Ravlic v Department of Correctional Services - [2016] SASC 180

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
RAVLIC v DEPARTMENT OF CORRECTIONAL SERVICES
[2016] SASC 180
Judgment of The Honourable Justice Doyle (ex tempore)
8 November 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY SERVICE ORDERS
The appellant was ordered to perform 320 hours of community service within 18 months. This community service order expired in breach. A second order that the appellant perform 305 hours of community service was imposed. This order also expired in breach. On the application to enforce this second order, the Magistrate found that the appellant failed to comply with this order. The Magistrate issued a warrant of commitment for 38 days imprisonment. The appellant appealed on grounds which included that the Magistrate erred in imposing a sentence of imprisonment.
Held per Doyle J, dismissing the appeal:
1. No error in the Magistrate’s decision has been established.
Criminal Law (Sentencing) Act 1988 (SA) s 70I, s 71, referred to.
House v The King (1936) 55 CLR 499, considered.

RAVLIC v DEPARTMENT OF CORRECTIONAL SERVICES
[2016] SASC 180
Magistrates Appeal
DOYLE J (ex tempore):

The appellant appeals against an order of the Magistrates Court on 29 July 2016 sentencing him to 38 days imprisonment for breach of a community service order.
By way of background, as ascertained from two affidavits filed by Ms Allen on 5 October 2016 and 8 November 2016, together with the lower court file and sentencing remarks of the Magistrate, I note the following facts and circumstances.
·    During the period 11 December 2003 to 2 June 2011, the appellant committed a number of offences for which he incurred pecuniary penalties totalling $8,664.75.
· On 8 May 2013 the Registrar of the Port Adelaide Magistrates Court, having carried out an investigation into the appellant's financial means and being satisfied that the appellant did not have, and was not likely within a reasonable time to have, the means to satisfy the pecuniary penalty without the appellant or his dependants suffering hardship, remitted the matter to the court for consideration pursuant to s 70I of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act).
· On 25 June 2013, a community service order was imposed by Magistrate Whittle, pursuant to s 70I(3)(iv) of the Sentencing Act. The appellant was ordered to perform 320 hours of community service within 18 months.
·    A first application for enforcement of the breached order was heard by Magistrate Whittle on 6 December 2013, on which occasion his Honour excused the breach.
·    The community service order expired in breach on 24 December 2014, with the appellant having completed only 15 of the 320 hours of community service.
·    A second application was made by the respondent to enforce the breached order. As a result of that application, a second community service order was made on 6 August 2015 by Magistrate Grasso. The appellant was ordered to perform 305 hours of community service within six months.
·    The second order expired in breach on 5 February 2016, with the appellant having completed none of the 305 hours. During the period of the second order a number of letters were sent to the appellant warning him that he may be suspended from the community service programme and that he may face a substantial period of imprisonment if the order was to be returned to the court for non-compliance.
·    An application was made by the respondent to enforce the breached second order. The appellant first appeared in relation to that application on 11 May 2016. He was warned by the Court that he was facing 38 days imprisonment and the matter was adjourned for the appellant to obtain legal advice.
·    The appellant next appeared in Court on 10 June 2016. At the appellant's request the matter was adjourned again to enable the appellant to obtain legal advice. The Court advised the appellant that there would be no further adjournments for legal advice.
· The matter was next listed on 29 July 2016. The Magistrate found, pursuant to s 71(5) of the Sentencing Act, that the appellant failed to comply with the second order and issued a warrant of commitment for 38 days imprisonment commencing 29 July 2016. The Magistrate found that the appellant had not indicated any reason that would excuse him from not completing his community service.
·    The appellant, upon informing the Court of his intention to appeal the decision, was granted bail pending the outcome of the current appeal to this Court.
The appellant is unrepresented. On the first hearing of the appeal before me the appellant sought a further adjournment to seek legal advice. He also raised some factual assertions that the respondent was not in a position to address. With some reluctance, given the previous history of adjournments for similar reasons, I granted the appellant an adjournment. I directed that the parties file any material in relation to the matters raised by the appellant.
Upon the resumption of the appeal hearing, the appellant said that he had sent a one-page submission to my chambers, care of the Sir Samuel Way Building. But that document has unfortunately not surfaced. Nevertheless, the appellant was in a position to outline the matters that he wished to raise in support of his appeal orally, and proceeded to do so.
The appellant's sole ground of appeal in the notice of appeal filed by him was a complaint as to the “severity of sentence”. However, on the first hearing of the appeal I granted him permission to amend to add a second ground, namely that the Magistrate erred in imposing a sentence of imprisonment.
In considering this appeal, it is governed by the principles in House v The King.[1] While it is unclear whether the appellant admitted the breach in this matter before the Magistrate, it appeared in the course of this appeal that was the case. But in any event, the Magistrate's conclusion that the appellant failed to comply with the second order is supported by the evidence that was before the Magistrate, and was confirmed (or at least explained in a more detailed fashion) in Ms Allen’s second affidavit, provided to this Court in response to some of the factual assertions raised by the appellant.
[1] House v The King (1936) 55 CLR 499.
While the appellant at times in the hearing before me, both on the first occasion and today, has asserted various excuses or reasons for his non-compliance, I am satisfied that the evidence supports the conclusion reached by the Magistrate that the community service order was breached.
The enforcement of orders requiring the performance of community service orders by terms of imprisonment is governed by s 71 of the Sentencing Act. The court's discretion under s 71(7) to decline to enforce is enlivened by satisfaction that the failure to comply was trivial, or that there are proper grounds on which the failure should be excused. They are the only grounds on which leniency can be afforded.
In my view, there is no basis upon which the breach in this case can be regarded as trivial. Further, I consider that the appellant has not indicated any reason, either to the Magistrate or to this Court, that in my view would excuse his non-compliance with the second order. In particular, as the respondent submitted to me, the following matters are of significance:
·    The appellant only completed 15 out of a total of 320 hours of community service during the term of the first order.
·    The appellant has received the benefit of lenience from the court in that the first order was twice excused.
·    The appellant was put on notice of the possibility of imprisonment if he did not comply with the second order.
·    The nature of the appellant's breach in respect of the second order was total non-compliance over an extended period, in circumstances where he was aware of his obligations and the risks he faced if he did not comply with them.
In my view, rather than being a breach which is trivial or is properly to be excused, the appellant's disregard for the community service order amounts to a deliberate flouting of the authority of the Court. In light of the appellant's continued and repeated failure to comply with the orders for community service, and the absence of proper grounds to excuse the breach, I consider that no error has been established in the Magistrate's decision. To the contrary, it was in my view the correct decision.
I add for completeness that while the Magistrate had a discretion under s 71(8) of the Sentencing Act to revoke the community service order and impose a fine, his Honour, despite submission apparently in support of this by the appellant, declined to do so. No error has been identified in his Honour's decision not to exercise his discretion in that respect.
For these reasons, I order that the appeal be dismissed.