RICHARDS v Police

[2007] SASC 368

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

RICHARDS v POLICE

[2007] SASC 368

Judgment of The Honourable Justice Bleby (ex tempore)

16 October 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Appeal against sentence – appellant pleaded guilty to a large number of offences – one sentence of 30 months imprisonment with a non-parole period of 18 months imposed in respect of all offences – sentencing Magistrate fixed notional penalties in respect of individual offences or small groups of offences in the process of determining the global penalty – whether court records fail accurately to record the sentence imposed by the Magistrate – whether notional penalties fixed for offences of failing to comply with a bail agreement were manifestly excessive – Held: Court records not an accurate reflection of the sentence intended to be imposed – appeal allowed in this respect – notional penalties for offences of failing to comply with a bail agreement not manifestly excessive – appeal dismissed in this respect.

Criminal Law (Sentencing) Act 1988 (SA) s 18A; Bail Act 1985 (SA), referred to.
Nicholls v Police [2003] SASC 303; Nicholls v Police [2007] SASC 142, considered.

RICHARDS v POLICE
[2007] SASC 368

Magistrates Appeal:         Criminal

BLEBY J.

1. This is an appeal against sentence. The appellant was sentenced in the Elizabeth Magistrates Court on 6 July 2007 in relation to a large number of offences. It is necessary to recite what they were and the Magistrates Court files relating to the particular charges.

2. In court file MCPAR 07-740 there was one conviction of damage to property, an offence which occurred on 27 May 2004.

3. In court file MCPAR 07-739 there was one conviction of non-aggravated serious criminal trespass (non-residential) with an associated conviction for dishonestly taking property without the owner’s consent. Those offences occurred between 28 August and 30 August 2004.

4. In file MCPAR 07-741 there was one conviction for non-aggravated serious criminal trespass in a place of residence and an associated conviction of dishonestly taking property without the owner’s consent, an offence which occurred on 3 May 2005.

5. In file MCPAR 07-736 there was a conviction of one count of common assault on a family member and a second conviction for failing to comply with a domestic violence restraining order. Those offences occurred on 10 August 2005.

6. In file MCPAR 07-734 there was a conviction on one count of non-aggravated serious criminal trespass (non-residential) and an associated conviction of dishonestly taking property without the owner’s consent. Those offences occurred on 7 September 2005.

7. In file MCPAR 07-735 there was a conviction on one count of possessing housebreaking implements and another count of stating a false name and address. Those two charges, that is possessing housebreaking implements and stating a false name and address occurred between September and October 2005. There were three convictions in that file of failing to comply with a bail agreement.  One breach occurred on 7 October 2005. The other two breaches occurred on 14 October 2005.

8. In file MCPAR 07-737 there were convictions on two counts of failing to comply with a bail agreement, those offences having occurred on 23 November 2005. 

9. In file MCPAR 07-738 there was one further conviction of failing to comply with a bail agreement which occurred on 23 August 2006.

10. The appellant had pleaded guilty to all offences prior to 6 July. He was sentenced in respect of all convictions to 30 months imprisonment with a non-parole period of 18 months. The magistrate adopted a careful process in fixing a final sentence in a rather complex sentencing situation. He first fixed a notional penalty for each conviction or, where appropriate to do so using the provisions of s 18A of the Criminal Law (Sentencing) Act1988 (SA), a notional penalty for those grouped offences. Section 18A of the Sentencing Act was used in cases such as the serious criminal trespass offences with associated charges of theft.

11. In each case the notional penalty was then discounted by between 25 per cent and one third for the appellant’s plea of guilty. The penalties so arrived at were then aggregated. They came to a total of 36 months and 77 days. His Honour then reduced that total by 3 months and 12 days being the time spent in custody in respect of all those offences and being time spent non-contiguously with the period during which the appellant was then in custody. That gave a notional head sentence of 33 months and 65 days to be served. That figure was then further reduced to 30 months imprisonment to take account of the totality principle. A non-parole period of 18 months was fixed with the head sentence and non-parole period to commence from 21 January 2007, being the date when the appellant was last taken into custody.

12. If I have any criticism of that process, it was of applying the totality principle after deducting the non-contiguous period in custody. It is not clear from the Magistrate’s reasons whether he had in mind the period of 36 months and 77 days or the reduced figure of 33 months and 65 days when making his allowance for totality. It should have been the former. By applying the principles in the order in which the Magistrate did, there is a greater possibility of error. However, no such error is complained of on this occasion.

13. As amended, the notice of appeal raises two grounds of appeal only. The first is that the sentences purportedly imposed for each offence or group of offences is excessive and does not reflect the process of sentencing adopted by the Magistrate. It was common ground that the formal orders recorded on the various Magistrates Court files do not reflect the intended order of the Magistrate. There were eight different files before the Magistrate. One sentence was imposed for all convictions recorded in each of those files. However, the individual files record not the final penalty but the magistrate’s notional penalty with, in one or two cases, a cross-reference to another file in which is recorded the final penalty. The individual records are therefore misleading. They record the Magistrate’s reasoning and not the final outcome.

14. The endorsement on each file should have recorded the charges proceeded with and the convictions, the court fees imposed, victims of crime levy imposed, and prosecution costs imposed, and should have referred to the one file in which the total penalty was recorded. In that latter file should have been recorded the final penalty alone and the fact that it was imposed for the convictions in that file and in all other relevant files.

15. While each of the defective records is signed by the Magistrate, they do not record what the Magistrate did. The appeal must therefore be allowed on this ground. In all matters except in file MCPAR 07-738 the formal order recorded is set aside. In each case there is substituted an order recording the counts on which the convictions were recorded and the imposition of court fees, victims of crime levy and prosecution costs as ordered by the Magistrate. Where relevant, it is to be recorded that the Magistrate declined to order compensation as, for example, in file MCPAR 07-740, and the fact that the penalty is recorded in file MCPAR 07-738. In that latter file the formal order is set aside and is substituted with the same information as set forth above in relation to the conviction on that file, together with the final sentence imposed by the Magistrate for all matters and the fact that it is imposed in respect of all convictions recorded in that and the other files. There should also be placed on that file a copy of the Magistrate’s sentencing remarks common to all matters.

16. I turn to the second ground of appeal. As amended, that ground complains that the sentence, insofar as it incorporates components for counts 3 and 4 on file MCPAR 07-735 and for the offences on files MCPAR 07-737 and 07-738 is manifestly excessive. Particulars alleged are that the learned Magistrate erred in making the sentences for these breaches of bail cumulative and that the magistrate erred in imposing the sentences that he did for those offences of breaching bail. As it happens, there was, of course, no separate penalty imposed for those offences of breaching bail. However, the criticism is directed to the notional sentences imposed in the course of the Magistrate’s reasoning and to the ultimate components of the final penalty represented by the penalties for those offences. It is therefore necessary to say a little more about each of those offences and how the Magistrate treated them.

17. In file MCPAR 07-735 there is recorded a conviction for failing to comply with a bail agreement, an offence which occurred on 7 October 2005. That breach involved the appellant not reporting, as he was obliged to, to the Holden Hill Police Station. For that offence the Magistrate convicted the appellant but convicted him without penalty.

18. In file MCPAR 07-735 there were two convictions recorded for breaches of bail which occurred on 14 October 2005. The accused was on home detention bail. One of the conditions was that he reside at his home address at Campbelltown. Another condition was that he wear an electronic transmitter and comply with the rules of electronic monitoring. He was apprehended on 14 October 2005 at Berri when he gave a false name and address. He had removed the electronic monitoring device and had left it at the Campbelltown address. He had pleaded guilty to those offences. The combined notional penalty that the magistrate fixed was two months imprisonment reduced to 42 days for the plea of guilty.

19. In file MCPAR 07-737 there were convictions for two further breaches of a bail agreement which occurred on 23 November 2005. The appellant was then subject to the same conditions of bail as I have already described. He again removed his electronic monitoring device on 23 November and left the Campbelltown address. As at 20 December 2005, almost one month later, he had not returned. In fact, he remained at large until arrested on 24 January 2007. The Magistrate’s starting point for the penalty for those two offences was imprisonment for three months reduced to two months for the plea of guilty.

20. In file MCPAR 07-738 there was a conviction for one breach of a bail agreement which occurred on 23 August 2006. On this occasion the appellant was on bail as part of his participation in the Drug Court program, the condition being that he be on home detention at his home address with electronic monitoring. On 23 August 2006 he again removed the monitoring device and left the address without permission of the Drug Court case manager. The Magistrate’s starting point for that conviction was a sentence of three months imprisonment reduced to two months for the plea of guilty.

21. In the process in which the Magistrate was engaged, there was no reason to fix one penalty for all those offences under s18A of the Criminal Law (Sentencing) Act, except for combining, as the Magistrate did, the penalty where there were two charges based on the same circumstances, such as removing the monitoring device and leaving the residence, being two separate breaches for which one notional penalty was fixed. Otherwise, the offences were all discrete offences to be separately punished.

22. If one wants to calculate the actual proportion of the final head sentence attributable to each offence or group of offences for the breaches of the bail agreement, the notional penalty fixed before any reduction for totality would have to be reduced to about 78 per cent of that notional penalty. That was the effect of the Magistrate’s reduction for totality. So 42 days imprisonment would have resulted in approximately 33 days and two months imprisonment would have resulted in just over one and a half months imprisonment. However, that is a somewhat artificial and unhelpful exercise. The question is whether the starting points taken by the Magistrate were appropriate.

23. The maximum penalty for the breach of bail in each case in this instance was a fine of $10,000 or two years imprisonment. Breaches of bail may range from very minor breaches, for example, an isolated failure to report to a police station or overstaying a curfew by a few minutes, to deliberate absconding in breach of the conditions of the agreement. Each of the conditions breached for which a penalty was imposed in this case was a serious breach. While the Bail Act 1985 (SA) provides for a presumption in favour of bail, bail on home detention conditions with electronic monitoring is a privilege. The alternative is detention in custody. It has only become available through the use of modern technology in cases which would otherwise warrant detention in custody. As the Magistrate observed, home detention bail is bail of last resort.

24. To remove the monitoring device and to leave the residence named in the bail agreement without permission of the person’s supervisor amounts to a serious breach of the Bail Act. But it is also a serious breach of trust. It is even more so where the person on bail has been trusted to participate in the Drug Court program and breaches that trust. Both personal and general deterrence were relevant considerations. Compliance with bail conditions is of fundamental importance if the system of bail is to continue. The breaches in this case were quite deliberate and with full knowledge on the part of the appellant as to what he was doing. There were at least five previous occasions when the appellant’s bail had been estreated and he was fully aware of his obligations. The circumstances were aggravated by committing further offences at the time while in breach of his bail conditions on one occasion, and by deliberately not returning to his home for a substantial period on another occasion. These were all therefore serious and wanton breaches of bail conditions. The starting point before the reduction on account of totally in each case was, in my opinion, lenient.

25. All the offences of which the appellant was convicted were driven by a longstanding drug addiction of the appellant since a relatively young age. The Magistrate took that into account. He observed that the appellant had been given choices in the past to deal with his addiction but had not taken them up. His latest opportunity came with his acceptance into the Drug Court program. He failed by his own conduct to take advantage of that. The appellant’s plea before the Magistrate to be given another chance rang rather hollow. The Magistrate was justifiably not convinced about the genuineness of that plea. The Magistrate properly directed himself as to the effect of the appellant’s addiction on the sentencing process.

26. Counsel for the appellant sought to rely on other decisions of this Court,[1] by way of comparison. I find such cases unhelpful. The circumstances of breaches of bail will vary considerably, and simply dividing a total penalty by the number of offences in order to arrive at a comparison is of no assistance whatever.

    [1]    Nicholls v Police [2003] SASC 303 and Nicholls v Police [2007] SASC 142.

27. In my opinion the Magistrate’s starting point cannot be criticised and his inclusion in the total calculation of the penalty which was ultimately awarded cannot properly be complained of. This ground of appeal will be dismissed.

28. The order of the court will be therefore in accordance with the orders that I previously indicated in relation to the orders as recorded on the various files of the Magistrates Court.