Pittaway v Police No. Scgrg-98-1359 Judgment No. S6936

PITTAWAY v POLICE
[1998] SASC 6936

Magistrates Appeal: Criminal

OLSSON J. The appellant in this matter appeals against an order made by a stipendiary magistrate on 25 September 1998, on an application for enforcement of a breached bond.
The appellant admitted the alleged breach of bond. The learned magistrate thereupon revoked the suspension of the custodial sentence to which the bond had related.
I first turn to the relevant historical facts.
The appellant, then a man aged 23 years, appeared in the Elizabeth Magistrates Court on 3 November 1997 charged with assault. The offence was committed on 2 December 1996 at Willaston. Precise factual details relating to this offence were not before the learned magistrate, nor were they available to me.
The appellant was convicted and sentenced to a period of 28 days imprisonment. That sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of 3 years. The appellant, as part of the conditions of the bond, was required to perform 150 hours of community service within 6 months of 4 November 1997, the date on which the bond was entered into.
In an affidavit sworn on 18 March 1998 by Ms Carol Johnson, a Community Services Officer and the appellant’s principal supervisor, it had been deposed that the appellant was in breach of his community service order. She did so against the background which follows.
On 9 December 1997 the conditions and obligations of Community Service were explained to the appellant by one of the Community Service Officers. Not only was it orally explained to the appellant, he was also provided with written instructions. An acknowledgment of this fact was signed by him.
The appellant was absent from his duties on five occasions on 16 December and 23 December 1997 and 13 January, 20 January and 27 January of this year. On each of the five occasions his absence was without leave.
After the second occasion when the appellant was absent without leave a Warning of Suspension was issued by the Community Service Officer to the appellant. This occurred on 23 December. The appellant failed to respond to the warning. Furthermore, a written instruction (known as a form B109) was sent to him on 13 January 1998. This written instruction informed him that he was to report to work on 20 January 1998 and also to report to work every Tuesday until the completion of his hours. The instruction was not acknowledged and the appellant did not observe it.
A notice of suspension was sent to the appellant. This suspension notice was later withdrawn and he was given a verbal warning.
The appellant contacted the Community Service Office on 3 February 1998 and attended at it the following day. He informed his supervisor that he had been on a CES training course. Although it was requested that he provide proof of the fact that he had been on the training course, the relevant file indicates that he failed to do so. It now appears that this record may not be accurate. He did in fact procure a relevant letter and says that he actually produced it to his immediate work supervisor on 5 February 1998. It seems likely that the supervisor failed to raise an appropriate record for the file.
The appellant attended for work on 5 February 1998, but did not attend thereafter until 12 February 1998. He in fact worked on that day and also on 19 February.
The appellant did not attend on 25 and 26 February. He telephoned to say that he had secured employment, whereupon he was asked to provide proof of this fact. None was forthcoming.
A telephone message was left for the appellant (on an answering machine) to provide proof of his employment and to report for work on 5 March 1998. He did not so report. A form B109 was sent to him on that day directing him to report on 10 March. He did not do so.
However, the Departmental file discloses the following note for 10 March 1998:-
“In office - spoke to Michael in relation to his C/S. Said he was too busy to do C/S, even on w/ends. Wants to be returned to Court to see if he can arrange payment? Said he had a lawyer. I advised him that I can return it to court, if that is what he wishes?”
There seems no doubt that the appellant had in fact obtained regular, full time employment at Murray Bridge and had difficulty in even attending for community service at weekends. He asked Mr Atkinson, a solicitor at Gawler, to act for him on 12 March. Mr Atkinson wrote to the Department to confirm the full time employment situation, seeking information from the file and raising the issue of paying a fine in lieu of the balance of the community service. However, it does not appear what was done about this. It seems that the Department simply suspended the appellant and initiated proceedings for breach of bond. Mr Atkinson took no steps to apply for a bond variation.
The appellant has, to date, completed 48 hours of community service.
It was against the abovementioned history of facts that the appellant admitted the breach of bond alleged against him. At the hearing before the learned magistrate, the Community Service Officer reported that little progress had been achieved on the bond. She was of the view that further community service would be of little or no benefit to the appellant. Given the situation which had developed, as counsel for the respondent conceded, this was scarcely an accurate representation of the situation.
It is clear that, on the information that he had before him, the learned magistrate took the view that the appellant had simply treated his obligations with contempt. He concluded that, in the circumstances, the appropriate approach was to revoke the suspension of the relevant sentence. He made an order accordingly.
Counsel for the appellant complains that the order made was too draconian in the circumstances. It was argued that the appellant had duly advised the Department of Correctional Services of his employment and that it was not correct to say that he had treated the order of the court with contempt. Criticism was also advanced that the learned magistrate was in error when he said that the appellant had not informed the Department that he was in employment at Murray Bridge and had not notified his change of address.
In my view, given his understanding of the history of the matter, it is small wonder that the learned magistrate took the view which he did. However, it seems apparent (and counsel for the respondent accepts) that the full circumstances were simply not made clear to the learned magistrate. Although the early history of the matter does not reflect well on the appellant, it seems clear that, in later times, he was making real attempts to rehabilitate himself. Whilst his level of communication left something to be desired, his Community Service Officer presented a somewhat extreme view of his performance, on the basis of incomplete knowledge. To be fair it must also be said that his own solicitor does not seem, effectively, to have come to terms with the problem and tackled it in the correct manner with expedition.
In the event the learned magistrate was clearly under a misapprehension when he said that the appellant had failed to notify his employment and move to Murray Bridge.
It was also contended that the learned magistrate failed to give consideration to other possible courses of action, such as extending the time for completion of the community service.
I do not think that he did. His attitude was plainly governed by what had been put to him. It was, with respect, a not unreasonable reaction to what he had been given to understand. Had the appellant’s solicitor promptly applied for a bond variation when first instructed, a very different scenario would have emerged.
The learned magistrate adverted to what was said by Perry J in Allen v Department of Correctional Services (1996) 187 LSJS 300 at 303. In that case the learned Judge made the point that there is a clear need to send a message to the community that community service orders must be complied with, and, if they are not, some other penalty is likely to be imposed.
I entirely agree with what he there said. Section 58 of the Criminal Law (Sentencing) Act 1988 is quite specific in its terms. For reasons which are quite obvious, the legislature has made it clear that, where there is a breach of a condition requiring performance of community service, revocation of suspension of a custodial sentence is to be the norm, unless it can be demonstrated either that the breach is trivial, or there are otherwise proper grounds upon which the failure should be excused.
However, given the information now available, counsel for the respondent concedes that it can fairly be said that there are proper grounds to excuse the appellant’s breach, notwithstanding that he has, at times, been less than diligent with maintaining proper contact with his Community Service Officer. Moreover, unlike many persons who come before the court in default, he has already completed a significant period of service.
It is important to note that Mr White, of counsel for the appellant, has indicated that his client now only works a five day week and could, if given further time, complete his obligation by weekend work.
I took Ms Lieschke, of counsel for the respondent, to acknowledge that, in the circumstances, it would not be inappropriate to afford the appellant the opportunity of doing so.
I, therefore, allow the appeal and set aside the order of revocation of suspension. In lieu there will be an order that the terms of the bond be varied by extending the time for performance of the outstanding community service until 1 May 1999.
In so ordering I desire to make it clear that I imply no criticism of the learned magistrate. It seems to me that his decision was well nigh inevitable on the somewhat unsatisfactory state of the information supplied to him. There can be little doubt that the courts must take effective steps to render it clear that deliberate non compliance with community service orders will not be tolerated.

[1998] SASC 6936

2 November 1998