Ryan v Police - [2024] SASC 44

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
RYAN v POLICE
[2024] SASC 44
Judgment of the Honourable Chief Justice Kourakis (ex tempore)
4 March 2024
CRIMINAL LAW — APPEAL AND NEW TRIAL — APPEAL AGAINST SENTENCE — GROUNDS FOR INTERFERENCE — SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
This was an appeal against sentence on the ground of manifest excess.
The appellant, Mr Ryan, had been granted home detention bail in respect of a number of major indictable offences pending before the District Court. During the currency of his bail, the appellant breached a condition thereof that he not consume illicit substances on two occasions. Having pleaded guilty to those breaches of bail, the sentencing Magistrate imposed a notional term of imprisonment of 10 weeks, reduced to 6 weeks after making allowance for the utilitarian nature of the appellant’s plea. As at the time of sentence, the appellant was in full-time employment, through which he provided for his family.
On appeal, the appellant’s sole contention was that the sentence imposed by the Magistrate was manifestly excessive. Against this, the respondent contended that, the breaches of condition having occurred while the appellant was on home detention bail, the sentence imposed adequately reflected the objective seriousness of the offending.
Held, allowing the appeal and resentencing the appellant in accordance with s 23(2)(d) of the Sentencing Act 2017 (SA):
1. While much will depend on the circumstances thereof, a breach of a condition in a home detention bail agreement, other than a home detention condition, is not, as a general rule, likely to be more serious than a breach of an equivalent condition in a bail agreement without home detention merely because it is attached to a home detention bail agreement.
2. The sentence imposed by the Magistrate was manifestly excessive. In particular, in circumstances where the appellant had secured full-time employment, and was liable to lose the various benefits thereof upon imprisonment, the sentence of six weeks imprisonment was manifestly excessive.
Director of Public Prosecutions v SS [2023] VSC 631; Richards v Police [2007] SASC 368, applied.

RYAN v POLICE
[2024] SASC 44
Single Judge Appeal - Criminal

KOURAKIS CJ (ex tempore): This is an appeal against a sentence of six weeks imprisonment imposed in the Magistrates Court for two breaches of bail by contravening a condition that the appellant not take illicit drugs. The appellant was released on bail on 17 April 2023, having been taken into custody on charges including trafficking a large commercial quantity of a controlled drug, serious criminal trespass of an occupied residence, aggravated threaten to cause harm to another, aggravated assault without a weapon, and, finally, seven counts of obtaining a financial advantage by deception.
His conditions of bail included home detention and, in particular, that he wear an electronic monitoring device. The appellant attended the Community Corrections Office to provide samples for drug analysis. On 28 July 2023, and some six weeks later on 4 September 2023, the tests were positive for methamphetamine and amphetamine.
Whilst on home detention bail, the appellant resided with his de facto partner and three children. He supported his family through work as a trade assistant with a labour hire firm. Initially, he worked there six days a week on a casual basis, but had been given full-time, permanent, employment by the time he pleaded guilty to the breaches of bail.
The appellant pleaded guilty on his first appearance, prompting the Magistrate to reduce the notional starting sentence of 10 weeks by 40 per cent. The Magistrate notionally attributed five weeks of that total to each of the breaches. I observe that, in the context of drug addiction to, or even excessive use of, methamphetamine, the period of six weeks between the offences is not long. Both offences arose out of the same addiction. There were, therefore, strong reasons for a high degree of concurrency between the sentences. The failure to so provide might account for what is, at least on the face of it, a high sentence.
The Magistrate was also told, and it was accepted, that the appellant’s only pass-outs from home detention were to go to work. Other requests had been refused. There was no allegation of breach of the home detention curfew, nor any allegation of interference with the electronic monitoring bracelet. The appellant had been strictly confined to his home.
The Magistrate was told that the appellant was contrite, and, indeed, ashamed that he had reverted to drug use and that he hoped to be accepted into a treatment intervention program.
The Magistrate was informed that the Director of Public Prosecutions, who, of course, had the carriage of the major indictable matters, would be informed of the breaches. The Magistrate sentenced the appellant on the basis that it seemed likely that his bail on the major indictable charges would be revoked.
It was contended before me that the breach of the illicit drug condition was more serious because the appellant was on home detention bail. There was a suggestion, at least implicitly, to that effect, in the submissions of the solicitor who appeared for the Commissioner of Police before the Magistrate. The Magistrate proceeded on the basis that the breach showed that the appellant was a risk to the community and, in her Honour’s reasons, said that the sentence she was about to impose was about protecting the community.
Again, although it is not explicit, I suspect that what appears on the face of it to be a high sentence was premised on the breach being relatively more serious because the appellant was on home detention bail.
Be that as it may, the complaint is simply that the sentence was manifestly excessive. There is no complaint of process error.
Consideration
The breach of a home detention condition by interfering with a bracelet or leaving the place of detention is a particularly serious offence of breach of bail[1]. The reasons for that are obvious. The home detention condition is imposed as an alternative to detention in custody. It is imposed when there is perceived to be a real and great risk of offending if the offender is not closely confined. Defendants are released on home detention bail when it is thought that that risk can be sufficiently addressed by home detention instead of a remand in custody.
[1] See eg. Richards v Police [2007] SASC 368, [23]-[24] (Bleby J); Director of Public Prosecutions v SS [2023] VSC 631, [54]-[58] (Croucher J).
It does not follow, however, that a breach of one of the other conditions on which a defendant is released on home detention bail is more serious than breaches of the equivalent conditions in bail agreements without home detention. Much will depend on the circumstances, but breaches of conditions other than the home detention conditions, as a general rule, are not likely to be more serious merely because they are attached to a home detention bail agreement.
For example, the condition against taking proscribed drugs or alcohol recognises that intoxication by a drug or alcohol produces disinhibition which increases the risk of offending. That particular risk is not very different for defendants released on home detention even though the static risk factors for such offenders are likely to be relatively greater. In one respect, if the defendant taking the drug stays confined to home in accordance with the home detention conditions, the risk to the community may be less. In this case, as I observed earlier, there is no allegation that the appellant breached the conditions confining him to his home or any of the other home detention conditions.
There is another important matter which leads me to the conclusion that the sentence was manifestly excessive. The appellant had obtained full-time employment by the time he was sentenced. If one were to assume, as the Magistrate appears to have assumed, that bail on the District Court matters was about to be revoked, it would follow that the appellant was likely to lose his employment in any event. On that premise, the loss of the appellant’s employment by reason of the imprisonment imposed on the breach of bail offences, might not have appeared to be of much significance.
However, it was dangerous to proceed on that premise, as subsequent events have shown. The Director determined not to apply to revoke bail, perhaps influenced by the length of time persons remain on bail or in custody awaiting trial in the District Court. Nonetheless, ultimately, the appellant’s bail on the major indictable offence was not revoked.
It follows that if the sentence were confirmed, the appellant would be returned to custody after many months on bail with a high degree of probability that he would lose the employment through which he supports his young family. Importantly, he would also lose the opportunity which employment offers him to progress his rehabilitation. Should he be acquitted, he would be able to return to the community in that improved position. Alternatively, if he were to be convicted, his rehabilitation through his employment, and in other ways, will be an important consideration when he comes to be sentenced.
The appellant had spent 15 days on remand in custody when he came to be sentenced. It is not necessary for me to consider precisely what sentence was appropriate for the breaches for which he was convicted. Suffice it to say that, in my view, no more than 15 days should properly have been imposed. It follows that the sentence of six weeks was manifestly excessive.
I allow the appeal. I set aside the sentence. I order instead that the appellant be convicted with no further penalty, because of the time he has spent in custody.