R v Gannon

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v GANNON
[2009] SASC 73
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Kelly)
24 March 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
Appeal against severity of sentence - appellant pleaded guilty to robbery and interfering with a motor vehicle - appellant also convicted of property damage - suspended sentences imposed - released on good behaviour bonds - breach of conditions of bonds - whether failure to comply with bonds should be excused - whether special circumstances existed for reducing period of suspended sentence for breaching offences - whether marked disproportion between seriousness of offence constituting breach and sentence of imprisonment activated - commencement of disqualification of licence for the purpose of s 169B of the Road Traffic Act 1961 (SA).
Held: If the Court concludes that a breach of bond should not be excused, then the Court is required to consider whether special circumstances exist to reduce the period of suspended sentence - sentencing Judge failed to have regard to any significant change in circumstances since sentencing which, had they existed at time of sentencing, would have resulted in a reduced sentence - appeal allowed - sentence set aside - failure to comply with bond with respect to robbery too serious to excuse - failure to comply with bond with respect to property damage excused - sentencing Judge failed to have adequate regard to disproportionate sentence of each breaching offence - sentence reduced - term of disqualification of licence to commence after the appellant is released from custody.
Criminal Law Consolidation Act 1935 (SA) s 86A; Criminal Law (Sentencing) Act 1988 (SA) s 58, s 58(3), s 58(4); Offenders Probation Act 1913 (SA); Road Traffic Act 1961 (SA) s 169B; Summary Offences Act 1953 (SA) s 62A(1), referred to.
R v Buckman (1987) SASR 303, applied.
Coulthard v Kennedy (1992) 60 A Crim R 415, considered.

R v GANNON
[2009] SASC 73
Court of Criminal Appeal: Doyle CJ, Sulan and Kelly JJ

DOYLE CJ: I agree with the orders proposed by Sulan J, and with his reasons for making those orders. There is nothing that I wish to add.
SULAN J: On 30 September 2008, the appellant was sentenced by a District Court Judge to a total sentence of five years and ten months’ imprisonment. The sentencing Judge imposed a non-parole period of 24 months. The appellant appeals against the severity of the sentence.
On 11 March 2008, the appellant pleaded guilty to robbery and interfering with a motor vehicle, both offences having been committed on 8 April 2006.
The appellant also acknowledged a breach of a bond entered into on 9 November 2004 when he was sentenced to imprisonment for ten months, suspended upon him entering into a bond to be of good behaviour for two years for the offence of creating a false belief that life had been lost or endangered, contrary to s 62A(1) of the Summary Offences Act 1953. The offences committed on 8 April 2006 constituted a breach of that bond.
On 24 August 2006, the appellant had been sentenced in the Christies Beach Magistrates Court to 24 months’ imprisonment for offences committed in May 2005 and December 2005 of make graffiti, carrying graffiti instruments, damaging property, carrying an article of disguise, loitering, resisting police and failure to comply with a bail agreement. That sentence was suspended upon him agreeing to be of good behaviour and to be under the supervision of a Community Corrections Officer for a period of two years. A specific requirement of the bond was that the appellant undergo psychiatric and psychological treatment as directed by his Community Corrections Officer.
The appellant failed to report for supervision after 28 May 2007. He was contacted by his Community Corrections Officer on 25 July 2007. He was again contacted on 16 August 2007 for a scheduled appointment on that day. He failed to attend. On 17 August 2007, he was contacted by letter advising him to attend on 30 August 2007. He failed to attend that appointment. When he spoke to the Community Corrections Officer, he stated that he had not attended supervision due to work commitments. These failures were the basis for the application to revoke the suspended sentence.
The appellant also failed to comply with a home detention bail agreement into which he had entered on 13 April 2006. He disconnected the electronic monitoring equipment on 15 June 2007 and, when police attended at his home, he was absent.
The appellant also pleaded guilty to a breach of bond entered into on 8 February 2007, when he was imprisoned for one month for failing to comply with a bail agreement, the sentence being suspended for 12 months on condition that he be of good behaviour. The appellant also failed to undertake community service which he was required to undertake for failure to pay fines.
The facts
The appellant had suffered from a serious drug and alcohol abuse problem from an early age. He first consumed alcohol and drugs when he was about 13 years’ old. He had undergone a drug and alcohol program when he was about 21 years of age, as a result of which he had not consumed alcohol for two years. He had been drug-free for approximately ten months prior to the offence. He was advised by the person in charge of his rehabilitation that he might be able to become a social alcohol user. However, when he began to drink alcohol, he again relapsed into alcohol abuse.
On the night in question, he had attended the city with friends to celebrate with a friend who had received a large worker’s compensation payment. He had not frequented Hindley Street for a number of years. He became intoxicated and he and his friends continued to drink at various hotels. He was severely intoxicated when he and his friends decided to go to Glenelg for something to eat. Nothing was open at Glenelg so they hailed a taxi and directed the taxi driver to a pizza place which they believed would be open.
It appeared to the appellant that the taxi driver was taking a longer route than necessary. According to the taxi driver, he turned from Anzac Highway into Cross Road on the instructions of the three occupants. The appellant, who was in the front, told him to stop. The appellant was agitated. The two men, who had been seated in the rear, got out of the taxi. The appellant grabbed the victim’s coin holder and got out of the car. The driver alighted from the car and asked for his coin holder back. The appellant then punched him and kicked him. The taxi driver ran away. The appellant put the car into gear and allowed it to roll away which resulted in it hitting a fence and being damaged. The police were called. They found the appellant hiding in premises not far from where the incident occurred.
There was no dispute that the offence was an impulsive act. The appellant had no need for money. His conduct can only be explained as being stupid and influenced by the alcohol he had consumed. After the offence, when he was released on bail, the appellant returned to work. He continued in employment until he was sentenced. He has paid for the damage he had caused to the vehicle.
A psychological report of Mr Balfour, a forensic psychologist, was provided to the sentencing Judge. Mr Balfour observed that the appellant had an unstable family background and that his childhood had been difficult. Mr Balfour was of the view that the appellant’s offending behaviour was largely a by-product of his history of drug and alcohol abuse and vulnerability to negative peer pressure. He concluded that, at the time of the offence, the appellant would have been disinhibited in his behaviour and impaired in his social judgment. His offending was impulsive and involved little premeditation. He observed that, since the offence, the appellant had actively disassociated himself from negative peer pressure, and that he had determined to stop consuming alcohol and drugs. Mr Balfour considered that the appellant’s drug problems could be treated. The appellant is motivated to curtail his alcohol consumption. He has insight into his problems, and has taken steps to avoid situations which may lead to further offending. Mr Balfour was of the view that a structured rehabilitation program would benefit the appellant.
The sentence
The sentencing Judge passed the following sentence. As to the offences of robbery and interfering with the taxi, he imposed one sentence of three years’ imprisonment, having reduced it from four years on account of the appellant’s pleas of guilty, his contrition and remorse. As to the various breaches of bond, he declined to excuse the breaches under s 58(3) of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). He ordered that the sentences of ten months and 24 months’ imprisonment take effect, each to be served cumulatively upon the sentence of three years he had imposed for the robbery. As to the bond entered into on 8 February 2007, he revoked the bond and ordered that the sentence of imprisonment of one month take effect, to be served concurrently with the sentence for robbery. He made the sentence concurrent as an offset against any time that the appellant had spent in custody on remand for the robbery. As to the appellant’s failure to comply with the bail agreement, the Judge imposed no penalty. As to the breach of community service orders of 1 March 2007, he cancelled the unperformed hours of community service remaining under that order.
The result is that the appellant is liable to serve a total head sentence of imprisonment of five years and ten months. The Judge imposed a non-parole period of 24 months. In so doing, he accepted that the appellant had made significant contributions to the community, had reasonably good prospects of rehabilitation and had compensated the taxi driver for damage done to the vehicle.
Counsel for the DPP conceded that the learned sentencing Judge erred in not imposing a disqualification of licence. Section 86A of the Criminal Law Consolidation Act 1935 requires that a period of 12 months’ licence disqualification, in addition to any other penalty, be imposed for the offence of illegal interference. The Judge failed to impose such a disqualification. It is, therefore, necessary for this Court to re-sentence the appellant.
The appeal
The appellant complains that the Judge sentenced the appellant on an incorrect factual basis, that he failed to have sufficient regard to the victim’s attitude to the seriousness of the offence, and to the victim’s expressed wishes in relation to penalty, that he failed to have sufficient regard to the appellant’s contrition and remorse, and that he did not give sufficient weight to the totality principle. It is a further ground of appeal that that the sentencing Judge erred in failing to consider or properly consider s 58 of the Sentencing Act.
In describing the offending, the sentencing Judge said:
The circumstances are that you were driven by taxi from Glenelg to the intersection of Anzac Highway and Cross Road, Plympton at about 4 am on Saturday 8 April 2006. When getting out of the taxi you spontaneously grabbed the coin dispenser from the console. When the taxi driver tried to prevent this, you punched and kicked him. You then drove the taxi some 20 to 30 metres before hitting a fence causing just under $2200 damage. You were arrested in a nearby backyard.
Counsel for the DPP conceded that the sentencing Judge was in error in describing the appellant as having driven the taxi some 20 to 30 metres. The appellant did not drive the vehicle. He put it into gear whilst the engine was running, causing it to run along the road and collide with a fence, thereby causing the damage.
Although the Judge’s description of what occurred was not accurate, the conduct of the appellant in placing the vehicle into gear thereby causing it to move forward and causing damage is as serious as if the appellant had driven the vehicle and caused the damage. I would not interfere with the sentence on that ground alone.
The attitude of the victim
The victim described the effect that the appellant’s conduct had had upon him. He is now frightened of driving at night. As a consequence, he has lost income and found it hard to support his family. In April 2008, he was unemployed. He was too frightened to work at night.
The victim stated that he did not wish the appellant to be imprisoned. The appellant complains that the sentencing Judge failed to give sufficient weight to the victim’s wishes.
The attitude of a victim to the sentence to be imposed may be a relevant factor to which the Court will have regard.[1] It is only one factor of many competing factors which a sentencing Judge is required to consider. The Court must impose a sentence appropriate to the offending. The Court must consider both personal and general deterrence. There is a limit to the weight to be given to a victim’s views of an appropriate sentence. Each case will depend on the circumstances. In this case, the offending was serious. The appellant not only robbed the victim at night, but he also assaulted him. The Court has a responsibility to impose a sentence which adequately protects taxi drivers who are vulnerable to acts of violence by their passengers. This is particularly so at night when passengers are often intoxicated or under the influence of drugs, and to whom a lone taxi driver is a relatively easy target.
[1] Coulthard v Kennedy (1992) 60 A Crim R 415.
The appellant’s antecedents
The appellant was not a first offender. He was first convicted in August 2002 of various offences, including common assault, for which he received a bond. In 2003, he was convicted of carrying an offensive weapon. In 2004, he was convicted of damaging property and other offences, for which he received the sentence of imprisonment for ten months, which was suspended. In 2005, he committed further offences for which he was convicted in 2006 and upon which he received a further suspended sentence of 24 months. This offending occurred in April 2006.
The sentence imposed
The sentencing Judge had regard to the appellant’s good work record and his contributions to the community. He accepted that the conduct was impulsive and not planned. The sentencing Judge was correct in concluding that the offence of robbery was serious and required him to impose a substantial sentence of imprisonment. I agree that a sentence of imprisonment for four years was an appropriate starting point for the offending. The reduction for the plea of guilty was appropriate.
It is unfortunate that the appellant was not sentenced until 30 September 2008. It appears that he was always prepared to plead guilty to the offence of robbery. The issue was whether he had driven the motor vehicle, or simply interfered with it. There is no satisfactory explanation why it took over two years to resolve that issue. In that time, the appellant was working and progressed with his rehabilitation, which has now been disrupted by the custodial sentence imposed upon him. It was almost inevitable that he would receive a custodial sentence for the offence of robbery. It would have been desirable if the outstanding issue had been resolved without such a lengthy delay.
I would not interfere with the sentence of three years’ imprisonment for the offences of robbery and interfering with a motor vehicle.
The suspended sentences – s 58 of the Sentencing Act
Before I deal with revocation of the bonds and the activation of the sentences which had been suspended, it is convenient to consider s 58 of the Sentencing Act.
Section 58 provides:[2]
[2]    Criminal Law (Sentencing) Act 1988, s 58 (1), (3) and (4).
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 –
(a)may, if the bond requires the probationer to pay a sum in the event of non-compliance with a condition of the bond, order that the probationer pay the whole or a part of that sum;
(b)may order a guarantor to pay the whole or a part of the amount due under the guarantee;
(c)may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond –
(i)sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or
(ii)if 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, refrain from taking any action in respect of the failure:
(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
(B)    in the case of a bond requiring performance of community service, extend, by not more than six months, the period within which any remaining hours of community service must be performed; or
(C)    cancel the whole or a number of any unperformed hours of community service; 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;
(b)may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(ba)may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;
(c)may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
(5)     Where a court other than the probative court sentences a probationer for the original offence, the court cannot impose a sentence that the probative court could not have imposed.
The inquiry pursuant to s 58(3) and (4) is a two-stage inquiry. First, the court is required to consider whether the breaches should be excused because the breaching offence was trivial, or whether proper grounds exist for excusing the breach. If the court concludes that the breach should not be excused, then the court is required to consider whether special circumstances exist for reducing the sentence.

In considering whether the failure to comply with the conditions of the bond was trivial, or whether proper grounds exist to excuse the breach, the court considers the nature of the breach and the circumstances in which it was committed. One of the factors to which the court must have regard is whether the breaching offence is such that there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated. A further factor might be whether there is a difference in character between the offence for which the sentence was imposed and the nature of the breach.
In R v Buckman,[3] when considering similar provisions under the Offenders Probation Act 1913, King CJ and Jacobs J decided that the question of whether the failure of a person to comply with the conditions of their bond is trivial, or whether there are proper grounds upon which the failure should be excused, is limited to a consideration of looking at the nature of the breach and the circumstances in which it was committed. If there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated, then this might amount to proper grounds upon which the failure should be excused. In considering that question, matters such as the relatively minor nature of the offence constituting the breach, the difference in character between it and the offence for which the original sentence was imposed, and the disproportion between the seriousness of the offence constituting the breach and the sentence which would be activated, are factors to which the court will have regard in considering whether proper grounds exist to excuse the failure to observe the conditions of bond.
[3] (1987) 47 SASR 303.
If the court concludes that the breach should not be excused, then the court must consider whether special circumstances exist to reduce the period of the suspended sentence. In considering that question, the court is required to look at whether there has been any significant change in circumstances since the prisoner was sentenced which, had they existed at the time of sentence, might have justified a reduced sentence. The sentencing Judge does not appear to have addressed that question.
The Judge concluded that, in respect of the bond entered into on 9 November 2004, the offence of robbery was far too serious to excuse that breach. He then imposed the sentence of ten months’ imprisonment, having revoked the suspended sentence. I agree the breaching offence was far too serious for it to be excused.
As to the bond entered into on 24 August 2006, the sentencing Judge concluded that, given the number of breaches presently under consideration, and the number of breaches of bonds in the past, he was unable to find good reason to excuse this breach. The Judge considered s 58(3) of the Sentencing Act. He considered that good reason did not exist to excuse the breaches of bond. He said:
In relation to the breach of bond entered into on 9 November 2004 you are liable to serve a head sentence of ten months’ imprisonment. The breach by committing the robbery is far too serious to excuse.
In relation to the bond entered into on 24 August 2006, given the number of breaches presently under consideration and the number of breaches of bonds in the past, the Court cannot find good reason to excuse this breach. So the sentence of 24 months must be served cumulatively upon the sentence of three years for the robbery.
The sentencing Judge failed to have regard to the disproportionate consequence that activating the sentence for the breach of the 24 August 2006 bond would have when considering the overall sentence that would result from that breach. The factors giving rise to that breach of bond were limited to the appellant failing to attend on the occasions when required by his Community Corrections Officer. Those failures occurred in July and August 2007. No action was taken by the Department in respect of the non-compliance at the time. It seems that the breaches were not regarded as sufficiently serious at the time to commence proceedings to cancel the bond and require the sentence to be served. Proceedings for breach of that bond were only instituted after the appellant had committed and been charged with the robbery offences. The sentencing Judge does not appear to have had regard to the disproportionate effect upon the appellant for what might be regarded as breaches which were unrelated to any further offending, and which appear to have been related to the appellant misguidedly considering that his work commitments had priority over his obligations to comply with the conditions of his bond. The sentence of 24 months for failing to attend appointments with his Community Corrections Officer is disproportionate to the breach, particularly having regard to the fact that no action to enforce the conditions of the bond was taken at the time of the breaches. If proceedings had been commenced shortly after the appellant failed to attend, a court would most probably have excused the breach but impressed upon the appellant the requirement to comply with the conditions.
For the reasons given, I consider the Judge failed to have adequate regard to the disproportionate sentence for that admitted breach of bond. I consider there are proper grounds to excuse the breach of the bond of 24 August 2006.
The bond expired on 24 August 2008. Section 58(3)(b)(ii) provides that, if a bond has expired, the court may require the probationer to enter into a further bond not exceeding one year. As the appellant will be required to serve a sentence of imprisonment which is longer than one year, there is no purpose in requiring that he enter into a further bond. I observe that the appellant will eventually be released on parole upon conditions, including conditions as to supervision, which the Parole Board regard appropriate.
As to the bond entered into on 9 November 2004, there were significant matters personal to the appellant which the Judge should have considered. After 8 April 2006, the date of the robbery, the appellant had stopped frequenting hotels and clubs where alcohol and drugs were available. He avoided placing himself in a position in which he might offend further. He had also taken positive steps to no longer associate with persons who had in the past influenced his behaviour. He demonstrated his attempts to change his lifestyle. He obtained regular employment and paid for the damage he had caused to the taxi. He also had reconnected with his family, who are very supportive of him in ceasing his dependence upon drugs and alcohol. He had demonstrated, in the period between his offending and his being sentenced, that he is able to hold down a job, be a valuable member of society and he had taken significant steps towards his rehabilitation. The sentencing Judge did not give sufficient weight to these matters. These factors are relevant in considering whether, pursuant to s 58(4), special circumstances exist to reduce the term of the suspended sentence.
The Judge was correct in concluding that the offence of robbery was too serious to excuse the breach. However, the Judge failed to consider whether special circumstances exist to reduce that sentence. For the reasons given, I am satisfied that, pursuant to s 58(4), special circumstances exist to reduce the term of the sentence from ten months to six months’ imprisonment.
Conclusion
I would allow the appeal, set aside the sentence, and vary the sentence imposed by the trial Judge by ordering that the failure to comply with the conditions of the bond entered into on 24 August 2006 be excused. As to the sentence of ten months’ imprisonment, I would reduce it to six months’ imprisonment, to be served cumulatively upon the sentence of three years’ imprisonment for the offence of robbery. That results in a total sentence of three years and six months’ imprisonment. The sentence is to commence on 30 September 2008. I would impose a non-parole period of 18 months’ imprisonment.
As to the sentence of one month for the breach of bond entered into on 8 February, the sentence is to be served concurrently with the sentences I have imposed.
I would disqualify the appellant from holding or obtaining a driver’s licence for 12 months. Section 169B of the Road Traffic Act 1961 provides that the period of disqualification commences at the date of this order and ends at a time calculated as if the period of disqualification commenced on the appellant’s release from the period of imprisonment he is to serve. It follows that the period of disqualification will end 12 months after the appellant is released from custody.
KELLY J: I agree that the appeal should be allowed for the reasons given by Sulan J. I agree with the orders that he proposes.

[2009] SASC 73

24 March 2009

Key Legal Topics

Areas of Law

Criminal Law

Legal Concepts

Appeal

Sentencing

Compensatory Damages

Factual Basis for Sentence