Police v HERITAGE

Case [2018] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v HERITAGE

[2018] SASC 47

Judgment of The Honourable Justice Parker

11 April 2018

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

This is an appeal by the police against a decision by a Magistrate to excuse a breach of a suspended sentence bond.

The respondent assaulted his domestic partner and was sentenced to imprisonment for nine months, suspended upon entry into a good behaviour bond. The respondent subsequently assaulted the same victim in breach of the bond. A Magistrate excused the breach of the bond but extended its term by six months under ss 58(3)(a) and 58(3)(b)(i)(A) of the Criminal Law (Sentencing) Act 1988 (SA).

On appeal, the appellant contends that the Magistrate erred by having regard to the personal circumstances of the respondent and by having insufficient regard to the circumstances of the offending.

Held per Parker J, dismissing the appeal:

1. When determining whether there are proper grounds to excuse a breach of a bond under s 58(3), the court may consider the personal circumstances of the defendant when those factors properly form part of the circumstances of the breaching offence and suggest that revocation of the suspended sentence may be a disproportionate response, per R v Buckman (1988) 47 SASR 303; R v Marston (1993) 60 SASR 320; R v Gannon (2009) 103 SASR 398; R v Smith (2014) 118 SASR 487. In this case the Magistrate did not err by having regard to the personal circumstances of the respondent, at [51]-[54].

2. A contention that a sentencing judge gave insufficient weight to relevant factors is incapable of enlivening intervention of an appeal court in circumstances where the error alleged is a process error and not one of manifest inadequacy, per Police v Chilton (2014) 120 SASR 32; R v Lutze (2014) 121 SASR 144. In any event, it is clear that the Magistrate took into account the circumstances of the offending, at [56].

Criminal Law (Sentencing) Act 1988 (SA) s 58, referred to.
R v Buckman (1988) 47 SASR 303; Police v Chilton (2014) 120 SASR 32; Police v Deng [2017] SASC 151; R v Gannon (2009) 103 SASR 398; Johnson v South Australian Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995); R v Lutze (2014) 121 SASR 144; Manning v Police (1993) 59 SASR 427; R v Marston (1993) 60 SASR 320; R v Reynolds (Unreported, Supreme Court of South Australia Court of Criminal Appeal, Mulligan, Debelle and Nyland JJ, 27 October 1995); R v Smith (2014) 118 SASR 487; Stanitzki v Higgins (1994) 63 SASR 309; Police v Summers [1998] SASC 6950; Police v Vannarath [2015] SASC 187, discussed.

POLICE v HERITAGE
[2018] SASC 47

Magistrates Appeal:  Criminal

  1. PARKER J:          This is an appeal by the…

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Police v HERITAGE [2018] SASC 47
Case
[2018] SASC 47
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CaseChat Overview and Summary

The appeal in Police v Heritage was heard by the South Australian Court of Appeal. The respondent, Heritage, appealed against the decision of the Magistrates Court of South Australia to activate a suspended sentence of imprisonment due to a breach of the conditions of a bond. Heritage argued that the Magistrate had erred in not excusing the breach of the bond.

The central issue was whether the Magistrate had erred in finding that there were proper grounds upon which the breach could be excused. The appeal required a review of relevant authorities concerning the interpretation of "proper grounds" and "special circumstances" as defined in the Sentencing Act. The Court needed to determine whether the Magistrate had correctly applied these principles in assessing the breach and whether the sentence imposed was appropriate.

The Court of Appeal found that the Magistrate had not erred in considering the circumstances of the breach. The Court emphasised that the terms "proper grounds" and "special circumstances" must be understood in the context of the nature of the breach and any significant changes in circumstances since the original sentencing. The Court noted that while a breach might not be trivial, it could still be excusable if the consequences of activating the sentence would be disproportionate. The Court held that the Magistrate had correctly exercised their discretion in activating the sentence, as the breach was not excused by proper grounds. The appeal was dismissed, and the Magistrate's Court was directed to correct the Certificate of Record to accurately reflect the sentence imposed.

In conclusion, the Court of Appeal upheld the Magistrate's decision, finding that the sentence was appropriate and the Magistrate had correctly applied the principles concerning proper grounds and special circumstances. The appeal was dismissed, and the Magistrate's Court was directed to amend the record to accurately reflect the sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I also observe that the appellant’s contention about insufficient weight is contrary to the statements by the Full Court in Police v Chilton[39] and in R v Lutze[40] that a complaint that adequate weight was not given to a factor is not, of itself, capable of enlivening the authority of an appeal court to intervene. At most, such a contention can merely form part of a submission that manifest error had occurred as the sentence was unreasonable or plainly unjust. It is not necessary to consider that issue as the appellant has not contended that the sentence for the 2017 offences was manifestly inadequate. Instead, the appellant has pursued this appeal on the basis that the Magistrate impermissibly took into account the circumstances of the respondent.[39] (2014) 120 SASR 32 at [17]-[19], Kourakis CJ, David J agreeing. [40] R v Lutze (2014) 121 SASR 144 at [46]-[47], Vanstone and Parker JJ.Conclusion The appeal is dismissed. The Magistrate’s Court is directed to correct the Certificate of Record to reflect the true sentence imposed on 16 October 2017 for the 2017 offences, being 28 days’ imprisonment suspended upon entry into a bond to be of good behaviour in the amount of $500 for a period of 18 months.

Ratio Decidendi

Legal Principle Established

The respondent submits that this is a relatively unremarkable case. If the Court finds the Magistrate erred, the appeal should nevertheless be dismissed with the Court stating in its reasons any relevant principles and giving guidance so as to ensure that adequate sentencing standards are maintained.Consideration The central issue in this appeal is whether the Magistrate erred in finding that there were proper grounds upon which the failure by the respondent to comply with the conditions of his bond could be excused. The contentions advanced by the appellant make it necessary to review the authorities in some detail. The AuthoritiesR v Buckman In Buckman the Court of Criminal Appeal dealt with the operation of ss 9(5) and 9(6) of the former Offenders Probation Act 1913 (SA). The repealed provisions cannot relevantly be distinguished from ss 58(3) and 58(4) of the Sentencing Act. The analysis of Jacobs J concerning the terms “proper grounds” and “special circumstances” was as follows: 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.[15] [15] R v Buckman (1988) 47 SASR 303 at 307. Jacobs J also stated:… the legislation contemplates that a breach may be excusable, if it is trivial or if there are otherwise proper reasons to excuse the breach; but whether trivial or not, those reasons must lie primarily in the nature of the breach itself.[16][16] Ibid at 308. King CJ agreed with the reasons of Jacobs J but made the following additional observations about the former s 9(5):[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.[17]R v Marston[17] Ibid at 304. The principles expressed by King CJ and Jacobs J in Buckman must be considered in light of the subsequent Full Court decision in R v Marston.[18] The appellant was a 19 year old woman who suffered from a range of intellectual and psychological problems. She had previously been convicted of robbery with violence and sentenced to three years imprisonment with a non-parole period of two years. That sentence was suspended upon her entering a bond to be of good behaviour. Some three months after entering the bond she committed an offence of larceny. No additional penalty was imposed for the larceny. However, the sentencing Judge rejected her submission that there were proper grounds upon which her failure to comply with the bond should be excused. The suspended sentence was therefore activated. [18] (1993) 60 SASR 320.