Police v GRAHAM - [2016] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v GRAHAM
[2016] SASC 78
Judgment of The Honourable Justice Peek
9 June 2016
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - IRRELEVANT FACTORS
Appeal against sentence.
The appellant pleaded guilty to a number of offences and was sentenced by a Magistrate to a period of six months and three weeks imprisonment. The Magistrate did not find good reason to suspend any part of the sentence, and made some criticism of the appellant’s behaviour and demeanour whilst she was a participant on an intervention program, finding that she could derive no benefit for her involvement. A technical recording problem resulted in the Court being unable to produce a transcript of the sentencing remarks.
The appellant filed grounds of appeal asserting that the Magistrate erred in not suspending any part of the term of imprisonment; that the fact that sentencing remarks were not recorded frustrated the appellate function of this Court and required this Court to resentence the appellant; and that the Magistrate erred in taking into account the appellant’s performance whilst a participant in an intervention program (in breach of s 10(5)(b), Criminal Law (Sentencing) Act 1988.)
Upon request of the Court immediately after the appeal hearing, the Magistrate provided a report recounting his memory of his sentencing remarks.
Held:
1. The Magistrate did not proceed on the basis that any of the individual offences were too serious to permit suspension of any part of the sentence as asserted by counsel for the appellant. Rather, he considered, after taking into account all of the facts and circumstances, that there was not good reason to suspend the sentence imposed.
2. The Magistrate did not err in law by failing to produce written reasons in the circumstances.
3. There has been no prejudice suffered by the appellant because the Magistrate’s process of reasoning is available to the Court and does enable the Court adequately to address the grounds of appeal.
4. The Magistrate’s criticism in relation to the appellant’s participation in the intervention program was a minor breach of s 10(5)(b), Criminal Law (Sentencing) Act 1988 and requires that the appellant be resentenced.
5. It is appropriate to dismiss the appeal, as the Court would, if resentencing the appellant, impose a greater sentence (and non-parole period) than the head sentence imposed by the Magistrate.
Criminal Law (Sentencing) Act 1988 ss 10(5)(b), 32(5)(a), 38(1), 38(2a); Supreme Court Civil Rules 2006 r 295(1)(e); Supreme Court Civil Supplementary Rules 2014 r 233, referred to.
R v O'Toole [2013] SASCFC 18; H, RJ v Police (2005) 93 SASR 62; Sumner v Police [2007] SASC 295; Weininger v The Queen (2003) 212 CLR 629, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"performed badly", "satisfactory progress"

POLICE v GRAHAM
[2016] SASC 78
Magistrates Appeal

PEEK J. Appeal against sentence pursuant to s 42, Magistrates Court Act 1991.
On 12 January 2016, the appellant, who had pleaded guilty to a large number of offences, was sentenced by the Magistrate to a period of six months and three weeks imprisonment to commence on 27 November 2015.[1] The head sentence was derived from a period of 11 months and three weeks resulting from two successful applications to enforce breached bonds, and the following individual sentences (less five months for time spent in custody):
[1]    Her sentence will be completed on 16 June 2016.
·Six counts of failing to comply with a bail agreement.[2] On 21 March 2015 she failed to report to Elizabeth Police Station as required; on 29 April 2015, 19 and 29 August 2015 she failed to report to the Holden Hill Police Station as required; on 21 August 2015 she was absent from her home address after 10:00pm where a curfew applied; and between 26 and 29 November 2015 while subject to home detention she left her home address and removed her home detention bracelet. These breaches related to five separate bail agreements.
·Three counts of making off without payment.[3] On 10, 11 and 12 May 2015 she drove off from different petrol stations without paying for petrol valued at $23.79, $40.06 and $30.08 respectively.
·Two counts of unauthorised driving of a motor vehicle on a road.[4] On 10 and 11 May 2015 she drove a motor vehicle without holding or having ever previously held a drivers licence.
·One count of damaging property.[5] On 24 February 2015 she damaged three letter boxes in the foyer of an apartment complex by pulling the corners outwards, the repairs of which cost $748.
·Four counts of dishonestly taking property without consent.[6] On 24 February 2015 she stole letters and other correspondence of unknown persons; on 27 February 2015 she stole food items from Coles, valued at $105.26; on 10 March 2015 she stole two Lindt chocolate bunnies from BP, valued at $11.98; on 5 May 2015 she stole a pregnancy test from a chemist, valued at $19.99.
·One count of disorderly behaviour.[7] On 5 May 2015 she swore, was abusive to and threw items at chemist staff members.
·One count of unlawful possession.[8] On 27 February 2015 she had in her possession personal property namely a child’s back pack, a pair of sunglasses and a purse, which were reasonably suspected of having been stolen.
·One count of driving or using a motor vehicle without consent.[9] On 1 September 2015, she was found by police in the driver’s seat of a Nissan hatchback which had been reported stolen. The car was turned on; no keys were in the ignition, but there were obvious screwdriver marks around the ignition, and a screwdriver was found on the driver’s seat.
[2]    Bail Act 1985 s 17.
[3]    Criminal Law Consolidation Act 1935 s 144(1).
[4]    Motor Vehicles Act 1959 s 74(2).
[5]    Criminal Law Consolidation Act 1935 s 85(3).
[6]    Criminal Law Consolidation Act 1935 s 134(1).
[7]    Summary Offences Act 1953 s 7(1)(a).
[8]    Summary Offences Act 1953 s 41(1).
[9]    Criminal Law Consolidation Act 1935 s 86A.
Since the head sentence was less than 12 months, a non-parole period could not be fixed[10] but there could be a partial suspension of sentence.[11]
[10] Criminal Law (Sentencing) Act 1988 s 32(5)(a).
[11] Criminal Law (Sentencing) Act 1988 s 38(2a).
At the sentencing hearing, the appellant appeared in custody via video-link, and was represented by counsel. It was some time later discovered that, due to an unexpected technical recording problem, the Court was unable to produce a transcript of the sentencing remarks.
The course of the appeal
Counsel for the appellant accepted that by 3 March 2016 (if not earlier) he was aware of the absence of a record of the sentencing process. On 11 March 2016, the appellant lodged a notice of appeal relying upon the following grounds:
1.   The Magistrate erred in not suspending any part of the term of imprisonment.
2.   That the Magistrate erred by taking into account the performance of the appellant whilst a participant in an Intervention Program.
3.   The fact that the sentencing remarks were not recorded frustrates this Court from performing its appellate function and requires resentencing of the appellant.
On 21 April 2016 the date for hearing of the appeal was set as 16 May 2016 at 10:00am and published in the warning list pursuant to Supplementary Rule 233.[12]
[12] Supreme Court Civil Supplementary Rules 2014.
On 22 April 2016 (more than three weeks before the scheduled date for the appeal hearing), counsel for the respondent emailed to counsel for the appellant a letter stating, inter alia: “The respondent would support any application by your client to the Supreme Court to request that the learned Magistrate provide a report prior to the hearing of the appeal.”
On 11 May 2016, counsel for the appellant affirmed an affidavit (“the appellant affidavit”) recounting the content of the submissions he had made to the Magistrate in mitigation and what he recalled the Magistrate had said upon delivering sentence.
The hearing of the appeal on 16 May 2016
On the hearing of the appeal on 16 May 2016, I received the appellant affidavit. I also received from the respondent an affidavit of the police prosecutor, the contents of which demonstrated (as would be expected) that she did not recall the submissions she had put to the Magistrate or the remarks the Magistrate made.
It was not until the end of the hearing of the appeal that counsel for the appellant finally made an application pursuant to r 295(1)(e), Supreme Court Civil Rules 2006 for the Court to request a report from the Magistrate concerning his memory of the content of his sentencing remarks on 12 January 2016. Counsel for the respondent, consistent with his suggestion to the solicitor for the appellant made some three weeks previously, readily agreed that this should be done.
At the conclusion of the hearing judgment was then reserved. Later that same day, the Court requested the Magistrate by email to provide the above report.
On 19 May 2016, the Magistrate very promptly provided a report, which was immediately forwarded by the Court by email to both counsel. In that email, the Court allowed both counsel until close of business on 25 May 2016 to provide further submissions in the light of the contents of the report. Counsel for the respondent provided submissions by email prior to that deadline. Counsel for the appellant did not do so. After a further email from the Court, he provided written submissions two days out of time without explanation, excuse or apology.
Ground 1 of appeal – The offending too serious to suspend the sentence
Counsel for the appellant submitted that since the head sentence was less than 12 months, it was open to suspend part of the sentence and that the Magistrate’s decision not to do so constituted appellable error. The error was said to be that the Magistrate had stated that “the offending was too serious to suspend” and that, in any event, the decision not to suspend was manifestly unreasonable.
It was submitted that the combination of the following factors required at least some period of suspension:
·that the appellant was a young person with a tragic background;
·that the appellant’s rehabilitation was important and would be assisted by a period of supervision;
·that the appellant’s performance whilst on bail was hampered by a lack of suitable accommodation;
·that a period of 11 months and three weeks imprisonment without a period of supervised release was excessive; and
·that the offences were not too serious to justify not suspending any of the sentence.
I accept that the appellant’s young age and unfortunate history and circumstances are both relevant and important. I accept also that a period of supervised release may have been beneficial to the rehabilitation of the appellant.
However, I do not accept that an imposition of a period of imprisonment without a period of supervised release in these circumstances constituted appellable error or was manifestly unreasonable or unjust. The appellant, despite her young age, has an extensive criminal history. She has had the advantage of having a previous sentence of imprisonment suspended upon entering into a bond. She has also been found to have breached bail agreements and bonds on multiple occasions prior to the offending under present consideration.
Counsel stated in the appellant affidavit that the Magistrate “considered that the offending was too serious to suspend any of the sentence”. From this rather tenuous basis, he attempted to argue that the Magistrate had misdirected himself to the effect that “a sentence for the type of offences involved here could not be suspended”.
I would agree that such a direction, if given, would be misdirection.[13] However, it is far from established that that is what the Magistrate did say. The appellant’s argument entirely depends on the words in the appellant affidavit “considered that the offending was too serious to suspend any of the sentence”; but even on the face of that affidavit, the deponent’s assertion does not purport to reproduce the actual words used by the Magistrate, but rather an interpretation of what the Magistrate must have “considered”. Clearly, the deponent could not say with specificity what it was that the Magistrate actually did say.
[13] R v O’Toole [2013] SASCFC 18, [50] (Peek J, with whom Sulan J agreed).
The Magistrate’s report is helpful in this aspect and confirms that his Honour did not misdirect himself. His Honour there stated:
… In this matter, given the criminal history, the number of offences before the court, the continued lawless behaviour of the defendant, and the fact that the defendant had had the benefit of a suspended sentence but had breached the bond, there was no basis upon which I could suspend, either wholly or in part, the sentence of imprisonment that I had imposed.
This makes express what was always entirely probable: the Magistrate did not consider any of the individual offences to be too serious to be suspended but rather considered that, taking into account all of the facts and circumstances (including the situation and antecedents of the appellant), there was simply not “good reason to suspend” the sentence imposed.[14]
[14] Criminal Law (Sentencing) Act 1988 s 38(1).
I reject ground 1 of appeal.
Ground 3 – The non-recording of the sentencing remarks frustrates this Court from performing its appellate function and requires a re-sentencing
The appellant contends that the fact that reasons were not recorded “frustrates this Court in performing its appellate function and requires resentencing of the appellant.”
First, it is to be noted that the lack of recorded reasons alone will not per se necessarily require this Court to resentence the appellant. Thus, in H, RJ v Police,[15] White J said[16]
[15] (2005) 93 SASR 62.
[16] H, RJ v Police (2005) 93 SASR 62, 64-66.
[5]     Although the magistrate gave some reasons for his sentence at the time of sentencing, no record of those reasons was available to this Court on the hearing of the appeal. The magistrate reported that he has not been able to locate any record of his sentencing remarks. He is unable to say whether that was because no record was made at the time of sentencing or whether it is because the notes which were taken have subsequently been lost. The magistrate informed this Court that he is now unable to recall precisely what he said at the time of sentence. It was submitted by Ms Duong, who initially appeared for the respondent, that I should request the magistrate to provide a report detailing, as best as he is now able, the matters taken into account by him in sentencing and what he said during the course of sentencing. I accept that I have the power to require such a report. However, given the intimation from the magistrate that he now has difficulty in recalling what he said, I think it inappropriate to request such a report in the present case. Counsel who appeared for the appellant in the Youth Court did not make any note of the magistrate’s sentencing remarks. It is usually prudent for counsel to make some note.
[6] The statutory policy is that a sentencing court should state its reasons for imposing a sentence. Section 9 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) provides:
(1)     A court must, upon sentencing a defendant who is present in court—
(a)    state its reasons for imposing the sentence; and
(b)cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.
(2)     The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
...
[8] Although there is no explicit requirement that a sentencing court should itself cause a record of the court’s sentencing remarks to be made, it is ordinarily to be expected that some record will be made and kept. This is particularly so where the effect of a sentence is the imposition of a term of imprisonment or detention. The absence of any record of the sentencing remarks creates difficulties on the appeal. The reasons for that are obvious enough. The circumstances in which this Court will interfere on appeal with an exercise of the sentencing discretion are well known. It is not enough that this Court would, if sentencing itself, have imposed a different sentence or that the court thinks the sentence is overly severe. This Court interferes with a sentence imposed by a magistrate only if satisfied that the sentencing discretion has miscarried. The exercise of a discretion miscarries if the sentencing court misapprehends the principles upon which the discretion is to be exercised, misunderstands relevant facts, fails to take into account relevant circumstances, or takes into account extraneous considerations or, alternatively, where the discretion is exercised in a manner which no reasonable court would adopt. The absence of any sentencing remarks makes review on the first three bases just outlined quite difficult. An appellant has then to rely on the fourth circumstance, namely, attempting to show that the sentence was so unreasonable that it could not have been imposed by any court acting reasonably. In this way, the right of appeal vested in an appellant pursuant to s 22 of the Youth Court Act is compromised.
[9]     A sentence is not to be set aside merely because of the unavailability of the sentencing court’s reasons for sentence. However, as was pointed out by Cox J in Leech v McCall, experience suggests that it is more common for this Court to interfere where there is an absence of reasons.   [Citations omitted]
In his supplementary submissions, counsel for the appellant submitted that, due to the complexity of the matter, the Magistrate’s report is insufficient to enable this Court to perform its appellate function. He relies on the well-known authorities that establish that a failure to give reasons may amount to error of law. However, this Court will not simply presume that an error of law occurred. Here, the Magistrate’s report confirms that he did not “fail to give reasons” in the sense that that phrase has been used in those authorities. Rather, his Honour did give reasons and he had a reasonable expectation that those reasons would be audio recorded. I do not accept the contention that the Magistrate erred in law in the present circumstances.
Counsel contended in the alternative that a miscarriage of justice has ensued due to the lack of written reasons, which was not due to any fault of the appellant herself. He relied in particular upon the decision in Sumner v Police,[17] where Duggan J said:
[8] It would appear that the magistrate in the present case made some remarks on sentencing. However, although enquiries have been made at the magistrates court, no copy of the reasons is available. It is important not only that a magistrate gives reasons for sentencing but that a copy of the reasons be retained for appellate purposes: R v Keyte[18]. As the magistrate’s process of reasoning is not available to the court the respondent has quite properly conceded that the appeal must be allowed and the sentencing discretion exercised afresh. (Emphasis added)
[17] [2007] SASC 295.
[18] (2000) 78 SASR 68. See also Papps v Police (2000) 77 SASR 210; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

I in no way differ from the approach there adopted by Duggan J. However, the present case is quite different from Sumner. Here, (unlike in Sumner) there has been no prejudice suffered by the appellant because the Magistrate’s process of reasoning is available to the Court and does enable the Court adequately to address the grounds of appeal.
Ground 2 of appeal – The performance of the appellant while participating in an Intervention Program
In the appellant affidavit, counsel stated:
8.I did not make detailed notes of the sentencing remarks. However I do clearly recall the learned Magistrate being critical of the appellant’s demeanour during her time on the Drug Court and on the Audio Visual Link during submissions. I recall that the criticism was to the effect that she was not taking either the Drug Court program or Court seriously.
9.The demeanour of the appellant was not raised with me during submissions. Her demeanour was not such that I noticed anything out of the ordinary during submissions. Had it been raised I would have submitted that the appellant was prone to smiling and laughing during all conversations, that she was relatively immature and that her demeanour does not belie the seriousness with which she took Court proceedings.
In his report, the Magistrate stated:
The defendant had made an application to have her matter dealt with pursuant to the Treatment Intervention Court Program. I noted that she had been a poor participant in the program, and had not taken the Program, or indeed these proceedings, seriously. (In that regard, she had, on her admission to the program, come in to court and laughed and joked with another participant at the back of the court, and then left, while the court was sitting. During sentencing submissions, she was smiling and rolling her eyes). I said that she could therefore derive no benefit for her involvement, such as it was, on the Program.
Counsel contends that the Magistrate erred in relation to his criticism of the appellant’s performance whilst a participant in the Treatment Intervention Court and of her demeanour whilst in Court during the sentencing proceedings, in two respects.
First, it is said that counsel was not given an opportunity to comment or rebut the Magistrate’s criticism; and that if he had known that the Magistrate would make such a criticism he would have submitted that the appellant was prone to smiling and laughing during all conversations; that she was relatively immature; and that her demeanour did not belie the seriousness with which she took court proceedings.
Second, it is said that the criticism in the context of an intervention program breached s 10(5)(b), Criminal Law (Sentencing) Act 1988. Section 10 relevantly provides:
10—Sentencing considerations
…
(4)If a defendant has participated in an intervention program, a court may treat the defendant’s participation in the program, and the defendant’s achievements in the program, as relevant to sentence.
(5)     However, the fact that a defendant—
(a)     has not participated in, or has not had the opportunity to participate in, an intervention program; or
(b)     has performed badly in, or has failed to make satisfactory progress in, such a program,
is not relevant to sentence.
Consideration of ground 2 of appeal
Ground 2 of appeal is rather finely balanced, but I conclude that the Magistrate’s frank report does establish a minor breach of s 10(5)(b), Criminal Law (Sentencing) Act 1988. I so conclude for the following reasons.
First, s 10(5)(b) specifically deems the fact that a defendant has performed badly in, or has failed to make satisfactory progress in, an intervention program to be irrelevant to sentencing. If irrelevant, it should not be commented upon by a prosecutor (which did not occur here) and nor should it be commented upon by a judicial officer.
Second, for a judicial officer to say to a person about to be sentenced that she “had been a poor participant in the program, and had not taken the program, or indeed these proceedings, seriously” would inevitably be understood as asserting in substance that that person “has performed badly in, or has failed to make satisfactory progress in, such a program.”
Third, most (if not all) people present at such a sentencing proceeding would assume that such an observation would indeed be highly “relevant” to sentencing, and for at least two reasons. First, being “a poor participant in the program and not taking the program, or indeed these proceedings, seriously” might well indicate a need for personal deterrence. Second, the judicial officer would not be talking about such things if they were not relevant to the sentencing process being undertaken by him.
Fourth, to say to the person being sentenced, as the Magistrate did here, “that she could therefore derive no benefit for her involvement, such as it was, on the Program” does not erase the previous comments. The words “she could therefore derive no benefit” may call to the mind of some trained lawyers the distinction (difficult at the best of times) between refusing leniency on the one hand and not increasing penalty on the other hand.[19] But here, only half of that difficult distinction was uttered, and even that was deemed by the legislation to be irrelevant.
[19] See, eg, Weininger v The Queen (2003) 212 CLR 629.
I consider that it is necessary to re-sentence because of the above matter. That being so, it is unnecessary to consider further the appellant’s first criticism that counsel was not given the opportunity to make submissions concerning the Magistrate’s observations concerning the appellant’s demeanour.
Re-sentencing the appellant
Having regard to all of the facts and circumstances of this case, accepting all matters of mitigation put by the appellant’s counsel, and putting aside entirely any suggestion adverse to the appellant concerning her participation in a program or her behaviour or demeanour in Court at any time, I have no doubt that the final head sentence of imprisonment that I would impose would be more, rather than less, than that imposed by the Magistrate; that I would not suspend it (or any part of it); and that any non-parole period I would set would be greater than the present head sentence of six months and three weeks. There is no appeal by the prosecution for inadequacy of sentence before me and I would not increase a sentence on a defendant’s appeal. It is therefore appropriate to dismiss this appeal.
Orders
1I grant an extension of time within which to appeal to 11 March 2016.
2The appeal is dismissed.