Oatley v Police - [2021] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
OATLEY v POLICE
[2021] SASC 40
Judgment of the Honourable Justice S David
16 April 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - RECOGNISANCE RELEASE ORDER
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
This is an appeal against a decision made by a Magistrate under s 20A(5)(c)(i) of the Crimes Act 1914 (Cth) revoking a recognizance release order and ordering that the appellant serve 16 months imprisonment.
On 2 May 2019 the appellant was convicted in the Magistrates Court of the offences of non-residential serious criminal trespass and dishonestly take property. The offences were prosecuted by the Commonwealth Director of Public Prosecutions as they had been committed at the Adelaide Airport, a Commonwealth place. The appellant was sentenced to 16 months imprisonment but pursuant to s 20(1)(b) was released forthwith upon entering a $500 recognizance with conditions for the term of the sentence.
The appellant admitted to failing to comply, without reasonable cause or excuse, with the recognizance release order by returning five samples which tested positive for illicit drugs.
On 7 December 2020 the Magistrate revoked the recognizance release order and activated the period of imprisonment not served, namely 16 months imprisonment.
The appellant appealed against the sentence on the grounds that the Magistrate erred in:
1.revoking the recognizance release order and bringing into effect the 16 months imprisonment;
2.failing to find there was a reasonable cause or excuse for the breaches (and as it follows, take no action);
3.failing to exercise any of the other sentencing options to be exercised in relation to a breach of a recognizance under s 20(A)(5) of the Crimes Act 1914 (Cth);
4.failing to give adequate reasons;
5.proceeding in absence of all relevant material, namely an addendum progress report;
6.enforcing a recognizance release order that was unenforceable by virtue of non-compliance with s 16F(2), Crimes Act 1914 (Cth) by the original sentencing Magistrate.
Held, dismissing the appeal:
1.The appellant by his own admission acted, without reasonable cause or excuse, in failing to comply with the abstinence condition of the recognizance release order. The Magistrate did not err in so finding.
2.The Magistrate did not err in revoking the recognizance release order and ordering that the appellant serve 16 months imprisonment rather than exercising any other power under the relevant section.
3.The Magistrate’s reasons were adequate.
4.An addendum progress report would have made no material difference to the Magistrate’s decision. The Magistrate did not err in proceeding to make the order without receiving a report.
5.The original sentencing Magistrate complied with ss 16F and 20 of the Crimes Act 1914 in explaining the consequences of breaching the recognizance release order. In any event, a failure to do so would not have rendered the order a nullity and unenforceable.

Crimes Act 1914 (Cth) ss 20(1)(b), 20A(5)(c)(i), 20AB, 16F(2), 20, 19AF(1), 20A, 19B(1), 20(1), 19(B)(1), 20AA, 20(5), 20A(5), 20A(5)(c), 19AC(1), 20(1)(b), 16F; Criminal Law Consolidation Act 1935 (SA) s 169(1), s 134; Commonwealth Places (Application of Laws) Act 1970 (Cth) s 4, referred to.
Sweeny v Corporate Security Group [2003] SASC 324 at [163]; R v Hutton [2004] NSWCCA 60, applied.
Commonwealth Director of Public Prosecutions v Cole [2005] SASC 188, distinguished.
Antarakis v The Queen [220] SASCFC 105; Ludgate v Police [2018] SASC 175 at [63], considered.

OATLEY v POLICE
[2021] SASC 40

Magistrates Appeal: Criminal

DAVID J: Darren Edward Oatley, appeals against a decision made by a Magistrate under s 20A(5)(c)(i) of the Crimes Act 1914 (Cth) (‘the Crimes Act’) revoking a recognizance release order and ordering that the appellant be imprisoned for 16 months.
On 2 May 2019, the appellant pleaded guilty to the offences of:
(1)Non-residential serious criminal trespass contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), applied as a Commonwealth offence contrary to s 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth); and
(2)Dishonestly take property without consent contrary to s 134, CLCA, applied as a Commonwealth offence contrary to s 4 of the Commonwealth Places (Application of Laws) Act 1970, (Cth).
The maximum penalty for each offence is imprisonment for 10 years.
The appellant was sentenced to 16 months imprisonment, but pursuant to s 20(1)(b) of the Crimes Act he was released forthwith upon entering into a recognizance in the amount of $500.00 for the term of the sentence. The following conditions were imposed as part of the recognizance release order:
(1)to be of good behaviour and comply with all conditions of the recognizance order;
(2)to be under the supervision of a probation officer for a period of 16 months and obey all the lawful directions given by the probation officer;
(3)to report forthwith to the Courts Unit of the Department of Correctional Services;
(4)to not consume any drug which is not medically prescribed or otherwise legally available and then only at the recommended dosage and to comply with all drug testing/urinalysis procedures as directed by the Community Corrections Officer and complete all required forms (‘the abstinence condition’); and
(5)to not leave the state without the written permission of Community Corrections or the Court.
The recognizance release order expired on 1 September 2020.
On 14 February 2020, an Information was filed pursuant to s 20A of the Crimes Act alleging that the appellant, without reasonable cause or excuse, failed to comply with conditions 1, 2 and 4 of his recognizance release order by returning a positive urinalysis result for methamphetamine and amphetamine on 22 August 2019 and on 28 October 2019 and by providing a positive urinalysis result for methamphetamine, amphetamine and codeine on 4 September 2019. The Information and Summons were served on the appellant on 23 February 2020. On 27 March 2020, the Information was amended to add that the appellant had breached conditions 1, 2 and 4 by returning a positive urinalysis result for methamphetamine and amphetamine on 17 February 2020 and 16 March 2020.
On 28 August 2020, the appellant admitted failing to comply, without reasonable cause or excuse, with conditions 1, 2 and 4 of the recognizance release order.
The appellant’s matter next came before a Magistrate on 7 December 2020. The Magistrate revoked the recognizance release order and activated the period of imprisonment not served, namely 16 months, pursuant to s 20A (5)(c)(i) of the Crimes Act. The appellant was taken into custody to begin serving the sentence.
On 15 December 2020, the appellant was released on bail pending appeal.
Grounds of appeal
The grounds of appeal set out in the Amended Notice of Appeal are as follows:
1.The learned Magistrate erred in revoking the order of recognizance and bringing into effect the sentence of 16 months imprisonment.
2.The learned Magistrate erred in failing to find there was reasonable cause or excuse for the breaches (and as it follows, take no action).
3.The learned Magistrate erred in failing to exercise any of the other sentencing options to be exercised in relation to a breach of recognizance under s 20A(5) of the Crimes Act, namely: impose a monetary penalty not exceeding $1,000; amend the order so as to extend the period for which the person is required to give security to be of good behaviour for a period not exceeding 5 years; revoke the order and make an order under s 20AB ie: community service order or intensive corrections order; or take no action.
4.The learned Magistrate erred in failing to give adequate reasons.
5.The learned Magistrate erred in proceeding to sentence in the absence of all relevant material, namely the addendum progress report.
6.The learned Magistrate erred in enforcing a recognizance bond that was unenforceable by virtue of non-compliance with s 16F(2) of the Crimes Act by the original sentencing Magistrate.
Relevant statutory provisions
Section 20 of the Crimes Act deals with the conditional release of offenders. Relevantly that section provides:
Section 20 – Conditional release of offenders after conviction
(1)Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:
(a) by order, release the person, without passing sentence on him or her, upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).
The consequences of a failure to comply with a condition of release are set out in s 20A of the Crimes Act which relevantly provides:
Section 20A – Failure to comply with condition of discharge or release
(1)Where a person has been released in pursuance of an order made under subsection 20(1), and information is laid before a magistrate alleging that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, the magistrate may:
(a)     issue a summons directing the person to appeal, on a date, at a time and at a place fixed in the summons, before the court by which the order was made; or
(b)     if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective – issue a warrant for the apprehension of the person.
…
(5)Where, in accordance with this section, a person who has been discharged in pursuance of an order made under s 19B(1), or released in pursuance of an order made under s 20(1), appears or is brought before the court by which the order was made, the court (whether or not constituted by the judge or magistrate who made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, may:
…
(c)     in the case of a person who has been released by an order made under paragraph 20(1)(b):
(ia) impose on the person a monetary penalty of not more than $1000; or
(ib)subject to subsection (5A), amend the order so as to extend the period for which the person is required to give security to be of good behaviour; or
(ic)revoke the order and make an order under section 20AB: or
(i)revoke the order and deal with the person for the offence or offences in respect of which the order was made by ordering that the person be imprisoned for that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release; or
(ii) take no action;
(5A)The court may not, under subparagraph (5)(c)(ib), extend a period so that the period as extended would be more than 5 years.
…
(6)Where a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:
(a) the fact that the order was made;
(b) anything done under the order; and
(c) any other order made in respect of the offence or offences.
There is no power to reduce the period of imprisonment upon a breach of the recognizance release order.[1] A home detention order is not available as a sentencing option under s 20AB of the Crimes Act.[2]
[1] Sweeny v Corporate Security Group [2003] SASC 324 at [163].
[2] Ludgate v Police [2018] SASC 175 at [63].
Division 2 of Part 1B of the Crimes Act deals generally with the sentencing, release, and imprisonment of federal offenders. Within that division, s 16A sets out general sentencing principles applicable to offenders who commit offences against the laws of the Commonwealth and requires a sentencing court to consider various matters including the need to ensure that the defendant is adequately punished, the defendant’s prospects of rehabilitation, and the character, antecedents, cultural background, age, means and physical or mental condition of the defendant.
Division 3 of Part 1B of the Crimes Act contains provisions concerning the structure of sentences of imprisonment and matters required of a sentencing court after a sentence has been determined. Relevantly for the purposes of this appeal, s 16F provides:
Section 16F – Court to explain sentence
(1)Where a court imposes a federal sentence on a person and fixes a non-parole period in respect of the sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of fixing that non-parole period including, in particular, an explanation:
(a)     that service of the sentence will entail a period of imprisonment of not less than the non-parole period and, if a parole order is made, a period of service in the community, called the parole period, to complete service of the sentence; and
(b)     that, if a parole order is made, the order will be subject to conditions; and
(c)     that the parole order may be amended or revoked; and
(d)     of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions.
(2)Where a court imposes a federal sentence on a person and makes a recognizance release order in respect of that sentence, it must explain or cause to be explained to the person, in language likely to be readily understood by the person, the purpose and consequences of making the recognizance release order including, in particular, an explanation:
(a)     that service of the sentence will entail a period of imprisonment equal to the pre-release period (if any) specified in the order and a period of service in the community equal to the balance of the sentence; and
(b)     of the conditions to which the order is subject; and
(c)     of the consequences that may follow if the person fails, without reasonable excuse, to fulfil those conditions; and
(d) that any recognizance given in accordance with the order may be discharged or varied under section 20AA.
Background
On the hearing of the appeal, an affidavit sworn by the appellant’s solicitor, who appeared on his behalf in the Magistrates Court on the CDPP’s application to revoke the recognizance release order, was before the Court. In this affidavit, the appellant’s solicitor outlined the submissions made to the Magistrate and the course the proceedings took in the Magistrates Court. There was no challenge to any aspect of the affidavit. I have taken much of the factual background from that affidavit.
The appellant was sentenced by the Chief Magistrate for the original offences on 2 May 2019, those offences having been committed on 27 October 2016. The appellant was sentenced on the basis that he was a former employee of Australian Visitor Centres Pty Ltd which operates a service at the Adelaide Airport. The appellant’s duties included lodging items into the lost property recording and storage system. He had security access to the storage room in the terminal. The appellant’s employment was terminated on 26 October 2016 for failing to report for work on several occasions. On 27 October 2016, the appellant used his access key to gain entry to the storage room and steal two computer laptops from his former employee. The offending was captured on closed circuit television. Police later located the computers in the appellant’s vehicle. In sentencing the Chief Magistrate referred to the appellant’s personal circumstances and said as follows:[3]
As (to) your personal circumstances, you are a 50-year old single man who is currently living with your elderly father who had recently been diagnosed with cancer. You completed Year 12 and have worked in a number of different fields and been in steady employment across several States. You have been married twice and are currently single and your child resides with his mother.
In 2011 following the economic downturn, your work opportunities decreased, your relationship ended and you were unable to meet your financial commitments. You became depressed and commenced using methamphetamine. You participated in a robbery by driving the getaway vehicle when a co-accused robbed a service station.
Upon your release from prison, your drug use continued and in 2012 you were unable to work and in receipt of government benefits. You attempted suicide.
Subsequently, you returned to South Australia. In 2016, you commenced a new relationship and recommenced drug use. At the time of this offending you were back using significant quantities of methamphetamine and had not slept for many days. Your mother was in ill health, it was the anniversary of your brother’s death and you lost your employment at the airport because of unreliable performance caused by regular drug use. You had little money.
You advise that you have previously been diagnosed with PTSD and Depression and have a lengthy history of drug abuse. Following this offending you presented to the Royal Adelaide Hospital and were transferred to DAASA detox for 14 days. You have undertaken counselling for drug addiction with Anglicare three times per week over 6 months.
[3] Remarks on Penalty of Chief Magistrate Judge Hribal dated 2 May 2019 at [13]-[17].
It is clear from the Chief Magistrate’s remarks that the appellant’s drug use and longstanding drug addiction was causally linked to his offending, and that the appellant was sentenced on the basis that he had commenced drug rehabilitation.
The Chief Magistrate imposed a sentence of 16 months imprisonment and ordered that the appellant be immediately released on a recognizance release order with conditions in the sum of $500 pursuant to s 20(1)(b) of the Crimes Act. The Chief Magistrate explained the order to the appellant in the following way:[4]
So, now, Mr Oatley, what that means is I need to just explain to you. You have been put on a bond, the bond is for the length of the sentence which is 16 months. You are under the supervision of Community Corrections, they have an office in this building. You need to go down and see them and report to them and then they’ll set up a regular reporting regime for you. It may be that they decide that you would be benefitted by some further counselling, it might be they think what you’ve done is sufficient, but you are to be regularly urine tested and you can’t consume any drugs and that is designed to try and provide some sort of incentive for you, if you need any, in order to do the right thing and to stay clean from drug use.
[4] Transcript dated 2 May 2019 of Commonwealth Director of Public Prosecutions v Darren Edward Oatley (AMC-18-8569) before Chief Magistrate Hribal, p 12.

The recognizance release order was signed by the appellant in the presence of a Justice of the Peace and includes the following text before his signature:[5]
I, Darren Edward OATLEY, the Offender:
(a) have had explained to me:
(i)      the purpose and effect of this Order; and
(ii)     the consequence that may following if I fail, without reasonable excuse, to comply with the conditions of this Order; and
(iii) that this Order may be discharged or varied under section 20AA of the Crimes Act, 1914;
(b)agree that I am bound in accordance with this Order; and
(c)agree that I have been given a copy of this Order.
[5]     Appellant’s Appeal Book, Exhibit 1.3 “Copy of recognizance order imposed by her Honour Chief Magistrate Hribal”.
The appellant failed to comply with the recognizance release order by returning a positive urinalysis for methamphetamine and amphetamine on five occasions during the period of the recognizance release order from 22 August 2019 to 16 March 2020.
On 28 August 2020, the appellant admitted to having failed to comply with the recognizance release order. Given the order was soon to end, and at the suggestion of the appellant’s solicitor, the appellant was placed on a bail agreement with conditions that he be under the supervision of a Community Corrections Officer and be of good behaviour and comply with the lawful directions of that officer. The appellant was remanded to appear for submissions on 23 October 2020. A progress report was also ordered returnable to that date.
On 23 October 2020, the appellant appeared before the Magistrate. There was a progress report before the court. As to the appellant’s overall progress, the author considered that: [6]
Mr Oatley has shown himself to be a reliable reporter for supervision appointments over a considerable period of time. He engages well during supervision sessions, displaying an open manner on all topics discussed and themes explored. However, Mr Oatley’s inability to actively engage with specialist counselling services is severely reducing any effective chance at implementing lasting change to his drug use issues. Mr Oatley commenced the Psychmed – Matrix program on two separate occasions during his Bond supervision period and has failed to complete the program both times. The drug test results show Mr Oatley is able to maintain abstinence from drug use for a limited period of time before returning to use. This pattern has repeated since the commencement of his first supervised Bail agreement on 19/02/2019 for the subject matters.
The writer issued Mr Oatley ongoing directions throughout the Bond period to obtain a Mental Health Care Plan (MHCP) and commence Psychological counselling, to which he did not comply. Mr Oatley reports as of 24/09/2020 that he has now obtained a MCHP and booked an appointment with a Psychologist in early December. No evidence has been supplied to verify the MCHP or psychologist appointment.
The writer remains of the opinion that Psychological counselling is necessary, in conjunction with specific drug counselling, if rehabilitation is to be considered achievable.
Mr Oatley presents as an individual who is more concerned with avoiding a jail term rather than addressing or achieving long term cessation of his drug use issues.
[6] Appellant’s Appeal Book, Exhibit VFC-2 “Progress Report” authored by Mark Harris, Community Corrections Officer.
During the hearing in the Magistrates Court on 23 October 2020, counsel for the CDPP submitted that the recognizance release order should be revoked and the unserved portion of the sentence, that is the whole 16 months, be carried into effect. In making that submission, counsel for the CDPP outlined the alternative options available to the sentencing Magistrate under s 20(5) of the Crimes Act.
The appellant’s solicitor submitted that the court should ‘excuse the breaches’ and not order that the appellant serve 16 months imprisonment as such an outcome would be disproportionate to the breaching conduct. In support of that submission, the appellant’s solicitor relied on the fact the appellant had not re-offended; that he had complied with supervision; and that he had returned many negative urinalysis results. As to the appellant’s failure to engage with the Matrix program, it was submitted that the appellant was concerned that in attending the program he would expose himself to other drug users. The appellant’s solicitor submitted that the appellant now had a mental health care plan in place and an appointment to see a psychologist and was committed to engaging in drug rehabilitation.
The Magistrate adjourned the matter for decision to 26 November 2020 and ordered an addendum progress report. Both parties indicated that they would file written submissions prior to that date. Subsequently, the matter was administratively adjourned first to 30 November 2020, and then to 7 December 2020.
The CDPP filed written submissions on 14 November 2020.[7] In those written submissions, the CDPP contended that the appellant’s breaching conduct was persistent having occurred on five occasions over a period of 8 months, and the only appropriate option was to revoke the sentence of 16 months imprisonment. Prosecuting counsel submitted that the principles of punishment and general deterrence would not be properly reflected by one of the other alternatives provided in s 20(A)(5)(c) of the Crimes Act. Further, prosecuting counsel referred to the appellant’s significant history of prior convictions for dishonesty offences, including having been sentenced interstate in 2013 to four years imprisonment suspended after having served 9 months, for the offences of robbery whilst pretending to be armed, attempted robbery and pretending to be armed and use/threaten violence. Noting the prior convictions, prosecuting counsel submitted that principles of specific deterrence needed to be taken into account by the Magistrate. Prosecuting counsel also submitted that the appellant had limited prospects of rehabilitation given that he had returned a positive urinalysis for methamphetamine and amphetamine on 4 September 2020 whilst on supervised bail, and the appellant had failed to complete the Matrix program on two occasions.
[7] Appellant’s Appeal Book, Exhibit VFC-3.
The appellant’s solicitor filed written submissions on 26 November 2020,[8] in which it was contended that the sentencing Magistrate should take no action in relation to the breach or, in the alternative, order that the appellant pay a fine or pay the estreated sum of the recognizance or perform community service work. The appellant’s solicitor also detailed the appellant’s personal circumstances and emphasised that he resided with his elderly father, who was undergoing treatment for bowel cancer. The appellant was his father’s sole carer and it was submitted that should the appellant be imprisoned his father would be adversely affected.
[8] Appellant’s Appeal Book, Exhibit VFC-4.
The appellant’s solicitor contended that he had not demonstrated a ‘continual, blatant or conscious disregard for the conditions of the order.’ Rather, the appellant is a man who suffers from long-term addiction and had, on occasions, relapsed, but he had also abstained from drug use as shown by the numerous tests which were negative for illicit drugs. Further, the appellant requested that he be placed on supervised bail showing his commitment to rehabilitation. It was submitted that the appellant had continued to attend supervision and engage with his supervisor, and that there was no allegation of further offending. It was argued that principles of specific deterrence did not demand that the imprisonment be served, given that the appellant had not offended since 2016.
As to the addendum progress report, counsel for the appellant sent an email to the appellant’s Community Corrections Officer on 25 November 2020, requesting a copy of the report. The Community Corrections Officer advised that he had not been made aware of any court order for such a report, and provided a brief written update as to the appellants progress in the following terms:[9]
I can add little to the report I lodged on 21/10/20, as little has changed.
There have been two more drug tests performed, both negative (29/10/20 & 05/11/20), two face to face supervision sessions and another supervision sessions conducted via phone as a result of COVID-19 restrictions (total of 3). Mr Oatley continues to report as directed.
[9] Appellant’s Appeal Book, Exhibit VFC-5 email dated 25 November 2020 from Mark Harris, Community Corrections Officer to Vanessa Cream.
The appellant’s solicitor forwarded this written response to the Magistrate. The Magistrate’s clerk inquired of the appellant’s solicitor whether she required a further report be ordered. Counsel responded by email that:[10]
I definitely don’t require a further report unless his Honour is considering revoking the order … If HH is minded to after reading the written submissions though, I would be seeking a further report.
[10] Appellant’s Appeal Book, Exhibit VFC-6 email dated 26 November 2020 from Vanessa Cream to Carla Graham.
The appellant appeared before the Magistrate on 7 December 2020. The Magistrate did not raise the issue of the addendum report, nor did counsel. His Honour then delivered ex-tempore remarks before revoking the recognizance release order and ordering that the appellant serves the sentence of 16 months imprisonment. The Magistrate’s remarks in full were as follows:[11]
Since our last hearing I have received written submissions from prosecution and Ms Cream and I have considered them and I have read all of the documents which have been provided to me, starting with Judge Hribal’s sentencing submissions and also I have read the ongoing progress reports from the Department for Correctional Services. I have read the submissions from prosecution and from Ms Cream. I do not intend to repeat all of it. Really there is no point in repeating all of it here.
Just briefly what I am going to concentrate on is as follows. You were sentenced on 2 May 2019 to a term of imprisonment of 16 months which was suspended upon you entering into a bond to be of good behaviour for the entire period. The conditions were you were to be under supervision of the Department of Corrections and you were not to consume any drugs. You have not complied, or at least you have not complied completely and the breaches in particular, have been five positive urine tests, positive for methamphetamine. You have also failed to undertake psychological counselling.
On the positive side, you have not reoffended, you have returned many negative samples, in fact the positive ones are outweighed by the negative, and you have reported regularly to Corrections, but you have not engaged in the counselling as directed.
You are in breach, and what is put to me by Ms Cream is I should look at the positives rather than the negatives and I should give you credit for the fact that you have complied mainly by returning negative tests, you have reported which is to your credit and I should take that into account and there are good reasons for your failure to engage in the counselling. You fear engaging in the counselling will open you up to influences which may result in your drug problem returning.
I have taken all of those things into account and after considering all of the above, my view is that the offending was serious. The requirements of the bond were in my view, lenient and the Judge gave you an opportunity to reform and although you have partly complied, you have only partly complied. The failure to comply fully is, in my view, fatal and I think the only appropriate way to deal with it is to revoke the suspension and I do.
[11] Remarks on Penalty of Magistrate Fahey dated 7 December 2020.
Consideration
It is convenient to deal with the second ground of appeal first.
Ground 2
The appellant contends that the Magistrate erred in failing to find there was a reasonable cause or excuse for the breaches, and as it follows, take no action.
On 14 February 2020, an Information was filed pursuant to s 20A of the Crimes Act alleging that the appellant, without reasonable cause or excuse, failed to comply with conditions 1, 2 and 4 of the recognizance release order made on 2 May 2019, by returning positive urinalysis results for illicit drugs. The Originating Information and Summons specifically refers to the defendant ‘without reasonable cause or excuse’ having failed to comply with conditions of the order.
The appellant acknowledges that he admitted breaching the recognizance release order by returning urinalysis results which tested positive for amphetamine and methamphetamine, in contravention of condition 4 of the order, before a Magistrate on 28 August 2020. In doing so, the appellant did not merely acknowledge returning positive urinalysis results for illicit drugs, but also admitted failing, without reasonable cause or excuse, to observe a condition of the recognizance release order.
A defendant’s lack of reasonable cause or excuse for an alleged breach of a recognizance release order is a condition precedent to the court’s power to act under s 20A(5) of the Crimes Act. The relevant text of the section makes this plain. It follows that the court’s power to make an order under the section is predicated on the court being satisfied that there was no reasonable cause or excuse for the breaching conduct, whether that matter is established by way of a defendant’s admission or a factual finding by the court.
As explained by Perry J in Sweeney v Corporate Security Group Pty Ltd (‘Sweeney’):[12]
In s 20A(5) the court must first be satisfied that the defendant's failure is “without reasonable cause or excuse”. Once the court is so satisfied, the terms in which the five options which define the nature of the various orders which may in that event be made, are not, in my view, expressed in language which suggests that the option of activating that part of the sentence of imprisonment which has not at that stage been served, is necessarily the predominant option, or the starting point in considering the course to be followed.
Rather, I think that once the discretion is invoked, which will only be the case where the court is satisfied that the failure by the defendant is “without reasonable cause or excuse”, the court should simply select whichever of the options available to it as seem to be appropriate, having regard to all relevant circumstances of the particular case.
[12] [2003] SASC 324 at [159]-[160].
The appellant by his own admission acted without reasonable cause or excuse in contravening his recognizance release order by returning five positive urinalysis tests for amphetamine and methamphetamine.
On appeal, the appellant’s counsel relied on several matters in submitting that the appellant had ‘reasonable cause and excuse’ for failing to comply with the order. They included the appellant’s positive engagement with supervision; that his relapses into drug use needed to be viewed in the context of a longstanding drug addiction and the many negative urinalysis results; and that he had not re-offended in over four years. None of those matters taken in isolation or looked at cumulatively would provide a basis for finding the appellant had a reasonable cause or excuse to contravene his recognizance release order by returning positive urinalysis samples. I do not accept the submission that a defendant addicted to drugs has a reasonable cause or excuse for failing to comply with an abstinence condition because of the inherent likelihood of a relapse. To do so would render the abstinence condition meaningless.
I would dismiss this ground of appeal.
Those matters said to justify a finding that the appellant acted with reasonable cause or excuse were however still relevant to the exercise of the Magistrate’s discretion under s 20(5) of the Crimes Act, and on this appeal, relevant to the question as to whether the sentencing Magistrate erred in revoking the recognizance release order and activating the sentence of 16 months imprisonment, rather than exercising one of the other options available under the section.
Grounds 1 and 3
It is convenient to deal with appeal grounds 1 and 3 together.
The appellant submitted that the Magistrate erred in revoking the recognizance release order and bringing into effect the 16 months imprisonment, or in the alternative the Magistrate erred in failing to instead exercise any of the other options available under s 20A(5) of the Crimes Act.
In effect, the appellant submitted that the appellant was largely rehabilitated by virtue of not having re-offended for over four years and having provided numerous negative urinalysis results indicating long periods of abstinence from drugs. As such, it was submitted the Magistrate was in error in ordering that the appellant serves the sentence.
The powers under s 20A(5)(c) of the Crimes Act involve the exercise of a judicial discretion. Upon a court being satisfied that a defendant has, without reasonable excuse or cause, failed to comply with a condition of the recognizance release order, the powers set out in s 20(A)(5)(c) of the Crimes Act are enlivened.
The appellant has made two specific allegations of error in the process undertaken by the Magistrate. Counsel submitted that first, the Magistrate failed to have regard to the appellant’s rehabilitation and secondly, that his Honour gave consideration to an irrelevant matter, namely the seriousness of the original offences and the leniency afforded to the appellant in sentencing for the original offences. In my view, neither criticism can be sustained.
The Magistrate referred specifically to the appellant’s rehabilitation. His Honour said:
On the positive side, you have not re-offended, you have returned many negative samples, in fact the positive ones are outweighed by the negative, and you have reported regularly to Corrections, but you have not engaged in the counselling as directed.
Further, the Magistrate received extensive written submissions from both parties, in which they addressed this topic.
In his ex-tempore remarks, the Magistrate says that he took the written submissions into account. The Magistrate also had the benefit of a progress report from the appellant’s Community Corrections Officer. His Honour referred to the positive aspects of that report, the appellant’s compliance with supervision and his lack of re-offending.
As to the second criticism, it is clear that the Magistrate’s remarks about the seriousness of the original offences were made in the context of the appellant’s prospects of rehabilitation, in that the appellant only partially complied with what the Magistrate considered a lenient sentence. That was a relevant consideration when the Magistrate ultimately came to consider whether revoking the recognizance release order and activating the sentence was appropriate and just.
It is important to emphasise that the Magistrate had the benefit of full written submissions from both parties and adjourned the matter for that material to be placed before the Court and to fully consider the matter. In oral submissions, on 23 October 2020, prosecuting counsel quite fairly and carefully explained to the Magistrate his powers and other options under s 20A(5) of the Crimes Act, whilst submitting that the CDPP’s position was that the recognizance release order should be revoked and the term of imprisonment activated.
I am satisfied that the Magistrate considered all relevant matters and did not taken into account any irrelevant matter or make an error of fact or law (putting to one side for the moment appeal ground 5 and the addendum progress report). The appellant is therefore required to demonstrate an error of the type stated in the House v King,[13] such that the discretion to revoke the recognizance release order and activate the period of imprisonment was unreasonable or plainly unjust. It is insufficient for a court on appeal to reach a different conclusion about the disposition of the matter to justify interference with the order of the Magistrate.
[13] (1936) 55 CLR 499.

I am not satisfied that the Magistrate’s order was unreasonable or plainly unjust such that it cannot be regarded as a proper exercise of the discretion. The appellant had a long-standing drug addiction, which was causally linked to the offending, and to his past offences of armed robbery and robbery for which he was sentenced to a term of imprisonment, partially suspended in 2013. The appellant’s drug use was an important criminogenic factor in his committing the offences and directly relevant to his prospects of rehabilitation. The appellant was extended leniency by the Chief Magistrate in sentencing for the offences in part, it appears, because of the appellant’s drug rehabilitation. Whilst the appellant has engaged with supervision, and returned numerous negative tests for illicit drug use, he has also returned five positive tests for illicit drugs over a period of eight months. He was given a warning as to the consequences of taking illicit drugs during the term of the recognizance release order.[14] Further, the appellant returned a positive urinalysis for illicit drugs after being placed on a supervised bail agreement, at the request of his counsel, to demonstrate his commitment to rehabilitation. The appellant has also on two occasions failed to engage with the Matrix drug rehabilitation program, which was also relevant to his ongoing prospects of rehabilitation.
[14] Letter of Mark Harris, Community Corrections Officer, to Mr Darren Oatley dated 4 September 2019 as contained within the Appeal Book of the Appellant.
In Antakaris v The Queen,[15] the Court of Criminal Appeal considered the question of whether the repeated use of illicit drugs breached a good behaviour condition justifying revocation of a suspended sentence. The appellant in that matter had been place on a suspended sentence good behaviour bond which did not contain an abstinence condition. Blue J (with whom Kelly and Doyle JJ agreed) said:
It may be accepted that an isolated use of methylamphetamine would not necessarily entail such a relapse or amount to a breach of a good behaviour obligation. Similarly, it may be accepted that initial use of methylamphetamine shortly after entering into a bond followed by prolonged abstinence would not necessarily entail such a relapse or amount to a breach of a good behaviour obligation.
In the present case, the appellant consistently relapsed into continuing usage of methylamphetamine. Despite the explicit warning given by the sentencing Judge, the appellant used methylamphetamine in March 2018. In May 2018 she was given a second chance when the breach of original bond was excused. She again used methylamphetamine in May, June, August and December 2018 and January, February, and March 2019. In June 2019 she was given a third chance when the breaches were again excused. She again used methylamphetamine in December 2019 and January, February, April and May 2020. The appellant’s use of methylamphetamine after the Bond was imposed in June 2019, against the background of her earlier breaches, amounted to a clear breach of the good behaviour obligation.
[15] [2020] SASCFC 105.
In the circumstances of this matter, the appellant’s continued use of illicit substances, in the face of warnings as to the consequences of doing so, provided the Magistrate with a sound basis for considering that the breaching conduct was ‘serious’ justifying the ultimate conclusion that the only appropriate action was to revoke the recognizance release order and activate the term of imprisonment.
As Perry J explained in Sweeney:[16]
At the end of the day, it is necessary to stand back and look at the overall result flowing from the exercise of the two discretions, and to pose the question whether the overall result is fair and just.
[16] Sweeney v Corporate Security Group [2003] SASC 324, at [171].
Even allowing for the matters supportive of the appellant, I cannot say that the Magistrate’s decision was unreasonable or plainly unjust. It was well open to the Magistrate to consider the appellant’s breaching conduct as serious and to consider the most appropriate action to be to revoke the recognizance release order and activate the period of imprisonment rather than exercise any other power provided by s 20A(5) of the Crimes Act.
I would dismiss grounds 1 and 3.
Ground 4
The appellant contends that the Magistrate erred in failing to give adequate reasons. The ex-tempore reasons were brief. In his succinct reasons, the Magistrate said that he considered the appellant’s repeated failures to comply with the abstinence condition and the appellant’s failure to take the opportunity to reform meant that the only appropriate order was to revoke the recognizance release order and activate the suspended sentence. Whilst his Honour did not specifically refer to the other alternative orders which could have been made under s 20A(5) of the Crimes Act, those alternatives were fully canvassed in the written submissions of both parties, and his Honour had adjourned proceedings for those submissions to be prepared and said in his remarks that he had taken the written submissions into account. It is not necessarily an error for a Magistrate to fail to mention all sentencing options or orders available under the relevant legislation.[17]
[17] Police v Chilton (2014) 120 SASR 32 at [20]
In this matter, the Magistrate was clearly aware of the other options available under s 20A(5)(c) of the Crimes Act. His Honour made clear in his remarks that he considered the appellant’s failure to fully comply with the bond as ‘fatal’, implicitly rejecting the other alternatives as an appropriate order. In those circumstances, I consider the Magistrate’s reasons adequate, albeit brief.
I would dismiss this ground of appeal.
Ground 5
The appellant contends that the Magistrate erred in proceeding to sentence in the absence of all relevant material, namely the addendum progress report. It is common ground that the Magistrate ordered an addendum progress report on 23 October 2020, and that his Honour’s order was not brought to the attention of the appellant’s Community Corrections Officer. A report was not prepared or received by the court. The appellant’s solicitor, via an email on 26 November 2020, drew the attention of the court to the fact that the report had not been obtained. She said in the email:[18]
I definitely don’t require a further report unless his Honour is considering revoking the order ...
[18] Appellant’s Appeal Book, Exhibit VFC-6 email dated 26 November 2020 from Vanessa Cream to Carla Graham.
However, at the request of the appellant’s solicitor, a written update was prepared in which the Community Corrections Officer said:[19]
… I can add little to the report I lodged on 21/10/20, as little has changed.
There have been two more drug tests performed, both negative (29/10/20 & 05/11/20), two face to face supervision sessions and another supervision session conducted via phone as a result of COVID 19 restrictions (total of 3). Mr Oatley continues to report as directed.
[19] Appellant’s Appeal Book, Exhibit VFC-5 email dated 25 November 2020 from Mark Harris, Community Corrections Officer to Vanessa Cream.
It is unclear on the affidavit material whether the Magistrate saw or considered the written update from the appellant’s Community Corrections Officer. I am prepared to proceed on the basis that the appellant’s solicitor was seeking to obtain additional material to be put before the Magistrate prior to sentence, notwithstanding the somewhat conditional and equivocal response to the Magistrate clerk’s inquiry. However, I do not consider that the written update, or a written report to that effect, would have materially affected the Magistrate’s decision. The appellant had provided two further negative tests, but they were conducted within two weeks of the progress report and reflected the appellant’s pattern of abstinence from drugs for several weeks/months before a relapse. There had not been sufficient time to ascertain whether such a relapse would occur. I do not consider the report would have had any impact on the Magistrate’s decision given the opinion of the Community Corrections Officer that ‘little has changed’.
I would dismiss this ground of appeal.
Ground 6
The appellant contends that the Magistrate erred in enforcing a recognizance release order that was unenforceable because of non-compliance by the Chief Magistrate with ss 16F and 20 of the Crimes Act.
The Chief Magistrate said:[20]
I commence with a sentence of two years that I reduce by 30% for your guilty pleas to 16 months imprisonment.
As the sentence of imprisonment imposed is three years or less, the court must consider making a recognizance release order under s 19AC(1) of the Crimes Act.
I order that you be immediately released on a recognisance release order pursuant to section 20(1)(b) Crimes Act for the term of the sentence in the amount of $500. I impose conditions that you are to be of good behaviour and be under supervision by Community Corrections for the length of the order. You should report forthwith. You are not to consume drugs that are not medically prescribed and be subject to random drug testing. I order Victims of Crime Levies.
[20] Remarks on Penalty of Chief Magistrate Judge Hribal dated 2 May 2019 at [27]-[29].
A transcript of the hearing shows that the Chief Magistrate after imposing sentence said:[21]
So, now, Mr Oatley, what that means is I need to just explain to you. You have been put on a bond, the bond is for the length of the sentence which is 16 months. You are under the supervision of Community Corrections, they have an office in this building. You need to go down and see them and report to them and then they’ll set up a regular reporting regime for you. It may be that they decide that you would be benefitted by some further counselling, it might be they think what you’ve done is sufficient, but you are to be regularly urine tested and you can’t consume any drugs and that is designed to try and provide some sort of incentive for you, if you need any, in order to do the right thing and to stay clean from drug use. If you breach your promise during the time of the bond, then you will be subject to proceedings being laid in relation to the breach and need to come back before the court and the court will consider what should happen in relation to the matter. If you were to commit any further offending, then the matter can also be brought back to court.
[21] Transcript dated 2 May 2019 of Commonwealth Director of Public Prosecutions v Darren Edward Oatley (AMC-18-8569) before Chief Magistrate Hribal, p 12.
The appellant then signed a recognizance release order in which he acknowledged having had explained to him: the purpose and effect of the order; and the consequences that may follow if he failed without reasonable excuse to comply with the conditions of the order; and that the order may be discharged or varied under s 20AA of the Crimes Act.
The appellant swore an affidavit in which he asserts that the Chief Magistrate ‘did not tell me what would happen if I didn’t comply with the order.’[22] He also asserts that ‘at no point did the Justice of the Peace advise me of the consequence that may follow if I failed to comply with the condition of the order.’[23]
[22] Sworn Affidavit of Darren Edward Oatley dated 9 February 2021 at [4].
[23] Sworn Affidavit of Darren Edward Oatley dated 9 February 2021 at [9].
There was no suggestion on the affidavit material, or in submissions by his counsel on appeal, that the appellant did not understand the conditions of the order or the consequences of non-compliance. This was not the appellant’s first court appearance and he had in the past been the subject of a partially suspended sentence. He was clearly familiar with analogous orders.
I am satisfied that there was compliance with ss 16F and 20(2) of the Crimes Act. The Chief Magistrate clearly told the appellant that should he breach his promise to the Court, he would be subject to further proceedings being laid in relation to the breach and he would need to come back before the Court and the Court would consider what consequences would occur. Whilst her Honour did not specifically say that the Court could order the appellant serve the sentence of imprisonment as much was implicit in her remarks to the appellant. The appellant then signed the recognizance release order acknowledging that those consequences had been explained to him.
In any event, a failure to explain the consequences of breaching the recognizance release order does not invalidate or render the order unenforceable. This issue was considered in R v Hutton[24] where the appellant submitted that the requirements of s 16F of the Crimes Act are mandatory and that a failure on the part of a sentencing Judge to comply strictly with the requirements of the section renders any sentence passed by that Judge as a nullity. That argument was rejected by the New South Wales Court of Criminal Appeal. I respectfully agree with the reasoning of Sully J, (with whom Simpson and Sperling JJ agreed). His Honour said:[25]
[24] [2004] NSWCCA 60.
[25] R v Hutton [2004] NSWCCA 60 at [23]-[27].
If the argument now advanced for the applicant be correct, then a sentence which was wholly unassailable in terms of its basic reasoning and structure would become wholly invalid should the sentencing Judge overlook the requirements of sections16F; or purport to comply with s 16F but without following with pedantic exactness each and every one of the steps nominated in, relevantly subs (1). Such a proposition entails some odd consequences.
First, there is this simple practical consideration: at what precise point does the alleged nullity become effective? Is it the point at which the sentencing Judge, sentence having been passed, directs the removal of the prisoner from the court and into the custody of the Correctional Services authorities? Or is it the point at which the Judge, the prisoner having been removed after the passing of sentence, formally adjourns the court? Or is it the point at which the prisoner is actually removed from the precincts of the court so as to prevent his being called back urgently by the sentencing Judge, the Judge either having reminded himself, or having been reminded by others, of the requirements of s 16F? Why, in any event, could the Judge not bring the prisoner back on some subsequent day in order to fulfil the requirements of s 16F? And if that be a possibility, then what are the practical temporal limitations upon the Judge’s taking that course?
Second, there is a more fundamental conceptual problem with what is now submitted for the applicant. As previously pointed out, if the applicant’s present submission be correct, then it does not matter that the sentence in fact passed is wholly unexceptionable in its underlying reasoning and structure. A mere inadvertence in the matter of complying with s 16F would be sufficient to render that sentence, otherwise impeccable, a complete nullity.
The short answer to that proposition is to be found, in my opinion, in the following principle of statutory construction, taken from the judgment of Barwick CJ in Tickle Industries Pty Ltd v Hann & Anor:
It is, in my opinion, a sound rule of statutory construction that a meaning of the language employed by the Legislature which would produce an unjust or capricious result is to be avoided. Unless the statutory language is intractable, an intention to produce by its legislation an unjust or capricious result should not be attributed to the Legislature.
The point now taken by the applicant, when tested by the application to it of that principle of statutory construction, cannot, in my opinion, be accepted.
(Citation omitted)
In this appeal, the appellant relied on the authority of Commonwealth Director of Public Prosecutions v Cole[26] (‘Cole’). The recognizance release order in Cole was held to be a nullity primarily because it had been placed on a State suspended sentence bond form, which erroneously described the nature of the order and the consequences of failing to comply with it. No such issue arises in this matter.
[26] [2005] SASC 188.
I consider that the Chief Magistrate complied sufficiently with the legislative requirements of ss 16F and 20(2) of the Crimes Act and in any event, a failure to do so would not have rendered the order a nullity or unenforceable.
I would dismiss this ground of appeal.
Conclusion
I dismiss the appeal.