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, 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.
The defendant remained on home detention bail from 26 May 2009 until 24 August 2009 when he was arrested and charged with failure to comply with his bail agreement as a result of the consumption of cannabis. On that day, the defendant appeared in the Magistrates Court at Mount Gambier where his home detention bail was revoked, a further bail application was refused and he was remanded in custody until the date of sentencing on 30 October 2009. As at the date of sentencing, the defendant had spent approximately 66 days in custody in addition to the five days earlier served.
On 30 October 2009, the defendant pleaded guilty to the offences of non-compliance with a bail condition as charged. At that time, it was apparent that the primary allegations of threaten to cause harm and assault had been withdrawn. The offences for which the defendant was to be sentenced only involved the failure to comply with bail on the two occasions outlined.
Following submissions on penalty, the Magistrate imposed, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), the one sentence of four months and 42 days imprisonment, comprised of four months imprisonment in relation to the offending conduct of 10 February 2009, and 42 days imprisonment in relation to the conduct of 7 August 2009. Those sentences were ordered to be served cumulatively, leading to a total sentence of imprisonment of five months and 12 days. That sentence was backdated to commence on 24 August 2009. It is apparent that he Magistrate intended to bring into account all of the time spent by the defendant in custody. However, the Magistrate overlooked the period of five days spent in custody by the defendant from 21 to 26 May 2009.
At the time of sentencing the Magistrate summarised the circumstances of the breach of bail committed on 10 February 2009 as follows:
On 26 May 2008 you are on bail for a series of offences associated with threats or assaults or something akin against Ms Amber Martin. You were released on bail. There was a condition of the bail agreement that you not approach the victim Ms Martin. You completely disregarded that condition and when the opportunity arose for you to meet her in the street you did just that. You paid scant regard to the court order seeking to protect the victim from contact with you. But for you agreeing to that condition you should not have been out on bail. As I say, when the circumstances presented, you simply breached the bail agreement with little or no thought at all for the order of the court or the bail authority. This offence is made more serious by the fact that some four months earlier you had been dealt with in court, also for breach of bail of again approaching the same victim, for which you received seven days imprisonment that was not suspended.
The Magistrate commented on the defendant apparently misleading the court during the course of sentencing submissions:
I was very disappointed this morning. I have heard it said that you had turned over a new leaf or some such similar expression. However in answer to my question in court this morning as to whether or not that previous breach of bail agreement was against the same victim you pretended not to know. I refuse to accept that you did not well know that. Had it not been for my enquiry and my insistence to know, the matter might have gone quietly by, but it did not. I had to ask the prosecution to make enquiries and low and behold it was in fact the same victim. I refuse to accept you were not aware of that. You well knew you did seven days imprisonment for that offence and you have never had imprisonment before. You never had an allegation of previous breach of bail agreement before.
I have great difficulty in believing you have as I think it was put, ‘now got a clear head’ about your conduct and your offending. Nonetheless I do take into account that you have pleaded guilty.
In relation to the second breach of bail of 7 August 2009, the Magistrate observed:
There was then a second breach of bail I have to deal with. With the benefit of hindsight it seems that I rather unwisely gave you home detention bail. Unwisely, because some four months or so later, you breached that home detention bail by using illicit substances. In this case it was cannabis. It was at that point that I refused you bail. You have been in custody since 24 August 09 when I refused bail.
In arriving at the sentence imposed, the Magistrate discussed considerations relevant to the exercise of his discretion, including the defendant’s pleas of guilty, the need for deterrence and time spent in custody:
You pleaded guilty today to these two matters. I take that into account. As I say, I still have some considerable reservations about your so-called new leaf or clear head. I think it is perhaps little more than vacuous terminology. I will give acknowledgement to your guilty plea however. You have other offending which is [sic] has occurred modestly regularly going back to offending as a child. It doesn’t have much relevance though here. It is necessary that where there is a breach of a condition imposed to protect a victim that the courts impose penalties that effectively deal with this kind of behaviour. These sorts of conditions are very important. They are a very useful tool in the armoury of the court and their underlying purpose is, as I say, obvious and important.
Unless courts deal with breaches of this kind of breach of bail effectively, then conditions like these will lose their efficacy in this community and those victims that rely upon them will lose the benefit of those conditions. It is necessary to impose a penalty that is a personal deterrent by reason of the fact this is your second offence of breach of bail of such a condition imposed as a protection of the same victim. It is also necessary to impose a penalty that will be a deterrent to others, as I say, to assist in the efficacy of those orders.
The breach of bail in terms of the use of cannabis, I don’t see this as merely a minor cannabis misuse type of offence. You wouldn’t have been allowed in the community at all unless you had agreed to those conditions. I think some parallel considerations ought to apply to breaches of home detention bail. Home detention bail is commonly said to be bail of last resort. Alleged offenders that come before the court in parlous circumstances and about to be refused bail, often get this opportunity as a last resort to be in the community with the confidence of close supervision. It seems to me that people that get this opportunity of home detention bail ought to be aware that it is often just that.
I should take into account you have been in custody since 24 August 09. It is perfectly plain to others that people who breach home detention bail can expect little opportunity of further bail. Really I remark as an echo of what your counsel said to me, that you simply do not learn lessons, not even the hard way it seems. Even a short period of imprisonment for a then 18 year old youth seems to have had no impact on you.
I will take into account that you have spent two months and a few days in custody. I propose to take that into account by back-dating the period of imprisonment - I think that is appropriate.
I have been told you have some difficulty in custody in terms of assaults. I am not prepared to engage in speculation as to how it came to be that you were involved in some kind of assault in custody. I think it is of little consequence to me. It is a matter for those who have care and control of you whilst in custody. I also comment that I invited your counsel to provide me with details of this assault allegedly on you if it was an important matter for my consideration and I offered to adjourn this matter to enable that to be done but that suggestion has not been taken up so I intend to disregard the circumstances that you say gave rise to an assault on you in custody.
I have said all I need to say about your claim that you now have a clear head about your offending. I can see that you have done some programs in custody and no doubt they are an important starting point for you when you are released.
Ultimately, the Magistrate considered that the circumstances warranted the imposition of an immediate custodial term:
With respect to the breach of bail namely approaching the victim, I appreciate it is not one of the more serious offences of its kind and it was opportunistic and not systematic or pre-planned. I impose a period of imprisonment of five months. I will reduce it to four months by reason of your guilty plea.
With respect to the breach of bail, with respect to the cannabis, I will impose a period of two months and I will reduce it to 42 days by reason of your guilty plea.
Having announced those indicative penalties, I propose to impose a Section 18A (1) penalty which I will endorse on the file offence dated 26 May, that is the first of the two offences in point of time. Being a section 18A (1) penalty of four months and 42 days and that period of imprisonment is to commence on 24 August 2009. I decline to suspend this period of imprisonment either in part or in whole. It seems to me the need for a personal deterrence given your repeat offending overwhelms circumstances that I have taken into account like your age and your plea. There will be an order as to court costs.
It is to be noted that the defendant remained in custody until 7 December 2009 when bail pending his appeal was granted. As a consequence, the defendant has spent a total period of three months and 18 days in custody in relation to the offences the subject of this appeal.
The Appeal
Submissions of Counsel
On appeal, the defendant contended that the sentence of imprisonment was manifestly excessive having regard to the nature and circumstances of the offending and the defendant’s personal circumstances, including his age, employment, family support, guilty pleas, efforts to rehabilitate and the impact on the defendant of the period of imprisonment already served. It was submitted that the Magistrate failed to adequately consider matters put in mitigation of penalty and that the Magistrate placed excessive weight upon considerations of personal and general deterrence. It was further said that the Magistrate placed undue emphasis on a perceived attempt by the defendant to mislead the court during the course of sentencing submissions. Counsel contended that the Magistrate erred in his application of section 18A of the Sentencing Act and principles of totality and also failed to adequately consider alternative sentencing options such as the imposition of a suspended sentence. It was further said that the Magistrate failed to take into account the five days spent by the defendant in custody in relation to the offending of 10 February 2009. Finally, counsel noted that the extent to which the Magistrate had regard to the alleged principal offences when sentencing was unclear.
In relation to both offences, counsel contended that the conduct that constituted the breach of bail was not the more serious conduct of its kind. It was submitted that the contact with Ms Martin on 10 February 2009 was of a short duration, in a public place, non-confrontational and opportunistic, rather than pre-meditated and aggressive. It was further argued that Ms Martin was complicit in orchestrating the contact, as evidenced by Ms Martin being charged with aiding and abetting the defendant in this breach of bail. In relation to the conduct of 7 August 2009, it was argued that the detection of the defendant’s consumption of cannabis occurred as a result of a random screening, rather than as a result of conduct of the defendant giving rise to concern. It was said that other than the offending conduct, the defendant had observed the conditions of his bail. Ultimately, in relation to both charges, it was said that the culpability associated with the defendant’s conduct did not warrant a sentence of the magnitude imposed, and the time already served was an adequate penalty for the conduct the subject of the charges.
Counsel for the Police contended that having regard to the maximum penalty for a breach of bail condition, the seriousness of the offences and the particular need in the circumstances to ensure personal deterrence, the sentence imposed was within the Magistrate’s discretion. Counsel highlighted that the sentence imposed did not exceed that which could be imposed for the principal charged offences.[2] It was said that the Magistrate was entitled to conclude that in light of the considerations of personal and general deterrence and the seriousness of the offence, the defendant’s personal circumstances did not provide good reason to suspend the sentence.
[2] Bail Act 1985 (SA) section 17(2).
Counsel for the Police acknowledged that in the event that this Court concluded that error had occurred on the part of the Magistrate in the exercise of his sentencing discretion, it would be open to this Court when resentencing to conclude that the time spent in custody to the date of sentence was a sufficient punishment.
Consideration of the Appeal
As earlier observed, the victim of the alleged principal offence, Ms Martin, was charged with aiding and abetting the defendant in the breach of bail of 10 February 2009. As an aider and abettor, Ms Martin faced liability as a co-offender of the principal offence of breach of bail.
The fact that Ms Martin was complicit in the defendant’s breach of bail is not addressed in the sentencing remarks of the Magistrate. As excerpted above, the Magistrate when sentencing observed that “when the opportunity arose for you to meet her in the street you did just that. You paid scant regard to the court order seeking to protect the victim from contact with you.” No reference is made to Ms Martin’s role in the contact between them. That Ms Martin was complicit in the defendant’s breach of bail and was subsequently charged with aiding and abetting that breach is a material matter. The failure of the Magistrate to have regard to this material matter demonstrates error in the sentencing process. This error was compounded by the Magistrate’s description of Ms Martin as “the victim” throughout the sentencing remarks. That characterisation is inappropriate. At the time of sentencing, the defendant had not been convicted of the principal charges and, in fact, those charges had been withdrawn. Ms Martin was no more than an alleged victim of a charged offence. The characterisation of Ms Martin as “the victim” suggests that the Magistrate sentenced the defendant on the basis that the principal charges had been made out.

The emphasis in the sentencing remarks of the Magistrate on the necessity for courts to impose penalties to effectively deal with a breach of a condition imposed to protect a “victim”, further emphasises that the Magistrate failed to sufficiently take into account the fact that Ms Martin was complicit in the breach.
On the hearing of the appeal, further error was identified. As earlier observed, the Magistrate when sentencing failed to take into account the five days spent in custody following the revocation of the defendant’s bail on 21 May 2009.[3]
[3] Time spent in custody should be taken into account in the sentence imposed unless there is good reason not to do so. See Frank v Police (2000) 77 SASR 273 (Lander J).
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.
In Letham v Police[7] Doyle CJ considered the appropriateness of a penalty imposed for failure to comply with a bail agreement contrary to section 17 of the Bail Act. It was a term of the bail agreement that the defendant in that case not leave South Australia. The defendant breached this term while attending an occupational training course at Bendigo. In that case, the Magistrate imposed a sentence of 21 days imprisonment in respect of that offence, reduced from one month on account of the defendant’s plea of guilty. A further 35 days imprisonment was imposed for an additional offence charged, of failing to answer questions put to the defendant by police.
[7] Letham v Police [2009] SASC 321.
In the consideration of the appeal, Doyle CJ noted that although the penalties imposed were not manifestly excessive, the sentence for the breach of bail was “rather heavy” and the overall result excessive:[8]
The sentence for breaching the bail agreement is, I consider, rather heavy. I am prepared to accept the submission that the opportunity to attend the course at Bendigo arose at such short notice that it was probably not practical to obtain permission to attend. However, I cannot say that the sentence is excessive. The fact is, in my opinion, that Mr Letham must have understood the situation, knew that he had to make a choice then and there whether to breach the bail agreement and go or to comply with the bail agreement and not pursue the chance to improve his employment prospects. One can understand him taking the view he did. Nevertheless, he must have known he was in breach of his bail agreement.
I do not agree that the Magistrate failed to have due regard to Mr Letham’s personal circumstances. I consider that the Magistrate’s reasons are not open to criticism in that respect. I agree with and share his reservations about Mr Letham being on the path to reform. To say that is certainly not to reject Mr Letham’s claim for reform. It is merely to say that so far one could not confidently say he has in fact learnt his lesson and changed his ways. I am unable to say that the Magistrate erred in refusing to suspend the earlier sentence. Nor can I say he erred in failing to excuse the breach of the bond or in failing to reduce the term of the suspended sentence. The circumstances were capable of supporting his conclusion. Nevertheless, what I said so far refers to the sentences taken individually.
When I stand back and review the situation as a whole, I consider that the overall result is excessive. There are indications of reform on the part of Mr Letham. This will be encouraged by doing what can be done to keep him in employment, while doing what the court must do to uphold its orders. Mr Letham has to understand court orders must be observed, and that a breach of an order will have adverse consequences, even though one might say it was a difficult decision for Mr Letham to make. To allow Mr Letham to escape imprisonment altogether would undermine these important considerations.
In my opinion, there was good reason to suspend the sentences that the Magistrate imposed, that is, the sentences imposed for the offences charged on the complaint. That is as far as it is proper to go. That result can be achieved by using s 38(2a) of the Act: Police v Maraldo [2005] SASC 479. I differ from the Magistrate in this respect with some hesitation. I agree with his general approach, taking each component of the sentence in isolation as I have said. But as I have indicated, I am persuaded that taken as a whole, the punishment is excessive and that Mr Letham should be given some encouragement to reform. To implement this decision I have to resentence Mr Letham for the offences that came before the Magistrate. There is no need for me to interfere with the order that the Magistrate made under s 58 of the Act revoking the suspension of the suspended sentence and ordering that it be carried into effect. In my opinion that order should not be disturbed and will stand.
[8] Letham v Police [2009] SASC 321 at [25]-[28].
Similarly, in Simmonds v Police[9] Doyle CJ considered an appeal from a sentence of imprisonment of three days, imposed for the offence of failing to comply with a term or condition of a bail agreement. The terms of bail in that case included a requirement that the defendant remain at home each day between the hours of 9.00pm and 6.00am and to present himself to police at the front door on request unless absent for medical emergencies. The defendant provided as an explanation for his breach of this condition, that he had gone with his girlfriend, who was pregnant, to the Flinders Medical Centre as he thought she was going into labour. In the course of his reasons Doyle CJ emphasised the relevance of the proffered explanation in the sentencing process:[10]
I conclude that the Magistrate had to sentence Mr Simmonds on the basis that he had no reasonable excuse, but that nevertheless the reason for his absence was the claimed reason. So the Magistrate had to sentence on the basis that the claimed reason was not a reasonable excuse. However, the Magistrate also had to sentence on the basis that an explanation had been proffered, being the explanation given by Mr Simmonds.
[9] Simmonds v Police [2008] SASC 193.
[10] Simmonds v Police [2008] SASC 193 at [19].
In assessing the appropriateness of the sentence imposed, Doyle CJ summarised the Magistrate’s approach before concluding that the sentence of imprisonment imposed, of three days, was excessive:[11]
…there are some substantial factors pointing towards a more lenient approach.
I have already indicated that, in my opinion, the matter should be approached on the basis that Mr Simmonds explanation was accepted. That being so, the situation was one akin to an emergency, although I emphasise the Magistrate had to sentence on the basis that the excuse was not a reasonable excuse or a medical emergency for the purposes of the bail agreement.
Nevertheless, I accept the point made by Mr Clarke that it can be said that what Mr Simmonds did was understandable, even if there is no answer in law to the charge of breach of bail agreement.
The second significant factor, which the Magistrate might have overlooked because he did not refer to it, is that Mr Simmonds was absent for only a short time, that is about one hour. That is something, which in my mind, is of some significance, as is the fact that he rang the police on his return to his home. Once again, I consider that he should be dealt with on the basis that that version of events is accepted.
It is clear that if the Magistrate had rejected the explanation that Mr Simmonds gave, the sentence that the Magistrate imposed was well and truly justified. But in the circumstances that I have outlined, and in particular, the Magistrate’s acceptance of the explanation, I consider that the Magistrate did err, notwithstanding the importance of general and personal deterrence.
I consider that the circumstances of the offence did amount to substantial mitigation, meaning that the sentence that the Magistrate imposed was excessive.
In all the circumstances, it is appropriate therefore, to allow the appeal against sentence. I set aside the order for imprisonment but I leave standing the order recording a conviction. It is appropriate in the circumstances that that should remain.
[11] Simmonds v Police [2008] SASC 193 at [25]-[31].
I have taken the opportunity of setting out the above extracts from the judgments of the Chief Justice to provide currency to the clear guidance given by the Chief Justice with respect to the range of sentences to be imposed for breaches of bail. As counsel for the Police conceded, the sentences imposed by the Magistrate in the present proceeding were well beyond that range.
In my view, the sentences imposed in the present proceedings were manifestly excessive and patently so. The review of the observations of the Chief Justice as set out above confirms this to be the case. Each of the errors identified above, on the part of the Magistrate, contributed to this situation.
On the face of it, the initial sentence of seven days for the first breach of bail would appear to be an unusually harsh penalty to impose for the first adult offence of an 18 year old. As the Magistrate acknowledged, the imposition of that sentence did not deter and appeared to do “no good”. It may have been harmful to the early rehabilitation of the defendant. The defendant required more support to address his immaturity and impulsive behaviour. His breach of bail in February occurred in unusual circumstances. The alleged victim of the charged principal offending was not only complicit in the breach of bail but complicit to an extent that the prosecuting authorities thought it appropriate to charge her as an aider and abettor of the breach of bail. Further, all charges of principal offending were abandoned. By the time the defendant came to be sentenced in respect of his breaches of bail, he had spent more than two months in custody awaiting trial with respect to those charges.
A consideration of the observations of the Chief Justice could only allow the conclusion that in the present case, the time spent in custody pending the hearing of the charges was more than adequate punishment.
In light of the approach adopted by the Chief Justice, there is much to be said for the Magistrate to have recorded convictions for the breaches of bail but to have imposed no further penalty having regard to the time spent in custody. It is regrettable that he did not follow this course.
The demonstrated errors require a reconsideration of the appropriate penalty to be imposed.[12]
[12] Markarian v R (2005) 228 CLR 357 at [108] (McHugh J): “…special leave having been granted and the matter being before this Court, manifest error (if it can be demonstrated) is a proper consideration to be taken into account. It is, after all, a well-known and unquestioned category for the appellate review of judicial discretions.” Dinsdale v R (2000) 202 CLR 321 at 339-340; House v R (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ): "[I]f [the judge] does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
Resentencing
The defendant was a young man, aged 18 years at the time of the first allegation and 19 years at the time of the second. As earlier observed, it is of significance that the alleged victim of the principal offences was charged with aiding and abetting the defendant’s breach of bail. It is also relevant that all principal charges were subsequently withdrawn.
The defendant has a supportive family. At the time of sentencing submissions before the Magistrate, the defendant’s father attended at Court. Both the defendant’s parents in addition to the defendant attended Court at the appeal hearing. Prior to being taken into custody on 24 August 2009, the defendant had arranged to reside with his sister and her partner at Kalangadoo in an effort, it was said, to avoid poor peer associations formed by the defendant in Mount Gambier. That living arrangement remains available to the defendant. At the time the defendant was taken into custody on 24 August 2009, he was employed with his sister’s partner on a part time basis chopping and delivering red-gum firewood. It is of significance that the defendant still has that work available to him.
The defendant has demonstrated efforts to rehabilitate. While in custody, the defendant did not consume any alcohol or drugs, and he indicated that he intended to continue his abstinence from alcohol and drugs in the future. Also while incarcerated, the defendant undertook a course in Occupational Health and Safety.
I have reached the conclusion that the appeal should be allowed and the defendant resentenced with respect to the breaches of bail. In my view, when the matter came before the Magistrates Court on 30 October 2009, convictions should have been recorded, but having regard to the time spent in custody, no further penalty should have been imposed. By the time of the hearing of the appeal in this Court, the defendant had spent some three months and 18 days in custody. In addition, he had spent some two months on home detention bail. Having regard to these matters, it is appropriate that the sentence imposed by the Magistrate be set aside, that the convictions recorded remain, but that no further penalty be imposed.
This appeal is allowed. The sentence imposed by the Magistrate is set aside. The convictions recorded by the Magistrate remain, but no further penalty is imposed.