Nollen v Police
[2001] SASC 13
•2 February 2001
NOLLEN v POLICE
[2001] SASC 13MAGISTRATES APPEAL
(Criminal)GRAY J Introduction
1 On 22 May 2000, the learned magistrate, Mr Harris SM, was satisfied beyond reasonable doubt that the appellant, Kerry Ann Nollen, ("Ms Nollen") breached a bond entered into on 6 August 1997. The conditions of the bond were that she be of good behaviour and undertake 180 hours of community service.
2 Mr Harris SM found that there were no proper grounds to excuse Ms Nollen's breach. He ordered that a suspended sentence imposed by the Mount Barker Magistrates Court on 5 August 1997 be revoked and that the sentence of two years imprisonment be carried into effect. The case was then adjourned to fix a non parole period. Bail pending appeal was granted.
3 This case has a complicated background. Ms Nollen has a long history of dishonesty offences. Her offending has been primarily driven by drug addiction. The courts have sought to assist her rehabilitation by the repeated use of suspended sentences and bonds with appropriate conditions. Ms Nollen's drug addiction has led to her breaching those bonds on occasions. This case raises issues concerning the enforceability of one of those bonds. To fully understand the issues arising it is necessary to trace the history of the matter in considerable detail.
Appeal
4 An appeal was lodged on 31 July 2000. The grounds of that appeal are as follows:
"The Learned Special Magistrate erred in finding that:
i....... The sentence of two years, suspended on the condition that the Appellant enter into a bond a condition of which was that the Appellant perform 180 hours community service imposed on the Appellant on 5 August 1997 for unlawful possession[1] was not a nullity.
ii...... Despite the failure to indicate a period for the extension of the non parole period in respect of each sentence on 5 August 1997 there was effective compliance with s32(1)(b) of The Criminal Law (Sentencing) Act and therefore the sentences imposed on 5 August 1997 were not defective.
iii.The Bonds which formed exhibits P3 and P5 were not invalid and unenforceable by reason of them having been entered into and taken before a Justice of the Peace.
iv...... The Applications were not invalid because they were sworn before a Justice of the Peace.
v.The finding that the Bond comprising Exhibit P2[2] was a nullity and/or the failure by the police to make application to enforce two other Bonds entered into on 5 August 1997 meant that a non parole period could not be fixed in relation to any of the sentences sought to be enforced."
[1] This is later defined as the second unlawful possession offence
[2] This is later defined as the second unlawful possession bond.
Amended Grounds of Appeal
5 During the course of submissions, Ms Nollen sought leave to rely on the following additional grounds of appeal:
6 "vi (1) One of the sentences imposed by the learned Special Magistrate sitting at Mount Barker on 5 August 1997 was a nullity and/or beyond jurisdiction;
(2)As a consequence, all of the sentences imposed on that occasion were, therefore, invalidated;
(3)The purported global extension of a non parole period set was invalid since:
a....... It failed to set a non parole period in relation to each matter then before the Court; and/or
b.It necessarily took into account the sentence which was a nullity and/or beyond jurisdiction; and/or
c....... It purported to be an extension of an existing non parole period which has since expired.
(4)The purported Bonds did not, therefore, relate to valid sentences and were themselves invalid."
7 I consider that the proposed amendment raises a point of substance. As there is no prejudice to the respondent I grant leave to amend.
8 Insofar as it may be necessary, I grant the respondent an extension of time to appeal with respect to each sentence. If Ms Nollen's submission is successful, and all sentences are tainted, the question of re-sentencing may arise.
9 If the appeal succeeds, other sentences imposed on Ms Nollen by the Mount Barker Court may be affected. It is important that this court be in a position to act, if appropriate, on related matters. I directed that the files with respect to all matters concerning Ms Nollen before the Mount Barker Court be brought before me.
The 1994 Charges
10 On 27 June, 1994, Ms Nollen appeared before the Holden Hill Magistrates Court. She was convicted of a number of offences of dishonesty including building breaking and felony, receiving, and unlawful possession and sentenced to four years' imprisonment. A conviction was recorded for an additional offence of receiving and a sentence of 3 months, cumulative upon the sentence of 4 years was imposed. This made a total head sentence of 4 years and 3 months. The court fixed a non-parole period of 30 months. Each sentence was suspended upon condition that she enter into a bond to be of good behaviour and to comply with other specified conditions for a period of 36 months. The bond was entered into on 28 June 1994.[3]
[3] This is defined as the Holden Hill bond
The 1996 Charges
11 On 5 August, 1997, Ms Nollen appeared before the Mt Barker Magistrates Court on four matters.
12 An application was made to enforce the Holden Hill bond. It was submitted that Ms Nollen had committed further offences in 1996 whilst subject to that bond.
13 Ms Nollen was further charged with three dishonesty offences
unlawful possession of jewellery to the value of $1,100.00, ("the first unlawful possession offence").
receiving stolen property being compact discs and jewellery - 15 August 1996, ("the receiving charge").
......... unlawful possession of a sega megadrive, mobile phone equipment and a pencil torch - 10 October 1996, ("the second unlawful possession offence").
14 Ms Nollen admitted her breach of bond. She was convicted on her pleas of guilty to the charges of unlawful possession and receiving.
Sentencing
15 Section 58(3) of the Criminal Law (Sentencing) Act, 1988 (SA) ("the Sentencing Act") provides:
"Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court -
(a) may refrain from revoking the suspension; and
(b) may -
(i) -
(A)... extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
(B)... in the case of a bond requiring performance of community service, extend, by not more than six months, the period within which any remaining hours of community service must be performed; or
(C)... cancel the whole or a number of any unperformed hours of community service; or
(D)... revoke or vary any other condition of the bond; or
(ii)... if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year."
16 The learned Mount Barker magistrate did not revoke the suspension of the sentence of 4 years and 3 months' imprisonment. Ms Nollen was required to enter into a further bond to be of good behaviour for 1 year pursuant to s58(3)(b)(ii).
17 On the first unlawful possession offence, Ms Nollen was sentenced to imprisonment for 2 years. This sentence was suspended upon the condition that she enter into a bond[4], to be of good behaviour for a term of 3 years.
[4] The first unlawful possession bond
18 On the receiving offence, Ms Nollen was sentenced to imprisonment for 2 years and 6 months, to be served concurrently with the sentence of 2 years' imprisonment imposed on the first unlawful possession charge. This sentence was suspended upon the condition that she enter into a bond[5], to be of good behaviour and to comply with the other conditions of the bond, (including supervision by a probation officer for 2 years and 6 months) for a term of 3 years.
[5] The receiving bond - the subject of the enforcement application on Mt Barker file 98-9875
19 On the second unlawful possession offence Ms Nollen was sentenced to 2 years' imprisonment, to be served concurrently with the sentence of 2 years and 6 months' imprisonment. This sentence was also suspended upon the condition that she enter into a bond[6], to be of good behaviour and to comply with the other conditions of the bond for a term of 3 years. An additional condition required her to undertake180 hours of community service within 18 months.
[6] The second unlawful possession bond - the subject of the enforcement applications on AMC files 99-14756 and 99-3662
The Bonds
20 The bonds entered into by Ms Nollen on 5 August 1997 were signed by her before a justice of the peace. The Mount Barker magistrate did not sign the bonds.
21 The Holden Hill bond enforcement file was endorsed:
"Note: On this file there is a period of 51 months head sentence with non-parole period of 30 months to which must be added 30 months - see files 1030-97 (2 years) 1605-97 (2 years and 6 months) 96-2087 (2 years) total head sentence = 81 months. Note also total non-parole period files 1030-97, 1605-97, 96-2087, 2497-97 (this file) = 54 months."
22 The further Holden Hill bond recorded that on the 5 August 1997 at Mt Barker, the non-parole period of 30 months fixed by the Magistrates Court at Holden Hill on the 27 June 1994, was extended by 24 months to 54 months. The other bonds contained no reference to the extended or any non-parole period.
Enforcement Applications
23 The application to enforce the receiving bond, dated 24 July 1998, was signed by the applicant and a "Registrar/Justice of the Peace".
24 The application to enforce the second unlawful possession bond, dated 25 November 1999 was signed by the applicant before a justice of the peace. A second application to enforce the second unlawful possession bond, dated 22 March 1999, was signed by the applicant before a magistrate.
25 There was no application to enforce the further Holden Hill bond or the first unlawful possession bond.
26 Mr Harris SM concluded:
"On the basis of [Ms Nollen's] admissions and my findings, I am satisfied beyond reasonable doubt, and I find, that on the 5 August 1997, at Mt. Barker:-
(1)... the Magistrates Court of South Australia recorded a conviction against [Ms Nollen] for the second offence of unlawful possession and imposed a sentence of imprisonment for 2 years but, pursuant to s38 of the Criminal Law (Sentencing) Act, ordered that the sentence be suspended on condition that [Ms Nollen] entered into a bond under and in accordance with that Act to be of good behaviour and to comply with the other conditions of the bond for a term of 3 years, including a condition that she perform 180 hours of community service within 18 months and obey the lawful directions of her assigned community service officer;
(2)... that, pursuant to that order, and to the provisions of s38 of the Criminal Law (Sentencing) Act, [Ms Nollen] entered into a bond, Exhibit P5, under and in accordance with the Criminal Law (Sentencing) Act and undertook to comply with those conditions;
(3)... that [Ms Nollen] failed to comply with conditions of the bond in that she -
(a).... failed to be of good behaviour by committing a further offence, namely, an offence of unlawful possession on the 9 February 1998,
and
(b).... that she failed to comply with conditions of the bond requiring her to perform 180 hours of community service within 18 months and to obey the lawful directions of the Community Service Officer assigned to her, in that she -
(i) did not perform any of the 180 hours of community service,
and,
(ii) was absent without leave on 4 occasions, namely, 18 August 1997, 25 August 1997, 24 March 1998 and the 11 May 1998."
Beyond Sentencing Power
27 A sentence of imprisonment of 2 years and 6 months was imposed for the receiving offence. It was submitted that this sentence was beyond the sentencing powers of the Mount Barker magistrate. In accepting this submission Mr Harris SM said:
"At that time, s18A only permitted a court to impose one penalty for multiple offences when they were charged on the same complaint or information: Lock v Police (1999) SASC 50. The offences of unlawful possession and receiving for which the Magistrates Court sentenced the respondent on the 5 August 1997 were each charged on separate complaints. The powers conferred by s18A could not, therefore, be invoked to authorise a sentence in excess of 2 years. In those circumstances, the court did not have power to impose a sentence of imprisonment that exceeded 2 years. Consequently, the court did not have power to impose the sentence of imprisonment for 2 years and 6 months for the offence of receiving. Being beyond the court's powers, that sentence was a nullity and, consequently, is not enforceable."
28 It was conceded that the sentence of 2 years and 6 months' imprisonment with respect to the receiving offence was beyond the jurisdiction of the Mount Barker magistrate.
29 I do not agree that the sentence was a nullity. However the period of imprisonment as ordered was unenforceable. On appeal the sentence could have been corrected.[7] The Magistrate's Court retained the jurisdiction and power to recall and correct the matter, either on its own motion, or on the application of a party.[8]
[7] Gollan v R Judgment No S3277 19 February 1992
[8] Summary Procedure Act (SA) 1921 s 76A
30 Whether the order was a nullity or made with a want of jurisdiction, the sentencing process in regard to the first unlawful possession offence, the second unlawful possession offence as well as the receiving offence was necessarily affected. The entire process was tainted.
Totality
31 The Mount Barker magistrate was bound to have regard to the principle of totality. That principle was described by King CJ in R v Rossi[9] as follows:
"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect ..."
[9] (1988) 142 LSJS 451 at 453
32 Following the approval of this passage in Postiglione v The Queen[10] McHugh J continued:
"The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. (R v Holder [1983] 3 NSWLR 245 at 260). Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. ...
Recent decisions in the Court of Criminal Appeal (R v Bakhos (1989) 39 A Crim R 174; R v Harrison (1990) 48 A Crim R 197; R v Gordon (1994) 71 A Crim R 459) have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."
[10] (1997) 189 CLR 295 at 308
33 His Honour further observed at (309):
"The totality principle is also reflected in s 19AD of the Act which deals with non-parole periods and sets out considerations to be taken into account and orders to be made where the offender is subject to an existing non-parole period in respect of a federal sentence."
34 In considering the total criminality involved and the range of penalties to be imposed, the misconception of the Mount Barker magistrate of his power affected his entire sentencing process.
35 In extending the non parole period, the Mount Barker magistrate incorrectly had regard to the head sentence imposed on the receiving offence of 2 years and 6 months. This error permeated and affected the extended (one) non parole period.
All Bonds were Affected
36 The bonds entered into by Ms Nollen with respect to the first unlawful possession offence, the receiving offence and the second unlawful possession offence were also tainted by the same error. I consider that the bonds were unenforceable as each was entered into on an erroneous basis. Ms Nollen was exposed in the event of breach to a non parole period that had been inappropriately extended.[11] As was said in Fisher v Chambers, by Bray CJ:
" ... But suppose the bond as a contract (and it is, in my view, as I shall develop later, a contract, whatever else it may be) was void or voidable ab initio. Suppose it was entered into by a defendant who was drunk or insane or who acted under duress or who was deceived into entering into it by fraud or who could not read English and signed it under the genuine belief that it was an affidavit or some other document with no resemblance to a recognizance. Or suppose it was entered into as the result of an order made by a court which lacked jurisdiction. In such cases some court must have power to make an appropriate order for its rescission, cancellation or destruction. Many, if not all, of the normal grounds of attack on the initial validity of a contract or a deed must be available in the case of a recognizance and, if so, many if not all, of the normal powers of a court, at least of a court of equity, consequent upon the success of such an attack, must be available also.
My view is, then, that if a recognizance is entered into consequent upon and under the compulsion of an order which the court of appeal thinks should not have been made and which it sets aside, it can set aside the recognizance too."
[11] ( 1972) 4 SASR 105 at 110-111.
Defective Bond - Failure to Specify a Non Parole Period.
37 It was submitted that the bonds were defective on their face because they failed to specify a non parole period.
38 It is unfortunate that the non parole period is not referred to on the face of each bond. As the fixing of a non parole period forms part of the sentencing process it is important that the defendant on entering into the bond is informed in writing of the complete sentence.
39 It is desirable that when sentence is passed the practical effect of the sentence should be understood by the defendant, any victim, and any interested member of the public. A magistrate, in addition to pronouncing sentence, should explain the practical effect of the sentence. A clear and accurate explanation is required. Its content will vary according to the circumstances.[12]
[12] Lord Bingham CJ - Practice Direction [1998] 1 Cr App R 397
40 However Ms Nollen's submission in my view should be rejected. No affidavit has been filed on behalf of Ms Nollen before Mr Harris SM or this court which suggests that she was unaware of the terms of the sentence imposed on her by the Mt Barker Court. It is not suggested that Ms Nollen was unaware of the non parole period that had been fixed. I do not consider that the bonds were defective by reason alone of the failure to specify the non parole period.
41 The court informed Ms Nollen that it was prepared to suspend each sentence on condition that Ms Nollen enter into a bond. Ms Nollen entered into the bonds, agreeing to abide by the conditions as specified. She was aware that if she breached her bond she would be liable to be imprisoned. The fact that she was not informed in writing in each of the bonds that she would be eligible to apply for parole after a particular period did not, of itself, render the bonds unenforceable in the circumstances.
INTERMEDIATE CONCLUSION
42 I consider that the appeal should be allowed. The Mount Barker magistrate's misunderstanding of the extent of his jurisdiction permeated the entire sentencing process. Each bond was in my view unenforceable as a result. I consider the sentences and the bonds should be set aside and Ms Nollen should be re-sentenced.
43 Other grounds of appeal raise important questions concerning the procedures and terms of bonds. These need to be addressed.
Impermissible Sentence
44 Counsel for Ms Nollen submitted that in sentencing on the second count of unlawful possession the court had exceeded its power and jurisdiction. The sentence of 2 years' imprisonment was suspended on condition that Ms Nollen enter into a bond, a term of which was that she perform 180 hours community service within 18 months. It was said that the substantive effect of imposing community service as a condition of the bond, in addition to the term of imprisonments, was to increase the sentence so that it was beyond the maximum penalty permitted by statute.
45 Section 19(3) of the Sentencing Act provides:
"The Magistrates Court does not have the power to impose -
(a) a sentence of imprisonment that exceeds 2 years; or
(b) a fine that exceeds $150 000."
46 Counsel for Ms Nollen submitted that the Sentencing Act supports the view that a community service order is part of the sentence. Section 18 provides:
"Where, on convicting a defendant or finding a defendant guilty of an offence, the court thinks that good reason exists for departing from the penalty provided by the special Act, the court may sentence the defendant as follows:
(a).... where the special Act prescribes a sentence of imprisonment only for the offence, the court may instead impose-
(i) a fine; or
(ii) a sentence of community sentence; or
(iii) both a fine and a sentence of community service; or
(b)... where the special Act prescribes a sentence of both imprisonment and a fine for the offence, the court may instead impose -
(i)a sentence of imprisonment only; or
........ (ii) a fine only; or
(iii)a sentence of community service; or
........ (iv) both a fine and a sentence of community service; or
(c) where the special Act prescribes a sentence of imprisonment or a fine in the alternative for the offence, the court may instead impose -
........ (i) a sentence of community service; or
(ii)both a fine and a sentence of community service; or
(d)... where the special Act prescribes a fine only for the offence, the court may instead impose a sentence of community service.
47 It was further submitted that s 18 did not authorise a sentence of imprisonment and an order for community service concurrently.
48 I reject these submissions. In my view, the Mount Barker magistrate did not act under s 18 but acted under ss 38 and 42 of the Sentencing Act. These sections provide:
"38. (1) Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond -
(a).... to be of good behaviour; and
(b)to comply with the other conditions (if any) of the bond."
"42... (1) Subject to this Act, a bond under this Act may include such of the following conditions as the court thinks appropriate and directs be included:
(d)a condition requiring the defendant to perform a specified number of hours of community service; or ..."
49 "Bond" is defined by section 3(1) of the Sentencing Act as:
"an agreement (not being a bail agreement) entered into pursuant to the sentence of a court under which the defendant undertakes to the Crown to comply with the conditions of the agreement; ...".
50 Section 3(1) defines "sentence" as:
"(a) the imposition of a penalty; or
(b).... the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c).... the fixing or extending of a non-parole period; or
(d).... the making of any other order or direction affecting penalty; ..."
51 In defining "sentence" the Sentencing Act treats the imposition of a penalty as being separate and distinct from a decision of a court to offer a defendant an opportunity to enter into a bond.
52 A bond is an agreement between a defendant and the Crown.[13] It is not an undertaking to a court. The offer of a bond is not intended to operate as a penalty. To the contrary, it may ameliorate against hardship resulting from an immediate custodial sentence. The court has a discretion to suspend a sentence of imprisonment on condition that the offender enter into a bond on terms the court thinks appropriate. It is for a defendant to decide whether to enter into a bond. In Adams v Carr[14] von Doussa J (with whom King CJ and Bollen J agreed) said at (216):
"In my view, there is an important distinction between a custodial order and a condition is a recognizance requiring a person to perform community service on appointed days. A custodial order is imposed regardless of the wishes of the person concerned whereas community service, whilst arising in pursuance of a court order, may be declined by the person chosing (sic) not to enter the recognizance. An order for release upon recognizance is an order conditional upon the person accepting its terms: Stokes v Samuels (1973) 5 SASR 18 at 21. The order is an exercise of leniency in lieu of sentence for the offence, and the person concerned has chosen to accept the conditions of the order to gain that leniency."
[13] Fischer v Chambers (1972) 4 SASR 105 at 111
[14] (1987-88) 47 SASR 205
53 I consider these remarks apposite.
Failure To Set A Non Parole Period
54 It was submitted that the Mount Barker magistrate erred in failing to extend the existing non parole period for a specified period when he sentenced Ms Nollen to imprisonment for each of the 1996 offences.
55 Part III of the Sentencing Act deals with sentences of imprisonment. Non parole periods are addressed primarily by Division II. Section 32 provides as follows:
"(1)........... Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must -
(a).. if the person is not subject to an existing non-parole period - fix a non-parole period; or
(b).. if the person is subject to an existing non-parole period - review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
(c).. if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period - fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term."
(2)... Where the sentence of imprisonment for an offence is imposed for an offence committed during a period of release on parole or conditional release from a previous sentence of imprisonment or detention, the court, in fixing a non-parole period under subsection (1)(a), must have regard to the total period of imprisonment (or detention and imprisonment) that the person is, by virtue of the new sentence and the balance of the previous sentence, liable to serve.
(3)Where a prisoner is serving a sentence of imprisonment but is not subject to an existing non-parole period, the sentencing court may, subject to subsection (5), fix a non-parole period, on application by the prisoner or the presiding member of the Parole Board.
......... ...
(10)For the purposes of this section -
(a).. a court that orders that a suspended sentence of imprisonment be carried into effect will be taken to have sentenced the person to whom the order relates to imprisonment; and ...".
56 The Sentencing Act recognises only one non parole period in respect of an offender. This is so regardless of whether there are a number of sentences on a number of occasions. Section 32(1)(b) directs the court to review and extend the non parole period. There is no provision for separate non parole periods. In Colella v The Queen[15] King CJ (with whom Mohr and Olsson JJ agreed) said at (96-97):
"The Act, however, does not contemplate or provide for the accumulation of one non-parole period upon another. There can be only one non-parole period with respect to the total period of imprisonment: see R v Forrest (1987) 135 LSJS 282 at 284. The Act does not make express provision for the situation which has arisen in the present case, but I think that it is clear that, as there can be only one non-parole period with respect to a total period of imprisonment, the non-parole period originally fixed with respect to the second sentence when that sentence was suspended must be regarded as inoperative upon that sentence being made cumulative upon the earlier sentence. The solution, in my opinion, is then to apply the provisions of s 32, treating the court which revokes the suspension of the sentence as the court which is sentencing the offender to imprisonment. If the matter is approached in that way, the court revoking the suspension of the second sentence is in the position of a court sentencing an offender who is subject to an existing non-parole period. Section 32 then operates to require the court to extend the non-parole period by such period as it thinks fit, but not so that the period of extension exceeds the period of the subsequent sentence of imprisonment."
[15] (1991) 56 SASR 95 at 97.
57 In Colella, a District Court judge sentenced an offender for a number of offences and considered it appropriate to impose terms of imprisonment in respect of those offences. However he ordered that they be served concurrently. Those sentences were then to be cumulative on the balance of an earlier term of imprisonment still outstanding. The judge reviewed the non parole period previously set and extended it by the one period, without specifying a discrete period of extension in respect of each offence. On appeal, it was held that such an order was permissible, providing that the judge had considered each offence separately.
58 Ms Nollen has not appealed against any of the sentences imposed by the Mt Barker Court. No basis has been established to assert that the court failed to consider each offence when extending the non parole period. The decision in Colella is decisive against Ms Nollen, in respect of this submission.
Defective Bond Taken before a Justice of the Peace and not a Magistrate
59 It was submitted that a justice of the peace has no power to take a bond. It was said that the taking of a bond is part of the trial and sentencing process and accordingly within the exclusive power of the magistrate. Section 9 of the Magistrates Court Act (1991) SA provides:
"Subject to the Summary Procedure Act 1926 the Court has jurisdiction -
(a).... to conduct a preliminary examination of a charge of an indictable offence;
(b)to hear and determine a charge of a minor indictable offence;
(c).... to hear and determine a charge of a summary offence."
60 It was also submitted that s 15 of the Magistrates Court Act did not authorise the taking of a bond. Section 15 provides as follows:
"A Registrar or Justice may -
(a).. issue summonses and warrants on behalf of the Court;
(b).. adjourn proceedings before the Court;
(c).. exercise any procedural or non-judicial powers of the Court assigned by the rules."
61 I reject this submission. The entry into the bond is a act between a defendant and the crown. The sentencing process includes the court's decision to offer the defendant an opportunity to enter into a bond and to fix its terms. It is then a matter of choice for a defendant. A bond may be taken before the sentencing tribunal or it may be taken before a justice. This is an administrative process.[16] It is not an exercise of judicial power.
[16] Criminal Law (Sentencing) Act 1988 Regulation 4 Form 2 enables a bond to be taken before a Justice of the Peace.
The Extinguishment of the Non Parole Period
62 When sentenced for breaching the 1994 bond Ms Nollen was allowed to enter into a further bond extending the original bond for a period of one year as from 5 August 1997. Section 38(3) of the Sentencing Act provides:
"If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished."
63 When the sentence of imprisonment was extinguished, so too was the attached non parole period. The legislation does not contemplate part extinguishment of a non parole period. When the magistrate found the bond had been breached and ordered that the suspended sentence of imprisonment be carried into effect, he was by reason of s 32(10)(a) taken to have sentenced the person to imprisonment. When he did so, he was obliged pursuant to s 32(1)(a) to fix a non parole period. This was because Ms Nollen was not subject to an existing non parole period.
64 However as I consider the bonds to have been unenforceable from the outset nothing turns on this point.
The Appeal Process
65 As earlier observed, I considered it appropriate to direct that the 1997 Magistrates Court files be brought before me. This was to provide full information about the history of the matter to be available if Ms Nollen was to be re-sentenced.
66 Section 42 of the Magistrates Court Act (SA) 1991 provides:
"(5) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:
(a).... it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related or proceedings;
(b)it may remit the case for hearing or further hearing before the Magistrates Court;
(c).... it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.
67 Counsel for the respondent did not seek an extension of time to appeal. In his submission if I considered that the sentences should be varied I should act pursuant to s42(5) as the proceedings were related.
68 In my opinion the proceedings are related. I consider that in the circumstances, as all 1997 offences were permeated with error, I set aside the sentences.
Re-Sentencing
69 Ms Nollen opposed being re-sentenced. It was submitted that her appeal should be allowed and that nothing further should occur. It was said that she should not be prejudiced by having taken a challenge to the enforcement of bond proceedings.
70 In my view such an approach would lead to an unjust result. I consider that Ms Nollen should be re-sentenced. However care must be taken to ensure that Ms Nollen is not placed in double jeopardy or prejudiced by the delay that has occurred. As was said in R v Todd:
"... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner."[17]
[17] Per Street CJ (1982) 2 NSWLR 517 at 519 - see also The Queen v Suckling (1984) 33 SASR 133 and Stanitzki v Higgins (1994-1995) 63 SASR 309.
71 Ms Nollen has pleaded guilty to the following offences:
-unlawful possession of jewellery to the value of $1,100.00 - 17 August 1996 - 10th day of October.
-receiving stolen property being compact discs and jewellery - 15 August 1996
-unlawful possession of a sega mega drive, mobile phone equipment and a pencil torch - 10 October 1996
72 These offences are serious offences of dishonesty. They follow a long history of drug offending and have been committed in circumstances where Ms Nollen was subject to suspended sentences and a good behaviour bond as a result of the 1994 offences.
73 I have considered submissions from counsel. In addition, I have had regard to the following:
- pre-sentence reports of the Department of Correctional Services dated 19/05/94
- letters of Dr PRS Gould-Hurst - undated
- a letter from a medical officer from Warinilla, the Drug and Alcohol Services Council dated 30/03/94
- a letter from Dr B Cormie dated 24/6/94
- a report of Forensic Psychology Services dated 1/97
- a letter of Graham Gibson, a social worker from the Adelaide Central Mission dated 10/07/97
- a report from North Eastern Community Mental Health Service 10/11/98.
- a letter of Dr H C Gorton 11/8/99
74 It was submitted that Ms Nollen is at a critical stage of her life. She wishes to rehabilitate herself, and recognizes that she needs support. To impose a significant penalty or a custodial sentence would not be in either Ms Nollen’s interests or those of the community.
75 Ms Nollen, now aged 33 was born on 30 May 1967. She has a juvenile record containing 3 unexceptional offences, all of which are unrelated to her adult offending. Since then, she has an extensive criminal record of dishonesty offences. 12 offences were committed in late 1993 and 3 others (for which she was sentenced in 1997), were committed in 1996.
76 There are at least four outstanding charges alleging offences of dishonesty awaiting hearing in the Magistrates Court. They have apparently been adjourned pending the resolution of this matter before Mr Harris SM and on appeal. These charges should be heard and disposed of as soon as practicable.
77 Ms Nollen has a long history of drug use. At age 11 she began drinking alcohol and by the age of 14 was drinking once or twice a week. At 13, she commenced smoking cannabis. She smoked infrequently at first, but then began binge smoking in her mid to late teens until 1996 when it became clear that there was a link between her marijuana usage and the frequency of her panic attacks. At age 16, she commenced injecting amphetamines daily and sometimes more frequently until aged 25. She also continued to drink alcohol, sometimes on a daily basis. She experimented with heroin at age 17 but did not like it. In 1992, she was reintroduced to the drug by her then boyfriend and later husband David. At first, she used the drug occasionally but after six to eight months used it more regularly and then became a daily user. Ms Nollen also has a history of benzodiazepine abuse. She used this drug to ameliorate the discomfort associated with withdrawal symptoms, when heroin could not be obtained.
78 At first, Ms Nollen pawned her possessions and used her unemployment allowance as a source of funding for drugs. However, once this avenue was exhausted, she turned to crime to finance her addiction. It was acknowledged by the respondent that her crimes formed part of a course of conduct of dishonesty being driven by her heroin use and her addiction.
79 Ms Nollen has not had an easy life. She was adopted when she was a young child. She maintains contact by telephone and letter with her natural mother who now resides in Western Australia. From the age of 13, she was subjected to violence and sexual abuse. She was expelled from high school. Despite her limited education she is literate and numerate. She had a short term violent relationship which resulted in the birth of her son, Jake. She was 21 at the time. Her retired, adoptive parents (Mother aged 78 and father aged 70) have legal custody of Jake, who is now 11 years old.
80 At age 24, Ms Nollen met her husband through a friend and began visiting him in jail. They later married in 1994. The marriage was difficult. Her husband spent much of his time in custody. They had only been married for one month prior to his imprisonment. From time to time she has alleged that he has involved her in drug use. Ms Nollen has separated from him at various times and is now divorced. The break was acrimonious and she suffered substantial hurt, anger and resentment. However they have now reconciled.
81 As a result of her unfortunate experiences, Ms Nollen has developed significant difficulties with emotional and sexual relationships. She has an obsession with cleanliness, bathing some two-three times each day. She suffers severe depression and has periods of paranoid fear for her personal safety. Medication has been prescribed. In March 1996, she attempted suicide by slashing her wrists and this required hospital treatment. Family and Community Services became involved with the welfare of her family. She was also admitted to the Royal Adelaide Hospital’s psychiatric ward as a voluntary patient for some ten days in late 1996. Ms Nollen has suffered anxiety and a severe sense of loss of self worth. She also has suffered severe back pain and a leg injury as a result of a serious motor vehicle accident.
82 Ms Nollen has had little employment engaging in only two or three short term casual factory jobs. She has not worked since aged 20 - in excess of twelve years. She has been the recipient of government pensions for protracted periods.
83 Ms Nollen has undertaken three programs of drug rehabilitation. In 1994, she participated in the State Methadone Program. She stayed on the program for approximately eight months, managing to be drug free for two months but then she began using heroin again. This program was recommenced in mid 1995, although she continued to use drugs infrequently. In mid 1997, Ms Nollen approached and saw a social worker at the Adelaide Central Mission, The Byron Place Centre. Throughout the preceding months she made a concerted effort to re-evaluate her life. She indicated a desire to change and give herself a more decent life. She has sought to recover the custody of her son and to be a normal mother. In 1998, she again participated in the State Methadone Program but was unsuccessful.
84 Ms Nollen believes that her failure to successfully rehabilitate herself has resulted from the lack of psychological counselling and emotional support available to her at the time she was undertaking the program and more particularly after it had concluded. She maintains that her offending stemmed from her relationship with her husband and her subsequent spiral into the drug scene. She claims to have only used heroin in his presence and only to have purchased the drug when he made attempts to purchase it for them. Ms Nollen has seemingly struggled to take control of her life and has shown a willingness to continue her commitment to counselling.
85 Ms Nollen claims to have been weening herself off heroin and says that she is no longer using the drug.
86 A report from Dr Gould-Hurst provides some support to this claim. However the report does not provide any clear basis for the asserted belief that Ms Nollen has no significant drug problem. Despite a number of opportunities Ms Nollen has not attended at the Warrinilla Clinic of the Drug and Alcohol Services Council for assessment. Her reconciliation with her former husband is unlikely to assist. I am unable to conclude that Ms Nollen has overcome her drug problems.
87 Ms Nollen currently receives a disability pension. She continues to suffers bouts of depression. She says she is feeling much stronger but continues to rely on the support of her family. She currently resides with her adoptive parents and son, Jake. Recently she has been developing a stronger, more intimate relationship with Jake. They now go on outings together and she has become more actively involved in his life.
88 The respondent submitted that the following conditions should be imposed as the terms of any bond:
1. That Ms Nollen contact the office of the Department of Correctional Services nearest to her residence within 2 days of the bond being imposed.
2. That she be of good behaviour
3. That she refrain from using any drug except on medical prescription
4. That she reside with her parents unless the poor health of one or both of them makes that impossible
5. That she refrain from having any contact with her former spouse except for the purpose of resolving any outstanding issues regarding maintenance or the distribution of matrimonial property.
6. That she be under the supervision of the assigned officer of the Department of Correctional Services for the duration of the bond and obey that officer’s directions regarding
- participation in any drug dependency assessment or rehabilitation program or programs selected by that officer
- urinary analysis
- residence but such a direction shall only be given in the event that it becomes impossible for her to continue living with her parents.
89 I consider that the protection of the community is best achieved by Ms Nollen continuing her rehabilitation but in circumstances of strict control and with an appropriate level of support. The sentencing courts have given Ms Nollen many opportunities to rehabilitate. In view of the issues of double jeopardy and delay I consider she should have a further opportunity. In view of her poor record she may need considerable support.
90 I have had regard to the pleas of guilty and make a reduction of 25% on that account.
91 I impose a sentence of 18 months imprisonment for each offence. The sentences are to be served concurrently and I suspend the sentences on condition that Ms Nollen enter into a bond to be of good behaviour for a period of 2 years. I direct that the foregoing conditions form part of that bond:
1. That Ms Nollen contact the office of the Department of Correctional Services nearest to her residence within 2 days of the bond being imposed.
2. That she be of good behaviour
3. That she refrain from using any drug except on medical prescription
4. That she be under the supervision of the assigned officer of the Department of Correctional Services for the duration of the bond and obey that officer’s directions regarding
- participation in any drug dependency assessment or rehabilitation program or programs selected by that officer
- urinary analysis
- her place of residence
92 In fixing the length of the bond I take into account Ms Nollen's good behaviour for 6 months before re-offending and that the suspended sentences (albeit tainted) were in place for some years. I do not consider it appropriate to order community service. I fix a (one) non parole period of 12 months.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT1 This is later defined as the second unlawful possession offence
2 This is later defined as the second unlawful possession bond.
3 This is defined as the Holden Hill bond
4 The first unlawful possession bond
5The receiving bond - the subject of the enforcement application on Mt Barker file 98-9875
6The second unlawful possession bond - the subject of the enforcement applications on AMC files 99-14756 and 99-3662
7 Gollan v R Judgment No S3277 19 February 1992
8 Summary Procedure Act (SA) 1921 s 76A
9 (1988) 142 LSJS 451 at 453
10 (1997) 189 CLR 295 at 308
11 ( 1972) 4 SASR 105 at 110-111.
12 Lord Bingham CJ - Practice Direction [1998] 1 Cr App R 397
13 Fischer v Chambers (1972) 4 SASR 105 at 111
15 (1987-88) 47 SASR 205
16 (1991) 56 SASR 95 at 97.
17Criminal Law (Sentencing) Act 1988 Regulation 4 Form 2 enables a bond to be taken before a justice of the peace.
18Per Street CJ (1982) 2 NSWLR 517 at 519 - see also The Queen v Suckling (1984) 33 SASR 133 and Stanitzki v Higgins (1994-1995) 63 SASR 309.
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