PAPPS v The Queen

[2019] SASCFC 136

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

PAPPS v THE QUEEN

[2019] SASCFC 136

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Parker)

31 October 2019

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

Appeal against sentence imposed in the District Court.

The appeal is against the decision of the Chief Judge to revoke the suspension of a sentence of imprisonment for two years, nine months and three weeks with a non-parole period of 22 months for the offences of trafficking in a controlled drug and possessing a prescription drug, and order that the sentence be carried into effect pursuant to s 114(1)(d) of the Sentencing Act 2017 (SA) (the Act).

The sole ground of appeal is that the sentencing judge erred by proceeding in respect of alleged (and erroneously admitted) breaches of a bond dated 28 July 2017 which, it is submitted, was no longer in force at the time of the alleged breaches. The appellant contends that a summons purportedly issued pursuant to s 113(1)(a)(i) of the Act was defective on the same basis, namely, that it alleged breach of a bond not in force at the time of the alleged breaches, and accordingly the probationer was not properly before the Court. It also followed that the suspension of her sentence was revoked upon a purported admission to the breach of a bond that was not in force at the time of the alleged breaches.

Held, per Stanley J (Kelly and Parker JJ agreeing):

1.  The variation to the original bond on 24 August 2018 did not constitute an entry into a new bond. The original bond entered into on 28 July 2017 was in force at the time of the alleged breaches.

2.  No error has been identified in the judge’s decision to order that the suspension of sentence be revoked and the sentence be carried into effect.

3.  Appeal dismissed.

Sentencing Act 2017 (SA) s 103(8), 113, 114, referred to.

PAPPS v THE QUEEN
[2019] SASCFC 136

Court of Criminal Appeal:  Kelly, Stanley and Parker JJ

1. KELLY J:             I would dismiss the appeal.  I agree with the reasons of Stanley J.

   STANLEY J:

   Introduction

2. This is an appeal against sentence. The appeal is against the decision of the Chief Judge to revoke the suspension of a sentence of imprisonment and order that the sentence be carried into effect pursuant to s 114(1)(d) of the Sentencing Act 2017 (SA) (the Act).

3. The sole ground of appeal is that the sentencing judge erred by proceeding in respect of alleged (and erroneously admitted) breaches of a bond dated 28 July 2017 which, it is submitted, was no longer in force at the time of the alleged breaches.

4. The appellant contends that a summons purportedly issued pursuant to s 113(1)(a)(i) of the Act was defective on the same basis, namely, that it alleged breach of a bond not in force at the time of the alleged breaches, and accordingly the probationer was not properly before the Court. It also followed that the suspension of her sentence was revoked upon a purported admission to the breach of a bond that was not in force at the time of the alleged breaches.

5. In order to understand the issue on appeal it is necessary to refer to the chronology of events including entry into the bond, its variation and breach.

   Chronology

6. On 28 July 2017 the appellant was sentenced for one count of trafficking in a controlled drug (4.87 grams of methylamphetamine) and one count of possessing a prescription drug.  A conviction without penalty was imposed for the latter offence.  For the offence of trafficking, the appellant was sentenced to imprisonment for two years, nine months and three weeks with a non-parole period of 22 months.  The sentence was suspended upon entry into a bond to be of good behaviour.  The length of the bond was three years starting from 28 July 2017 when the appellant signed the bond.  The conditions of the bond included that the appellant be under the supervision of a community corrections officer for a period of 18 months and obey the lawful directions given by that officer; that the appellant not consume any drug which was not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage; that she submit to any random drug testing as directed by the community corrections officer assigned to supervise her and sign all required forms and comply with the requirements of the testing procedures; and that she perform 50 hours of community service within 12 months of the date of the bond.  

7. On 24 August 2018 the appellant was dealt with for breach of the bond by, inter alia, the use of methylamphetamine. The breach was excused and the conditions of the bond varied pursuant to s 114(3)(a) of the Act.

8. The conditions of the bond were varied by deleting the condition requiring the appellant to perform 50 hours of community service and extending by two years the period under which the appellant was to be supervised by a community corrections officer.  Judge David ordered that the conditions of the bond entered on 28 July 2017 were varied and the appellant and Judge David signed a document entitled “Variation of Suspended Sentence Bond”.  That document set out the varied conditions and identified the bond as relating to the offence of trafficking in a controlled drug for which the Court had imposed a sentence of two years, nine months and three weeks with a non-parole period of 22 months.  The document also identified the length of the bond as being three years starting from 28 July 2017.

9. On 30 April 2019 the Director of Public Prosecutions filed an application for enforcement of a breached bond, attaching a supporting affidavit of Kerys Bailey. On 3 May 2019 the District Court issued a summons, pursuant to s 113(1)(a)(i) of the Act requiring the appellant to appear and answer an allegation that the appellant had failed to comply with a condition of the bond entered into on 28 July 2017.

10. On 25 July 2019 the Chief Judge revoked the suspension of the sentence of imprisonment.  The Chief Judge did so on the basis of the appellant’s admission that she had failed to comply with the condition of the bond entered into on 28 July 2017, and the evidence in the affidavit of Ms Bailey.  That affidavit provided:

    1.On the 28^th day of July 2017 a Judge, sitting in the District Court Adelaide found Suzanne Alison PAPPS         guilty of Trafficking In A Controlled Drug full details of which are contained in file number DCCRM-16-1739 (Variation DCCRM‑18‑898).

    2.On 24^th day of August 2018 the said Judge placed Suzanne Alison PAPPS on a Variation of the Bond, a copy of which is annexed hereto and marked with the letter A.

    As part of my duties I was assigned to supervise Suzanne Alison PAPPS

    3.Condition 4 of the bond is:

    That you be under the supervision of a Community Corrections Officer for a period of 2 years and obey the lawful directions given to you by the Community Corrections Officer to whom you are assigned for the purposes of supervision and during that period of supervision not leave the State for any reason except in accordance with the written permission of the Chief Executive Officer for the Department of Correctional Services.

    Condition 9 of the bond is:

    That you do not consume any drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage and that you submit to any random drug testing as directed by the Community Corrections Officer assigned to supervise you and sign all required forms and comply with the requirements of the testing procedures.

    4.On the 2^nd day of October 2018 at 12.45pm Suzanne Alison PAPPS attended the Noarlunga Community Correctional Centre and was compliant with testing procedures the SA Pathology Result was ositive [sic] to Amphetamine and Codeine.  The Codeine result was consistent with declared medication.  A copy of the exhibit is annexed hereto and marked with the letter B.

    5.On the 19^th day of November 2018 Suzanne Alison PAPPS attended the Noarlunga Community Correctional Centre as scheduled.  A further appointment was made for her to attend for supervision on the 28^th day of November 2018.

    6.On the 28^th day of November 2018 Suzanne Alison PAPPS did not report for supervision as scheduled.

    7.On the 5^th day of December 2018 phone calls were made to the nominated phone number of Suzanne Alison PAPPS ………….., with a direction to report for supervision and urine testing on the 6^th day of December 2018 at 9.30am.

    8.On the 6^th day of December 2018 Suzanne Alison PAPPS failed to report for supervision and urine testing as scheduled.  A refusal to attend for urine testing has been recorded on the Justice Information System (JIS).

    9.On the 11^th day of December 2018 a letter was sent to the nominated residence of Suzanne Alison PAPPS with an appointment for the 19^th day of December 2018 at 10am.  A copy of the exhibit is annexed hereto and marked with the letter C.

    10.On the 19^th day of December 2018 Suzanne Alison PAPPS failed to attend for supervision and a failure to attend for urine testing is recorded on JIS.

    11.On the 28^th day of December 2018 a Final Warning letter was sent to the nominated residence of Suzanne Alison PAPPS with an appointment for the 7^th day of January 2019 at 10am.  A copy of the exhibit is annexed hereto and marked with the letter C.

    12.On the 7^th day of January 2019 Suzanne Alison PAPPS telephoned the Noarlunga Community Correctional Centre and advised she was incapacitated due to a back injury and could not report for supervision.  A further appointment was schedule for the 16^th day of January 2019 at 10am.

    13.On the 16^th day of January 2019 Suzanne Alison PAPPS reported for supervision she advised that she had been using illicit substances, had neighbour issues at home and she had “gone off the rails”.  Suzanne Alison PAPPS was given a further supervision appointment for the 30^th day of January 2019 at 10am.  Suzanne Alison PAPPS was given a direction to attend for urine testing on the 17^th day of January 2019, she attended between 10.30am and 10.40am. The result was negative to illicit substances.

    14.On the 30^th day of January 2019 Suzanne Alison PAPPS failed to attend the scheduled supervision appointment.

    15.On the 4^th day of February 2019 Suzanne Alison PAPPS telephoned the Noarlunga Community Correctional Centre and an appointment was made for her to report for supervision on the 6^th day of February 2019 at 10am.

    16.On the 6^th day of February 2019 Suzanne Alison PAPPS failed to attend the schedule supervision appointment.

    17.On the 18^th day of February 2019 Suzanne Alison PAPPS telephoned the Noarlunga Community Correctional Centre.  Attempts to contact Suzanne Alison PAPPS by telephone on the 19^th February 2019 went unanswered.  An email sms was sent with an appointment for 20^th February 2019 at 11am.  Suzanne Alison PAPPS did repond [sic] by telephone and the appointment was changed from 11am to 9am.

    18.On the 20^th February 2019 Suzanne Alison PAPPS telephone and advised she was unwell and was having surgery on the 22^nd February 2019.  A supervision appointment was scheduled for the 21^st February 2019 at 9am.

    19.On the 21^st February 2019 Suzanne Alison PAPPS failed to attend for the scheduled supervision appointment.

    20.On the 26^th February 2019 a Warning letter was sent to the nominated residence of Suzanne Alison PAPPS with an appointment for the 6^th day of March 2019 at 10am.  A copy of the exhibit is annexed hereto and marked with the letter C.

    21.On the 6^th day of March 2019 Suzanne Alison PAPPS failed to report for supervision.  An email sms was sent advising that she had missed her appointment and that she was to report for testing and supervision prior to 3pm that day.  Suzanne Alison PAPPS did not attend for supervision or urine testing and a refusal to attend for urine testing is recorded on JIS.

    22.On the 7^th day of March 2019 Suzanne Alison PAPPS telephone the Noarlunga Community Correctional Centre and advised she had only got the text message on her telepone [sic] that morning.  She stated she had been incapacitated and would provide medical documentation when she attends on the 13^th day fo [sic] March 2019 at 10am.

    23.On the 13^th day of March 2019 at 10.30am Suzanne Alison PAPPS telephoned the Noarlunga Community Correctional Centre and advised she had overslept and would go to Centrelink and then attend for supervision at 12.30pm.  Suzanne Alison PAPPS did not attend for supervision as scheduled.

    24.On the 14^th day of March 2019 Suzanne Alison PAPPS telephone [sic] the Noarlunga Community Correctional Centre she apologised for not attending supervision the day previously as she had issues with transport.  She attended for supervision later that day and documentation was provided to show that she had surgery on the 22^nd day of February 2019.  She advised of having ongoing health issues.  She advised of using illicit substances post surgery.  A further supervision appointment was made for 27^th day of March 2019 at 10am.  At 12.30pm Suzanne Alison PAPPS was compliant with urine testing procedures.  The SA Pathology result indicates a positive result to Methamphetamine and Amphetamine.  A copy of the exhibit is annexed hereto and marked with the letter B.

    25.On the 27^th day of March 2019 Suzanne Alison PAPPS did not report for supervision.

    26.A copy of the Offender Sign In Record exhibit for Suzanne Alison PAPPS is annexed hereto and marked with the letter D.

    The statutory scheme

11. Section 113 of the Act relevantly provides:

    113—Non‑compliance with bond

    (1)     If it appears to a probative court, by evidence given on oath, that a probationer may have failed to comply with a condition of the probationer's bond, the court—

    (a)     may—

    (i)issue a summons to the probationer requiring the probationer to appear before the court at the time and place specified in the summons; or

    (ii)    issue a warrant for the probationer's arrest; and

    (b)     may issue a summons to a guarantor.

    …

    (6)     The court dealing with a probationer for breach of condition must hear any evidence adduced tending to establish that the probationer has failed to comply with a condition of the bond and any evidence or representations that the probationer may wish to adduce or make in reply.

12. Section 114 of the Act relevantly provides:

    114—Orders that court may make on breach of bond

    (1)     If the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—

    (a)may, if the bond requires the probationer to pay a sum in the event of non‑compliance with a condition of the bond, order the probationer to pay the whole or a part of that sum; or

    (b)may order a guarantor to pay the whole or a part of the amount due under the guarantee; or

    (c)may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond—

    (i)sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or

    (ii)if 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 on which the failure should be excused, refrain from taking any action in respect of the failure; or

    (d)if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.

    …

    (3)     If 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 on which the failure should be excused, the court may refrain from revoking the suspension and—

    (a)in the case of a bond requiring performance of community service—may—

    (i)extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or

    (ii)extend the period within which any uncompleted hours of community service must be performed by not more than 6 months; or

    (iii)if the period within which the community service must be performed has expired, impose a period of not more than 6 months within which any uncompleted hours of community service must be performed; or

    (iv)cancel the whole or a number of any unperformed hours of community service; or

    (v)     revoke or vary any other condition of the bond; and

    (b)     in the case of any other bond—may—

    (i)extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or

    (ii)impose a condition on the bond requiring the probationer to perform a specified number of hours of community service; or

    (iii)     revoke or vary any other condition of the bond; and

    (c)if the bond has expired in any case—may require the probationer to enter into a further bond, the term of which must not exceed 12 months.

    Consideration

13. The disposition of this appeal turns on whether the bond entered into on 28 July 2017 was still in force at the time of the breaches of the bond relied upon by the Chief Judge in revoking the suspended sentence of imprisonment.  The appellant contends that the bond entered into on 28 July 2017 was superseded and, therefore, of no effect by the time of the alleged breaches because of the variation to that bond which occurred on 24 August 2018. 

14. I do not accept this submission. 

15. At issue is a matter of statutory construction. 

16. A textual analysis of s 114 does not support the appellant’s submission.

17. Both the use of the definite article in s 114, particularly in s 114(3)(a)(v) and the use of the indefinite article in the reference to “a further bond” in s 114(3)(c) are cogent textual indicia favouring a construction of these provisions to the effect that a bond as varied by subsequent order of the Court remains the original bond for the purpose of s 113 and s 114. That construction is reinforced by the very nature of a variation which logically must act upon an existing instrument. To vary a bond is not to extinguish it.

18. The nature of the order made in the exercise of s 114(3)(a)(v) is to be contrasted with an order made in the exercise of the power conferred by s 114(3)(c). The power conferred by the latter provision is available when a bond has expired at the time the Court comes to deal with the breach. The Act authorises the Court to require the probationer to enter into a further bond where the bond has expired. The text of s 114(3)(c) evinces a legislative intention that in those particular circumstances a probationer enters into a new bond, distinct from the expired bond. The text of the provision makes this clear by the use of the indefinite article.

19. Orders made pursuant to s 114(3)(a) can also be contrasted with the separate power conferred by s 103(8) of the Act to discharge a bond on application of a probationer. Section 103(8) provides:

    103—Variation or discharge of bond

    …

    (8)If a probative court is satisfied, on the application of a probationer, that it is no longer necessary for the probationer to remain subject to the bond, the court may, by order, discharge the bond.

1. What occurred on 24 August 2018 was not the extinguishment of the bond entered into on 28 July 2017 and the entry into a new bond but, rather, the variation of the bond entered into on 28 July 2017 as contemplated by s 114(3)(a)(v).

2. This construction of the statute is supported by the evidence of the terms of the variation which occurred on 24 August 2018.  The bond document itself is entitled a “variation”.  The text refers to “details of your bond, as varied”.  Further, the length of the bond term is prescribed as three years, “starting from 28 July 2017”.  None of that is consistent with entry into a new bond. 

3. For these reasons, I reject the appellant’s submission that the effect of the variation of 24 August 2018 was to create a further and separate bond from the bond entered into on 28 July 2017.  Accordingly, I reject the contention that the bond of 28 July 2017 was not in force at the time of the breaches. 

4. As these propositions are central to the appeal, it is unnecessary to consider the further submissions of the appellant in relation to the application and summons.  These submissions are premised upon acceptance of the proposition that the bond of 28 July 2017 was not in effect at the time of the alleged breaches that led to the order revoking the suspension and ordering the sentence imposed on 28 July 2017 be carried into effect.

   Conclusion

5. I would dismiss the appeal.

6. PARKER J:          I would dismiss the appeal.  I agree with the reasons of Stanley J.