Police v Peel

Case [2021] SASCFC 7

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

POLICE v PEEL

[2021] SASCFC 7

Judgment of The Full Court  

(The Honourable Chief Justice Kourakis, the Honourable Justice Kelly and the Honourable Justice Doyle)

5 February 2021

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS

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

The respondent was convicted of several offences, including two contraventions of intervention orders, and was sentenced to four months 15 days imprisonment.  The sentence was partially suspended, and after serving one month, the respondent was released from prison upon his entering into a suspended sentence bond.

The respondent subsequently breached this bond through a further contravention of an intervention order, rendering him liable to serve the balance of his sentence, subject to the breach being excused pursuant to s 114(3) of the Sentencing Act 2017 (SA). A Magistrate declined to excuse the breach, and made an order revoking the suspension and requiring the respondent to serve the balance of his sentence of imprisonment.

The respondent appealed the Magistrate’s order to a single Judge of this Court, contending that the Magistrate erred in his exercise of his discretion under s 114(3) of the Sentencing Act by failing to properly consider whether “proper grounds” existed for excusing the breach, and in giving undue weight to the respondent’s personal circumstances (and, in particular, his previous breaches of intervention orders). A single Judge allowed the appeal, and set aside the Magistrate’s order revoking the suspension.

The appellant seeks permission to appeal against the single Judge’s order.

Held, per Doyle J (Kourakis CJ and Kelly J agreeing), refusing permission to appeal:

1.      Consideration of whether there are “proper grounds” for excusing a failure to comply with a suspended sentence bond involves consideration of the nature of the breach and the circumstances in which it was committed, and of any disproportionality between the nature and extent of the breach and the severity of the consequence of revoking the suspension and requiring the original sentence to be served.

2.      A history of similar offending may be relevant on the basis that it informs a full understanding of both the seriousness of the breach offending, and of the circumstances in which, and reasons for which, the original suspended sentence was imposed and hence the proportionality or otherwise of revoking the suspension of that sentence.

3.      The Magistrate was entitled to have regard to the respondent’s significant history of similar offending, both as part of the offending giving rise to the suspended sentence bond and more generally, and the Judge below erred in concluding otherwise.  

4.      There is no utility in either granting permission to appeal or allowing the appeal in this case, as the respondent has now served the unexpired portion of the original sentence as a result of a further breach of the suspended sentence bond.

Sentencing Act 2017 (SA) 114, 114(1), 114(3); Criminal Law (Sentencing) Act 1988

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Police v Peel [2021] SASCFC 7
Case
[2021] SASCFC 7
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CaseChat Overview and Summary

This case concerned an appeal by the Police against an order of a single Judge who had set aside a Magistrate's decision to revoke a suspended sentence. The respondent had breached the conditions of a suspended sentence bond by contravening an intervention order. The Magistrate, in considering whether to excuse the breach under section 114(3) of the Sentencing Act 2017 (SA), took into account the respondent's extensive history of similar offending. The single Judge, however, concluded that prior offending could not be considered when determining whether to excuse a breach of a suspended sentence bond.

The legal issues before the Full Court were whether a court, when considering whether to excuse a breach of a suspended sentence bond under section 114(3) of the Sentencing Act 2017, could have regard to the offender's history of similar offending that predated the breach. The Court also considered the distinction between excusing a breach of a suspended sentence bond and reducing the term of the original sentence under section 114(5) of the Act.

The Full Court, in allowing the appeal, held that the Magistrate was entitled to consider the respondent's significant history of similar offending, both in relation to the offences for which the suspended sentence was imposed and more generally. This history was relevant to understanding the seriousness of the breach and the proportionality of revoking the suspension. The Court clarified that while the grounds for excusing a breach under section 114(3) are confined to the nature and circumstances of the breach itself, a history of similar offending informs the assessment of those circumstances and the overall proportionality of the consequence of revocation. The Court noted that the single Judge had erred in concluding otherwise.

Ultimately, the Court found that there was no utility in granting permission to appeal or allowing the appeal, as the respondent had already served the unexpired portion of his original sentence due to a further breach of the suspended sentence bond.

Orders

Orders of the court

Held, per Doyle J (Kourakis CJ and Kelly J agreeing), refusing permission to appeal:

1. Consideration of whether there are “proper grounds” for excusing a failure to comply with a suspended sentence bond involves consideration of the nature of the breach and the circumstances in which it was committed, and of any disproportionality between the nature and extent of the breach and the severity of the consequence of revoking the suspension and requiring the original sentence to be served.

2. A history of similar offending may be relevant on the basis that it informs a full understanding of both the seriousness of the breach offending, and of the circumstances in which, and reasons for which, the original suspended sentence was imposed and hence the proportionality or otherwise of revoking the suspension of that sentence.

3. The Magistrate was entitled to have regard to the respondent’s significant history of similar offending, both as part of the offending giving rise to the suspended sentence bond and more generally, and the Judge below erred in concluding otherwise.

4. There is no utility in either granting permission to appeal or allowing the appeal in this case, as the respondent has now served the unexpired portion of the original sentence as a result of a further breach of the suspended sentence bond.

Background

Background to the litigation

The appellant (Police) now seeks permission to appeal the single Judge’s order. The appellant’s sole ground of appeal is as follows:The learned Appeal Judge erred in holding that proven offending which predated a breached suspended sentence bond could not properly be taken into account in considering whether or not the breach of that bond should be excused pursuant to s 114(3) of the Sentencing Act 2017, where the prior proven offending was like in nature to some of the offending for which the bond was imposed and like in nature to the breaching offence.Background The respondent has had a troubled past. He has an extensive history of criminal offending, particularly in the nature of assaults and failing to comply with court orders. Many of his antecedents involve contraventions of intervention orders that have been made against him, and breaches of suspended sentence bonds and bail agreements. On 2 September 2019, the respondent was convicted of several offences, including two counts of breaching an intervention order, aggravated assault, breaching bail and various driving offences. The breaching of intervention order offences involved the respondent having physical contact with his former partner, RN. The relevant intervention order prohibited the respondent, inter alia, from being within 100 metres of RN. A Magistrate sentenced the respondent to four months 15 days imprisonment for these offences, backdated to commence on 14 August 2019. The sentence was partially suspended, in that the respondent was to be released after serving one month of imprisonment and upon his entering into a bond to be of good behaviour for 15 months. On 13 September 2019, the respondent entered into a suspended sentence bond and was released. On 23 October 2019, the respondent committed another contravention of an intervention order through further contact with RN. The respondent was visiting family at Port Augusta when RN arrived at the premises. Instead of leaving, as he was obliged to do, the respondent remained at the premises. The breach was detected when police attended in response to a disturbance unrelated to the respondent.The Magistrate’s decision On 24 October 2019, the respondent appeared before a Magistrate. He pleaded guilty to contravening the intervention order against him in respect of RN, and admitted that through this contravention he had breached the suspended sentence bond. It thus fell to the Magistrate to sentence the respondent in respect of the fresh contravention of the intervention order, and to determine whether to revoke the suspended sentence bond pursuant to s 114 of the Sentencing Act, thus requiring the respondent to serve the balance of the original sentence. In his remarks on penalty, the Magistrate referred in some detail to the respondent’s extensive history of offending, and particularly his repeated breaches of court orders. In this regard, the Magistrate said that “[t]he impression gained with respect to restraining orders and intervention orders and, to a less relevant extent breaching bail, is that you don’t really care whether you comply with those obligations or not.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 23 October 2019, the respondent committed another contravention of an intervention order through further contact with RN. The respondent was visiting family at Port Augusta when RN arrived at the premises. Instead of leaving, as he was obliged to do, the respondent remained at the premises. The breach was detected when police attended in response to a disturbance unrelated to the respondent.The Magistrate’s decision On 24 October 2019, the respondent appeared before a Magistrate. He pleaded guilty to contravening the intervention order against him in respect of RN, and admitted that through this contravention he had breached the suspended sentence bond. It thus fell to the Magistrate to sentence the respondent in respect of the fresh contravention of the intervention order, and to determine whether to revoke the suspended sentence bond pursuant to s 114 of the Sentencing Act, thus requiring the respondent to serve the balance of the original sentence. In his remarks on penalty, the Magistrate referred in some detail to the respondent’s extensive history of offending, and particularly his repeated breaches of court orders. In this regard, the Magistrate said that “[t]he impression gained with respect to restraining orders and intervention orders and, to a less relevant extent breaching bail, is that you don’t really care whether you comply with those obligations or not.” The Magistrate then turned to consider whether there were “proper grounds” on which the respondent’s failure to comply with the conditions of the suspended sentence bond should be excused pursuant to s 114(3) of the Sentencing Act. The Magistrate recognised that the offending conduct in this case was a product of what was essentially an innocuous chance encounter. However, viewing the breach holistically in the context of the respondent’s demonstrated and consistent indifference towards compliance with intervention orders and other court orders, his Honour was not satisfied that there were proper grounds upon which to excuse the breach. The Magistrate said:If it were to be viewed in isolation then yes, effectively a chance encounter with [RN], you stayed when you shouldn’t have stayed, but nothing threatening or abusive happened possibly the court wouldn’t be too concerned about that. The community wouldn’t be too concerned about that but it didn’t happen in isolation it happened against the background that I have mentioned and I haven’t had the time to canvass the full background but I have tried to highlight relevant aspects of that background. I have to look at it from a holistic, I am going to look at it from a holistic point of view. You have been in effect a serial offender so far as assaults are concerned. You have been a serial offender so far as breaching orders of the court is concerned. Intervention orders are put in place, and in this case this has been in place since 2016, you have had since 2016 or you have had some of that time since 2016 available to you to come to the court and ask for that intervention order to be revoked or varied so that you could be with [RN] if that is what you wanted and that is what she wanted but you haven’t done that. Intervention orders are designed to protect persons. If, when they are breached they are not punished effectively then the repute of the court, the integrity of the court will be diminished and we might as well just treat them as bits of paper that aren’t particularly important. They are bits of paper but they are particularly important because domestic violence is a scourge in this country and in this particular community.In ordinary circumstances I would be inclined to find that there was good or proper reason to excuse the breach or to reduce the term to be served but against the background that I have just mentioned I do not believe that either of those options are available to you.

Ratio Decidendi

Legal Principle Established

Section 114 of the Sentencing Act came into force on 30 April 2018, replacing the relevantly identical provisions in s 58 of the now repealed Criminal Law (Sentencing) Act 1988 (SA). Consideration In Police v Heritage,[10] Blue J (Stanley and Lovell JJ agreeing) explained the operation of s 58 of the repealed legislation in the context of a failure to comply with a suspended sentence bond. In terms equally applicable to s 114 of the Sentencing Act, his Honour said:[11][10] Police v Heritage (2019) 135 SASR 1.[11] Police v Heritage (2019) 135 SASR 1 at [21] (citations omitted).1. The first question to be addressed (where it is a live issue) is whether the court can and should [refrain from] revok[ing] the suspension under subs (3) [now s 114(3)].2. The court is only empowered to [refrain from] revok[ing] the suspension if satisfied that:(a) the failure was trivial; or (b) there are proper grounds upon which the failure should be excused.3. If the answer to the first question is no, the court must revoke the suspension.4. Once the court revokes the suspension, the second question to be addressed (where it is a live issue) is whether the court can and should reduce the term of the original sentence under subs (4) [now s 114(5)].5. The court is only empowered to reduce the term of the original sentence if satisfied that there are special circumstances justifying its so doing.6. The power to refrain from revoking the suspension arises at an earlier stage and involves different conditions and criteria to the power to reduce the term of the original sentence.7. There is a clear legislative policy that ordinarily a breach of a condition of a bond should result in the offender serving the full term of the original sentence and the court should not lightly interfere by refraining from revoking or reducing the term of the original sentence. Blue J then turned to explain the “different conditions and criteria” that exist in respect of the power to excuse a breach and the power to reduce the term of the original sentence, referred to above. It was in the context of explaining this distinction that his Honour said:[12] Turning to the meaning of the expression “proper grounds upon which the failure should be excused” in subs (3), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subs (3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach. This follows from a combination of the juxtaposition between the criteria of trivial breach and proper grounds for excusal (the former giving colour to the latter), the concept of “excusal” of the breach suggesting that the circumstances of the breach justify excusal, the legislative policy that ordinarily a breach should result in the offender serving the full term of the original sentence and the contrast between excusing a breach under subs (3) and reducing the term of the original sentence by reason of special circumstances under subs (4).In respect of the expression “special circumstances justifying [the court] reduc[ing] the term of the suspended sentence in subs (4), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subs (4) that those circumstances comprise new or different circumstances (which will usually if not invariably be personal circumstances) that have arisen or changed since the original sentence was imposed which if they had existed at that time would have justified a reduced sentence.[12] Police v Heritage (2019) 135 SASR 1 at [22]-[23] (citations omitted).