Police v Bicanin - [2011] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v BICANIN
[2011] SASC 108
Judgment of The Honourable Justice Duggan
20 July 2011
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 - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO SUBSTITUTE VERDICT OR SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appeal against sentence imposed upon respondent by magistrate – respondent pleaded guilty to seven offences – respondent also admitted to breaching two good behaviour bonds relating to prior offences – the first breached bond related to a term of imprisonment for 21 days – the second breached bond related to a term of imprisonment for three months – respondent convicted of seven offences to which he pleaded guilty – no penalty imposed for offences 1 to 3 inclusive – magistrate sentenced respondent pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to total period of imprisonment for six months in respect of offences 4 to 7 inclusive – sentence to be served cumulatively upon combined sentence for three months and 21 days resulting from revocation of suspension – magistrate then suspended the total sentence of nine months and 21 days upon respondent entering into a fresh good behaviour bond – whether the magistrate erred in suspending the total sentence in that part of sentence related to the revocation of the two previously suspended sentences.
Held: Appeal allowed – order of magistrate set aside – sentencing process miscarried when previously suspended sentences were again suspended – order revoking suspension of sentence of imprisonment for three months and sentence of imprisonment for 21 days – order that sentences be served concurrently – in relation to offences 1 to 7 respondent sentenced afresh – respondent convicted without penalty on offences numbered 1 to 3 inclusive – convictions recorded on offences 4 to 7 inclusive and a global penalty of imprisonment for four months imposed – the sentences which were previously revoked to be served concurrently with the sentence of four months.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 58, s 58(3), s 58(4), s 58(4)(a); Offenders Probation Act 1913 (SA) s 9(5), s 9(6), referred to.
R v Buckman (1988) 47 SASR 303, discussed.
Police v Cadd (1997) 69 SASR 150, considered.

POLICE v BICANIN
[2011] SASC 108
Magistrates Appeal: Criminal

DUGGAN J: This is a prosecution appeal against sentence imposed upon the respondent in the Holden Hill Magistrates Court.
The respondent pleaded guilty to the following offences:
1Driving while disqualified at Nailsworth on 15 January 2010.
2Driving an unregistered vehicle at Nailsworth on 15 January 2010.
3Driving an uninsured vehicle at Nailsworth on 15 January 2010.
4Dishonestly taking a bicycle and helmet without the owner’s consent at North Adelaide on 24 November 2010.
5Driving while disqualified at North Adelaide on 24 November 2010.
6Driving while disqualified at Prospect on 16 December 2010.
7Breaching a bail agreement on 16 December 2010.
The respondent also admitted breaching two good behaviour bonds. The first bond was entered into on 3 August 2009 in relation to offences of driving a vehicle while unauthorised and driving a vehicle while disqualified. The respondent was sentenced to imprisonment for 21 days which was suspended when he entered into a bond in the sum of $100 to be of good behaviour for 12 months. In addition, he was suspended from holding or obtaining a driving licence for a period of three years. The offences committed on 15 January 2010 were relied upon to establish breaches of this bond.
The second bond was entered into on 3 December 2009 in relation to offences of dishonestly taking property without the owner’s consent and possessing an article to commit an offence. The respondent was sentenced to imprisonment for three months which was suspended when he entered into a bond in the sum of $200 to be of good behaviour for 15 months. The offences committed on 24 November 2010 were relied upon to establish the breach of this bond.
The magistrate convicted the respondent of offences 1 to 7 inclusive. No penalty was imposed in relation to the offences numbered 1 to 3 inclusive. Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”) the magistrate sentenced the respondent to a total period of imprisonment for six months in respect of the offences numbered 4 to 7 inclusive. The magistrate then revoked the suspension of the sentences of imprisonment for three months and imprisonment for 21 days. The sentence of imprisonment for six months was ordered to be served cumulatively upon the combined sentence of imprisonment for three months and 21 days resulting from the revocation of suspension.
The total sentence of imprisonment for nine months and 21 days was then suspended upon the respondent entering into a bond in the sum of $100 to be of good behaviour for two years. Several conditions were included in the bond.
The appellant argues that the learned magistrate erred as a matter of law in ordering that the total sentence be suspended in that a component of the sentence was the period of imprisonment for three months and 21 days, the suspension of which had been revoked before being suspended once again.
According to the argument, the orders made by the magistrate were contrary to s 58 of the CLSA which provides as follows:
58—Orders that court may make on breach of bond
(1)Where 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 that the probationer pay the whole or a part of that sum;
(b)     may order a guarantor to pay the whole or a part of the amount due under the guarantee;
(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 upon which the failure should be excused, refrain from taking any action in respect of the failure;
(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.
(2)The court may not order a person to pay an amount pursuant to subsection (1)(a) unless the court is satisfied—
(a)     that the person has, or will within a reasonable time have, the means to pay the amount; and
(b)     that payment of the amount would not unduly prejudice the welfare of dependants of the person.
(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
(b)     may—
(i)—
(A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
(B)in the case of a bond requiring performance of community service, extend, by not more than six months, the period within which any remaining hours of community service must be performed; or
(C)cancel the whole or a number of any unperformed hours of community service; or
(D)revoke or vary any other condition of the bond; or
(ii)if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year.
(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.
(5)Where a court other than the probative court sentences a probationer for the original offence, the court cannot impose a sentence that the probative court could not have imposed.
Although s 58(3) empowers the court to refrain from revoking the suspension if satisfied that the failure to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, it is clear from the fact that the magistrate revoked the suspensions with respect to each bond that he did not utilise this power. And while s 58(4) allows a court which has revoked a suspension of sentence to reduce the term of the suspended sentence if there are special circumstances justifying it in so doing, there is no power to again suspend the sentence once the suspension has been revoked.
Counsel for the respondent quite properly conceded that the sentencing process miscarried when the previously suspended sentences were again suspended and that the respondent must be sentenced afresh.
The principal argument put forward on behalf of the respondent is that this Court should exercise the power under s 58(3) of the CLSA and refrain from revoking the suspension of the original sentences. It is argued that, although the breaching offences could not be described as “trivial”, there nevertheless existed proper grounds on which the failure to comply with the conditions of each bond could be excused. In the alternative, it is argued that, if the suspension of the original sentences is revoked, those sentences should be reduced pursuant to s 58(4)(a) of the CLSA.
The powers bestowed on the court in ss 58(3) and 58(4) were previously contained in ss 9(5) and 9(6) of the Offenders Probation Act 1913 (SA). When commenting on the earlier provisions in R v Buckman,[1] King CJ said:[2]
There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.
Parliament has recognised, however, that in some cases the rigorous application of the ordinary consequences of breach can be oppressive and even unjust. It has therefore provided to the courts the means of ameliorating those consequences in exceptional cases. Subsection (5) of s 9 of the Offenders Probation Act 1913 empowers the probative court to refrain from ordering that the sentence be carried into effect where the failure to observe the conditions of the recognisance is trivial or there are proper grounds for excusing it. Subsection (6) authorises the reduction of the term of imprisonment in “special circumstances”.
I agree with what Jacobs J has said as to the meaning and relationship of these two subsections. 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.
[1] (1988) 47 SASR 303.
[2] (1988) 47 SASR 303 at 304.
In R v Buckman, the appellant had been charged with attempted murder and wounding with intent to do grievous bodily harm. The Crown accepted a plea of guilty to unlawful wounding and the original charges were withdrawn. The victim was the appellant’s de facto husband.
The appellant was sentenced to imprisonment for two and a half years for the offence of unlawful wounding, but the sentence was suspended upon her agreeing to enter into a recognisance in the sum of $500 to be of good behaviour for a period of three years. The appellant observed the conditions of her bond for approximately 18 months but she was then convicted of an offence of larceny which involved the shoplifting of goods to the value of $2.82.
On appeal an order revoking the suspension of the sentence was set aside. King CJ said:[3]
In the present case it seems to me that there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated. It is not irrelevant, moreover, that the offence constituting the breach is of a quite different character from that for which the sentence was imposed. The matter being at large for this Court for the reasons explained by Jacobs J, it seems to me that the total effect of the relatively minor nature of the offence constituting the breach, the difference in character between it and the offence for which the sentence was imposed and the disproportion between the seriousness of the offence constituting the breach and the sentence which would be activated, is such as to amount to proper grounds upon which the failure to observe the conditions of the recognisance should be excused.
In my opinion, therefore, the appeal should be allowed and the order revoking the suspension of the sentence should be set aside.
[3] (1988) 47 SASR 304 at 304-305.
Reference has been made to the fact that the bond entered into on 3 August 2009 was in relation to the offences of driving a motor vehicle while unauthorised and driving a vehicle while disqualified. The offences which breached the bond were driving while disqualified and driving an unregistered and uninsured vehicle. These offences were committed when the respondent drove his mother’s vehicle on 15 January 2010. He was apprehended while driving the vehicle on Main North Road. He told police that he was unaware that the vehicle was unregistered and uninsured, but that he knew he was disqualified from driving. The magistrate was told that the respondent drove the vehicle a short distance to his mother’s house in order to borrow some of her antidepressant medication which is the same as medication which had been prescribed for the respondent.
It is to be noted that the offence of driving while disqualified was the same as the main offence for which the bond was imposed. The conduct of the respondent in the case of the breaching offence was contumacious in the sense described in Police v Cadd.[4]
[4] (1997) 69 SASR 150 at 179.
The bond entered into on 3 December 2009 was in relation to an offence of dishonestly taking property without the owner’s consent and a further offence of possessing an article to commit an offence. Both offences were committed on 28 December 2008. The respondent broke into a vehicle parked in the car yard of a vehicle retailer and stole a sound system valued at $1,000. Entry to the vehicle in which the system was installed was obtained by smashing a rear passenger window. The estimated damage to the vehicle was $2,000. Police located a backpack nearby which contained various tools including a screwdriver and pliers, hence the laying of a further charge of possessing an article to commit an offence.
The respondent breached this bond by committing two offences on 24 November 2010. He acted as a lookout while an accomplice stole a bicycle and helmet valued at $2,030. On this occasion the respondent drove a vehicle from the scene while his accomplice rode away on the bicycle. The respondent was disqualified from driving at the time. It is clear that the original offence and the breaching offences involved dishonesty.
Mr Heffernan, for the respondent, conceded that in neither case can the breaching offences be regarded as trivial. However, Mr Heffernan submits that it is open to refrain from revoking the suspension of the sentences in the case of each bond on the basis that “there are proper grounds upon which the failure should be excused”.[5]
[5] CLSA s 58(3).
Reliance for this proposition was placed on a psychological report prepared by Ms Emma Warne. Ms Warne referred to the respondent’s early life in a dysfunctional family and his early addiction to alcohol and illicit drugs. She said that although the respondent did not display evidence of an active psychotic disorder, he demonstrated symptoms of anxiety. The respondent also reported symptoms of depression.
In the summary to her report, Ms Warne commented:
On the basis of the current assessment and results obtained on the PAI, it would seem that Mr. Bicanin met the diagnostic criteria for Panic Disorder With Agoraphobia (300.21) pursuant to the Diagnostic and Statistical Manual of Mental Disorders (4^th edition: DSM‑IV TR[6]) and displayed symptoms of a possible Depressive Disorder. He also described symptoms of Borderline Personality Disorder (301.83), characterised by relationships difficulties (co-dependency), emotional reactivity and affective instability, feelings of worthlessness, reckless and impulsive behaviour, paranoia, fear of abandonment, self harming behaviours, substance abuse, and suicidal ideation. Mr. Bicanin’s past history of substance use also indicated that he likely had a Polysubstance Dependence (304.80), which appeared to have been managed currently with methadone. However, his ongoing use of cannabis to manage his anxiety suggested that he may meet the criteria for Cannabis Abuse (305.20). Further, his reported difficulties of thought disturbance flag the possible ongoing experience of a psychotic disorder, although it was likely those symptoms were a manifestation or artefact of his previously drug induced symptomotology. However, it was considered important that those symptoms be considered in more detail, perhaps through psychiatric review.
(Emphasis in original)
[6] American Psychiatric Association (2000). The Diagnostic and Statistical Manual of Mental Disorders, 4^th Edition, Text Revision (DSM-IV-TR). Washington, D.C., APA.

Mr Heffernan submits that, as a result of these matters, the respondent has a limited ability to solve problems and make decisions. He said the conduct which led to the breaching of the bonds on each occasion took place against the background of the respondent’s chaotic lifestyle.
I reject the argument that these considerations are of such a nature as to excuse the failure of the respondent to comply with the conditions of the bonds; nor do they constitute special circumstances justifying the reduction of the suspended sentences. The conduct on each occasion was a deliberate repetition of conduct which was similar to the offending which led to the suspended sentences. The respondent’s background and psychological condition did not prevent him from realising that he was again breaking the law for similar conduct. Furthermore, the offences were committed against a significant history of similar offences. Far from qualifying for the ameliorative application of ss 58(3) and 58(4) of the CLSA, the offending gave rise to the need for personal deterrence.
It follows from what I have said that the suspension of each of the two sentences must be revoked. However, counsel for the appellant has pointed out that there has been delay in this matter as a result of the sentencing error of the magistrate. He has conceded that it would be appropriate to make all sentences, including those for the breaching offences, concurrent. In my view orders for concurrency would be appropriate in the circumstances referred to by counsel.
There remains the need to fix a penalty for the offences numbered 4 to 7 inclusive. In my view the sentence of imprisonment for six months imposed by the magistrate for these offences was appropriate. Nevertheless, counsel for the appellant did not oppose a reduction to this component of the sentence because of the delay to which reference has been made. Accordingly, I impose one penalty pursuant to s 18A of the CLSA of imprisonment for four months for the offences numbered 4 to 7 inclusive. It would be inappropriate to suspend this part of the sentence.
The appeal will be allowed and the orders made by the magistrate will be set aside. The suspension of the sentence of imprisonment for three months and the sentence of imprisonment for 21 days will be revoked and those sentences served concurrently.
The respondent will be convicted without penalty on the offences numbered 1 to 3 inclusive. Convictions will be recorded on offences 4 to 7 inclusive and a global penalty of imprisonment for four months will be imposed for these offences. I direct that the sentences of imprisonment which were previously suspended be served concurrently with the sentence of imprisonment for four months. In the result the respondent will be required to serve a period of four months imprisonment to commence on the date on which these reasons are delivered.