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 of the intervention order and at the same time revoked the suspended sentence bond and ordered that the appellant serve the remaining three months and 14 days imprisonment. The appellant was therefore ordered to serve a total sentence of four months and seven days.
An application was made before the sentencing Magistrate for an order pursuant to s 114(1)(c)(ii) of the Sentencing Act 2017 (SA) (“the Act”) that the Magistrate should find there were proper grounds to say that the failure to comply with the conditions of the suspended sentence bond should be excused and that no further action should be taken in respect to that failure. I set out the relevant legislation:
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.
The present appeal is against the order of the sentencing Magistrate not to follow that course. It is to be noted, there is no appeal against the sentence of three weeks imprisonment for the offence of contravening the intervention order.
Matters personal to the appellant
The appellant’s personal background has been thoroughly and carefully set out in the sentencing Magistrate’s reasons on penalty. He is an Indigenous man aged 35 years old, with a very extensive and troubled history in relation to the criminal law. The sentencing Magistrate carefully outlined that history and emphasised the fact that he has, since 2005, many offences for breaching either intervention orders or suspended sentence bonds. In fact, the sentencing Magistrate said the following:
The impression gained with respect to restraining orders and intervention orders and, to a less relevant extent breaching bail, is that you don’t really care whether you comply with those obligations or not.
He also went on to say:
I believe it is clear from that report [the antecedent report] that you are properly regarded as what is called a recidivist offender.
In relation to the present offending, after the appellant had served the one month term of imprisonment imposed upon him in September 2019, he went to Coober Pedy with the intention of staying away from P. He stayed at Coober Pedy for a period of time and then applied for a house in Port Augusta West. He came back to Port Augusta to make investigations about that possibility and took the opportunity of visiting his family. However, whilst visiting his family, P attended. He did not know that she was going to be there and nothing untoward happened between the two of them, although there was a disturbance unrelated to the present matter. He pleaded guilty to breaching the intervention order because his obligation was to leave as soon as P arrived. In other words, this was a chance encounter with P and the offence was committed by not leaving immediately. Counsel argued before the sentencing Magistrate and before me, that the nature of the breach as described is such that there are proper grounds to excuse the breach. There is no suggestion that the failure to comply with the condition of the bond was trivial.
The Magistrate, in his reasons for refusing to excuse the breach went into a great deal of detail about the appellant’s criminal antecedents and then added the following remarks:
Now that is a rather long winded description of many relevant events but in my view it is important that I have done that because the offence yesterday cannot be viewed in isolation. If it were to be viewed in isolation then yes, effectively a chance encounter with [P], you stayed when you shouldn’t have stayed, but nothing threatening or abusive happened possibly the court wouldn’t be too concerned about that. The community wouldn’t be too concerned about that but it didn’t happen in isolation it happened against the background that I have mentioned and I haven’t had the time to canvass the full background but I have tried to highlight relevant aspects of that background.
I have to look at it from a holistic, I am going to look at it from a holistic point of view. You have been in effect a serial offender so far as assaults are concerned. You have been a serial offender so far as breaching orders of the court is concerned. Intervention order are put in place, and in this case this has been in place since 2016, you have had since 2016 or you have had some of that time since 2016 available to you to come to the court and ask for that intervention order to be revoked or varied so that you could be with [P] if that is what you wanted and that is what she wanted but you haven’t done that. Intervention orders are designed to protect persons. If, when they are breached they are not punished effectively then the repute of the court, the integrity of the court will be diminished and we might as well just treat them as bits of paper that aren’t particularly important. They are bits of paper but they are particularly important because domestic violence is a scourge in this country and in this particular community.
In ordinary circumstances I would be inclined to find that there was good or proper reason to excuse the breach or to reduce the term to be served but against the background I have just mentioned I do not believe that either of those options are available to you.
The appellant now argues that the Magistrate erred in his approach to the question of whether there were proper grounds on which the failure of the appellant to comply with the conditions of the bond should be excused.
Appeal
By amendment there is one ground of appeal, which reads as follows:
2.The learned sentencing Magistrate (Mr Forrest SM) erred in the exercise of his discretion pursuant to section 114 (3) of the Sentencing Act 2017 in that
2.1 the learned Magistrate did not give adequate or appropriate consideration to the terms of the section and the meaning of “proper grounds” therein and
2.2 gave undue weight to considerations personal to the Appellant including his criminal history, as opposed to the circumstances of the breach itself, such that the sentencing process miscarried.
Mr Lang, counsel for the appellant before me argues that the manner in which the breach took place amounted to proper grounds on which the failure should be excused. He emphasises the fortuitous nature of the meeting between the appellant and P, the fact that she had come to the house and he was quite legitimately visiting a relative and there was no contact between the two of them. He also emphasises that there were other people at the house and there was not even the potential for any trouble. In fact, the sentencing Magistrate appears to be in agreement. However, Mr Lang also argues that in factoring in the appellant’s criminal background the sentencing Magistrate, as a matter of law, has erred. To support that proposition, he cited the authorities of Police v Heritage[1] (“Heritage”) and R v Buckman.[2]
[1] [2019] SASCFC 60.
[2] (1988) 47 SASR 303.
In the matter of Heritage, the Full Court dealt with the proper construction of s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) which was the predecessor of s 114(1)(d) of the Act and is in almost identical terms. The Court held:[3]
Turning to the meaning of the expression “proper grounds upon which the failure should be excused” in subsection (3), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection (3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach. This follows from a combination of the juxtaposition between the criteria of trivial breach and proper grounds for excusal (the former giving colour to the latter), the concept of “excusal” of the breach suggesting that the circumstances of the breach justify excusal, the legislative policy that ordinarily a breach should result in the offender serving the full term of the original sentence and the contrast between excusing a breach under subsection (3) and reducing the term of the original sentence by reason of special circumstances under subsection (4).
(Footnote omitted)
[3] Police v Heritage [2019] SASCFC 60 at [22].
Mr Fursa, for the respondent, argues that the sentencing Magistrate did not separately deal with matters personal to the appellant as an added factor to be considered over and above the circumstances of the breach. He argues that, in fact, the antecedent criminal history of the appellant is part of those circumstances. Especially in relation to the breach being similar to the nature of offending that gave rise to the bond in the first instance. As I understand, his argument is that the present circumstances take their colour and gravity from his previous behaviour.
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.