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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] SASC 22
Decision Date: 23 February 2011

CaseChat Overview and Summary

In the case of Tokona v Police, the appellant, Allan Junior Tokona, was sentenced by a Magistrate to a term of imprisonment of 65 days on two counts of breach of bail and one of resist police. The appeal against this sentence was allowed as the Magistrate failed to consider all relevant mitigating factors in determining the sentence. The sentence imposed was deemed to be manifestly excessive, particularly in light of previous observations made by the court regarding bail offences.

The legal issues that arose in this case were whether the sentence imposed was manifestly excessive and whether the Magistrate had failed to have proper regard to relevant factors put in mitigation of sentence. The court held that the sentence imposed was indeed manifestly excessive and the Magistrate had failed to consider all relevant mitigating factors. The proportionality principle required the revoked suspended sentences to be served concurrently, not cumulatively. The court resentenced the defendant to a term of imprisonment of eight days.

The court found that the Magistrate had not taken into account all relevant considerations, and had imposed a sentence which was well beyond the appropriate range of sentences to be imposed for breaches of bail. The court was concerned that effect was not given to the observations of the Chief Justice in previous cases regarding the proper approach to be taken to breaches of bail. The court resentenced the defendant 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 were to be served concurrently. The sentence of eight days was to be cumulative on the revoked suspended sentences.

The final orders of the court were that the appeal was allowed, the defendant was resentenced to a term of imprisonment of eight days, the two suspended sentences revoked by the Magistrate were to be served concurrently, and the sentence of eight days was to be cumulative on the revoked suspended sentences.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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].