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

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mason v Police

Details

AGLC: Mason v Police [2020] SASC 238
Case: [2020] SASC 238
Decision Date: 14 December 2020

CaseChat Overview and Summary

Mason v Police concerned an appeal by Mr Mason against a decision of the Magistrates Court to revoke his home detention order and impose a custodial sentence. Mr Mason had been sentenced to home detention for driving while disqualified and driving with excess blood alcohol. The Department for Correctional Services alleged that Mr Mason had breached the conditions of his home detention order on nine occasions, including failing to charge his ankle bracelet and testing positive for cannabinoids. The central legal issue was whether the breaches were trifling in the legal sense or if there were proper grounds to excuse the breaches. The court had to determine whether the Magistrate erred in finding that there had been breaches and, if so, whether the breaches were trifling or should be excused.

The court considered the relevant statutory provisions, including sections 73(1)(a) and 73(2) of the Sentencing Act, which outline the circumstances under which a home detention order may be revoked and the conditions under which it may not be revoked. The court noted that a breach may be considered trifling if it is of little moment or significance, and only in unusual or exceptional cases may a breach be considered trifling. The court also noted that the term “proper grounds” in section 73(2) is analogous to the term used in section 114(3) of the Sentencing Act, which relates to the suspension of a sentence of imprisonment. The court held that the Magistrate had correctly applied the law in finding that Mr Mason had breached his home detention order and that the breaches were not trifling or excused by proper grounds.

The court found that the Magistrate had not erred in revoking Mr Mason's home detention order and imposing a custodial sentence. The breaches of the home detention conditions were not trifling, and there were no proper grounds to excuse the breaches. The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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 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; and3One count of driving with excess blood alcohol also committed on 20 August 2019. 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. 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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