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 his community service
    officer. These matters came before the learned magistrate for disposal on 24 January 1994, together with charges in relation to various offences committed on 25 December 1993 - to which the respondent pleaded guilty and in respect of which penalties were imposed. The most serious of these was a count of illegal use, as to which he was sentenced to imprisonment for 4 months, suspended on entry into a bond of $100 to be of good behaviour for 12 months. The respondent admitted the breaches of bond alleged.

4. After hearing submissions of counsel, the learned magistrate, inter alia, had this to say as to the enforcement applications:-
    "These are difficult matters to deal with. On the one hand we
    have the obvious principle that if a court is to be taken
    seriously they must expect that their terms of a bond will be
    complied with, and if they are not, generally speaking the order
    should be that any suspended sentence should be served. The
    defendant has been far from impressive in his attitude to
    community service and as the prosecutor points out there are at
    least two bail estreatments on his record. That does seem to
    indicate a tendency not to treat court orders seriously. The
    simple fact of the matter is that the defendant has no excuse at
    all for failing to comply with these community service orders. Mr
    Ey points to the fact that to make the defendant now serve a
    suspended sentence would be out of proportion to the seriousness
    of the offending now before the court. He also points to the
    factors which I have already mentioned, namely that the defendant
    is in regular employment and it is a serious thing in today's
    economic climate to send a young man in employment to gaol. At
    the end of the day I am prepared to give a defendant one further
    chance. With some misgivings I am prepared to give the defendant
    another chance. He will need to understand that any further
    breaches of any type, whether by way of failure to comply with
    community service orders or commission of further offences will
    almost certainly result in immediate imprisonment. As to the bond
    of 16 December I refrain from revoking the suspended sentence and
    order the defendant forfeit the sum of $100. Time to pay 14
    months. As to the bond of November 1992 I refrain from invoking
    the suspended sentence and extend the bond by a period of one year
    to enable the defendant to complete the balance of community
    service owing, namely 142 hours. To report within 2 working days
    to Department of Correctional Services, Windsor Building, Windsor
    Square, Elizabeth."

5. The Crown complains of the orders made by the learned magistrate on the basis that the failure to comply with each of the bonds was not trivial and that there were no proper grounds established upon the basis of which either failure could have been excused.

6. The Crown further appeals against the suspension of the custodial sentence imposed in respect of the illegal use offence, upon the basis that no proper justification for that suspension existed.

7. As I read his sentencing remarks in this latter regard the learned magistrate appears to have been influenced by these factors:-
    . the illegal use offence and two other related offences
    committed at the same time were committed whilst the appellant was
    under the influence of alcohol;
    . although the appellant had a significant antecedent record, the
    learned magistrate had seen many which were worse;
    . the appellant had been in regular employment since 24 January
    1994 and had been in a steady relationship of some 8 months'
    standing;
    . the offending on the occasion in question (25 December 1993)
    was, in reality a single lapse, associated with undue consumption
    of alcohol, after the appellant had been able to keep out of
    trouble for a significant period of time. It is to be remembered
    that the Criminal Law (Sentencing) Act 1988, ("the Act") by
    section 58(1)(d) expressly stipulates that it is the primary duty
    of the Court, upon proof of a breach of bond supporting a
    suspended sentence, to revoke that suspension and order that the
    sentence be carried into effect. It is only empowered, by section
    58(3), to refrain from so doing where it is satisfied that the
    failure to comply was trivial, or there are proper grounds upon
    which the failure should be excused.

8. In the recently published reasons for decision in SA Police v Bowden (Olsson J, 10 May 1994, unreported, available on SCALE), I had this to say:-
    "The correct approach to a consideration of what constitutes
    proper grounds for declining to revoke the suspension of a
    sentence has been considered and reiterated by this Court on
several occasions. In R v Buckman (1988) 47 SASR 303, King CJ, in
    speaking of the then similar provisions of section 9 of the
    Offenders Probation Act commented that (at 304):-
    'The purpose of subs (5) is different. It authorises the
    probative court to avoid altogether the revocation of the
    suspension where there are factors relating to the breach itself
    which justify that course. One such factor is the trivial
    character of the breach. The other is the existence of proper
    grounds upon which the breach might be excused. I think that
    Parliament had in mind that a breach, although not trivial, might
    be of such a character that the activation of the sentence might
    be a quite disproportionate consequence of it. I think that the
    notion of excuse is not employed in the absolute sense of the
    breach being excusable in itself but rather in a relative sense of
    being excusable in relation to the consequences which would
    otherwise ensue. The notion is that of the failure being excused
    from being the catalyst of the activation of the sentence.'

9. The learned Chief Justice went on to make the point that two obvious bases for exercising the discretion were when there would otherwise be what he described as a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated; and also where the offence constituting the breach was of such a different character from that for which the sentence was imposed that it would seem inappropriate for the otherwise normal statutory consequences to flow. These examples were not, of course, intended to be exclusive, but have certainly been applied in subsequent cases such as Lawrie v The Queen (1992) 59 SASR 400 and R v Marston (1993) 60 SASR 320. In the former case King CJ commented that (at 402):-
    'It is true, of course, that difference in kind is only one of
    the considerations. In many cases it will not be a consideration
    of great importance, but where the difference in kind is combined
    with a disproportion between the seriousness of the breaching
    offence and the length of the sentence the activation of which is
    in question, the difference in kind becomes of greater importance.'

10. It should be recognised that any resort to section 58(3) of the CriminalLaw (Sentencing) Act must always proceed in the context of what fell from King CJ in R v Marston to this effect (at 322):-
'I repeat what I said in R v Buckman (1987) 47 SASR 303 at 304:
    "There is a clear legislative policy that in general a breach of a
    condition of a recognisance upon which a sentence has been
    suspended, should result in the offender serving the sentence
    which was suspended. A sentence of imprisonment is imposed and
    suspended only where imprisonment is fully merited but the court
    considers it appropriate to give the offender a last chance to
    avoid imprisonment by leading a law-abiding life. It is intended
    to be a sanction suspended over the head of the offender which is
    to be activated if there is a lapse into non-law-abiding ways.
    The court will not lightly interfere with the ordinary consequence
    of a breach of the recognisance."

It is of great importance that the courts adhere to that
    principle. Departure from it by the non-revocation of suspended
    sentences tends to undermine the integrity of the system of
    suspended sentences and their effectiveness as a means of
    deterring future offenders.'"

11. Those comments are no less apposite to the instant case. In relation to the initial exercise of a discretion to suspend a custodial sentence the Court is required (by section 38(1)) to come to a state of satisfaction that good reason exists for adopting that course. When contemplating such a possibility the prior record of treatment by the Courts of the offender in question is an important consideration.

12. In its decision in The Queen v Walker (1981) 27 SASR 315, the Full Court stressed that the power to suspend ought not to be exercised, unless there are grave and weighty matters in mitigation, where the offender has previously received the benefit of a suspended sentence. As Wells J there expressed the concept, offenders ought not to be allowed to mock the authority of the criminal courts or their attempts, in the interests of the community, to combine justice with mercy; and that the community is entitled to protection against offenders who demonstrate that they are bad risks. Of course, as I pointed out in Ienco v Kraft (1990) 155 LSJS 332, the Full Court was not there laying down some immutable rule. There will be cases, perhaps many cases, in which successive suspensions are both justified and desirable. However, as a matter of logic, an offender who has not profited from earlier leniency necessarily bears a heavy onus of demonstrating justification of successive suspensions. The task of so doing is rendered even more difficult when later offending follows a situation in which pre-existing bonds supporting earlier suspensions have plainly been breached. It must be a rare case indeed, in which a further suspension can be justified, because the breaches will normally indicate a serious disregard by an offender of any intention to honour obligations which necessarily form the condition for leniency.

13. It is true, of course, that an appellate court will never lightly interfere with the exercise of a sentencing discretion - the more so where it is dealing with a prosecution appeal. As I further pointed out in SA Police v Bowden:-
    "In reviewing this matter it is necessary to direct attention
    to the special situation of prosecution appeals. In my reasons
    for decision in Henderson v Burr (Olsson J, 30 October 1991,
    unreported) I referred to the approach articulated by King CJ in
The Queen v Osenkowski (1982) 30 SASR 212 and The Queen v Drewett
(1983) 35 SASR 344; and pointed out that the concept there
    discussed is no less applicable to prosecution appeals from
    decisions of the Magistrates Court.

14. The proper role of such appeals is to establish and maintain standards of punishment for crime, to permit the correction of idiosyncratic views of individual judicial officers and to correct sentences which are so disproportionate to the seriousness of a crime as to shock the public conscience. But mere disparity between what is done by a magistrate and what would be considered by me to be appropriate does not, of itself, justify allowing a prosecution appeal. As I said in Laxton v Justice (1985) 121 SASR
6:-
    '... that what must be avoided in considering prosecution
    appeals against sentence is the undesirable placing of an offender
    in double jeopardy, unless the situation manifestly demands
    intervention for the purpose of correcting idiosyncratic views of
    individual judicial officers or correcting a sentence which is so
    disproportionate to the seriousness of the crime as to be an
    affront to the public conscience.'

(See also SA Police v Young (1993) 172 LSJS 23.) True it is that the court was there directing attention to the primary sentence itself, but the essential principle involved is, in my opinion, no less applicable to situations in which an appellate court is being invited to review an exercise of discretion under section 58(3) of the Criminal Law (Sentencing) Act, adversely to the respondent to a prosecution appeal."

15. Bearing in mind those concepts of principle I turn to the submissions advanced in the present case. I do so against the background that no explanation ever appears to have been advanced for the breaches by the respondent of the two bonds earlier referred to. None was advanced before me.

16. On the other hand, in relation to the offending of 25 December 1993, it was put to the learned magistrate that -
    (a) The illegal use offence was a spur of the moment offence
    which occurred following the respondent's birthday due to an
    excessive consumption of alcohol.
    (b) The respondent was cooperative with police.
    (c) He made full and frank admissions.
    (d) An early plea of guilty was entered.
    (e) He had no prior offences of illegal use.
    (f) He was currently in stable employment with his father in a
    hardware business operating on New South Road, Wingfield, earning
    $380.00 nett per week.
    (g) He is in a steady de facto relationship with a woman who has
    two small children. This is a stabilising influence upon him.
    (h) He had already served 10 days in custody from the date of the
    offence in December 1993, which had had a sobering effect on him.
    (i) His offending was related to the excessive consumption of
    alcohol and that, since the offending, he had voluntarily attended
    at the Central Mission Alcohol Rehabilitation Service for
    treatment, which rehabilitation was progressing steadily.

17. On the hearing of the appeal Ms Clements, of counsel for the appellant did not really press the grounds of appeal as to merit related to the suspension of the custodial sentence for illegal use. Rather, she focused her attention on the breaches of bond and pointed out that, if the appellant was successful as to these then, by virtue of the provisions of section 38(2) of the Act, the suspension of the custodial sentence for illegal use could not stand and would have to be revoked. It therefore becomes unnecessary further to consider ground 2 of the appeal, other than to say that it seems to me that this situation was, at least from the respondent's point of view, close to the line. He was fortunate in exciting the degree of leniency which was accorded to him - the more so in light of his history of non compliance with earlier bonds.

18. This is not the first matter to come before me this month in which an offender has breached a bond by failing to discharge an obligation to perform community service. It is stating the obvious to say that the whole scheme of community service is at risk if the Courts do not adopt firm measures to ensure that bond obligations of this type are enforced.

19. At the end of the day the learned magistrate was primarily influenced by the fact that, if the suspensions were revoked, the practical end result would bear an immediate de facto requirement for the appellant to serve custodial sentences aggregating 16 months. Not only would this negate his sentencing strategy concerning the illegal use offence and the mitigating circumstances underpinning it, but it would manifestly give rise to a final outcome markedly disproportionate to the gravity of the breaches. Understandably, he sought some other, more acceptable course of action.

20. There is, in my opinion, no doubt that the disproportionality was such as to trigger the operation of a discretion pursuant to section 58(3) of the Act. The problem for the learned magistrate was how this could be exercised so as to ensure compliance of the respondent with his obligations.

21. The bond in relation to the building breaking and felony was still current. It seems to me that, extending it for twelve months to require completion of the community service attaching to it was, with respect, an effective and proper method of dealing with that breach. Indeed the respondent has, I am told, now performed 48 hours of the required service.

22. However, the bond in respect of the assault offence had expired and it could therefore not be extended. To merely estreat the sum of $100 and refrain from revoking the suspension, as a sanction for a failure to complete any of 120 hours community service, was, in my opinion, quite inadequate.

23. I consider that, at the very least, the respondent ought to have been required, pursuant to section 58(3)(b)(ii) of the Act, to enter into a further bond in the sum of $1 000 for a period of one year, conditions of that bond being a requirement to perform the 120 hours of community service and the other usual ancillary provisions, as a condition prerequisite to the continued suspension of the relevant custodial sentence.

24. The appeal will therefore be 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.