Summers v Police No. Scgrg-97-1394 Judgment No. S6845

[1998] SASC 6845

SUMMERS v POLICE

[1998] SASC 6845
Full Court
Coram:  Doyle CJ, Prior and Olsson JJ

Olsson J

1 This is an appeal, by leave, against the decision of a single Judge of this court.  On 22 December 1997, he quashed an order of a stipendiary magistrate suspending two sentences of imprisonment and also directed that the suspension of certain earlier custodial sentences be revoked.  This was the outcome of a prosecution appeal against sentence, on the ground that the relevant punishment was manifestly inadequate.
2 I will rehearse some of the pertinent background history, so that the events relevant to this appeal and the issues arising from them may be understood.
3 The appellant is a twenty three year old man, who, since he was sixteen years of age, has amassed what can only be described as a vast record of offending.  This has spanned offences such as illegal use, assaults, breaking and entering, various street offences, larceny, a variety of driving offences and three offences of drive disqualified, committed prior to the offending which was under consideration by the learned magistrate.
4 At the time of the lastmentioned offending the appellant was subject to four separate bonds, the details of which were:-
.        On 13 September 1993, he was convicted and sentenced to six months imprisonment on a charge of using a car without permission.  That sentence of imprisonment was suspended upon his entry into a two year good behaviour bond.  He appeared in court on 18 August 1995 on an application to enforce the breached bond on the basis that he had failed to comply with a condition of it, namely, that he perform community service.  The breach was found proved and the bond was extended for a period of six months.

.        On 13 September 1993, on a charge of illegal use, the respondent was separately convicted and sentenced to six months’ imprisonment, suspended upon his entering into a two year bond to be of good behaviour.  That in turn was, on 18 August 1995, extended for a further period of six months, following proof that he had breached it by failing to be of good behaviour.

.        On 18 August 1995, on a charge of driving whilst disqualified, the respondent was convicted and sentenced to three months’ imprisonment, suspended upon his entering into a further good behaviour bond of two years.

.        On 18 August 1995 the appellant was convicted of illegal use of a motor vehicle.  He was convicted and sentenced to six months’ imprisonment, suspended upon entering into a bond to be of good behaviour for two years, with a condition that he perform 120 hours of community service within nine months.

5 It was against that background that, on 27 August 1997, the appellant appeared before the learned magistrate charged with two separate offences of drive disqualified, one committed on 7 January 1996 and the other on 6 March 1996.
6 The first arose from an incident which occurred on the date in question when police officers on mobile uniform patrol (who were acquainted with the appellant and aware that he was subject to licence disqualification) observed him riding a motor cycle over a relatively short distance on Forest Avenue, Gray Street and Winifred Avenue, Black Forest.  When stopped and questioned he admitted the offence.  He stated that the motor cycle was not his - that it belonged to the "Honda Shop" and he was taking it for a test drive.
7 The second related to an incident which occurred at about 11.00 pm on 6 March 1996.  A police mobile uniform patrol stopped a yellow Ford X-C motor vehicle being driven by the appellant along Grove Avenue, Marleston, because of an apparent defect in its lighting.  A licence check indicated that the appellant was driving whilst under suspension.  When questioned he said that he was aware that this was the situation and that it was an offence to drive.  Bearing in mind the time of night, he told the police what seemed, at the time, to have been a somewhat unlikely story that he had just purchased the car and was taking it home.  (A somewhat different explanation was later put to the learned magistrate in the course of submissions.)
8 It must at once be said that, bearing in mind the prior record of the appellant and the successive commissions of the offences over a relatively short space of time, the only reasonable inference which can be drawn is that both were committed in what can only be categorised as an utterly contumacious manner.  The appellant well knew that he was not entitled to drive and, obviously, drove in complete disregard of that fact to suit his own purposes.  There were no real mitigating circumstances to explain or ameliorate his conduct.  It was a circumstance of aggravation that, in each instance, the appellant was subject to the bonds above recited, one of which related to a prior offence of drive disqualified.  Further, the second offence was committed when the charge was pending in relation to the first.
9 The learned magistrate imposed the following penalties for the two offences:-
Offence on 7/1/96:        imprisonment for three months, suspended on entry into a bond to be of good behaviour for 12 months.

Offence on 6/3/96:        imprisonment for six months, cumulative on the first sentence, suspended on entry into a bond to be of good behaviour for 18 months.

He accepted that there was some degree of staleness about the offending, due, it was said, to the then pending debate before the Full Court in the case of Police v Cadd (1997) 69 SASR 150; and that the offences were not the most serious of their type. He was also of opinion that there was material before him which suggested that, perhaps for the first time, there were some signs that the appellant was attempting to do something with his life. It would, he felt, be counterproductive to send him to prison.

10 Having imposed the sentences above referred to the learned magistrate was then called upon to consider applications to revoke the suspensions of each of the earlier sentences by reason of the breaching of the bond conditions to be of good behaviour.  He declined to make revocation orders.  After referring to the material which was placed before him (and, in particular, a report prepared by Mr Allan Fugler, a forensic clinical psychologist) he reiterated his view that there was some evidence that the appellant was now accepting "responsibility for making a go of ... [his] ... life".  He went on to comment:-
"I say there are proper grounds for excusing the breaches.  They are your youth, notwithstanding your longish history before the courts; the fact that you seem to be realising that you can do something with your life;  the fact that you have some prospects of work, and those circumstances generally convince me that there are proper grounds for excusing the breaches."

11 The prosecution duly lodged a notice of appeal against both the suspension of the sentences in respect of the two counts of drive disqualified and also the refusal to enforce the bonds entered into by the appellant.  There is no dispute that the appeal documentation was duly served on the appellant personally, in the presence of Mr Sprod, who had been counsel for him before the learned magistrate.
12 The appeal was originally placed in the list of magistrates appeals for the month of November 1997.  According to a file note prepared by the associate to the learned Judge (to whom the appeal had been assigned for hearing), Mr Sprod spoke with him on 7 November 1997.  Mr Sprod stated to the associate that the notice of appeal had only just been served on the appellant and that he (Sprod) would need a few weeks to prepare the case.  He asked that "Perry J make a fiat in Chambers transferring this matter to" the December list.  That request was acceded to.
13 The matter was, accordingly, included in the December list at the direction of the learned Judge.  It was advertised in the daily press in the usual manner.  Mr Sprod is an experienced practitioner and must be taken to be well aware of the normal listing procedures.
14 On 17 December 1997 Mr Sprod again contacted the associate to the learned Judge.
15 The file note of what occurred on that occasion reads as follows:-
"MEMORANDUM TO:         File

FROM:  Paul Huntley

SUBJECT:  1394 / 97 - Police v Summers

DATE:  17 December 1997

I spoke to Mr Sprod of Scammell & Co today, who informed me of the following:

.        The Police had served the notice of appeal on Mr Summers in early November.  Summers passed the notice to Mr Sprod, and asked him to deal with it.

.        Mr Sprod told Summers that he wanted him to do certain things and furnish particular information in order for Mr Sprod to prepare a response to the appeal.

.        Those things were never done, and Mr Sprod has not been able to contact Summers since.  Mr Sprod does not regard himself as having been properly instructed by Summers, and accordingly has no plans to appear at the appeal.

[Mr Sprod has two offices;  his phone number at the Adelaide office is 8212 6875, and his number at the Port Adelaide office is 8447 4466.]"

16 The appeal was duly called on for hearing on the following day, in accordance with the published list.  There was no appearance by or on behalf of the appellant.  The learned Judge proceeded to deal with the matter ex parte.
17 Having heard Mr Hinton, of counsel for the prosecution, the learned Judge stood over judgment until 22 December.  He directed that specific notice be given to the appellant of the time and date of delivery of judgment.  This was done, both by his associate and Mr Hinton.  In a letter which Mr Hinton caused to be delivered to the address understood to be that of the appellant the following paragraph appeared:-
"This letter is written at the suggestion of His Honour so that you may have every opportunity to put to His Honour anything you believe should be taken into account by him in deciding the appeal.  As I commented above, you are in a position where you may be imprisoned and so it is in your interest that you attend the Supreme Court on Monday and put to Justice Perry whatever you believe he should consider."

18 This obviously came to the attention of the appellant, who saw Mr Sprod at 9.00 am on 22 December.
19 When the appeal was called on for judgment by the learned Judge at 9.35 am on 22 December, Mr Sprod appeared for the appellant.  He informed the learned Judge that:-
.        his earlier correspondence seeking instructions from the appellant had not been received by the latter, who had not been aware of the date and time fixed for the hearing of the appeal.  It seemed that the appellant had had a falling out with his mother and changed his address.  She failed to pass on his mail to him.

.        he had only been retained that morning to brief counsel to present submissions on behalf of the appellant.  He needed more time to procure detailed instructions.

.        the appellant, who had some personality problems, had not appreciated that he stood in potential jeopardy of imprisonment as an outcome of the appeal or when it was due to be heard.  For those reasons, he had not, himself, followed up with Mr Sprod when he changed his address.

20 Accordingly, Mr Sprod requested an adjournment to place himself in a position to brief counsel to make detailed submissions on behalf of the appellant.  A lengthy dialogue then ensued between him and the learned Judge.  It is clear that the learned Judge was somewhat sceptical concerning the appellant’s proposed lack of knowledge and level of understanding, particularly in light of the fact that the appeal had, earlier, been re-listed at Mr Sprod’s request.  To his professional credit, Mr Sprod earnestly pressed his application.  The dialogue concluded in these terms:-
"MR SPROD:               ...  Whilst in 99% or 100% of cases you might fairly take the view that if a person is not motivated to do something for themselves, then why should we all pander and bend to their convenience, it wasn’t until I spoke to Summers about his predicament and this appeal and its consequences for him that I think the penny really dropped and, as I say, that only happened once the police had attended at his mother’s address and had handed over, I think, a letter from the court and a letter from the director, I’m not quite sure - perhaps Mr Hinton can help us - that she was able to contact him.  Hitherto, he just didn’t know what had been going on.

HIS HONOUR:            But you were with your client when he was served the notice of appeal and you obviously gave him some advice, because you told him to do certain things.  I don’t want to go into what you told your client, but I would be surprised if you didn’t warn him - you are under a duty to do so - that it’s possible that the favourable outcome of the magistrate’s hearing could be reversed and he could go to gaol.  If you didn’t warn him about that, I can only express my surprise.  If you did warn him about that, then I am equally unpersuaded and unimpressed with the situation that from there on there is anything to be said for his failure to get on with the task of giving you proper instructions.

MR SPROD:                I am more than happy to tell you what I said to him, and it doesn’t prejudice his position in the matter at all.  I told him that I was reluctant to argue an appeal in respect of a matter that I had acted as counsel and I suggested that Mrs Shaw be instructed, but, for that to be done, I needed to see him, I needed to have his proper written instructions in order to brief counsel - and I’m sure your Honour would understand that - and I told him that I wanted to see him and that I would write to him, and I did.  I wrote to him, asking him to come and see me.  As I told your Honour, he did not get the letter.

HIS HONOUR:            So be it, but somebody who is personally served with an notice of appeal in a Magistrates Court appeal matter owes a duty to give instructions and get on with the task of responding to it.  If they have failed to do so, despite having adequate opportunity to do that, and if my own staff remind them about it - and my staff made contact with you on two occasions, and the matter was specifically stood over in order for him to have an opportunity to give you proper instructions - the business of the court would grind to a half it, in that situation, we didn’t simply proceed.

Here, I am ready to give judgment, which I am proposing to do in a moment.

MR SPROD:                I can only repeat to your Honour what I have put to you before.

HIS HONOUR:            I know, and we will get very circuitous if we keep going.

MR SPROD:                He just didn’t know what was happening.

HIS HONOUR:            He had every opportunity and he should have known.

MR SPROD:                In a perfect world, with perfect people who know the law and all know their obligations to society, I agree with you, but this individual is not the perfect person by any means and, as I say, he is the sort of young man who relies on others to do things for him.  I can only hope that he has learnt his lesson.

HIS HONOUR:            I don’t think there is anything more you can put.

MR SPROD:                I repeat my application for an adjournment, and I have nothing further to say.

HIS HONOUR:            I need not call on you, Mr Hinton.  The application for an adjournment is refused for reasons set out in transcript."

21 It is to be noted that the learned Judge did not ever give Mr Sprod any opportunity of making any submissions as to the substance of the appeal at that time.  Perhaps, more importantly, by refusing an adjournment he effectively denied himself access to detailed background information concerning the appellant and the matters which had been put to the learned magistrate.  The information before him was, accordingly, restricted to that provided in the prosecutors’ affidavits and what was contained in the sentencing remarks of the learned magistrate.
22 Having refused an adjournment the learned Judge then delivered judgment on the appeal.
23 In addressing the facts on appeal he took a very different view of the situation to that expressed by the learned magistrate.
24 As to the two breaching offences he expressed the opinion that there was nothing in the circumstances in which they were committed "... which could properly be taken to ameliorate the seriousness of them for present purposes. The ... [appellant] ... had no excuse for driving, and his act of driving in both instances should properly be regarded as ‘contumacious’ in the sense in which that word was discussed in Police v Cadd and Ors [(1997) 70 SASR 66].". There was, he considered, no justification for suspending the terms of imprisonment imposed.
25 The learned Judge stressed that it was a statutory pre-requisite to refraining from revoking the earlier suspensions after breach of the relevant bonds that there were "proper grounds" within the meaning of section 58(3) of the Criminal Law (Sentencing) Act, 1988 ("the CLSA"), upon which the failure to comply with the bond conditions should be excused.
26 He made the point that, in addressing this aspect of the case, the learned magistrate appeared to have focused his attention on the personal circumstances of the appellant, rather than the circumstances of the breaching offences, as he was bound to do (R v Buckman (1988) 47 SASR 303 at 304).
27 He concluded that it simply could not be said that the circumstances in which the breaching offences were committed could conceivably give rise to a positive exercise of discretion.  Nor, he opined, did even the personal circumstances of the appellant justify any reduction of the terms of the reactivated sentences, or any other course postulated by CLSA s58(4).
28 So it was that he was moved to allow the appeal and quash both the suspensions of the new sentences imposed and also the orders finding the existence of proper grounds for excusing the breaching offences.
29 However, he said that he considered that the totality principle ought to be applied, so as to moderate the overall impact of the sentences to be served.
30 In the event, he directed that the terms of imprisonment activated by the breached bonds be served cumulatively, but that the two sentences in respect of the drive disqualified offences be served concurrently with the activated sentences.  He stated that, in the result, the total head sentence effectively became 18 months, in relation to which he fixed a 12 month non parole period.
31 On 23 December 1997 the appellant, by his solicitor, sought leave to appeal against the orders of the learned Judge.  Amongst other things, complaint was made of an alleged mathematical error in calculating the cumulative total of certain breached bonds.  It was said that the total ought to be 15, rather than 18, months.
32 The application for leave came before the learned Judge on 14 January 1998.  At that time he reviewed the contention as to the alleged mathematical error.  He agreed that an error had been made.  However, as he put it, "the error was the other way".  The cumulative total ought to have been 21, rather than 18, months.  The matter was stood over to 5 February 1998 to enable a settled draft notice of appeal to be prepared and submitted to him.  When the matter again came before him he gave leave to the appellant to appeal against his initial order, as corrected. As his earlier order had not been sealed and entered, he also, on that occasion, recalled his earlier fiat and replaced it with a new fiat setting out the correct mathematical result.
33 In accordance with his corrected fiat, this meant that a total of 21 months was to be served.  The learned Judge did not alter the non parole period of 12 months.
34 Against that background the learned Judge ultimately granted leave to the appellant to appeal on the following grounds:-

1. The Learned Judge erred in proceeding to hear the appeal in the absence of the defendant where:

(a)     the potential result was an order that the defendant serve a period of immediate imprisonment, and/or

(b)     there was no proof of service on the defendant of notice of the date and time of the hearing of the appeal, and/or

(c)     there had been no warrant issued by the Court to have the defendant brought before it to be heard in relation to the orders sought, and/or

(d)     the Learned Judge was not provided with, and therefore did not take into account, the submissions that the defendant’s counsel had made to the Learned Special Magistrate in mitigation of penalty.

1. The Learned Judge erred in refusing the application for an adjournment by the defendant’s counsel prior to delivery of judgment, for the reasons particularised in ground (1) above.

1. The Learned Judge erred in concluding that no grounds were made out upon which the discretion pursuant to s.58(4) of the Sentencing Act 1988 could be properly exercised where:

(a)     the Learned Judge did not have all the material before him which led to the Learned Magistrate being so satisfied, and/or

(b)     the Learned Judge failed to give any or proper weight to the relevance of the delay between the date of the offence and sentencing and the circumstances of the offender as at the date of sentencing, and/or

(c)     the Learned Judge failed to give any or adequate weight to the disproportion between the breaching offences and the impact upon the defendant of the activation of the suspended sentences in the light of his circumstances as at the date of sentencing, and/or

(d)     the Learned Judge failed to give any or adequate weight to the peculiar considerations which apply to the prosecution appeals, and the principles of double jeopardy.

1. Alternatively, the Learned Judge erred in concluding that there were no ‘special circumstances’ justifying a reduction of the sentence of imprisonment for the reasons particularised in 3(b) (c) and (d) above."

35 As will at once be seen, these grounds raise several quite important, difficult questions, which were traversed at some length both by Mrs Shaw QC, of senior counsel for the appellant, and the Solicitor-General.
36 In particular Mrs Shaw QC, in effect, challenged the propriety of the current listing processes of the court. Both she and the Solicitor-General canvassed interesting questions related to whether or not it was mandatory for an appellant, faced with a situation such as that outlined above, to be (or be brought) before the Court when an appeal is being heard. Inter alia, it was argued by Mrs Shaw QC that the learned Judge had no power to proceed, or, alternatively, ought not to have proceeded, ex parte in the manner in which he did - at least absent positive evidence that the appellant had personally been given specific notice of the time and date of the hearing and had voluntarily and deliberately elected not to attend. Reference was made, for example, to the legal concepts emerging from authorities such as R v Hallocoglu (1992) 29 NSWLR 67 at 71-3, R v Bow Street Court; ex parte Germany [1998] QB 556 at 562 and Shocked v Goldschmidt [1998] 1 All ER 372 at 381.
37 However, in view of the conclusion to which I have come as to the events of 22 December 1997, I find it unnecessary to grapple with these and some other issues which were debated concerning the provisions of the Criminal Law (Sentencing) Act. They are best left to another day.
38 It seems to me that this appeal necessarily falls to be disposed of in relation to that ground which complains of the refusal of the learned Judge to grant an adjournment to enable the appellant to brief counsel to make detailed submissions prior to the delivery of judgment.
39 As to this, these factors are of prime importance:-
.        the learned Judge was aware, on 17 December, that Mr Sprod was experiencing difficulty in obtaining instructions from his client.

.        having elected to proceed ex parte, the learned Judge necessarily found himself in a partial information vacuum.  It is not being critical of the learned magistrate to say that his sentencing remarks contained little more than his core conclusions, in light of detailed information placed before him on behalf of the appellant.  There was no transcript of those submissions.  In accordance with well settled practice, affidavits of the prosecutors, setting out certain basic factual material, were before the Court, as were the sentencing remarks.  The usual affidavit on behalf of the present appellant, setting out full details of mitigating circumstances and what had been put to the learned magistrate, was simply not available.  This rendered an assessment of the validity of some of the conclusions arrived at by the learned magistrate more than a little hazardous.

.        it was the learned Judge himself who caused notice of the date and time fixed for final disposal of the appeal to be given to the appellant, in circumstances which, to say the least, must have engendered in the mind of the latter a reasonable expectation that he would have an opportunity of putting some submissions prior to a final decision being made and announced.

.        when the matter was called on on 22 December it was made very clear to the learned Judge that the appellant had, in fact, been ignorant of the precise date and time fixed for the hearing of the appeal (probably due to a deliberate refusal or neglect of his mother to forward his mail on to him);  that, on becoming aware of what had transpired, the appellant had promptly instructed Mr Sprod to seek counsel to represent him;  and that it was genuinely desired to place important information and submissions before the Court in relation to a situation of double jeopardy of imprisonment.

40 It is my opinion that, faced with such a situation, it was the clear duty of the learned Judge to refrain from proceeding to a judgment until such time as the appellant had been afforded a reasonable opportunity of briefing and instructing counsel.
41 There can be no doubt that, on the authorities, an appellate court will always be reluctant to interfere with the exercise of a judicial discretion to refuse an adjournment, especially in circumstances in which case flow management considerations are salient. (Sali v SPC Ltd and Anor (1993) 116 ALR 625.) However, it will not hesitate to do so where it is apparent that significant injustice has resulted from the refusal. (See Kirby P, albeit in dissent, in Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252.)
42 In matters touching the liberty of the subject the touchstone as to whether intervention is warranted will always be a consideration of whether the refusal of an adjournment has occasioned such a serious risk of miscarriage of justice that such intervention is necessary (Cucu v District Court of New South Wales (1994) 73 A Crim R 240 at 246).
43 I consider that, with all due respect to the learned judge, his exercise of discretion miscarried in this case.  It must never be forgotten that the prosecution appeal placed the appellant in double jeopardy of having to serve a substantial custodial sentence.  However irritating and frustrating the history of the matter may have been, the plain fact of the matter was that, quite apart from the important factor that his mother’s ill will obviously precipitated the appellant’s ignorance of Mr Sprod’s attempts to communicate with him, what was in contemplation was a bona fide initiative to place important information and submissions before the learned Judge.  These were designed to displace the lacuna with which he had necessarily been confronted and to enable him to give a truly balanced consideration to the issues arising on the appeal.
44 What was put to the learned Judge by Mr Sprod in justification of the application was not, on the face of it, apparently specious.  Indeed, it had a ring of apparent candour and truth about it.  It is my view that a denial of the adjournment carried with it a very real risk of a miscarriage of justice, bearing in mind the heavy onus which attaches to the appellant on a prosecution appeal.
45 The Solicitor-General sought to meet any such conclusion with a submission that it was not enough that the refusal to grant an adjournment had been shown to be erroneous - it must also be demonstrated by the appellant that, if an adjournment had been granted, the result would have been different (McInnis v R (1979) 143 CLR 575). I took him to assert that the reasons expressed by the learned Judge convincingly demonstrated that the proper outcome of the appeal would have been no different, even if he had before him the considerable additional material which has now been placed before this Court.
46 There can be no doubt that, having regard to all relevant material presently before this Court and viewing the situation of the appellant on the most favourable basis, the prosecution appeal was founded on a very substantial base. There is much to be said in support of the core reasoning of the learned Judge. However, I am unable to accept that, on any view, had the adjournment been granted and full information and submissions been received on behalf of the appellant, the outcome would, necessarily, have been a foregone conclusion. There are some considerations related to the recent history of the appellant that attract a need for serious thought, although he certainly does face formidable hurdles by virtue of the relevant provisions of the Criminal Law (Sentencing) Act. (See, for example, R v Buckman (supra).)
47 I think that, in the circumstances, this Court is bound to intervene.  I would allow this appeal, set aside the orders appealed against and remit the proceedings for re-hearing before another Judge.
DOYLE CJ

48 In my opinion the appeal should be allowed.  I agree with the orders proposed by Olsson J.  I agree with his reasons for allowing the appeal.
49 I would add just this.  The absence of counsel for Mr Summers at the hearing of the appeal meant that the judge was forced to decide the appeal without much of the information that was before the magistrate whose decision was under appeal.  There was every reason to think that if an adjournment were granted, that information would be made available to the judge.  The judge was proposing to differ from the view taken by the magistrate, and to impose a significant term of imprisonment.  The grounds upon which the adjournment was sought were plausible.  Mr Summers had made the efficient disposition of his appeal difficult, but in the particular circumstances of the case I consider that justice required that the application for an adjournment be granted.
50 It is not necessary to comment upon any of the other grounds of appeal, as this suffices to dispose of the case.
PRIOR J

51 I agree with the orders proposed by Olsson J.  In the circumstances of this case, the appellant should have been given an opportunity to make submissions with, at least, a short adjournment granted for that purpose.  Like the Chief Justice, I decline to comment on the other grounds of appeal.