Wayne Robert Korber and Ruth Marian McAvaney v Daniel Peter Bailey No. SCGRG 94/567 Judgment No. 4601 Number of Pages 8 Criminal Law and Procedure (1994) 72 a Crim R 262 - [1994] SASC 4601

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA OLSSON J

CWDS
Criminal law and procedure - jurisdiction, practice and procedure - judgment and punishment - suspended sentences - revocation of - Crown appeal against failure to revoke suspended sentences on apPlication to enforce breached bonds - appellant failed to perform community service required by bonds - observations as to the proper grounds for excusing a breach of a bond supporting a suspended sentence - circumstances warranted refusal to revoke the suspensions, but appellant should be required to complete the community service he originally undertook to perform - the mere estreatment of one of the bonds by the magistrate not adequate - appeal allowed - as that bond expired appellant to enter a further bond requiring him to perform the community service originally undertook to perform. Criminal Law (Sentencing)Act, 1988ss 58, 38. SA Police v Bowden (Olsson J, l0 May 1994, unreported, available on SCALE)); The Queen v Walker (1981) 27 SASR 315 and Ienco v Kraft
(1990) 155 LSJS 332, applied.

HRNG ADELAIDE, 18 May 1994 #DATE 10:6:1994

Counsel for appellant: Ms M Clements

Solicitors for appellant: Crown Solicitor

Counsel for respondent: Mr S C Ey

Solicitors for respondent: Mangan Ey and Associates Pty Ltd

ORDER
Appeal allowed.

JUDGE1 OLSSON J In this matter the Crown appeals against an order made by a stipendiary magistrate in respect of two separate applications for enforcement of a breached bond.

2. By application made on 6 August 1993 it was asserted that:-
    . on 16 December 1992 the respondent entered into a bond of
    $100 to be of good behaviour for a period of 12 months, as a
    condition of the suspension of a custodial sentence of 6 months in
    respect of a conviction for assault occasioning actual bodily harm;
    . it was an express term of the bond that the respondent perform
    120 hours of community service within 12 months from the date of
    the bond and, until such time as the working the required number
    of hours was finished, to obey the lawful directions of the
    community service officer assigned;
    . the respondent failed to perform any of the community service or
    report as required by his community service officer.

3. By further application bearing the same date it was also alleged that:-
    . on 18 November 1992 the respondent entered into a bond of
    $100 to be of good behaviour for a period of two years, as a
    condition of the suspension of a custodial sentence of 6 months in
    respect of a conviction for building breaking and felony;
    . it was an express term of the bond that the respondent perform
    150 hours of community service within 9 months from the date of
    the bond and, until such time as working the required hours was
    finished, to obey the lawful directions of the community service
    officer assigned;
    . the respondent failed to perform other than 8 hours of the
    community service or report as required by…

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

AGLC: Wayne Robert Korber and Ruth Marian McAvaney v Daniel Peter Bailey No. SCGRG 94/567 Judgment No. 4601 Number of Pages 8 Criminal Law and Procedure (1994) 72 a Crim R 262 [1994] SASC 4601
Case: [1994] SASC 4601
Decision Date: 10 June 1994

CaseChat Overview and Summary

The Crown appeals against the decision of a Stipendiary Magistrate who declined to revoke the suspended sentences of Daniel Peter Bailey. The Magistrate had imposed suspended sentences and bonds requiring community service for two prior convictions. However, the Magistrate found that the breaches of the bonds were not trivial and declined to revoke the sentences. The Crown appeals on the basis that there were no proper grounds for excusing the breaches and that the Magistrate erred in suspending the sentence for the illegal use offence. The court examines whether the Magistrate had proper grounds for declining to revoke the suspended sentences and whether there were proper grounds for suspending the sentence for the illegal use offence. The court finds that the Magistrate was correct in declining to revoke the sentences as the breaches were not trivial, but the Magistrate's decision to estreat the bond and not require the appellant to complete the community service was inadequate. The court allows the appeal and orders that the appellant must enter into a further bond requiring him to complete the community service originally undertaken to perform. The court also finds that the Magistrate erred in suspending the sentence for the illegal use offence, as there were no proper grounds for doing so.

The appeal is allowed as to the breach of the bond entered into on 16 December 1992 and the order made by the learned magistrate in respect of it be set aside. In lieu there will be an order requiring the respondent to enter into a bond in the terms indicated, failing which the suspension of the relevant custodial sentence and that related to the illegal use offence will be revoked.

Orders