Tokona v Police - [2011] SASC 22

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TOKONA v POLICE
[2011] SASC 22
Judgment of The Honourable Justice Gray
23 February 2011
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - DURATION
Appeal against sentence - defendant sentenced by Magistrate on two counts of breach of bail and one of resist police to a term of imprisonment of 65 days - previously imposed suspended sentences revoked, and ordered to be served cumulatively upon one another - Magistrate refused to exercise discretion to suspend term of imprisonment of 65 days, which was ordered to be served cumulatively on the revoked suspended sentences - whether sentence imposed manifestly excessive.
Held: appeal allowed - Magistrate failed to have proper regard to relevant factors put in mitigation of sentence - sentence imposed with respect to the breach of bail and resist police offending was manifestly excessive, particularly in view of the observations of this Court in previous decisions in respect of bail offences - proportionality required the revoked suspended sentences to be served concurrently - defendant resentenced.
Bail Act 1985 (SA) s 17(1); Summary Offences Act 1953 (SA) s 6(2); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
McCallum v Police [2010] SASC 19; McCallum v Police [2010] SASC 19; Craiu v Police (1998) 71 SASR 454; Letham v Police [2009] SASC 321; Simmonds v Police [2008] SASC 193, considered.

TOKONA v POLICE
[2011] SASC 22
Magistrates Appeal
GRAY J:
Introduction

This is an appeal against sentences of immediate imprisonment imposed by a Magistrate with respect to two offences of non-compliance with a bail agreement[1] and the offence of resist police.[2] The decision of the Magistrate to revoke two suspended sentences of imprisonment is also the subject of appeal.
[1] Contrary to section 17(1) of the Bail Act 1985 (SA). The maximum penalty for this offence is imprisonment for two years or a fine of $10,000.
[2] Contrary to section 6(2) of the Summary Offences Act 1953 (SA). The maximum penalty for this offence is imprisonment for six months or a fine of $2,500.
On 21 December 2010, I allowed the appeal. I set aside the terms of imprisonment of 65 days imposed by the Magistrate and in lieu thereof imposed a term of imprisonment of eight days. I ordered that the revoked suspended sentences be served concurrently, not cumulatively as ordered by the Magistrate. My reasons for making those orders follow.
Background
On 29 October 2008, the defendant and appellant, Allan Junior Tokona, was sentenced in the Mount Gambier Magistrates Court to 28 days imprisonment for driving while unauthorised, which term was suspended upon his entering into a bond to be of good behaviour for a period of two years.
On 21 January 2009, having been convicted of further traffic offences and sentenced to three months imprisonment suspended upon his entering into a bond, the defendant entered into a second bond to be of good behaviour for a period of 3 years. The first suspended sentence was not revoked on this occasion.
The defendant is currently facing a charge of arson in the District Court for which he has been granted bail. He was originally charged with further offences of assault and serious criminal trespass in addition to the arson charge, and was granted bail in the Magistrates Court in relation to all of these charges on 24 February 2010 pending committal for trial. However, all but the arson charge have since been withdrawn. It is the breach of the conditions of that bail agreement which form part of the subject matter of this appeal; namely, the conditions that he be under the supervision of a community corrections officer, and that he not contact LP, the mother of his two children, directly or indirectly.
The defendant was charged with having breached the conditions of his bail agreement by having contacted LP between the dates of 4 March and 13 March 2010. The conduct which gave rise to the breach was the sending of a series of thirteen text messages to LP. He was also charged with having breached the conditions of his bail agreement by failing to have any contact with Community Corrections following his release on bail on 24 February 2010.
On 1 April 2010, the defendant was arrested by police on information that he had breached his bail agreement. On this occasion, the defendant ran away from the police vehicle in which he had been placed. He was apprehended soon afterwards. It was this conduct which gave rise to the resist police charge. The defendant’s bail was subsequently revoked on 28 July 2010 and he was remanded in custody.
On 20 September 2010, the defendant pleaded guilty in the Mount Gambier Magistrates Court to both counts of non-compliance with a bail condition and one count of resist police. He also admitted to having breached the terms of the two suspended sentence bonds by the commission of those offences.
Also on 20 September 2010, following submissions on penalty, the Magistrate imposed, purportedly pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA), one sentence of 65 days imprisonment, comprised of 50 days in relation to the two counts of breach of bail agreement, and 15 days in relation to the count of resist police. In his sentencing remarks, the Magistrate indicated that this sentence took into account the defendant’s early guilty plea, and the time that the defendant had spent in custody.
The Magistrate declined to suspend the sentence of 65 days imprisonment, observing that the defendant appeared before the Court having breached the two previously suspended sentence bonds. The Magistrate stated in his remarks:
I do not think the factors that have been raised before me amount to good reasons to suspend the period of imprisonment. These offences were, as I say, characteristic of your general attitude, namely a wilful defiance of authority, particularly the breaches of bail and also the resist police. There is a common thread through these offences and that common thread has resonance in your previous offending for which you received suspended sentences of imprisonment. The fact that you were on an obligation to be of good behaviour, as I say, also militates against me considering good reasons exist and I decline to suspend the period of imprisonment that I have just imposed.
In giving his reasons, the Magistrate considered that each of the offences of non-compliance with bail conditions were “fundamental” breaches, and noted that his contact with LP, the alleged victim of the principal offending, was “particularly serious”.
In relation to the breach of bail agreement concerning the sending of text messages, the Magistrate observed:
…You were on bail for an assault against a victim who was your partner. You were released on bail on the condition that you not communicate with her either directly or indirectly, and you communicated with her directly on not less than 13 occasions using SMS messages. I accept that those messages were not threatening or intimidatory but they were communications nonetheless. I accept they were to and concerning the child of the relationship between you and the victim. They were however deliberate and wilful breaches of the bail agreement entered into by you.
The Magistrate then made the following observations regarding the second count of breach of bail:
You were also released on that same bail agreement with a condition that you be supervised by an officer from the Department of Correctional Services. That fact gives rise to the second count of breaching the bail agreement. The second breach is a separate and quite distinct matter. The long and short of it is you simply did not report for any kind of supervision as directed. ... [T]he fact of the matter is it was your obligation to report and you chose not to.
It may be clearly seen from his reasons that the Magistrate took into account matters of both personal and general deterrence in arriving at the sentence imposed for the two counts of breach of bail agreement. He stated:
…There is a need for courts to impose a penalty that will reinforce and give efficacy to the underlying purposes for such conditions and also to deter others who might be minded to approach alleged victims whilst on bail conditions not to do so.
...
I do think a period of imprisonment is warranted for the offences of failing to comply with bail agreement. They are warranted on their own facts. This was plain and simply wilful defiance of the conditions imposed and accepted by you.
Following this conclusion, the Magistrate went on to consider the offence of resist police, and stated that this too “was a serious offence of its kind”. The Magistrate summarised his view of that offence in the following manner:
…I accept that the offence of resisting of police comes in various forms of behaviours from momentary struggles to merely brief offensive language and other little behavioural performances of one kind or another in between that make the task of the police substantially more difficult to perform. This was a substantial offence of resisting. I remind myself that you are not charged with the offence of escape custody, but having been arrested and placed in a police vehicle you further resisted the police then had jumped out of the vehicle and ran away effectively as I say to escape police custody. [...] I do not consider that conduct a minor resist the police in the execution of their duty which duty was namely arresting you.
Having announced the sentences to be imposed for the breaches of bail and resist police, the Magistrate then addressed the applications to revoke the two suspended sentences of imprisonment. He was not satisfied that any proper grounds existed in the present case upon which he might exercise his discretion to excuse the breaches, and stated that he did not consider a lack of proportionality to be applicable in the circumstances. In considering whether the breach should be excused by reason of the different nature of the present offending to that which was the subject of the suspended sentences, the Magistrate stated that:
…It has been suggested to me that the current offending is of a different kind to the previous offending. I accept that this is so in one limited sense but, as I say, there is a common thread between them of wilful defiance of authority. I do not see that they are necessarily so far apart in terms of the underlying demeanour that is demonstrated by all of them. …
It was on this basis that the Magistrate revoked the suspension of the period of imprisonment imposed for each of the defendant’s previous convictions in 2008 and 2009, and ordered that the terms of imprisonment of 28 days and 3 months respectively imposed, be served cumulatively upon each other, and also cumulative upon the 65 days imprisonment imposed for the breaches of bail and resist police. This accumulated to a total head sentence of three months and 93 days - a period of about six months. The sentence was backdated to commence on 28 July 2010, being the date upon which the defendant’s bail was revoked and he was remanded in custody.
It is relevant to record at this point that the defendant remained in custody from 28 July until 5 November 2010 when he was granted bail on both the present matter pending appeal, and also on the matter currently before the District Court. Consequently, the defendant has spent a total of 3 months and 8 days, a period of 100 days, in custody in relation to the offences the subject of this appeal.
The Appeal
Submissions of Counsel
On appeal, the defendant contended that the penalty imposed by the Magistrate was manifestly excessive. To this point it was submitted that the Magistrate did not have proper regard to certain mitigating factors put to him by counsel for the defendant in relation to both the breaches of bail and also the resist police offence. Regarding the breaches of bail, the factors identified included the role of LP in the breach of bail agreement; that is, that she had actively communicated with the defendant, and the fact that the text messages which breached a condition of the bail agreement concerned the children of the defendant and LP. The key factor which counsel for the defendant asserted in relation to the charge of resist police was that the Magistrate had failed to consider the provocation of the defendant by LP on the defendant’s arrest on 1 April 2010, which, it was submitted, led to concern for his children and consequently his attempt to escape police custody. It was further said that the immediate apology of the defendant once apprehended, in addition to his lack of prior convictions of a similar nature, were not adequately taken into consideration, and overall, that the Magistrate erred by categorising the defendant’s conduct as being a serious example of resist police. Finally, the personal circumstances of the defendant were said to have been given too little consideration, such as his good employment prospects, his two young children who were in his care prior to his arrest, and the fact that the time he spent in prison awaiting the resolution of the matter was the first period of imprisonment served by the defendant.
It was further submitted that the Magistrate made an error in principle in his application of section 18A of the Sentencing Act, in that he did not consider the two breaches of bail and the resist police offence prior to imposing the one sentence for all three offences. They were in fact separate and distinct instances of offending. While it was accepted by counsel in argument that this, on its own, would not be sufficient grounds to have the sentence set aside, it was contended that it was a relevant factor in deciding whether or not the sentence was appropriate in all the circumstances.
In relation to the decision of the Magistrate to revoke the suspension of the two previous sentences, counsel submitted that neither proper nor adequate regard was had to the submission that the breaching offences were of a different nature to the offences for which the defendant had received a suspended sentence, nor to the submission that the revocation of both suspended sentences, and the order that they be served cumulatively upon each other, had the effect of imposing a penalty which, on the authorities, was wholly disproportionate to the breaching offences. Further, it was submitted that the Magistrate erred by characterising the offences as being of a similar nature due to their “common thread” of “wilful defiance of authority”. It was submitted by counsel that this “common thread” simply could not be found to exist, since nearly all offending, regardless of its nature, may to some extent be characterised as defiant of authority.
Counsel for the police contended that while the sentence imposed by the Magistrate was clearly at the higher end of the scale, it was nonetheless one which falls within the Magistrate’s discretion. Counsel rejected the defendant’s assertion that the Magistrate had made an error in principle in the sentencing process, however, conceded that it would not be an error for this court to exercise its discretion on appeal to re-sentence the appellant, placing greater weight on the time which the defendant has already spent in custody.
Counsel for the police rejected the submission made by the defendant that the Magistrate ought to have given greater weight to the content of the text messages and the circumstances in which they were sent. It was said that the understanding of the police was that the text messages were not entirely innocuous in content, and furthermore, could be characterised as being serious breaches given that the person to whom the messages were sent was the alleged victim of the principal offending which arose in a context of domestic violence. Counsel contended that personal and general deterrence were matters of paramountcy in this case, and that the Magistrate was entitled to find, and did not err in doing so, that the matters raised by counsel for the defendant did not amount to good reasons to suspend the period of imprisonment imposed, nor were there proper grounds upon which to excuse the breach of the two bonds.
Counsel for the police concluded by reiterating the view that this Court would not be in error if it were to exercise its discretion to re-sentence in the circumstances.
Consideration of the Appeal
As extracted above, the Magistrate’s reasons do not appear to address some of the factors raised by counsel for the defendant in mitigation of sentence. A person, unapprised of the facts of the case, who read the Magistrate’s reasons would likely gain the impression that the breach of bail involving the text messages sent to LP consisted of 13 incidences of unilateral contact, and that the defendant’s resisting of police was simply an attempt to escape custody for no reason other than his own self-interest. This, of course, overlooks the surrounding circumstances, namely that LP actively responded when the defendant was communicating with her about their children, and that the defendant’s attempt to escape custody was prompted by concern for the welfare of his children. It would seem, by reason of their absence from the Magistrate’s reasons and the length of sentence ultimately arrived at, that these factors were not adequately taken into consideration.
As mentioned previously, the Magistrate sentenced the defendant by imposing a sentence of imprisonment of 50 days in respect of the two breaches of bail, and a further 15 days imprisonment for resist police. These two periods were reduced from two months and 21 days respectively on account of the defendant’s guilty pleas. The Magistrate then purported to combine these into a single sentence of 65 days imprisonment pursuant to section 18A of the Sentencing Act. I consider this approach to be incorrect. It appears that the Magistrate treated the two breaches of bail together, separate to the resist police, and then imposed a section 18A penalty to cover what the Magistrate appeared to have considered the two elements of the offending. The Magistrate ought to have treated the two breaches of bail separately, and imposed one sentence under section 18A for all three offences.
Furthermore, although it was open to the Magistrate to exercise his discretion to revoke the suspension of the defendant’s two previous sentences of imprisonment, in my opinion, it was an error for the Magistrate to order that the sentences of three months and 28 days imprisonment respectively, be served cumulative upon each other and cumulative upon the sentence of imprisonment which was imposed for the breaching offences. In considering whether special circumstances exist which may justify reducing the term of the suspended sentence, the Court must consider whether, in the whole of the circumstances, the effect of an order to revoke a suspended sentence will inflict a disproportionate punishment on the defendant.[3] Further, another way to address proportionality is to consider whether revoked suspended sentences be served concurrently rather than cumulatively.
[3] Craiu v Police (1998) 71 SASR 454.
Ultimately, as earlier mentioned, the defendant was ordered to serve a period of about six months’ imprisonment. I am of the opinion that, having regard the circumstances, to cause the defendant to serve such a lengthy term of imprisonment is a wholly disproportionate response to the offending conduct of the defendant.
Reconsideration

In my view it was open, as a matter of discretion in the Magistrate, to impose a short term of imprisonment for the offences of breaches of bail and resist police. However, the overall penalty of 65 days imprisonment imposed for that offending was manifestly excessive. The 50 days imprisonment imposed for breaches of bail was not only manifestly excessive but failed to have regard to the recent observations, in particular, of the Chief Justice, concerning the proper approach to be taken to breaches of bail. Those observations were adopted and applied in a judgment that I delivered in the matter of McCallum,[4] being an appeal from the Mt Gambier Magistrates Court in February of 2010, some seven months before the Magistrate sentenced this defendant. I express my concern that effect was not given to the observations of the Chief Justice in Trotter[5] and Letham.[6] I will take this opportunity to repeat certain of these observations in the hope that it will encourage their adoption in the future.
[4]    McCallum v Police [2010] SASC 19.
[5]    Trotter v Police (1997) 68 SASR 363.
[6]    Letham v Police [2009] SASC 321.
The Chief Justice has made the observation that while it is an important role of the courts in sentencing to ensure that bail conditions are taken seriously by defendants in terms of both personal and general deterrence from breaching such conditions, this consideration should be balanced against mitigating factors presented to the court on behalf of a defendant.[7] Factors which Chief Justice Doyle has identified as being relevant, and indeed significant, in determining the appropriate sentence for breach of bail include time spent in custody in relation to the matter;[8] whether the overall effect of combined sentences for multiple breaches would be excessive, irrespective of the appropriateness of the individual sentences;[9] and, whether there is some reasonable explanation for the breach, which, although not an excuse, goes towards mitigating the penalty which would be appropriate in the circumstances.[10]
[7]    See generally Trotter v Police (1997) 68 SASR 363; Letham v Police [2009] SASC 321; Simmonds v Police [2008] SASC 193.
[8]    In Trotter v Police (1997) 68 SASR 363 Doyle CJ considered (at 365) that a period of 22 days in custody was a significant period of time which should be given considerable weight.
[9]    Letham v Police [2009] SASC 321 at [27].
[10] Simmonds v Police [2008] SASC 193 at [29].
As I observed in the decision of McCallum,[11] the Magistrate there failed to take into account certain relevant considerations, and imposed a sentence which was well beyond the appropriate range of sentences to be imposed for breaches of bail as may be inferred from the guidance given by the Chief Justice on this subject. The within proceeding can be categorised in the same way.
[11] McCallum v Police [2010] SASC 19 at [32].
It is clear that the sentence imposed by the Magistrate for the two breaches of bail in the present proceeding, namely a term of imprisonment of 50 days, was, in all the circumstances, manifestly excessive and should not stand. The active participation of LP in the breaching conduct is a relevant factor, so too is the fact that the breaching conduct was, at least in part, motivated by the defendant’s concern for his children. Further, the circumstances of the resist police offence are not trivial, but the fact of provocation by LP on the defendant’s arrest was, although nothing like an excuse, a relevant factor in favour of the defendant. The defendant’s personal circumstances, in particular his role as carer for his two young children prior to him being remanded in custody in July 2010, and the fact that at the time of sentencing the defendant had served nearly two months in custody, the first occasion that the defendant had served time in prison, are relevant factors which ought to be given appropriate weight.
For the reasons given above, a reconsideration of the appropriate penalty to be imposed is called for.
Resentencing
The defendant is currently aged 26, and resides at Bordertown with his parents and his two daughters. It seems apparent that his family continue to support him throughout these proceedings, as evidenced by their agreement to act as guarantors for his most recent release on bail and his mother’s presence in Court. I am told that he has good prospects for employment in the meatworks at Bordertown, having been employed there previously for some time.
The time spent in custody between 28 July and 5 November 2010 was the first time that the defendant had been to prison, and this, in addition to the length of time spent in prison, is a significant factor to be taken into account in sentencing the defendant.
In all the circumstances, I have reached the conclusion that the term of imprisonment of 65 days imposed by the Magistrate in respect of the three offences should be set aside. In lieu thereof, I would impose, pursuant to section 18A of the Sentencing Act, a term of imprisonment of eight days.
As indicated previously, the Magistrate’s decision to revoke the suspended sentences was within his discretion. However, in my view, it was quite inappropriate, having regard to the breaching conduct, to direct that the two suspended sentences be served cumulatively. I would direct that they be served concurrently; that is, a total of three months are to be spent in custody in respect of the two revoked suspended sentences. To that is to be added eight days, making a total in all of 100 days. That is the time the defendant spent in custody from 28 July to 5 November 2010. The appellant has in fact already served the terms of imprisonment imposed in respect of the offences of breach of bail and resist police as well as the revoked suspended sentences.
It is necessary to clearly record that the time spent in custody from 28 July until 5 November 2010 has been brought to account fully in regard to the offending the subject of the Magistrates Court proceeding.
Conclusion
The appeal is allowed.
The defendant is resentenced to a term of imprisonment of eight days with respect to the two offences of breaching bail and the offence of resist police. The two suspended sentences revoked by the Magistrate are to be served concurrently. The sentence of eight days is to be cumulative on the revoked suspended sentences. In the result, the defendant has served the total sentence at the time of his release on bail on 5 November 2010.