RADIS v Police

[2017] SASC 166

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

RADIS v POLICE

[2017] SASC 166

Judgment of The Honourable Justice Nicholson (ex tempore)

9 November 2017

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS

Appeal against revocation of home detention order and further order requiring the remaining sentence of imprisonment be served in custody.

The appellant was sentenced for multiple offences in the Magistrates Court and a term of imprisonment was ordered which was to be served by way of home detention. 

Following the return of a urinalysis that was positive for methamphetamine and amphetamines, the respondent pressed an application in the Magistrates Court seeking orders for the revocation of the home detention order and that the sentence be served in custody.  The appellant (who was self-represented) admitted the breach and the Magistrate made the orders as sought.

The respondent conceded that the appeal should be allowed on the basis that the appellant was not afforded an opportunity to obtain legal advice or to prepare submissions by way of mitigation.

Held:

1.  Appeal allowed.

2.  The Magistrate's orders are set aside.

3.  The matter is remitted to the Magistrates Court for rehearing and re-determination according to law by a different magistrate.

Criminal Law (Sentencing) Act 1988 (SA) s 33BD, referred to.
Scott v Police [2015] SASC 103, considered.

RADIS v POLICE
[2017] SASC 166

Magistrates Appeal:  Criminal

NICHOLSON J.        

1. On 6 February 2017, the appellant was sentenced in the Magistrates Court for multiple offences to a term of imprisonment for 17 months and nine days with a non-parole period of nine months.  However, it was ordered that the sentence was to be served by way of home detention to commence 6 February 2017.

2. On 7 April 2017, the appellant returned a urinalysis that was positive for methamphetamine and with respect to which she received a warning and was referred to counselling.  On 31 May 2017, the appellant again returned a urinalysis that was positive for methamphetamine and amphetamines.

3. On 7 June 2017, an application was filed by the police in the Port Adelaide Magistrates Court asserting a breach of the home detention conditions and seeking an order that the court revoke the home detention order and that the sentence of imprisonment be served in custody in accordance with section 33BD(1) of the Criminal Law (Sentencing) Act 1988.

4. At 2.30 p.m. that same day the application filed by the police was listed before a Magistrate at which hearing the appellant represented herself.  The Magistrate found the breach proved and, according to the endorsement on the Magistrates Court file, made the following orders:

   HH REVOKES THE HOME DETENTION ORDER IMPOSED ON 6/2/17

   SUSPENSION REVOKED – to be carried into effect 6/6/17

   IMPRISONMENT – For 13 MONTHS 9 DAYS Commencing 6/6/17

   HH takes into account four months (4) already served

   HEAD SENTENCE – 13 MONTHS 9 DAYS Commencing 6/6/17

   Non-Parole Period – 9 MONTHS Commencing 6/6/17

5. According to the “Reasons for Decision” of the magistrate dated 7 June 2017, which formed part of the Magistrates Court file, the following exchange occurred representing the sum total of the Magistrate’s reasons:

   Madam, you are found to be in breach of your home detention conditions.  Have you received legal advice about this matter?

   Defendant:     Yes I have.

   His Honour:    What is that advice?

   Defendant:     I’m guilty.

   The defendant admits the breach and home detention will be revoked.

   Defendant:     May I say something?

   His Honour:    Yes.

   Defendant:I have stayed clean the whole time I’ve been on home detention.  All my urines they have been clean except for this one here and I just relapsed and I will say I will go and have urine tests every week to say that I’m not on.

   His Honour:    Madam, home detention is an option given to some defendants in lieu of incarceration.  It is subject to conditions that must be strictly complied with.  You have breached your home detention conditions and in my view you do not deserve a further opportunity on home detention.

   Your home detention will be revoked and you will serve the remainder of your sentence in prison.

6. The appellant was detained in custody on that day. On 11 October 2017 the appellant was released on home detention bail pending the outcome of this appeal against the Magistrate’s decision to revoke the suspension of home detention conditions of her prison sentence.

7. Since 6 February 2017, the appellant has served her prison term by way of approximately four months on home detention conditions and approximately four months and one week in custody prior to being released on home detention bail.

8. Under section 33BD(1) of the Sentencing Act but subject to the other provisions of section 33BD, where a court that imposes a home detention order on a person is satisfied that the person has breached a condition of the order the court must revoke the home detention order and order that the sentence of imprisonment that the person was serving on home detention be carried into effect.

9. However, that injunction is subject to the provisions of subsection 33BD(2) and (4).  Subsection (2) is to the effect that, if an offender can show that the breach was trivial or that there are proper grounds upon which the failure should be excused, then the court may refrain from revoking the order.  In the alternative, in the event that the order were to be revoked, an offender would be entitled to make submissions pursuant to subsection (4) that there are special circumstances justifying a reduction in the term of the original sentence.

10. When the appellant came before the magistrate, unrepresented as she was, it was clear that, having admitted the breach, there was potential for her to be ordered to serve a lengthy term of imprisonment. However, such was not inevitable.  Depending upon the circumstances, it may have been open to the appellant to demonstrate to the court’s satisfaction that the failure to comply with the conditions of home detention was trivial or that there were proper grounds upon which the failure might be excused.  Alternatively, in the absence of demonstrating this, the appellant may have been able to persuade the magistrate to reduce the term of the sentence of imprisonment in accordance with the discretion available under subsection 33BD(4).

11. The appellant was not advised of her rights in these respects, nor was she offered an adjournment in order to obtain further legal advice or to have time during which she might be able to garner appropriate evidence and prepare appropriately persuasive submissions on these matters.

12. I have recently reviewed the authorities and summarised the appropriate approach to be taken by a magistrate when called upon to deal with a litigant in person in such circumstances in Scott v Police [2015] SASC 103, particularly at [19] to [26]. I do not repeat what I set out there.

13. In the circumstances of this matter, the appellant should have been advised in strong terms as to the peril in which she found herself and specifically that she was facing a substantial term of imprisonment.  She should have been offered an adjournment in order for her to obtain legal advice and to prepare submissions by way of mitigation.  This opportunity was not provided and, in my view, a miscarriage of justice has resulted.

14. I add that counsel for the police appearing before me this morning has quite properly conceded that the appeal should be allowed on this basis and that the police application consequent on the appellant’s admitted breach of the home detention service conditions should be looked at afresh.

15. I make the following orders:

    1.Appeal allowed.

    2.The Magistrate’s orders are set aside.

    3.The matter is remitted to the Magistrates Court for rehearing and re-determination according to law by a different magistrate.