WATSON v POLICE No. SCGRG-98-194 Judgment No. S6623
[1998] SASC 6623
•9 April 1998
WATSON v POLICE
Magistrates Appeal
Bleby J
On 13 March I allowed the appellant’s appeal against sentence imposed in the Magistrates Court of South Australia sitting at Elizabeth, and I substituted certain orders which appear at the end of these reasons. I indicated at that time that I would publish reasons for that decision. These are those reasons.
This appeal is an unfortunate illustration of what can happen where there is substantial delay in imposing a sentence, resulting in relevant post‑plea but pre‑sentence events being overlooked, and where there has been a failure by prosecuting authorities to ensure the proper coordination of hearings relating to disparate but relevant offences. The result of this combination has been that sentences have been imposed without full knowledge or appreciation of the relevant facts, and in ignorance by one prosecutor and magistrate of what has relevantly occurred before another magistrate. With the current available methods of recording and of recalling offender histories, the unfortunate series of events which I am about to recount should never have happened. The problems were exacerbated by a quite inappropriate sentencing process to which I shall later refer.
The appeal itself was against a sentence imposed in the Magistrates Court of South Australia sitting at Elizabeth on 21 January 1998. In respect of all three complaints, pleas of guilty had been entered a substantial time before - in one case exactly one year before.
The actual complaints and application on which sentences were imposed were as follows:
On an application for enforcement of a breached bond, the learned magistrate imposed a sentence of imprisonment for 28 days. That was the sentence previously imposed by another magistrate but suspended upon the appellant entering into a bond to be of good behaviour for a period of 15 months. It was that bond of which he was in breach and for which the sentence was imposed. The circumstances giving rise to the breach of bond were the subject of the complaint in Item 3 below.
For one charge of assault which had occurred on 5 August 1996, he was imprisoned for a period of six months, cumulative upon the 28 days sentence for the breach of bond. The sentence was not suspended.
For two counts of larceny of petrol which occurred on 21 March 1997, he was sentenced to a single penalty in accordance with the provisions of s18a of the Criminal Law (Sentencing) Act 1988, of two months imprisonment, cumulative upon the other two sentences. This sentence was not suspended.
The net effect of the cumulative sentences was a total period of imprisonment of 8 months and 28 days, which the learned magistrate rounded up to 9 months. The magistrate did not set a non‑parole period, and indeed on his then perception of the situation, he was not permitted to do so by virtue of s32(5)(a) of the Criminal Law (Sentencing) Act. That paragraph provides that a non‑parole period may not be fixed where the total period of imprisonment is less than one year.
Before I deal with the specific penalties for the respective offences, it is necessary to deal with a number of events in chronological order, during the course of which I will note briefly the circumstances of the respective offences. In assembling this detail I have been much assisted by counsel for the appellant in the preparation of a helpful chronology. What I am about to recount is based in part on that and in part on the affidavits sworn by two prosecutors concerned and by the solicitor for the appellant. My description of the relevant events follows:
| 19 July 1995 | For breaking and entering into a building and larceny the appellant was sentenced for a period of 2 years imprisonment with an 8 month non‑parole period. |
| 18 March 1996 | The appellant was released on parole. He therefore had a period of 16 months parole due to expire on 18 July 1997. |
| 14 June 1996 | The appellant committed an offence of larceny from a dwelling house comprising a purse and money totalling $275 (“the dwelling house larceny”). This offence was not the subject of any of the three complaints mentioned above. |
| 5 August 1996 | The appellant committed the assault the subject of complaint in Item 2 above (“the assault”). The assault was committed on Constable Karen Jones who was standing in the driveway of the appellant’s home with the appellant’s wife. There had been a disturbance at the premises earlier that morning involving both the appellant and his wife. Police were called. The appellant became agitated and reversed his vehicle out of the driveway of the house stopping just short of the police car which was blocking the exit. The police vehicle was moved and the appellant left. He returned a short time later at a relatively slow speed. When his vehicle was approximately 5 to 6 metres from Constable Jones it accelerated towards her and then braked on gravel, but continued skidding towards her. She had to leap out of the way in order to avoid being hit. In the circumstances of that event the maximum penalty was 2 years imprisonment. |
| 21 January 1997 | The appellant entered a plea of guilty in respect of the assault before the sentencing magistrate in the Elizabeth Magistrates Court. He was remanded to 27 February 1997 for a pre‑sentence report. The learned magistrate was not informed of matters then pending in the Murray Bridge Magistrates Court in respect of the dwelling house larceny. |
| 17 February 1997 | The appellant entered a plea of guilty in the Murray Bridge Magistrates Court in respect of the dwelling house larceny. He was sentenced to imprisonment for 28 days, which sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of 15 months. It was this bond which became the subject of the application for enforcement referred to in Item No 1 above. The Murray Bridge magistrate seems to have been aware of the breach of parole and appeared to have taken that into account in determining the sentence. The Murray Bridge magistrate was not informed of the appellant’s plea of guilty on 21 January to the assault charge. |
| 21 February 1997 | A pre‑sentence report on the appellant in relation to the assault charge was faxed to the sentencing magistrate. The report included a reference to the fact that at the time of committing the offence the appellant was on parole. |
| 27 February 1997 | The appellant was further remanded for sentence on the assault charge. This was the second of six occasions on which he came before the magistrate before finally being dealt with on 21 January 1998. |
| 21 March 1997 | The appellant committed the two offences of larceny the subject of complaint in Item No 3 above (“the larceny of petrol offences”). These offences also constituted the breach of the bond the subject of the Application in Item No 1 above. Both the larceny of petrol offences occurred at about 11.00pm from two adjacent motor vehicles parked in a street in Elizabeth East. Petrol to the value of $10.00 had been stolen from each vehicle. The appellant was apprehended by one of the victims, but the appellant drove off. |
| 5 June 1997 | The learned sentencing magistrate heard detailed submissions in respect of the assault charge, including reference to the pre‑sentence report. He was therefore aware of the fact that the offence was committed whilst the appellant was on parole. The learned sentencing magistrate was by then aware of the dwelling house larceny and of the suspended sentence imposed in the Murray Bridge Magistrates Court on 17 February 1997. The magistrate was not informed of any charges intended or pending in relation to the larceny of petrol offences. The learned magistrate imposed what is sometimes known as a “Griffiths” remand whereby he postponed any sentence for a period of 12 months in order to review the appellant’s behaviour during that time. The appellant was remanded until 4 June 1998 at 2.15pm. The learned magistrate also dealt with two other pleas to offences of offensive language and resisting police for which the magistrate imposed a conviction and fine. |
| 18 July 1997 | Appellant’s parole expired. |
| 14 August 1997 | Appellant first appeared before another magistrate in relation to the larceny of petrol offences when he was remanded without a plea being entered. |
| 28 August 1997 | The appellant was further remanded on the larceny of petrol offences and the charge for breach of the bond to appear before the sentencing magistrate. |
| 25 September 1997 | The appellant entered a plea of guilty before the sentencing magistrate in respect of the larceny of petrol offences and breach of the bond. He was subsequently remanded on several other occasions before finally being dealt with. |
| 21 January 1998 | Appellant came before the sentencing magistrate on breach of the bond, larceny of petrol and again on the assault charge which had previously been adjourned for 12 months on 5 June 1997. The several sentences which I described at the outset of these reasons were then imposed by the learned magistrate. |
In his sentencing remarks, the learned magistrate made no reference to the fact that the three primary offences (the assault and the two larceny of petrol offences) for which he was sentencing the appellant occurred during the unexpired period of the appellant’s parole which had commenced on 13 March 1996 and which had ended on 18 July 1997. At the date of the assault (5 August 1996) the unexpired period of parole was 11 months and 13 days. At the date of the larceny of petrol offences, the unexpired period of parole was 3 months and 28 days.
Having imposed unsuspended custodial sentences, s75(1) of the Correctional Services Act 1982 took its course. That subsection reads:
“75 (1) Where -
(a).... a person is sentenced to imprisonment for an offence committed while on parole and the sentence is not suspended; or
(b) the suspension of a sentence of imprisonment imposed for an offence committed by a person while on parole is revoked,
the person is liable to serve in prison the balance of the sentence, or sentences, of imprisonment in respect of which he or she was on parole, being the balance unexpired as at the day on which the offence was committed.”
Having imposed a cumulative sentence of 9 months imprisonment, the appellant was obliged by law to serve a further 11 months and 13 days, ie a total of 20 months and 13 days. As that became by law the new total head sentence, the learned magistrate was obliged to consider the fixing of a non‑parole period, which he did not do. Not only was it incumbent upon the magistrate to consider fixing a non‑parole period, but he was obliged to consider whether the aggregate period was an appropriate sentence for the criminal conduct, viewed as a whole: R v Knight (1981) 26 SASR 573. A convenient statement of the totality principle was approved by Jacobs J in R v Smith (1983) 32 SASR 219 at 221 by adopting the following statement from Thomas, Principles of Sentencing (2nd ed.) at p56:
“The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong’; ‘when... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.”
Where the sentence precipitates the serving in custody of an expired period of parole pursuant to s75 of the Correctional Services Act, that period must also be brought into account in applying the totality principle.
There can therefore be no doubt that in overlooking the effect of s75 of the Correctional Services Act, the sentencing process miscarried, and the sentencing discretion must now be exercised afresh. There is, however, a further reason why, again, due to an apparent oversight, the sentencing discretion miscarried. In respect of the assault charge, the learned magistrate had imposed the “Griffiths” remand for a period of twelve months. I make some comment about the wisdom of that process below. It was intended, however, that during that period the appellant would have hanging over him the prospect of a sentence yet to be imposed for the assault, the nature of which would be determined in the light of his behaviour during that time. Although the appellant had come before magistrates courts on several occasions after he was remanded for that purpose on 5 June 1997, no offences had apparently been committed and there was nothing to suggest anything other than good behaviour after that date. Having embarked upon that sentencing process, undesirable as I believe it may have been, in my opinion it was an error on the part of the learned magistrate not to have let the process continue to its conclusion. Instead, he interrupted the process with no apparent justification, and proceeded to impose a custodial sentence for the assault.
The “Griffiths” remand takes its name from the situation which was considered in R v Griffiths [1975] 1 NSWLR 229 (New South Wales Court of Criminal Appeal), and on appeal to the High Court in Griffiths v The Queen (1977) 137 CLR 293. The New South Wales Court of Appeal had considered that a remand of the type which occurred in that case was not a permissible sentencing procedure, and could not be supported as a mere exercise of the undoubted power of adjournment. The High Court disagreed and did not consider it to be part of a sentence, but a legitimate and therefore valid exercise of the power of adjournment. The validity of the process has been upheld in this State, at least as far as the District Court is concerned, in Director of Public Prosecutions (SA) v District Court (SA) (1995) 65 SASR 357. The validity was based substantially on the power of adjournment contained in s22 of the District Court Act 1991. As the Magistrates Court of South Australia has an almost identical power (s17, Magistrates Court Act 1991) it would appear that the Magistrates Court also has similar powers. In Director of Public Prosecutions (SA) v District Court (SA) (supra) Matheson J undertook a very useful survey of decisions in which the process had been reviewed. I do not intend to retraverse that ground. It is sufficient for present purposes that I refer to a dictum of Barwick CJ in Griffiths v The Queen (supra). In commenting on the nature of the remand and the circumstances in which it might properly be used he said, at p305:
“It cannot be doubted that that is a power available to the trial judge and, for that matter, regularly exercised. The judge can remand the prisoner in custody until brought before the court again to be dealt with at the end of the period of remand. But, also, it cannot be doubted that, instead of remanding the prisoner in custody, he may set him at large during the period of the remand. The prisoner may be set at large immediately and unconditionally or only upon his entry into a recognizance. It matters not whether the latter course is described as a grant of bail. The power to condition the setting at large during a period of remand upon entry into a recognizance of a stipulated kind is, in my opinion, beyond question.”
As to the circumstances governing its use, the Chief Justice went on to say (at p306):
“It is a course which must be reserved for proper cases, cases in which the guilty person will accept the delay in the determination of the sentence and submit to the compulsion towards reformation which that delay and the terms of a recognizance may involve: and in which there is a real expectation founded upon solid ground and not on mere sentimentality that such reform is likely to occur. It is a course which one would expect to be taken only by those who have had experience in this field and who have heard and evaluated the convicted person.”
Later, in R v Tindall and Gunton (1994) 74 A Crim R 275 at 276-277 Hunt CJ at CL added:
“More importantly, such a remand should only be granted where, in the event that rehabilitation and reform are achieved, it would be appropriate to impose a non‑custodial sentence. I have no doubt as to the validity of the Crown’s argument in this appeal that an offender would have a justifiable sense of grievance if a custodial sentence were to be imposed after he had complied with all the terms of a Griffiths remand.”
One of the features of the use of the Griffiths remand is that it is generally accompanied by conditions to which the defendant must agree. In Griffiths case itself the defendant had to agree to the conditions of the remand initially, and the remand could be terminated at the instance of the defendant if he decided that he wanted certainty in his sentence.
In addition to holding that the procedure was invalid, Street CJ in the New South Wales Court of Appeal in R v Griffiths (supra) also said (at p232):
“It is to be observed that such a sentencing practice takes the judge who embarks upon it significantly beyond the ordinarily accepted judicial role. It places him, in effect, in a supervisory relationship with the man or woman who may have been dealt with according to this practice, and it commits to the judge who follows this course a degree of involvement with the progress of the criminal during such period as may be specified in accordance with the practice.”
Carruthers J in R v Tindall (supra) described the Griffiths remand (at p282) as “an unsatisfactory practice”. Matheson J in Director of Public Prosecutions (SA) v District Court (SA) (supra) at 370 expressed some sympathy with the views of Street CJ and Carruthers J to which I have referred. I respectfully share that sympathy. Debelle J added a further warning in Radjevic v Police (1997) 67 SASR 478 at 483 where he said:
“Generally speaking, it should not be seen as a substitute for a bond. Otherwise the court will be engaged in a supervisory role over a long period, a role which is inconsistent with its judicial function and for which it is otherwise unsuited.”
That chorus of criticism was recently supplemented by Perry J in R v McMann (1997) 193 LSJS 467 at pp468-469:
“There are a number of problems associated with the Griffiths remand procedure. Not only does the process put a quite extraordinary strain on the defendant, but it could act to his or her detriment if, after the period of the remand, the indications are against successful rehabilitation. In such a case, the court would be justified in imposing a longer non‑parole period than might have been imposed if the offender had been sentenced without the remand being granted. Furthermore, I hardly think that it will ever be the case that the conduct of the defendant during the period of any such remand would be a reliable indicator of the prospects of rehabilitation once the sentencing process was completed.
Another factor which counts against the desirability of such a course in most cases is that it inevitably gives rise to the submission that, the defendant having been at large during the period of the remand on bail, it would then be unfair to impose a sentence of imprisonment, however much that might otherwise be indicated at that stage.
Any adjournment of the sentencing process for a substantial period of time, coupled with an order granting bail to the defendant, is apt to encourage the defendant to create, perhaps artificially, situations which might be thought to support a suspended sentence.
Furthermore, if any such procedure is ever contemplated, it would only be proper to permit it on the basis that an independent report is given to the court as to the outcome of the remand, in particular as to the conduct of the defendant during the course of the remand.”
I respectfully agree with all those criticisms and reservations. It is a process which should be used, if at all, sparingly and with great care. It may be appropriate in cases of or analogous to a situation where a defendant offers but requires time to make restitution - a factor which will obviously influence the actual sentence to be imposed. However, I can see no justification for its use merely as an alternative to the imposition of a bond under s39 of the Criminal Law (Sentencing) Act 1988 or of a suspended sentence. In my opinion a defendant is entitled to some degree of certainty in respect of his sentence, rather than having it hanging over him (in this case) for a period of more than two years after the offence. Furthermore, there is a danger that any custodial sentence eventually imposed, if suspended, will involve a much longer period of enforced good behaviour than the case might otherwise warrant. There is also the inherent risk that any penalty imposed at the end of the period, being influenced by the behaviour of the defendant demonstrated during the intervening period, will not be imposed for the offence in question but will contain an element of punishment for any intervening misbehaviour.
In my opinion, the use of the Griffiths remand was quite inappropriate in this case where the defendant had a substantial criminal record and was already on parole at the time of the relevant offence. Its inadvisability can be easily demonstrated by the events which have happened in this case. The learned magistrate’s intention that the appellant should have the opportunity of demonstrating that he can be of good behaviour whilst living in the community for a period of twelve months has been frustrated. That has occurred because almost half of that period will have been spent in custody in respect of events which occurred prior to the commencement of the remand period. In remanding the appellant the learned magistrate said:
“I am of the view that it will be of great benefit to you to have these matters hanging over your head for a long time and I intend therefore to postpone sentencing you for the assault in the driveway for a period that will coincide with the expiration of the bond imposed by Mr Kleinig (the sentencing magistrate in the Murray Bridge Court). That will take us to May of next year, some 11 months from here and provided that you commit nothing more serious than thinking about jay‑walking between now and then that I will have great regard to that fact provided you commit no offence of any type. If you commit no offence of any type between now and the end of May next year I will consider - consider - suspending any sentence of imprisonment that I impose...If you commit any offence this matter will be called back on and I will immediately proceed to sentence you for this offence of assault in the driveway.”
In this case not only was the remand on those terms not justified, but it bore none of the safeguards which have been a feature of most of the reported cases where the process has been considered. There was no option given to the appellant as to whether he was prepared to agree to the remand; there was no invitation given to agree to any conditions; such conditions as there were could only be implied from the learned magistrate’s remarks or from those which found expression in some very basic bail conditions, the subject of a long standing bail agreement which was ordered to be continued; it was not able to be terminated by the appellant (as in Griffiths case itself); there was no adequate supervision or reporting process set up; it was left quite open‑ended as to what the ultimate sentence might be, and there was no certainty that if the appellant were to be of good behaviour during the period, he would not face a custodial sentence. Perhaps it was the lack of clearly stated and agreed conditions which led the learned magistrate to the belief that, although no offence had been committed between the date of the remand and the date of the ultimate sentencing, a significant custodial sentence (six months imprisonment) was nevertheless warranted. What is of concern, however, is that the learned magistrate seems to have imposed the sentence for the assault, not because of any misbehaviour after the date of remand, but because of offences committed before the date of remand of which the magistrate had not earlier been aware. During the course of his sentencing remarks on 21 January 1998 the learned magistrate said:
“Despite the strong submissions that Ms O’Leary has made on your behalf, not just today but previously in June when I ordered that you be remanded for a 12 month period, I indicated then that if there was anything amiss that I would have the matter called forward and proceed to sentence. Indeed that has come about. Not, though, as Ms O’Leary rightly reminds me, as a consequence of behaviour occurring between June and now, but rather as a consequence of offending about which I was not in fact aware at that time, as the matter did not come before the court before me until 28 August. Shortly after that, of course, you pleaded guilty.”
The sentencing discretion for a number of reasons having plainly miscarried, the question remains as to what appropriate sentences should have been imposed by the learned magistrate on 21 January 1998. The facts remain that during an unexpired period of parole the appellant committed the assault, the dwelling house larceny and the larceny of petrol offences, the latter having occurred shortly after the appellant was placed on a good behaviour bond in respect of the dwelling house larceny. His criminal record was not good. It included numerous offences of assaulting police and resisting police. His early response to supervision was poor, but he had shown signs of improvement since his marriage in February 1992. Offences in the past had mostly been aggravated by consumption of alcohol, and there were signs that there had been a substantial change in his attitude to the community generally, to his past consumption of alcohol, and some insight shown into his previous problematic behaviour.
Had it been considered within a reasonable time after it occurred, the assault charge, standing alone, may well have justified a custodial sentence. Whether it did or whether it did not, the outcome of the dwelling house larceny may well have been different, had the Murray Bridge Court been aware of the plea to the assault. However, it would be improper now to take that into account in fixing a penalty for the other charges. Even if the assault might have justified a custodial penalty, it was quite wrong for the learned magistrate to impose one prematurely for no justifiable reason once he had embarked upon the course of the Griffiths remand. I consider that that remand was quite inappropriate. By itself it is not and cannot at present be the subject of an appeal. For all its defects, the learned magistrate had led the appellant to believe that his ultimate sentence for the assault would not be decided until the remand date of 4 June 1998, and that the result would depend on the appellant’s behaviour during that time. There were no known blemishes on that behaviour as at 21 January 1998, and there was therefore no justification for the conviction and custodial sentence then imposed for the assault. The Griffiths remand, inappropriate and defective as it may have been, should have been allowed to take its course, and in my opinion that should now happen.
The larceny of petrol was the third serious offence to have been committed during the unexpired parole period. As has already been mentioned, it was committed within a short time of the appellant entering his good behaviour bond for the dwelling house larceny. In my opinion, it warranted a custodial sentence. If imposed, that immediately brings into play the balance of the unserved sentence for which he was on parole. That requires anxious consideration of the totality principle to which I have already referred. As at the date of that offence (21 March 1997), the unexpired period of parole was 3 months and 28 days. Although larceny will always remain a serious offence, this one was at the lower end of the scale and was readily admitted to.
I initially announced an intended custodial period of one month to be served concurrently with the balance of the unexpired period of parole, my belief at the time being that a sentence of the order of four months would properly reflect the totality of the offending and the circumstances of the offender. Having announced that, Ms Davey, for the appellant, quite properly drew my attention to the fact that that might not be possible. I therefore adjourned the matter again for reconsideration. Ms Davey was quite right, and I had overlooked the provisions of s31(2) of the Criminal Law (Sentencing) Act 1988 which requires a custodial sentence to be cumulative upon the sentence in respect of which the appellant was on parole. I nevertheless considered that a custodial sentence was appropriate but that the one month that I had proposed, when added to the outstanding parole period, was becoming too high. I therefore indicated that I was intending a sentence of 14 days imprisonment for the larceny of petrol charges. Ms Davey then questioned my ability to do that, as it resulted in a greater custodial period than I had originally proposed. To acceded to Ms Davey’s suggestion would have meant imposing no custodial sentence on the larceny of petrol charges and no custodial sentence at all, because s75(1) of the Correctional Services Act would not have been invoked. The answer suggested by Ms Davey was that I could take notice of the fact that the appellant, by virtue of the learned magistrate’s order which had not been stayed, had been in custody for a little over seven weeks. I did not consider that to be a just sentence either in theory or in practice.
I considered that I had not made any formal orders and that the exposure of my process of reasoning should not produce what I would consider otherwise to be an unjust result. I therefore considered that a sentence of 14 days imprisonment was appropriate, which required the appellant to serve that period in addition to the unexpired period of parole of 3 months and 28 days. I considered that still to be within the appropriate range for the totality of the offending in question.
That left the penalty for breach of the bond. That was in part accommodated by the custodial sentence for the larceny of petrol. I did not consider that the totality principle justified any additional custodial penalty. In all the circumstances it seemed appropriate, therefore, to quash that sentence.
For these reasons I made the following orders on 13 March 1998:
Appeal allowed.
That the conviction and sentence imposed on Count 1 of the complaint of 5 September 1996 (the assault charge) be quashed.
That Count 1 of that complaint be remitted to the Magistrates Court of South Australia for further hearing before the sentencing magistrate on 4 June 1998 at 2.15pm in accordance with the directions made by that learned magistrate on 5 June 1997.
That the sentence imposed in respect of the larceny of petrol charges be varied to a sentence of imprisonment for a period of 14 days.
That the sentence referred to in paragraph 4 commence on the expiry of the balance of the sentence of 2 years imprisonment imposed in the District Court of South Australia on 19 July 1995 which was unexpired on 21 March 1997, namely the period of 3 months 28 days, which unexpired portion is required to be served pursuant to s75 of the Correctional Services Act 1982, and which period I note commenced on 21 January 1998.
That the order made in respect of the application dated 18 June 1997 for enforcement of the breached bond - namely, that the sentence of 28 days imprisonment imposed on 17 February 1997 be carried into effect forthwith - be quashed.
That the respondent pay the appellant’s costs of the appeal fixed at $150.
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