Simmonds v Police - [2008] SASC 193

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
SIMMONDS v POLICE
[2008] SASC 193
Judgment of The Honourable Chief Justice Doyle
10 July 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - POWERS OF APPELLATE COURT
Magistrates Appeal - appellant pleaded guilty to failing to comply with a term or condition of a bail agreement contrary to s17 of the Bail Act 1985 (SA) - Magistrate recorded conviction and sentenced appellant to imprisonment for three days - time already served - no evidence regarding when appellant left the house - appellant believed girlfriend was about to give birth - whether reasonable excuse - appeal against sentence allowed - order substituting a sentence recording a conviction without further penalty.
Bail Act 1985 (SA) s17, referred to.

SIMMONDS v POLICE
[2008] SASC 193
Magistrates’ Appeal: Criminal

DOYLE CJ (ex tempore): Mr Simmonds pleaded guilty before the Magistrates Court to a charge of failing to comply with the term or condition of a bail agreement without reasonable excuse, contrary to s 17 of the Bail Act 1985 (SA).
The maximum penalty for this offence is imprisonment for two years or a fine of $10,000.
The Magistrate recorded a conviction and sentenced Mr Simmonds to imprisonment for three days to be served forthwith. Although Mr Simmonds has served the sentence he now appeals against the sentence.
The bail agreement was made on 2 January 2008. It included the following condition: to remain at home each day between the hours of 9.00 pm and 6.00 am and to present yourself to police at the front door on request unless absent for medical emergencies.
The circumstances of the offence as outlined by the prosecutor to the Magistrate were as follows. On 3 March 2008 police went to Mr Simmonds home at 9.45 pm. He was not present. On 6 March 2008, the police went to his home and arrested him.
Mr Simmonds told the police, and the Court was told in due course, that on 3 March 2008 he had gone with his girlfriend, who was pregnant, to the Flinders Medical Centre. He thought that she was going into labour.
According to the police, they made an inquiry and were told that there was no record of Mr Simmonds’ attendance at the Flinders Medical Centre. Mr Simmonds then told the police that his girlfriend’s contractions had stopped while he was going to the Flinders Medical Centre, and so he returned home without going there.
It is not clear when Mr Simmonds set out for the Flinders Medical Centre but I am prepared to accept, and this is in his favour, that it was before 9.00 pm, the commencement of the restriction period under the bail agreement.
Although a duty solicitor advised Mr Simmonds, initially when he appeared before the Magistrate, the duty solicitor withdrew from the matter at an early stage. Mr Simmonds was self-represented when he pleaded guilty.
According to Mr Simmonds’ affidavit, he put the same version of the facts to the Magistrate as was alleged by the police. However, he did claim that he had contacted the police when he got home, which he said would have been about 10.00 pm.
In his sentencing remarks, the Magistrate commented, no doubt based on matter that was put to him, that Mr Simmonds could have telephoned the police before leaving home. The Magistrate also said that there were other people at the house who could have done this for Mr Simmonds.
However, I accept the point made by Mr Clarke that it is not clear what this would have achieved, as it would not be for the police to waive or excuse a potential breach of the bail agreement.
I add that it is not completely clear whether the Magistrate accepted Mr Simmonds’ explanation for his absence as genuine. However, as the Magistrate did not say that he rejected it, I consider it appropriate to proceed on the basis that the Magistrate did accept it. If he intended to reject it, bearing in mind that Mr Simmonds was unrepresented, it would have been appropriate to warn Mr Simmonds, at the least, that his version of events might not be accepted if he called no evidence.
The circumstances raised by Mr Simmonds might conceivably give rise to a defence to the charge. However, the material before me indicates that the Magistrate advised Mr Simmonds of his rights, in particular of his entitlement to seek legal representation and offered him an adjournment to get legal advice.
Mr Simmonds says in his affidavit that the Magistrate indicated that he would grant bail, if the matter was to be adjourned, only if a suitable home detention report was provided. That would have taken seven days.
Mr Simmonds says that the Magistrate had already indicated that if Mr Simmonds was convicted, the Magistrate was likely to impose a sentence of no more than four days’ imprisonment. Under those circumstances, Mr Simmonds pleaded guilty rather than spend time in custody awaiting the provision of a home detention report.
In those circumstances, that is in light of the plea of guilty, the Magistrate had to proceed on the basis that there was no reasonable excuse for Mr Simmonds’ absence from his home when the police went there.
I say that because by his plea of guilty, Mr Simmonds admitted the elements of the offence.
I conclude that the Magistrate had to sentence Mr Simmonds on the basis that he had no reasonable excuse, but that nevertheless the reason for his absence was the claimed reason. So the Magistrate had to sentence on the basis that the claimed reason was not a reasonable excuse. However, the Magistrate also had to sentence on the basis that an explanation had been proffered, being the explanation given by Mr Simmonds.
The Magistrate emphasised the importance of a person on bail adhering to the terms of bail and in particular, to a condition of the type imposed here. The Magistrate was right to do so. Members of the public are understandably concerned when a person on bail is seen not to comply with the terms of the bail agreement.
Breaching a condition of a bail agreement is a serious offence. The substantial maximum penalty fixed by parliament indicates that. Breach of a bail agreement involves an element of defiance of the court.
The Magistrate also referred to the fact that Mr Simmonds had been found guilty of breaching a bail agreement on previous occasions. On my reading of the material before the Magistrate, Mr Simmonds had committed three such offences, convictions being recorded on 5 April 2006, 8 May 2007 and 28 February 2008. The last conviction was only a few days before the offence in question.
In light of this aspect of Mr Simmonds’ record, it was appropriate for the Magistrate to give weight to circumstances of personal deterrence. I have already indicated why general deterrence was also a relevant matter.
In addition, although he is 31 years of age, Mr Simmonds has a poor record involving offences dating back a good many years. Many of the offences are traffic offences and drug offences at the low end of the scale of seriousness. However, the record demonstrates that Mr Simmonds cannot claim lenience on the grounds of a good record or good character. As well, he has had lenience extended to him on previous occasions in the form of a good behaviour bond.
All of those circumstances tend to support what the Magistrate did. But on the other hand, as Mr Clarke rightly points out, there are some substantial factors pointing towards a more lenient approach.
I have already indicated that, in my opinion, the matter should be approached on the basis that Mr Simmonds explanation was accepted. That being so, the situation was one akin to an emergency, although I emphasise the Magistrate had to sentence on the basis that the excuse was not a reasonable excuse or a medical emergency for the purposes of the bail agreement.
Nevertheless, I accept the point made by Mr Clarke that it can be said that what Mr Simmonds did was understandable, even if there is no answer in law to the charge of breach of bail agreement.
The second significant factor, which the Magistrate might have overlooked because he did not refer to it, is that Mr Simmonds was absent for only a short time, that is about one hour. That is something, which in my mind, is of some significance, as is the fact that he rang the police on his return to his home. Once again, I consider that he should be dealt with on the basis that that version of events is accepted.
It is clear that if the Magistrate had rejected the explanation that Mr Simmonds gave, the sentence that the Magistrate imposed was well and truly justified. But in the circumstances that I have outlined, and in particular, the Magistrate’s acceptance of the explanation, I consider that the Magistrate did err, notwithstanding the importance of general and personal deterrence.
I consider that the circumstances of the offence did amount to substantial mitigation, meaning that the sentence that the Magistrate imposed was excessive.
In all the circumstances, it is appropriate therefore, to allow the appeal against sentence. I set aside the order for imprisonment but I leave standing the order recording a conviction. It is appropriate in the circumstances that that should remain.
Bearing in mind that Mr Simmonds has in fact served the three days’ imprisonment, there is no point in me considering whether some lesser sentence should be imposed, as probably should be the case.
Accordingly, I order that the appeal against sentence be allowed, that the sentence be set aside but that there be substituted a sentence recording a conviction without further penalty for the offence.