R v MITROVIC - [2010] SASCFC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MITROVIC
[2010] SASCFC 83
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)
24 December 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
CRIMINAL LAW - PROCEDURE - JURISDICTION - GENERALLY
Appeal against revocation of suspended sentence – appellant convicted of aggravated threatening life, aggravated assault and false imprisonment – District Court Judge imposed a single penalty of three years imprisonment for these three offences – sentence of imprisonment was suspended upon appellant entering into recognisance to be of good behaviour for three years – appellant subsequently convicted of an offence of assault – Director of Public Prosecutions filed estreatment proceedings in District Court – application listed for hearing in March 2010 sittings of Mount Gambier District Court – Supreme Court Judge presided over cases listed for hearing in March 2010 sittings of Mount Gambier District Court and heard application – during hearing of application the appellant gave evidence of his compliance with terms of bond in relation to supervision – Judge ordered pre-sentence report after this evidence was given – pre-sentence report contained evidence of non-compliance with terms of bond – Judge revoked suspension of sentence – whether Judge had jurisdiction to revoke suspension of sentence – whether Supreme Court capable of satisfying definition of probative court found in s 3 of the Criminal Law Sentencing Act 1988 (SA) for the purposes of enforcing the District Court bond – whether Judge erred by refusing to allow the suspension to continue under s 58(3) of the Criminal Law Sentencing Act 1988 – whether Judge erred in refusing to reduce the term of the suspended sentence pursuant to s 58(4) of the Criminal Law Sentencing Act 1988 – whether Judge improperly took into account evidence of the appellant’s response to supervision during period of bond.
HELD: appeal relating to jurisdiction dismissed – application for permission to appeal on remaining grounds refused – a Judge of the Supreme Court would not have jurisdiction to hear the present matter where the probative court is the District Court and probationer was found guilty of the breaching offence in the Magistrates Court – however it is open to infer from the circumstances that the Judge was appointed to preside over the hearing pursuant to s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) – if so, the Judge was sitting as a District Court Judge and entitled to exercise the jurisdiction of the District Court as the probative court – Judge had jurisdiction to revoke the suspension – the Judge did not err in electing to revoke the suspension as breaching offence was not trivial and there were no proper grounds for excusing the failure to abide by the terms of the bond – Judge did not have erroneous regard to evidence of appellant's response to supervision during period of bond – this evidence was relevant to exercise of discretion conferred by s 58(3) – Judge correctly concluded that there were no special circumstances pursuant to s 58(4) which would justify the reduction of the term of the suspended sentence.
Criminal Law (Sentencing) Act 1988 (SA) s 3, s 58(3), s 58(4), s 57, s 57(4); District Court Act 1991 (SA) s 24; Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5, referred to.
R v Allen (2002) 81 SASR 434; R v Adams (1995) 66 SASR 284; Tarasenko v Boylan & Attorney-General for South Australia (1992) 58 SASR 587; R v Buckman (1988) 47 SASR 303, considered.

R v MITROVIC
[2010] SASCFC 83
Court of Criminal Appeal: Duggan, Vanstone and David JJ

DUGGAN J: The appellant appeals against an order of a Judge of the Supreme Court revoking the suspension of a sentence of imprisonment. The suspended sentence was imposed in the District Court.
The appellant submits that the Supreme Court had no jurisdiction to revoke the order for suspension as it was not a “probative court”, as defined in s 3 of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”), for the purposes of enforcing a District Court bond. In the alternative, it is submitted that the Judge erred by electing to revoke the suspension rather than allowing the suspension to continue under s 58(3) of the CLSA. It is submitted in the further alternative that the Judge erred by refusing to reduce the term of the suspended sentence pursuant to s 58(4) of the CLSA.
A jury found the appellant guilty of aggravated threatening life, aggravated assault and false imprisonment. On 12 June 2007 a Judge of the District Court imposed a single penalty for the three offences pursuant to s 18A of the CLSA. The appellant was sentenced to three years imprisonment, with a non-parole period of 18 months. The sentence was suspended upon the appellant entering into a recognisance to be of good behaviour for three years. During that period he was to be under the supervision of a probation officer.
The bond was breached when the appellant committed an offence of assault on 9 November 2008. After pleading guilty in the Magistrates Court on 21 September 2009, he was sentenced to imprisonment for four months which was suspended upon him entering into a bond in the sum of $200 to be of good behaviour for a period of two years.
The Director of Public Prosecutions then commenced estreatment proceedings in the District Court. It was alleged that the appellant failed to observe the conditions of the District Court bond by committing the offence of assault on 9 November 2008.
The application by the Director of Public Prosecutions was listed for hearing at the March 2010 sittings of the Mount Gambier District Court. At the time the circuit was held a Supreme Court Judge was available in Mount Gambier to assist in hearing criminal matters listed for trial and sentence.
The usual procedure for transferring matters from the District Court to the Supreme Court is for an order to be made pursuant to s 24 of the District Court Act 1991 (SA) which provides as follows:
24—Transfer of proceedings between courts
(1)The Supreme Court or a Judge or Master of the Supreme Court may order—
(a) that civil or criminal proceedings in the District Court be transferred to the Supreme Court; or
(b) that civil or criminal proceedings in the Supreme Court that lie within the jurisdiction of the District Court be transferred to the District Court.
(2)The District Court or a Judge or Master of the District Court may order that civil or criminal proceedings in the District Court be transferred to the Supreme Court.
(3)Where proceedings have been transferred under this section, they may be continued and completed as if steps taken in the proceedings prior to the transfer had been taken in the court to which they are transferred.
No order was made transferring the present matter from the District Court to the Supreme Court, but, in any event, the appellant submits that such an order would not have conferred jurisdiction in relation to the enforcement proceedings.
In support of the argument that the Judge lacked jurisdiction, Mr White, for the appellant, drew attention to s 57 of the CLSA, which relevantly provides:
57—Non-compliance with bond
(1)If it appears to a probative court, by evidence given on oath, that a probationer may have failed to comply with a condition of the probationer's bond, the court may—
(a)     —
(i)issue a summons to the probationer requiring the probationer to appear before the court at the time and place specified in the summons; or
(ii)issue a warrant for the probationer's arrest; and
(b)     issue a summons to any guarantor.
(2)If a person fails to appear before the court as required by a summons issued under this section, the court may issue a warrant for the person's arrest.
(3)Where a person is arrested pursuant to a warrant issued under this section, the person must be brought before the probative court or the Magistrates Court not later than the next working day and may be remanded in custody or released on bail pending determination of the proceedings.
(4)If a probationer is found guilty of an offence by a court of a superior jurisdiction to that of the probative court, being an offence committed during the term of the bond, any proceedings for breach of condition arising out of the offence are to be taken in the court of superior jurisdiction.
(4a)If a probationer is found guilty of an offence by a court of an inferior jurisdiction to that of the probative court, being an offence committed during the term of the bond, the court of an inferior jurisdiction must—
(a)     sentence the probationer for the offence and remand him or her to the probative court to be dealt with for breach of the conditions of the bond; or
(b)     remand the probationer to the probative court to be sentenced for the offence and dealt with for breach of the conditions of the bond.
(5)The court dealing with a probationer for breach of condition must hear any evidence adduced tending to establish that the probationer has failed to comply with a condition of the bond and any evidence or representations that the probationer may wish to adduce or make in reply.
(6)In this section—
court of an inferior jurisdiction means—
(a)     if the probative court is the Supreme Court—the District Court, the ERD Court or the Magistrates Court;
(b)     if the probative court is the District Court or the ERD Court—the Magistrates Court;
court of a superior jurisdiction means—
(a)     if the probative court is the Magistrates Court—the Supreme Court, the District Court or the ERD Court;
(b)     if the probative court is the District Court or the ERD Court—the Supreme Court.
Section 3 of the CLSA provides that, except where a bond is entered into before an appellate court, the “probative court” is the court that made the order pursuant to which the defendant entered into the bond.
Section 57 of the CLSA contemplates that, as a general rule, proceedings for the enforcement of a bond are to be commenced and dealt with in the “probative court”. There is an exception in CLSA s 57(4) which requires a court of superior jurisdiction to the probative court to deal with proceedings for enforcement of a bond if the probationer is found guilty of a breaching offence before that superior court.
However, it is apparent that a Judge of the Supreme Court, sitting as a Judge of that Court, would not have jurisdiction to hear the present matter where the probative court is the District Court which imposed the bond and the probationer was found guilty of the breaching offence in the Magistrates Court.
It becomes necessary, therefore, to determine the capacity in which the Judge dealt with the application for enforcement.
Attention was drawn to s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) (“the Judicial Administration Act”) which provides as follows:
5—Power of judicial officer to act in co-ordinate and less senior offices
(1)Subject to subsection (1a) and (2), a judicial officer holding or acting in a particular judicial office may exercise, in addition to the jurisdiction and powers attaching to that office, the jurisdiction and powers attaching to any other judicial office of a co-ordinate or lesser level of seniority.
(1a)Subsection (1) does not apply to a judicial officer holding or acting in the judicial office of Deputy President of the Workers Compensation Tribunal (unless the judicial officer otherwise holds or is acting in another judicial office).
(2)This section does not authorise a judicial officer to exercise the jurisdiction or powers of the Industrial Court.
(3)A judicial officer who holds a particular judicial office but is acting in another may adopt the title appropriate to that other office.
(4)A judicial officer who has been appointed to hold or act in a judicial office in a particular court must obtain the consent of the judicial head of that court before undertaking judicial work in another court (but such a consent is not required where the occasion to exercise the jurisdiction and powers of some other court arises incidentally in some matter before the court to which the judicial officer was appointed).
The Judge reported to this Court that the Chief Justice informed him he would be required to deal with District Court matters at the circuit. In my view, it is open to infer from the circumstances that the Judge was appointed pursuant to s 5 of the Judicial Administration Act to preside over the Mount Gambier District Court with the approval of the Chief Justice and the Chief Judge of the District Court.[1] In dealing with the estreatment proceedings his Honour was acting as a District Court Judge.[2]
[1] Cf R v Allen (2002) 81 SASR 434.
[2] R v Allen (2002) 81 SASR 434; R v Adams (1995) 66 SASR 284; Tarasenko v Boylan & Attorney‑General for South Australia (1992) 58 SASR 587.
It follows from what I have said that the Judge was entitled to sit as a District Court Judge exercising the jurisdiction of the District Court and, in particular, its jurisdiction as a “probative court” in relation to a bond entered into before it. In my view, the appeal based on lack of jurisdiction must fail.
The next question is whether the Judge acted correctly in refusing to refrain from revoking the suspension or reduce the term of the suspended sentence.
The offences for which the bond was imposed were serious. They were committed on the appellant’s de facto wife while she and the appellant were managing the Kalangadoo Hotel. The appellant became angry at the fact that the victim refused to serve some guests he brought back to the hotel from a race meeting. He dragged her by the hair, threatened to kill her and menaced her with an axe. He detained her in their bedroom for a period of some hours.
The breaching offence took place at a hotel on the evening of 9 November 2008. An argument developed between the appellant and an acquaintance. The argument concerned a female person known to both men. It is not in dispute that the victim was the original aggressor, but the appellant struck the victim three or four times with an open hand while the victim was on the ground. The appellant received an injury to his thumb at an earlier stage in the confrontation. He pleaded guilty to the assault.
Mr White argued that the circumstances come within s 58(3) of the CLSA which empowers the Court to refrain from revoking the suspension of the sentence where 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 …
Mr White argued that there were proper grounds to exercise the discretion not to revoke the suspension because of a marked disproportion between the original offence and the offence which breached the bond. He referred to R v Buckman,[3] where the original offence was unlawful wounding and the breaching offence consisted of shoplifting goods to the value of $2.82. King CJ said:[4]
In the present case it seems to me that there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated. It is not irrelevant, moreover, that the offence constituting the breach is of a quite different character from that for which the sentence was imposed. The matter being at large for this Court for the reasons explained by Jacobs J, it seems to me that the total effect of the relatively minor nature of the offence constituting the breach, the difference in character between it and the offence for which the sentence was imposed and the disproportion between the seriousness of the offence constituting the breach and the sentence which would be activated, is such as to amount to proper grounds upon which the failure to observe the conditions of the recognisance should be excused.
[3] (1988) 47 SASR 303.
[4] (1988) 47 SASR 303 at 304-305.
In my view the breaching offence in the present case was not trivial. Furthermore, it was not argued that it did not merit the sentence of imprisonment for four months which was awarded by the Magistrate and then suspended.
As for the second limb of s 58(3), the learned Judge was justified in finding that there were no proper grounds for excusing the failure to abide by the terms of the bond. The original offence and the appellant’s record illustrate his lack of control over anger. It was a term of the bond that he attend anger management programs recommended by his local Community Corrections Office. The breaching offence was an assault, albeit not as serious as the original incident. The learned Judge considered the defence submission carefully but, in my opinion, he was justified in rejecting it.
There was an additional argument that the Judge wrongly took into account evidence of the appellant’s response to supervision during the period of the bond and that this in some way clouded his assessment of whether there were proper grounds for excusing the breach which occurred by reason of the assault.
The issue of the appellant’s response to supervision arose following evidence by the appellant at the sentencing hearing that he had complied with the conditions of the bond requiring him to obey the directions of his Community Corrections Officer. He said he kept appointments with the Community Corrections Officers and that none of them were critical of him.
The learned Judge referred in his sentencing remarks to a pre-sentence report which he ordered after this evidence had been given. His Honour said:
I then obtained a pre-sentence report which, unfortunately for you, did not confirm what you told me and did not accord with the instructions which you gave your counsel. The report is quite critical of you.
The requirement of the supervising conditions was that you attend on a fortnightly basis for a period of two years. The records show that you appeared on 21 occasions, less than half the number required. The details of your nonreporting are set out in the pre-sentence report. I realise that some attendances may have been difficult because of the requirement to travel, but it cannot explain your overall noncompliance.
In relation to your compliance with the supervision direction, you did not give yourself a very good chance of rehabilitation. You were described as displaying signs of anger and agitation, while portraying yourself as the victim and failing to take any responsibility for your actions. It is recorded in the files that it was quite impossible to counsel you because you had such fixed ideas about the legal system. The files show that you constantly maintained that you were innocent of any wrongdoing and that you failed to engage with supervision in a meaningful way. You were, therefore, considered unsuitable for counselling programs, owing to your attitudinal problems.
The report concluded that you would not be suitable for future supervision, owing to your highly antisocial personality traits and aggressive behaviour.
A case manager attempting to counsel you arranged for a psychologist to attend, but when that person could not find your residence, you used inappropriate language and behaviour to others and called the psychologist an idiot. As a result of your behaviour, the psychologist did not attend again.
It is reported that you did not acknowledge any concerns about your use of anger or violence, or that you, indeed, had any issues with your anger.

Mr White argued that, against this background, the Judge reached his conclusion on the application under s 58(3) in the following paragraph:
I have considered the options available to me under sub-s.(3). I do not consider that your failure to comply with the conditions of the bond was trivial or that there exist any proper grounds upon which your failure to comply should be excused. I have heard and taken into account your explanation for the failure to comply. Therefore, I do not find it appropriate to refrain from revoking the suspension of your sentence as contemplated by s.58(3)(a) or appropriate for me to order that you enter into a further bond under s.58(3)(b)(ii).
As I understand the argument, it is claimed that the sentencing remarks suggest that the Judge refused to apply s 58(3) because of the failure of the appellant to obey directions given by the Community Corrections Officers instead of determining whether, because of the nature of breaching offence, it would be disproportionate to estreat the bond and revoke the suspension of the sentence.
I would reject this argument. The Judge referred in his remarks to the submissions of defence counsel that the breach was not serious. In my view he did not lose sight of the fact that the breach complained of was the assault. Nevertheless, it was also relevant to the exercise of the discretion conferred by s 58(3) to enquire whether the appellant had responded to supervision, particularly in the light of his assertion that he had obeyed relevant directions.
I also agree with the Judge’s conclusion that there were no special circumstances justifying the reduction of the term of the suspended sentence pursuant to s 54(4) of the CLSA.
I would dismiss the appeal relating to jurisdiction and refuse the application for permission to appeal on the other grounds.
VANSTONE J: I agree with the orders proposed by Duggan J and with the reasons he has provided.
DAVID J: I would also dismiss the appeal relating to jurisdiction and refuse the application for permission to appeal on all other grounds. I agree with the reasons of Duggan J.