Wonnocott v Department for Correctional Services

[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.

3. 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.

4. 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.

5. According to the affidavit supporting the application pursuant to s 71(3)(a) of the Act, on 15 February 2008, the appellant’s Community Service Order was again varied to provide an extension of time. Following this variation, the appellant failed to report to his assigned community service placement and had four consecutive absences in the month of April 2008. He did not respond to a letter dated 18 April 2008 from his assigned Community Corrections Officer warning him of suspension from the community service scheme. He was then issued with a notice of suspension from the scheme on, and effective from, 2 May 2008.

6. On each occasion the appellant obtained an extension of time, the court impliedly found that the relevant breach was either trivial or there were proper grounds to excuse it. However, it is the appellant’s breach of the Community Service Order as varied on 15 February 2008, which brought about the relevant application pursuant to s 71(3)(a) of the Act, the admitted breach and the penalty.

7. It was submitted before the magistrate that the appellant witnessed an accident outside his home in October 2007, which exacerbated his psychological condition, and, in turn, his ability to perform the community service. A letter from Dr T van Wyngaard of the Bridge Medical Clinic dated 30 July 2008 was tendered in support of this submission and the request for a psychiatric report.

   Appeal

8. The appellant appeals against the order made by the magistrate on the following three grounds:

   1.That the learned Magistrate erred in law in failing to disqualify himself from imposing penalty in the within matter;

   2.That the learned Magistrate erred in law in failing to order a report into the psychiatric/psychological condition of the appellant at the time of the breach of the community service order; and

   3.That the learned Magistrate erred in law in failing to conclude that there were proper grounds upon which to excuse the appellant’s failure to complete his community service order.

   If the appellant succeeds on either of grounds 1‑3, the result will be that the order for imprisonment is set aside and the matter is remitted for rehearing.

   Did the magistrate err in declining to disqualify himself?

9. A judge or magistrate should disqualify him or herself from presiding over a matter if, in all the circumstances, “a fair-minded lay observer might reasonably apprehend that the judge [or magistrate] might not bring an impartial and unprejudiced mind to the resolution of the question that the judge [or magistrate] is required to decide”.[1] The test is one of “possibility (real and not remote), not probability”.[2] However, as the jurisdiction of a judge or magistrate is regularly invoked, and neither the judge or magistrate nor the litigants choose one another, an application for disqualification should not prevail unless there is a substantial ground for its having been made.[3] Further, if the question has been resolved, the test is not referable to what, in fact, influenced the judge or magistrate.[4] It does not matter if one apprehends the question will be resolved in a particular way; what matters is whether one apprehends it will not be resolved impartially.[5]

   [1]    Johnson v Johnson (2000) 201 CLR 488, 492; [2000] HCA 48 [11]. See also Re JRL; Ex parte CJL (1986) 161 CLR 342, 359; [1986] HCA 39 [4] (per Wilson J).

   [2]    Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 (per Gleeson CJ, McHugh, Gummow, Hayne JJ); [2000] HCA 63, [7].

   [3] Ibid 348 [19].

   [4] Ibid 345 [7].

   [5]    Re JRL; Ex parte CJL (1986) 161 CLR 342, 352; [1986] HCA 39 [5] (per Mason J).

10. The authorities on the question of actual or apprehended bias emphasise that the conduct of the judge or magistrate said to give rise to an apprehension of bias must be evaluated with reference to, and within its context.[6]

    [6]    See eg Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345; [2000] HCA 63, [8] (per Gleeson CJ, McHugh, Gummow, Hayne JJ); Vakauta v Kelly (1989) 167 CLR 568, 572; [1989] HCA 44 (per Brennan, Deane and Gaudron JJ); Galea v Galea (1990) 19 NSWLR 263, 279 (per Kirby ACJ).

11. In his reasons for refusing the application, the magistrate said:[7]

    Apparently he appeared before me on 24 July or thereabouts when his matter was adjourned until today. I have no recollection but apparently I told Mr Wonnocott to bring his toothbrush, to arrange his affairs, to give his employer notice that he would need three weeks from his work because he was staring at a sentence of imprisonment of 17 days. I see absolutely nothing wrong in saying that because under section 71 the onus is on the defendant to show that his breach was either trivial or that there are proper grounds in which the failure should be excused. I am asked to disqualify myself on the grounds that an observer might form the view that I had determined the penalty. I think that application is without any foundation at all, given that the onus is on the defendant to establish reasons why he should not be imprisoned. So the application … is rejected.

    [7]    Reasons for Decision, Department for Correctional Services v Wonnocott (Magistrates Court of South Australia, Magistrate Johansen, 27 August 2008) [2].

12. The magistrate in his remarks, set out above, noted that he could not recall making the remarks which were said to give rise to a reasonable apprehension of bias such that he should disqualify himself. He noted that he apparently said them in the context of the latter words, namely, “staring at a sentence of imprisonment”. According to the affidavit of the appellant’s counsel, Mr Stevens, after informing the court of his instructions that the appellant would be admitting the breach when the matter was next called on, the magistrate made the following remarks to the appellant: “bring your toothbrush”; “tell your boss you need three weeks off”; and “organise your affairs”. The respondent’s counsel on appeal, Mr Soetratma, accepts these remarks as the extent of what was said by the magistrate. However, he submits that even in isolation, they do not give rise to a reasonable apprehension that the magistrate had already determined penalty.

13. Mr Stevens submits that a fair-minded lay observer may reasonably apprehend from the magistrate’s remarks that he may not bring an unprejudiced and impartial mind to determining penalty when in receipt of all information pertaining to the circumstances of the breach and of the appellant.

14. Mr Soetratma submits that, taken in their legal context and alongside the other actions of the magistrate, the remarks made by the magistrate could not cause a fair-minded lay observer to reasonably apprehend that he would approach his task other than impartially. He points to the fact that it was clear the breach would be admitted from 24 July 2008, and that the onus of showing proper grounds would be upon the appellant if the breach were admitted. In addition, he points to the fact that had the magistrate determined the penalty when making the remarks on 24 July 2008, there would have been no need to adjourn the matter at all, and on the adjourned date, no need to order a pre‑sentence report. These factors, it is said, confirm to the fair‑minded lay observer that the magistrate would resolve the matter pursuant to s 71 of the Act.

15. I agree with the respondent’s submissions. A fair‑minded lay observer could not apprehend from the magistrate’s comments, in the context in which they were made, that the magistrate would approach his task other than impartially. In my view, the language he used was a colourful way of warning the appellant that he was at risk of being imprisoned. It was no more than that.

16. I dismiss the first ground of appeal.

    Did the magistrate err in declining to order a psychiatric report?

17. Section 8 of the Act provides the court with the power to order the preparation of pre‑sentence reports on the physical and mental condition of a defendant, if it is of the opinion that it would assist in determining penalty.

18. As mentioned earlier in these reasons, the magistrate was in receipt of a letter from Dr van Wyngaard of the Bridge Medical Clinic dated 30 July 2008. The letter speaks of the appellant having witnessed a motor vehicle accident outside his home on 29 October 2007, which exacerbated his psychological condition. Although there is no affidavit material as to the appellant’s employment status at the time of, and in relation to his breach, the instructions of his counsel on appeal, Mr Stevens, are that he obtained remunerated employment in the week commencing 4 April 2008, after already having missed his reporting requirement.

19. In his reasons for refusing to order a psychiatric report, the magistrate said:[8]

    I am asked to obtain a psychiatric report based upon the contents of a medical report dated 30 July 2008. I note the contents of that report talks about an accident occurring on 29 October. The report is silent about the year of the accident but I assume 2007. The comments made by the doctor are of concern but I also note the defendant has been employed in remunerated employment for a period of time. One would think that if he can undertake remunerated employment, he could have at least attended to perform his community service. Alternatively he could have kept his community service supervisors informed of why he was not performing community service. I cannot see any need for a psychiatric report in this matter.

    [8] Ibid [3].

20. I agree with the magistrate. If the appellant was able to undertake remunerated employment from the week commencing 4 April 2008, he should have been able to undertake his community service that month. Further, he should have also been able to, and should have responded to the letter dated 18 April 2008 from his Community Corrections Officer warning him of suspension. The objective fact of the appellant undertaking remunerated employment at and around the time of his breach tells against the assistance of a psychiatric report.

21. I dismiss the second ground of appeal.

    Were there “proper grounds” to excuse the appellant’s breach?

22. The discretion to excuse the breach of a Community Service Order pursuant to s 71(7) of the Act is in similar terms to the discretion to excuse the breach of a bond pursuant to s 58(3) of the Act. Both sections provide for the situation where the breach is trivial or where there are proper grounds upon which the breach should be excused. In R v Buckman,[9] the Full Court held that in determining whether there are “proper grounds” to excuse a breach, the Court looks to the nature of the breach and the circumstances in which it was committed. It does not specifically look to the offender’s personal circumstances.[10] However, an offender’s personal circumstances may become relevant if they necessarily inform the nature of the breach and the circumstances in which it was committed.

    [9] (1987) 47 SASR 303.

    [10]   See also Marshall v Police [1999] SASC 397, [29]-[31] (Unreported, Mullighan J, 17 September 1999); Juckers v Police (2002) 219 LSJS 61; [2002] SASC 91, [20].

23. In his remarks on penalty dated 15 October 2008, the magistrate noted that the pre-sentence report did not reflect well upon the appellant’s compliance with Community Service Orders. He then stated:[11]

    The Criminal Law (Sentencing) Act says I can only excuse the breach if the breach was trivial and I cannot say it was trivial at all. You have only done 68 hours out of 200 over the past 2 ½ years. Or there are proper grounds upon which the failure should be excused. The only ground relied upon is the psychological difficulty that you are apparently having after having witnessed the accident outside your home in October 2007. I cannot see that that is a proper ground on which to excuse your failure to do the community service.

    I add that had you done some of the hours, had you made some effort I would have said at least you are trying, you have had some difficulties but at least you are trying but you have not even tried. That leads to the conclusion you are not interested in doing the community service at all. Therefore there is no alternative but to order your imprisonment. The appropriate period given there are 132 hours outstanding is 17 days imprisonment. Accordingly I order you be imprisoned for 17 days.

    [11]   Remarks on Penalty, Dept Correctional Services v Wonnocott (Magistrates Court of South Australia, Magistrate Johansen, 15 October 2008) [8]‑[9].

24. Again, I agree with the magistrate. No error can be demonstrated. The submission, via the letter of Dr van Wyngaard, that the appellant’s psychological condition constituted “proper grounds” to excuse the breach was rejected by the magistrate for the same reason the submission that a psychiatric report would have assisted was earlier rejected by him. If the appellant was able to undertake remunerated employment from the week commencing 4 April 2008, he should have also been able to undertake his community service during that month.

25. I dismiss the third ground of appeal.

    Conclusion

26. For the above reasons, I dismiss the appeal.