R v Macgregor No. Sccrm-02-142

R v MacGREGOR
[2003] SASC 63
Court of Criminal Appeal: Doyle, CJ, Duggan and Gray JJ

DOYLE CJ I would dismiss the appeal. I agree with the reasons given by Gray J for so deciding.
DUGGAN J. I agree that this appeal should be dismissed for the reasons given by Gray J.
GRAY J This is an appeal against an order revoking the suspension of a sentence of imprisonment.
Background
The Offences
On 27 June 2001 the appellant, Alistair MacGregor entered pleas of guilty to the offences of aggravated serious criminal trespass and common assault. The victim was the appellant’s former de facto partner.
On 26 January 2001 the appellant went to the home of the victim where she resided with her sister and parents. The appellant was asked to leave by the victim’s father. He refused to do so. The appellant then forced his way into the home by breaking open the front door. He intended to commit the offence of assault. He then took the victim in his car and drove off. The appellant said to the victim:
“I don’t know what I am doing” and
“I just want to talk to you.”
He drove to his grandmother’s home and went inside. The victim used this opportunity to escape and call the police.
The Initial Sentence
In sentencing the appellant the sentencing Judge noted:
“Your conduct was very violent and distressing for the complainant and her family. They were not to know that you did not intend to harm the complainant. I accept that you were distressed by the breakdown of the relationship, but that is no excuse for your conduct.”
Dr Kenneth O’Brien, a psychiatrist, assessed the appellant. Although no diagnosis of a major psychiatric illness was made the appellant was described as being mentally disordered in a more general sense:
“a disturbed young man with significant personality problems, inability to handle stress and a propensity to act aggressively and impulsively when under stress.”
The Judge took into account the appellant’s “intermittent explosive disorder” and difficulty handling stressful situations. It was not the appellant’s first offence. The offences of aggravated serious trespass and common assault were in breach of a good behaviour bond.
The Judge imposed one penalty pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). A head sentence of four years imprisonment was imposed and a non-parole period of two years and nine months fixed. The sentence of imprisonment was suspended. The Judge observed:
“I accept that you are now contrite for what you have done. You have come to a realisation that your conduct was not justified and that you need medical assistance. Upon your own initiative you have approached the Central Domestic Violence Intervention Program for inclusion in that program. …
Importantly, your psychiatric disorder was directly connected to your criminal conduct. There is general agreement that you need a period of intensive assistance. You are at the cross roads. The alternative is to send you to gaol where you will not be able to receive the necessary assistance. The public interest will be best served if you can successfully complete a rehabilitation program.
In all the circumstances, I have decided to take the exceptional course of suspending your sentence. The conditions of the bond will be strict. I emphasize that you can expect little sympathy in the future if you breach any of the conditions of the bond.”
Before the court adjourned the Judge stressed the importance of compliance with the terms of the bond:
“If you come back here, having breached the bond in any way, and it says ‘to be of good behaviour’, if you come back here having breached the bond, and in particular if you come before me, almost inevitably you will go to gaol. There will be no choice. When the bond says you’re to obey the directions, it means exactly what it says. You may not like them, but you’re going to obey them or you will be in breach of the bond.
Dr O’Brien reported that you did not want medication. If you are told by Dr O’Brien or your probation officer you are to take medication, you take it or you will be in breach of the bond. Dr O’Brien reported that you didn’t want what you considered to be condescending counselling, his words, he quotes your words, you didn’t want that. Well, Mr MacGregor, if you get from somebody what you consider to be condescending counselling, you have to put up with it, it’s that simple, you have no choice, or you will be in breach of the bond.
Mr MacGregor, be under no misapprehension, if you make any attempt to contact Miss Kamleh, or to interfere with her life in any way, then you will be back here quick smart and the door will clang right behind you. Just remember those things and good luck.”
The Breach of Bond
Following the appellant’s release an appointment was made for him to see Dr O’Brien on 2 October 2001. The appellant telephoned Dr O’Brien’s office to advise that he would not be able to attend because of work commitments. The appointment was re-scheduled. He failed to attend a further two appointments on 15 October 2001 and 23 October 2001.
On 24 October 2001 Dr O’Brien advised the Director of Public Prosecutions that the appellant had failed to attend appointments in accordance with the terms of his bond. Dr O’Brien expressed the view that was a serious matter having regard to his concern about the appellant’s mental health. On 25 October 2001 an application for enforcement of the bond was made to the sentencing Judge. A warrant for the appellant’s arrest was issued. On becoming aware of the warrant the appellant sought to evade apprehension.
On 21 March 2002 the appellant was questioned by the police over a traffic offence This led to the execution of the warrant and the arrest of the appellant. Submissions on the application for revocation of the suspension of the sentence were made at that time. The appellant was not represented. He was remanded in custody.
Further submissions were made on 28 March 2002. On this occasion the appellant was represented. He acknowledged his breach of bond. He remained in custody.
Richard Balfour, a psychologist with the South Australian Forensic Health Service reported at this time:
“In my opinion, Mr MacGregor clearly understood the rehabilitation conditions and obligations associated with his non-custodial sentence. He exercised his personal judgement not to comply with some of those conditions and was fully aware of the serious legal consequences.
Mr MacGregor’s non-compliance with the condition to present for psychiatric assessment and treatment stems from his prejudices based on erroneous information about what constitutes psychiatric treatment.”
The Legislative Provisions
Section 58 of the Criminal Law (Sentencing) Act 1988 (SA) relevantly provides:
“(1) Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court -
...
(d)if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended - must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect. ...
(3)Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court -
(a)may refrain from revoking the suspension; and
(b)may -
(i)-
(A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
...
(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; ...”
In R v Buckman[1] King CJ considered a provision of the Offenders Probation Act 1913 (SA) in similar terms to section 58 of the Sentencing Act:
“There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.
Parliament has recognised, however, that in some cases the rigorous application of the ordinary consequences of breach can be oppressive and even unjust. It has therefore provided to the courts the means of ameliorating those consequences in exceptional cases.”
In R v Marston[2] these remarks were the subject of further comment by King CJ:
“It is of great importance that the courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.”
Revocation of Suspension
[1] (1987-88) 47 SASR 303 at 304. See also SA Police v Bowden (unreported Supreme Court SA Olsson 10 May 1994), Korber v Bailey (1994-95) 63 SASR 426 at 431-2
[2] (1992-93) 60 SASR 320 at 322
On 19 April 2002 the Judge heard further submissions in the present case. Counsel for the appellant submitted that the nature of the appellant’s fear of psychiatric treatment had not been fully appreciated and that he should be given another chance to comply with the terms of the bond. The Crown submitted that the appellant had wilfully disobeyed the terms of the bond by his non-attendance at appointments; his consumption of alcohol and by his evasive conduct when he became aware of the warrant for his arrest.
The Judge revoked the suspension of the sentence and ordered that the appellant serve the sentence previously imposed:
“Unfortunately, the circumstances demonstrate a return to what has been his attitude in the past, namely that he will judge what he will not, [do and not do] irrespective of the directions of the court. I do not regard the failure to report to Dr O’Brien as a manifestation of some form of disorder arising out of Mr MacGregor’s history with respect to psychiatrists and medical treatment generally. His attitude to that question has undoubtedly been influenced by his experience, but that is a different question from a finding that the breaches were a manifestation of some disorder. As Mr Balfour has reported, Mr MacGregor clearly understood the conditions and exercised a personal judgment with full knowledge of the serious legal consequences.”
The time spent in custody since the execution of the arrest warrant was taken into account.
Issues On Appeal
Further Evidence
Counsel for the appellant tendered a further report from Dr O’Brien:
“I have been advised that your client was seen by my collegue Dr Ian Jennings psychiatrist at Yatala Labour Prison on both 27th November 2002 and 4th December 2002. At the November interview he indicated that he did not want to take any psychiatric-type medication although Dr Jennings raised with him the possible use of Sodium Valproate (a mood stabiliser and anti-aggression preparation). Referral to a psychologist was your client’s preference. However, when Dr Jennings re-interviewed Mr MacGregor the following month at, I may add, your client’s request, Mr MacGregor told Dr Jennings that he was prepared to accept a trial of medication whilst in gaol. In that context he was commenced on Sodium Valproate in a dose of 800mg twice a day. On the 11th December 2002 Mr MacGregor was transferred to Port Lincoln Prison where I saw him on the 17th December. I found him to be behaviourally settled, taking his medication and due to commence work in the prison kitchen. I noted that he was also taking the antidepressant Doxepin in a dose of 50mg at night. I arranged to see him again at my Port Lincoln Prison psychiatric clinic in February 2003.”
Dr O’Brien was not prepared to express an opinion that the appellant’s unwillingness to consult a psychiatrist earlier was necessarily “related to the presence of any psychiatric disorder per se.” However he was of the view that the appellant’s personality may have had a bearing on his earlier unwillingness to attend for psychiatric interview. Dr O’Brien was in agreement with the views of Mr Balfour.
The earlier views of Mr Balfour, as now confirmed by Dr O’Brien, provide an explanation for the appellant’s conduct. The appellant made a deliberate decision not to comply with the term of his bond. However he was apparently influenced by prejudices and erroneous information concerning psychiatric treatment.
The further report of Dr O’Brien suggests that the appellant may have overcome his misunderstandings and prejudices. He is now following recommended psychiatric treatment and taking appropriate medication whilst in custody.
The Seriousness of the Criminal Conduct
The appellant’s criminal conduct leading to the imposition of the suspended term of imprisonment was serious. It might be said that the Judge was merciful in exercising his discretion to suspend the sentence of imprisonment. It is apparent that the Judge was heavily influenced by the importance of medical treatment. Critical to the exercise of discretion to suspend the term of imprisonment was the appellant’s apparent willingness to undergo psychiatric treatment.
The Conduct in Breach
Compliance with the terms of a bond to seek and follow psychiatric treatment was important. The appellant’s deliberate breach of the terms of his bond is also serious. The appellant’s agreement to the terms of the bond was a principal consideration in the Judge’s decision to suspend. The appellant claimed that he was influenced by fear that he would be forced to take medication. However Mr O’Brien had made it plain to the appellant at an early time/stage that such a situation would not arise.
The further report of Dr O’Brien adds little to assist the appellant. The report confirms that following almost nine months imprisonment the appellant agreed to commence psychiatric treatment and to the use of prescribed medication. This suggests that imprisonment has had a beneficial effect.
Disproportionality
Counsel for the appellant submitted that there was a marked disproportion between the seriousness of the breaching offence and the length of the sentence activated when the suspension was revoked. Counsel emphasised that failure to keep appointments had led to the revocation of a lengthy suspended sentence. However when it is understood that the breach went to the critical issue of the appellant receiving necessary psychiatric treatment, the revocation cannot be viewed to be disproportionate to the conduct in breach.
In general a breach of a condition of recognisance upon which a sentence has been suspended should result in the offender serving the sentence which was suspended. This was a case where the clear legislative policy earlier identified should have been given effect to. Departure from that policy in this case would undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offending. The Judge’s decision to revoke the suspension of the sentence has had the desired salutary effect on the appellant. As earlier observed the appellant has finally come to understand and accept his need for psychiatric treatment.
The appellant seeks to have this court interfere with an exercise of a discretion[3]. The only suggested error of approach was that the Judge failed to have regard to the principle of proportionality. For reasons mentioned earlier this argument is without substance. It was not suggested that the Judge had regard to irrelevant material or failed to have regard to any relevant material. The further evidence from Dr O’Brien is primarily anecdotal. It records that the appellant has now apparently accepted that it is in his interest to have psychiatric treatment. The fact that the appellant has now come to this realisation does not form a basis for interfering with the revocation order.
[3] R v Dinsdale (2000) 202 CLR 321.
The order of the Judge was an appropriate order. No ground to interfere with his order has been established. This appeal should be dismissed.

LIST OF CITATIONS AS THEY APPEAR IN THE JUDGEMENT
1.(1987-88) 47 SASR 303 at 304. See also SA Police v Bowden (unreported Supreme Court SA Olsson 10 May 1994), Korber v Bailey (1994-95) 63 SASR 426 at 431-2
2 (1992-93) 60 SASR 320 at 322
3 R v Dinsdale (2000) 202 CLR 321.

[2003] SASC 63

19 March 2003