R v Clark

[2015] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CLARK

[2015] SASCFC 101

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)

29 July 2015

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

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES

The appellant was sentenced on 5 August 2013 in the District Court to one year and nine months imprisonment, with a non-parole period of 11 months, for a series of dishonesty offences. The sentence was suspended on the applicant entering into a good behaviour bond for a period of two years. It was a condition of the bond that the applicant undertakes drug testing and refrain from any drug use.

An application was brought before the District Court to revoke the suspension after the applicant had returned two positive drug tests. That application was adjourned multiple times to allow for the appellant to undertake rehabilitation for his addiction. The applicant later returned a number of positive drug tests.

The suspension order was revoked on 12 March 2015 by a Judge of the District Court.

The applicant seeks permission to appeal the revocation of suspension to this court.

Held (per Kourakis CJ, Nicholson and Parker JJ agreeing):

1. Section 57 (5) of the Criminal Law Sentencing Act 1988 (SA) requires the court to hear any evidence tending to establish that a probationer has failed to comply with a condition of the bond.

2.  There is no error shown in the sentencing remarks.

3.  Permission to appeal is refused.

Criminal Law (Sentencing) Act 1988 (SA) s 57. s 58, referred to.
R v Buckman (1988) 47 SASR 303; R v Smith [2014] SASCFC 98, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"Suspended sentence", "breach of bond", "drug testing", "bond condition", "breach of bond condition"

R v CLARK
[2015] SASCFC 101

Court of Criminal Appeal:   Kourakis CJ, Nicholson and Parker JJ

1. KOURAKIS CJ:    On 5 August 2013 the applicant was sentenced in the District Court on dishonesty offences to a term of one year and nine months imprisonment with a non-parole period of 11 months.  The sentence was suspended on the applicant entering into a bond to be of good behaviour for a period of two years.  It was a condition of the bond that the applicant undergo drug counselling and drug testing to address his addiction.

2. In November 2013 an application was brought in the District Court to revoke that suspension because the applicant had twice tested positive to cannabis and methylamphetamine and on other grounds.  The application was adjourned from time to time to give the applicant an opportunity to deal with his addiction.  He did not do so and he again tested positive on numerous occasions.

3. On 12 March 2015 a Judge of the District Court revoked the order of suspension and ordered that the applicant serve the sentence from 28 January 2015, the date he was taken into custody.

4. The applicant seeks permission to appeal the revocation of the suspended sentence.  His application for permission was refused by a Judge of this Court on 4 May 2015 but has been renewed before the Full Court.

5. I would refuse permission to appeal.  The applicant’s failure to take any meaningful steps to control his drug use undermined the very purpose for which the sentence was suspended and there were no proper grounds on which to excuse his breaches.  The Judge’s decision was plainly right and his Honour’s reasons reveal no error.  My reasons follow. 

   Imposition of the sentence

6. The applicant was convicted on his plea of guilty of aggravated serious criminal trespass in a place of residence and a related offence of theft, both committed on 27 May 2012.  The offences were aggravated because they were committed in the company of another.  The occupier of the residence had moved to a nursing home at the time of the offences.  Property including jewellery, currency, clothing, a musical instrument, whitegoods, and other personal items were stolen.  The applicant attributed that offending to his use of methamphetamine.  He had used cannabis from age 14, alcohol from age 15 and methamphetamine from age 17.  The applicant completed year 11 of his secondary education.  He then worked as a welder until 2004.  Between 2004 and 2008 he cared for his father.  At the time of the offending the applicant was suffering from significant depressive symptoms and was using drugs to self medicate.

7. The applicant’s antecedent history included minor drug offending, damaging property, dishonesty offences and minor assaults.

8. The Judge’s reasons for suspending the sentence were expressed as follows:

   I turn to the question of whether good reason exists to suspend the sentence. Your antecedent report shows that apart from nuisance-type offences this offending is generally out of character for you. In my view, it is in your best interests and the community’s best interests that you undergo supervised treatment outside of the gaol system and in my opinion good reason does exist to suspend the sentence and I will do so on you entering into a bond to be of good behaviour for a period of two years, the bond being in the sum of $500.

9. After the applicant’s counsel informed the Judge that the applicant was prepared to enter into the bond the Judge remarked to the applicant that “the ball is in your court”.  It was not a condition of the bond that the applicant not take drugs but he was required to submit to drug testing.

   Breaches of the good behaviour bond

10. An application for the enforcement of the bond was brought in the District Court on 23 October 2013 pursuant to s 57 of the Criminal Law (Sentencing) Act 1988 (SA). That matter did not proceed and in late 2013 the applicant was returned to custody on other matters. Drug testing pursuant to the bond was suspended.

11. Another application for enforcement of the bond was brought on 29 November 2013 (the application) and the Judge revoked the suspension.  On the application it was alleged that:

    ·on 21 August 2013 the applicant did not attend and report to the Department of Correctional Services as he was required to do;

    ·on 27 August 2013 and 11 September 2013 the applicant submitted to urinalysis testing which returned positive results for cannabis, methamphetamine and amphetamine;

    ·the applicant failed to make contact with Drug & Alcohol Services South Australia (DASSA) in accordance with a direction given on 27 August 2013;

    ·the applicant breached bail on seven occasions between 6 August 2013 and 17 September 2013 which offences were admitted in the Holden Hill Magistrates Court on 25 September 2013.  (The breaches of bail can be ignored for present purposes.  They were minor inadvertent failures to report to police on bail granted on charges which were later dismissed and had been overlooked when the trespass matter, on which he received the suspended sentence, was dealt with.)

12. The applicant accepts that the positive drug test results showed that he had taken methamphetamine and cannabis and in so doing had breached his bond to be of good behaviour. 

13. On 30 April 2014 Mr Clark admitted breaching his bond as alleged in the application.  The Judge deferred sentencing to enable the probationer to meet the DASSA appointments and engage in counselling.  A further presentence report was ordered.  The Judge ordered that the applicant be random tested a dozen times between that date and 8 August 2014 and that an updated presentence report be provided at the resumption of the sentencing hearing on 13 August 2013.  At the conclusion of the hearing on 30 April the Judge addressed the application in these terms “I understand you’ve got a problem complying with the drug laws, but you’ve been given a lot of chances by Judge Lovell and now one by me.  This is your last”. 

14. The applicant did not make good use of that opportunity.  He tested positive for drugs on 15 May 2014, 13 June 2014 and 2 September 2014.

15. On 28 November 2014 the Judge received a presentence report dated 17 October 2014 which showed the abovementioned positive results but also showed a clear urinalysis on 13 October 2014 and reasonable attendance for drug counselling.  The Judge adjourned the matter, despite the positive drug results, to give the applicant a further opportunity to rehabilitate.  However a presentence report received in January 2015 belatedly revealed positive drug tests from before the adjournment, 6 November 2014, and further positive tests after the adjournment on 3 and 10 December 2014.  The report also disclosed that Mr Clark’s attendance for counselling too had deteriorated after the adjournment.

16. On 12 March 2015 the Judge gave the following reasons for revoking the suspension of the sentence: 

    What emerged from earlier submissions was that at the time, that is, April last year, you may still have been using drugs. I adjourned the application to revoke to enable you to properly engage with DASSA. You remained under supervision and subject to random drug testing. I ordered a further pre-sentence report.

    During the period of the adjournment, I hoped you would be tested a dozen times. You will recall that I warned you not to fail any such test and that if you did, you should not assume you would be going home. I warned you this was your last chance and adjourned the application to 13 August 2014.

    It appears as though Corrections did no further testing in the interim but you did return at least one positive test at Warinilla. However, your treatment was showing some signs of positive progress and I needed further information from Warinilla. I did not revoke your bail and renewed my warning that if you returned a positive test, your bail would be revoked. I adjourned the application to 22 October 2014.

    The further pre-sentence report of 17 October 2014 showed yet another positive test for amphetamines and cannabis on 2 September 2014. It is clear that you were making some progress towards rehabilitation and you were more committed to counselling. There were also two negative tests in October. Despite yet another positive test, I allowed you to remain on bail because you did not appear to accept the correctness of that result.

    On 28 November 2014 your case came on for further submissions. It was put to me that you had made significant progress and that the bond was doing its work in the long process of rehabilitation. Unfortunately the whole process has become drawn out because the random testing of you and the follow-up reporting has not taken place as I anticipated.

    The matter came on yet again on 28 January this year for further submissions. By that stage I had received another pre-sentence report dated 9 January 2015. It was a grim and negative report from your point of view. There were yet more positive drug results.

    The author expressed the view that you were not yet prepared to seriously address your substance use which means you are not prepared to stop abusing illegal drugs. Your reporting compliance had become erratic and not surprisingly, you eventually admitted that you were struggling to abstain from drugs. In addition, you failed to attend appointments with DASSA.

    In all the circumstances, I revoked bail on 28 January this year. You had been given a number of warnings by me not to keep using illegal drugs. You continued to use, as the results show. I acknowledged that you had not reverted to criminal offending.

    I recognise the difficulties you have experienced in your life that have led to a major depressive order, post-traumatic stress disorder and antisocial personality traits. It was submitted that I should refrain from revoking the order suspending your sentence.

    Whilst it is true that you have not resorted to serious offending again, it should not be overlooked by you that your use of illegal drugs was the reason or certainly a substantial reason why you committed the earlier offences.

    The conditions of your original bond were designed to aid your rehabilitation. You were required to be of good behaviour, be under supervision, undertake counselling, and be subject to random testing for drugs. However, you failed to be of good behaviour by possessing and taking drugs. You failed to properly engage with supervision. You have failed to undertake all of the counselling, particularly with DASSA and you have failed a number of random drug tests.

    Being placed on a bond is designed to give you another chance. You have failed to take proper advantage of that chance and the leniency extended to you. You cannot say I failed to give you lots of opportunities to comply with the bond.

    It is important that the integrity of the power to suspend a sentence be maintained. The power of the court to revoke an order of suspension is another facet of general and personal deterrence.

    I propose to revoke the order of suspension and the sentence is brought into effect. There is no sufficient special circumstances to reduce the head sentence or the non-parole period. The sentence of one year, nine months with a non-parole period of 11 months is brought into effect from the date you went into custody, namely, 28 January this year.

    Discussion

17. Section 58 of the Criminal Law (Sentencing) Act 1988 (SA) relevantly provides:

    58—Orders that court may make on breach of bond

    (1)Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—

    …

    (d)     if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.

    …

    (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

    …

    (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.

    (4)Where a court revokes the suspension of a sentence of imprisonment, the court—

    (a)     may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;

    …

18. In R v Buckman[1] King CJ adumbrated the principles governing the revocation of the suspension of a sentence of imprisonment as follows:

    There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.

    Parliament has recognised, however, that in some cases the rigorous application of the ordinary consequences of breach can be oppressive and even unjust. It has therefore provided to the courts the means of ameliorating those consequences in exceptional cases. Subsection (5) of s 9 of the Offenders Probation Act 1913 empowers the probative court to refrain from ordering that the sentence be carried into effect where the failure to observe the conditions of the recognisance is trivial or there are proper grounds for excusing it. Subsection (6) authorises the reduction of the term of imprisonment in “special circumstances”.

    … The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. ... It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper. Subsection (6) exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.

    …

    In the present case it seems to me that there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated. It is not irrelevant, moreover, that the offence constituting the breach is of a quite different character from that for which the sentence was imposed. The matter being at large for this Court for the reasons explained by Jacobs J, it seems to me that the total effect of the relatively minor nature of the offence constituting the breach, the difference in character between it and the offence for which the sentence was imposed and the disproportion between the seriousness of the offence constituting the breach and the sentence which would be activated, is such as to amount to proper grounds upon which the failure to observe the conditions of the recognisance should be excused.

    [1] (1988) 47 SASR 303 at 304.

19. In R v Smith[2] I explained the concept of disproportion as follows:

    Both the “trivial” and “proper grounds” limbs of s 58(3) of the CLSA invite attention to the nature, extent and circumstances of the breach of the condition to be of good behaviour. The word “proper” is a protean expression which takes its meaning from its context. In the context of s 58(3) of the CLSA, the word takes its meaning both from the other ground, the triviality of the breach, and the condition that the circumstances must be such as to “excuse” the breach. For that reason, the disproportion of which King CJ spoke in Buckman is between the extent of the departure from the obligation to be of good behaviour and the severity of the penalty resulting from revocation of the suspension.  As King CJ observed, differences between the original offence and the breaching offence are not irrelevant but their relevance is limited.  The question is whether the circumstances in which the breach was committed are of a nature which excuses the failure to abide the condition of the bond having regard to the purpose for which it was imposed.

    [2] [2014] SASCFC 98 at [25].

20. I acknowledge that only two drug taking breaches were alleged in the application of 29 November 2013.  However the significance of those breaches, and in particular whether there are proper grounds to excuse the failure to be of good behaviour, must be evaluated in the light of the applicant’s failure to positively progress his rehabilitation during the adjournments granted for that purpose. 

21. I doubt that the enquiry on the enforcement of a breach of bond should be confined to the particulars first alleged in the same way as a charge of a criminal offence. Section 57 of the Criminal Law (Sentencing) Act 1988 (SA) requires particular breaches of a bond to be specified on an application for a summons or warrant. However s 57(5) of the Act obliges a court, dealing with a probationer, to hear any evidence adduced tending to establish that a probationer has failed to comply with a condition of the bond. The subject matter of the enquiry is broader than the alleged breaches. The applicant admitted that the subsequent positive drug tests proved further breaches of the bond to be of good behaviour.

    Conclusion

1. In my view the Judge’s remarks show no error.  I acknowledge that the applicant’s breaches of good behaviour are relatively minor but they show that the applicant is incapable of taking the steps necessary to fulfil the purpose for which the sentence was suspended and a community corrections based order made.  His failure to meaningfully progress his rehabilitation not only removed the prospects for rehabilitation which moved the Court to suspend the sentence but also increased the risk of re-offending because the very criminogenic factor to which the applicant had attributed his offending was persisting.  There were no proper grounds to excuse the applicant’s breaches.

2. The application for permission should be refused.

3. NICHOLSON J:   I would refuse permission to appeal.  I agree with the reasons of the Chief Justice.

4. PARKER J:          I agree with the Chief Justice that permission to appeal should be refused.