Solicitors for appellant: Oliver Rudolf Gerhard Koehn

JUDGE1 OLSSON J This is an appeal against the revocation, by a stipendiary magistrate, of the suspension of a sentence of imprisonment for four months, which was imposed upon the appellant on 18 August 1987 consequent upon his conviction, at that time, of an offence of attempted larceny. The suspension was conditional on the entry by the appellant into a bond, in the sum of $50, to be of good behaviour for a period of 12 months, a term of which was that he was to perform 150 hours of community service.

It was made to appear to the learned magistrate that, when the appellant pleaded guilty to the offence charged against him, he did not anticipate other than a fine. The actual imposition of a custodial sentence, to be suspended on entry into a bond requiring community service, took him by surprise and placed him in a considerable dilemma.

Having been out of work for the previous six months and also embroiled in the drug scene, he had already made arrangements to take up employment at Katherine in the Northern Territory, leaving Adelaide on the day of his Court appearance. His motive in so doing was to make a break from the drug scene and to commence a new life for himself. The offence to which he had pleaded was an attempt to raise money to finance his then addiction to amphetamines. It had been committed on 25 May 1987.

Foolishly, the appellant, instead of divulging his arrangements to the Court, or, alternatively, seeking a transfer of his community service obligation, misled the Court and a community service officer into believing that he was prepared to do the community service in South Australia in terms of the bond. He acknowledged the relevant bond accordingly. He was, at the time, an immature 18 year old, still addicted to amphetamine.

Immediately after the Court appearance the appellant departed South Australia for Katherine and took up his projected employment there. He remained in the Northern Territory until May 1993, when he returned to Adelaide. He was arrested here in February 1994 on an outstanding warrant for breach of bond.

It is not disputed that, whilst he was in the Northern Territory, the appellant's personal situation changed dramatically for the better. At the time he left this State he was a rebellious young man, who was drug addicted and keeping undesirable company.

Upon going to the Northern Territory he settled down at a steady job, became drug free, married and developed a stable domestic relationship. He undertook the support of two young step children. A third child, of which he is the father, is now 4 years old. He has not offended in any relevant way since entering into the bond.

At the present time the appellant is in receipt of a Jobsearch allowance and does some casual work. He is apparently seeking to re-establish himself, with his family, in Adelaide on a permanent basis. It seems likely that more or less consistent employment will now be available to him in the building industry.

Understandably the learned magistrate took a serious view of the appellant's conduct, because he had deliberately misled the Court, flouted its directions and had no intention of honouring his obligations when he entered into the bond.

He noted the mitigating circumstances above outlined, but said that, in his view, there were grave philosophical problems in allowing a person who has absconded from the jurisdiction for the purpose of avoiding compliance with the terms of a court order, to come back some years later and present themselves to the Court and say, at that stage, that they have rehabilitated themself; and therefore should not be subject to the full order that the Court made five years previously. He considered the aspect of rehabilitation irrelevant for present purposes; and estreated the bond, revoked the suspension and directed service of the custodial sentence forthwith.

Whilst I accept that the deliberate conduct of the appellant must be viewed seriously, I cannot accept the description of the learned magistrate as to what had transpired, as accurate. This was not the case of an offender deliberately absconding to evade his responsibilities. His primary motive was not of that nature at all. He was faced with a real dilemma at the time and did not have sufficient maturity and clarity of thought to divulge his problem. Had he done so it seems to me probable that the Court may well have adopted some different sentencing strategy in order to accommodate his (then) intentions and promote his rehabilitation.

The correct approach to a consideration of what constitutes proper grounds for declining to revoke the suspension of a sentence has been considered and reiterated by this Court on several occasions.

In R v Buckman (1988) 47 SASR 303, King CJ, in speaking of the then provisions of section 9 of the Offenders Probation Act commented that (at 304):- "The purpose of subs (5) is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence."

The learned Chief Justice went on to make the point that two obvious bases for exercising the discretion were when there would otherwise be what he described as a marked disproportion between the seriousness of any offence constituting the breach and the sentence of imprisonment which would be activated; and also where any offence constituting the breach was of such a different character from that for which the sentence was imposed that it would seem inappropriate for the otherwise normal statutory consequences to flow. These examples were not, of course, intended to be exclusive, but have certainly been applied in subsequent cases such as Lawrie v The Queen (1992) 59 SASR 400 and R v Marston (1993) 60 SASR 320.

In the former case King CJ commented that (at 402):- "It is true, of course, that difference in kind is only one of the considerations. In many cases it will not be a consideration of great importance, but where the difference in kind is combined with a disproportion between the seriousness of the breaching offence and the length of the sentence the activation of which is in question, the difference in kind becomes of greater importance."

It should be recognised that any resort to section 58(3) of the Criminal Law (Sentencing) Act must always proceed in the context of what fell from King CJ in R v Marston to this effect (at 322):- "I repeat what I said in R v Buckman (1987) 47 SASR 303 at 304: 'There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the

head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.'

It is of great importance that the courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders."

Of course the authorities to which I have referred were primarily focusing on the commission of further breaching offences, rather than a failure to observe specific terms imposed by the bond itself. However, the essential conceptual basis of reasoning is the same.

The gravamen of the situation here under consideration is the deliberateness of the appellant's conduct, coupled with his patent deception of the Court.

On the other hand, overall mitigating factors to be taken into account (as relevant) for the purpose of subsections (3) and (4) of section 58 of the Criminal Law (Sentencing) Act, 1988 are:- - his youth, addiction to amphetamines and immaturity at the time . the dilemma with which he was confronted and his probably clouded judgment at the time - the fact that, had he made disclosure at the time, the Court may well have adopted a strategy designed to enable him to take up his job - his obvious motive, at the time, to address the major cause of his offending up to that point - the fact that, since 1988, he has not offended against the law - the further facts that he has actually realised his intention at the time and rehabilitated himself and is living a law abiding life in a stable domestic situation, i.e. the ultimate purpose of the original sentencing strategy has been achieved, albeit by a different route.

In their totality those are powerful considerations. Moreover, due regard must be had to the situation that the breach is now stale and, in the meantime, there has been a dramatic change for the better with the appellant.

As was pointed out by Street CJ, albeit in a different context, in R v Todd (1982) 2 NSWLR 517 at 519:- "... where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the

committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner." (See also R v Suckling (1983) 33 SASR 133; Sowter v Trenorden (1989) 153 LSJS 497; David v Marcelline (Duggan J, 10 May 1991, unreported).)

Of course, due regard must be had, in the present case, to the fact that the delay has been the direct product of the fact that the appellant has absented himself from the State. However, even given that scenario, the proper approach to that aspect is to be found in the judgment of Legoe J when, as a member of the Court of Criminal Appeal in Dibble v The Queen (Court of Criminal Appeal, 2 November 1990, unreported), he said:- "... It has been argued by the Crown that the general deterrence element of the sentence overrides the rehabilitation aspect; see The Queen v Knight (1981) 26 SASR 573. In my judgment to impose an immediate sentence on a person who is not just a good prospect for rehabilitation, but has proved that he is already rehabilitated and will be far less likely to re-offend than those who are simply future prospects for rehabilitation, would in all probability play no role in the deterring of other possible offenders. In other words immediate imprisonment of an already rehabilitated offender is counter productive to not only his personal rehabilitation but generally as a deterrent to others."

In referring to the staleness of the particular offending, Legoe J drew attention to what had been said in R v Todd and The Queen v Suckling and commented:- "... The same approach appears in R v Duncan (1982) 9 A Crim R 354 (Court of Criminal appeal, Western Australia) where that Court drew upon the remarks of the Queensland Court of Criminal Appeal in R v Bell (1981) 5 A Crim R 347 at 351 where Dunn J said:- 'When it has been demonstrated by evidence that society does not need to be protected from the applicant, should the punitive and deterrent aspects of the sentencing process be allowed to prevail, and possibly destroy rehabilitation which has been shown to have taken place?'

The Western Australian Court added that Bell's case was authority for the proposition that:- '... where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing

process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.'

The most recent and perhaps most pertinent statement of the principles relating to sentencing after a substantial delay appears in the English case of R v Carl Victor Bird (1987) 9 Cr App R (S) 77 where the appellant had pleaded guilty to a robbery. In January 1976 he had robbed the proprietor of a bingo hall and taken a sum of money. The victim was threatened with a knife. The appellant was arrested and released on bail. He admitted the facts of the robbery. He went to Ireland and remained there for 10 years setting up a business. He then returned to England and was arrested in connection with another matter, giving a false name. His accomplices were tried in 1976 and sentenced to five years' imprisonment in each case. The sentencing court had approached the matter by asking what sentence the appellant would have received if he had been dealt with in 1976 and reached the conclusion that it would have been the same as that passed on his accomplices. The sentencing court next asked whether the sentence should be reduced because of the ten year delay, but concluded that it should not. It was held on appeal by the English Court of Criminal Appeal that although it was difficult to fault the logic of the sentencing Judge the law was not always strictly logical. There were many conflicting considerations which had to be taken into account. The Court determined that it would adopt the approach taken in Shingles (unreported, July 12th, 1982) where the appellant was sentenced to four years after absconding and the Court reduced his sentence to give credit for changing to a law-abiding way of life. The Court indicated that it did not intend to give encouragement to defendants to abscond in the hope that their sentences would thereby be reduced. Normally absconding would add to a sentence. However, there were exceptional cases of which the case of Bird was considered to be an example. At page 80 Lloyd LJ who delivered the judgment of the Court said:- 'Of course there should be no encouragement to defendants to abscond in the hope that their sentences will thereby be reduced. On the contrary, absconding will normally add to the overall sentence. But there may be exceptional cases, of which this is one, where the sentencing Court ought not to shut its eyes to subsequent events. It was the duty of the Court to sentence this man for this offence. The offence had not

changed by the passage of time, but the man had. ... we are of the view that the correct notional sentence in 1976 would have been four years. From this there should be deducted two years, in order to give proper credit for what has taken place in the meantime.'

Counsel for the Crown referred this Court to the remarks of King CJ in The Queen v Ogg unreported judgment dated 19th April 1988 at p.4 where His Honour said:- 'Where an offender absconds and deliberately and voluntarily absents himself to escape justice and therefore the consequences of his actions, I think that it would be wrong for the court to accept that as a factor operating in mitigation of penalty. The courts cannot place a premium upon absconding. Any additional penalty which an offender suffers by reason of his own feelings and experiences during his period of absence are self imposed.'

I am not clear what is suggested by placing 'a premium upon absconding'. In this case no premium appears to have been placed upon absconding in the sentence passed. The appellant has never been charged over his breach of bail. In any event counsel for the Crown never suggested that suspending a sentence, which is otherwise appropriate and takes into account the relevant mitigating circumstances, is given 'a premium' by being suspended. On the contrary the learned Chief Justice went on to say immediately after the passage I have quoted above:- 'Nevertheless I think that a sentencing court must look at the situation which exists at the time when sentence is passed. What has occurred in the period of the absence of an offender cannot be ignored when the time comes to pass sentence.'

In my judgment the passage and words emphasised by counsel for the Crown are not to the point here where the question is whether the rehabilitation already put in place by the appellant should be jeopardised by an immediate sentence of imprisonment. In my opinion that was not in question in Ogg's case which is in many respects distinguishable both in principle and in fact."

I have cited these passages at some length because Dibble v The Queen does not appear to have been reported. It is true that Legoe J was in the minority in that case, but I do not take the majority to have dissociated themselves from the statements of principle involved. They appear to have differed from Legoe J in relation to the weight to be attributed, in the particular factual circumstances, to the issue of rehabilitation.

It is to be remembered that the Court of Criminal Appeal in Dibble v The Queen was concerned with the very serious offence of armed robbery, whereas the breach here in issue related to an offence which was of a very different order.

As I see the situation it was incumbent on the learned magistrate to adopt a two phase process of consideration.

First, he had to address the question as to whether, in all of the circumstances, it was proper to excuse the breach. Secondly, in the event that the answer to that question was in the negative, it became necessary to consider the provisions of section 58(4) of the Criminal Law (Sentencing) Act, the relevant provisions of which require the Court, in the event of a revocation, to consider whether there are special circumstances justifying a reduction of the term of the suspended sentence.

As I pointed out in Norman v Lovegrove (1986) 40 SASR 266 (and was confirmed in R v Buckman) subsection (3) of section 58 essentially focuses attention on the circumstances in which the relevant breach was committed, whilst subsection (4) extends to broader areas of concern not related to the commission of the breach.

Most of the reported authorities related to section 58 arise from separate breaching offences committed subsequent to the imposition of a sentence which has been suspended. I know of no authority which is directly in point with regard to the situation presently under consideration.

As I have earlier demonstrated, in addressing the concept of the equivalent of subsection (4) of section 58 in R v Buckman, King CJ commented that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself, but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. In such a context the reasoning which was adopted by Jacobs J and accepted by the Chief Justice in that case renders highly relevant the motive for, the circumstances giving rise to and associated with, and the inherent significance of the breaching conduct.

In the instant case, whilst what was done was reprehensible and a deceit of the court meriting stern censure, what seems to have been overlooked was that the motive of the appellant in departing the jurisdiction was of the best (which, in the event, actually led to an excellent outcome from the community viewpoint), the failure to disclose the true situation was the product of a no doubt clouded mind of an immature eighteen year old drug addict caught in a situation with which he obviously did not know how to deal, and the obvious fact that, had the Court been apprised of the full circumstances, it would, almost certainly, have accommodated the appellant in some suitable fashion. Moreover, subsequent events have amply demonstrated that the central aim of the original sentencing strategy, namely the rehabilitation of the offender, has amply been achieved (Wiltshire v Leech (1987) 136 LSJS 339).

In their totality these factors were clearly capable of being regarded as constituting proper grounds upon which the breach by the appellant of his bond obligations could well be excused. I consider that the learned Magistrate fell into error in rejecting such a proposition.

Even if I am incorrect in such a conclusion it seems to me that he patently fell into error in holding that, for the purposes of subsection (4), the rehabilitation of the appellant was irrelevant in relation to the potential existence of "special circumstances" capable of warranting a reduction of the custodial term which had been suspended. That, coupled with the staleness of the breaching conduct and the other mitigating circumstances to which I have earlier adverted, manifestly gave rise to a compelling case for exercise of the discretion referred by the sub section. This was so notwithstanding the outrage naturally flowing from the deception underlying the entry into the bond. What has actually been done in this case is inconsistent with one's sense of proportionality and justice.

At the end of the day I am finally of the view that the facts of this case fall within the parameters of subsection (3) of section 58; and call for the exercise of discretion conferred by it.

Accordingly the appeal will be allowed and the orders complained of set aside. In lieu I direct that the suspension of the custodial sentence continue upon the entry by the appellant into a further bond, in the sum of $250, to be of good behaviour for a term of one year, a condition of which is to be that the appellant perform the 150 hours of community service within that period. There will also be the usual ancillary provisions related to that requirement.