Thomas Lance Allen v SA Police No. SCGRG 96/1530 Judgment No. 5746 Number of Pages 6 Criminal Law

[1996] SASC 5746

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA PERRY J

CWDS
Criminal law - sentencing - breach of community service order - the appellant, a 54 year old man placed under a community service order which came into effect after his release from a short sentence of imprisonment, failed to perform any of the required service, notwithstanding some contact with the regional Correctional Service Centre - the order provided for 320 hours of community work to be performed within twelve months, which was extended by six months administratively, when he sought an extension - held that the sentencing Magistrate did not err when he imposed a 40 day term of imprisonment for failure to comply with the order - observations as to the need to send a message to the community that community service orders must be complied with, and if not, some other penalty is likely to be imposed. Criminal Law (Sentencing) Act 1988s71, referred to.

HRNG ADELAIDE, 7 August 1996 #DATE 7:8:1996 #ADD 17:9:1996

Counsel for appellant:     Mr W Boucaut

Solicitors for appellant:    Voumard Bell

Counsel for respondent:     Mr A Shackley

Solicitors for respondent: Crown Solicitor (SA)

ORDER
Appeal dismissed.

JUDGE1 PERRY J (ex tempore) The appellant appeals against an order made by a magistrate sitting in the Magistrates Court at Clare, that he serve a term of 40 days imprisonment by way of a penalty for failure to perform a community service order.

2. The community service order was imposed on 8 February 1993, upon the conviction of the appellant on a charge of driving a motor vehicle with the prescribed concentration of alcohol in his blood. The terms of the community service order were that he perform 320 hours of community service work within 12 months.

3. At the same time, the appellant was sentenced to 14 weeks imprisonment for an offence of driving whilst disqualified. As well, he was ordered to suffer a further disqualification of his driving licence for a period of eight years.

4. In his notice of appeal, the appellant complains:
    "1. That the learned special magistrate erred in finding
    that there were not proper grounds on which the defendant's
    failure to perform the community service order should be
excused (see s71(7) of the Criminal Law (Sentencing) Act
    1988).

2. That the learned special magistrate erred in placing
    weight upon his opinion that in his experience there was a
    significant public perception that community service orders
    were not strictly enforced.

3. That the learned special magistrate erred in finding that
    community service orders were only useful if strictly
    enforced."

5. I have been assisted by an affidavit sworn by Mr John Voumard, who appeared as counsel for the appellant in the court below. In the affidavit, he summarises the submissions which he put to the learned sentencing magistrate which were supported by evidence called on the appellant's behalf.

6. In summary, those submissions were to the effect that the appellant was aged 54 years, living alone in a caravan situated in a vineyard owned by Jim Barry Wines situated at Clare.

7. It was put that his employment in pruning grape vines and supervision of pruning teams was a 7 day a week job. It was also submitted that he was burdened by the responsibility of looking after thoroughbred racing horses owned by the principal of the family business. He had been a chronic alcoholic, but subsequent to his release from the term of imprisonment, with assistance from Alcoholics Anonymous, he had conquered that problem.

8. In fact, as I understand it, he was released from the term of imprisonment imposed upon him on 4 May 1993. In an affidavit put before the learned sentencing magistrate by an officer of the Department of Correctional Services, there was no indication of any contact by the appellant with the department with respect to his obligation to perform the community service work before April 1994. However, Mr Boucaut, who appeared before me on behalf of the appellant, was allowed, without objection from counsel for the respondent, to indicate some further detail from the records of the department.

9. It appears from those records, that on about the day of his release the appellant "signed on", which I assume means he made contact with the department with respect to his obligations under the community service order. He was, so it is noted, then given three months "employment leave".

10. That was a shorthand method of recording that pursuant to s47(h), there was a discretion to exempt the appellant, or more accurately, not to require him to perform the community service at a time when it would interfere with his remunerated employment.

11. The next note is that on 28 May 1993, the appellant phoned through to the department to say that he had work for a further 4 to 6 weeks.

12. On 16 September 1993, he was given a letter to contact the department, apparently without response. Then on about 20 April 1994, he applied for an extension of the time within which the work was to be performed. He was granted an extension for some 6 months.

13. The appellant then failed again to follow the matter up. On 31 August 1994, he was sent a letter to contact an officer of the Elizabeth Community Correctional Service Centre on 5 September 1994 to discuss the community service. He failed to respond to that letter. On 19 October 1994, the time within which to complete the work, allowing for the extension which had been granted, expired.

14. The application was then taken out in November 1994 for the order which is the order now under appeal.

15. Pursuant to s71 of the Criminal Law (Sentencing) Act 1988, there is no discretion as to the term of imprisonment to be served in default of compliance with a community service order. It must be a term calculated on the basis of one day for each eight hours of community service remaining to be performed or six months, whichever is the lesser (see s.1(2)). Furthermore if the court is satisfied that the person has failed to comply with the order, a warrant of commitment for the appropriate term of imprisonment should issue (see subs(5)).

16. However, pursuant to s71(7), if the court is satisfied: "... that the failure of a person to comply with an order requiring performance of community service was trivial or that there are proper grounds on which the failure should be excused," the penalties which the person otherwise might suffer may be ameliorated in various ways. The court may refrain from issuing a warrant of commitment and may extend the term of the order for a term not exceeding six months; or if the order has expired, impose a further order for a term not exceeding six months; and may cancel the whole or a number of the unperformed hours of community service.

17. There is no suggestion that the failure by the appellant to comply with the order as extended could possibly be characterised as trivial. This was apparently conceded before the learned sentencing magistrate and by Mr Boucaut on the hearing of the appeal. It was therefore incumbent upon the learned special magistrate to determine whether or not within the meaning of s71(7) there were "proper grounds on which the failure should be excused".

18. It was emphasised before the learned special magistrate, and repeated before me, that the appellant should be given credit for his rehabilitation in emerging from a state of chronic alcoholism and that his rehabilitation in that sense should be regarded as proper grounds on which his failure to comply should have been excused.

19. As Mr Boucaut put it on the hearing of the appeal, if the appellant had simply gone on in the same old way after his release from gaol and had returned to his old habits with respect to his drinking, it might have been different. But it was strongly urged on his behalf that given that he had rehabilitated himself and obtained employment, no good purpose would be served now by obliging him to serve a custodial term. It was further submitted by Mr Boucaut that had he been in employment at the time when the community service order was imposed, it is unlikely that the order would have been imposed, but it would have been more likely, having regard to the usual penalties applied to this offence, that he would have instead been directed to pay a fine.

20. However, the outstanding feature of this case is that the appellant has not performed one minute of the community service which he was ordered to perform. It is patently clear from the course of events following his release from gaol in May 1993, that despite the little contact which the appellant made with the department, he appears deliberately to have chosen to ignore the order. Indeed, it appears to me that there is every indication he simply hoped that it would go away.

21. He cannot have it both ways. If he had rehabilitated himself and shaken free of chronic alcoholism and structured his life well enough to maintain employment, clearly, he was in a position to go one step further and arrange to do the community service which he had been ordered to perform.

22. There is nothing to suggest that for the whole of the period in question the demands of his employment were such as to preclude any attempt on his part to work off the order. The pruning work which has been referred to by him is very much a seasonal matter, which does not extend outside the months of May and June and perhaps into August.

23. Putting it shortly, if the appellant was capable of undertaking employment, as was submitted by Mr Shackley for the respondent, he was capable of undertaking community service as required by the order. Furthermore, it is clear that the appellant took up work at a time when he was well aware that the community service order was current.

24. While I feel a degree of sympathy for the appellant, I am unable to perceive in the circumstances of the case, notwithstanding the very helpful argument advanced by Mr Boucaut, that there is any factor which could be regarded as amounting to a proper ground within the meaning of s71(7) to excuse his failure.

25. The learned sentencing magistrate was criticised for the appellant for having observed, as he did during the course of his sentencing remarks: "Community service orders are only a useful sentencing measure if they are strictly enforced and unless they are, not only does the measure lose its efficacy, but the justice system becomes regarded cynically and with derision by the community."

26. He went on to say that there was a public perception at the time that community service orders are not strictly enforced. He concluded his remarks by observing that: `It would make a mockery of the sentencing system to do anything other than enforce the sentence.'

27. In my opinion those expressions, although trenchantly couched, are not indicative of a failure to adopt a proper approach to the task at hand. The plain fact of the matter is that there is a deterrent aspect in sentencing for this offence which should not be overlooked. Clearly there is a need to send a message to the community that community service orders must be complied with, and if they are not, some other penalty is likely to be imposed.

28. Upon the appellant's release from the prison term which he was ordered to serve, his first priority should have been to arrange to perform the community service and discharge the obligation cast on him with respect to the order. Instead he treated the order with impunity. I am quite unable to find that the learned Special Magistrate erred in failing to be satisfied that there were proper grounds on which the appellant's failure should be excused.

29. The appeal must be dismissed.

30. There will be no order for costs.