Police v B, WR - [2005] SASC 163

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v B, WR
Judgment of The Honourable Chief Justice Doyle
4 May 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
An appeal by the prosecution against sentence - the respondent pleaded guilty in the Magistrates Court to several groups of offences, each group being of a similar nature but committed at different times over an 18 month period - the Magistrate imposed a suspended sentence of 12 months imprisonment with a non parole period of six months - the Magistrate also refrained from revoking a bond that was in place at the time of some offences - on appeal - whether the sentence was manifestly inadequate as to disclose an error of principle - consideration of appropriateness of suspension of sentence - consideration of Court's discretion under s58(3) of the Criminal Law (Sentencing) Act 1988 to refrain from revoking bond - consideration of special circumstances that might reduce original sentence relating to the breached bond under s58(4) of the Criminal Law (Sentencing) Act 1988 - appeal allowed.
Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 58; Offenders Probation Act 1913 s 9; Magistrates Court Rules 1992 r 12.05, referred to.
R v Buckman (1988) 47 SASR 303; Police v Cadd (1997) 69 SASR 150, applied.
R v Nemer (2003) 87 SASR 168; Lawrie v The Queen (1992) 59 SASR 400; R v Marston (1993) 60 SASR 320; R v Chandra (Unreported, Court of Criminal Appeal, 1998, Judgment No S6554); R v Pham (Court of Criminal Appeal) [2003] SASC 386, considered.

POLICE v B, WR
[2005] SASC 163
Magistrates Appeal: Criminal

DOYLE CJ: This is an appeal by Police (the institution of an appeal in this name is authorised by r 12.05 of the Magistrates Court Rules 1992) against a sentence imposed by the Magistrates Court. The complaint is that the sentence is inadequate.
Mr B pleaded guilty in the Magistrates Court to a number of offences.
The first group of offences was committed in September 2002. They were the offence of non-aggravated serious criminal trespass in non-residential premises and the offence of larceny from those premises. Property to the value of about $800 was stolen, and none of the property was recovered.
The second group of offences occurred in early January 2003. They comprised the offence of non-aggravated serious criminal trespass in non-residential premises and larceny. Property to the value of $12,800 was taken, and none of the property was recovered.
On the basis of these offences, application was made to the Magistrates Court alleging that Mr B had failed to observe the conditions of a bond. The bond was entered into in February 2002. It was the basis upon which a sentence of 12 months’ imprisonment imposed on Mr B was suspended. The bond was for a period of 18 months. The suspended sentence was imposed in respect of the offence of attempted non-aggravated serious criminal trespass and the offence of possessing house-breaking equipment at night. Mr B admitted the breach of the bond.
The third group of offences was committed in late January 2003. This group comprises the offence of non-aggravated serious criminal trespass in non-residential premises, larceny and providing false information to police. Property to the value of about $12,000 was taken, but all of the property was recovered.
A plea of guilty to the third group of offences was entered in May 2003. Pleas of guilty to the first and second group were entered on 29 March 2004. On the same day the breach of bond was admitted.
The maximum penalty for the trespass offences is 10 years’ imprisonment. The maximum penalty for the larceny offences is 5 years’ imprisonment. The maximum penalty for providing false information to police is 2 years’ imprisonment.
Mr B was accepted into the Drug Court program in June 2003. I assume that this was on the basis that he had indicated an intention to plead guilty to the offences to which he had not already pleaded guilty. As would be obvious, Mr B was a drug user. The Magistrate who ultimately sentenced him said that he performed “exceptionally well” in the Drug Court program. The material on the Magistrates Court file supports that observation. Mr B was due to complete the program on 28 May 2004. The Magistrate commented that if he had been sentenced on that date, it was likely that any sentence of imprisonment imposed on him would have been suspended in recognition of his substantial progress towards rehabilitation.
Unfortunately, on 8 May 2004 Mr B committed further offences. He was charged with, and pleaded guilty to, three counts of non-aggravated serious criminal trespass in non-residential premises, two counts of theft, and one count of property damage. Property to the value of about $12,600 was taken, but all of that property was recovered. Some damage was done to the premises in question.
The maximum penalty for the theft offences is 10 years’ imprisonment. The maximum penalty for the damaging property offence is three years’ imprisonment.
The commission of these offences caused Mr B’s involvement in the Drug Court progam to be terminated, depriving him of the possible benefits attributable to a successful completion of the program.
The Magistrate accepted that Mr B committed these offences because he and his family had been threatened by a drug dealer with whom he had formerly dealt, because of his failure to pay a debt. He committed the offences to get money to pay the debt. This submission on his behalf was not challenged by the Prosecutor.
The sentencing Magistrate was also informed by the Prosecutor that since May 2003 Mr B had provided significant assistance to the Police in relation to certain matters. The Magistrate was provided with written details of the assistance, and I have seen that material. It is not necessary to go into the details.
Mr B was 47 years old when sentenced. He had two children with whom he was in regular contact. At the time of the offences of May 2004, all the indications were that there was a good prospect that he would avoid the use of drugs, and would rehabilitate himself.
The Magistrate said that for each of the first, second and third group of offences a sentence of 12 months’ imprisonment was appropriate. For the last of group of offences a sentence of 20 months’ imprisonment was appropriate. That resulted in a total of 4 years 8 months’ imprisonment. The Magistrate was prepared to reduce that to 3 years 6 months’ imprisonment having regard to the pleas of guilty. Having regard to the good progress made by Mr B on the Drug Court program, the circumstances in which he committed the last group of offences, and the assistance provided to police, the Magistrate further reduced the sentence to one of 21 months’ imprisonment. He then took off a further nine months, to allow for time spent in prison and on home detention bail between April 2003 and September 2004. On my calculations Mr B spent about 4 months and 2 weeks in prison and about 3 months on home detention, making a combined total of about 7 months 2 weeks. That resulted in a single head sentence of 12 months’ imprisonment. The Magistrate fixed a non-parole period of six months.
The Magistrate was satisfied that there was good reason to suspend that sentence, upon Mr B entering into a bond to be of good behaviour for a period of 18 months, and with certain other conditions.
As to the breach of bond, the Magistrate was apparently satisfied that there were proper grounds to excuse the failure to comply with the conditions of the bond, and so refrained from revoking the suspension of the sentence of imprisonment. He ordered that the sentence of imprisonment be again suspended, upon Mr B entering into a further bond for a period of 12 months.
Ms Mealor, counsel for the appellant, submits that the sentences imposed are manifestly inadequate. She makes the point that there were four separate occasions of criminal conduct, that substantial amounts of property were involved, that there was damage to premises, and that the property not recovered was of substantial value. She referred also to Mr B’s lengthy record of convictions, including numerous offences of dishonesty, stretching over the period from 1976 to the present time. She emphasised the need for general and personal deterrence.
In relation to the last group of offences, she made the point that when they were committed, Mr B was receiving substantial support and assistance through the Drug Court program. While accepting that he and his family had received threats, she made the point that these offences were committed at a time when he was receiving substantial support, and had various avenues for assistance.
Mr Schapel, counsel for Mr B, submitted that circumstances in which the last group of offences was committed were exceptional. The circumstances in which these offences were committed were extenuating circumstances. He referred to the good progress made by Mr B while in the Drug Court progam, and to the good prospects of rehabilitation which still existed. He emphasised the significance of the assistance provided by Mr B to the police.
In Police v Cadd (1997) 69 SASR 150 a majority of this Court held that when a Prosecutor appeals against a custodial sentence imposed by the Magistrates Court, on the grounds that the sentence is inadequate, the Court should exercise the same restraint as is exercised when the Court of Criminal Appeal considers an application by the Director of Public Prosecutions for leave to appeal against sentence. The well known principles that apply to prosecution appeals to the Court of Criminal Appeal apply equally to appeals from the Magistrates Court: see Cadd at 156-159. I recently summarised those principles in R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [23] – [27]. The principles are well known and I will not repeat them now.
Invoking those decisions, Mr Schapel submits that the Magistrate made no error of sentencing principle. The case is not one in which this Court is asked to or could give general guidance to Magistrates, or establish standards, because the circumstances are sufficiently unusual to make the case an unsuitable occasion for the giving of any guidance or for the establishing of any standards. He submits that the only basis for intervention could be a conclusion that the sentence was so low as to reflect an error of principle, or so low as to shake public confidence in the administration of justice. He submits that that is not the case.
He emphasises the hardship to Mr B were he now to be imprisoned, he having been told in January of this year that the sentences imposed on him would be suspended.
I agree that there is no apparent error of sentencing principle in the approach that the Magistrate took to the sentencing process, although, as will appear, the Magistrate appears to have erred on a point of principle in dealing with the breach of bond. I agree also that the circumstances of the case are sufficiently out of the ordinary to make it an inappropriate case in which to lay down any statement of principle. I also agree that the circumstances are sufficiently unusual for the case not to be treated as setting a precedent. However, the question remains of whether the sentence is so low as to reflect an error of principle.
The only way to test that submission is to consider what I regard as an appropriate sentence. I do so on the basis that ultimately a single sentence is to be imposed, exercising the powers conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (“the Act”). I would have imposed a sentence of imprisonment for 15 months on each of the first three groups of offences, those sentences to be served cumulatively. Those sentences include what I regard as an appropriate allowance for the good progress made by Mr B in the Drug Court progam. The sentences imposed by the Magistrate seem to me to be too low, having regard in particular to the seriousness of the offences and to Mr B’s poor record. For the last group of offences I would begin with a starting point of two years’ imprisonment, to be cumulative on the other sentences. That makes allowance for the seriousness of the offending, and for the fact that these offences are a relapse into a form or pattern of past offending, but also makes allowance for good progress made in the Drug Court program and for the mitigating circumstances under which the offences were committed. That leads to a combined starting point of 69 months’ imprisonment. I would reduce that figure by 18 months on account of the guilty pleas. I would reduce the overall sentence by a further 12 months on account of the assistance provided to the Police. The result is a head sentence of 3 years 3 months.
I would not reduce the sentence on account of time spent on home detention bail and in prison while waiting to be dealt with by the Magistrates Court. The reason for that will appear shortly.
The difference between the sentence that I regard as appropriate and the sentence imposed by the Magistrate is a substantial one. In my view it is sufficiently substantial to indicate an undisclosed error of principle. Making all allowances in favour of Mr B, I consider that a sentence as low as that imposed by the Magistrate cannot be justified, and requires intervention on appeal. It fails to reflect the seriousness of the offences.
I turn to the question of suspension of the sentence. This is a particularly difficult decision in the circumstances of the present case. The rehabilitation of Mr B is a substantial factor in the sentencing process. There were and are good prospects of rehabilitation, which prospects will be reduced if he is to be imprisoned again. It is appropriate at this stage of the sentencing process to take into account, yet again, the significance of the assistance that he gave to the Police. It is also relevant to take into account the observation by the Magistrate that, but for the last group of offences, Mr B was likely to have had any sentences of imprisonment suspended. Of course, the last group of offences introduces a new factor, and it is one which counts against leniency.
However, in the unusual circumstances of this case, I am unable to say that the Magistrate erred in concluding that the sentence of imprisonment should be suspended. I recognise that, having concluded that the Magistrate erred, the question of suspension is one to be approached by me afresh. But I also recognise the force of the circumstances that led the Magistrate to his conclusion, even though I consider that the sentence to be imposed should be substantially heavier than that imposed by the Magistrate. I also bear in mind that this is a prosecution appeal against sentence, and that in itself is a circumstance that justifies the Court extending to the respondent as much leniency as can appropriately be extended to him.
In the light of all of those circumstances, I consider that there is good reason to suspend the sentence of imprisonment that I would impose, on condition that Mr B enter into a bond to be of good behaviour, the bond to be for a period of 18 months, with a condition that he be under the supervision of a Community Corrections Officer and obey that officer’s lawful directions.
I turn now to the Magistrate’s approach in relation to the admitted breach of bond.
Mr B admitted that he had failed to comply with a condition of the bond, on the basis of which the sentence of 12 months’ imprisonment had been suspended. The Magistrate’s powers in relation to the suspended sentence were regulated by s 58 of the Act. Section 58(3) provides as follows:
58(3)Where 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 upon which the failure should be excused, the court—
(a) may refrain from revoking the suspension; and
…
The subsection goes on to confer certain powers on the Court if the Court refrains from revoking the suspension. They include extending the term of the bond, or requiring the probationer to enter into a further bond. Subsection (4) deals with the situation in which the Court does not exercise the power conferred by subs (3), and proceeds to revoke the suspension. It provides as follows:
(4)     Where a court revokes the suspension of a sentence of imprisonment, the court—
(a)     may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b)     may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(ba)   may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;
(c)     may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
These provisions are in the same terms as provisions previously found in s 9 of the Offenders Probation Act 1913. Those provisions were considered by the Court of Criminal appeal in R v Buckman (1988) 47 SASR 303. The equivalent provisions were respectively subs (5) and (6) of s 9. The Court made the point that the provisions are “sequential and complementary”: Jacobs J at 307. The first question under these provisions is whether the Court is to order that the suspension be revoked and that the sentence be carried into effect. If it does not so order, the second question does not arise. If it does so order, then, and only then, the Court is to consider whether the term of the suspended sentence is to be reduced or treated as discharged wholly or in part. The Court made the point that the statutory terms have the result that the question to be posed at each stage is a different question. As to that, Jacobs J said at 307:
Despite the width of both expressions the distinction, I think, is this: proper grounds for excusing the breach look to the nature of the breach and the circumstances in which it was committed; special circumstances for reducing the sentence, if the breach is not excused, look to some significant change of circumstances since the prisoner was sentenced, which had they existed at that time might have justified a reduced sentence. It seems to me that they will generally be personal factors, of the kind that may dispose a court to greater leniency, which have arisen subsequent to the sentence of imprisonment – ill health or acute domestic problems or obligations spring to mind as examples, but they are only examples, and it is impossible and unwise even to attempt to state exhaustive categories of such special circumstances.
He referred to an earlier decision on the point, and then said at 308:
That case, however, does serve to emphasise the difference in the tests to be applied under subss (5) and (6). It holds that matters occurring subsequent to the commission of the breach have no relevance to the issue under subs (5), which is concerned only with the circumstances existing at the time of the breach, since it is concerned only to consider whether the breach should be excused. If it is, that is an end of the matter, and no question under subs (6) arises; if it is not, the court can look at any circumstances, whenever occurring, which may be relevant to a reduction of the original sentence, for the purposes of subs (6), but for reasons already stated the circumstances of the breach itself do not, and cannot, speak to the propriety of that sentence.

King CJ agreed with Jacobs J. Having said that (at 304) he went on to say:
It is to be remembered that the sentence which is activated is the sentence for the original offence. The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper. Subsection (6) exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.
The purpose of subs (5) is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
Bollen J dissented in the result, but as I understand his reasons he took substantially the same approach.
That decision was applied by the Full Court in Lawrie v The Queen (1992) 59 SASR 400 and in R v Marston (1993) 60 SASR 320. The reasoning in Buckman has been followed in a number of unreported decisions as well, both of the Court of Criminal Appeal and of single Judges: see, for example R v Chandra (Unreported, Court of Criminal Appeal, 1988, Judgment No S6554) and R v Pham (Court of Criminal Appeal) [2003] SASC 386.
I am bound by the decision in Buckman, and accordingly must apply it.
It follows that the first question that the Magistrate had to consider, on the admission by Mr B of a breach of the bond, was whether there were grounds upon which he might refrain from revoking the suspension of the sentence in question. The Magistrate does not indicate how he came to the conclusion that he could and should do so.
The offences giving rise to the breach were committed in January 2003. They were serious offences. The bond was entered into in February 2002, about 11 months before the commission of the breaching offences. The bond was imposed on a plea of guilty to offences of a similar nature to the breaching offences. The breaching offences appear to be part of a course of conduct in which Mr B committed serious offences, presumably to obtain money to purchase drugs.
It was not suggested on appeal that the failure to comply with the bond was trivial. Nor could it be so suggested. The decision in Buckman requires that in considering whether there were proper grounds upon which the failure to comply could be excused, the Court should look to the nature of the breach and the circumstances in which it was committed. I can find nothing in those matters that would enliven the discretion conferred by s 58(3) of the Act. The offences were committed as part of a course of criminal conduct, and before Mr B embarked on the Drug Court program.
Accordingly, I conclude that the Magistrate erred in law in this respect. The Magistrate should have revoked the suspension of the sentence.
If that is to be done, it is then necessary to consider the power conferred by s 58(4). In doing so the Court can and should consider circumstances as they are at the time when it is asked to exercise that power.
In considering the exercise of the power, the Court must be mindful of the point made by King CJ in Buckman, that the legislation indicates a clear policy that in the ordinary course when a suspension is revoked, the offender is to serve the sentence originally imposed. That, no doubt, explains the use of the term “special circumstances” to identify the basis upon which the Court can reduce the term of the suspended sentence.
After careful thought I have come to the conclusion that there are special circumstances that justify a reduction in the term of the suspended sentence. First, by the time the Magistrate came to sentence Mr B in January 2005, two years had passed since the commission of the breaching offences. That of itself is of no particular significance, and could not be relied upon by Mr B. But in the intervening period Mr B’s progress in the Drug Court program indicated a genuine and apparently successful attempt at rehabilitation, subject to the impact on that conclusion of the fact of the offences of May 2004. There is also the fact of the assistance given by Mr B to the police. There must be a limit to the benefit that Mr B can claim on this account, and it has already resulted in a substantial reduction of the sentence that would otherwise have been imposed for the offences referred to above. But it remains a circumstance appropriately to be considered when deciding whether the term of the suspended sentence should be reduced. In the present case there are personal factors, arising subsequent to the imposition of the suspended sentence, which would have justified a reduced sentence at the time that sentence was imposed. That is how the matter was expressed by Jacobs J in Buckman. Again, referring to the words used by King CJ, I consider that in the unusual circumstances of this case it can be said that to activate a suspended sentence of 12 months’ imprisonment would be “oppressive or inappropriate”.
I am influenced also by the consideration that I have considered it appropriate to suspend the sentences to be imposed on Mr B for the offences in respect of which the Magistrate had to sentence him. While rehabilitation is by no means the only consideration in the present case, it is a significant consideration, and there is much to be said for giving greater weight to Mr B’s rehabilitation, in all the circumstances, than to the desirability in general terms of requiring him to serve the suspended sentence as a result of his breach of the bond.
For those reasons I am satisfied that a substantial reduction in the term of the suspended sentence is permissible, and is appropriate in the present case. I refer now to the fact that after committing the breaching offences, and between April 2003 and September 2004, Mr B spent about four months two weeks in prison, and about three months on home detention. By s 58(4)(b) I have power to direct that the former period be counted as part of the term of the suspended sentence.
I consider that this is an appropriate case in which to reduce the term of the suspended sentence to a period of four months, and then to direct that the time spent by Mr B in custody be treated as discharging or satisfying that period of imprisonment. That means that although the suspension of the sentence is to be revoked, the result of the reduction in the term under s 58(4)(a) and of the direction under s 58(4)(b), is that the term of the suspended sentence has been served, and no further action falls to be taken in relation to it.
I recognise that what I have done is unusually lenient. I am influenced by the combined effect of the rehabilitation that apparently occurred in the course of the Drug Court program, the circumstances under which the offences of May 2004 were committed, and the assistance that Mr B has given to the Police.
For all those reasons I order that the appeal be allowed and that the sentences imposed by the Magistrates Court and the orders made by the Magistrates Court be set aside. In respect of the offences to which Mr B pleaded guilty before the Magistrates Court (files AMC-03-5493, AMC-03-5512, AMC‑03-6790 and AMC-04-13682), exercising the powers conferred by s 18A of the Act, I impose a single sentence of imprisonment of 3 years 3 months, arrived at in the manner indicated above. In respect of that sentence I fix a non-parole period of 20 months.
I order that that sentence be suspended upon Mr B entering into a bond to be of good behaviour for a period of 18 months, a condition of the bond being that he be under the supervision of a Community Corrections Officer and obey that Officer’s lawful directions, during the period of the bond.
On the application alleging a failure to observe the conditions of a bond (Magistrates Court file AMC-03-6449) I order that the suspension of the sentence of 12 months’ imprisonment be revoked. I further order that the term of the suspended sentence be reduced to a term of four months, and I direct that the time spent by Mr B in custody pending determination of the proceedings for breach of condition be treated as satisfying or discharging the term of four months’ imprisonment.