Walker v Department of Correctional Services No. Scciv-03-771

WALKER v DEPARTMENT OF CORRECTIONAL SERVICES
[2003] SASC 248
Magistrates Appeal: Criminal

PERRY J. (ex tempore) In this matter the appellant failed to comply with a community service order made on 24 January 2002 imposed with respect to an offence of driving whilst under disqualification committed in September 2001.
The order of the court was that the appellant perform 80 hours of community service within eight months from the date of the order, and in that respect, to obey the lawful directions of the community service officer assigned for that purpose.
On 18 June 2003, following the admission by the appellant of a breach of the community service order, in that he had completed only seven out of the total of 80 hours that had been ordered, the sentencing magistrate reduced the unperformed hours from 73 to 40 hours and ordered the appellant to be imprisoned for a period of five days commencing forthwith.
On the same day the appellant was granted bail pending this appeal.
The appeal, therefore, is against the imposition of the term of imprisonment for five days.
Mr Emery, who appeared for the respondent, quite properly conceded that in making the order which he did the sentencing magistrate erred in applying the relevant provisions which are to be found in s 71 of the Criminal Law (Sentencing) Act 1988.
Section 71(1) provides that in default of compliance, an order requiring performance of community service is enforceable by imprisonment.
Subsection (2) provides:
“The term of imprisonment to be served in default of compliance will be-
(a) a term calculated on the basis of one day for each eight hours of community service remaining to be performed under the order; or
(b) six months, whichever is the lesser.”
Subsection 3(3) and subsection 3(4) provide for the mechanism by which a defaulting defendant may be brought before the court.
Subsection (5) provides:
“(5)If the court is satisfied that the person has failed to comply with the order requiring performance of community service-
(a) the court may issue a warrant of commitment for the appropriate term of imprisonment fixed in accordance with subsection (2); but
(b) if the person is a youth, the court may, instead of taking action under paragraph (a), make an order for home detention for a period fixed on the same basis.”
Subsection (6) is not relevant for present purposes.
Subsection (7) is in the following terms:
“(7)Despite subsection (5), 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 court-
(a) may refrain from issuing a warrant of commitment; and
(b) may-
(i)extend the term of the order by such period, not exceeding six months, as the court thinks necessary for the purpose of enabling the person to perform the remaining hours of community service (if any);
(ii)if the order has expired, impose a further order, for a term not exceeding six months, requiring the person to perform the number of hours of community service unperformed under the previous order;
(iii)cancel the whole or a number of the unperformed hours of community service under the order.”
In my opinion, it is clear that the powers under subsection (7) in this case were not properly exercised.
The sentencing magistrate reduced the unperformed hours from 73 to 40 and then, applying the formula in subsection (2)(a) ordered imprisonment for a period of five days, that is, one day for each eight hours of community service to be performed. But the order for imprisonment which may be imposed under s 71(1), and the calculation of the length of the term of imprisonment, both relate to the original order providing for community service. There is no power to vary that order.
True it is that under s 71(7)(b)(iii) the whole or a number of the unperformed hours may be cancelled. But having regard to the terms of s 71(7)(a), the power to cancel may only be exercised if the court refrains from issuing a warrant of commitment.
It follows that it was not open to the court both to reduce the number of hours and to order imprisonment.
The number of hours unperformed under the previous order in this matter being 73, the court could not reduce those hours for the purpose of ordering a lesser term of imprisonment than otherwise might be imposed.
Given the error to which I have just referred, the proper course for this Court to take is to quash the order under appeal, and to impose what seems to be a proper order in all the circumstances of the case.
With respect to that exercise, I have been assisted by an affidavit of Mr Greer, who appeared as counsel in the court below and also on the hearing of the appeal.
In his affidavit he sets out the submissions which he made to the sentencing magistrate and explained the circumstances in which it came about that the appellant failed to perform more than a nominal number of hours under the order in question.
It appears that he was in fairly regular employment during the period in question with the South Adelaide Football Club. Furthermore, he apparently called the Department of Corrections on several occasions to say that he was unable to come in when required as he was working. Eventually he became confused about the number of hours and the commitments he had and he attended the Fines Payment Unit at the Christies Beach Magistrates Court in an endeavour to sort the matter out. Following a conversation with someone in the Fines Payment Unit, he was given the impression that his community service work was being converted to fines. He was, therefore, surprised to find later that it was alleged that the community service work order had been breached.
He does not recall receiving a warning letter and a reason for that may be that he moved from his sister’s address to another address during the period in question.
Mr Emery for the respondent has not challenged the matters which are set out in Mr Greer’s affidavit to which I have just referred, and does not challenge the making of a non-custodial order. In all the circumstances, I think it proper to exercise the powers given by s 71(7) to impose a further order requiring the appellant to perform the number of hours unperformed under the previous order during a further term to be fixed for that purpose.
I therefore order that the appellant perform 73 hours of community service within six months of today, and until such time as working the required number of hours has finished, to obey the lawful directions of the community service officer assigned to him. He must also report within two working days of the signing of a notice of a community service order, which will be furnished to him by this Court, to the offices of the Department of Correctional Services Probation and Parole Branch at Noarlunga Centre.
The appeal is allowed for the purpose of substituting an order in those terms.
[ADDRESSING THE APPELLANT PERSONALLY]
HIS HONOUR: Mr Walker, I am giving you an opportunity to prove that you are capable of complying with a community service order conscientiously. I have given you the benefit of the doubt and I warn you that you must treat these orders seriously. If you don’t, you will be sent to gaol. Do you understand that?
APPELLANT: Yes.
HIS HONOUR: If you are having problems in complying with it, go and see the community service officer who is assigned to look after you, make personal contact with that person and explain the circumstances. Don’t rely on phone calls, and don’t rely on what you might be told by the officers of the fines department or whatever. You must see the community service officer concerned, nothing short of that, if there is a problem.
Hopefully there will not be. You must comply with whatever program is mapped out for you by the department.
So I have given you a chance to demonstrate that you can take a conscientious view of your obligations under the order.

[2003] SASC 248

6 August 2003