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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Oatley v Police

Details

AGLC: Oatley v Police [2021] SASC 40
Case: [2021] SASC 40
Decision Date: 16 April 2021

CaseChat Overview and Summary

The appellant Oatley was convicted of an offence and sentenced to imprisonment of 16 months which was suspended on the condition that he enter into a bond to be of good behaviour for the entire period. The conditions included being under supervision of the Department of Corrections and not consuming any drugs. The appellant was found to have breached the conditions by returning five positive urine tests for methamphetamine and failing to undertake psychological counselling. The appellant appealed against the decision of the Magistrate to revoke the recognizance release order and order that he serve the 16 months imprisonment. The appellant contended that the Magistrate erred in failing to find that there was a reasonable cause or excuse for the breaches and take no action. The appeal was dismissed.

The legal issues in the appeal were whether the Magistrate erred in finding that the appellant had breached the recognizance release order without reasonable cause or excuse, whether the Magistrate erred in revoking the order and ordering the appellant to serve the imprisonment, whether the Magistrate’s reasons were adequate, whether the Magistrate erred in not receiving an addendum progress report before making the order, and whether the original sentencing Magistrate complied with the Crimes Act in explaining the consequences of breaching the order.

The court held that the appellant did not establish that the Magistrate erred in finding that he breached the order without reasonable cause or excuse. The court also held that the Magistrate did not err in revoking the order and ordering the appellant to serve the imprisonment, as the breaches were serious and the appellant had not complied fully with the conditions. The court further held that the Magistrate’s reasons were adequate and that an addendum progress report would not have made any material difference to the decision. Finally, the court held that the original sentencing Magistrate complied with the Crimes Act in explaining the consequences of breaching the order.

The appeal was dismissed. The appellant was ordered to serve the 16 months imprisonment.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I would dismiss this ground of appeal.Conclusion I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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.