White v Police - [2007] SASC 428

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHITE v POLICE
[2007] SASC 428
Judgment of The Honourable Justice Gray
14 December 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - DETERRENCE
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - REHABILITATION
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY AND PREVENTIVE DETENTION
Appeal against a sentence of imprisonment imposed on a defendant for the offence of breaching bail - condition of defendant's bail was that he was not to enter Hindley Street - appellant arrested several days later on Hindley Street - appellant sentenced to period of imprisonment - Magistrate declined to exercise discretion to suspend sentence of imprisonment - whether the Magistrate erred in not exercising his discretion to suspend the sentence - whether the conditions of bail were properly explained to the defendant - whether the Magistrate should have been aware of the nature and circumstances of the principal offences.
Held, allowing the appeal: Magistrate erred in not suspending the sentence - the need to protect the community should be weighed against the object of assisting the defendant to rehabilitate - a supervised good behaviour bond, with appropriate conditions, will provide better prospects for rehabilitation and long term community protection than a period of immediate imprisonment - sentence of imprisonment reduced to 12 days having regard to time spent in custody - sentence is suspended on the defendant’s entering into a good behaviour bond for a period of 6 months with the condition that the defendant be supervised, that he follow the direction of and undertake such rehabilitation on other counts recommended by his supervising officer.
Bail Act 1985 (SA) s 11, referred to.
Archer v Police [2006] SASC 41; Trotter v Police (1997) 68 SASR 363; Nicholls v Police [2003] SASC 303; Dinsdale v The Queen (2000) CLR 321; Vartzokas v Zanker (1989) 51 SASR 277, considered.

WHITE v POLICE
[2007] SASC 428
Magistrates Appeal
GRAY J

This is an appeal against a sentence of imprisonment imposed for the offence of breaching bail.
Background
On 17 August 2007, the defendant and appellant, Leon Mitchell White, was arrested on Hindley Street, Adelaide. He was charged with disorderly behaviour, possessing liquor in a dry zone, refusing name and address, and resisting police. He was granted police bail. A condition of his bail provided:
I will not enter or remain in the area bounded by North Tce, King William St, Currie St and West Tce, ADELAIDE.
On 25 August 2007, the defendant was again arrested in Hindley Street. He was charged with failing, without reasonable excuse, to comply with a term or condition of his bail agreement.
The defendant pleaded guilty before a magistrate. When making submissions on penalty, counsel submitted that the defendant had misunderstood the bail agreement. It was said that he had thought that the bail conditions meant that he could not be on the streets nominated in the bail agreement, and that he did not understand that the condition meant that he could not be in the area bounded by the nominated streets.
The Magistrate imposed a sentence of imprisonment of 21 days, and declined to suspend the sentence. He remarked:
Defendant, you may have been still suffering from the effect of over-consumption of alcohol when you signed the bail agreement on 17 August 2007. However, this offence occurred eight days later and I would have thought that in that period of time you would have come to the realisation of what the terms and conditions of bail were. It seems to me this is a classic case of simply ignoring the conditions of bail and indeed treating the bail rules with contempt.
You have a number of prior convictions for breaching conditions of bail.
I take into account the time you have spent in custody. I consider that a term of imprisonment is appropriate.
Defendant will be convicted and imprisoned for 21 days. Defendant will also pay the court costs, levy and prosecution costs.
The Appeal
On appeal it was submitted that the sentence imposed was manifestly excessive. It was pointed out that the defendant had spent two days in custody before being granted bail and a further seven days before bail was granted pending appeal.
Counsel for the defendant had initially submitted on appeal that his client did not understand the condition of his bail agreement that he was not allowed to be in Hindley Street.
Affidavits filed by two police officers who were present when the defendant entered into the bail agreement outlined the procedures followed. Video footage annexed to one of the affidavits showed the entire process. The footage revealed that a police officer spent some time explaining in detail to the defendant that he was not allowed to be in Hindley Street. The officer indicated to the defendant the area bounded by North Terrace, King William Street, Currie Street and West Terrace, Adelaide, on a map. The defendant said that he understood, and that he was not allowed in “the city”. The police officer reiterated to the defendant that the area bounded “basically Hindley Street”. The defendant then signed the bail agreement. He then left the police station, and in the process “screwed up” his copy of the bail agreement and kicked it away.
The defendant gave sworn evidence on the appeal. This course was consented to by the respondent. It immediately became clear that, contrary to the earlier submission, the defendant did understand that a condition of his bail agreement was that he was not allowed in Hindley Street. The following exchange took place during evidence on the appeal:
[Counsel for the defendant]     What did you understand your conditions of bail to be.
[Defendant]  At that time?
[Counsel for the defendant]     Yes.
[Defendant]  I was just banned from Hindley Street.
[Counsel for the defendant]     What time was that.
[Gray J]  Sorry, could you repeat that, please.
[Defendant]  I was just banned from Hindley Street.
[Gray J]  Not be in Hindley Street.
[Defendant]  Not to be in Hindley Street.
[Counsel for the defendant]     Was that a bail condition that you entered –
[Defendant]  Yes.
[Counsel for the defendant]     – after you got your 21 days or before.
[Defendant]  Before.
[Counsel for the defendant]     Before.
[Defendant]  Yes.
[Counsel for the defendant]     How did you understand that to be your bail condition.
[Defendant]  Because it was written on the paper last time I got let out.
[Counsel for the defendant]     What, exactly, were the conditions of bail, do you remember.
[Defendant]Not to be in the vicinity of Hindley Street.
[Gray J]Do you understand there is a bail condition that you are not to be in the vicinity of Hindley Street.
[Defendant]Yes.
Following this exchange, counsel withdrew the submission that the defendant did not understand that a condition of his bail agreement was that he was not allowed to be in Hindley Street.
The video footage demonstrated the police engaging in what was accepted by counsel for the defendant to be model behaviour in ensuring that the defendant understood the terms of his bail agreement.
Counsel for the defendant submitted that the Magistrate should have been aware of the nature and circumstances of the principal offences, as the penalty for breach of bail is dictated by the maximum penalty provided for the principal offence. In Archer v Police,[1] Bleby J observed:
To some extent the penalty for breach of a bail agreement is dictated by the maximum penalty provided for the offence or offences for which the accused person is on bail. The penalty cannot exceed the maximum penalty that may be imposed for the offence charged. However, that imposes a maximum which is not relevant in this case. It does not require the penalty for breach of bail to be increased because of a high maximum penalty for the offence charged. Nor does it follow that merely because one of the criteria specified in s 11(1) of the Criminal Law (Sentencing) Act is met, a sentence of imprisonment must necessarily follow.
Counsel for the defendant submitted that the act constituting the breach of bail was committed before the offences in respect of which the defendant was on bail were presented to the Court by way of a complaint being laid. It was said that the Magistrate did not inquire and was not cognisant as to the nature and circumstances of the alleged principal offending. It was contended that the Magistrate should not have proceeded to sentence for the breach of bail offence without proper inquiry as to the circumstances of the principal offence or offences. Counsel for the defendant submitted that a sentencing court might not have imposed a sentence of imprisonment for the principal offences, but in any event proceedings had yet to be instituted so the relevant principal offences were still not known.
[1] Archer v Police [2006] SASC 41 at [23] (footnotes omitted).
Finally, the defendant submitted that the act of being in Hindley Street without any further circumstances of aggravation could not be said to be so grave as to require immediate imprisonment, having regard to the time spent in custody and to the sentencing options available.
The respondent submitted that there was no error by the Magistrate, and that the penalty imposed by the Magistrate was not excessive. Counsel emphasised that the defendant had 14 prior convictions for breach of bail from March 2000 to November 2006. There had been three prior estreatments of bail.
Consideration of the Issues
The breach of bail conditions is a serious matter. A primary purpose of bail is to ensure that a defendant attends court in accordance with the orders of the Court. A further purpose is the protection of the community, and to that end section 11 of the Bail Act 1985 (SA) authorises a bail authority to impose conditions of bail including supervision by a community corrections officer. There is a need to ensure that any penalty imposed acts as both a specific and general deterrent.[2] Notwithstanding these needs and the defendant’s prior criminal antecedents, I have reached the conclusion that the Magistrate should have suspended the sentence of the defendant, and have him enter into a supervised good behaviour bond for six months. My reasons for this conclusion follow.
[2] Trotter v Police (1997) 68 SASR 363; Nicholls v Police [2003] SASC 303; Archer v Police [2006] SASC 41.
There appears to have developed a public misconception about the nature of a suspended sentence. Such a sentence is often described simply as a defendant being released on a bond without any reference being made to the suspended term of imprisonment or the consequences of a breach of the accompanying bond. This is regrettable. The gravity of a suspended sentence of imprisonment has been repeatedly emphasised by this Court. It is a sentencing option provided for by statute and is generally understood to be the second most serious sentence that a court may impose. It is a sentence that provides a balance between rehabilitation, punishment and community protection in an appropriate case. It is an important sentencing option. The value of this option should not be undermined by currency being given to the present public misconception. Perry J recognised this misconception in Nicholls v Police.[3] Perry J observed:
[3] Nicholls v Police [2003] SASC 303 at [32].
As far as suspension of the penalty is concerned, it seems to me that insofar as there was an obvious need for general deterrence, a suspended sentence would not be appropriate. I say that because it is abundantly clear that many members of the public do not regard a suspended sentence as any sort of a penalty at all. In those circumstances, where the offence requires a penalty which will reflect a substantial element of general deterrence, a suspended sentence is, I would think, hardly ever the appropriate option.
With respect, I disagree. A misconception by the public as to the effect of a sentence should not deflect the court from imposing an appropriate sentence. This issue was addressed by Kirby J in Dinsdale,[4] when his Honour reviewed the statutory power of suspending a term of imprisonment:
[4] Dinsdale v The Queen (2000) 202 CLR 321 at [74], [76], [80]-[81], [84] (footnotes omitted).
The statutory power to suspend the operation of a sentence of imprisonment, although historically of long standing, is sometimes considered controversial. The “[c]onceptual [i]ncongruity” involved in this form of sentence has been criticised. It has been suggested that there is a temptation to use this option where a non-custodial order would have been sufficient and appropriate. It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all.
…
Whatever the theoretical and practical objections, suspended imprisonment is both a popular and much used sentencing option in Australia. Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified.
…
The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend.
A number of attempts have been made to resolve this tension and to provide guidance concerning the circumstances in which a sentence of imprisonment should be suspended. There is a line of authority in Australian courts that suggests that the primary consideration will be the effect such an order will have on rehabilitation of the offender, which will achieve the protection of the community which the sentence of imprisonment itself is designed to attain. But most such statements are qualified by judicial recognition that other factors may be taken into account. The point is therefore largely one of emphasis.
…
In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so.
The decision to suspend a sentence of imprisonment cannot be made on the basis of a formula, and undue weight should not be placed on the prospects of rehabilitation above the need for deterrence. These factors should be weighed together in determining an appropriate punishment for an offence.
The importance of the role of rehabilitation when sentencing was stressed by King CJ in Vartzokas v Zanker,[5] where the Court suspended an offender’s term of imprisonment on the basis of his good prospects for rehabilitation. King CJ observed:[6]
Rehabilitation as an object of sentencing is aimed at the renunciation by the offender of his wrongdoing and his establishment or re-establishment as an honourable law-abiding citizen. It is not confined to those who fall into wrongdoing by reason of physical or mental infirmity or a disadvantaged background. It applies equally to those who, while not suffering such disadvantages, nevertheless lapse into wrongdoing. The object of the courts is to fashion sentencing measures designed to reclaim such individuals wherever such measures are consistent with the primary object of the criminal law which is the protection of the community.
[5] Vartzokas v Zanker (1989) 51 SASR 277.
[6] Vartzokas v Zanker (1989) 51 SASR 277 at 279.
The need to protect the community should be weighed against the object of assisting the defendant to rehabilitate. There was no suggestion that the defendant posed a significant risk to the community. His arrest for breach of a condition of his bail agreement did not involve any act of violence – his breach was the fact that he was present in the vicinity of Hindley Street. Placing the defendant on a supervised six month good behaviour bond, with appropriate conditions, is likely to provide better protection to the community than imprisonment for a period of 21 days. After a period in custody the defendant is unlikely to be rehabilitated. It is probable that he will be in the same position as now. His antecedent history suggests that periods in custody do not provide personal deterrence.
Counsel for the respondent could not point to any rehabilitation programs that would be able to be undertaken in prison during a period of 21 days. A supervised good behaviour bond, with appropriate conditions, will provide better prospects for rehabilitation and long term community protection than a period of immediate imprisonment.
The defendant will have the opportunity to be in the community as a law-abiding citizen, and, importantly, will be given appropriate support through his supervising officer in order to achieve this. This, in turn, makes the community safer by attempting to address the causes of his offending.
In the course of the Magistrate’s reasons he observed:
It seems to me this is a classic case of simply ignoring the conditions of bail and indeed treating the bail rules with contempt.
It is apparent that the Magistrate made a finding that the appellant’s conduct involved a contempt with respect to the bail rules. This was an inappropriate basis on which to sentence the appellant. It is probable that the appellant entered Hindley Street at a time when he was intoxicated. This circumstance would provide a ready explanation for his conduct - an explanation not involving contempt. It follows that the Magistrate sentenced the appellant on an incorrect basis - one involving a circumstance of aggravation. For this reason there is a need to resentence the appellant.
I also consider that the Magistrate gave insufficient weight to the prospects for rehabilitation. In the short sentencing remarks, no reference is made to the possibility of a suspended term of imprisonment. Counsel for the appellant informed the Court that there was an indigenous support group ready to assist the appellant with accommodation and general guidance. A supervised bond is likely to further assist the appellant. It might be expected that the appellant’s supervising officer will be able to liaise with the indigenous support group to provide the support needed by the appellant.
Conclusion

The sentence of imprisonment is reduced to 12 days having regard to the time spent in custody. That sentence is suspended on the defendant’s entering into a good behaviour bond for a period of six months with the condition that the defendant be supervised, and that he follow the direction of and undertake such rehabilitation on other counts recommended by his supervising officer.
This appeal is allowed.