CASTON v POLICE No. SCCIV-02-205 [2002] SASC 222

WICKS J This is an appeal against the revocation of an order for community service and the imposition of a sentence of imprisonment of 40 days.

Section 71(1) of the Criminal Law (Sentencing) Act 1988 provides that an order of a Court requiring performance of community service is enforceable by imprisonment in default of compliance.

On 29 May 2001, the appellant was ordered by the Magistrates Court to undertake 320 hours of community service within eighteen months. In connection with that service, the appellant was also required to report for duty within two working days of the notification of the order at the Adelaide Office of the Department of Correctional Services. He failed to perform any community service as required by the order. Also, he failed to report for duty and gave no satisfactory explanation for so failing.

Section 47 of the Criminal Law (Sentencing) Act requires a person performing community service to perform such service at a rate of not less than four hours each week.

After the hearing on 29 May 2001, a notice in Form No 6 under the Criminal Law (Sentencing) Regulations 1988 was served personally on the appellant. Such notice set out the order made on 29 May 2001 and also set out the consequences of non-compliance. The relevant paragraph of the notice was as follows:

"WHAT CAN HAPPEN IF YOU FAIL TO COMPLY WITH THIS ORDER:

If you fail to comply with any part of the order set out above, you can be sentenced to imprisonment ... for a period not exceeding 6 months, calculated in the case of a breach of clause 1 [the obligation to perform community service], on the basis of 1 day for each 8 hours of community service not performed.

Duplicate notice handed to the above named person on the date set out hereunder."

The notice is signed at the foot by both the person serving the notice and the appellant who acknowledged receipt of the document. According to the notes at the foot of the notice, it was served on the appellant on 29 May 2001 at 12.40 pm.

Section 71(3) of the Criminal Law (Sentencing) Act provides that 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 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.

In the period from 29 May 2001 to 18 July 2001, none of the 320 hours of community service had been worked, the appellant failed to report to the Community Correctional Centre within the two-day period as required, and further, failed to answer letters sent to him regarding work appointments.

On 7 August 2001 a further notice was served personally on the appellant. It recited that he was ordered to perform community service and that an affidavit had been received alleging that the appellant had refused or neglected to perform the services. The notice advised that the Registrar of the Magistrates Court intended to give consideration to the issue of whether the alleged refusal or neglect to comply with the Court's order was in breach of that order. The hearing of the matter was listed for 21 August 2001.

The matter again came before a Magistrate for hearing on 9 January 2002. The appellant admitted breach of his obligation to perform community service. The community service order was revoked and the appellant was sentence to imprisonment for 40 days.

The appellant told the Magistrate that the reason for his non-compliance with the community service order was that he was in remunerated employment at the time. He stated that he was intending to attend community service in January or February in 2002. The learned Magistrate did not accept the appellant's explanation. In any event, under s 47 of the Criminal Law (Sentencing) Act a minimum of community service had to be performed each week and this requirement would not be met by leaving the performing of community service until January and February of 2002.

The appellant represented himself before the Magistrate.

Section 71(1) and 71(2) of the Criminal Law (Sentencing) Act 1988 read as follows:

"(1) Subject to this section, an order of a court ... requiring performance of community service is enforceable by imprisonment in default of compliance.

(2) The term of imprisonment to be served in default of compliance will be -

(a) a term calculated on the basis of one day for each eight hours of community service remaining to be performed under the order; or

As appears from s 71(2)(a), 40 days of imprisonment is the correct period of time to be substituted for a breach of a community service order for 320 hours. It will be observed that the requirements of s 71(1) are mandatory. The only avenue for leniency is set out in s 71(7). The terms of this subsection are as follows:

"(7) ... 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

(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 Allen v Department of Correctional Services (1996) 187 LSJS 300, the appellant was also sentenced to 40 days of imprisonment by way of penalty for failure to perform a community service order. The term of imprisonment was imposed following a long history of the appellant avoiding his obligation to undertake community service. Perry J found at p 302 that "There is no suggestion that the failure to comply with the order as extended could possibly be characterised as trivial". Perry J also stated at p 303:

"The plain fact of the matter is that there is a deterrent aspect in sentencing for this offence which should not be overlooked. Clearly there is a need to send a message to the community that community service orders must be complied with, and that if they are not, some other penalty is likely to be imposed."

In my opinion, this is a case where the failure to comply with a community service order cannot be characterised as trivial. The appellant has been given every opportunity to undertake the community service as required. Instead, he has chosen persistently to ignore the order and has failed to take advantage of previous leniency extended towards him. The breach was not trivial within the meaning of s 71(7) of the Act.

I am unable to find that there are proper grounds on which the appellant's failure to comply with the community service order should be excused. There is no basis for interfering with the decision of the learned Magistrate on this point.

However, if a custodial sentence is in contemplation, as was the case here, the learned Magistrate should have warned the appellant of the possibility that he might receive such a sentence and offered to grant him an adjournment to enable him to obtain the services of counsel or at least, the services of a solicitor, to advise him generally on his situation. As far as I can ascertain from a perusal of the court file and the Magistrates Court file, no warning of the kind suggested was given to the appellant. I see this matter as quite unrelated to the defences arising under s 71(7) of the Criminal Law (Sentencing) Act. Generally, see Cooling v Steel (1971) 2 SASR 249 at pages 250 to 252. and Ivanoff v Linnane (1979) 20 SASR 279.

" ... the defendant should be made to appreciate that the plea is entirely a matter for his own independent decision, and that he is entitled to legal advice and representation; in particular, that he may ask for a reasonable adjournment to seek that advice or representation. If the question of bail arises, the defendant should be made clearly aware of what bail is and that he can apply for bail, and of what matters a court takes into account when an application for bail is made; he should also be told that he can make representations in support of his application.

If the case is to be proceeded with, the defendant should be informed of the seriousness of the charge, and of the penalties that may be imposed - especially where the court has power to ... record a term of imprisonment. It should be made clear that if a plea of guilty is offered and recorded, the defendant may put matters in mitigation either by unsworn statement or on oath ... and that he may call witnesses or produce other relevant material for the consideration of the court. Before the facts are placed before the court, the defendant should be informed that he is entitled to dispute or comment upon the facts alleged by the prosecutor ..."

In Franks v Police (Unreported 8 October 1998, Judgment no.S6897) Bleby J said:

" It is well settled that in the case of a self-represented defendant, where a magistrate is contemplating an order of imprisonment, the defendant should be informed of that and be given an opportunity of seeking legal advice: Cooling v Steel (1971) 2 SASR 249; Ivanoff v Linnane (1979) 20 SASR 279. The principles expounded by Wells J in Cooling v Steel (supra) require that a self-represented defendant is appraised of his rights and duties at all times, and that the court should take whatever steps are necessary to ensure that the proceedings are free of error or misunderstanding."

I draw attention to the notice at the bottom of Form No 6 in the Criminal Law (Sentencing) Regulations. It is set out verbatim earlier in these reasons. The notice would serve a useful purpose if the proceedings in question were to commence shortly after the giving of the notice on 29 May 2001; but that is not the case here. In the present case over 7 months had elapsed before the sentencing hearing proceeded. That notice would have long since been forgotten by 9 January 2002 when the Court resumed for the purpose of fixing a penalty.

After the learned Magistrate had made an order that the appellant serve 40 days imprisonment, the appellant appealed to this Court. His ground of appeal was as follows:

"The learned Special Magistrate erred in; (1) ordering I serve 41 days imprisonment (2) not informing me that he was contemplating a custodial sentence to enable me to seek legal advice."

The learned Magistrate ordered 40 days imprisonment and not 41 days as stated in the appellant's notice of appeal. In my opinion, in view of what I have had to say in these reasons, the above sentence of 40 days imprisonment cannot stand.

For these reasons, the appeal should be allowed, the sentence quashed and the matter remitted to the Magistrates Court for rehearing as to sentence. The rehearing is to be by the Court constituted by another Magistrate. Bail is to continue and the appellant is required to appear in the Mount Barker Magistrates Court upon the further listing of the matter. On the rehearing, consideration will need to be given to the period already spent by the appellant in custody in this matter.