POPOWYCZ v POLICE - [2016] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POPOWYCZ v POLICE
[2016] SASC 126
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
12 July 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PROCEDURE
Appeal against sentence.
The appellant was charged with two counts of aggravated assault and one charge of property damage. The appellant pleaded guilty to one count of property damage. The two charges of aggravated assault were amended to one count of basic assault, to which the appellant pleaded guilty.
The Magistrate imposed a sentence of one month and three weeks imprisonment, which was reduced by 40 per cent from three months, suspended upon the appellant entering into a $400 bond to be of good behaviour for a period of 18 months.
The appellant appealed on two grounds. Firstly, that the imposition of imprisonment was manifestly excessive. Secondly, that the Magistrate erred in not applying the 40 per cent reduction to the whole of the sentence, including the good behaviour bond.
Held, dismissing the appeal:
1. The sentence imposed was not manifestly excessive.
2. The length and conditions of the term of the bond does not fall within the meaning of the word ‘sentence’ as defined in s 10B(2)(a) of the Criminal Law (Sentencing) Act 1988 (SA).
Criminal Law Consolidation Act 1935 (SA) ss 20(3), 348; Criminal Law (Sentencing) Act 1988 (SA) ss 3, 10, 10B, 11, 38, 39, referred to.

POPOWYCZ v POLICE
[2016] SASC 126

KOURAKIS CJ. This is an appeal against the sentence imposed on a conviction for assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The Magistrate imposed a sentence of one month and three weeks imprisonment, which was reduced by 40 per cent from three months, suspended upon the appellant entering into a $400 bond to be of good behaviour for a period of 18 months.
The appellant appeals on the grounds that:
1the imposition of imprisonment was manifestly excessive;
2the Magistrate erred in not applying the relevant 40 per cent discount to the whole of the sentence, including the good behaviour bond.
I would dismiss the appeal. The sentence imposed by the Magistrate was not manifestly excessive. The statutory reductions of sentences do not apply to the term of a bond. My reasons follow.
Background
On 21 August 2015 the appellant was charged with two counts of aggravated assault[1] and one count of damage to property.[2] The appellant pleaded guilty to the charge of damage to property on 20 October 2015 but contested the assault charges.
[1] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA).
The assault charges were resolved by a prosecution agreement to withdraw one of the counts of aggravated assault and amending the other count to a basic assault. The appellant agreed to plead guilty to the basic offence of assault on the first day of trial on 12 April 2016. The maximum penalty of imprisonment for that offence is two years.
The prosecution and the appellant agreed the facts of the assault. The agreed facts were that the assault occurred in the course of a discussion between the appellant and his former girlfriend, the complainant, about reimbursement for bond money on what had been their shared rental accommodation. The relationship between the appellant and the complainant had ended in July 2015. The offences were committed on 21 August 2015, about six weeks after the breakdown of the relationship.
The discussion about the return of the bond money extended over some six hours and became heated. It culminated in the appellant grabbing at the complainant’s necklace and breaking it. It was an agreed fact that the assault was committed by putting the complainant in fear. After grabbing at the necklace, the appellant left it on the premises but punched a hole in a gyprock panel of the bathroom wall before he left. The appellant pleaded guilty to the offence of damage property based on that conduct. There is no appeal with respect to that conviction, as the Magistrate imposed no further penalty in light of the penalty imposed on the assault.
The Magistrate considered the submissions as to the appellant’s objective factors. He was 32 years of age, was born in Adelaide and had a good relationship with his parents and his sibling. The appellant had a good employment history working in seafood processing, however that employment was interrupted by a work injury.
On the appellant’s arrest for the offences of aggravated assault and wilful damage, he voluntarily entered into an abuse prevention program and completed six of the 24 modules of that program. His attendance was not regular and was interrupted for a number of different reasons given by the appellant to the persons conducting that course.
The appellant had relevant prior convictions to which the Magistrate had regard. They included an offence of aggravated assault committed on 5 September 2011 for which the appellant was convicted on 22 March 2012 and placed on a good behaviour bond in the sum of $1,000 for a period of 18 months. Within nine months of entering into the bond the appellant committed offences of unlawful possession and possession of a firearm without a licence. Those offences were therefore committed in the currency of the good behaviour bond. On 27 September 2013 the appellant was convicted and a suspended sentence of two months’ imprisonment was imposed. The period of the bond for that suspension was 12 months.
The Magistrate expressly referred to ss 10 and 11 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) before proceeding to fix penalty. The express reference to those two sections shows that the Magistrate proceeded on the basis that all other penalties should be considered before deciding to impose imprisonment.[3] It also shows that the Magistrate had considered all the relevant sentencing circumstances set out in s 10 of the Sentencing Act.
[3] See Criminal Law (Sentencing) Act 1988 (SA) s 11.
The Magistrate selected a starting point of three months’ imprisonment before reducing that to one month and three weeks pursuant to s 10B of the Sentencing Act on account of the appellant’s guilty plea. The Magistrate appears to have proceeded on the assumption that the appellant was entitled to the maximum reduction of 40 per cent because he pleaded guilty immediately on a charge for the basic offence of assault being laid. I doubt that the Magistrate was right to do so, and the Magistrate’s approach was probably unduly favourable to the appellant.
The offence of basic assault is a natural alternative to an offence of aggravated assault. Accordingly, the appellant first appeared in relation to the offence of basic assault when he first appeared on the charges of aggravated assault. If the appellant had pleaded guilty on that occasion, the prosecutor might have decided not to accept the plea and to have proceeded on the aggravated assault. Alternatively, the prosecutor might have accepted the plea and a disputed fact hearing may have followed. In either of those events, if ultimately the appellant was convicted only of the basic assault and not the aggravated assault, he would have been entitled to the 40 per cent discount. Be that as it may, counsel were not prepared to argue that point, not having considered it before today. I will not determine this appeal on the basis that the appellant was not entitled to the 40 per cent discount.
Manifestly excessive
The first ground of appeal is that the term of imprisonment for three months was manifestly excessive as a starting point before any reduction for a guilty plea.
The sentence of three months for an assault constituted by fear and without any physical harm is at the higher end of the range. I accept that a Magistrate could reasonably have imposed a lesser sentence. I need not consider whether or not it would have been a proper exercise of the discretion to impose no sentence of imprisonment; it may have been. Be that as it may, the question on this appeal is whether the Magistrate’s selection of three months is so far outside the acceptable range as to be manifestly excessive.
Offences of violence by men against women are all too prevalent. All too often they result in harm but the deterrence of those offences will not be adequately achieved unless all offences of violence, whether they cause harm or not, are properly addressed. The strong need for general deterrence tends to suggest that, although high, the sentence of three months was not manifestly excessive.
Moreover in the circumstances of the appellant’s particular case, there was very limited scope to offer leniency and reduce the sentence that the objective seriousness of the offence demanded because of the appellant’s prior convictions, and in particular, his conviction for an offence of assault in March 2012. That conviction and the good behaviour bond did not prove to be adequate personal deterrence.
As I observed during the course of the hearing, it appears to me and I accept that the appellant, to his credit, maintained at least sufficient control to stop the matter escalating by deciding to leave, albeit punching a hole in the wall as he left. Nonetheless I am not persuaded that the Magistrate’s selection of a starting point of three months was so high as to be manifestly excessive.
Reduction of the bond
The second ground of appeal complains that the Magistrate erred in failing to reduce the period of the good behaviour bond by 40 per cent. The bond imposed by the Magistrate was for a period of 18 months. The appellant argues that the duration of the bond should have been reduced by 40 per cent.
The question therefore is whether the length of the term of the bond falls within the meaning of the word ‘sentence’ as it appears in s 10B(2)(a) of the Sentencing Act. For the reasons which follow, I hold that it is not.
First, I should immediately acknowledge that the length of the bond and the terms and conditions of the bond probably fall within the meaning of the word ‘sentence’ for the purposes of s 348 of the CLCA. Accordingly, there may be an appeal against the length or terms and conditions of the bond and appeal against sentence pursuant to the CLCA. However, that is not the question which I have to decide. The word ‘sentence’ is separately defined and used for quite different purposes in the Sentencing Act than it is in s 348 of the CLCA.
It is to be noted that there is a very different definition of the word ‘sentence’ in s 3 of the Sentencing Act which provides:
sentence means—
(a)     the imposition of a penalty; or
(b)     the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)     the fixing, extending or negating of a non-parole period; or
(d)     the making of any other order or direction affecting penalty.
Sub-paragraph (b) of the definition appears to be carefully drafted to exclude the length and terms and conditions of a bond from the definition of ‘sentence’. Sub-paragraph (b) includes only the decision to offer a defendant an opportunity to enter into the bond as part of the sentence, expressly stopping short there and not including the terms and conditions of the bond.
That carefully drafted definition appears to fit well with the definition of ‘bond’ in s 3 of the Sentencing Act which provides:
bond means an agreement (not being a bail agreement) entered into pursuant to the sentence of a court under which the defendant undertakes to the Crown to comply with the conditions of the agreement;
It will be observed that a bond is there defined as an agreement entered into pursuant to the sentence of a court and not as part of the sentence itself.
Counsel for the appellant relies strongly on sub-paragraph (d) of the definition of ‘sentence’ in s 3 of the Sentencing Act, and argues that the length of the bond does directly affect the penalty. If ‘penalty’ is read in a broad lay sense as something with which compliance causes difficulty or inconvenience, then the submission might have been accepted, but in the Sentencing Act the word ‘penalty’ is used in a narrower, more technical sense.
That can be seen, perhaps most starkly, in s 39 of the Sentencing Act. That section is headed ‘Discharge without sentence on defendant entering into a bond’. The heading is not part of the provision but it informs the provision’s construction. More importantly, s 39(1) provides that the court may, if good reason exists, discharge without imposing a penalty upon condition that the defendant enter into a bond. Section 39 of the Sentencing Act does not contemplate the bond itself being a penalty because the entry into the bond is something that happens when the court decides not to impose a penalty.
Section 38(1) of the Sentencing Act provides:
38—Suspension of imprisonment on defendant entering into bond
(1)     Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a)         to be of good behaviour; and
(b)         to comply with the other conditions (if any) of the bond.
It will be observed from s 38(1) of the Sentencing Act that imprisonment is regarded as the sentence which is suspended on condition that the defendant enters into a bond. The dichotomy established by s 38(1) is between the sentence, on the one hand, which is the period of imprisonment, and the mechanism, on the other, the bond, by which that sentence is suspended. A bond therefore is the obligation which a defendant takes on in order to be spared the sentence. It is an agreement which, if complied with during the period of the bond, will keep the sentence suspended.
There are other reasons to reject the appellant’s contention. If the period of the bond is part of the sentence then, for the same reason, so too would be its terms and conditions. I am not prepared to accept that the Parliament had in mind, when it enacted s 10B of the Sentencing Act a reduction in therapeutic conditions of the kind which are often imposed in bonds. If a particular course or courses of therapy or rehabilitation programs are considered to be appropriate, it is unlikely that s 10B was intended to have those programs reduced simply because they require some work or cause some hardship or inconvenience, when the effect of a reduction by as much as 40 per cent would mean that they had no therapeutic effect.
Ultimately, both the text of the Sentencing Act to which I have referred and the therapeutic and rehabilitative purposes of a bond combine to result in a reading of the word ‘sentence’ which excludes the length and the conditions of the bond from the word ‘sentence’ as it appears in s 10B. Ground 2 must be dismissed.
Conclusion
For the above reasons I dismiss the appeal.