Were v Police No. Scgrg-00-503

[2000] SASC 231

[2000] SASC 231

WERE  v POLICE

1................ LANDER J....... This is an appeal against a sentence of imprisonment.  The appellant was charged that on 18 May 2000 she failed to comply with a condition of her bail agreement. She was brought before the Magistrates Court on 19 May 2000, pleaded guilty and was sentenced to be imprisoned for seven days.

1. She was released on a further bail agreement the same day after instituting this appeal.

2. The appellant was born on 19 January 1982, so had just turned 18 at the time when she committed this offence.  She has had a number of appearances in the Youth Court. She first came before that Court when she was aged 13, charged with assault. She has continued to offend on a number of occasions since that first appearance.  Most of the offences involve assault although she has been charged with some offences for dishonesty.

3. She has previously committed this offence of failing to comply with a bail agreement. She came before the Magistrates Court earlier this year for an offence committed on 20 October last year.  On that occasion she was not convicted but a fine of $20 was imposed.

4. The bail agreement which she had breached had been entered into on 20 October 1999.  The bail agreement related to two charges of larceny, two charges of robbery and one charge of receiving, all of which were alleged to have been committed in September 1999.

5. It was a condition of the bail agreement, at the time of this offence, that she reside at 12 Bridge Street, Rosewater and not be absent from those premises between the hours of 9:00pm and 7:00am unless in the immediate company of her mother or an adult person approved by her mother, or a Mr Schneider.

6. The breach of the bail agreement occurred when she breached that curfew by coming home drunk about two hours and 40 minutes late at 11.40pm.  The appellant had been drinking at her aunt’s house.  Her cousin’s boyfriend, whom she had known for some six years and whom she treated as part of her extended family, had died. She was mourning his death with her aunt and cousin. It was her intention to go to the deceased’s funeral in Ceduna a few days later.

7. She complains that the sentence of imprisonment for this offence was manifestly excessive.  In my opinion the appellant’s contention is correct.

8. Whilst the breach of any agreement is a serious matter the circumstances surrounding this breach did not warrant, in my opinion, a young woman of 18 years being sent to prison for seven days, especially when the bail agreement related to charges to be heard in the Youth Court the next week.

9. It has to be assumed, in the absence of any evidence, that the appellant had complied with all her bail conditions in respect of this bail agreement for a period of some months.  A failure to comply with one condition relating to a curfew immediately prior to the hearing of the charges for which she was on bail, in my opinion, did not warrant a sentence of imprisonment.

10. This is especially so in circumstances where, as she said, she was upset because of the death of her cousin’s boyfriend, and her conduct was an immediate result of his death.

11. The appellant is a young Aboriginal woman who has had a number of Court appearances as a juvenile. In sentencing the appellant, the Magistrate said that the appellant had nine pages of criminal convictions. That was wrong. She does not have any convictions. She has had a number of attendances before the Youth Court but no convictions have been recorded. 

12. The learned Magistrate also, in imposing sentence, said that the breach of this bail agreement had occurred when she failed to observe a curfew at 7:00pm.  That also was wrong.  The curfew, at the time that the offence was committed and the sentence was imposed, was 9:00pm. 

13. The Magistrate has made two errors in regard to the facts upon which he sentenced the appellant.

14. Imprisonment, in my opinion, was not called for. Imprisonment is a sentence which can only be imposed in the circumstances provided for in s 11 of the Criminal Law (Sentencing) Act 1988. The circumstances provided for in the section did not apply to this appellant.

15. Before I formally allow the appeal it is appropriate to mention that Ms Schultz, who appeared for the respondent, did not contend otherwise than for the result which I am about to announce. Her outline of argument was particularly fair. She identified the errors in the learned Magistrate’s sentencing remarks. She also pointed out that the learned Magistrate did not have any regard to the appellant’s Aboriginality in his sentencing remarks and was not sensitive to the appellant’s circumstances at the time she committed this offence. She drew to my attention s 11 of the Criminal Law (Sentencing) Act and submitted that the sentence of imprisonment must be regarded as a sentence of last resort.

16. In my opinion, this appeal should be allowed and the sentence of imprisonment should be set aside.

17. That leaves for my consideration the question of an appropriate sentence. Both Mr Charles, who appeared on behalf of the appellant, and Ms Schultz, suggested that it would be appropriate, in the circumstances, to impose a fine upon the appellant.  I agree that the appropriate punishment would be a fine.  Miss Were has an income of $185 per fortnight which comprises unemployment benefits, out of which she pays $80 per fortnight for her board. She is presently attending college, undertaking a literacy course because she is unfortunately illiterate.  In my opinion any fine which should be imposed should recognise her limited means and her efforts to improve herself.

18. There is also the question of a conviction. Section 16 of the Criminal Law (Sentencing) Act allows me to impose a fine without recording a conviction. For the reasons that I have given I believe that there are extenuating circumstances in that this offence was committed in circumstances where the appellant was suffering emotional distress. Therefore it would be appropriate for me to exercise my powers under s 16 of the Criminal Law (Sentencing)Act and fine Ms Were without first imposing a conviction.  The fine will be $20.00.

19. The formal orders of the court will be:

    1.     The appeal is allowed.

    2.     The sentence of imprisonment is set aside.

    3.     Without recording a conviction, the appellant is fined $20.

    4.     No order as to costs.