R v Alice Marie Lawrie No. SCCRM 92/649 Judgment No. 3704 Number of Pages 4 Criminal Law and Procedure

[1992] SASC 3704

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), PERRY(2) AND DUGGAN(3) JJ

CWDS
Criminal law and procedure - Sentence - breach of bond upon which sentence suspended - appeal from order revoking suspension of sentence - suspended aggregate sentence 21 months for two housebreakings - breaching offences hindering and assaulting police, resisting arrest, offensive language and false name and address attracting sentence of imprisonment for one month - Aboriginal woman in minor altercation with police - difference in kind between original offences and breaching offences - marked disproportion between seriousness of breaching offences and sentences activated - proper grounds for refraining from revoking suspension - appeal allowed.

HRNG ADELAIDE, 16 November 1992 #DATE 16:11:1992
Counsel for appellant:     Ms K Whimp
Solicitors for appellant:    Aboriginal Legal Rights Movement
Counsel for respondent:     Mr B J Jennings QC with
   Ms H M Lines
Solicitors for respondent: Director Of Public Prosecutions

ORDER
Appeal allowed.

JUDGE1 KING CJ The appellant was sentenced to imprisonment for 21 months in the Supreme Court at Port Augusta on 8 March 1990. That term of imprisonment was the aggregate of two sentences imposed by the Supreme Court on that day, one being a sentence of 9 months imprisonment for housebreaking and larceny, and the other a sentence of 12 months imprisonment for burglary. Both sentences were suspended upon the appellant entering into a bond to be of good behaviour for a period of two years. A non-parole period of 14 months was fixed. 2. On 29 April 1991, during the currency of that bond, the appellant committed offences of hindering the police, assaulting a police officer, resisting arrest, using offensive language, and giving a false name and address. 3. The appellant came before Millhouse J, in the Supreme Court, to be dealt with for the last mentioned offences, and upon an application to estreat the bond entered into as a result of the order made on 8 March 1990, and to revoke the suspension of the sentences imposed on that date. 4. The learned judge imposed a sentence of imprisonment for one month for each of the breaching offences, and ordered that those sentences be served concurrently with one another. 5. He revoked the suspension of the sentences imposed at Port Augusta and ordered that the sentence of one month's imprisonment be served cumulatively upon the aggregate of those two sentences, namely, the 21 months' imprisonment. The appellant has appealed to this court against the order revoking the suspension of the sentences imposed at Port Augusta. 6. The appellant is an Aboriginal woman. She has a significant record of prior offending, but none of her previous offences are of a similar nature to the house-breaking and burglary offences for which she was sentenced at Port Augusta. Indeed, they are all offences which can loosely be described as street offences and obviously all or most of them are related to the consumption of liquor. 7. The breaching offences, although not trivial, are not as serious as might appear from a mere recital of the charges on which she was convicted. It appears that a blood relative was involved in some disturbance. Both the relative and the appellant had been drinking. The police were summoned to the house where they were as a result of the disturbance. The police arrested the relative. The appellant went to her assistance and became involved in an altercation with the police, in the course of which she punched a police officer in the stomach. It was really a relatively minor altercation with the police in which two intoxicated women became involved in that altercation as a result of the attempt by the police to arrest one of them. 8. The learned judge was asked to refrain from revoking the suspension because there were proper grounds for so doing within the meaning of s.58(3) of the Criminal Law Sentencing Act. He was asked in the alternative, if that application should fail, to reduce the sentence by reason of special circumstances within the meaning of s.58(4) of the Criminal Law Sentencing Act. In the remarks to the appellant on passing sentence, which served as the learned judge's reasons, his Honour said:
    "Mr Carr has asked me, particularly because of your 15 year
    old daughter, not to make you serve the term of imprisonment
    imposed by Justice Bollen for which you are now liable to
    serve because you have broken your bond, or at least to reduce
    the time you have to serve. Certainly the latest offences
    are not of the same kind as those for which Justice Bollen
    sentenced you. That really does not matter. Nor are they
    trivial and they are rather more serious because it is not the
first time you have committed offences of the same kind." 9. Ms Whimp, who appeared for the appellant before us, has argued that the learned judge misdirected himself as to what constituted proper grounds for the exercise of the discretion under s.58(3). She put to us that the sentence "That really does not matter" conveys that the learned judge did not attach the significance which was required to the fact that the breaching offences were of a different kind to the offences for which the original sentence was imposed. 10. His Honour's attention was drawn to the case of Buckman (1988) 47 SASR
303. That case makes clear that relevant considerations in deciding whether there are proper grounds for refraining from revoking a suspension are not only the seriousness of the breaching offences in relation to the sentence which is sought to be activated, but also any difference in kind between the breaching offences and the original offences. 11. I think that there are substantial grounds for apprehending that the learned judge may not have appreciated the significance which the difference in kind between the breaching offences and the original offences possesses for the purpose of determining whether there are proper grounds for refraining the revocation of the sentence. 12. It is true, of course, that difference in kind is only one of the considerations. In many cases it will not be a consideration of great importance, but where the difference in kind is combined with a disproportion between the seriousness of the breaching offence and the length of the sentence the activation of which is in question, the difference in kind becomes of greater importance. I think that his Honour's expression that "That really does not matter" gives rise to serious apprehension that he may not have appreciated the importance of the difference in kind in the circumstances of the present case. 13. In this case there is a very marked difference in kind between the breaching offences and the original offences. The original offences were offences of dishonesty and disrespect for property. They were offences against property and offences against property of quite a serious kind. The breaching offences, when truly evaluated, are really nuisance offences differing only a little from what are usually described as street offences. 14. One does not wish to minimise the seriousness of offences which cause trouble to police officers and particularly which involve any degree, even a slight degree, of violence towards police officers, but these offences really amounted to no more than a relatively minor altercation in which two intoxicated women became embroiled with police officers. They could have caused only minimal discomfort to the police officers. 15. There is, therefore, a marked difference not only in seriousness but also in kind between the breaching offences and the original offences. It is true, as the learned judge remarked during argument, that an offender whose sentence is suspended is told that any breach of the law may result in the sentence being activated and it is also true, as the learned judge pointed out, that the seriousness of the breaching offences is increased by the background of prior offending. But when all that is taken into account, there is still a marked disproportion between the nature of the breaching offending and the length of the sentence which will be activated as a result of it, if the suspension is revoked. 16. In all the circumstances, I think that in this case there were proper grounds for refraining from revoking the suspension. I think that the learned judge was in error and, in my opinion, this court should intervene for the purpose of correcting that error. 17. In my opinion, the appeal should be allowed and the order revoking the suspension of the sentence should be set aside.

JUDGE2 PERRY J To excuse or vary the consequences of the breach of bond, the grant of which resulted in the suspension of a term of imprisonment, has a tendency to undermine the integrity of the sentencing process generally. It follows the power to do so should be exercised sparingly, and only in cases where proper grounds have clearly been made out or where genuinely special circumstances exist. 2. In the circumstances of this case, however, I am satisfied that the breaching offences were so different in kind and in seriousness that in the circumstances the proper order should have been an order refraining from revoking the suspended sentence. 3. I agree that the appeal should be allowed and that an order should be made in the terms indicated by his Honour the Chief Justice.

JUDGE3 DUGGAN J I agree that the appeal should be allowed and the order of the learned trial judge set aside for the reasons given by the learned Chief Justice.