Police v JOHNS - [2013] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v JOHNS
[2013] SASC 123
Judgment of The Honourable Justice David
2 August 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES - BREACH - PROCEDURE
Prosecution appeal against sentence. The respondent pleaded guilty to one count of using a motor vehicle without consent, one count of theft, one count of driving unlicensed and one count of failing to comply with a condition or term of a bail agreement. The Magistrate recorded convictions for all four offences and imposed a single penalty of four months imprisonment, which was suspended upon the respondent entering into a two-year good behaviour bond. The appellant now appeals this sentence on the grounds that (1) it is manifestly inadequate, (2) the Magistrate erred in suspending the sentence and (3) the Magistrate failed to deal with the breach of an existing suspended sentence bond that was caused by the respondent’s current offending.
Held: Appeal allowed.
1. The sentencing Magistrate gave the appellant credit for nine months spent in custody. Both parties concede that the sentencing Magistrate should only have given the respondent credit for six months spent in custody as another Magistrate had already given the respondent credit for three months spent in custody when sentencing him for other offending. This error has caused the entire sentencing exercise to be irredeemably contaminated. The respondent is to be resentenced by this Court.
2. Although the current offending was in breach of an existing suspended sentence bond, the sentencing Magistrate has not erred by failing to deal with the breach of the suspended sentence bond. As no application was before the sentencing Magistrate for the enforcement of the breached bond and for revocation of the suspended sentence, he was not required, of his own motion, to deal with the question of revocation of the suspended sentence bond. This situation is to be distinguished from circumstances where an application for enforcement of the breached bond is before the sentencing Magistrate, or an application has been made for an adjournment for the purposes of preparing such an application.
Criminal Law Consolidation Act 1935 (SA) s 86A, s 134, s 86; Criminal Law (Sentencing) Act 1988 (SA) s 58, s 58(3), s 58(1)(d); Motor Vehicles Act 1959 (SA) s 74(2); Bail Act 1985 (SA) s 17, referred to.
Police v Wanganeen [2012] SASC 237, distinguished.

POLICE v JOHNS
[2013] SASC 123
Magistrates Appeal: Criminal

DAVID J: This is a prosecution appeal against the inadequacy of a sentence imposed on the respondent. The respondent pleaded guilty to one count of using a motor vehicle without consent contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”), one count of theft contrary to s 134 of the CLCA, one count of driving unlicensed contrary to s 74(2) of the Motor Vehicles Act 1959 (SA) (“the MVA”) and one count of failing to comply with a condition or term of a bail agreement contrary to s 17 of the Bail Act 1985 (SA) (“the Bail Act”).
The Magistrate recorded convictions for all four offences and imposed a single penalty of four months imprisonment, which was suspended upon the respondent entering into a two-year good behaviour bond in the amount of $400.
The respondent also incurred a licence disqualification for 12 months in relation to the offence against s 86A of the CLCA and a licence disqualification for three years in relation to the offence against s 74(2) of the MVA.
The appellant now argues that this sentence is manifestly inadequate, that the learned Magistrate erred in suspending the sentence and that the sentencing process miscarried upon the learned Magistrate’s failure to consider s 58 of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”), in that he did not deal with the breach of a suspended sentence bond which had been entered into and allegedly breached by the present offending.
In argument before me, it was agreed between the parties that the sentencing Magistrate, through no fault of his own, erred in giving the respondent credit for nine months spent in custody, when in fact the correct period to be taken into account was six months. This error arose as, credit for three of those months had just days earlier been taken into account by another Magistrate in connection to sentencing the appellant in another matter. As a result, the appellant has effectively received double credit for three months that he spent in custody.
The appellant now argues that this inaccuracy affects the whole sentencing process employed by the Magistrate at first instance, including the Magistrate’s decision to suspend the term of imprisonment imposed. The respondent argues that this error does not affect the Magistrate’s sentencing process because giving the appellant credit for time spent in custody for the period of six months as opposed to nine months would ultimately not have made a difference to the sentence imposed.
In my view, given that the total term of imprisonment imposed by the Magistrate was for a period of four months and the abovementioned error regarded a total discrepancy of three months, it is clear that the entire sentencing exercise, including the decision to suspend the sentence, has been irredeemably contaminated.
The appeal must be allowed on this ground and the respondent resentenced.
A further argument presented by the appellant was that, during the course of submissions, it came to the attention of the Magistrate that the respondent had entered into a suspended sentence bond on 11 October 2011. The length of the bond was two years and concerned offences of assault and resisting police. It suspended a term of imprisonment of two months. The present offending occurred on about 7 January 2012, which came within the period of that bond. However, no application was made to revoke that suspended sentence. If such an application was made, the sentence would have to have been carried into effect pursuant to s 58(1)(d) of the CLSA unless the Court was satisfied that the breach was trivial and the matter could have been dealt with under s 58(3), which provides:
(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 the period within which any uncompleted hours of community service must be performed by not more than 6 months; or
•if the period within which the community service must be performed has expired, impose a period of not more than 6 months within which any uncompleted 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.
I am told that at the hearing before the Magistrate in this matter the prosecutor informed the Magistrate of the existence of the suspended sentence bond but no application was made to have it revoked seemingly because the Magistrate made it clear that the bond related to a different category of offending.
The appellant now argues that the Magistrate erred in not dealing with the breached bond even though no application was made. The appellant cited the case of Police v Wanganeen,[1] in which a sentencing Magistrate declined to deal with the breach of a suspended sentence bond by not granting an adjournment so that a written application for estreatment could be lodged. In that case, Gray J held that, in refusing that application, the Magistrate was in error in that he did not observe s 58(1)(d) of the CLSA, namely that he “must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.”
[1] [2012] SASC 237.
In my view, the present case can be distinguished from Police v Wanganeen.[2] In this case, there was no application before the sentencing Magistrate for enforcement of the breached bond nor any application for an adjournment for the purpose of making such an application. The fact that the Magistrate was apprised of the presence of the suspended sentence bond of itself does not require him, of his own motion, to deal with the question of revocation. For that reason I find that there has been no error in that aspect of the sentencing process.
[2] [2012] SASC 237.
However, as I have indicated, the whole of the sentencing process has miscarried because of the admitted mistake about time spent in custody and the respondent is to be resentenced. I can see no reason to remit the matter back to the Magistrate for the purpose of resentencing. Rather, I will hear submissions and entertain any further applications in relation to that resentencing.