointed out to Mr Mason that this incident occurred on 15 August 2020 and I did not accept that it would have been 32° that day.  However, he still maintained that it had been very hot.[1]

    [1] Section 12 of the Sentencing Act provides that for the purposes of determining sentence, a court is not bound by the rules of evidence and may inform itself on matters relevant to the determination as it sees fit.  I consider that this provision applies in the present circumstances.  On that basis, I have checked the Bureau of Meteorology website.  The maximum temperature recorded at West Terrace, Adelaide on 15 August 2020 was 15.6°C.

19. If Mr Mason’s assertion that his supervisor had granted him permission to attend at the Marion Centre was correct, there would not have been a breach of his home detention conditions. For that reason, I requested Mr Mason to give sworn evidence.

20. Mr Mason stated on oath that he had telephoned DCS. However, his case manager was not available. The officer to whom he had spoken told him that she could neither approve or disapprove his attendance at the Marion Centre but would speak to his case manager and call him back. However, he was not contacted until 4:30 PM after he had returned home.

21. Mr Mason also initially asserted that the practitioner acting for him in the Magistrates Court had failed to accurately state his version of the facts. However, he retreated from that position when giving sworn evidence.

    Consideration

22. Given that Mr Mason is not represented, I have reviewed the decision of the Magistrate so as to determine whether any error has occurred.

23. Section 73(1)(a) of the Sentencing Act requires that a court must revoke a home detention order if it is satisfied that the person has breached a condition of that order. In that event, the court must order that the balance of the sentence be served in custody. However, s 73(2) provides that the court may refrain from revoking the order and may impose a further condition or revoke or vary a condition if it is satisfied that the failure to comply was trivial or there are proper grounds to excuse that failure.

24. The term “proper grounds” in s 73(2) is analogous to s 114(3) of the Sentencing Act which provides that a court may refrain from revoking a suspension of a sentence of imprisonment for the failure to comply with the conditions of the bond if the court is satisfied that the failure was trivial or that there are proper grounds on which the failure should be excused.

25. In considering whether proper grounds exist to excuse a breach of s 114(3), the court may only consider the nature and circumstances of the conduct involved in the breach and not the personal circumstances of the defendant.[2] The same approach must be adopted under s 73(2).

    [2]    Police v Heritage (2019) 135 SASR 1.

26. In the context of a provision antecedent to s114(3), King CJ stated in R v Buckman that the provision:[3]

    … authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course.  One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue.

    [3] (1988) 47 SASR 303 at 304.

27. I accept the submission of the respondent that the terms “trivial” and “trifling” are interchangeable.[4]  Whether an offence, or a breach of a home detention order, is trifling must be decided having regard to the conduct that constituted the breach and the surrounding circumstances. [5]  An offence or breach will be “trifling” if it is of little moment or significance.  However, a normal or typical example of an offence or breach cannot be regarded as trifling or trivial.  Only in an unusual or exceptional case may it properly meet that description.

    [4]    W v Marsh (1983) 35 SASR 333.

    [5]    Siviour-Ashman v Police (2003) 85 SASR 23.

28. In my view, attendance at locations beyond the scope of the permission granted by a supervisor is a typical example of a breach of a home detention condition. The same may be said for the use of cannabis. The courts very regularly encounter breaches of both types.

29. Thus, the Court was required to make an evaluative judgment or to form an opinion as to whether a proven breach was trivial or the revocation of the home detention order would be a quite disproportionate consequence.  On appeal, it is necessary to consider whether an evaluative judgment was made in accordance with the law.  The issue is not whether the judge hearing the appeal would have made the same decision as that made by the Magistrate.

30. The question is whether the Magistrate took into account an irrelevant consideration, misconstrued the terms of the statute, made a decision that was irrational or lacked bona fides.[6]  Accordingly, the test to be applied in determining whether a court has validly formed an opinion is very similar to, if not identical to, the House v The King test applied when considering the exercise of a judicial discretion.[7] 

    [6]    The King v Connell; Ex parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 (Latham CJ); Chehade v Commissioner for Consumer Affairs (2016) 125 SASR 223 at 237 (Hinton J).

    [7]    House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).

31. The DCS officer who allegedly took the phone call from Mr Mason has not had the opportunity to give evidence as to whether or not the phone call actually occurred and whether he has accurately recounted the conversation. Based on my observations, and also the changes in his story, I hold significant reservations as to Mr Mason’s truthfulness and the accuracy of his evidence. Nevertheless, for the purposes of this analysis, I will assume that his evidence given before me was truthful and accurate.

32. Even after making that assumption, the fact remains that Mr Mason ultimately acknowledged that he was told that he did not have permission to go to the Marion Shopping Centre. In those circumstances, it was necessary for him to either return home or wait with his children in the clinic car park. He was not entitled to act contrary to the conditions attached to his home detention.

33. Even in light of Mr Mason’s evidence, I do not consider that the breach involved in his attendance at the Marion Centre can properly be regarded as trivial in the sense of being of little moment or significance.  Accordingly, I find that the Magistrate did not err in concluding that the breach was not trivial. The same may be said with particular force in relation to his use of cannabis. I also accept that the Magistrate did not err in concluding that the trip to the liquor store was not a trivial breach.

1. The further question is whether there were proper grounds upon which the Magistrate should have refrained from revoking the home detention order.  The question here is whether the consequence that Mr Mason serve the balance of his sentence of imprisonment was disproportionate to the circumstances of the breaches. When viewed in isolation, it might be considered that imprisonment would be a disproportionate response to the breach involved in the brief attendance at a liquor store while a passenger in the car of a friend. The same might also be said for the breach involved in the attendance at Marion Shopping Centre, at least given the surrounding circumstances.  However, that is plainly not the case with the breach arising from the use of cannabis. Moreover, the Magistrate was dealing with three breaches, rather than isolated occurrences. In those circumstances, I am not persuaded that her Honour erred in concluding that there were not proper grounds to excuse the failure to comply with the home detention conditions.

2. For these reasons, I consider that the Magistrate did not misconstrue the requirements of s 73(2) of the Sentencing Act.  I am also satisfied that her Honour did not take into account any irrelevant considerations in forming her opinion and nor was her opinion irrational or lacking in bona fides. 

3. As the Magistrate correctly concluded that the breaches of the conditions of the home detention order were not trivial, and also did not err in finding that there were no proper grounds on which the failure to comply should be excused, her Honour was required to order that the appellant serve the balance of his sentence in custody.

4. The Magistrate did not refer to the three allegations that Mr Mason had failed to keep his electronic monitoring device properly charged.  I note that the home detention conditions included in the order made by the Magistrates Court on 12 May 2020 required that the device be fully charged at least once each day. However, at least one of the text messages sent to Mr Mason by his home detention supervisor asserted that he was required to charge the device twice each day. Given her Honour’s findings in respect of the other breaches, any further enquiry into this issue could not have changed the outcome.

5. For these reasons, I dismissed the appeal.