Wonnocott v Department for Correctional Services

Case [2009] SASC 18

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

WONNOCOTT v DEPARTMENT FOR CORRECTIONAL SERVICES

[2009] SASC 18

Judgment of The Honourable Justice David

30 January 2009

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - WARRANT OF COMMITMENT

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS - COMMUNITY BASED ORDERS

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - ABNORMAL MENTAL CONDITION

PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS

Magistrate imprisoned appellant for 17 days pursuant to s 71 of the Criminal Law (Sentencing) Act 1988 (SA) for breaching Community Service Order – whether magistrate erred in declining to disqualify himself – whether magistrate erred in declining to order psychiatric report – whether magistrate erred in finding no proper grounds to excuse breach.

Held (dismissing the appeal):  Fair-minded lay observer could not apprehend that magistrate would approach imposition of penalty other than impartially – fact that appellant undertaking remunerated employment at time of breach told against assistance of psychiatric report and finding of proper grounds upon which breach of community service could be excused.

Criminal Law (Sentencing) Act 1988 (SA) s 8, s 58, s 71, referred to.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Johnson v Johnson (2000) 201 CLR 488; R v Buckman (1987) 47 SASR 303; Re JRL; Ex Parte CJL (1986) 161 CLR 342, applied.
Juckers v Police (2002) 219 LSJS 61; Marshall v Police [1999] SASC 397 (Unreported, Mullighan J, 17 September 1999), discussed.
Galea v Galea (1990) 19 NSWLR 263; Vakauta v Kelly (1989) 167 CLR 568, considered.

WONNOCOTT v DEPARTMENT FOR CORRECTIONAL SERVICES
[2009] SASC 18

Magistrates Appeal

DAVID J.

Introduction

  1. This is an appeal against an order by a magistrate that the appellant be imprisoned for 17 days for failing to comply with a Community Service Order, pursuant to s 71 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”).

    Background

  2. The appellant appeared represented before a magistrate sitting in the Mount Gambier Magistrates Court for the hearing of the application pursuant to s 71(3)(a) of the Act on 24 July 2008. The application was adjourned to 27 August 2008, at which time the appellant made two separate applications. The first application was for the magistrate to disqualify himself from imposing penalty. The second application was for the magistrate to order a psychiatric report for the purpose of determining whether there were proper grounds to excuse the breach of the Community Service Order. The magistrate refused both applications, but proceeded to order a pre-sentence report, with a particular emphasis on the appellant’s performance of previous Community Service Orders. He then adjourned the application for further hearing and determination on 15 October 2008.

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AGLC
Wonnocott v Department for Correctional Services [2009] SASC 18
Case
[2009] SASC 18
Decision Date

CaseChat Overview and Summary

In this case, the appellant, Wonnocott, appealed against an order made by a magistrate that he be imprisoned for 17 days for failing to comply with a Community Service Order, pursuant to s 71 of the Criminal Law (Sentencing) Act 1988 (SA). The appeal was heard in the Magistrates Court of South Australia. The appellant argued that the magistrate had erred in declining his applications to disqualify himself from imposing the penalty and to order a psychiatric report to determine whether there were proper grounds to excuse the breach of the Community Service Order. The appellant also argued that the magistrate had erred in finding that there were no proper grounds to excuse the breach.

The legal issues before the court were whether the magistrate had erred in declining to disqualify himself, declining to order a psychiatric report, and in finding that there were no proper grounds to excuse the breach of the Community Service Order. The court considered the relevant provisions of the Act and the principles of judicial impartiality and discretion. The court found that the magistrate had not erred in declining to disqualify himself, as the fact that the appellant was undertaking remunerated employment at the time of the breach did not give rise to a reasonable suspicion of bias. The court also found that the magistrate had not erred in declining to order a psychiatric report, as the appellant’s employment at the time of the breach told against the assistance of such a report. Finally, the court found that the magistrate had not erred in finding that there were no proper grounds to excuse the breach, as the appellant had failed to demonstrate any exceptional circumstances that would warrant an excuse.

The appeal was dismissed. The court held that the magistrate had not erred in declining to disqualify himself, declining to order a psychiatric report, or in finding that there were no proper grounds to excuse the breach of the Community Service Order. The court found that the magistrate’s decision was not affected by any error of law and that the penalty imposed was appropriate in the circumstances. The court also noted that the appellant had failed to demonstrate any exceptional circumstances that would warrant an excuse for his breach of the Community Service Order.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against an order by a magistrate that the appellant be imprisoned for 17 days for failing to comply with a Community Service Order, pursuant to s 71 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”).Background The appellant appeared represented before a magistrate sitting in the Mount Gambier Magistrates Court for the hearing of the application pursuant to s 71(3)(a) of the Act on 24 July 2008. The application was adjourned to 27 August 2008, at which time the appellant made two separate applications. The first application was for the magistrate to disqualify himself from imposing penalty. The second application was for the magistrate to order a psychiatric report for the purpose of determining whether there were proper grounds to excuse the breach of the Community Service Order. The magistrate refused both applications, but proceeded to order a pre-sentence report, with a particular emphasis on the appellant’s performance of previous Community Service Orders. He then adjourned the application for further hearing and determination on 15 October 2008. Section 71 of the Act reads as follows:71—Community service orders may be enforced by imprisonment(1)Subject to this section, an order of a court or authorised officer requiring performance of community service is enforceable by imprisonment in default of compliance.…(3)If it appears to the court, by evidence given on oath, that a person has failed to comply with an order requiring performance of community service, the court may—(a)issue a notice requiring the person to appear before the court at the time and place specified in the notice to show cause why a warrant of commitment should not be issued against the person for the default;…(5)If the court is satisfied that the person has failed to comply with the order requiring performance of community service—(a)the court may issue a warrant of commitment for the appropriate term of imprisonment fixed in accordance with subsection (2);…(7)Despite subsection (5), if the court is satisfied that the failure of a person to comply with an order requiring performance of community service was trivial or that there are proper grounds on which the failure should be excused, the court—(a)may refrain from issuing a warrant of commitment; and(b)may—(i)extend the term of the order by such period, not exceeding six months, as the court thinks necessary for the purpose of enabling the person to perform the remaining hours of community service (if any);(ii)if the order has expired, impose a further order, for a term not exceeding six months, requiring the person to perform the number of hours of community service unperformed under the previous order;(iii)cancel the whole or a number of the unperformed hours of community service under the order. In remarks on penalty dated 15 October 2008, the magistrate set out the background to the application. The appellant had initially been fined for a number of offences. In May 2006, those fines were remitted and an order was made that the appellant perform 200 hours of community service instead. The appellant performed some of the hours of community service, but failed to complete them within the time allowed. On two separate occasions he sought and obtained a variation of his Community Service Order to provide for an extension of the time within which he had to complete the hours of community service.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J
I dismiss the third ground of appeal.Conclusion For the above reasons, I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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