SA Police v John Randall Bowden No. SCGRG 94/349 Judgment No. 4536 Number of Pages 8 Criminal Law and Procedure

[1994] SASC 4536

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - appeal and new trial - pardon and enquiry subsequent to conviction - appeal against sentence - crown appeal.

Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - suspended sentences - revocation of - Prosecution appeal against refusal of magistrate to revoke suspension of a custodial sentence - observations as to the role of prosecution appeals - examination of the proper grounds for declining to revoke the suspension of a sentence - breach of bond occurring close to the time for the bond's expiry - respondent had completed community service imposed as condition of bond - suspended sentence of imprisonment only 28 days - revocation of suspension, having regard to s 38(2) Criminal Law (Sentencing) Act, would be inconsistent with sentencing strategy adopted by magistrate apropos the offences causing the breach of the bond, namely the imposition of a suspended sentence of 12 months imprisonment. Criminal Law (Sentencing) Actss 58(3), 38(2). Henderson v Burr (Olsson J, 30 October 1991, unreported, available on SCALE); The Queen v Osenkowski (1982) 30 SASR 212; The Queen v Drewett (1983) 35 SASR 344; The Queen v Wilton (1981) 28 SASR 362; R v Buckman (1988) 47 SASR 303; Lawrie v The Queen (1992) 59 SASR
400; R v Marston (1993) 60 SASR 320 and Holdsworth v Larcombe (1987) 44 SASR
294, applied. Nieto v Mill (1991) 55 SASR 379, considered.

HRNG ADELAIDE, 22 April 1994 #DATE 10:5:1994

Counsel for appellant:     Ms M Clements

Solicitors for appellant:    Crown Solicitor

Counsel for respondent:     Mr J D Vigar

Solicitors for respondent: Wallace Degaris and Co

ORDER
Appeal dismissed.

JUDGE1 OLSSON J This is a prosecution appeal against the refusal of a stipendiary magistrate to revoke the suspension of a custodial sentence, by reason of the breach by the respondent of a bond to be of good behaviour.

2. The respondent appeared before the Magistrates Court at Naracoorte on 2 February 1994. He then pleaded guilty to the following offences:-
    - refusal to submit to a breath analysis . failing to
    keep his vehicle to the left of a double barrier line .
    driving a vehicle without an illuminated rear number
    plate
    - behaving in a disorderly manner in a public
    place
    - resisting members of the police force in the
    execution of their duty. That situation followed a series of earlier attendances by the respondent before the same court. Details of his antecedent record were:-
    - 15/11/88 - hinder police. Fined $100
    - 7/2/89 - disorderly behaviour. No conviction
    recorded. Fined $100
    - 12/11/92 - assault occasioning actual bodily harm.
    Fined $1,500
    - 2/2/93 - permit drive whilst disqualified.
    Imprisonment for 28 days, suspended upon entering into a
    bond to be of good behaviour for a period of nine months
    and to undertake 60 hours of community service.
    - drive without due care and disobey stop sign. Fined
    $150 and $100 respectively. Disqualified for 4 months.
    - 10/5/93 - urinating in a public place. Fined $120.

3. It is at once to be seen that the bond to be of good behaviour remained in force until 2 November 1993. The offences the subject of the convictions recorded on 2 February 1994 were all committed on 9 October 1993, that is to say, some three weeks prior to the expiration of the term of the good behaviour bond and at a point when the 60 hours of community service had been performed.

4. It is important to note that the offence giving rise to the suspended sentence was not that of driving whilst disqualified, but of permitting another person to drive whilst disqualified. It was essentially an accessorial offence, which arose in unusual circumstances.

5. The respondent has had a problem with alcohol over some years. On the occasion in question he became so intoxicated, whilst at an hotel, that he was physically incapable and semi-comatose. He was assisted to the passenger's seat of his car by a barman and, in effect, surrendered the keys to his vehicle to another person to drive him home. The respondent, it is said, was barely responsible for his actions at the time. Unfortunately the other person was then, currently, subject to a licence disqualification. In the event, and consistently with authorities decided in this court, that scenario resulted in the imposition on the respondent of an immediate custodial sentence - which appears to me to have been of about the same quantum as that applicable to a first, direct offender. It was the then background of that offending - as I have just described it - which gave rise to the suspension.

6. The circumstances giving rise to the offences committed on 9 October 1993 may simply be stated.

7. At about 12.13 am a police patrol observed a Holden motor vehicle, of which the respondent was in fact the driver, travelling west along Smith Street, Naracoorte in an erratic fashion and with the light illuminating the rear number plate inoperative. The vehicle was stopped.

8. On approaching the respondent police detected a smell of liquor on his breath and requested him to submit to an alcotest. He became agitated and aggressive, took off his shirt, threw it onto the road and adopted a boxing stance. He used obscene language to the police and refused to comply with their request.

9. When informed that he was being arrested, he became violent and abusive and struggled with them. Eventually he was subdued sufficiently to get him into the police vehicle, in which he was conveyed to the police station. On arrival he was again violent and had to be subdued. He refused to submit to a breath analysis when requested so to do, becoming violent for a third time. It took three police officers to contain him and place him in the cells. It was impossible to conduct a rational conversation with him at the time.

10. After hearing submissions concerning the various offences the learned magistrate imposed the following penalties as to the principal offences:-
    - Refuse breath analysis - Fined $820 including costs
    and fees. Licence disqualification for 12 months
    - Resist arrest - imprisonment for 4 months, suspended
    on entry into a bond of $10 to be of good behaviour for
    12 months. The prosecutor then applied for the estreatment of the amount of the bond entered into on 2 February 1993 and the revocation of the suspension of the custodial sentence to which it related.

11. In relation to that application the learned magistrate had this to say:-
    "The prosecution points out that police officers in a
    small country town such as this should not have to put
    up with this sort of behaviour. If 'hoons' like the
    defendant get the impression they can get away with it,
    the word rapidly spreads making it more difficult for
    police officers to carry out their duties. In that
    sense it is important for the court to protect police
    officers. As I say, the defendant's behaviour on this
    occasion was quite bizarre and aggressive. He started
    off with the behaviour at the scene, made all sorts of
    outrageous statements, calmed down for a little while,
    put on the same 'turn' again before being restrained and
    put into the vehicle, carried back to the police station
    and carried on with the same sort of aggressive,
    outrageous behaviour when asked to take the breath test
    which he refused, completely losing control. So what do
    I do about it. Mr Vigar says the breaching offence
    which he has pleaded guilty to today is different in
    terms of the type of behaviour than that which was the
    offence for which he was placed on a suspended sentence.
    That is true of course but in all of these cases this
    young man has offended after drinking too much. He
    behaves erratically and loses the plot when he has had
    too much to drink. I am prepared with a considerable
    degree of reluctance to give him one further chance and
    that is because I think I can just excuse this behaviour
    by forfeiting some of the money which was the subject
    of the previous bond. I have not forgotten he almost
    'made' the 9 months, that is a factor in his favour and
    I take into account this behaviour is different and some
    time has gone by since he was guilty of a similar type
    of behaviour. But I want to finish my sentencing
    remarks by again saying. This type of behaviour is not
    on, Mr Bowden. Let those words ring in your ears as you
    sign a fresh bond. The defendant will forfeit the sum
    of $500 which is the amount of the previous bond. I
    excuse the breach of the bond and decline to revoke the
    suspended sentence of 28 days."

12. By notice of appeal the prosecution contends that the decision of the learned magistrate not to revoke the suspension of the relevant custodial sentence was inappropriate, because the failure to comply with the conditions of the bond could not be said to be trivial and that proper grounds upon which to excuse the failure had not been demonstrated, as required by section 58(3) of the Criminal Law (Sentencing) Act.

13. In reviewing this matter it is necessary to direct attention to the special situation of prosecution appeals. In my reasons for decision in Henderson v Burr (Olsson J, 30 October 1991, unreported, available on SCALE) I referred to the approach articulated by King CJ in The Queen v Osenkowski
(1982) 30 SASR 212 and The Queen v Drewett (1983) 35 SASR 344; and pointed out that the concept there discussed is no less applicable to prosecution appeals from decisions of the Magistrates Court.

14. The proper role of such appeals is to establish and maintain standards of punishment for crime, to permit the correction of idiosyncratic views of individual judicial officers and to correct sentences which are so disproportionate to the seriousness of a crime as to shock the public conscience. But mere disparity between what is done by a magistrate and what would be considered by me to be appropriate does not, of itself, justify allowing a prosecution appeal.

15. As I said in Laxton v Justice (1985) 121 SASR 6:-
    "... that what must be avoided in considering
    prosecution appeals against sentence is the undesirable
    placing of an offender in double jeopardy, unless the
    situation manifestly demands intervention for the
    purpose of correcting idiosyncratic views of individual
    judicial officers or correcting a sentence which is so
    disproportionate to the seriousness of the crime as to
be an affront to the public conscience." (See also SA Police v Young (1993) 172 LSJS 23.) True it is that the court was there directing attention to the primary sentence itself, but the essential principle involved is, in my opinion, no less applicable to situations in which an appellate court is being invited to review an exercise of discretion under section 58(3) of the Criminal Law (Sentencing) Act, adversely to the respondent to a prosecution appeal.

16. The correct approach to a consideration of what constitutes proper grounds for declining to revoke the suspension of a sentence has been considered and reiterated by this Court on several occasions.

17. In R v Buckman (1988) 47 SASR 303, King CJ, in speaking of the then similar provisions of section 9 of the Offenders Probation Act commented that (at 304):-
    "The purpose of subs (5) is different. It authorises
    the probative court to avoid altogether the revocation
    of the suspension where there are factors relating to
    the breach itself which justify that course. One such
    factor is the trivial character of the breach. The
    other is the existence of proper grounds upon which the
    breach might be excused. I think that Parliament had in
    mind that a breach, although not trivial, might be of
    such a character that the activation of the sentence
    might be a quite disproportionate consequence of it. I
    think that the notion of excuse is not employed in the
    absolute sense of the breach being excusable in itself
    but rather in a relative sense of being excusable in
    relation to the consequences which would otherwise
    ensue. The notion is that of the failure being excused
    from being the catalyst of the activation of the
    sentence."

18. The learned Chief Justice went on to make the point that two obvious bases for exercising the discretion were when there would otherwise be what he described as a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated; and also where the offence constituting the breach was of such a different character from that for which the sentence was imposed that it would seem inappropriate for the otherwise normal statutory consequences to flow. These examples were not, of course, intended to be exclusive, but have certainly been applied in subsequent cases such as Lawrie v The Queen (1992) 59 SASR 400 and R v Marston (1993) 60 SASR 320.

19. In the former case King CJ commented that (at 402):-
    "It is true, of course, that difference in kind is only
    one of the considerations. In many cases it will not be
    a consideration of great importance, but where the
    difference in kind is combined with a disproportion
    between the seriousness of the breaching offence and the
    length of the sentence the activation of which is in
    question, the difference in kind becomes of greater
    importance."

20. It should be recognised that any resort to section 58(3) of the CriminalLaw (Sentencing) Act must always proceed in the context of what fell from King CJ in R v Marston to this effect (at 322):-
"I repeat what I said in R v Buckman (1987) 47 SASR 303
    at 304: 'There is a clear legislative policy that in
    general a breach of a condition of a recognisance upon
    which a sentence has been suspended, should result in
    the offender serving the sentence which was suspended.
    A sentence of imprisonment is imposed and suspended only
    where imprisonment is fully merited but the court
    considers it appropriate to give the offender a last
    chance to avoid imprisonment by leading a law-abiding
    life. It is intended to be a sanction suspended over
    the head of the offender which is to be activated if
    there is a lapse into non-law-abiding ways. The court
    will not lightly interfere with the ordinary consequence
    of a breach of the recognisance.'

It is of great importance that the courts adhere to that
    principle. Departure from it by the non-revocation of
    suspended sentences tends to undermine the integrity of
    the system of suspended sentences and their
    effectiveness as a means of deterring future offenders."

21. In the instant case we have a young man currently only 24 years of age. He has had a troubled past, but has not previously served a custodial sentence. As the learned magistrate pointed out, his lapse from grace occurred only a very brief period of time prior to the expiry date of his bond. The sentence which had been suspended was for a quite short term and he had already performed the period of community service required by the bond.

22. Whilst, with respect, I have no quarrel with what fell from Legoe J in Nieto v Mill (1991) 55 SASR 379, I nevertheless adhere to the point which I made in Holdsworth v Larcombe (1987) 44 SASR 294. The requirement to perform community service is part and parcel of the sentencing package. It therefore follows that, in this case, part of the penalty for the original offence had already been satisfied.

23. It must also be borne in mind that the offending which led to the breach of the bond was clearly the direct product of the intoxication of the respondent, rather than of some deliberate criminal intent on his part. It was not, however, of a type having an exact similarity to the original offending, although it certainly did constitute a flouting of the basic provisions of the Road Traffic Act.

24. Another factor to be borne in mind is the need to consider the overall sentencing package for the most recent offending, which has not been appealed against. An important feature of the strategy adopted by the learned magistrate was to impose a significant custodial sentence, coupled with a further 12 month good behaviour bond, to ensure that the respondent does not further offend in the current year. A revocation of the prior suspension would operate to negate that desirable and, if I may say so, common sense, strategy, particularly having regard to the express provisions of section 38(2) of the Criminal Law (Sentencing) Act.

25. One important consideration which needs to be borne in mind is that the respondent lived in a modest size country town, the major employment source in it being a meat works. After a considerable period of unemployment, the respondent had, prior to 2 February 1994, eventually secured employment with the meat works. Competition for such positions is strong and it is said to be the situation that, if the respondent had actually been sent to prison, he would have lost his employment, with little prospect of its later recovery. Such a situation was scarcely conducive to his rehabilitation.

26. Viewed at best from the respondent's perspective this was, perhaps, a marginal, borderline case for the exercise of discretion, and the expression of reasons by the learned magistrate does not indicate to me a very felicitous identification of the proper test to be applied. It may well be that, had I dealt with the matter at first instance, I would not have felt myself able to extend the degree of leniency accorded the respondent by the learned magistrate. But that is not the test.

27. Whilst I appreciate the force of the prosecution submissions, I am unable to conclude that, on a double jeopardy basis, I am warranted in interfering. There was some material which supported the exercise of discretion, specifically when one bears in mind the facts above identified and the penalty imposed by the estreatment of the $500. Whilst minds may reasonably differ on the matter, it seems to me that the overall punishment meted out to the respondent is an appropriate total penalty to reflect the nature of the breaching offence.

28. Importantly, as I have endeavoured to indicate, the practical reality is that, with respect, the very experienced learned magistrate, faced with a difficult task, applied his common sense in an endeavour to fashion a sentencing strategy which attempted to achieve an end result which was in the best interests of the local community. I am not prepared to say that he was wrong in the particular circumstances of this case.

29. In so saying I accept the prosecution submission that, to use the colloquial expression adopted by the learned magistrate, any like minded local "hoons" should not receive the wrong message from this decision. The usual consequence of a breach of bond will normally be a revocation of any relevant suspended sentence. It may be that this particular respondent has been fortunate in the ultimate outcome. He will not be treated so leniently if he again comes before the Court.

30. For the reasons expressed, and by a fine margin, the appeal will be dismissed.