Police v Duri No. Scgrg-98-1503 Judgment No. S6999

POLICE v DURI
[1998] SASC 6999

Magistrates Appeal: Criminal

MULLIGHAN J This is an appeal by the prosecution against sentence.
The respondent was charged with wilfully doing a grossly indecent act in a public place: contrary to s23(2) of the Summary Offences Act 1953. He pleaded guilty on 21st July 1998 and on 13th October 1998, after a pre-sentence report was obtained, he was sentenced to imprisonment for ten days which sentence was suspended upon his entering into a bond in the amount of $200 to be of good behaviour for a period of eighteen months with the conditions that he be under the supervision of a probation officer and to undertake any appropriate psychiatric and psychological assessment and treatment and family planning programmes as directed.
The respondent was aged 25 years at the time. He committed the grossly indecent act at about 9.50 am on Thursday, 29th January 1998 in the book department of Myers Store at the Colonnades Shopping Centre. He had his 3 month old son with him in a pusher at the time. He was looking at children’s books and was observing a young teenage girl who was about 15 feet away from him. He masturbated inside his clothing. He then walked to another display of books, pulled down his tracksuit pants and again masturbated with, it was alleged, his penis exposed. There were other members of the public in the book department at the time but it was not disclosed if the teenage girl or the others saw this conduct apart from a security officer who reported the matter to the police. When she approached the respondent, he pulled up his pants and left the store but she followed and apprehended him. When the police arrived, the respondent admitted masturbating but denied that his penis was exposed. He said it was covered with his T-shirt. He told the police that he was taking medication but overlooked taking it that morning because he was in a hurry. It is not clear to me but it appears from a pre-sentence report that the teenage girl may have been a little older and may have been the sister of the defacto wife of the respondent, but no such allegation was made by the prosecutor to the learned Magistrate.
The appellant had a past history of similar offending. On 14th April 1997 he was convicted of two offences, namely, behaving in an indecent manner in a public place contrary to s23(1) and providing a false name when questioned by police contrary to s74a(3)(b)(i) of the Act. These offences were committed on 17th October 1996 and 14th November 1996 respectively. The indecent behaviour was of the same nature, namely masturbating at a supermarket, in the vicinity of a young girl. He was released upon a bond in the sum of $10 to be of good behaviour for a period of 18 months and with the conditions to be under the supervision of a probation officer and to obey all reasonable directions in relation to attending such counselling, assessment and programmes as directed. There is an issue about this bond which is discussed shortly.
The appellant has other previous convictions for offences against the Motor Vehicles Act 1959, larceny, street offences, breach of bail and drug related offences which are of little significance in the present context. However, one other previous offence is of importance. On 22nd April 1996 the respondent committed another offence of indecent behaviour which, it seems, was considered by a learned Magistrate on 14th April 1987 and taken into account when sentencing the appellant by affording him the opportunity to enter into the bond.
On 13th October the learned Magistrate also had before him an application by a member of the police for enforcement of the bond dated 14th April 1987. He found that the appellant was in breach of the bond by reason of his offending on 29th January 1998. The learned Magistrate found that the respondent had failed to comply with the condition of the bond to be of good behaviour but refrained from taking any action in respect of that failure. As to that bond and why he had adopted that course, the learned Magistrate said:
“According to the Pre-Sentence Report this is the third offending of this type. On the last occasion you were placed on the bond to come up for re‑sentence if you breached the bond. Of course you have breached it. I don’t intend to take any action on that bond because I incorporate what I propose should be done in relation to the re-sentencing in that matter when I sentence you on the fresh charge to which you have pleaded guilty to today.”
The appeal is against the sentence of imprisonment for 10 days and the decision to suspend that sentence as well as the decision to take no action in respect of the breach of the bond. The grounds of the appeal are that the length of the sentence is manifestly inadequate and that the learned Magistrate erred in suspending the sentence and not sentencing the respondent for the offence committed in respect of the offence of behaving in an indecent manner committed on 17th October 1996.
I first mention the bond. As has been seen, the learned Magistrate regarded the bond as of the type requiring the offender to come up for sentence upon failure to comply with a condition. Section 39(1) of the Criminal Law (Sentencing) Act 1988 provides:
“39(1)....... Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond -
(a).... to be of good behaviour and to comply with other conditions (if any) of the bond; and
(b)if the terms of the bond so require to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.”

It may be seen that a bond under that section may or may not require the probationer to appear before the Court for sentence if called upon. The relevant terms of the subject bond are as follows:

“You, the probationer, have been found guilty of the offences listed above. The court this day ordered that you be discharged on a bond with conviction and without a penalty having been imposed on you.”

The term and the amount of the bond were then set out followed by the conditions of the bond:

“1....... To be of good behaviour and comply with all of the conditions of this bond.
2To be under the supervision of an officer for a period of 18 MONTHS and obey all the lawful directions given by the probation officer particularly as to undertake any psychiatric and psychological assessment and treatment as directed, and undertake family planning programmes as directed.
3...... To report, within two working days of having signed this bond, at the offices of the Department of Correctional Services, Probation and Parole Branch, 3 James Clarke Road, NOARLUNGA CENTRE, SA 5168 Phone: (08) 8326 0355. (NOTE: There is no need to report if, within that two day period, a notice from the Department of Correctional Services that it is not necessary to do so, is received.)”

The next page of the bond contains the following:

“WHAT WILL HAPPEN IF YOU COMPLY WITH CONDITIONS OF THIS BOND:
If, at the end of the term of this bond you have complied with all of the conditions mentioned above, the sentence of imprisonment ordered by the court will not have to be served, nor will you have to come back to court.
WHAT WILL HAPPEN IF YOU FAIL TO COMPLY WITH THE CONDITIONS OF THIS BOND:
If you fail to comply with any of the conditions of your bond, the following things may happen -
1...... You may be brought back to court, and the court may cancel the order of suspension of the prison sentence imposed on you. You would then have to serve the sentence, or such lesser term of imprisonment fixed by the court.
2.You may be ordered to pay the above amount of the bond, or any lesser amount fixed by the court.
3...... Any person who has agreed to act as a guarantor to this bond may be ordered to pay the amount of money for which they have signed, or any lesser amount fixed by the court.
ACKNOWLEDGEMENT BY PROBATIONER

I agree to enter into this bond. I acknowledge that I fully understand its conditions, and I undertake to comply with those conditions. I also understand what will happen to me if I fail to do so.”

The terms of the bond are as in Form 2 of the Schedule to the Criminal Law (Sentencing) Act except that Form 2 contains the following condition which is not in the bond:

“2..... That you appear before a court for conviction and/sentence on the above offence(s) if you disobey any of the conditions of the bond.”

The question is whether the terms of the bond require the respondent to appear before a court for sentence or conviction and sentence upon his being in breach of the bond. I do not think they do. The explanatory notes as to what will happen are not terms of the bond. The terms are the amount, duration and conditions of the bond. If the respondent was to come up for sentence upon breach of the bond, there must be a term in the form of a condition of the bond to that effect as is shown in Form 2. On the occasion that the bond was administered, the appellant was convicted and was discharged without imposing penalty upon the condition that he enter into a bond to be of good behaviour and to comply with the stated conditions. Section 39(2) of the Criminal Law (Sentencing) Act provides:

“(2) Where a defendant is discharged under this section -
(a).... no fresh prosecution may be commenced in respect of the offence; and
(b) the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.”

As the terms of the bond did not require him to appear before the court for sentencing upon being in breach of the bond, no sentence could be imposed. So such is also made clear by s58(1)(c) of the Criminal Law (Sentencing) Act which provides that:

“58(1)......... Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court -
..................
(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.”

The powers of the learned Magistrate upon it being established that the appellant was in breach of the bond are set out in s58 of the Criminal Law (Sentencing) Act. The only power relevant to the appellant is the power to order that he pay the whole or part of the amount of the bond: s58(1)(a).
The learned Magistrate misunderstood the terms of the bond and he purported to exercise the power in s58(1)(c)(ii). As has been mentioned, he said that he was not taking any action on the bond. He said that his reason for that course was that he was incorporating what “should be done in relation to the re‑sentencing ...” upon sentencing him for the most recent offence which was committed on 29th March 1998.
In my view, that approach was incorrect. Section 58(1)(c) had no application to the matter for the learned Magistrate for the reasons I have mentioned. If its terms of the bond did bring the bond within s58(1)(c), there could be no sound reason to apply the provisions of s58(1)(c)(ii). The subsequent offending was not trivial and there were no proper grounds upon which the failure to comply with the bond could be excused because the respondent had again offended in much the same manner and the offending was a serious breach of the law. So, the learned Magistrate could not have refrained from taking action in respect of the failure to comply. The only discretion to be exercised by the learned Magistrate upon being satisfied that the respondent was in breach of the bond was to consider whether he should pay the amount of the bond. There could not be any reason in the circumstances to justify an order that he not have to pay that sum.
The learned Magistrate erred in his characterisation of the nature of the bond and in the manner in which he dealt with the failure to comply with the terms of the bond. The appeal must succeed on that matter.
I now turn to the appeal against the sentence. The learned Magistrate had before him a pre-sentence report prepared by a probation officer which sets out the background of the respondent. He separated from his family when aged fourteen years and has not had contact with them for some years. He was educated to year nine level and has had employment. When he left school he lived for a time on the streets. He did not complete an apprenticeship as a panel beater as his master encountered financial difficulties. He later completed a TAFE course in customer service and gained employment for about four months and then obtained other employment in successive jobs for about two and a half years. He has been unemployed for about two years.
The respondent has been in a defacto marriage relationship since 1993 and there are two male children aged two years and three months. There have been serious complications in that relationship. It is unnecessary for present purposes to mention those difficulties but it may be accepted that there is instability in the relationship and it is by no means certain that it will continue. The respondent suffers from depression and at times has experienced suicidal ideology. In the past he suffered from alcohol and other drug abuse but is no longer drinking excessively or taking drugs.
The probation officer reported that after entering into the bond on 14th April 1997, the respondent was resistant to social work intervention and denied that he needed professional assistance. His reporting habits were poor and he failed to keep appointments and did not attend any programmes. He received $250,000 from a magazine. It seems he must have won some type of competition. He declined the advice to seek professional financial guidance and lost the money through poor investments.
Of importance in the sentencing context is the view of the probation officer that the respondent is unable to recognise the serious nature of his offending but is remorseful. He appears to have little understanding of acceptable behaviour in public and lacks awareness of how offensive his conduct could have been to others.
The learned Magistrate was informed that the respondent is now willing to obtain a psychiatric assessment and undertake appropriate programmes but none the less his attitude to his offending is of concern.
The maximum penalty for an offence under s23(1)(b) of the Summary Offences Act is a fine of $2,000 or imprisonment for a term not exceeding six months.
In his remarks as to sentence, the learned Magistrate said that he did not believe that the respondent understood the seriousness of his conduct. He accepted that he had not responded well to supervision whilst on probation and said his personal life seemed to be chaotic. He impressed upon the respondent the significance of a suspended sentence and that if he did offend again and did not undertake supervision and appropriate programmes, he would go to gaol.
Ms Hodder, for the appellant, contended that the learned Magistrate erred in that he did not give sufficient weight to the serious nature of this type of offending and that the respondent was a repeat offender and was on a bond whilst he committed the offence. His repeat offending demonstrates that he has a continuing attitude of disregard for the law. He had abused leniency. Given these matters and the matters set out in the pre-sentence report, the sentence was inadequate and there could be no justifiable reason to suspend the sentence.
I deal first with the sentence of imprisonment for ten days. The conduct constituting the offence is sadly pathetic. Obviously the respondent has a significant problem which was recognised by the learned Magistrate. The problem is not only his inappropriate and public sexual behaviour but his refusal to do anything about it. The learned Magistrate was told that he is now prepared to do something about it. If he does, it may be possible that his problem will be resolved. It is in those circumstances that the learned Magistrate decided to give him another chance. He has fixed upon a sentence of imprisonment. The suspending of the sentence upon the conditions imposed is an attempt to compel the respondent to face up to his problem and obtain assistance.
Given all of the circumstances, I think the learned Magistrate was correct in taking the imprisonment option for the first time for the respondent. A short term of imprisonment was justified in all the circumstances, both of the offence and the respondent. Given the nature of the indecency and the past offending, a fine or community service would not have been appropriate. A sharp lesson was appropriate and I do not think a longer term of imprisonment was required. At all events, it cannot be said that the learned Magistrate was in error in the sentence which he imposed. Even if he was, it is not the type of error which would justify intervention on a prosecution appeal.
Suspending the sentence was also appropriate in the circumstances. It seems clear that the learned Magistrate wanted to give the respondent the chance to resolve his problem and thereby rehabilitate himself. The sanction of having to serve a sentence of imprisonment if the conditions of the bond were not observed is, I may say so, a humane and sensible approach. In my view, the learned Magistrate was not in error.
The appeal against the sentence and suspending the sentence fails.
The appeal is allowed on the limited basis I have mentioned. I shall hear the parties as to the terms of the orders which should be made.

[1998] SASC 6999

18 December 1998