VIRGIN v Police - [2018] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VIRGIN v POLICE
[2018] SASC 194
Judgment of The Honourable Justice Doyle
20 December 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY SERVICE ORDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty to two offences: behaving in a disorderly manner in a public place; and damaging property.
The appellant’s counsel informed the sentencing Magistrate that the appellant had made arrangements to compensate the victim for the damage, and requested that the Magistrate not record a conviction. The Magistrate indicated a preparedness to proceed without recording a conviction, but on the basis that the appellant enter into a good behaviour bond, for a term of 18 months, with a condition that he perform 150 hours of community service within the first 12 months of that bond. The appellant entered into the bond in these terms.
During the hearing of the appeal, further evidence about the appellant’s employment and financial circumstances was adduced by the appellant. This evidence established that the community service condition imposed on the appellant would impact significantly upon his employment.
The appellant appeals against his sentence, contending the Magistrate erred in failing to identify the discount applied to the appellant’s sentence for his pleas of guilty, in failing to afford the appellant procedural fairness in imposing a bond with a community service condition, in failing to give adequate weight to the appellant’s employment in imposing that bond, or in otherwise imposing a sentence that was manifestly excessive having regard to the community service condition of the bond.
Held per Doyle J (allowing the appeal):
1. A good behaviour bond, and its terms or conditions, do not fall within the meaning of “sentence” as it appears in s 39(2)(a) of the Sentencing Act 2017 (SA). As such, there was no occasion or need for the Magistrate to exercise any discretion to reduce any term or condition of the bond by “up to 40%” under that subsection on account of the appellant’s guilty pleas.
2.       The Magistrate was required to afford the appellant procedural fairness in respect of the imposition of a bond with a condition of community service. But a failure to afford procedural fairness has not been made out in the circumstances. The Magistrate did not overlook the significance of the appellant’s full-time employment.
3.       Given the fresh evidence about the appellant’s employment and financial circumstances that was adduced at the hearing of the appeal, and the concession that it was in the interests of justice that the Court receive that evidence, it is appropriate that the sentence be set aside.
4.       Appeal allowed. The bond imposed by the Magistrate is set aside, the appellant is invited to enter into a fresh bond with a reduced number of hours of community service.
Sentencing Act 2017 (SA) ss 5, 39, 105(1); Magistrates Court Act 1991 (SA) ss 3, 42, referred to.
Morley v Police [2005] SASC 233; R v Szpajchler (1982) 31 SASR 236; Popowycz v Police [2016] SASC 126; Cutting v Police [2009] SASC 326; Hebberman v Police [2010] SASC 98; Cocchiaro v Police (2015) 123 SASR 263; House v The King (1936) 55 CLR 499, considered.

VIRGIN v POLICE
[2018] SASC 194
Magistrates Appeal: Criminal

DOYLE J: The appellant pleaded guilty to two offences. The first was behaving in a disorderly manner in a public place, namely the Alma Hotel.[1] The second was damaging property of another, namely a sign which was the property of the Alma Hotel, being recklessly indifferent as to whether that property was damaged.[2]
[1] Contrary to s 7(1) of the Summary Offences Act 1953 (SA) (with a maximum penalty of $1,250 or imprisonment for three months).
[2] Contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA) (with a maximum penalty of imprisonment for 10 years).
The appellant’s counsel informed the sentencing Magistrate that the appellant had made arrangements to compensate the Alma Hotel for the damage to its sign (which had been agreed in the amount of $638), and requested that the Magistrate not record a conviction. The Magistrate indicated a preparedness to proceed without recording a conviction, but on the basis that the appellant enter into a good behaviour bond in the amount of $200, for a term of 18 months, and with a condition that the appellant perform 150 hours of community service within the first 12 months of the bond. The appellant entered into a bond in these terms.
In this appeal against sentence, the appellant contends that the Magistrate erred:
1.in imposing a sentence that was manifestly excessive by reason of the inclusion of a condition of the bond that the appellant perform community service, or in the alternative that the appellant perform 150 hours of community service;
2.in failing to give adequate weight to the impact that the community service order would have on the appellant’s employment;
3.in failing to afford the appellant procedural fairness prior to imposing the condition that the appellant perform community service; and
4.in failing to identify what discount, if any, was applied to the sentence on account of the appellant’s pleas of guilty.
There is some obvious overlap between the grounds of appeal, and in particular the first three grounds – which all involve a challenge to the Magistrate’s decision to include a term of the bond requiring that the appellant perform 150 hours of community service. However, the first ground involves an allegation of outcome error, whereas the second and third grounds involve allegations of process error. The fourth ground of appeal involves a discrete allegation of process error in relation to the discount for the appellant’s pleas of guilty.
Given the nature of the matters raised in the appeal, it is appropriate to commence by outlining some matters by way of both factual and procedural background, before then summarising the Magistrate’s sentencing remarks and addressing the individual grounds of appeal. In addressing the grounds of appeal, it is convenient to commence with those that allege process errors, before then dealing with the allegation of manifest excess in the first ground of appeal.
Circumstances of the offending
The appellant fell to be sentenced on the basis of the allegations in the apprehension report. By way of summary, the offending occurred during the evening of Friday, 10 November 2017. The appellant was drinking at the Alma Hotel, with his brother and a female friend (who was his brother’s partner). The appellant’s disorderly behaviour occurred following a disagreement with hotel staff. The disagreement related to an allegation by the female friend that the cigarette machine in the Hotel had ‘swallowed’, and would not return, the $50 she fed into the machine. When the hotel manager refused to open the machine to return the money, the verbal disagreement began to escalate, and the appellant and his two companions were all evicted from the Hotel.
Once outside the Hotel, the three of them remained on the footpath near the Hotel entrance. They continued arguing with the Hotel security staff, and complaining about their treatment. They did so for a significant period of time; indeed, for in excess of half an hour. The appellant in particular was intoxicated and verbally abusive towards the Hotel staff. At some point he was banging on the front windows of the Hotel, and challenged the manager to come outside. He attempted to re-enter the Hotel, but was stopped by the security staff. At one point he needed to be restrained by his brother, and was gesticulating with raised middle fingers to the Hotel staff.
Eventually the appellant and his two companions began to walk away from the Hotel. However, as they were doing so, the appellant punched a sign belonging the Hotel, and in doing so damaged the perspex inner part of the sign. The three of them ran from the Hotel. They were chased by a member of the Hotel security staff, but after 100 metres or so stopped and allowed themselves to be walked back to the Hotel. They remained at the Hotel until the police arrived.
The sentencing hearing
Prior to attending the sentencing hearing, the prosecution indicated that the quantum of damage would be agreed in the amount of $638. On the day of the sentencing hearing, the appellant deposited this amount into his solicitor’s trust account with a view to it being paid by way of compensation for the damage to the Hotel’s sign.
At the hearing, the prosecutor amended the second charge (which had previously alleged damage amounting to more than $2,500 but no more than $30,000) to allege damage amounting to no more than $2,500. Upon this occurring, the appellant confirmed his earlier plea of guilty to both offences.
The prosecutor summarised the circumstances of the offending, based upon the allegations in the apprehension report. He then advised the Magistrate that the prosecution accepted that the appellant’s actions in causing the damage involved reckless indifference rather than intentionally causing damage. He also advised the Magistrate that the appellant had made arrangements to make full restitution by way of funds in his solicitor’s trust account, and sought an order for compensation in the agreed amount of $638. The prosecutor informed the Magistrate that the appellant had no history of prior or subsequent offending.
There is a dispute as to whether the prosecutor informed the Magistrate that the prosecution sought no other penalty (apart from compensation). While the appellant’s counsel recalls this being said, the prosecutor disputes that he either agreed to this or told the Magistrate he agreed to this. It is not necessary for me to resolve this dispute. It is sufficient for the purposes of this appeal to note that when the appellant’s counsel requested that no conviction be imposed, and the Magistrate asked the prosecutor his attitude to this, he accepts that he did not oppose the Magistrate proceeding in this way. Further, it is agreed that the prosecutor did not ever submit that the Magistrate should impose a community service order.
The appellant’s counsel commenced by submitting to the Magistrate that the matter could be justly dealt with by way of the Court refraining from ordering a conviction, and imposing a fine or placing the appellant on a bond to be of good behaviour.
The appellant’s counsel thereafter made some relatively brief submissions as to the circumstances of the offence, and the personal circumstances of the appellant. As to the latter, the submissions included that the appellant was a 27 year old man who grew up in Victor Harbor before moving to Marion Bay in 1999 when his parents commenced managing the Marion Bay Tavern. During 2006 to 2008 he was a boarder at an Adelaide college and completed his secondary schooling.
The appellant’s counsel said that from 2009 to 2013, the appellant undertook an apprenticeship with the Master Builders of South Australia. He thereafter worked as a self-employed sub-contractor in the building industry for a period of about four years. On 30 July 2018, the appellant commenced full-time employment with a building company, working as a leading-hand carpenter and at times team leader. In this role the appellant works on properties that include not only privately owned properties but also various government properties and projects. In this context, the appellant’s counsel informed the Magistrate that a conviction would have an adverse effect upon his work on government contracts.
Finally, the appellant’s counsel also informed the Magistrate that in November 2017 the appellant had purchased his first home, doing so in conjunction with his brother. He explained that since that date the appellant had been committed to making ongoing and significant mortgage payments.
The Magistrate then proceeded to sentence. Her Honour’s sentencing remarks were as follows:
You have pleaded guilty to two offences; disorderly behaviour and damaging property, that is a sign belonging to the Alma Hotel.
Your offending took place when you were intoxicated. We see a lot of alcohol-fuelled violence in our courts. I am really glad that you did not go further and hurt anybody but sometimes it does spill over into that when frustrations get out of control, but in your case it did not.
Nevertheless, damaging property is an offence that comes with a penalty of up to 10 years imprisonment. It is regarded seriously. I have regard to the fact that you have put money together which is now in trust in the amount of $638.00, which will compensate the hotel for that.
I proceed on the basis of the allegations outlined to me from the apprehension report. Obviously it was a fairly protracted episode and it started with something as stupid as a machine gobbling up a $50 note. I bet you wish that did not happen but it just goes to show how distorted your thinking and behaviour can become when you are intoxicated. You really have to put a lid on that and make sure you control your drinking.
I give you credit for the fact that you have pleaded guilty. You have no prior convictions. You are 28 and otherwise of good character. You have a good work record. Counsel is asking for me to avoid convicting you because of the impact it might have on some of the work you do. Your parents run a hotel so you probably know through them how unpleasant it is when some of the patrons behave in this sort of fashion, it is pretty bad. I think you probably have learnt your lesson now.
Prosecution are not opposed to me dealing with you in the way suggested.
I will have you placed on a good behaviour bond, without conviction, in the amount of $200. The bond will be for 18 months. There will be a condition however that you perform 150 hours of community service within the first 12 months of the bond. That is something that I think is appropriate and you would certainly be capable of doing that.
MR DEEGAN: Your Honour, I do not mean to interrupt but he works full time.
HER HONOUR: Yes, I know that. I heard that. I do not overlook that. This has to be a priority. He has to fit it in. This is part of the outcome.
You are to perform 150 hours of community service. We are thinking about you avoiding a conviction and a sentence of imprisonment today so this is the outcome. You will have to work around it. This has to be your priority.
There will be a compensation order in the amount of $638 payable to the Alma Hotel and there will be another condition that you not attend at the Alma Hotel or communicate with any of the staff members at that hotel for the next 12 months.
You will reappear for conviction and sentence in the event of a breach, so you will be careful not to breach that by committing any other offences.
It is accepted that the Magistrate did not give any prior indication that she was considering ordering community service as a condition of a bond. Nor did her Honour make any inquiry as to whether the appellant was in a position to undertake community service – either at all, or to the extent of 150 hours within a twelve month period.
It can be seen from the above that the appellant’s counsel interrupted the Magistrate when she referred to community service, and mentioned that his client worked full-time. The appellant’s counsel says that he was taken by surprise, and that when initially rising to his feet he had intended to explain more fully the appellant’s work and personal commitments. He was aware that in addition to having a full-time job, the appellant did additional private work on evenings and weekends (although he did not then know the exact extent of this additional work). However, he added that, having risen to his feet, and heard the Magistrate’s response to his reference to the appellant’s work commitments, he felt prohibited from putting his client’s position further.
On this appeal, the appellant’s counsel contends that the following matters would be relevant to the question of the ability of the appellant to complete community service.
The appellant receives a yearly gross income from his employer of $65,000, which results in a monthly income of $3,290. His ongoing minimum living expenses including mortgage payments, vehicle repayments, insurance, phone, utilities and food are approximately $3,600 per month but can vary. His base-hour employment is from 7.00 am to 3.30 pm, but he is regularly required to perform overtime on weekdays or weekends depending upon project timelines that need to be met. In addition to this, the appellant still receives some requests for work from clients that he did work for during the time he was self-employed. He does work for these clients most weekends in order to supplement his income. Indeed, over the last six months, he has worked a total of 20 Saturdays and eight Sundays.
Alleged failure to identify extent of discount for guilty pleas
It was accepted by the respondent on this appeal that by reason of the appellant’s early pleas of guilty, s 39(2)(a) of the Sentencing Act 2017 (SA) applied. This entitled the appellant to an exercise of the Magistrate’s discretion to “reduce the sentence that it would otherwise have imposed by up to 40%”.
Here, while the Magistrate expressly stated that she gave the appellant “credit” for his pleas of guilty, her Honour did not give any indication as to the form or extent of any “discount”, and in particular did not give any indication of any discount applicable to the condition of the bond requiring the appellant to perform community service.
It is true that in the case of a sentence involving a term of imprisonment, the failure by a sentencing judge to indicate the extent of the discount given in respect of the term of imprisonment on account of a plea of guilty may involve error. However, the regime for guilty plea discounts in s 39 of the Sentencing Act operates differently in respect of some other forms of penalty. Indeed, I do not think it has any direct application in respect of any particular term or condition of a good behaviour bond.
I accept that the decision of a sentencing judge to impose a bond is a “judgment, order or decision” against which a defendant may appeal;[3] and that in this context it is permissible to frame an appeal against sentence in terms of a challenge to the length of the term, or some other term or condition, of the bond imposed.[4] This is so despite the fact that, strictly speaking, the defendant was initially offered the opportunity to enter into the bond, and might have declined that opportunity.[5]
[3] Section 42 of the Magistrates Court Act 1991 (SA) refers to an appeal against any “judgment”, which is defined in s 3 of that Act as a “judgment, order or decision”.
[4] Morley v Police [2005] SASC 233 at [6], citing R v Szpajchler (1982) 31 SASR 236 at 237.
[5] Although it would be rare for such a challenge to succeed: Morley v Police [2005] SASC 233 at [11], citing R v Szpajchler (1982) 31 SASR 236 at 238.
However, “sentence” for the purposes of the Sentencing Act is the subject of express definition in s 5 of that Act:
"sentence" means—
(a)     the imposition of a penalty; or
(b)     the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)     the fixing, extending or negating of a non-parole period; or
(d)the making of any other order or direction affecting penalty, including the decision of a court to discharge a defendant—
(i)    without imposing a penalty; or
(ii)    without recording a conviction;

As Kourakis CJ observed in Popowycz v Police,[6] in respect of the relevantly equivalent definition in the predecessor to the Sentencing Act, subparagraph (b) of this definition appears to be carefully drafted to exclude the length, and other terms or conditions, of a bond from the definition of “sentence”. Subparagraph (b) includes only the decision to offer a defendant an opportunity to enter into the bond as part of the sentence, expressly stopping short there and not including the terms or conditions of the bond. As his Honour also observed, this fits well with the definition of “bond” in the same section, which defines a bond in terms of an agreement entered into pursuant to the sentence of the Court and not as part of the sentence itself. For the reasons given by his Honour, I am also satisfied that neither the bond itself, nor its terms or conditions, constitute a “penalty” for the purposes of subparagraphs (a) or (d) of the definition of “sentence”.
[6] Popowycz v Police [2016] SASC 126 at [24].
For these reasons, I do not consider that either the bond ultimately imposed by the Magistrate, or any of its terms or conditions, fall within the meaning of the word “sentence” as it appears in s 39(2)(a) of the Sentencing Act. Kourakis CJ reached the same conclusion in Popowycz v Police[7] in respect of the equivalent provision of the predecessor legislation. As such, there was no occasion or need for the Magistrate to exercise any discretion to reduce any term or condition of the bond by up to 40 per cent. And it thus cannot be said that the Magistrate erred in failing to do so; let alone in failing to identify the extent of any discount in respect of the hours of community service required under the bond.
[7] Popowycz v Police [2016] SASC 126 at [21].
While I have reached this conclusion largely based upon a textual analysis of the relevant provisions of the Sentencing Act, the exclusion of the bond and its terms and conditions from the notion of “sentence” for the purposes of s 39(2)(a) of the Sentencing Act is also supported by broader considerations. If the bond and its terms and conditions were included, this might operate tolerably in respect of some terms or conditions that are expressed in numerical terms such as the length of the bond, or the number of hours of community service required to be performed. However, if the text of the section were construed as extending to those terms and conditions, then logically it must also be construed as extending to all terms and conditions. Yet it does not make sense to speak of a discount of up to 40 per cent in respect of those terms and conditions which have no numerical expression. Further, as Kourakis CJ explained in Popowycz v Police,[8] a discount would operate somewhat awkwardly even in relation to some conditions that are expressed in numerical terms. For example, it is difficult to accept that Parliament would have intended that the length of any therapeutic courses or rehabilitation program ordered as a condition of a bond be reduced on account of a guilty plea. To do so might undermine or defeat the therapeutic or rehabilitative purpose of those courses or programs, and hence the reason for their inclusion as conditions in the bond. In my view, these are additional considerations in support of the conclusion I have reached.
[8] Popowycz v Police [2016] SASC 126 at [31].
I consider that it was sufficient in the context of the sentence imposed by the Magistrate in this case that, in arriving at the overall sentence to be imposed, her Honour took into account the appellant’s conduct in pleading guilty. Her Honour expressly did so, and so this ground of appeal must be rejected.
Alleged failure to consider the impact on the appellant’s employment
I accept that in determining whether to include as a condition of a proposed bond a requirement to perform community service, and in determining the number of hours of service to include in any such condition, the Magistrate was required to consider the implications of and for the appellant’s employment. This is inherent in the nature of these determinations, but is in any event mandated in the circumstances of this case by s 105(1)(h) of the Sentencing Act. That subsection provides that in the case of a bond with a condition requiring the performance of community service:
(h)the person may not be required to perform community service at a time that would interfere with the person’s remunerated employment or with a course of training or instruction relating to, or likely to assist the person to obtain, remunerated employment …
The respondent contended that this subsection only applies once a bond is imposed, and not in determining whether to impose a bond or the conditions of the bond (including the number of hours community service that might be required). As such, the provision is only directed to those with responsibility for overseeing the appellant’s performance of the community service.
I accept that this subsection applies most directly in the context identified by the appellant. However, I consider that it also has a broader operation, or at least significance, than this. It makes plain that a sentencing judge should not impose a condition of community service which will necessarily interfere with the defendant’s remunerated employment, or with which it would be impractical to comply given the defendant’s remunerated employment. The consequence of this, namely that a failure to take account of the impact of a contemplated condition of community service under s 105(1)(h) may involve error on the part of a sentencing judge, is supported by several decisions of this Court.[9]
[9] Cutting v Police [2009] SASC 326 at [28]-[32]; Hebberman v Police [2010] SASC 98 at [19]; Cocchiaro v Police (2015) 123 SASR 263 at [11].
While in some cases a defendant’s employment may make the imposition of any condition of community service inappropriate, more commonly the relevance of that employment will be confined to the number of hours work that it is appropriate to include within the condition.
The appellant’s ground of appeal is expressed in terms of a complaint that the Magistrate failed to give “adequate weight” to the impact of the community service condition upon the defendant’s employment. Expressed in these terms, the complaint is best seen as an aspect or particular of the appellant’s separate complaint of outcome error or manifest excess, and is a matter to which I will return later in these reasons.
Insofar as the appellant intended to press an independent ground founded upon a process error by the Magistrate in failing to consider at all the impact on the appellant’s employment, this ground cannot be sustained. It is plain from the Magistrate’s reasons that the Magistrate did not overlook the significance of the appellant’s full-time employment. The Magistrate expressly mentioned the appellant’s employment shortly prior to announcing her decision to proceed by way of a bond with a community service condition (albeit in the context of explaining why she had acceded to the prosecution request not to impose a conviction). More importantly, when interrupted and reminded of the appellant’s full-time employment, the Magistrate promptly responded that she had not overlooked this, adding that the appellant would have to “work around it”.
For these reasons, this ground of appeal has not been made out.
Alleged failure to afford procedural fairness
The appellant contends that he was not afforded procedural fairness in that the Magistrate imposed a condition of community service without any forewarning to the appellant, and in circumstances that did not afford the appellant an appropriate opportunity to put submissions to the Magistrate as to the impact of any such condition upon his employment.
The appellant relies in this respect upon Hebberman v Police.[10] In that case, the Magistrate ordered that the defendant perform 100 hours of community service within six months as a penalty for the offences of which he was convicted (as opposed to it being merely a condition of a bond as it was in the present case). At the point of announcing sentence, the Magistrate initially referred to 100 hours of community service within three months. The following exchange then occurred between the defendant’s counsel, the defendant himself and the Magistrate:
[10] Hebberman v Police [2010] SASC 98.
Counsel:             Sorry sir, I need to address you. This man is in full time employment.
His Honour:        I know that.
Counsel:And in those circumstances, simply doesn’t have the capacity to meet your Honour’s order.
His Honour:        He can do eight hours every Saturday.
Defendant:           I work on Saturdays.
His Honour:        Then you will have to make different arrangements with your employer.
Defendant:         They are my clients …
The Magistrate then made an order that the defendant complete 100 hours community service within six months.
On the appeal, the defendant led evidence to the effect that compliance with the order of community service could lead to the loss of his employment. In upholding the defendant’s contention that there had been a failure to afford procedural fairness, Gray J reasoned:[11]
In the circumstances of the within proceeding, the Magistrate did not obtain a proper understanding of the defendant's employment situation. In the course of sentencing, information was sought to be advanced on the topic of the defendant's employment, a topic which section 47 of the Sentencing Act mandates that the Magistrate consider when imposing community service. It became apparent on appeal that there was relevant information to be put before the Magistrate in relation to the work commitments of the defendant and, in particular, the difficulties that the defendant would face to meet the obligation of performing community service on Saturdays. The failure of the Magistrate to allow that information to be placed before the Court resulted in a material denial of procedural fairness to the defendant.
The want of procedural fairness afforded to the defendant and his counsel requires this Court to consider the matter afresh.
[11] Hebberman v Police [2010] SASC 98 at [20]-[21].
The respondent in the present appeal contends that the first difficulty with this ground of appeal is the context of the present case; namely, that the alleged failure to afford procedural fairness was in the context of the appellant being offered an opportunity to enter into a bond with conditions. It was up to the appellant to agree or reject the conditions. As the bond and its conditions were not unilaterally imposed upon the appellant, but were rather the product of his choice, the respondent contends that there cannot have been any failure to afford procedural fairness.
While there might be some technical merit in the respondent’s contention, I consider it involves a degree of artificiality. I do not think that the appellant had any meaningful choice, given that the consequence of not entering into the bond would have been the recording of a conviction with significant consequences for his employment. The illusory nature of the choice, and hence compulsory aspect of what occurred, was exposed in the following passage from the reasons of King CJ in R v Szpajchler[12] (in the different but analogous context of a suspended sentence bond):
It seems to me that the suspension of the operation of the sentence, and the terms upon the observance of which that suspension is conditioned, form part of the sentence and are subject to appeal. I do not think that the entry by a convicted person into the recognizance for the purpose of securing suspension of the sentence can preclude him from appealing against the sentence on the ground that the conditions of the recognizance are unduly stringent. I think that it would be unrealistic to attribute to such a person acceptance of the terms of the recognizance. He must agree to enter into the recognizance on the terms prescribed by the judge as the price of securing the suspension of the sentence. His choice is quite illusory. If the conditions of the recognizance into which the appellant must enter as the price of the suspension of the sentence are unduly stringent, the sentence is erroneous and the appellant may, in my opinion, challenge it by way of appeal notwithstanding that he had entered into the recognizance.
[12] R v Szpajchler (1982) 31 SASR 236 at 237; as applied in Morley v Police [2005] SASC 233 at [6]-[7].
In my view, the Magistrate was required to afford the appellant procedural fairness in respect of the imposition of a bond with a condition of community service. However, I accept the respondent’s alternative contention that a failure to afford procedural fairness has not been made out in the circumstances of this case.
In the circumstances of this case, where the appellant expressly requested that the Magistrate proceed without conviction, and acknowledged that it might in this circumstance be appropriate to place the appellant on a good behaviour bond, it was entirely foreseeable that her Honour might not only impose a bond, but also include a community service condition in order to ensure that the sentencing objectives of punishment and deterrence were satisfactorily achieved. In my view, this was so despite the appellant’s preparedness to pay compensation, and despite the absence of any positive suggestion from the prosecutor that there should be some further or additional penalty. In those circumstances, I do not think that it was incumbent upon the Magistrate to foreshadow her intention to proceed by way of a bond with a community service condition.
Further, in circumstances where the Magistrate had been informed that the appellant had full-time employment, I do not think it was incumbent upon the Magistrate to request or require any additional information before proceeding in this way. The fact that counsel had not appreciated the risk the Magistrate might proceed in this way does not of itself alter the analysis.
I do not think that the exchange that occurred between the appellant’s counsel and the Magistrate during the course of her Honour’s sentencing remarks alters the analysis. I accept the evidence of the appellant’s counsel (who was a relatively inexperienced solicitor advocate, and not counsel who appeared on this appeal) that he “felt” prohibited from putting further submissions as to the appellant’s employment. However, I do not accept that the evidence establishes that he was in fact prohibited from doing so, or was otherwise denied an appropriate opportunity to do so.
In considering what was required of the Magistrate in the circumstances of this case, it is important to bear in mind that this was a relatively minor matter in what was presumably a busy list. The Magistrate was entitled to deal with the matter in an efficient and direct manner. Her Honour had already been informed of the appellant’s work history, including the fact that he currently had full-time employment with a building company. In my view, the Magistrate was entitled to proceed on the basis she had sufficient information to form a view as to the appropriateness of imposing a community service condition, and the number of hours that might be practical without unduly interfering with the appellant’s employment.
The Magistrate might ideally have made an inquiry as to the number of hours and days worked by the appellant each week, or alternatively have invited submissions as to the extent of the appellant’s capacity to perform a significant number of hours of community service. However, given the circumstances I have outlined, I do not think the failure to do so involved any failure to afford procedural fairness.
Similarly, I do not think that the Magistrate unfairly or inappropriately prevented the appellant’s counsel from addressing the significance of the appellant’s employment. While it appears from the transcript of the exchange during her Honour’s sentencing remarks that she responded quickly and directly to the appellant’s counsel when he interrupted, there is nothing that would have indicated to the Magistrate that there was additional relevant information about the employment that she did not have, or that the appellant’s counsel wished to bring to her attention. In that sense there is a difference between the present case and the admittedly similar circumstances in Hebberman v Police.[13] The appellant’s counsel in this case was not “cut off” in any relevant sense. While I understand the difficulty the appellant’s counsel felt in pressing the matter further with the Magistrate, in my view this was just the unfortunate reality and consequence of a relatively inexperienced practitioner appearing in a busy court, rather than a denial of procedural fairness.
[13] Hebberman v Police [2010] SASC 98.
Alleged manifest excess
Given the discretionary nature of the sentencing process, appellate interference with a sentence imposed must be in accordance with the strictures of House v The King.[14] In the context of the appellant’s contention that the sentence was manifestly excessive, this required satisfaction that the penalty imposed was unreasonable in the sense that it was outside the permissible range.
[14] House v The King (1936) 55 CLR 499 at 504-505.
As mentioned earlier, I accept that in considering a submission of manifest excess, regard may be had to the terms and conditions of a bond. However, it must also be acknowledged that the circumstances in which an appellate court would interfere with the conditions of a bond will be rare.[15]
[15] Morley v Police [2005] SASC 233 at [11], citing R v Szpajchler (1982) 31 SASR 236 at 238.
The appellant’s challenge to the bond imposed in this case must of course be considered in the context of the sentencing package as a whole. In this respect, it is relevant to bear in mind not only the compensation paid by the appellant, but also the measure of leniency afforded by the Magistrate in acceding to the appellant’s submission not to record a conviction.
In addressing the contention of manifest excess, the appellant’s counsel emphasised the relatively minor nature of the offending. He emphasised the absence of any violence by his client towards any other person, and the limited nature of the property damage that he caused. On the other hand, I accept that the Magistrate was entitled to have regard to the protracted nature of the incident, the fact that he needed to be restrained at one point, and the obvious inconvenience to the Hotel, its staff and its patrons. I also accept the Magistrate’s concern to ensure an adequate level of punishment and deterrence in the case of alcohol-fuelled offending such as the appellant’s offending in this case.
The appellant’s counsel also emphasised that his client had no criminal record, was of good character and had an established history of employment. He pointed to the appellant’s conduct in agreeing to pay compensation for the damage he caused, and in pleading guilty at an early stage in the proceedings, as evidencing contrition and as matters that weighed strongly in the appellant’s favour. In relation to the pleas of guilty, the appellant pointed to the statutory discount regime which, even if it did not apply in its terms to the condition of a bond, was nevertheless recognition of the significant utilitarian value of early pleas of guilty.
While all of the above are, of course, very relevant considerations, they did not in my view preclude the Magistrate from imposing a bond with a community service condition. That was particularly so given the measure of leniency afforded through the Magistrate’s decision not to record a conviction.
In determining the number of hours of community service to be performed under the bond, I have mentioned the requirement that the Magistrate take account of any interference with the appellant’s employment. In this context, the fact of full-time employment was by no means a barrier to a community service condition. It is not enough that the existence of significant employment commitments makes the contemplated community service inconvenient.[16] Indeed, the very rationale for imposing a requirement of community service assumes a level of inconvenience to, and imposition upon, a defendant.
[16] Cocchiaro v Police (2015) 123 SASR 263 at [11].

However, the Court should not impose a requirement of community service that would be impractical or unreasonable given the nature of the defendant’s employment commitments,[17] or a requirement of community service the performance of which might jeopardise the defendant’s employment. [18]
[17] Cutting v Police [2009] SASC 326.
[18] Hebberman v Police [2010] SASC 98.
Here, the requirement of 150 hours within 12 months was approximately half the maximum level of community service able to be imposed under s 105 of the Sentencing Act. It represented about 20 days work (assuming 7.5 hours per day) over a period of 12 months. This was slightly less than two days per month or one day per fortnight. This undoubtedly represented a significant burden for somebody in full-time employment.
In the absence of any further information as to the nature of the appellant’s employment, and while a significant burden, I do not think the Magistrate’s decision to impose 150 hours of community service would have been unreasonable in the relevant sense. I consider that the overall sentence, while heavy, would have been within the permissible range of sentences that might reasonably have been imposed, particularly bearing in mind the Magistrate’s preparedness to record no conviction (in part to protect, or not unduly interfere with, the appellant’s employment).
However, I do have some further information about the appellant’s employment and financial circumstances that, for the reasons I have explained, the Magistrate did not have. During the hearing of the appeal the respondent conceded that even if I accepted that there had been no denial of procedural fairness, I could nevertheless have regard to this information, in effect as fresh evidence on the appeal. The respondent conceded that it was in the interests of justice that I have regard to this information.[19] In my view, this concession was an appropriate one.
[19] See s 42(4) of the Magistrates Court Act 1991 (SA); Holder v Lewis (2003) 231 LSJS 431 at [14]-[17]; R v Hallett [2012] SASCFC 143 at [7], [34]-[36] and [105]-[106].
The significance of this further information is that it establishes that the community service condition imposed on the appellant will in fact impact significantly upon his employment. In addition to his full-time employment it is apparent that the appellant is often required to work overtime. More importantly, he is also accustomed to working additional hours on weekends to service his private clients. I regard interference with the appellant’s ability to do this additional work as less significant than interference with his full-time employment. Certainly I do not accept that a defendant could always avoid a significant community service condition by choosing to take on overtime or an additional job. But the evidence establishes that the appellant does not do this additional work simply because he chooses to in order to supplement his income. Rather, the evidence is that, at least to some extent, he is required to do this additional work in order to meet his living expenses and financial commitments (including his recently acquired mortgage).
Speaking broadly, the appellant has been working approximately six days per week since taking on his mortgage. In my view, it would be impractical and unreasonable to require that he work seven days a week every second week in order to fulfil the community service condition of his bond. The only alternative, under the community service condition imposed below, would be for the appellant to cease doing a significant proportion of the additional work he has been doing. Losing approximately one day’s income each fortnight for the best part of a year would be a very significant imposition in the circumstances of this case, and certainly not something the Magistrate would have intended or anticipated on the information available to her.
In my view, given the materiality of the further information that was not before the Magistrate, and hence to which the Magistrate did not have regard, it is appropriate that the sentence be set aside. In the circumstances, it is not strictly necessary for me to be satisfied that the sentence was unreasonable or manifestly excessive. It is enough that, in light of the fresh evidence, it would be unjust, or involve a miscarriage of justice, to allow the sentence to stand.[20] I am satisfied that it would be.
[20] R v Hallett [2012] SASCFC 143 at [36], [47] and [105]-[106]; R v Nguyen [2006] VSCA 184 at [36].
It is thus appropriate that I exercise the sentencing discretion afresh. Essentially for the reasons given by the Magistrate, as elaborated upon by me, I consider that the sentence imposed was appropriate, save for the number of hours of community service to be performed as a condition of the bond. I would reduce the hours of community service required to 60 hours over a 12 month period. While this may well still inhibit the appellant’s capacity to do all of the additional work he would otherwise have undertaken, and is accustomed to undertake, in my view it is nevertheless an appropriate imposition upon the appellant in all the circumstances of the case. It will ensure that the punitive and deterrent objectives of the sentencing process are adequately achieved.
Conclusion
I allow the appeal. I set aside the bond imposed by the Magistrate, and I will invite the appellant to enter into a fresh bond in the terms indicated above.