Y v Police No. Scgrg-97-2607 Judgment No. S89

[1999] SASC 89

MONDAY, 8 MARCH, 1999

Y v POLICE
[1999] SASC 89
Magistrates Appeal
1 PRIOR J         The appellant is now 19 years of age.  He appeared in the Youth Court in September 1996 on a charge of illegal use.   For this offence he was sentenced to nine months detention, the detention being suspended upon the appellant agreeing to an obligation to be of good behaviour for a period of 12 months and to perform 320 hours of community service during that time. 
2 The appellant failed to comply with the undertaking as to community service. Early in July 1997, an application was lodged pursuant to s57 of the Criminal Law (Sentencing) Act 1988, alleging a failure to observe conditions of the obligation. A magistrate ultimately heard the application at Berri on 20 January 1999. The reasons for the delay in having the matter dealt with have not been fully explained to this court. Endorsements on the court file make it plain that if anyone was to blame for the delay in disposing of this matter in this case it was the appellant. There was reference by him, before me, to the fact that soon after April or July of 1997 he went fishing interstate for three months. He said that this was an opportunity for him to rehabilitate himself. As was made plain, in the course of argument, the appellant's responsibility was to make known his activities to those to whom he was obligated, be they within the Department of Family & Community Services, the courts, or a combination of both.
3 The matter was ultimately heard at Berri on 20 January 1999.  The appellant was then represented by counsel.  The magistrate revoked the suspension and ordered the appellant to serve the sentence of nine months detention. 
4 By the Notice of Appeal, it was said that the penalty imposed was excessive. By other grounds of appeal, it was said that the magistrate did not take into account that the order for suspension was made in 1996, when the youth lacked proper guidance. It was said that the youth had made serious attempts to reform since then. A further ground of appeal was that the magistrate erred in not ordering an extension of time within which to complete community service. That ground of appeal was abandoned on the hearing of the appeal. It was also said that the magistrate did not consider the appellant's possibility of reform as the Young Offenders Act 1993 required. Finally, it was said that the magistrate did not take into account that the appellant had not committed any other criminal offence since the order was made in 1996.
5 In the submissions before this Court, counsel focussed attention, almost entirely, upon the provisions of s58(4) of the Criminal Law (Sentencing) Act to argue that there were now special circumstances justifying a reduction of the term of the suspended detention order.
6 In the court below, the magistrate was told that the appellant had completed but 88 hours of the 320 hours community service ordered.  He had before him affidavits from two officers of the Department of Family and Community Services.  They disclosed that, on 1 April 1997, the appellant was told by his supervisor that because of his consistent absenteeism to that date, if he was absent again without a good reason such as employment or sickness, he would need to produce a medical certificate or other explanation for his failure to discharge his community service obligations.  He was also told that the supervisor would consider suspending him from the programme pending breach proceedings.  The appellant was told to attend every Monday, Tuesday and Wednesday from the following day.  Nothing could have been plainer.  The appellant did not attend on any day within the next week.  On the following day, 8 April, he produced a medical certificate excusing him from work on 7 April alone.  He was again directed to attend every Monday, Tuesday and Wednesday from 9 April.  On 9 April the appellant failed to attend as directed, telephoning and saying that he had been up all night vomiting.  The supervisor said the appellant said he would provide a medical certificate when he next attended.  His next attendance was not until 14 April 1997 when he worked for the day.  On that occasion he did not provide a medical certificate.  One was provided the following day.  That stated that the appellant had "sleep problems for a week and was unfit for work from 14 April".  Again the appellant was advised that if he was absent on more occasions he would have to present a medical certificate on his next attendance.  If he failed to do so, he would be sent home and suspended from the programme pending breach proceedings. 
7 The appellant failed to attend on 16 April.  The supervisor telephoned the youth the following day when the appellant said he had not attended as required because he was helping his mother pack up her belongings, as she was moving.  At that time, the appellant told his supervisor that he would attend the following day to make up for lost time.  He did not attend the following day, nor did he attend three days later when, in accordance with directions, he was required to attend.  On that occasion the appellant telephoned to say he had an appointment and that he would attend the following day.  Notwithstanding this, the appellant did not attend again, either the following day or the day after that.  However, on 26 April, a Saturday, the appellant did attend for community work.  On that occasion another officer of the department asked for medical certificates.  When they were not produced that officer requested the appellant to leave and telephone his supervisor the following Monday or to attend in person.  Her was yet another example of what I tried to put to the appellant this morning of opportunities arising for him to show his good intention and he thumbing his nose at authority notwithstanding that opportunity.  The appellant failed to do what he was asked to do on that occasion, neither telephoning his supervisor nor making any other contact with anyone in the Woodville Community Services Centre office.   According to the supervisor, no medical certificate offering due reason why the appellant had failed to attend has since been received. 
8 The prosecutor relied upon the breaches proved by the affidavits tendered, claiming that the appellant's poor attendance record and lack of response to directions from his supervisor, called for the revocation of the order suspending the period of detention imposed in September 1996. 
9 The appellant's counsel told the magistrate that when the appellant was sentenced for his offence, he had no proper guidance or direction.  He had no fixed home address and no stable family background.  He had been in the company of people who were a bad influence on him.  The appellant had not committed any offences subsequent to the imposition of the sentence in September 1996, and he had taken steps to reform and obtain employment, assisting his step-father in loading a truck and accompanying him to New South Wales.  It was hoped that this experience would assist the appellant to obtain future employment.  It was said that the appellant was no longer in the company of people who had been a bad influence on him. 
10 The affidavits do not disclose that the magistrate was told anything about the fishing in Darwin.  The magistrate was told that the appellant's supervisor was willing to have the appellant back into the Community Service Programme again if the court was willing to allow an extension of time for completion of community service. 
11 The submission was made to the magistrate that it was far more beneficial for the appellant and community if the appellant would complete the balance of his community service rather than be taken into custody.   The appellant's counsel said that the appellant realised his record of non-compliance with his obligation was unsatisfactory, and that he would do whatever was required of him to make amends for his previous mistakes. 
12 The magistrate was brief in his remarks.  He referred to the fact that the appellant had completed but 88 hours of the 320 hours ordered, and said there was no reason, let alone any satisfactory reason, advanced for the failure to complete the outstanding balance.  Upon that basis, the magistrate ordered the sentence of nine months detention be carried into full force and effect. 
13 The absence of a particular reference by his Honour to the submissions put on the appellant's behalf does not establish that the magistrate failed to consider those submissions. The magistrate's obligations, as imposed by the provisions of s58 of the Criminal Law (Sentencing) Act were clear. Unless the appellant's failure to comply with his obligation was trivial, or there were proper grounds upon which the failure could be excused, the revocation of the suspension of the detention order was to occur.
14 The material before the magistrate disclosed the appellant's failure to comply with the community service order was not a minor breach. His attendance record was dreadful. He failed to respond to his supervisor's directions, and failed to attend after promising to do so. Some six months after the community service order had been made, he had been warned about his consistent absenteeism. Nonetheless, he continued in the same way. The breaches could not properly be excused and the power contained in s58(3) of the Criminal Law (Sentencing) Act invoked.
15 The magistrate was certainly entitled to take the view that the appellant's failure to perform community service was contumacious and a deliberate flouting of authority.  It has been observed in this court before that the obligations of conditions of a bond as to the performance of community service work are not to be treated lightly.  They are part of the sentence ordered by the court.  A court should not lightly interfere with the ordinary consequence of a breach of a bond or obligation, whether the offender be a youth, young, or otherwise .  The fact that some community service work has been performed does not in itself amount to special circumstances to reduce the term of the suspended sentence where a court revokes the suspension 
16 There is nothing in the submissions put to me which justify me in interfering with the exercise of the discretion by the magistrate. Nor does the additional material make good special circumstances, as that phrase is understood in s58(4). I agree with the submissions put to me by counsel for the respondent as to a proper understanding of that provision. One must accept that this experienced magistrate was well aware of his powers under s58 and that he considered their exercise against the submissions put to him. His extempore reasons indicate clearly enough that he found no proper grounds to excuse the appellant's failure, and that, in his view, no special circumstances were made out to justify any reduction of the term of the suspended sentence.
17 Clearly, there were no subsequent circumstances of a special nature to render the initial sentence inappropriate .  This is not a case where it could be said that there was undue delay in instituting the proceedings, or that rehabilitation has occurred . 
18 No ground has been made out upon which this court would be justified in exercising and interfering with the exercise of the discretion by the magistrate.  The further explanation proffered by the appellant for a period of absence after these proceedings were instituted is, in itself, insufficient to make the matter any different. 
19 Even with this further material and taking the most favourable view of it, that I can, on the appellant's behalf,  I still have to discharge a painful duty, with the same result as was arrived at by the magistrate. 
20 I hope that the appellant will appreciate, from what has been said in the course of the hearing of this appeal, that there is an alternative procedure available if only he is able to convince people that he can now be trusted. He must understand that he cannot flout the law. He must do what the law expects of him. He may be able to persuade the relevant authority that the powers contained in s41 of the Young Offenders Act could, and should be exercised in his favour to enable him to secure some form of supervision in the course of home detention, as opposed to remaining in the detention centre for what, I am sure to him, seems to be an inordinate period of time. The appellant must understand that it is for him to decide and determine what he wants to do with his life and to persuade people and authority that he can be trusted. The sooner he seeks to convince people about that the better for us all.
21 The appeal is dismissed.