MILE v Police - [2007] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MILE v POLICE
[2007] SASC 156
Reasons for Decision of The Honourable Justice Sulan
7 May 2007
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - INJURY OR DAMAGE TO PROPERTY
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY - COMPENSATION - SOUTH AUSTRALIA - GENERALLY
Appeal against sentence - appellant pleaded guilty to damaging property, contrary to Criminal Law Consolidation Act 1935 (SA) s 85(3) - Magistrate sentenced appellant to two months' imprisonment, suspended upon appellant entering into a bond - conditions of the bond required appellant to be of good behaviour and pay compensation - Held: Appeal allowed.
Whether Magistrate erred in respect of the factual basis upon which appellant sentenced - Held: Magistrate imposed sentence on erroneous factual basis - sentence set aside - whether relevant facts disputed by prosecution at first instance - whether matter should be remitted to Magistrates Court for disputed facts hearing - Held: Relevant facts not challenged by prosecution at first instance - no basis to remit.
Whether sentence of imprisonment manifestly excessive - whether condition of a bond to pay compensation forms part of sentence - whether compensation order made pursuant to Criminal Law (Sentencing) Act 1988 (SA) s 53 forms part of sentence - whether requirement to pay compensation to be taken into account in determining penalty - Held: Sentence of imprisonment not justified - imposition of compensation order, either as a term of a bond or as an order made by the court, is part of any sentence imposed - appellant re-sentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 3, s 10(1)(f), s 11, s 42(1)(g), s 53; Criminal Law Consolidation Act 1935 (SA) s 85(3), referred to.
Brooks v Police (2000) 76 SASR 279; [2000] SASC 66, applied.

MILE v POLICE
[2007] SASC 156
Magistrates Appeal
SULAN J
Introduction

This appeal raises the question of whether, if a person receives a suspended sentence or, alternatively, is released upon a bond requiring the person to appear for sentence if called upon, and a condition of the bond, requires the defendant to pay compensation for damage caused in the course of committing the offence, the court must have regard to the order for payment of compensation or the agreement to pay compensation in determining the penalty.
A related question is whether a compensation order pursuant to s 53 of the Criminal Law (Sentencing) Act 1988 (“the Act”) forms part of the sentence of the court as defined in s 3(1) of the Act.
Background
The appellant pleaded guilty to knowingly producing cannabis, contrary to s 32(1)(a) of the Controlled Substances Act 1984 (“CSA”). When police attended at a property at Athelstone which had been rented by the appellant they located seven cannabis plants. Section 32(5)B(a)(iii) of the CSA provides that if the number of plants involved in the commission of the offence is less than twenty plants, then the maximum penalty for the offence is $2000 or imprisonment for two years, or both. Subsection (6) provides:
Where a person is found guilty of an offence involving cultivation of not more than the prescribed number of cannabis plants and the court is satisfied that the person cultivated the plants solely for his or her own smoking or consumption, the person is liable only to a penalty not exceeding $500.
The prescribed number of plants is ten.[1]
[1] Regulation 8, Controlled Substances (Prohibited Substances) Regulations 2000.
In sentencing the appellant, the Magistrate concluded that, “The cannabis was grown because he (the appellant) suffered pain from an old injury”. It is implicit from the Magistrate’s remarks that he considered that sub‑s (6) applied. The appellant was further charged with providing false information to his landlord relating to his identity and occupation, contrary to s 51 of the Residential Tenancies Act 1995. The Magistrate imposed one penalty being a fine of $400 for the two offences.
The appellant was also charged with damaging property. He had rented the premises at Athelstone and had equipped the premises with a sophisticated hydroponic set-up. He had caused damage to the property in the course of installing the system in preparing the property to grow the cannabis.
The appellant agreed that the damage caused amounted to $3500. Pursuant to s 85(3) of the Criminal Law Consolidation Act 1935, the maximum penalty for the offence of damaging property, where the damage exceeds $2500 but does not exceed $30,000, is imprisonment for three years. On that count, the Magistrate sentenced the appellant to two months’ imprisonment, which the Magistrate suspended upon the appellant entering into a bond in the sum of $500 to be of good behaviour for a period of eighteen months. It was a condition of the bond that the appellant pay compensation in the sum of $3500, before 12 April 2008, for and on behalf of Allianz Australian Insurance Limited. The Magistrate did not make it clear under which provision of the Act he required the appellant to make compensation.
The appellant appealed against the sentence of imprisonment. The ground of appeal is that the sentence imposed with respect to damaging property was manifestly excessively.
The Magistrate’s decision
In sentencing the appellant, the Magistrate said:
In order to commit the offence of growing the cannabis, as I said, he [the appellant] set about causing certain damage to the victim’s property. The damage was quite extensive and involved cutting holes in the floor, damaging the house foundations, ceilings, roller shutters, bathroom and kitchen area of the victim’s house. The damage has caused significant distress to the landlord as set out in the Victim Impact Statement. The damage for present purposes is quantified at $3,500. Prosecution seeks an order for restitution of that amount and the defendant has agreed to pay that. The damage was caused in blatant disregard to the landlord’s property.
Counsel for the appellant submitted that the Magistrate was in error in particularising the extent of damage caused by the appellant which included damaging the house foundations and roller shutters. The appellant relied upon an affidavit of Jon Lister, the solicitor for the appellant, who deposed that prior to his client pleading guilty he had discussions with the police prosecutor. It was agreed that the question of the damages caused by the appellant would need to be adjourned for further negotiations. Further discussions took place between the solicitor and another police prosecutor who had conduct of the matter. It was agreed that it was necessary to conduct a disputed facts hearing as to the amount of damage that had been caused by the appellant.
The owners asserted damage had been done to the floors, window frames, doors, air-conditioning and many other areas. Damage had been caused to the foundations of the house and there was extensive water damage.
When the matter was again before the Magistrate, there were further discussions between Mr Lister and the police prosecutor. An agreement was reached that the quantum of damage was $3500. The appellant agreed to make compensation in that amount to the owner’s insurers.
Mr Lister submitted to the Magistrate that the damage caused to the property was nowhere near as severe as the property owners had asserted in their victim impact statement. Mr Lister submitted that the damage caused by the appellant was limited to three small holes which had been cut in the floorboards under the floor of the cupboards in three of the rooms of the house. A hole had been cut in the floor to remove a small section of the floorboards to assist ventilation of the rooms. The appellant agreed that mildew had collected on the ceilings and that the ceilings needed to be repaired and repainted in three bedrooms. An electric oven had been moved from the installation point. Air-conditioning duct covers in each ceiling had been removed
The appellant denied that he had caused damage to the foundations or to the fence or to the roller shutters or to the back door. That submission was not contested by the prosecution.
It was conceded by counsel for the respondent that the Magistrate erred in concluding that the damage involved damaging the house foundations and roller shutters. It was conceded that, in sentencing the appellant, the Magistrate had regard to damage which the appellant denied having caused. The damage referred to by the Magistrate was significant.
Counsel for the respondent conceded that the Magistrate had sentenced on the wrong factual basis and that the sentence should, therefore, be set aside. Counsel for the respondent submitted that I should refer the case back to the Magistrate so that the Magistrate could then hear evidence in order to determine the extent of damage caused by the appellant and whether the appellant had caused damage to the foundations and to the roller shutters.
Counsel for the appellant submitted that I should allow the appeal and re‑sentence the appellant on the facts that had been admitted before the Magistrate. She submitted that it was now too late to return the matter to the Magistrate for a disputed facts hearing when a concession had been made by the prosecution about the extent of damage caused by the appellant. She submitted it would be unfair to now re-open that question.
There had been extensive discussions between the appellant’s solicitor and police prosecutions about the extent of damage caused by the appellant. Those discussions had occurred prior to the matter being heard. When the matter was called on for a disputed facts hearing, there were further discussions. The prosecution agreed the extent of the damage and its value. The prosecution did not take issue with the appellant’s submissions that he had not caused damage to the foundations or to the roller shutters. All relevant facts were known to the prosecutor, who did not challenge the facts put before the Magistrate by counsel for the appellant. There was no new material put before me which justifies permitting the prosecution to re-open the issue. The respondent is bound by its conduct in the Magistrates Court. I therefore refused to remit the matter back to re-open issues which had been agreed.
The sentence
I determined to sentence the appellant. After hearing submissions, I allowed the appeal and set the sentence aside. I released the appellant on a bond in his own recognisance of $500, to be of good behaviour for a period of eighteen months. A term of the bond was that the appellant is required to appear before the court for sentence if he fails to comply with the conditions of the bond, which include that he be of good behaviour and that he pay to the court compensation of $3500 for and on behalf of Allianz Australian Insurance Limited within the period of the bond, the final payment to be made no later than 12 April 2008. I ordered that the bond was to commence on 12 August 2006. I noted that $500 had already been paid by the appellant. I now provide my reasons.
Does a condition in a bond to make compensation form part of the sentence?
During the course of the appeal, a question arose whether the court should take into account the condition to pay compensation as part of the sentence. The appellant’s counsel submitted that the Magistrate failed to have regard to the compensation condition in imposing the sentence of imprisonment.
A further issue arises as to whether this is a case where a term of imprisonment should be imposed. Section 11 of the Act provides:
(1) A sentence of imprisonment may only be imposed –
(a) if, in the opinion of the court –
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b) if a sentence of imprisonment is necessary to give proper effect to the primary policy stated in section 10(2).
(2)This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.
Sub-placita (i), (ii) and (iii) do not apply, as it had not been demonstrated to the court that the appellant has shown a tendency to violence towards other persons; it has not been demonstrated that he is likely to commit a serious offence if allowed to go at large; and the appellant does not have previous convictions for an offence punishable by imprisonment. The only basis for imposing a sentence of imprisonment is that there are circumstances of the offence, or the offence is so grave, that any other sentence but a sentence of imprisonment would be inappropriate.
It cannot be said that the gravity of the offence was such that it would be inappropriate to impose any other sentence but a sentence of imprisonment. Although damaging property is a serious offence, the circumstances in which this offence was committed and the amount of damage is not such as to conclude that the offence is of such gravity that a sentence of imprisonment must be imposed. I do not consider the circumstances of the appellant’s offending was such that no other sentence than a sentence of imprisonment is appropriate. The appellant caused the damage to the property without any malicious intent to harm the victim. The damage was caused as a consequence of the appellant setting up the premises for the purposes of hydroponically growing cannabis. Although the offending is serious and the landlord is entitled to compensation for the damage, the offence was committed in the course of committing another offence; namely, cultivating cannabis. A sentence of imprisonment was not the only appropriate sentence, given the amount of damage and given the appellant’s contrition and offer to compensate the landlord. I determined to release the appellant on condition that he pay compensation of the agreed amount of damage. If the compensation is not paid, then the appellant is liable to be returned to court for sentence.
During the course of the appeal, a question arose whether the order for compensation, which was a condition of the bond imposed by the Magistrate, was required to be taken into account in determining the final penalty. Whether payment of compensation or the court ordering a defendant to pay compensation is to be taken into account as part of the sentence was discussed by Bleby J in Brooks v Police.[2] He referred to s 53 of the Act and observed that the section imposes a requirement upon the court to give reasons for not awarding compensation where an application has been made by the prosecutor, or it is in the court’s opinion that compensation should be awarded for loss and damage resulting from an offence. The offence of causing damage is one which an order for compensation will be considered almost as a matter of course.
[2] (2000) 76 SASR 279; [2000] SASC 66.
The definition of a pecuniary sum includes any compensation.[3] An order for compensation should not be made if a defendant is unable to comply with it, or compliance with it would unduly prejudice the welfare of dependants of the defendant.[4] Section 10(1)(f) of the Act provides that a court, in determining the sentence for an offence, should have regard to:
… the degree to which the defendant has shown contrition for the offence –
(i)      by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii)     in any other manner ...
[3] Section 3 of the Act:
pecuniary sum means –
(a)     a fine; or
(b)     compensation; or
(c)     costs; or
(d)     a sum payable pursuant to a bond or to a guarantee ancillary to a bond; or
(e)     any other amount payable pursuant to an order or direction of a court,
and includes a VIC levy
[4] Section 13 of the Act.
Section 42(1)(g) provides that:
… a bond may include a condition requiring the defendant –
(i) to restore misappropriated property to any person apparently entitled to possession of it; or
(ii) to pay compensation of a specified amount to any person for injury, loss or damage resulting from the offence …
Bleby J concluded:
The combined effect of all these provisions is that, whilst a victim may properly have a claim for compensation under the Criminal Injuries Compensation Act, and that claim is brought against the Crown, the possibility of such a claim eventuating should not inhibit a court from making an order effective against a defendant under s 53 of the Sentencing Act. Nor should it inhibit a court from imposing a condition of a bond requiring a defendant to make payments of compensation if that is an appropriate course. Any amount paid by a defendant can be brought to account in payments made by the Attorney‑General in satisfaction of an order under the Criminal Injuries Compensation Act.[5]
[5] (2000) 76 SASR 279, 284 –5 [36].
“Sentence” is defined in s 3 of the Act as including the decision of a court to offer a defendant an opportunity to enter into a bond. It follows that the imposition of a compensation order, either as a term of a bond or as an order made by the court, is part of any sentence imposed. Section 10 of the Act requires the court to take into account the degree to which a defendant has shown contrition, which includes any reparation made. Any offer made to pay compensation and any agreement to enter into a bond to make such payment is relevant.
Under the scheme of the Act in South Australia the court is required to have regard to any agreement that the defendant may enter into to pay compensation.
Therefore, I was required to have regard to the fact that the appellant had paid $500 and was offering to pay the balance of $3000 as a condition of a bond. He has promised to make payments of compensation for the loss he caused. That is a matter to which the court is required to have regard. Further, there is no basis to conclude that any of the factors referred to in s 11 justify a sentence of imprisonment.
I concluded that a sentence of imprisonment was not justified and I determined to require the appellant to present himself for sentence, if so required, on condition that he enter into a bond in the terms earlier referred to in these reasons.