Sparks v Police - [2007] SASC 25

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SPARKS v POLICE
[2007] SASC 25
Judgment of The Honourable Justice Layton (ex tempore)
25 January 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Magistrates Appeal – appellant pleaded guilty to six offences committed on two separate occasions – the Magistrate convicted the appellant on all counts and imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Act’) - in relation to three of these offences the appellant was sentenced to nine months imprisonment commencing from the date upon which the appellant was taken into custody – the appellant appealed against this sentence on the ground that it was manifestly excessive – this ground was not advanced on appeal.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - PROBATION ORDERS AND SUSPENSION OF SENTENCE - DISCRETION OF COURT
The offences for which the appellant was convicted amounted to a breach of bond – the bond related to the appellant’s plea of guilty to similar offences more than two years earlier – for all of those offences the appellant was convicted and sentenced to 19 months imprisonment, with a non-parole period of 15 months, suspended upon him entering into a bond to be of good behaviour for three years – the appellant admitted the breach of bond - the Magistrate estreated the bond and revoked the sentence of imprisonment – the Magistrate backdated the sentence and the non-parole period to the date of the application for the breach of bond pursuant to s 58(4)(b) of the Act and also fixed a new non-parole period of 15 months and one day, in accordance with s 32(1)(b) of the Act - the appellant argued that the Magistrate erred in failing to exercise the discretion conferred by s 58(4)(a) of the Act to reduce the sentence relating to the breach of the bond where ‘special circumstances' existed for him to do so.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - CIRCUMSTANCES OF OFFENDER
The appellant contended that changes in his domestic situation since the entering into the bond amounted to ‘special circumstances’ – he separated from his partner – his ex partner was awaiting finalisation of serious charges for which she had a warrant out for her arrest – it was likely that she would spend a period of time in custody resulting in the appellant’s children being left with no parents to care for them – the appellant was at risk of losing his secure accommodation.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - RECOGNISANCES - BREACH - GENERALLY
Consideration of the sentencing principles applicable to breaches of bond– discussion of ‘special circumstances’ as considered in R v Buckman and subsequent cases – Held: The Magistrate erred in failing to have regard to the existence of ‘special circumstances’ relating to an acute domestic problem which arose subsequent to the bond being entered into – the Magistrate erred in failing to exercise his powers to reduce the sentence pursuant to s 58(4)(a) of the Act – the overall sentence was oppressive and inappropriate in the circumstances - appeal allowed – appellant re-sentenced.
Criminal Law (Sentencing) Act 1988 (SA) s 18A; s 32(1)(b); s 58(3); s 58(4), referred to.
R v Buckman (1988) 47 SASR 303; Heal v Police (1999) 75 SASR 73, applied.
Police v B, WR [2005] 163, discussed.
Police v Saunders (2003) 229 LSJS 97, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"special circumstances"

SPARKS v POLICE
[2007] SASC 25
Magistrates Appeal: Criminal

LAYTON J: This is an appeal against sentence given by a magistrate on 23 November 2006 in which the appellant pleaded guilty to six offences committed on two separate occasions. The first three offences were committed on 11 February 2006, namely, driving whilst disqualified; exceeding the speed limit; and driving with a prescribed concentration of alcohol.
The second occasion there were also three offences, committed on 8 May 2006, namely, driving whilst disqualified; driving an unregistered motor vehicle; and breaching a bail agreement which had been entered into in relation to the previous offences committed on 11 February 2006.
The learned sentencing Magistrate convicted the appellant on all counts. In relation to the two offences of driving whilst disqualified and breaching the bail agreement, the Magistrate imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA), (‘the Sentencing Act’) and sentenced the appellant to nine months imprisonment to commence from 8 May 2006, being the date upon which the appellant was taken into custody. As to the offences of exceeding the speed limit and driving an unregistered motor vehicle, the learned Magistrate recorded convictions but imposed no further penalty. As to the offence of driving with a prescribed concentration of alcohol, this matter was adjourned to a later date pursuant to s47J of the Road Traffic Act.
The offences for which the appellant was convicted also amounted to a breach of bond. The bond related to the appellant’s plea of guilty on 24 September 2004 to two counts of driving whilst disqualified, driving with a prescribed concentration of alcohol and driving an unregistered motor vehicle. He was convicted on all of those counts and sentenced to 19 months imprisonment, with a non-parole period of 15 months, suspended upon him entering into a bond to be of good behaviour for three years. The appellant was also disqualified from driving for 54 months.
The appellant admitted the breach of the bond, and as a consequence, the Magistrate estreated the bond, revoked the sentence of imprisonment and backdated the sentence and the non-parole period to 26 September 2006, being the date of the application for estreatment of bond. [1] The Magistrate also fixed a new non-parole period of 15 months and one day, in accordance with s 32(1)(b) of the Sentencing Act and also, having regard to the decision in Heal v Police. [2]
[1] Pursuant to s 58(4)(b) of the Criminal Law (Sentencing) Act 1988 (SA).
[2] (1999) 75 SASR 73.
Although there were initially three grounds of appeal, only one in the final result has proved to be relevant and was the one which was pursued, namely, that the learned Magistrate erred in failing to consider the exercise of discretion conferred by s 58(4)(a) of the Sentencing Act to reduce the sentence relating to the breach of bond, where “special circumstances” existed for him to do so.
Mr Mead, counsel for the appellant, indicated that although the Magistrate overall took a merciful approach with regard to all aspects of sentencing, including the breach of bond, the Magistrate did not specifically refer to s 58. Mr Mead conceded that it was clear from his reasoning in paragraph [18] that the Magistrate had addressed himself to s 58(3), in that he referred to there being “no proper grounds” upon which the failure of the appellant to comply with the conditions of the bond should be excused. He also conceded that there was an inference that the Magistrate had applied s58(4)(b), which enabled him to direct that the time spent by the appellant in custody pending determination of proceedings for the breach of the bond, could be counted as part of the terms of the suspended sentence. I also note that the Magistrate referred to the cases of Police v Saunders[3] and Heal v Police.[4] In my view, he correctly applied the case law with regard to both of those cases.
[3] (2003) 229 LSJS 97.
[4] (1999) 75 SASR 73.
Ms Connell, counsel for the respondent, submitted that the Magistrate appropriately had regard to s 58(4) of the Sentencing Act. I agree with her that the Magistrate did have regard to s 58(4), and I specifically agree that he addressed s 58(4)(b), but no where in his reasons did he specifically address the issue of “special circumstances” under s 58(4)(a). Further, I cannot infer from his reasons that he considered that subsection. I reject her argument. In my view, although the Magistrate has endeavoured to take a very lenient approach, he did not appropriately address what seems to be one of the key issues in this case, namely, whether “special circumstances” existed to enable him to exercise the powers of a court pursuant to s 58(4)(a) of the Sentencing Act.
Mr Mead submitted that there were “special circumstances” which existed, namely that since the imposition of the bond on 27 September 2004, the personal circumstances of the appellant had changed dramatically. At the time of sentencing in September 2004 he was in a stable relationship with his partner, who was then the mother of one of their children, Mary, who was about 10 years of age.
Since that time the appellant’s partner, who is now the mother of a second child, Chloe, who is aged about nine and a half months, left the appellant on 11 February 2006. This was the date of the first of the offences. Moreover, since September 2004 the appellant’s ex-partner has been charged with a number of offences and has been the subject of a warrant for her arrest for non-attendance in court. It was submitted that the likely consequence of his ex-partner’s latest offending, together with the warrant, would be a period when she is likely to be in custody. It was submitted that this would result in their two children, Mary and Chloe, having neither parent to care for them in the event that there is no change to the current orders against the appellant. Further, it was submitted that this overall situation would also put at risk the appellant’s previously stable Housing SA accommodation.
In considering these submissions, I need to look at the applicable principles. S.58(4)(a) has been the subject of judicial consideration in a number of cases, commencing with the Full Court decision of R v Buckman.[5] In that case the judgment of King CJ, who in turn endorsed the views expressed by Jacobs J, has been regarded as an appropriate binding authority on this Court, and has been followed subsequently in a number of decisions. King CJ, in setting out the approach with regard to “special circumstances” said:[6]
The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper. Subsection (6) [now s 58(4)(a)] exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.
[5] (1988) 47 SASR 303.
[6] Ibid, 304.
Likewise Jacobs J, whose views were endorsed by King CJ, expressed some additional features. He said:[7]
[S]pecial circumstances for reducing the sentence, if the breach is not excused, look to some significant change of circumstances since the prisoner was sentenced, which had they existed at that time might have justified a reduced sentence. It seems to me that they will generally be personal factors, of the kind that may dispose a court to greater leniency, which have arisen subsequent to the sentence of imprisonment — ill health or acute domestic problems or obligations spring to mind as examples, but they are only examples, and it is impossible and unwise even to attempt to state exhaustive categories of such special circumstances.
[7] Ibid, 307.
In this case two specifically relevant affidavits have been filed and received by me. They were correctly received without objection from the Crown as being further appropriate material to be before me, which expand on matters which were raised before the sentencing Magistrate whose remarks are the subject of this appeal. The first is an affidavit of Daniel Misell sworn on 24 January 2007, in which she deposes that the appellant’s ex-partner was due to appear in the Elizabeth Magistrates Court on 13 December 2006 but failed to do so, and as a consequence a warrant has been issued for her arrest. The pending charges include driving an unregistered motor vehicle; being unauthorised to drive a motor vehicle; driving or using a motor vehicle without consent; producing a controlled substance; three counts of dishonestly taking property; a further dishonesty offence; giving a false name and address; and failing to comply with a bail agreement. I know nothing of the ex-partner’s antecedent history.
Ms Connell submitted that the effect of this situation, and any resultant impact on the children, was purely speculative and that it was not an appropriate “special circumstance” under s 58(4)(a). I see some force in that argument, but having considered it, I agree with Mr Mead. Bearing in mind that a warrant has been issued, and having regard to the nature of the offences, the ex-partner spending some period in custody is not mere speculation, but is a real likelihood; the length of which, of course, I am not in a position to determine. Further, I consider that if such custody in prison occurs, that in turn will affect the situation of the two children. In my view, this is an appropriate circumstance which has changed the situation since the appellant was placed under a bond in September 2004 and is to be taken into account.
There is also an affidavit of the appellant, James Brian Sparks, sworn this day. He deposes to a number of circumstances with regard to the care of his children and also with regard to accommodation. He deposes the following:
·He has been a principal tenant of the South Australian Housing Trust for four years and that prior to that he was in a private rental accommodation.
·In order to gain Housing Trust accommodation he had to submit support letters from various people and that he was told that the waiting period would have been about four years but because of the letters, he was given priority and only had to wait for a period of 12 months.
·In May 2005 his ex-partner left the house and went to Ballarat with a new partner and, as a consequence, he was the sole carer for his daughter, Mary, for about six months while his former partner was away.
·In November 2005 his ex-partner returned to South Australia and that shortly after that the appellant’s other daughter, Chloe, was born. He deposes that up until his arrest in May 2006 there was no involvement of the Department of Welfare or other authorities in the care of the children.
·In February 2006 his ex-partner left the home, taking their two children; that he had tried to maintain contact with the two girls since and that one of the children, Mary, has visited him in custody and maintains a contact by telephone.
·He is aware that his ex-partner has left the Housing Trust house where she was regarded as a caretaker, but does not know her current whereabouts.
·He is aware that his partner has breached her bail on three occasions in the past and has been informed that there is presently a warrant for her arrest.
·He knows his daughter, Mary, is not attending school at present and he is anxious to resume day-to-day care of her as soon as possible, so that she can return to school and regain stability in her life.
There is also further information contained in the affidavit of Ms Misell as to housing accommodation. Exhibited to the affidavit is a letter from Housing SA, part of the Department of Families and Communities. This letter indicates that Housing SA intends to vacate and take back the property in the name of the appellant on 26 January 2007, unless it can be confirmed that there is a close date for the appellant’s release from prison. With regard to the housing matters, Ms Connell submitted that this is not a “special circumstance”, but is instead a consequence of imprisonment. I agree that in the abstract, without any other consideration, that Ms Connell is correct, but in this case a number of matters have been put collectively as being “special circumstances”.
If I go back to the examples given by Jacobs J in Buckman, in my view, subsequent to the bond being entered into, there has been a dramatic change of circumstances personal to the offender, and those circumstances are a collection of a number of matters. They are “acute domestic problems” which arose as a result of the separation of the appellant and his partner, in combination with a significant risk of his ex-partner being taken into custody for alleged serious offending and for non-attendance in court. There is also the consequential effect which that is likely to have on the two children, in conjunction with the loss of Housing SA accommodation which is relevant to the overall stability of the family in a general sense. In my view, all of those factors are “special circumstances” in this case.
I must now consider whether these “special circumstances” would have in any way modified the sentence which would have been appropriate as at September 2004.
I note that the Magistrate has already backdated the sentence to 26 September 2006. In my view, that indicates some degree of leniency which was appropriate. However, I also consider that if all of the “special circumstances” set out above had existed in September 2004, a sentence of 19 months imprisonment with a non-parole period of 15 months would not have been imposed. I consider that those circumstances would have modified the approach of the Court in September 2004. I take into account the comments of Doyle CJ in Police v B, WR,[8] where his Honour drew attention to the latter aspects of King CJ in Buckman, who specifically referred to the need to have regard to the overall intention of what is now s 58(4)(a), namely: ‘To avoid injustice of activating the sentence, the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature’.[9]
[8] [2005] SASC 163.
[9] R v Buckman (1988) 47 SASR 303, 304.
In this case I have had regard to the fact that the overall effect of sentencing would be a head sentence of 23 months and 18 days, with a non-parole period of 19 months and 19 days. In my view, having regard to the “special circumstances” that would amount to a sentence which is oppressive and inappropriate in all of the circumstances. In re-sentencing, rather than take the approach adopted by Perry J in Police v Saunders,[10] in which there was an accumulation of sentencing together with a backdating, I have decided instead to take a similar approach to that of Doyle CJ in Police v B, WR,[11] which is to use a combination of both s 58(4)(a) and s 58(4)(b).
[10] (2003) 229 LSJS 97.
[11] [2005] SASC 163.
In this case, I consider it appropriate for the backdating of the sentence to remain as its stands and only set aside the head sentence and non-parole period. Having found that “special circumstances” exist, I consider that pursuant to s 58(4)(a) the following sentence should be ordered in lieu of the current sentence: a head sentence of 13 months with a non-parole period of 10 months and one day. I have applied the extra one day pursuant to s 32(1)(b) of the Sentencing Act, and in accordance with Heal’s case. The head sentence and non-parole period are to commence from 26 September 2006. I otherwise confirm the sentence and orders imposed by the Magistrate with regard to the other offences.
Orders:
1. Appeal allowed.
2. The sentence imposed by the learned Magistrate on 23 November 2006 in relation to court file AMC 06-15296 be set aside and the following sentence be imposed in lieu thereof: a head sentence of 13 months imprisonment with a non-parole period of 10 months and one day to commence from 26 September 2006.
3.In all other respects, the orders of the Magistrate are confirmed.