R v Greengrass; Greengrass v Police
[2009] SASC 194
•2 July 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Miscellaneous Appeal)
R v GREENGRASS; GREENGRASS v POLICE
[2009] SASC 194
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice Layton)
2 July 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS
Appeal against sentence - appellant convicted upon plea of guilty to offences of interfering with a motor vehicle, aggravated causing harm and aggravated robberty - appellant had previously entered into a good behaviour bond in Holden Hill Magistrates Court - bond document signed by the appellant contained a condition requiring him 'to come up for sentence if called upon' - Magistrate made no mention of this condition when sentencing the appellant - whether this was an effective condition of the bond - whether subsequent bonds entered into by the appellant following purported breach of first bond valid - whether other conditions of bonds valid - sentencing Judge imposed sentence of three years' imprisonment in respect of offences before the District Court and four months' imprisonment in respect of offences the subject of the bond in Holden Hill Magistrates Court - whether sentencing Judge had power to impose that sentence - whether sentencing Judge erred in failing to disqualify appellant's driver's licence - whether sentencing Judge made error of fact in finding that the appellant had previously breached a good behaviour bond.
Held: Appeal allowed. Appellant's bond was ineffective insofar as it required the appellant to come up for sentence if called upon. Subsequent bonds entered into by the appellant following purported breach of the first bond were invalid. By operation of s 39(1a) of the Criminal Law (Sentencing) Act 1988 (SA) all bond conditions, other than that the appellant be of good behaviour, were invalid. The sentencing Judge did not have power to impose sentence upon the appellant in respect of the offences the subject of the bond. Sentencing Judge erred in failing to impose upon the appellant the mandatory disqualification from holding or obtaining a driver's licence for 12 months. Sentencing Judge erred in finding that the appellant had previously breached a good behaviour bond by committing a further assault. Appeal allowed. Appellant re-sentenced.
Criminal Law Consolidation Act 1935 (SA) s 20, s 85, s 86A, s 137; Criminal Law (Sentencing) Act 1988 (SA) s 3, s 9, s 18A, s 39, s 40, s 42, s 44, s 57, s 58; Summary Procedure Act 1921 (SA) s 70, referred to.
Commonwealth Director of Public Prosecutions v Cole (2005) 91 SASR 480; Fischer v Chambers (1972) 4 SASR 105; Nollen v Police (2001) 78 SASR 421; Toll (FGCT) Pty Ltd v Alphpharm Pty Ltd (2004) 219 CLR 165, considered.
R v GREENGRASS; GREENGRASS v POLICE
[2009] SASC 194Court of Criminal Appeal: Sulan, White and Layton JJ
SULAN & LAYTON JJ: The appellant appeals against a sentence imposed by the District Court. When that appeal was first heard, for reasons which later appear, the appellant sought an adjournment in order to initiate appeals from a number of orders made by a Magistrate at Holden Hill on various dates.
This Court extended the time to institute the appeals. The respondent did not oppose the granting of the extension of time. The appeal from the District Court and the appeals from the Magistrates Court were heard together.
As to the proceedings in the District Court, the appellant was committed for sentence for offences of interfering with a motor vehicle, aggravated causing harm and aggravated robbery. On 9 December 2008, he was sentenced to three years’ imprisonment for this offending. At the same time, the appellant was also sentenced for breaching a good behaviour bond. He received a sentence of four months’ imprisonment for breaching the bond, to be served cumulatively with the three years’ head sentence imposed by the sentencing Judge. The total sentence was three years and four months’ imprisonment. The non-parole period was fixed at one year and nine months’ imprisonment.
Procedural history
The matter took a highly unusual course. The appeal was originally listed for argument before this Court on 20 March 2009. At that hearing, counsel for the appellant sought to amend his grounds of appeal to include a fresh ground. This concerned the breach of the bond which had formed part of the sentence imposed by the sentencing Judge. It had become apparent that there was confusion about the history and nature of the alleged breach of the bond. Both parties, by the time of the initial hearing, were working on the premise of the concession made by the prosecution that the sentencing Judge had fallen into error in relation to the bond. The outlines of argument filed by the parties were therefore directed towards the question of re-sentencing. However, it became apparent in the course of submissions that there needed to be further information about the bond which required examination of the original files from the Holden Hill Magistrates Court. Proceedings were then adjourned whilst these files were obtained.
After the files were obtained, it was apparent that there was even more confusion about the bond than had been originally thought. In essence, as discussed hereafter, the appellant had entered into three bonds and the validity of each of them was challenged. These matters were important to the overall sentence which had been imposed by the sentencing Judge.
Bonds entered into in the Magistrates Court
First bond – 1 February 2006
The appellant was charged with one count of assault occasioning actual bodily harm, committed on 16 June 2005, and one count of damaging property, committed on 16 October 2005. The 16 June 2005 offending related to a fight at a pool hall. The appellant’s involvement in that fight was not extensive. He assisted the principal offender, who knocked the victim to the ground. The appellant kicked the victim whilst he lay on the ground. As to the offence of damaging property, the appellant used a cricket bat to smash the windows of a car. These two offences will be referred to collectively as “the 2005 offences”.
On 1 February 2006, after the appellant had pleaded guilty to the 2005 offences, the Magistrate at Holden Hill Court released the appellant upon the appellant entering into a bond for a period of 18 months in the sum of $300 (the First Bond”). In his sentencing remarks, the Magistrate made no mention in Court of one of the conditions of the bond being a condition that the appellant be returned to Court to be sentenced, if called upon. However, the endorsement on the Magistrates Court file,[1] which was signed by the Magistrate, relevantly provided:
Pursuant to s 18A of the CLSA the global penalty imposed in relation to count 1 of this file is also to cover the file MCHHL-05-5724.[2]
Deft is to enter into a bond in the sum of $300.00 to be of good behaviour for a period of 18 months.
Conditions:
1. Deft to be returned to court for sentencing if he offends during the term of the bond.
….
[1] Magistrates Court File No. MCHHL-05-3667.
[2] The two offences for which the appellant was sentenced were originally given separate file numbers. At sentencing they were consolidated to MCHHL-05-3667.
The bond which was subsequently signed by the appellant before a Justice of the Peace provided that the appellant is “to come up for sentence if called upon”. The bond signed by the appellant contains a number of other conditions, all of which were referred to by the Magistrate in the course of his sentencing remarks. Each of the other conditions appears on the endorsement in the same terms as on the face of the bond signed by the appellant. One of the conditions required the appellant to report to the Department of Correctional Services at Holden Hill, and to obey all lawful directions of his assigned supervising officer. The period of supervision was for 12 months, commencing on 1 February 2006.
There were therefore differences between what was said in court by the sentencing Magistrate, what was endorsed on the court file and what was set out in the bond that was subsequently signed by the appellant.
The appellant was unrepresented on 1 February 2006. The discrepancy between the sentencing remarks and the terms of the bond went unnoticed, and remained so until the matter came before this Court.
The extended bond – 5 January 2007
On 21 July 2006, an application was made to enforce the First Bond. It was supported by documentation from the Port Adelaide Community Corrections Centre alleging numerous breaches by the appellant of his reporting conditions between March and May 2006.
On 5 January 2007 the appellant appeared in the Holden Hill Magistrates Court.[3]
[3] The application for enforcement of the First Bond is MCHHL-06-4170.
The endorsement on the court file records that the appellant admitted breaching the First Bond.[4] The Magistrate extended the time of the First Bond for a further 12 months, with such extension to take effect from 31 July 2007, being the date upon which the First Bond was due to expire. He also adjourned the application for enforcement of the First Bond to 23 July 2007. He further ordered that the Department of Correctional Services provide a progress report as to the conditions of the bond. The appellant subsequently signed an extension of bond, agreeing to the extension of the bond (“the Extended Bond”).
[4] Magistrates Court File No. MCHHL-06-4170.
On the adjourned date of 23 July 2007, the appellant appeared in the Holden Hill Magistrates Court. A progress report, as ordered on 5 January 2007, does not appear on the file. The matter was further adjourned. On the adjourned date of 3 September 2007 the appellant again appeared in the Magistrates Court. The matter was again adjourned, as there was no report. On 2 November 2007 the appellant appeared and an adjournment was granted in order for him to seek legal advice.
The Second Bond
On 16 November 2007, the matter resumed in the Holden Hill Magistrates Court. The endorsement on the file records the appellant’s appearance, and notes “Note: Bond previously extended and now expired”. The extension referred to in the note seems to be a reference to the Extended Bond. At this hearing, the appellant was still appearing in relation to the application made on 21 July 2006 alleging a failure to comply with the conditions of the First Bond. This application had already given rise to the Extended Bond. The Magistrate placed him on a further good behaviour bond in the sum of $100 for a term of six months (the “Second Bond”). The file endorsement in relation to the conditions of the Second Bond relevantly provided: “Deft to be returned to court for sentence if he fails to comply with the conditions of the bond and re-offends”. This endorsement differed from the wording of the condition as it appeared in the Second Bond which the appellant entered into on 16 November 2007 before a Justice of the Peace.
As in the case of the First Bond and the Extended Bond the relevant condition in the Second Bond stated:
Conditions of Your Bond
That you are –
1. To come up for sentence if called upon.
In summary, the appellant therefore signed three separate bond agreements between February 2006 and November 2007. The Extended Bond and the Second Bond were both imposed in respect of the same alleged failure to comply with reporting conditions. There are still more fundamental problems with regard to the three bonds imposed upon the appellant.
Good behaviour bond – the legal principles
Section 39 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”) provides:
39—Discharge without sentence on defendant entering into bond
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(ab)to comply with the other conditions (if any) included in the bond; and
(b)if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a) However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
In relation to the conditions which may be included in a bond, s 42 of the Sentencing Act provides:
(1) Subject to this Act, a bond under this Act may include such of the following conditions as the court thinks appropriate and directs be included:
(a) a condition requiring the defendant to be under the supervision of a community corrections officer for a specified period; or
(b) a condition requiring the defendant to reside with a specified person or in a specified place or area; or
(c) a condition requiring the defendant not to reside with a specified person or in a specified place or area; or
(d) a condition requiring the defendant to perform a specified number of hours of community service; or
(da) a condition requiring the defendant to undertake an intervention program; or
(e) a condition requiring the defendant to undergo medical or psychiatric treatment in accordance with the terms of the bond; or
(f) a condition requiring the defendant to abstain from drugs of a specified class or from alcohol; or
(g) a condition requiring the defendant—
(i) to restore misappropriated property to any person apparently entitled to possession of it; or
(ii) to pay compensation of a specified amount to any person for injury, loss or damage resulting from the offence; or
(ga) a condition requiring the defendant to attend and complete, within the term of the bond or such lesser period as the court may specify, a specified education programme approved by the Attorney-General for the offence of which the defendant has been found guilty; or
(h) any other condition that the court thinks appropriate.
If a court decides to discharge a defendant without a sentence of imprisonment, s 39 requires that the bond include a condition to be of “good behaviour” as a mandatory condition. The other conditions, namely to appear before the court for sentence or conviction and sentence and other conditions, are optional. If the court requires a defendant to enter into conditions in addition to that of being of good behaviour, it is necessary for the court to articulate those conditions. This must occur at the time of sentencing. The defendant needs to be informed about the conditions which the court intends to impose and at the same time the court needs to know whether the defendant is prepared to enter into the bond upon those conditions. The defendant has the option of either agreeing to enter into the bond or not. If the defendant does not agree to enter into a bond or objects to a particular condition, then the court will need to know that so that it can determine whether or not to proceed under s 39.
If the defendant indicates that he agrees to enter into the bond and its conditions, then this can preferably be done forthwith before the court. Alternatively, depending on circumstances such as busy case lists, the signing of the bond may be done at a later time before an authorised person. The entering into a bond is a contractual arrangement[5] in which the court indicates the conditions upon which it is prepared to discharge the defendant. If the defendant accepts those conditions, the defendant may sign the bond and undertake to abide by the conditions in order to get the benefit of that discharge. The defendant is then released.
[5] Fischer v Chambers (1972) 4 SASR 105, 110-111.
Where it is alleged that there has been a failure to comply with conditions of a bond, s 58 of the Sentencing Act empowers the court to make certain orders. Omitting the portions of s 58 which deal with suspended sentences, s 58 relevantly provides:
(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;
….
(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;
…
(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.
…
It can be seen that s 58(1)(c) of the Sentencing Act allows a court to call a probationer up for sentencing for the original offence where that is a condition of the probationer’s bond and when the probationer has not at that point already been sentenced for that original offending. A probationer, if called upon, faces the same range of penalties as does a person appearing before a sentencing court for the first time in relation to that offending. However, later circumstances between the time of the entering into the bond and the time when the defendant is called up for the breach, may affect the sentence imposed.
Section 58(1)(c) allows a further bond to be imposed upon a probationer where a previous bond, which had the condition that the probationer come up for sentence if called upon, has expired. Such further imposition may only be taken with respect to an expired bond if the breach of the bond occurred during its currency. It is also to be noted that once a bond has expired, that bond cannot be extended.
Before pursuing further analysis of the circumstances, it is relevant at this point to set out the grounds of appeal.
Grounds of appeal
The appellant appeals on eight separate grounds. On 23 February 2009 the appellant was granted an extension of time within which to appeal, and permission to appeal on seven of the eight grounds was granted. Before this Court on 18 March 2009 the appellant applied to add a further ground to his appeal. This application was granted. The appellant’s grounds of appeal are:
1. The learned sentencing judge erred in refusing to suspend the sentence
2.The sentence of 3 years imprisonment for the offences of interfere with motor vehicle, aggravated cause harm and aggravated robbery was manifestly excessive.
3.The sentence for the breach of bond matter of 4 months imprisonment was manifestly excessive.
4. The learned sentencing judge failed to give adequate reduction for:-
4.1 early guilty plea
4.2 time in custody
4.3 time on home detention bail
5.The learned sentencing judge made an error of law in failing to impose the mandatory driver’s licence disqualification of 12 months for the offence of illegal interference with a motor vehicle.
6.The learned sentencing judge made an error of law in respect of the finding that the applicant had committed an earlier breach of bond by committing another assault.
7.The sentence of four months imprisonment in respect of the offence of assault occasioning actual bodily harm was invalid by virtue of the following:-
7.1 The applicant had been sentenced for the offence by the Magistrates Court: se paragraph 6 of the sentencing remarks of Mr T Iuliano SM dated 1 February 2006.
7.2 That sentence did not include a condition of the good behaviour bond then imposed that the applicant come up for sentence if called upon.
7.3 Subsequently, the applicant was the subject of an application for enforcement of that bond on the grounds that he had breached the bond for non-compliance with the reporting conditions of the bond.
7.4 On 16 November 2007 the Magistrates Court found the breach proven and ordered a bond with conditions including the following condition:-
“1. To come up for sentence if called upon.”
7.5 The Court could not impose such a condition because the applicant had already been sentenced for the offences on 1 February 2006
7.6 Furthermore, the Court could not impose a condition of such a nature when such a condition was not a condition of the original bond.
8.The bond imposed in the Holden Hill Magistrate’s Court on 16 November 2007 was invalid in that section 59(3)(b)(ii) of the Criminal Law (Sentencing) Act 1988 has as a pre-condition to the Court requiring the appellant to enter into a further bond that the appellant is “subject to a suspended sentence of imprisonment”. That pre-condition did not exist.
Sentencing remarks
Before moving to each of the grounds, the following sentencing remarks are relevant to the overall sentence and, in particular, the Judge’s approach to suspending the appellant’s sentence. The Judge observed:[6]
Your counsel has asked the court to consider suspension of the sentence of imprisonment which your offending would ordinarily attract. He has conceded that it would be unusual in the circumstances of this type of offending, but not without precedent, and he has contended that there are good reasons for it. He has pointed to your plea, your cooperation, your remorse, the fact that the theft was of a relatively small amount and was not premeditated, that you have obtained good employment, that you are in a strong relationship, that you wish to purchase a home, and that you have abandoned your drug and alcohol abuse. He has pointed to your fairly limited antecedents. I have been referred to the case of R v Osenkowski (1982) 30 SASR 212 and invited to consider a merciful and lenient sentence in the context of there being a real prospect of you successfully rehabilitating yourself.
The prosecution has opposed that course. It has pointed to the seriousness of your offending. The maximum penalty for aggravated robbery is life imprisonment; for causing harm, five years imprisonment; and for interfering with a motor vehicle, two years. It has been submitted that your offending was aggravated here by the fact that it occurred while you were on a bond. The maximum penalty for damaging property is two years imprisonment or a fine of $2,500, and for assault occasioning actual bodily harm it is imprisonment for five years, and those are the offences which led to the bond.
I have been referred to the injuries caused to the victim and the victim impact statement and it has been submitted that your compliance with the previous bonds does not auger well for your compliance with any suspended sentence bond. Otherwise, it has been submitted that your offending was serious, albeit that it escalated from a minor incident. I have been referred to the case of R v Place (2002) 81 SASR 395.
[6] AB 104-5, [22]-[24].
After considering the question of whether to excuse the appellant’s purported breach of the Second Bond, the sentencing Judge continued:[7]
I turn then to your principal offending. I accept your counsel’s submission that your offending was unplanned and came about as a reaction to the intervention in your relatively minor offending by the owner of the vehicle. I also take account of the fact that it was not you who used the weapon, but you did join in the assault and the subsequent robbery.
….
I have taken account of your age, antecedents, remorse and rehabilitation. I am mindful that you have taken significant steps to change your life around. Even so, I am not persuaded that there are good grounds for suspending the sentence. Your offending here was of a very serious order, indeed. It was the third act of violence in as many years and you have not respected the two bonds that have previously been offered to you. I will, however, fix a non-parole period that is shorter than might usually be fixed in the hope that you will be encouraged to take steps to change your life.
[7] AB 105-6, [26], [28].
It is plain that the sentencing Judge treated as a relevant factor in determining whether to suspend the appellant’s sentence the erroneous belief that the appellant had previously breached two bonds. He was further in error in forming the view that the present matters were the appellant’s third offence of violence in as many years. They were, in fact, his second. While none of these matters may have been decisive in influencing the sentencing Judge’s decision not to suspend the sentence, it is clear they played a part in that decision.
It is convenient to first deal with grounds 5 to 8 before returning to grounds 1 to 4.
Ground 5
It was conceded by the prosecution that the sentencing Judge erred in failing to impose a mandatory driver’s licence disqualification of 12 months in respect of the offence of illegal interference with a motor vehicle. Section 86A(2) of the Criminal Law Consolidation Act 1935 (SA) provides:
Where an adult court finds a person guilty of an offence against this section, the court must (whether or not it convicts the person of the offence and in addition to any other order that it may make in relation to the person) order that the person be disqualified from holding or obtaining a driver's licence for a period of 12 months.
This penalty is in addition to any other penalty imposed by the Court, and cannot be reduced or mitigated in any way.[8] Plainly, the sentencing Judge erred in failing to disqualify the appellant from holding or obtaining a driver’s licence for a period of 12 months. Pursuant to s 86A (2) the appellant is disqualified from holding or obtaining a driver’s licence for a period of 12 months, with such period of disqualification to take effect upon the date of his release from custody.
[8] Criminal Law Consolidation Act 1935 (SA) s 86A (3).
Ground 6
The prosecution correctly conceded that the sentencing Judge erred in finding that the appellant breached the First Bond by committing a further assault. This finding was incorrect. The alleged breaching conduct in relation to the First Bond was non-compliance with reporting conditions. This error overtly infected the sentencing Judge’s balancing of the sentencing factors.
Grounds 7 and 8
Two preliminary questions must be answered in considering the situation concerning the bonds entered into by the appellant in the Holden Hill Magistrates Court. First, it must be determined whether it was a valid condition of the First Bond that the appellant come up for sentence if called upon. Second, it must be determined whether the First Bond was still in force, by operation of the Extended Bond, on 16 November 2007 when the Second Bond was imposed. This second question requires the Court to further determine whether the imposition of the Extended Bond was valid.
Counsel for the appellant argued that the absence of any reference in the Magistrate’s sentencing remarks to a condition that the appellant come up for sentence if called upon meant that the inclusion of such a condition in the First Bond was invalid. He tendered an affidavit sworn by the appellant on 31 March 2009 in which the appellant described his recollections of appearing before the Holden Hill Magistrates Court. The appellant deposes to the fact that he cannot remember in detail what occurred. He remembers signing the First Bond and later attending a Community Corrections Centre. He deposes that he does not remember whether the Magistrate said anything to him about the condition that he come up for sentence if called upon. His overall memory of the day he was placed on the First Bond is very vague.
If the First Bond did not contain a condition that the appellant come up for sentence if called upon, then the Magistrate did not have the power to impose the Extended Bond making that a condition, or later the Second Bond. The only options available to a Magistrate upon proof that the First Bond had been breached were either to excuse the breach or estreat the bond and require the appellant to pay the bond amount.
In this case the Magistrate, at the time of imposing the First Bond, did not express that one of the conditions was that the appellant be required to appear before the court if he failed to comply with a condition of the bond. This fact has a number of implications.
The First Bond as entered into by the appellant contained an important condition which had not been expressed by the Magistrate to the appellant in the sentencing remarks. This was likely to have been an accidental oversight by the Magistrate. However, the defect could not subsequently be rectified simply by a later endorsement of the condition on the file and signed by the Magistrate, nor by the defendant subsequently signing a bond which included that condition. The affidavit of the appellant indicates that he has no memory of that condition being pointed out to him by the Magistrate or anyone else. He says
I do not remember reading a copy of the bond. I remember signing the bond at Holden Hill Magistrates Court and straight after going to Corrections to report. I recall I received a copy of the bond. I understood I had to sign in and go for anger management, alcohol and drug rehabilitation and to be of good behaviour and to have a victim awareness course. I understood I would be breached if I broke the conditions of a bond and that I would go to gaol or get a new bond. I was aged 19 at the time. I thought that would be the result of breaking the bond. I vaguely recall reading bits and pieces of the bond document. I did not understand all of the document.
Section 39 of the Sentencing Act provides that a good behaviour bond may be imposed upon an offender in lieu of conviction and/or penalty. Such a bond cannot be imposed unilaterally, and is enforceable only if the offender knows and understands the conditions of the bond that he or she is offered. In every case, and particularly those cases where the Court is dealing with someone such as the appellant, who suffers from certain cognitive and learning deficiencies, it is imperative that the Court ensures the offender is made aware of each condition of the bond being offered to him or her. It is not sufficient for someone to later inform the offender of the conditions of the bond. If the bond is not taken before the Court but is instead later signed before a Justice of the Peace,[9] the conditions of the bond must accord with the conditions indicated by the Court and accepted by the offender. Whether a bond is taken by an offender before the Court or otherwise, the conditions of the written bond signed by the offender must be the same as those proposed and accepted before the Court. In contractual terms, the offender in this case was subsequently provided with a written document which did not accord with the conditions previously indicated to him by the Court. The written document purported to include an important statutory condition contained in s 39(1)(b), which had not been imposed by the Magistrate. The purported imposition of this additional condition was inappropriate and ineffective.
[9] Nollen v Police (2001) 78 SASR 421, [58]-[60].
Further, the provisions of s 39(1a) become relevant. This subsection provides:
However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
It follows that all of the other conditions set out in the First Bond, other than to be of good behaviour, would be ineffective. The reference in s 39 (1)(ab) to ‘conditions (if any) included in the bond’ covers all potential conditions provided for by s 42 of the Sentencing Act. These conditions could not have been imposed in the absence of a valid condition that the defendant be required to appear before the court if called upon. Therefore, the only valid condition of the First Bond is the mandatory condition that the appellant be of “good behaviour”. The condition, if it stood alone, would mean that the good behaviour bond which was entered into was a valid bond. The issue then becomes whether or not the other invalid conditions thereby render the whole of the bond to be invalid. In our view, they do not. These were optional additional conditions which could be severed, leaving the mandatory condition as the sole condition.
The final outcome of this is that the appellant was not required to appear in court for sentencing for the 2005 offences. The only alleged breach of the First Bond by the appellant concerned his failure to report to a community corrections officer. This is insufficient to constitute a breach of a bond condition requiring that the appellant be of good behaviour.
However, there are still further problems in relation to the Extended Bond and the Second Bond.
As there was no valid basis for estreatment of the First Bond, the Extended Bond is of no effect.
In relation to the imposition of the Second Bond, the Magistrate had already imposed an Extended Bond, which was of no effect, and then in relation to the same purported breach of the First Bond, required the appellant to enter into a Second Bond, which is also of no effect, given our decision in respect of the First Bond. There was also a double punishment imposed.
It follows that the appeals against the orders of the Magistrate must be allowed.
The proceedings in the District Court
The errors to which we have referred went to the fundamental basis of the sentencing process of the sentencing Judge. They infected the final sentencing outcome, unbeknown to the sentencing Judge.
Collectively, the errors were these. First, the sentencing Judge relied on submissions made by the parties and referred to the breach of bond as being the result of “another assault”. This was not correct. The alleged breach of the First Bond was not in consequence of an assault, but in relation to a failure to comply with reporting conditions. This has significance for later remarks made by the sentencing Judge with regard to crimes of violence.
Second, one of the aggravating features was an allegation that the offence had occurred whilst he was on a bond and there is reference to damage property and assault occasioning actual bodily harm. The Judge appeared to consider that those offences had led to the bond being breached. This in turn led him to say that he was not persuaded that the breach in the circumstances was trivial or that there were other proper grounds for not proceeding to sentence with respect to the original offending. Hence his conclusion that four months’ imprisonment would be appropriate.
Third, in deciding not to suspend the sentence, he referred to the fact that the offending was very serious indeed. In particular, he said that it was “the third act of violence in as many years and you have not respected the two bonds that have previously been offered to you”. The charges in the District Court were not the “third act of violence in as many years”. There was only one act of earlier violence, and that was committed on 16 June 2005 which had lead to the imposition of the First Bond
Fourth, there was also the further error that a licence disqualification of 12 months should have been imposed in regard to the illegal interference with a motor vehicle.
Grounds 1 to 4 and re-sentencing
It is not necessary for this Court to consider grounds 1 to 4 of the appeal, in that the errors made with regard to grounds 5 to 8 would alone require the Court to set aside the sentence and re-sentence the appellant.
Offending
On 12 February 2008 near Bridgeway Hotel at Pooraka, the appellant, in the company of another person who has not been identified, broke into a Toyota utility vehicle owned by Mr Grant Wells. Mr Wells disturbed them while they were still in the process of breaking into his vehicle. The co-offender was at that time sitting in the front seat, while the appellant was standing beside the car. Mr Wells rushed over to the car and slammed the passenger’s door as hard as he could, but it did not shut. The co-offender in the front seat turned around and lashed out at him with an object which Mr Wells thought could have been his filleting knife which he kept on his dashboard in his work as a fisherman; or alternatively it could have been a screwdriver kept in his car. The co-offender struck the victim in the throat and he fell to the ground. There is no evidence that the appellant knew of that filleting knife. He was not directly involved in the use of the weapon which struck the victim in the throat which resulted in, as can be seen from the photographs, some blood in the region of his throat, but otherwise he was not wounded in the throat. The appellant joined with the co-offender in kicking Mr Wells in the head and shoulder region and to the right side of his body, about a dozen times between them. The appellant and the co-offender then walked off, but returned again shortly afterwards. The appellant told the victim to stand up and both asked for his wallet. The appellant then tried to pick up the victim from his seated position, but could not do so. Mr Wells then saw that the appellant’s co-offender seemed to be holding a triangular file, although this was not used. The victim handed over the $100 and the co-offender and the appellant then walked away with the money.
It was alleged by the prosecution at the time of original sentencing before the sentencing Judge, that the aggravating features were that the accused was in the company of another and “in the presence of an offensive weapon” and that it was therefore an aggravated assault.[10] The appellant ought to be given the benefit of the doubt as to whether he knew of the existence of that weapon at the time, particularly the one in the car, and that that particular aggravation should not be attributed to him. The aggravation was being in the company of another and that both of them were involved in kicking the victim and both were involved in the robbery of the victim.
[10] AB 96.
Photographs of the injuries taken at the time showed blood near the victim’s throat and on his other upper body parts. No permanent physical injury was alleged. The victim did, however, suffer a significant psychological trauma, as one would expect, from such a violent incident. In his Victim Impact Statement given one month after the attack, Mr Wells referred to being in fear and distrusting other people, fearful of staying home, and it took him two weeks before he could sleep at home. He described his family as still being deeply affected and that his partner was fearful of going out at night and enjoying life in general. He described that his cuts and abrasions healed after about two and a half weeks, but he was still sore and a month later was still taking some medication.
Personal circumstances of appellant
So far as the personal circumstances of the appellant are concerned, this was set out at some length at paragraphs 7 to 17 of the sentencing remarks in the following terms:
7Your counsel has put that at the time of this offending you were heavily affected by the consumption of a substantial quantity of wine and the use of 20 antidepressant pills and, as well, some cannabis. Because of this you have a limited recollection of what happened.
8Your counsel first pointed to your remorse and the steps you have taken to rehabilitate yourself. He tendered a report of Mr Balfour, which I have considered, and he called character evidence from your employer and your partner.
9I was shown a copy of a letter directed to Mr Wells and forwarded to the prosecution at an earlier time. I have considered it. It contains a fulsome apology by you, an acceptance of responsibility and an acknowledgment of the drinking and drug problems which led to your offending. Mr Balfour also speaks about your level of remorse.
10You are now aged 21. You had a difficult home life. You never knew your father and your mother brought up seven children from five different relationships. When you were 11 she entered into a de facto relationship with your stepfather, who remained with her until the time of her death. You had no difficulties with your stepfather and speak highly of your mother but, plainly, she had many difficulties herself. She was an alcoholic and an intravenous drug user. Even so, you had great regard for her and, when she contracted cancer, with your stepfather and half-sister you stayed with her until she died last year. Her illness and death were a great shock to you and you drank excessively from that time on. You were put on antidepressant medication but, plainly, you abused that.
11At the age of 14, you had become rebellious and you began to associate with undesirable companions. You became involved in juvenile offending, although you were never put in detention. You left home at that age because of overcrowding but stayed in contact with your family. You did not live on the streets but lived with various acquaintances.
12You had limited educational success and attended six different schools. You truanted frequently and left when you were 13 years old. You have limited literacy. Since leaving you have been employed in various unskilled jobs for about 50% of the time. Most recently, you have been employed in a home improvement business owned by your stepsister’s partner’s family. You have been there for seven months on a full-time basis and you are happy in that work. Your employer spoke highly of your commitment to it and of your personal qualities and, as well, your commitment to your wider family.
13I also heard evidence from your partner, who is now 21 and has been with you for over 12 months. She spoke of the difficulties you had coping with your mother’s death and how you had improved since March of this year, when you stopped drug and alcohol abuse. It has been put that the two of you are saving towards the purchase of a house.
14Following your arrest for this offending you were in custody for 11 days and it was put that this had a marked impact on you.
15Your alcohol and drug history is an unhappy one. You began using cannabis at the age of nine and were using it daily by the time you were 13. At that age you also began alcohol abuse and from the age of 16 you abused it daily.
16You have suffered from significant levels of depression and in the past have self-mutilated, and you have had a history of anger management problems.
17You appear to have been subjected to negative influences by your companions and to have been easily led. Mr Balfour speaks about that and says that you have been shocked at your conduct in this instance and have developed some level of insight into it. He believes you are well motivated to rehabilitate yourself and that you wish to continue in your employment and purchase a house.
The detailed psychological report from Mr Richard Balfour not only adverts in more detail to the traumatic history of the appellant and his problems with drug abuse, but importantly indicates that the appellant has had insight into his offending behaviour, and acknowledged that his actions had caused problems to the victim, his family and also his own family. In Mr Balfour’s view, the appellant had developed insight into how associating with negative peers placed him at risk of re-offending. In his view, the appellant did not have an entrenched offending history in spite of problems with alcoholism and cannabis use. Mr Balfour made recommendations for a structured rehabilitation program. A letter was also tendered, signed by the appellant, indicating his sorrow for what had happened to the victim. Further, there was a letter from an employer who indicated, albeit in June 2008, that they were prepared to again take the appellant back into their workplace as an employee.
In short, there are a number of very important features with regard to this appellant which suggest that there are real prospects of his rehabilitation, so long as he is given significant assistance by the intervention of drug and alcohol programs with a case manager to provide regular support and guidance.
A further matter of relevance is that, since the 2005 offences, there had been no offending between that time and the 2008 offending. During that time he has been subject to bonds which required reporting. Since 31 July 2007 he should not have been the subject of any bond at all. Since 31 July 2007 he has complied with all the conditions which had been imposed upon him. In relation to the present offending, he spent eight days in gaol prior to being placed on home detention for a period of nine months and 18 days from 20 February 2008 until he was sentenced on 9 December 2008. We reduce the sentence by five weeks, having regard to the time spent in custody and home detention prior to being sentenced. He has been in custody since 9 December 2008. This was the first time he has ever been confined or received any sentence of imprisonment. In re-sentencing the appellant, we have had regard to his now having been in custody since 9 December 2008. For the first time, he has experienced a significant period of time in custody.
In our view, having regard to all the circumstances, there are good reasons to suspend the sentence. We would re-sentence the appellant as follows. We consider that the starting point for his offending should be three years and eight months’ imprisonment. We then have regard to time spent in custody and on home detention prior to being sentenced by the District Court. We would reduce the sentence by 11 months, having regard to the appellant’s early plea of guilty. We further reduce the sentence by six months and three weeks for the time the appellant has spent in custody since the original sentences. The total reduction of the sentence is, therefore, 19 months. This results in a sentence of two years and one month imprisonment. We would set a non-parole period of one year. This sentence should commence from this day. We consider there are good reasons to suspend this sentence on condition that the appellant enter into a bond to be of good behaviour with conditions which are set out hereunder. The sentence shall be suspended upon the appellant entering into a bond in the sum of $300 to be of good behaviour for a period of two years.
The terms and the conditions of the bond are:
1.that the appellant be of good behaviour and comply with all the other conditions of the bond.
2.that the appellant be under the supervision of a Community Corrections Officer during the time of the bond, and obey that officer’s directions.
3.that the appellant undergo such counselling and treatment as may be directed by his Community Corrections Officer and, in particular, undergo drug rehabilitation programs and any psychological and psychiatric treatment as directed by his Community Corrections Officer.
4.that the appellant report within two working days of having signed this bond to the Department for Correctional Services at 8 Gaelic Avenue, Holden Hill.
The orders of this Court are:
1.As to the appeals from the orders imposed in the Holden Hill Magistrates Court, the orders are:
(i)extend time for appellant to file Notice of Appeal from orders of the Magistrate imposed at the Holden Hill Magistrates Court on 1 February 2006 (File No. MCHHL-05-3667 and MCHHL-05-5724), on 5 January 2007 and 16 November 2007 (File No. MCHHL‑06‑4170), to 31 March 2009.
(ii)the appeal against the sentence imposed on 1 February 2006 is allowed. All conditions of the bond entered into on 1 February 2006, other than the requirement that the appellant be of good behaviour for a period of 18 months, are set aside.
(iii)the order of the Magistrate made on 5 January 2007, purporting to extend the time of the bond imposed on 1 February 2006 by a period of 12 months, is set aside. The consequential orders adjourning the application for the enforcement of the 1 February 2006 bond and the requirement that the Department of Correctional Services provide a written “progress report” dealing with the appellant’s compliance with the conditions of the bond, are set aside.
(iv)the orders of the Magistrate of 16 November 2007 are set aside. The bond entered into on that date is set aside.
2.The appeal against the sentence imposed in the District Court on 9 December 2008 is allowed. The orders of the Court are:
(i)the sentence of four months’ imprisonment imposed upon the appellant, having acknowledged a breach of the bond originally entered into on 1 February 2006, is set aside.
(ii)the sentence of three years’ imprisonment for the offences of interfering with a motor vehicle, aggravated causing harm and aggravated robbery, is set aside.
3.In lieu thereof, the following sentence is imposed. The appellant is sentenced from this day to two years and one month imprisonment, with a non-parole period of one year, to be suspended upon him entering into a bond in the sum of $300, to be of good behaviour for a period of two years. The conditions of the bond are:
(i)that the appellant be of good behaviour and comply with all the other conditions of the bond.
(ii)that the appellant be under the supervision of a Community Corrections Officer during the time of the bond, and obey that officer’s directions.
(iii)that the appellant undergo such counselling and treatment as may be directed by his Community Corrections Officer and, in particular, undergo drug rehabilitation programs and any psychological and psychiatric treatment as directed by his Community Corrections Officer.
(iv)that the appellant report within two working days of having signed this bond to the Department for Correctional Services at 8 Gaelic Avenue, Holden Hill.
4.Pursuant to s 86A(2) of the Criminal Law Consolidation Act 1935 (SA), the appellant is disqualified from holding or obtaining a driver’s licence for a period of 12 months, with such period of disqualification to take effect upon the date of his release from custody.
WHITE J:
The Court has two appeals before it. The first is an appeal against a sentence imposed in the District Court on 9 December 2008. The second is an appeal against sentences imposed in the Magistrates Court on 1 February 2006, 5 January 2007 and 16 November 2007. The appeal against the Magistrates Court sentences was commenced only after an initial hearing by this Court of the first appeal. It was convenient for that appeal to be heard at the same time as the appellant’s appeal against the District Court sentence.
The appeal against each of the Magistrates Court sentences was commenced out of time, but the respondent to that appeal conceded that an extension of time was appropriate.
Background Circumstances
The appellant, who was formerly known by the surname Slavin-Molloy, was born in September 1986. His offending commenced on 16 June 2005 with the commission of an offence of assault occasioning actual bodily harm.[11] The appellant and another were involved in a fight in a pool hall. The appellant’s principal role seems to have been that of assisting his co-offender. However, while one victim was lying on the ground, the appellant kicked him several times.
[11] Criminal Law Consolidation Act 1935 (SA) (CLCA) s 20(4).
On 16 October 2005, the appellant committed his second offence, namely, unlawful damage.[12] After an argument, the appellant returned with a cricket bat and smashed two windows of the victim’s vehicle. I will refer to these two offences as “the 2005 offences”.
[12] Contrary to s 85(3) of the CLCA.
On 1 February 2006, a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) was imposed in the Holden Hill Magistrates Court for the 2005 offences. The appellant was released on a bond in the sum of $300 requiring him to be of good behaviour for a period of 18 months, and to comply with a number of other conditions (the February 2006 Bond). In his sentencing remarks, the Magistrate did not state that it was to be a condition of the bond that, in the event of non-compliance with the terms of the bond, the appellant was to appear again before that Court for sentence in relation to the 2005 offences. Despite that, the endorsement on the Magistrates Court file signed by the Magistrate and the terms of the February 2006 Bond itself, both contained such a condition.
The appellant was unrepresented on 1 February 2006. The discrepancy between the Magistrate’s sentencing remarks and the terms of the bond went unnoticed at that time. In fact, the discrepancy was not noticed until after the application for permission to appeal against the sentence imposed by the District Court on 9 December 2008 had been filed in this Court. On the appeals to this Court, the discrepancy formed a significant basis for the appellant’s submissions.
The appellant did not comply with the reporting and supervision conditions in the February 2006 Bond and, on 21 July 2006, an application for its enforcement was filed.[13] That application was eventually dealt with on 5 January 2007. The appellant admitted the breaches of the February 2006 Bond. The Magistrate then made three orders. First, he made an order extending the term of the February 2006 Bond by a period of 12 months (with that extension to commence on 31 July 2007). Secondly, he adjourned the application for enforcement of the 1 February 2006 Bond to 23 July 2007. Thirdly, the Magistrate ordered that the Department of Correctional Services provide a written “progress report” dealing with the appellant’s compliance with the conditions of his bond. Later on 5 January 2007, the appellant signed a document entitled “Notice of Suspended Sentence Bond Extended” in which he agreed to the extension of the February 2006 Bond.
[13] Criminal Law (Sentencing) Act 1988 (SA) (CLSA) s 57.
On 5 January 2007, the Magistrate did not purport to sentence the appellant for the 2005 offences. In that respect, my reference in the opening paragraph of these reasons to a “sentence” imposed on 5 January 2007 is a misnomer. As will be seen shortly, the order extending the period of the February 2006 Bond was beyond power, but that went unnoticed until after the appeal to this Court was commenced.
The appellant did appear in court on 23 July 2007, but it seems that the report from the Department of Correctional Services had not then been provided. Nor had it been provided on 3 September 2007. Eventually, on 16 November 2007, the Magistrate made further orders. The Court endorsement of 16 November 2007 indicates that the Magistrate regarded himself as dealing with the application for enforcement of the bond which had been filed on 21 July 2006.
The Magistrate considered that the February 2006 Bond had expired. If the extension made on 5 January 2007 was valid, then that understanding of the matter was incorrect as the effect of that extension had been to extend the currency of the February 2006 Bond to 31 July 2008. However, if that extension had been ineffective, then the February 2006 Bond had expired on 31 July 2007.
In any event, the Magistrate released the appellant upon his agreement to enter into a bond containing conditions that he be of good behaviour for a period of six months and that he return to court for sentencing in respect of the offences committed on 16 June 2005 and 16 October 2005 if he failed to comply with the conditions of the bond. In addition, the Magistrate imposed reporting and supervision conditions. The appellant did enter into a bond (the November 2007 Bond) in these terms.
On 12 February 2008, the appellant committed, with another, the offences of aggravated robbery,[14] aggravated assault causing harm,[15] and interference with a motor vehicle.[16] The circumstances of this offending are set out in the joint reasons. The appellant pleaded guilty to these offences in the Magistrates Court and was committed to the District Court for sentence.
[14] CLCA s 137(1).
[15] CLCA s 20(4).
[16] CLCA s 86A(1).
The Director of Public Prosecutions also filed in the District Court an application for the enforcement of the November 2007 Bond.
The Sentence in the District Court
The District Court Judge dealt with the application for enforcement of the November 2007 Bond in the following passages:
You received a relatively light penalty for [the 2005 offences] and were put on an 18-month good behaviour bond. Your response to that bond was less than satisfactory, however, and you were brought before the Holden Hill Court in November last year for breaching it by another assault. As the bond had by then expired, you were placed on a further 6-month bond, which you have breached by this offending. You have admitted that breach.
As no sentence was imposed with respect to [the 2005 offences], it falls upon me to fix sentences for the offending which led to the bond and for this matter. …
…
I will deal first with the breach of bond. I am not persuaded that the breaching circumstances were trivial or that there are other proper grounds for not proceeding to sentence you with respect to that original offending. I would fix a single sentence for it. It is not the most serious of its kind and a sentence of four months imprisonment would be appropriate. [Emphasis added]
It was common ground on the appeal that the District Court Judge’s belief that the appellant was before the Holden Hill Magistrates Court for “another assault” was wrong. Putting to one side possible irregularities in the way the appellant had come before the Holden Hill Magistrates Court in November 2007, it was his non-compliance with the reporting and supervision conditions of the February 2006 Bond which accounted for his appearance before the Court at that time. In particular, it had not been alleged that the appellant had committed any further assault at all after 16 June 2005 until 12 February 2008.
In relation to the offending of 12 February 2008, the District Court Judge said:
I turn then to your principal offending. I accept your counsel’s submission that your offending was unplanned and came about as a reaction to the intervention in your relatively minor offending by the owner of the vehicle. I also take account of the fact that it was not you who used the weapon, but you did join in the assault and the subsequent robbery.
I intend to impose a single penalty for that offending. But for your plea, it would have been a penalty of four years imprisonment, but on account of your plea, which was made at a very early stage, and taking account of the time you spent in custody or on home detention, I would reduce that sentence to three years. It would then be aggregated to the sentence for your original offending, which I have fixed at four months, to produce an overall head sentence of three years and four months. I can see no reason to reduce that sentence in its totality so it becomes the head sentence.
I have taken account of your age, antecedents, remorse and rehabilitation. I am mindful that you have taken significant steps to change your life around. Even so, I am not persuaded that there are good grounds for suspending the sentence. Your offending here was of a very serious order, indeed. It was the third act of violence in as many years and you have not respected the two bonds that have previously been offered to you. I will, however, fix a non-parole period that is shorter than might usually be fixed in the hope that you will be encouraged to take steps to change your life.
The non-parole period will be one year and nine months, and the sentence and the non-parole period will commence from today. [Emphasis added]
The Judge was wrong in regarding the offending of 12 February 2008 as the appellant’s third act of violence in as many years. Although the Judge made that remark as part of his reasons for refusing to suspend the sentence, it seems that the error also influenced his decision as to the appropriate head sentence.
The Judge also overlooked the obligation to impose the mandatory 12-month period of licence disqualification in respect of the offence of illegal interference with a motor vehicle.[17]
[17] CLCA s 86A(2).
Counsel for the Director of Public Prosecutions conceded these errors and accepted that it would be appropriate on these grounds alone for the appeal to be allowed and for the appellant to be re-sentenced.
The Judge’s reference to “an overall head sentence” of three years and four months was also an error. The aggregate of the sentences which he had imposed in respect of the 2005 offending and in respect of the offending of 12 February 2008 was not an overall single head sentence. It was simply the total period in custody to be served under the Judge’s orders. However, nothing turns on that misdescription for present purposes.
Before attempting any re-sentence, it is necessary to address the appeal against the orders made in the Magistrates Court on 1 February 2006, 5 January 2007 and 16 November 2007.
Appeal Against the Order Made on 1 February 2006
The issue with respect to the February 2006 Bond arose from the fact that the terms of the bond signed by appellant, and the endorsement on the Magistrates Court file, insofar as they required the appellant to appear for sentence in respect of the 2005 offending, went beyond the terms stated by the Magistrate in open court at the time of sentencing.
The appellant contended that this discrepancy made invalid the term in both documents that he appear for sentencing in the event of non-compliance with the bond. He submitted, in the alternative, that the discrepancy made it unfair that the requirement to appear for sentence was enforced as it had been by the sentence imposed on 16 November 2007. This, in turn, led to the sentence of four months imprisonment imposed by the District Court Judge on 9 December 2008 for the 2005 offending.
On 1 February 2006, the Magistrate was invoking s 39 of the CLSA. Section 39 provides:
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)to be of good behaviour; and
(ab)to comply with the other conditions (if any) included in the bond; and
(b) if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a)However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2)Where a defendant is discharged under this section—
(a)no fresh prosecution may be commenced in respect of the offence; and
(b) the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
The effect of s 39 is that a court may discharge a defendant with or without recording a conviction and without imposing a penalty upon a condition that the defendant enter into a bond. Any such bond must require the appellant to be of good behaviour and may include other conditions. By virtue of s 39(1)(b) one such condition may be to require the defendant to appear before the Court for sentence if the defendant fails during the term of the bond to comply with its conditions. Section 42 of the CLSA prescribes a number of other conditions which may be included in a bond. The Court has a discretion as to the period of the bond, but it may not exceed three years.[18]
[18] CLSA s 40.
The effect of s 39(1a) is that “other” conditions may only be imposed if the Court makes it a condition of the bond that the appellant appear before the Court for sentence in the event of non-compliance with the terms of the bond.
In the present case, on 1 February 2006 the Magistrate recorded a conviction but did not impose a penalty. In his sentencing remarks, the Magistrate made no reference to a requirement that the appellant appear before the Court for sentence in the event of breach of the bond. The Magistrate did, however, include a number of conditions relating to supervision and reporting. Having regard to the terms of s 39(1a) it can be inferred that the Magistrate did intend it to be a condition of the bond that the appellant appear for sentence in the event of non-compliance with the bond. It seems likely that his failure to stipulate that as a condition in his sentencing remarks was an oversight.
The order endorsed on the Magistrates Court file in relation to the 16 June 2005 offence (which was also incorporated by reference on the file relating to the 16 October 2005 offence) was:
Deft is to enter into a bond in the sum of $300 to be of good behaviour for a period of 18 months.
Conditions:
1. Deft to be returned to Court for sentencing if offends during the term of the bond.
…
A further seven conditions then followed.
This endorsement was initialled by the Magistrate. It was the “minute or memorandum of the …. order” required by s 70(1) of the Summary Procedure Act 1921 (SA). The endorsement concerning the first condition did not reflect the orders made by the Magistrate when sentencing the appellant. It seems that the bond was prepared in the Registry of the Holden Hill Magistrates Court. The appellant signed the bond before a Justice of the Peace, and not before the Magistrate. The bond contained an acknowledgement by the appellant as follows:
I agree to enter into this bond. I acknowledge that I fully understand its conditions, and I undertake to comply with those conditions. I also understand what will happen to me if I fail to do so.
Despite the terms of that acknowledgement, the appellant stated in the affidavit sworn by him in support of his appeal that he did not remember reading the bond and, in particular, did not remember reading the condition requiring him to appear for sentence if called upon. He said that he understood that he would “go to gaol or get a new bond” in the event that he did not comply with the conditions of the bond. The respondent did not seek to cross-examine the appellant on his affidavit. Although the appellant’s affidavit is not entirely clear as to his state of mind, it is consistent with him not having understood that the document presented to him for his signature contained a condition to which the Magistrate had not referred in the course of sentencing.
I consider it appropriate to proceed on the basis that although the condition requiring the appellant to appear for sentence was plainly stated in the bond, his attention had not been drawn to it. In particular, his attention had not been drawn to such a condition when he was (no doubt) asked by the Magistrate in Court if he was willing to enter into a bond on the terms stated by the Magistrate.
The appellant’s formal education is limited. On 1 February 2006 he was aged 19 years. He did not have legal representation at the time of his appearance in the Holden Hill Magistrates Court. It was not suggested that he had any other means of assistance available to him at that time. These circumstances make it understandable that he may not have appreciated the existence, let alone the significance, of the condition that he may be required to attend again in Court for sentencing.
Section 9 of the CLSA provides:
(1) A court must, upon sentencing a defendant who is present in court—
(a) state its reasons for imposing the sentence; and
(b) cause an explanation of the legal effect and obligations of the sentence and, where appropriate, of the consequences of non-compliance with it, to be given in simple language to the defendant.
(2)The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
The requirement contained in s 9(1)(b) is important. In the present case, the Magistrate took pains to spell out in his sentencing remarks each of the conditions of the bond which he had proposed. Unfortunately, those remarks did not include any mention of the requirement for the appellant to appear for sentencing in the event of non-compliance with the bond. The respondents did not suggest that the Magistrate made any further explanation which may have corrected his oversight in failing to mention the requirement that the appellant appear for sentence in the event of a breach of the bond.
I am satisfied that the Court record does not accurately reflect the order made by the Magistrate at the time of sentencing. This appears to have the consequence that the bond presented to the appellant for his signature did not reflect the terms of the sentence imposed by the Magistrate in open court.
It could be said that the mistake in the Magistrates Court has not resulted in any unfairness to the appellant. It is unlikely that his decision to enter into the bond would have been any different had the Magistrate mentioned the condition requiring him to appear for sentencing in the event of a breach of the bond. It could also be said that he had the opportunity to read the bond before signing it and, what is more, acknowledged that he had done so and that he understood the terms of the bond. The general rule is that a person signing a document intended to effect legal relations is, absent the existence of some vitiating element, bound by the terms of the document – see Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd.[19] A bond is an agreement,[20] and the principles stated in Toll are applicable to it. However, bonds under the CLSA are a particular kind of agreement as they are entered into at a time when the defendant is subject to the coercive processes of the criminal law. A defendant is of course not bound to accept the terms of a bond and may decline to enter into it. Generally, however, acceptance of the terms of a bond has the effect that a defendant avoids the imposition of a more serious sentencing sanction. This Court should not ignore the “coercive” effect of a stipulation by a sentencing court of the terms of a bond. Those considerations make it important that a defendant be informed accurately of the conditions of the bond before agreeing to enter into it.
[19] [2004] HCA 52; (2004) 219 CLR 165.
[20] CLSA s 3(1); Fischer v Chambers (1972) 4 SASR 105; Commonwealth Director of Public Prosecutions v Cole [2005] SASC 188 at [14]-[16]; (2005) 91 SASR 480 at 483-4.
In the present case, the respondents accepted that the circumstances occurring in the Holden Hill Magistrates Court on 1 February 2006 did result in unfairness to the appellant. The respondents also accepted that because of that unfairness, the appeal against the order made in the Magistrates Court on 1 February 2006 should be allowed. In my opinion, the respondents’ concessions in this respect were appropriate. I am satisfied that the circumstances occurring on 1 February 2006 did give rise to unfairness. Accordingly, it is not necessary to address the complaint of invalidity raised by the appellant.
I consider it appropriate for an extension of time to be granted and for the appellant’s appeal against the order made on 1 February 2006 to be allowed. The order imposing the condition that the appellant appear for sentence in the event of non-compliance with the bond should be set aside. The setting aside of that condition has the consequence that all of the other conditions, other than the mandatory condition to be of good behaviour, must also be set aside. Those conditions could be imposed only if it was a condition of the bond that the appellant appear before the Court for sentence in the event of non-compliance with the terms of the Bond.
The effect of the order I propose is that the February 2006 Bond will contain only the condition that the appellant be of good behaviour for a period of 18 months.
Appeal Against the Order of 5 January 2007
As previously noted, on 5 January 2007 the Magistrate made three orders, one of which was extending the terms of the February 2006 Bond by a period of 12 months with effect from 31 July 2007. The Magistrate did not have power to make that order.
The Magistrate’s powers on the application for enforcement of the February 2006 Bond were those stated in s 58(1) and (2) of the CLSA. Section 58(1) and (2) provide:
(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.
(2)The court may not order a person to pay an amount pursuant to subsection (1)(a) unless the court is satisfied—
(a) that the person has, or will within a reasonable time have, the means to pay the amount; and
(b) that payment of the amount would not unduly prejudice the welfare of dependants of the person.
As previously noted, the Magistrate did not purport on 5 January 2007 to sentence the appellant for the 2005 offences. Nor did he purport to exercise any of the other powers granted by s 58(1). The Magistrate did not have power to extend the terms of the February 2006 Bond. Section 58(3)(b) does give the Court the power to extend the term of a bond but that provision applies only to suspended sentence bonds and the appellant was not then subject to any suspended sentence.
Section 44(1) of the CLSA provides:
A probative court may, on the application of a probationer or the Minister for Correctional Services, vary or revoke any condition of a bond.
There was some discussion on the hearing of the appeals as to whether s 44(1) may authorise an extension of the term of a bond. In my opinion, it is not necessary presently to consider that question. The power under s 44(1) is enlivened only on the application of a probationer or the Minister for Correctional Services. No such application had been made in the present case.
I would extend the time within which the appellant may appeal against the order made on 5 January 2007. I would allow the appeal against the order made on 5 January 2007 insofar as it purported to extend the term of the February 2006 Bond. I would also set aside the agreement contained in the document “Notice of Suspended Sentence Bond Extended”.
Appeal Against the Order Made on 16 November 2007
As previously noted, on this occasion, the Magistrate sentenced the appellant afresh for the 2005 offences. He did so by releasing the appellant on a bond containing conditions that he be of good behaviour for a period of six months and that he return to Court for sentencing in respect of the 2005 offences if he failed to comply with the conditions of the bond.
In making those orders, the Magistrate was acting on the basis that the February 2006 Bond did contain a condition requiring the appellant to appear for sentence in the event of a breach of the bond. Having regard to my earlier reasons and conclusions, that belief of the Magistrate, although understandable on the face of the documents as they stood at that time, was without foundation. The Magistrate did not have any power in November 2007 to sentence the appellant again in respect of the 2005 offending.[21]
[21] CLSA s 39(2)(b).
There also appears to be (at the least) some incongruity in the Magistrate requiring the appellant to enter into a new bond for a period of six months given the purported extension of the February 2006 Bond. If both the orders made on 5 January 2007 and 16 November 2007 had been validly made, the appellant would have been subject to concurrent bonds in respect of the same offending. However, given my earlier reasons, it is not necessary to pursue the implications of that incongruity.
I would grant an extension of time to the appellant to appeal against the order made on 16 November 2007. I would set aside the order that the appellant be discharged upon his entering into a bond. I would also set aside the bond entered into by the appellant on 16 November 2007. If that order is made, the effect will be that the appellant has not been dealt with for his non-compliance in 2006 with the terms of the February 2006 Bond. In my opinion, it should be held that the appellant was not in breach of the February 2006 Bond, as his failure to comply with the reporting and supervision conditions did not, in the circumstances, amount to a breach of the condition that he be of good behaviour.
Appeal Against the Sentence Imposed by the District Court for the 2005 Offending
For the reasons given above, the appellant should not have been required to appear for sentence in the District Court in respect of the June 2005 offending. The District Court Judge had no power to impose a sentence in respect of the 2005 offending. The sentence of imprisonment for four months for that offending should be set aside.
Appeal Against Sentence for the Offending on 12 February 2008
I agree with the orders proposed in the joint reasons for re-sentence of the appellant in respect of the offences committed on 12 February 2008. I also agree with the reasons concerning re-sentence.
Conclusion
For the reasons given above, I consider that each of the appeals should be allowed. I agree with the orders proposed in the joint reasons
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