Police v Lindblom - [2009] SASC 168

SUPREME COURT OF SOUTH AUSTRALIA
(Appeals to a Single Judge: Criminal)
POLICE v LINDBLOM
[2009] SASC 168
Judgment of The Honourable Justice Gray
12 June 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
Appeal against sentence - whether sentence imposed by Magistrate manifestly inadequate - whether Magistrate erred in excusing defendant's breaches of two good behaviour bonds, not revoking suspended sentences of imprisonment.
Held: appeal dismissed - defendant has good prospects of rehabilitation - imprisonment counterproductive in the circumstances - Magistrate not in error.
Criminal Law (Sentencing) Act 1988 (SA) s 58(3), referred to.
R v Buckman (1988) 47 SASR 303; R v Walker (1981) 27 SASR 315; R v Wilton (1981) 28 SASR 362, considered.

POLICE v LINDBLOM
[2009] SASC 168
Civil
GRAY J.

This is an appeal by the Police with respect to the penalty imposed by the Magistrate. On 21 May 2009, I ordered that the appeal be dismissed. I now publish my reasons for that order.
On 16 September 2007, Dallas Matthew Lindblom, the defendant and respondent, committed the offences of carrying an offensive weapon, and disorderly behaviour in a public place. On 13 May 2008, he was sentenced to ten days imprisonment with respect to these offences. The sentence was suspended on his entry into a 12-month good behaviour bond. The Magistrate declined to revoke two earlier suspended sentences. It is this sentence that is the subject of the present appeal. Before the Magistrate, and on the hearing of the appeal, the defendant was unrepresented.
The complaint on appeal was that the Magistrate erred in excusing the defendant’s breaches of two earlier good behaviour bonds and not revoking suspended sentences of imprisonment.
To understand the sentence imposed on 13 May 2008, it is necessary to set out the circumstances giving rise to the two earlier good behaviour bonds. As at the date of this sentence, the defendant was subject to two suspended bonds. The first, a three-year bond suspending a sentence of two months imprisonment, was imposed for the offences of offensive language and resisting police, committed on 2 April 2006. The bond was originally entered into on 23 May 2006, but was extended on 4 April 2007 by 12 months with an expiry date of 23 May 2010. The second was a two-year bond suspending a sentence of two months and 28 days’ imprisonment for offences of disorderly behaviour committed on 3 February 2006, property damage committed on 10 June 2006 and disorderly behaviour committed on 31 August 2006, and was imposed on 4 April 2007 with an expiry date of 4 April 2009.
On the hearing of the appeal counsel for the Police submitted that the Magistrate erred by excusing the breaches of the bonds and imposing a sentence that was described as manifestly inadequate.
The Police submitted that the nature of the breaching offences coupled with the defendant’s history and antecedents and the prior excusing of his breach of the first bond, meant that there were no proper grounds upon which the breaches could be excused.[1]
[1] Section 58(3) of the Criminal Law (Sentencing) Act 1988 (SA); R v Buckman (1988) 47 SASR 303; R v Walker (1981) 27 SASR 315; R v Wilton (1981) 28 SASR 362.
The Police stressed that the breaching offences were committed within five months of the defendant’s prior appearance before the court. The Police emphasised the fact that the breaching offences were of the same kind as those the subject of the suspended sentences, the defendant’s history of committing the same kind of offences, and that the breaching offences were committed while the defendant was intoxicated. As a consequence, counsel for the Police submitted that the sentence of the Magistrate should be set aside and the respondent re-sentenced.
The defendant is 35 years of age and has a long history of minor offending. That offending has included disorderly behaviour, damaging property, loitering and offences involving conflict with the police. Police apprehension reports tendered on the appeal disclosed inappropriate conduct on the part of the defendant in February, April, June and August 2006 and then in September of 2007. The offending was generally in the nature of disorderly behaviour in public places, usually arising from the use of bad language, and inappropriate conduct towards police officers. On each of the occasions, it appears that the defendant was badly affected by alcohol.
The Magistrate, when fixing penalty in respect of the September 2007 offending, indicated that he took the view that the relevant conduct fell toward the lower end of the relevant scale of seriousness, and that a small fine would be appropriate notwithstanding the defendant’s antecedents.
In respect of the offence of carrying an offensive weapon, the Magistrate considered that a short term of imprisonment was appropriate, but that this sentence should be suspended. In particular, the Magistrate observed:
However, I read the pre sentence report and I recall what [counsel for the defendant] put on the last occasion and two things come through to me very clearly. Firstly, you had some real problems in recent years of a family nature including bereavements and you have had and you still have ongoing problem [sic] with alcohol. In my view it is very much to your credit that you have recognised that and that you have taken some steps with that problem. It is clear to me from the pre sentence report you are by no means over that problem, far from it, but you have taken at least the first step and that is you recognise the problem. You have been, as the pre sentence report writer indicates, moderately or reasonably compliant with your supervisory conditions. You have been under supervision for the last two years and I am told you have taken it into your own hands, as it seems the probationer officer’s attempt to get you an appointment with the Drug and Alcohol Services Council have not been successful, you have taken it into your own hands to continue to obtain an appointment and got an appointment. That will be of great assistance to you it seems to me, given your problems.
Balancing all those matters, in my view it is very much a line-ball matter. The things the prosecutor has put today are reasonable submissions to put. However, in my view, given the attempts you have made to address your problems and given the nature of the breaching offences, in particular the disorderly behaviour offence which was a minor matter compared to certainly one of the previous disorderly behaviours which gave rise to one of your suspended sentences, in my view there are proper grounds under s.58(3) of the Sentencing Act to excuse the breaches of each of the bonds, in particular for two reasons.
The Magistrate excused the breaches of the earlier bonds for the following reasons:
Firstly, in my view it would be a disproportionately harsh consequence to estreat, that is, to order that you serve the sentences of imprisonment on both the bonds as a result of the circumstances of the fresh offending before the court, and in saying that I rely upon the principles in Queen v Buckman.
The second matter, which is an important one in my view, is that you have made attempts during recent times and during the currency of these two bonds to deal with your problems and it seems to me you and the community would be better off if you are left in the community to continue with supervision and assistance to deal with those problems rather than to serve what would be a short term of imprisonment during which you would be unlikely to receive much, if any, assistance because of the shortness of that immediate term of imprisonment.
For those reasons I find there are proper grounds to excuse both breaches of bond and I do so. No action is taken on either bond. In regard to both the bonds, there is still in one case about 11 months to go and in the other 12 months to go so there is no need or any benefit served by extending either of those bonds.
The Magistrate then sentenced the defendant:
…I consider it is appropriate that there be a sentence of imprisonment. I would have imposed a sentence of 14 days. I reduce that to 10 days to give you credit for your pleas of guilty. One penalty s.18A, 10 days imprisonment, which is suspended upon you entering into a bond of good behaviour for a period of 12 months. The monetary amount on the bond is $50.
The bond I have given you today runs more or less concurrent with the two other bonds. They will all within about a period of two months expire next year in April and then in May. If you keep to the conditions of your bond, that is, keep out of trouble and continue going to supervision as directed on the supervised bond, then that will be the end of the matter. Hopefully you will gain some benefit in particular in the next 12 months. If you either fail to continue [to] attend supervision or you commit any fresh offences, you would have to expect that you have run out of chances and that you then be liable to serve the gaol terms on the new bond and on the two older bonds as well.
When the appeal was first called on, considerable difficulty was encountered in contacting Mr Lindblom in order to serve him with the appeal papers. Eventually, contact was made and the matter, after some months, came on for hearing. Two matters became apparent; Mr Lindblom was keen to avoid immediate imprisonment, and he wished to take steps to address his alcohol related problems.
During the course of the appeal, the Court received reports from the Department of Correctional Services and the Drug and Alcohol Services. The reports evidenced the defendant’s attempts and successes with respect to rehabilitation, and allowed the conclusion that the defendant has prospects of rehabilitation.
The defendant’s progress can be illustrated by a report of the Drug and Alcohol Services of 28 January 2009. The report addressed the defendant’s awareness of the link between alcohol misuse and unacceptable behaviour and provided the following summary:
Dallas is responding well to ongoing treatment and reports that he is now thinking differently about his relationship with alcohol. He states that he recognises no benefit from drinking alcohol to excess and realises that he can stay sober and enjoy himself safely. He is also aware that his long term heavy drinking has caused some health problems (stomach and Pancreas) and continued drinking to excess will only exacerbate these conditions.
Dallas has engaged enthusiastically with treatment and has clearly demonstrated that he is motivated to minimise harm to himself and the wider community, he also wishes to continue with treatment at DASSA.
During the course of the hearing of the appeal, counsel for the Police, although maintaining that the appeal should be allowed, acknowledged that significant rehabilitation was occurring, and accepted that it was open to this Court to have regard to this progress when determining the appeal.
The hearing of the appeal extended from July 2008 until May 2009 and allowed this Court the opportunity to monitor the defendant’s progress. This has assisted in the conclusion that the defendant is taking significant steps toward his rehabilitation. It is to be recognised that one of the primary purposes of the criminal justice system is to provide protection to the community. Rehabilitation of an offender has been said to be one of the best means of providing that protection.
In the course of the appeal, the Court was informed by counsel for the Police, that the defendant had committed a further offence on 8 March 2008 - the theft of alcohol. This offence occurred when the defendant, intoxicated through alcohol, reacted badly to a denial of service, and removed a bottle of spirits without making payment. On being questioned by the police, the defendant was unable to recall the events. The defendant was fined in the Magistrates Court apparently without the Court being aware of the within proceedings.
A complaint was subsequently made that the 8 March 2008 conduct also breached the earlier bonds. This further complaint was transferred to this Court. The defendant’s conduct breached the earlier bonds of good behaviour, but having regard to the circumstances outlined above and the penalty imposed, the breach should be excused and no further action taken. This further complaint is dismissed.
It is understandable that the police, on being confronted with repeated offending by the defendant, would press for increasingly stringent sentences in the hope that this approach would bring about a reformation of character and a changing of ways. In some cases that may be an appropriate procedure. However, in the present case, it is probable that such an approach has been, and would continue to be, counter-productive.
Throughout the court hearings on the appeal, the defendant has displayed a clear understanding of his problems and a wish to address them. He has employment, and his driving licence has now been returned. The defendant demonstrated that he did not wish to put these matters in jeopardy again.
The history of this appellate proceeding has demonstrated that the best method of having the defendant change his ways is to identify the cause of the problem and address that cause. There is little doubt that the cause of the defendant’s conduct has been alcohol abuse. There is a real risk that because of the ravages of earlier alcohol misuse, the defendant may lapse from time to time. It is to be hoped that should this occur, counselling and treatment will be available to assist the defendant to overcome this problem and to continue rehabilitation.
For these reasons I dismissed the appeal.