R v Ossitt - [2011] SASCFC 23

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v OSSITT
[2011] SASCFC 23
Judgment of The Court of Criminal Appeal
(The Honourable Justice White, The Honourable Justice Kelly and The Honourable Justice Peek)
1 April 2011
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PROCEDURE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
The respondent was sentenced to a period of imprisonment for the offences of theft and aggravated assault causing harm - the sentencing Magistrate suspended the sentence upon the respondent entering into a bond - the respondent breached the bond, by committing further offences - a District Court Judge revoked the original suspension, but then purported to suspend both the term of imprisonment for the original offences, and the sentence of imprisonment which he imposed for the later offences - the Director sought permission to appeal against the suspensions on the basis that suspension of either sentence was precluded by ss 58(3) and 38(2) respectively of the Criminal Law (Sentencing) Act 1988 (SA).
Held: permission to appeal granted - the suspension of the sentences was not authorised - respondent re-sentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 38, s 58; Criminal Law Consolidation Act 1935 (SA) s 20, s 134, s 137, s 340, referred to.
R v Nemer (2003) 87 SASR 168, applied.
Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227; R v Osenkowski (1982) 30 SASR 212; Dinsdale v The Queen (2000) 202 CLR 321; R v Robinson [2004] SASC 189; R v Ivic [2006] SASC 8; R v Sumner & Sumner [2007] SASC 376; R v J, W (2010) 199 A Crim R 486; R v Allpass (1993) 72 A Crim R 561; R v Buckman (1988) 47 SASR 303; Police v B, WR (2005) 91 SASR 451, considered.

R v OSSITT
[2011] SASCFC 23
R v OSSITT

Court of Criminal Appeal: White, Kelly and Peek JJ

WHITE J. The Director of Public Prosecutions seeks permission to appeal against a sentence imposed in the District Court, on the ground that the sentence was not authorised by law.
The respondent concedes that the sentence is affected by error and that permission to appeal should be granted so that the error can be corrected.
Background
The respondent committed two offences on 23 June 2006: aggravated assault causing harm[1] and theft.[2] He was sentenced for those offences in the Magistrates Court on 11 October 2007. The Magistrate imposed a single sentence under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) of imprisonment for three months and suspended that sentence upon the respondent entering into a bond in the sum of $200 to be of good behaviour for a period of two years and to comply with other conditions.
[1] Contrary to s 20 of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
[2] Contrary to s 134(1) of the CLCA.
Unfortunately, the respondent did not comply with this bond. Only two months later he committed again the offences of theft[3] and aggravated assault causing harm.[4] These were the offences for which the respondent was sentenced in the District Court. In the early hours of 11 December 2007, the respondent came upon his victim who was sitting on a bench in Victoria Square in the City. The victim was inebriated. The respondent forcibly took the victim’s expensive watch from his wrist and then struck the victim’s head with a bottle. This resulted in a severe gash as well as concussion.
[3] Contrary to s 134(1) of the CLCA.
[4] Contrary to s 20 of the CLCA.
The respondent was himself intoxicated at the time. He was arrested later on the same morning. Following his arrest, the respondent spent some eight months in custody.
As the victim chose not to provide a Victim Impact Statement, the District Court Judge had no information as to the continuing effects, if any, of his physical injuries. However, the stolen watch was recovered.
As a result of the incident on 11 December 2007, the respondent was charged with a single offence of aggravated robbery.[5] He pleaded not guilty to that offence. Shortly before his trial, the Director filed a fresh information alleging the offences of aggravated assault causing harm and theft, and the respondent pleaded guilty to those offences.
[5] Contrary to s 137(1) of the CLCA.
The respondent is now 29 years of age. He left school at age 15 years, part way through Year 10. Since then, he has returned to school to complete Year 12 and has also undertaken some tertiary study. The respondent has had various employments including about three years working in aquaculture. He has not worked since 2007. The respondent has a history of drug and alcohol abuse. A psychologist has assessed him as being of average intelligence and as having a number of traits characteristic of a borderline personality disorder.
The respondent has numerous prior offences with his antecedent report extending to four pages. Many of his previous offences appear to have been associated with his excessive alcohol consumption. However, since 2007 there has been a decline in his offending.
It seems that since 2008, the respondent has made significant attempts to address his alcoholism and the sentencing Judge was told that he no longer uses illicit drugs. He has been prescribed medication to combat his depression and psychosis, and has participated in a number of rehabilitative programmes.
The Orders in Respect of the Breach of Bond
The offences of 11 December 2007 breached the bond into which the respondent entered on 11 October 2007. The orders which the Judge could make in respect of that breach are contained in s 58 of the Sentencing Act. Subject to subs (3), the Judge was required to revoke the suspension of the three month sentence of imprisonment and to order that it be carried into effect. However, by subs (3), if the Judge was satisfied that the respondent’s breach was trivial or that there were other proper grounds upon which to excuse the breach, he could refrain from revoking the suspension.
The Judge considered that there was no proper basis upon which the breach could be excused. This was because the offences committed on 11 December 2007 were similar to those committed on 23 June 2006 in respect of which the suspended sentence was imposed; they were serious offences; and had been committed only two months after the respondent had entered into the bond. Accordingly, the Judge revoked the suspension of the previous sentence thereby, in the Judge’s words, “activating the sentence of three months imprisonment”.
The Sentence for the Offences Committed on 11 December 2007
The Judge took as a starting point for a single sentence imposed under s 18A of the Sentencing Act a sentence of imprisonment for two years and three months. He reduced that starting point to imprisonment for 12 months in order to take account of the respondent’s pleas of guilty and the period of eight months which he had spent in custody. The Judge directed that that sentence be cumulative upon the “activated” sentence of three months imprisonment and fixed a non‑parole period of four months.
The Judge considered that there was good reason to suspend “the term of imprisonment I have imposed”. He ordered that the sentence be suspended upon the respondent entering into a bond to be of good behaviour for a period of two years, and agreeing to be subject to the supervision and directions of a Community Corrections Officer for a period of 12 months. The bond signed by the respondent showed that the offences to which it related were the two offences committed on 11 December 2007 and the offences which were the subject of the “Application for enforcement of a Breached Bond”. It also showed that the total period of imprisonment to be served was 15 months with a non‑parole period of four months.
The Judge therefore purported to suspend both the “activated” sentence of imprisonment of three months as well as the sentence which he had imposed.
Errors in the Sentence
The Judge’s powers on his revocation of the previously suspended sentence were those contained in s 58(4) of the Sentencing Act, which provides:
(4)     Where a court revokes the suspension of a sentence of imprisonment, the court—
(a)     may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b)     may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(ba)   may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;
As can be seen, although the Judge had power to reduce the term of the suspended sentence, or to direct that time spent in custody counted as part of that term, he did not have power under s 58(4) to order a further suspension of the term of imprisonment.
Further, s 38(2) of the Sentencing Act precluded the suspension of the sentence imposed by the Judge for the offences committed on 11 December 2007. Section 38(2) provides:
(2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.
Because the previously suspended sentence of three months had to be served in custody, it was not open to the Judge to suspend the sentence which he himself had imposed.
The result is that the Judge imposed a sentence which was not authorised by law. It follows that the bond into which the respondent entered on 15 February 2010 is not enforceable.
In fairness to the Judge, it is appropriate to point out that during the course of the sentencing submissions, counsel for the respondent sought suspension of the sentence. Further, the prosecutor indicated to the Judge that suspension was an available sentencing option. It appears that both counsel, like the Judge, overlooked the effect of ss 58 and 38(2) of the Sentencing Act.
Permission and a Prosecution Appeal
The circumstances in which this Court allows a prosecution appeal are limited. The principles to be applied when the Director seeks permission to appeal with a view to increasing a sentence are well established.[6] In R v Nemer Doyle CJ said:
[23]The High Court has determined that the court should grant leave to the Director to appeal against sentence "only in the rare and exceptional case": Everett v The Queen (1994) 181CLR 295 at 299.
[24]The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would "shock the public conscience": see R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; Everett (at 300). Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[6] See eg, Everett v The Queen (1994) 181 CLR 295; Malvaso v The Queen (1989) 168 CLR 227 at 233; R v Osenkowski (1982) 30 SASR 212 at 212-3; R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at 172‑4.
As can be seen, the observations of Doyle CJ in Nemer were directed to the case in which the Director seeks permission to appeal with a view to having a sentence increased.
This case is of a different kind. The Director does not seek permission with a view to the Court imposing a more severe sentence. Instead, he seeks that permission with a view to the Court fixing an enforceable sentence of similar severity to that imposed by the Judge.
The imposition of a sentence which is not authorised by law is an affront to the administration of justice. Sentencing courts must act according to law. To allow a sentence not authorised by law to stand would not achieve the purposes of the criminal law and would undermine public confidence in the courts.
Accordingly, although the circumstances of this case are not of the usual kind to which the authorities concerning the grant of permission to the Director refer, it is nevertheless appropriate to grant permission to appeal and to allow the appeal. The sentence imposed by the Judge should be set aside and the respondent should be re-sentenced in a way which conforms with the law.
Re-Sentence
In the re-sentencing, this Court must take account of s 340 of the CLCA, which provides:
Despite any other rule of law, if on an appeal against sentence the court is satisfied that the sentence should be quashed and another sentence (whether more severe or otherwise) imposed, the court must—
(a)     impose the sentence that should have been imposed in the first instance; and
(b)     order that the sentence—
(i)    will be taken to have come into effect on a date before the date of the order; or
(ii)    will take effect on a date on or after the date of the order.
Section 340 applies only when this Court has passed the threshold of deciding on appeal that a sentence should be quashed and another sentence imposed. In that circumstance, and only in that circumstance, is this Court required to impose the sentence which should have been imposed in the first instance. The section is intended to preclude this Court taking account of the principle of double jeopardy when it comes to re‑sentence.
The most obvious effect of s 340 is to require this Court, when re‑sentencing following a prosecution appeal, not to apply the convention of imposing a new sentence which is at the lower end of the range of available sentences for the offences in question.[7] In R v J, W[8] Spigelman CJ referred to various formulations of this convention. Generally, it has been regarded as a reflection of the law’s aversion to double jeopardy and as requiring an appellate court re‑sentencing an offender to impose “a sentence that is somewhat less than the sentence it considers should have been imposed at first instance”.[9]
[7] Dinsdale v The Queen [2000] HCA 54 at [62]; (2000) 202 CLR 321 at 341; R v Robinson [2004] SASC 189 at [60]; R v Ivic [2006] SASC 8 at [56]; R v Sumner & Sumner [2007] SASC 376 at [82].
[8] [2010] NSWCCA 49 at [96]; (2010) 199 A Crim R 486 at 506.
[9] R v Allpass (1993) 72 A Crim R 561 at 562.
It is not necessary for the disposition of the present appeal to consider whether s 340 has any reach beyond that of requiring this Court not to apply this re‑sentencing convention.
It is convenient to consider first the application for the enforcement of the bond into which the respondent entered on 11 October 2007. One commences by acknowledging the clear legislative policy to which King CJ referred in R v Buckman[10] that, in general, a breach of a condition of a bond upon which a sentence has been suspended should result in the offender serving the sentence which was suspended.
[10] (1988) 47 SASR 303 at 304.
The first step is to consider whether there is, under s 58(3), any proper basis upon which a breach of the bond could be excused. Such a basis, if it exists, must be found in the nature of the breach or in the circumstances in which the breach was committed.[11]
[11] Ibid at 304, 308; Police v B, WR [2005] SASC 163 at [41]; (2005) 91 SASR 451 at 459.
Like the sentencing Judge, I do not consider that there is any proper basis upon which the respondent’s breaches of bond can be excused. The offences constituting the breaches were not trivial. On the contrary, they were serious offences in their own right, and were committed only two months after the respondent had entered into the bond in the Magistrates Court.
This means that the suspension of the sentence imposed in the Magistrates Court should be revoked and an order should be made that that sentence be carried into effect.
The Court does, however, have the ameliorative powers contained in s 58(4)(a) and (b). In particular, by sub-paragraph (b) the Court may direct that time spent by the respondent in custody “pending determination of the proceedings for breach of condition” be counted as part of the term of the suspended sentence.
In the present case, all but five days of the period which the respondent has spent in custody occurred before the application for enforcement of the bond was filed on 18 November 2009. However, I consider that account can be taken of the time spent in custody before 18 November 2009. There is no reason to give the word “pending” in s 58(4)(b) a narrow construction. One of the meanings given by the Macquarie Dictionary for the word “pending” is “in the period before the decision or conclusion of”. Accordingly I regard s 58(4)(b) as encompassing, in a case such as the present, a period spent by the probationer in custody after the commission of the breaching offence and before the actual commencement of the proceedings for the enforcement of the bond.
The present case is quite unusual. As a result of the Judge’s sentence, the respondent, although dealt with for the breach of the bond, has remained at liberty for more than 13 months. That is because there has been a considerable elapse of time between the commencement of the Director’s application for permission to appeal, on the one hand, and the hearing of the application, on the other. The Director did commence his application in a timely way, but the application has only now been listed for hearing. The elapse of time is attributable to a delay in serving the application for permission to appeal on the respondent. He is not responsible for that delay. It was only when the respondent was served recently with the Director’s application that he became aware of the potential invalidity of the Judge’s sentence.
In my opinion, this Court should take account of the fact that the respondent has, since being sentenced on 15 February 2010, been at liberty and has regarded his breach of bond as having been finalised.
An order which has the effect of incarcerating the respondent at this late stage would be oppressive. As I have said, the circumstances of this case are quite unusual. Such a long delay between the commencement of a prosecution application for permission to appeal, and the hearing of the application, is exceptional.

Accordingly, I consider that this is an appropriate case in which to direct that three months of the time spent by the respondent in custody before the determination of the breach of bond application should be counted as part of the term of the suspended sentence. I would direct that the time spent by the respondent in custody be regarded as satisfying the term of imprisonment imposed in the Magistrates Court. The effect is that although the suspension of the sentence is to be revoked, the respondent is to be taken to have served the three month term of the suspended sentence and no further action need now be taken in relation to it. I note that Doyle CJ adopted a similar course of action in Police v B,WR.[12]
[12] [2005] SASC 163 at [48]; (2005) 91 SASR 451 at 460.
In the re‑sentencing for the offences committed on 11 December 2007 both parties submitted that this Court should endeavour to impose a sentence of a similar severity to that intended by the Judge. In the unusual circumstance of this case, I agree that that is appropriate. Some adjustment is, however, required to take account of the fact that three months of the time spent in custody has been regarded as satisfying the sentence imposed in the Magistrates Court on 11 October 2007.
Accordingly, I would take as a starting point for a single sentence under s 18A of the Sentencing Act a sentence of imprisonment of 27 months. I would reduce that sentence to 20 months on account of the plea of guilty and by a further five months on account of the balance of the time spent in custody. This results in a sentence of imprisonment of 15 months.
In relation to that sentence I would impose a non‑parole period of eight months. This is higher than the non‑parole period imposed by the Judge, but having regard to the seriousness of the respondent’s offending, I consider it to be appropriate. It will also allow for an appropriate period of supervision in the event that the respondent does come to be released on parole.
As the sentence for the offences of 11 October 2007 has been discharged, it is open to the Court to suspend the sentence for the 11 December 2007 offences.
The factors which suggested to the Judge that there was good reason for suspension to continue to apply.
I am satisfied that it is appropriate to suspend the sentence upon the respondent entering into a bond in the sum of $500 to be of good behaviour for a period of one year. I have fixed one year so as to take account of the fact that the respondent has already been subject to a bond, including supervision, for more than one year. I would not impose any additional conditions. In that respect I have taken into account that the supervision and direction condition imposed by the Judge was for a period of 12 months only.
Conclusion
For the reasons stated above, I would grant permission to the Director to appeal, and would allow the appeal. I would set aside the sentence of the Judge, including his order in respect of the breached bond.
In relation to the application for the enforcement of the bond in respect of the sentence imposed on 11 October 2007, I would revoke the suspension and, subject to the next order, direct that that sentence be carried into effect. Acting under s 58(4)(b) of the Sentencing Act, I would direct that three months of the time spent in custody by the respondent before sentencing be regarded as satisfying the order for imprisonment imposed in the Magistrates Court.
In relation to the offences committed on 11 December 2007, I would impose a single sentence under s 18A of the Sentencing Act of imprisonment for 15 months and would fix a non‑parole period of eight months with that sentence to commence as of today. I would order that this sentence be suspended upon the respondent entering into a bond in the sum of $500 to be of good behaviour for a period of one year.
KELLY J: I agree with the orders proposed by White J and with his reasons.
PEEK J: I agree with the orders proposed by White J and with his reasons.