Were v Police No. Scciv-03-290

[2003] SASC 116

WERE v POLICE
[2003] SASC 116

Magistrates Appeal:  Criminal

1. PERRY J. (ex tempore) The appellant appeals against the penalty imposed upon her following her plea of guilty in the Magistrates Court sitting at Port Adelaide to a charge that on 30 March 2002 at Athol Park without reasonable excuse she contravened a term or condition of a bail agreement which had been entered into by her contrary to s 17 of the Bail Act (1985).

2. On the same occasion the appellant pleaded guilty to a separate charge that on 20 January 2003 at Mansfield Park she had again contravened a term or condition of a bail agreement entered into by her.

3. As to the latter charge, the magistrate entered a conviction without penalty. There is no appeal against that.

4. With respect to the offence committed on 30 March 2002, the magistrate recorded a conviction and sentenced the appellant to six weeks imprisonment. He suspended the sentence upon the appellant entering into a one year good behaviour bond in the sum of $200, with some eight conditions. These include conditions as to supervision by a probation parole officer; that she reside with her mother; that she attend such projects and programs as directed, particularly those with regard to cognitive and life skills; and that she comply with any instructions with respect to treatment for addiction to drugs or alcohol.

5. It is from that sentence the appeal is brought.

6. The appellant, who is a 21 year old woman, was released on police bail following her arrest on 24 March 2002 at Hanson Road, Woodville Gardens, on a charge of soliciting for prostitution. One of the conditions of the bail was that she not loiter on or within 100 metres of Hanson Road in the suburbs of Mansfield Park, Athol Park, Woodville Gardens or Woodville North. The breach of that condition occurred when she was seen loitering at about 8.30 am on 30 March 2002 on Hanson Road at Athol Park.

7. Pursuant to s 17(1) of the Bail Act (1985), a person who without reasonable excuse contravenes or fails to comply with a term or condition of a bail agreement is guilty of an offence punishable by a fine of $10,000 or imprisonment for two years. That section is subject to subs (2) which provides:

   “A penalty imposed under this section must not exceed the maximum penalty that may be imposed for the principal offence”.

8. The principal offence in this case, that is, soliciting for the purpose of prostitution, is an offence against s 25 of the Summary Offences Act (1953) which attracts a maximum penalty of a fine not exceeding $750. There is no provision for a penalty of imprisonment. It is clear then that the penalty under appeal cannot stand, as it exceeds the maximum penalty which may be imposed for the principal offence.

9. Quite properly, Mr Ahern, who appeared for the respondent conceded the appeal on the basis that the penalty was outside the range of penalties which could be imposed, having regard to the provisions to which I have referred.

10. There is no written record on the court file of the remarks made by the sentencing magistrate at the time when he imposed the sentence now under appeal. However, I have had the benefit of an affidavit from Mr Richard Coates who appeared as counsel for the appellant in the court below. In his affidavit, Mr Coates sets out the terms of the verbatim notes which he wrote down as the magistrate addressed the appellant before sentencing her. His account of the magistrate’s remarks has not been placed under challenge by Mr Ahern. In those circumstances, I am prepared to proceed on the basis that they are accurate. They are as follows:

    “You’re a druggie and you’ll die in the gutter. That’s your choice. Stand up in the dock with your chest in and behave like an adult. I don’t believe in that social worker crap. You abuse your mother and cause her pain. You can choose to be who you are. You can go to work. Seven million of us do it whilst 14 million like you sit at home watching Days of our Lives smoking your crack pipe and using needles and I’m sick of you sucking us dry.

    Little Johnnie taxes us with all sorts, and now with salt tax and maybe war tax. We dicks pay for your life. It’s your choice to be a junkie and die in the gutter. No one gives a shit, but you’re going to kill that woman who is your mother, damn you to death.”

11. Mr Coates deposes to the fact that the sentencing magistrate then proceeded to sentence the appellant on the earlier offence committed on 20 January 2003. The sentencing magistrate went on to say that with respect to the offence dated 30 March 2002, he would “teach her [the appellant] a lesson and give her an incentive”, following which he imposed the sentence now under appeal.

12. I must say that I have rarely encountered sentencing remarks which are so inappropriate, so abusive and so insensitive as those which the sentencing magistrate is reported to have made in this case. Mr Coates indicates in his affidavit that the appellant was visibly shaken by the sentencing magistrate’s comments. This is not surprising.

13. I cannot believe that the magistrate does not realise that a diatribe delivered by a magistrate sitting in court, expressed in abusive terms on social and other issues not germane to the case before him, coupled with personal abuse of the defendant, is entirely inappropriate.

14. This is not the first time upon which I have had occasion to comment on the inappropriate use of language by this particular magistrate, a circumstance which suggests to me that his predilection to indulge in such conduct is deep-seated, and further, that it is likely that he will go on resisting attempts to mend his ways.

15. Remarks such as those which the sentencing magistrate is reported to have made in this case have a corrosive effect upon public confidence in the functioning of the courts and in the administration of justice.

16. Magistrates and other judicial officers are perfectly entitled to speak in direct, straightforward language to defendants during the course of sentencing remarks. There are some occasions upon which a fairly robust use of language may properly be thought necessary in order to communicate satisfactorily to a defendant. But a sense of decorum must at all times be maintained, and the use of the vernacular must be conditioned by a sufficiently dignified delivery to ensure that respect for the courts is not undermined.

17. As for the appeal, and given the concession quite properly made by Mr Ahern, I allow the appeal and quash the sentence under appeal.

18. The appellant is a young woman who regrettably has accumulated a distressingly long record of largely petty offences. She has lived an unsettled, depressing and disadvantaged life. She spent four or five days in custody on this and the other charge which was dealt with at the same time, before being sentenced.

19. The proceedings with respect to breach of bail have dragged on far beyond the time when she has already been dealt with for the principal offence. I am given to understand that she was dealt with for the principal offence on 5 June 2002 when she was fined $50 on that charge.

20. In all the circumstances, given the history of the matter and notwithstanding the fact that she has on other occasions been guilty of breaching bail, the justice of the case will be met by imposing a conviction without penalty.

21. I substitute an order in those terms.