McCallum v Police - [2010] SASC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCCALLUM v POLICE
[2010] SASC 19
Judgment of The Honourable Justice Gray
11 February 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - DURATION
CRIMINAL LAW - PROCEDURE - BAIL - OTHER MATTERS
Appeal against sentence - defendant and appellant breached condition of bail stipulating he was not to have contact with the alleged victim of a charged principal offence - alleged victim charged with aiding and abetting that breach - defendant spent five days in custody before home detention bail granted - defendant breached condition of home detention bail - prior to sentencing, defendant spent further 66 days in custody - following pleas of guilty defendant sentenced to one sentence of four months and 42 days imprisonment comprised of four months imprisonment in relation to first breach of bail and 42 days in respect of second - sentences cumulative and backdated to commence on day defendant taken into custody following breach of home detention bail - whether sentence manifestly excessive - whether Magistrate erred in consideration of sentencing factors - whether time spent in custody adequate penalty.
Held: appeal allowed - Magistrate erred in failing to consider alleged victim's role in the defendant's primary breach of bail - Magistrate further erred by characterising the alleged victim of the charged principal offence as "the victim" of the offence - Magistrate failed to bring into account five days spent in custody - sentences imposed manifestly excessive - sentence imposed by Magistrate set aside - convictions recorded remain - having regard to time spent in custody, no further penalty imposed.
Bail Act 1985 (SA) s 17; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Frank v Police (2000) 77 SASR 273; Trotter v Police (1997) 68 SASR 363; Letham v Police [2009] SASC 321; Simmonds v Police [2008] SASC 193; Markarian v R (2005) 228 CLR 357; House v R (1936) 55 CLR 499; Dinsdale v R (2000) 202 CLR 321, considered.

MCCALLUM v POLICE
[2010] SASC 19
Magistrates Appeal
GRAY J:
Introduction

This is an appeal against a sentence imposed by a Magistrate with respect to two offences of non-compliance with a bail agreement contrary to section 17(1) of the Bail Act 1985 (SA).[1]
[1] The maximum penalty for this offence is imprisonment for two years or a fine of $10,000.
Background
On 21 November 2008, following his arrest for offences of threaten harm and commit assault, the defendant and appellant, Aaron Scott McCallum, entered into a bail agreement at Mount Gambier Police Station. The conditions of bail included that the defendant not make contact with Amber Louise Martin, one of the alleged victims of the charged offences, and not approach or communicate, either directly or indirectly, with Ms Martin.
On 22 December 2008,…

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 McCallum v Police

Details

AGLC: McCallum v Police [2010] SASC 19
Case: [2010] SASC 19
Decision Date: 11 February 2010

CaseChat Overview and Summary

In the matter of McCallum v Police, the appellant, Aaron Scott McCallum, appealed a sentence imposed by a Magistrate for two offences of non-compliance with a bail agreement under section 17(1) of the Bail Act 1985 (SA). The maximum penalty for this offence is imprisonment for two years or a fine of $10,000. McCallum had previously breached his bail conditions by communicating with and associating with Amber Louise Martin, one of the alleged victims of his charged offences. He was initially sentenced to seven days imprisonment for that offence. On a subsequent occasion, McCallum again breached his bail conditions by approaching Ms Martin. For this offence, the Magistrate sentenced McCallum to imprisonment for a term of three months. The appeal centred on the excessiveness of this sentence.

The legal issues before the court included whether the Magistrate had considered all relevant mitigating factors in sentencing McCallum, and whether the imposed penalty was excessive. The court considered the Magistrate's failure to address certain mitigating factors, such as McCallum's employment opportunities, efforts to address drug use, and organisation of appropriate living arrangements. Instead, the Magistrate emphasised McCallum's denial of knowledge that his breach of bail involved contact with the same "victim" as the previous breach. The court also examined relevant authorities to assess the appropriateness of the penalty imposed.

The court found that several mitigating matters put forward by McCallum's counsel did not appear to receive consideration by the Magistrate. The lack of reference to these circumstances in the sentencing remarks suggested that the Magistrate may have placed undue emphasis on a perceived deception of the Court. The court held that the Magistrate had not appropriately weighed the mitigating factors in sentencing. Furthermore, the court found the penalty imposed to be excessive, particularly given that McCallum was a first offender and appeared to be making efforts to deal with the problems that led to his offending. The court substituted the original sentence with a suspended sentence of one month imprisonment, with a reduced bond period to reflect the time already served by McCallum.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against a sentence imposed by a Magistrate with respect to two offences of non-compliance with a bail agreement contrary to section 17(1) of the Bail Act 1985 (SA).[1][1] The maximum penalty for this offence is imprisonment for two years or a fine of $10,000.Background On 21 November 2008, following his arrest for offences of threaten harm and commit assault, the defendant and appellant, Aaron Scott McCallum, entered into a bail agreement at Mount Gambier Police Station. The conditions of bail included that the defendant not make contact with Amber Louise Martin, one of the alleged victims of the charged offences, and not approach or communicate, either directly or indirectly, with Ms Martin. On 22 December 2008, the defendant breached his conditions of bail by communicating with and associating with Ms Martin. On that occasion, the defendant was seen walking along a main road at Mount Gambier in the company of Ms Martin and others. A police officer monitoring their progress recorded the defendant communicating with Ms Martin and on two occasions hugging her. The defendant was sentenced to, and served, an unsuspended term of seven days imprisonment in relation to that offending. No appeal was lodged in respect of that sentence. It is to be observed that to imprison an 18 year old in those circumstances would appear to be an unduly harsh sentence. However, the full circumstances surrounding that sentence are not known. On 10 February 2009, the defendant again breached his conditions of bail by approaching Ms Martin and remaining in her presence. At or about 12.40am on that day, the defendant was again seen walking along a street in Mount Gambier in the company of a number of others, including Ms Martin. According to the defendant, although he and Ms Martin were in each other’s vicinity, they did not speak with each other or have any closer contact. The defendant claimed that he had “come across” Ms Martin at a nearby service station. The defendant was arrested and charged with the offence of breach of bail. Ms Martin was also arrested and charged with aiding and abetting the defendant in his breach of bail. The charge against Ms Martin was withdrawn by the prosecution on 28 July 2009. On 21 May 2009 the defendant appeared in the Mount Gambier Magistrates Court in relation to a number of matters, including the breach of bail offence. The defendant’s bail was revoked and he was remanded in custody. At that time, a home detention report was ordered by the Court. On 26 May 2009 the defendant was granted home detention bail. As a consequence, the defendant spent five days in custody pending bail. The bail agreement of 26 May 2009 stipulated, inter alia, that the defendant was to be subject to home detention and was not to consume or use any drug not medically prescribed or legally available and was to submit to urinalysis as directed. On 7 August 2009, the defendant submitted to urinalysis, which returned a positive result to the presence of cannabis.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

A number of matters put in mitigation did not appear to receive consideration. Relevant circumstances identified by the defendant’s counsel such as employment opportunities, efforts to address drug use and the organisation of appropriate living arrangements were not referred to in the sentencing remarks. Instead, the Magistrate when sentencing emphasised the defendant’s denial of knowledge that his breach of bail involved contact with the same “victim” as the previous breach of bail. The lack of any reference to the mitigatory circumstances put forward by the defendant’s counsel indicates that the Magistrate may have placed undue emphasis on a perceived deception of the Court.Reconsideration On the hearing of the appeal, counsel for the defendant drew to the Court’s attention a number of authorities said to demonstrate the excessive nature of the penalty imposed by the Magistrate. In Trotter v Police[4] Doyle CJ considered the appropriateness of a sentence of three months imprisonment imposed in circumstances comparable to the within proceedings. In that case, a condition of the defendant’s bail was to not approach or contact a Ms Tipene, and not to visit her place of residence or work. On the invitation of Ms Tipene, the defendant attended at her home address and was consequently arrested for failing to comply with his bail conditions. The charges for the principal offences were subsequently withdrawn. The defendant pleaded guilty to the breach of bail charge. Prior to sentencing, the defendant had spent 22 days in custody. In concluding that the sentence imposed was excessive Doyle CJ observed:[5][4] Trotter v Police (1997) 68 SASR 363.[5] Trotter v Police (1997) 68 SASR 363 at 364-365.His Honour took into account the appellant's plea of guilty, the time already spent in custody, which was 22 days, according to the affidavit of the appellant's solicitor. He also took into account a report from the Drug and Alcohol Services Council which spoke of "an apparently genuine enthusiastic and successful effort by the defendant to rid himself of his amphetamine dependency".The magistrate accepted that the appellant went to the premises at the invitation of the victim. His Honour did not accept that a document headed 'notes for solicitor' had been written by the Drug and Alcohol Counsellor in the Mount Gambier Gaol and accordingly did not take this much into account. Despite the above factors working in favour of the appellant his Honour construed that the decisive consideration was that 'when a court has fixed conditions of bail those conditions are to be taken seriously. Mr Trotter must be reminded of that. Conditions of bail and indeed conditions of court orders generally are to be complied with and not be privately renegotiated'. I agree with what the magistrate said and endorse his remarks.….That leaves the question of whether the penalty is excessive. The magistrate rightly emphasised that bail conditions imposed by a court must be taken seriously and that they cannot be privately negotiated. The offence resulted from a deliberate disregard of the bail condition, notwithstanding the fact that the appellant was invited by Ms Tipene to attend the place of residence.The fact that the appellant is apparently making a real effort to control the drug and alcohol abuse is relevant, but it has to be remembered that it remains to be seen whether those efforts will succeed. In any event, the magistrate clearly took this matter into account. It is also relevant to bear in mind the maximum penalty which relevantly is imprisonment for a term of two years.But for two matters I would have concluded that the sentence of three months was not excessive. The first of those is the 22 days spent in custody. That is a not an insignificant period of time, and in my opinion should be given considerable weight. The other matter is the fact that the appellant has no previous convictions. I regard that as a matter of considerable significance.I consider that for a first offender the sentence imposed was excessive, particularly a first offender who appears to be making an effort to deal with the problems that initially got him into trouble. However, conditions of bail are a serious matter. This was a deliberate breach of a court order. It calls for a firm response as a deterrent to the appellant and to others. Having assessed the sentence imposed as excessive, Doyle CJ set aside the order of imprisonment and substituted a suspended sentence of one month imprisonment, with a reduction of the period of the bond to which the defendant was subject:[6] I would allow the appeal, set aside the order of the magistrate and substitute a sentence of one month imprisonment, suspended upon the appellant entering into a bond upon his own recognisance in the sum of $100 to be of good behaviour for a period of six months from today, the reduction in the term of the bond reflecting the period of the bond already completed, and further, my view that a period of two years as at the date of the imposition of the original penalty was, in any event, too long.[6] Trotter v Police (1997) 68 SASR 363 at 365.