PEEL v Police - [2020] SASC 48

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PEEL v POLICE
[2020] SASC 48
Judgment of The Honourable Auxiliary Justice David
7 April 2020
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appeal against sentence.
The appellant was convicted of a number of offences including breaching an intervention order. The sentence was partially suspended and following a term of imprisonment he was released on a suspended sentence bond. The appellant was found to have breached the terms of the suspended sentence bond. In revoking the bond, the Sentencing Magistrate noted that there would otherwise be good reason to excuse the breach but had regard to the appellant’s continual disregard of court orders and antecedent history. The appellant appealed on the basis that the Sentencing Magistrate erred in the exercise of his discretion pursuant to s 114 of the Sentencing Act 2017 to consider whether there were proper grounds to excuse the breach.
Held, per David AJ, allowing the appeal:
The question of whether proper grounds exist for excusing a breach of a bond is to be confined to the nature of the breach itself without any consideration of matters personal to the offender.
Sentencing Act 2017 (SA) s 114, referred to.
Police v Heritage [2019] SASCFC 60, applied.
R v Buckman (1988) 47 SASR 303, discussed.

PEEL v POLICE
[2020] SASC 48
Magistrates Appeal: Criminal

DAVID AJ: This is an appeal against an order of a Magistrate revoking a suspended sentence bond of three months and 15 days and ordering that that period of imprisonment be served by the appellant.
Background
On 2 September 2019, the appellant was convicted of two counts of contravening a term of an intervention order, aggravated assault, failing to comply with a bail agreement and driving under disqualification or suspension. He was sentenced to four months and 15 days imprisonment to be released after serving one month’s imprisonment with the balance to be suspended - upon entering into a 15-month good behaviour bond. The sentence was backdated to 14 August 2019 and the appellant entered into the bond on 13 September 2019.
Since 17 October 2016, the appellant was the subject of an intervention order in respect of a protected person (“P”). Condition 3 of the intervention order read “the defendant must not be within 100 metres of the protected person(s)”. On 23 October 2019, the police attended a property and located the appellant with P in the front yard of a property of relatives of the appellant. The next day, on 24 October 2019, the appellant was found to have breached the good behaviour bond and convicted of contravening a term of the intervention order. The Magistrate sentenced the appellant to a term of three weeks imprisonment for the charge of contravening a term…

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 PEEL v Police

Details

AGLC: PEEL v Police [2020] SASC 48
Case: [2020] SASC 48
Decision Date: 7 April 2020

CaseChat Overview and Summary

The respondent, Police, appealed against a decision by the sentencing Magistrate to revoke a suspended sentence of imprisonment imposed on the appellant, Mr Peel. The sentencing Magistrate had revoked the suspended sentence after Mr Peel breached the conditions of the suspension by contravening a family protection order. Mr Peel's appeal was based on the proposition that the sentencing Magistrate had erred in taking into account his previous offending when determining whether proper grounds for excusing the breach existed. The appeal was heard in the South Australian District Court, before the Honourable Justice McCauley.

The appeal raised the question of whether the sentencing Magistrate erred in taking into account Mr Peel's previous like offending when considering whether proper grounds for excusing the breach of the family protection order existed. The court noted that it had previously held that the consideration of whether there are proper grounds for excusing a breach is to be confined to the nature of the breach itself without any consideration of matters personal to the offender. The court also noted that the similarity between the original offending and the offending which constitutes the breach is a factor to be taken into account. The court held that the sentencing Magistrate had gone further and was influenced by the appellant's previous like offending, which was an error.

The court allowed the appeal and set aside the order of the sentencing Magistrate to revoke the suspended sentence. The court held that the breach itself was of such a nature that proper grounds for excusing the breach had been made out. The court will hear the parties as to what further orders should be made. The appeal was allowed on the basis that the sentencing Magistrate had erred in taking into account Mr Peel's previous like offending when determining whether proper grounds for excusing the breach existed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Fursa further argued that the breaching offence, to a certain extent, involved behaviour the same as the original offending for which the suspended sentence bond was imposed. It is to be observed that the original sentence involved a number of offences, which included two counts of contravening the terms of an intervention order. He argues that that factor mitigates against a finding that there were proper grounds to excuse the breach. He referred to the decision of Nicholson J in Duff v Police[4] (“Duff”) where his Honour said:[5]The fact that the appellant has offended again with respect to the very type of offending that the suspended sentence was intended to deter, is a factor in favour of revocation and a factor that can limit the extent to which any lack of proportionality might otherwise be relied on to avoid revocation.(Footnote omitted)[4] [2015] SASC 24.[5] [2015] SASC 24 at [21].Consideration The question whether there are proper grounds for excusing the breach is to be confined to the nature of the breach itself without any consideration of matters personal to the offender. That principle has been clearly stated in Heritage. That is not inconsistent from the principle stated in Duff, namely that the similarity between the original offending and the offending which constitutes the breach is clearly a factor to be taken into account. However, the Magistrate in the present case went further and was influenced by the previous like offending of the appellant. The sentencing Magistrate acknowledged that the nature of the breach, although not technically trivial, was such that without the addition of his previous behaviour, there would be proper grounds to excuse it. In going further and taking into account his previous record when considering whether there are proper grounds for excusing the breach, he has erred. In looking at the matter afresh and confining my considerations to the breach itself, I agree with the Magistrate that it was of such a nature that proper grounds for excusing the breach has been made out. I allow the appeal. The order of the sentencing Magistrate to revoke the period of three months and 15 days which was suspended is set aside. I will hear the parties as to what further orders should be made.