Counsel: MR M HINTON - Solicitors: CROWN SOLICITOR FOR THE STATE OF SOUTH AUSTRALIA

On Appeal from MAGISTRATES COURT (MR A J CANNON SM)

[1999] SASC 239

1. PERRY J. This is a police appeal against the sentences imposed upon the respondent in the Magistrates Court sitting at Berri on a number of offences to which she had pleaded guilty.

2. The respondent, a young Aboriginal woman, did not appear on the hearing of the appeal, although it was adjourned from the first hearing date to a subsequent date, as to which she was given a letter from the Court giving ample notice of the adjourned hearing and of her obligation to attend. The letter was served personally upon her. In those circumstances, I gave leave to the appellant to proceed ex parte.[1]

3 On an information, she was charged that between 2 and 6 October 1998 at Winkie she broke and entered a day care centre, from which she stole a quantity of face paint, a book and a frozen pizza, together of the value of $43, contrary to s170(1)(a) of the Criminal Law Consolidation Act 1935.

4 Separately, she was charged on complaint that on 14 March 1998 she used offensive language in a public place, namely, Ahern Street, Berri, contrary to s7 of the Summary Offences Act 1953, and in a second count on the same complaint that on the same occasion she resisted a police officer in the execution of his duty, contrary to s6 of the same Act.

5 The offences operated to breach bonds upon which she had previously been released. As well, she failed to perform the community service ordered pursuant to one of the bonds.

6 On 24 September 1997, she was placed on a twelve months good behaviour bond in the Magistrates Court sitting at Berri, on a charge of larceny.

7 About a month later, on 28 October 1997, she was given a further bond for a period of a year on a charge of assault occasioning actual bodily harm. It was a condition of that bond that the respondent complete 140 hours of community service within twelve months.

8 The respondent was represented by counsel in the court below, who made submissions on her behalf. The learned sentencing magistrate then imposed the following penalties:

(a) On the break and enter charge, five days imprisonment.

(b) On the charges of offensive language and resisting arrest, that the respondent enter into a bond in the sum of $50 to be of good behaviour for one year, during which she was to be under the supervision of an officer of the Correctional Services Department, and that she undertake "such courses as may be deemed appropriate, available and to which [she] consents".

(c) As to the two breaches of bond, the magistrate made no order for estreatment, and no other order.

(d) He ordered payment of $100 compensation to the Gerard Day Care Centre within six months

(e) On a separate charge of breach of bail, he reduced the amount payable to $100, which he ordered to be paid forthwith.

I have had the benefit of an affidavit sworn by the police prosecutor, who appeared in the Magistrates Court, in which he sets out the circumstances of the various offences.

As to the break and enter charge, this involved the Gerard Day Care Centre. The respondent broke into the centre while it was closed over a weekend by kicking two holes in a side wall, causing damage estimated at $100. She proceeded to steal from the centre four tubs of face paint, valued at $7 each, a book on face painting, valued at $10, and a frozen pizza, valued at $5, the total of the property stolen amounting to $43.

A number of children were subsequently seen wearing face paint, which led the police to the respondent, who made full admissions when questioned.

When asked why she broke into the premises, she said she did not know, and that it was a "boring day". She said that she ate the pizza and used the face paint on the children.

The offensive language and resist arrest offences were committed just before midnight on a Saturday night following an incident which occurred on the lawns opposite the Berri Hotel. The respondent was then cautioned by the police for offensive language and told to cease loitering. She then left the area of the lawns, and walked along the footpath near the saloon bar of the hotel. As she did so, police heard the defendant shout the word "fuck" on about five occasions while engaged in a dispute with an Aboriginal man. She began pushing the man, following which the police arrested her.

The police prosecutor describes what followed in these terms:

"The defendant squared up to Police Officer Thomas and thrust both arms out in front of herself in a pushing action. Police took hold of the defendant's left arm. Police Officer Underwood took hold of the defendant's right arm and led her to the rear left side of the police vehicle. The rear left door of the vehicle was opened and police commenced to clear a seat which required Police Officer Underwood to assist in restraining the defendant with handcuffs. The defendant stated she wasn't going in the police vehicle. She was handcuffed because she was resisting. The defendant refused to answer any questions and declined to read/sign notes."

With respect to the charge of larceny, which resulted in the first of the bonds of which she was in breach, Ms Bristow informed the court that the victim returned home in company with the respondent at about 3.00 am one morning. He placed his wallet containing about $150 in his bedroom. When he woke in the morning, the respondent had left, taking the money with her. When questioned, the respondent admitted the offence.

With respect to the assault occasioning actual bodily harm count, which resulted in the other bond breached by the respondent, that offence occurred in December 1996. The respondent, in company with two other girls, punched and kicked a fourth girl, in the street. There was no provocation and the attackers simply set upon the victim while she was passing by.

The respondent, who is 21 years of age, had no record of offending until the age of 19. She then committed the offences which resulted in the two bonds to which I have referred. She had no other record.

The respondent's counsel before the Magistrates Court, Mr Humphries, emphasised that her offending was directly linked with alcohol abuse. Insofar as she had failed to perform community service work and had on another occasion failed to answer bail, he submitted that this was due to a lack of understanding of the importance of the orders.

Since leaving school at the age of 15, she had been living on unemployment benefits.

In his sentencing remarks, the learned sentencing magistrate described the respondent as being at "something of a cross roads". He observed that there was no point in giving the respondent more community service to perform as she was not willing "to do what it needs". He observed also that there was equally no point in suspending a period of imprisonment. He said:

"That would only, in my prediction, result in the sentence brought into effect sometime down the track. I make that prediction because of the indifference you have shown to sentencing attempts so far."

"I am loath to imprison a girl of your relatively young years and I understand that putting you in gaol will put you into contact with a whole new group of people and if you enter that culture that exists in gaols, then you will go on a career which might, in a very short period, be more exciting but will end up causing you very bad health and long terms in custody. The gaol sentence must necessarily, in my view, be much shorter than would normally be the case in these circumstances."

He went on to impose the sentence of five days imprisonment on the break and enter charge.

As to the breach of the bond imposed on the larceny charge, the learned sentencing magistrate correctly referred to it as an unusual offence. As for the application to estreat the other bond, imposed on the assault charge, although he acknowledged the relative seriousness of that charge, he said that he had taken a "... global view of her offending behaviour".

In view of those comments, he made no further order as to either bond, relying on the short sentence of imprisonment to try to bring home to the respondent that she could not "treat the courts and the police with indifference".

Mr Hinton for the appellant advanced three main arguments. The first was that the penalty imposed upon the breaking and entering offence was manifestly inadequate; the second, that the imposition of a bond when the respondent was about to serve a period of imprisonment was wrong in principle; and the third was that the decision to take no action for the breached bonds was erroneous.

I deal first with the breaking and entering offence. The penalty provided in s170(1)(a) is a term of imprisonment not exceeding eight years. However, when prosecuted as a minor indictable offence in the Magistrates Court, the maximum sentence of imprisonment which may be imposed is two years.[2]

"... only an unusual case of break and entering should attract a sentence of less than nine to twelve months, even for a first offence, although, of course, suspension must be a serious option in the case of a first offender."

Although those observations, and the judgment of White J in the same case, have been regarded as creating a tariff for this offence, it does not follow that every offence should attract a penalty of the order suggested by King CJ.

I mention in passing that the so-called tariff established in Halse is now fourteen years old. One might well think that the time has arrived when it ought to be reviewed by the Court of Criminal Appeal, an observation which I made in Coombs v Police, where I said:

"While I am of the view that it (Halse) no longer can be regarded as a reliable indication of the sentencing tariff to be applied, I think it more appropriate that the Court of Criminal Appeal should reconsider the matter. On the other hand, I must say that there is a tendency to treat the suggested tariff as some sort of maximum for the offence, and to graduate penalties within the limits indicated in the passage to which I have just referred. In fact, the maximum penalty for the offence is eight years and there will be offences which will warrant the imposition of a penalty up to eight years. The indication of the tariff is not to be taken as some sort of amendment to the Act inserting some new maximum penalty. That penalty is at large up to the maximum of eight years. There will be cases where the imposition of a sentence closer to the maximum rather than to the minimum will be appropriate."

I confirm those remarks, and confirm that the fixation of a tariff by the Court of Criminal Appeal should not be regarded as some form of statutory amendment changing the minimum or maximum penalties as set out in the statute.

In this case, the penalty range is up to two years imprisonment, which means any sentence from one day to two years, falls within the discretion conferred by Parliament.

This was an untypical offence in that the value of the property involved in the larceny was very small. Furthermore, offences not involving dwelling houses fall into a less serious category.

While it is true, as Mr Hinton suggests, that it is not appropriate to fix a short custodial term in lieu of a larger term which might have been suspended, the fact that it is an unsuspended term of imprisonment which is being imposed is not entirely irrelevant to the exercise of the sentencing discretion.

It is clear from the learned sentencing magistrate's remarks that he was endeavouring overall to fix a package with the aim of assisting this young Aboriginal lady to avoid lapsing into a cycle of offending and increasing terms of imprisonment. His hope was that a short, sharp term of imprisonment, coupled with supervision under a bond, might offer her some chance of achieving that goal.

I take this opportunity to say a little about the sentencing of Aboriginal offenders.

34 In Fernando,[5] Wood J identified a number of propositions which should be taken into account in such cases.[6] I do not think that they have so far been given appropriate recognition. His judgment is a most helpful reminder of many considerations which are often overlooked. Some of his comments are as to crimes of violence, but the general thrust of his observations is applicable to the sentencing of Aborigines generally. He said:

"(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders' membership of such a group. (B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender. (C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand and hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment. (D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment. (E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within the Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. (F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender. (G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality. (H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part."

35. Nicholson in The Sentencing of Aboriginal Offenders notes with concern that Wood J's judgment in Fernando has been given a narrow application by courts, restricting its impact to Aborigines living in the more remote communities[7]

. However, an examination of the foundations underlying the propositions enunciated by Wood J indicates that they are of broader application.

36 That incarceration is a form of punishment which is foreign to Aboriginal customary law does not mean that imprisonment should be dismissed as an option for Aboriginal offenders. But a recognition of the debilitating effect on Aborigines of this form of punishment must be given sensitive consideration, even although it must be weighed against the need to provide protection for the community and the necessity for specific and general deterrence.

37 Section 11 of the Criminal Law (Sentencing) Act 1988 makes it plain that a sentence of imprisonment must be regarded as a sentence of last resort. In the case of Aborigines, this is reinforced by provisions to be found in the Indigenous and Tribal Peoples Convention.[8] Australia is not a party to the Convention. But it is an indication of the direction in which international law is proceeding. In the area of human rights particularly, Australian courts should always be prepared to take into account international instruments where they identify precepts of universal application, at least where they are not in conflict with the domestic laws of this country.

38 Article 10(2) of the Convention provides that for such persons "preference should be given to methods of punishment other than confinement in prison".

39 The offences in question arise in the context of alcohol abuse, possibly other drug abuse, limited formal education and unemployment. It is a scenario which is common to members of aboriginal or predominantly aboriginal communities such as Gerard. The respondent has failed to respond to leniency granted to her beforehand by the courts. This creates a more than usually difficult task for the sentencing court, in balancing the allowance for personal factors, including those related to the defendant's aboriginality, against the interest of the community at large.

40 The approach of the learned sentencing magistrate in addressing that task in this case is perfectly understandable. But it seems to me that in dealing with the matter in the way he did, he created a sentencing option which was strictly not available to him.

41 The source of the problem is that he was obliged to work within the range of sentencing options available to him on a proper application of relevant sentencing principles. The starting point should have been the fixation of the lowest allowable gaol term, and he should then have addressed the question of suspension.

42 Consistent with authority, and even allowing for all of the factors associated with the disadvantaged circumstances in which the respondent lives, the lowest penalty which could conceivably have been imposed was a term of imprisonment of three months. If the magistrate had imposed such a term, he might well, in the exercise of his discretion, have suspended it.

43 Here, however, the respondent has already served the five days imprisonment which the magistrate imposed. There is an element of double jeopardy involved in taking her into custody and incarcerating her further for an offence which she has now put behind her, or in contemplating a further suspended term of imprisonment.

44 Having made those observations, for that reason, I would not allow the appeal on this ground, the principle purpose for this appeal by the police having been fulfilled, in that I have drawn attention to the sentencing error and explained what I consider to be the relevant principles.

45 The other two points may be disposed of shortly.

46 There are some statements of principle to the effect that it is bad sentencing practice to impose a bond where a person is serving or is about to serve a period of imprisonment.[9] However, with respect to that view, in appropriate cases I see nothing wrong with the concept of imposing a short term of imprisonment and a concurrent bond, the major part of which might be served after release from prison. In practical terms, such a sentencing option is specifically allowed for in the Commonwealth Crimes Act.[10]

47 Furthermore, in Peterson, Bray CJ observed:[11]

"I would agree that, for the reasons referred to by Mitchell J, it may be bad policy to suspend a cumulative sentence in the normal case. In any event, if I am right, that cannot be done unless the term of the bond, which cannot exceed three years, begins to run from the date of the entry into the recognisance in pursuance of the order of suspension. Nevertheless, I think that there may well be cases, particularly in the lower courts, when the court thinks it advisable to impose a short sentence of imprisonment for one offence and yet to keep the offender under effective supervision after his release. A suspended cumulative sentence for another offence may achieve this object......" (emphasis added)

48 See also the comments of Jacobs J in Carey:[12]

"... there is no hard and fast rule, and where it is appropriate to impose the sanction of a suspended sentence, following a term of imprisonment, a cumulative sentence is a justifiable means of achieving that result."

49. Regrettably, such an option is not now permissible in State matters. By reason of s38(2) of the Criminal Law (Sentencing) Act, it is not permissible to impose a term of imprisonment on one count and suspend a term of imprisonment on another. But there is no prohibition against a bond simpliciter on a second count in such circumstances, which is the procedure which was followed by the learned sentencing magistrate in this case. Furthermore, if a suspended term of imprisonment of the order which I have suggested had been imposed, and no other sentence of imprisonment, s38(2) would not have posed a difficulty.

50. As for the failure to make any substantive orders on the breach of bond charges, the learned sentencing magistrate had the discretion to take that course under s58(1)(c)(ii) of the Criminal Law (Sentencing) Act 1988 if the failure to comply with the conditions of the bond "was trivial or there are proper grounds upon which the failure should be excused". In these circumstances, when the learned sentencing magistrate was endeavouring to design a sentencing package to give to the respondent a last chance of avoiding lapsing into a life of crime, I am of the view that in taking the action which he did he was acting within the scope of the jurisdiction conferred by the section.

51. For these reasons, I would dismiss the appeal.

1. As to proceeding ex parte with a Crown appeal, see R v Hallocoglu (1991) 29 NSWLR 67 per Hunt CJ at CL at 72-73.

2. See Summary Procedure Act 1921, s5(3) and the Criminal Law (Sentencing) Act 1988, s19(3).

3. (1985) 38 SASR 594 at 595.

5. (1992) 76 A Crim R 58 at 62.

6. See also my judgment in Ingomar v Police (1998) 72 SASR 232.

7. Nicholson, John "The Sentencing of Aboriginal Offenders", (April 1999) 23 Criminal Law Journal 85 at 85

8. United Nations International Labour Organisation Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries, 1989.

9. See, for example, Sapiano (1968) 52 Cr App R 675; R v Butters and Anor (1971) 55 Cr App R 515; R v Goodlad (1973) 1 WLR 1102; Peterson (1978) 18 SASR 124.

10. Crimes Act (1914) (Cth). Section 19AC provides for recognisance release orders, which effectively substitute a recognisance for parole, following release from a gaol term after a period determined by the court.

As to proceeding ex parte with a Crown appeal, see R v Hallocoglu (1991) 29 NSWLR 67 per Hunt CJ at CL at 72-73.

[2] See Summary Procedure Act 1921, s5(3) and the Criminal Law (Sentencing) Act 1988, s19(3).

[3] (1985) 38 SASR 594 at 595.

[4] 6 August 1996, (unreported) judgment No S5740.

[5] (1992) 76 A Crim R 58 at 62.

[6] See also my judgment in Ingomar v Police (1998) 72 SASR 232.

[7] Nicholson, John "The Sentencing of Aboriginal Offenders", (April 1999) 23 Criminal Law Journal 85 at 85

[8] United Nations International Labour Organisation Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries, 1989.

[9] See, for example, Sapiano (1968) 52 Cr App R 675; R v Butters and Anor (1971) 55 Cr App R 515; R v Goodlad (1973) 1 WLR 1102; Peterson (1978) 18 SASR 124.

[10] Crimes Act (1914) (Cth). Section 19AC provides for recognisance release orders, which effectively substitute a recognisance for parole, following release from a gaol term after a period determined by the court.