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The suspension order was revoked on 12 March 2015 by a Judge of the District Court.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

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.
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.
On 12 March 2015 a Judge of the District Court revoked the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clark

Details

AGLC: R v Clark [2015] SASCFC 101
Case: [2015] SASCFC 101
Decision Date: 29 July 2015

CaseChat Overview and Summary

This matter concerned an application for permission to appeal against a sentencing order made by a judge in South Australia. The applicant, Mr. Clark, had been granted a suspended sentence and a community corrections-based order, but subsequently breached the conditions of that order. The core of the dispute revolved around the scope of the court's inquiry when dealing with a breach of a suspended sentence and the implications of those breaches for the applicant's rehabilitation and the original sentencing decision.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the court below had erred in its approach to determining the breaches of the suspended sentence and whether the applicant's failures to comply with the conditions of his bond warranted the activation of the suspended sentence. Specifically, the court considered the breadth of evidence that could be considered when assessing a breach of a bond, and whether the applicant's admitted breaches demonstrated an inability to fulfil the purpose for which the sentence was suspended.

The Chief Justice, with whom Nicholson and Parker JJ agreed, reasoned that the inquiry into a breach of a bond under section 57 of the *Criminal Law (Sentencing) Act 1988* (SA) is not confined to the initially alleged particulars in the same manner as a criminal charge. The court is obliged to hear evidence tending to establish any failure to comply with a condition of the bond. The applicant's admitted positive drug tests, which constituted breaches of the good behaviour condition, were found to demonstrate an incapacity to take the necessary steps for rehabilitation. This failure not only undermined the prospects for rehabilitation that led to the suspension of the sentence but also increased the risk of re-offending by allowing a persistent criminogenic factor to remain unaddressed.

Consequently, the Full Court refused the applicant's application for permission to appeal, upholding the decision of the judge below. The breaches were considered sufficiently serious to warrant the activation of the suspended sentence, as there were no proper grounds to excuse the applicant's failures to comply with the conditions of his bond.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. The application for permission should be refused. NICHOLSON J: I would refuse permission to appeal. I agree with the reasons of the Chief Justice. PARKER J: I agree with the Chief Justice that permission to appeal should be refused.

Ratio Decidendi

Legal Principle Established

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