R v Denton

[2013] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DENTON

[2013] SASCFC 101

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Justice Sulan and The Honourable Justice Vanstone)

16 September 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS

In the District Court a suspended sentence bond was erroneously estreated as it had been estreated in earlier proceedings in the Magistrates Court.  The respondent conceded the appeal.  The error was corrected in resentencing the appellant.

R v DENTON
[2013] SASCFC 101

Court of Criminal Appeal:       Sulan and Vanstone JJ

1. SULAN J: This is an appeal against sentence.  The Director agrees that, as part of the sentence, the Judge estreated a bond which activated a suspended sentence which had previously been activated.  For the reasons which follow, the appeal is allowed.

   The suspended sentence bonds

2. On 1 August 2008, the defendant was convicted for driving dangerously to escape police pursuit, hindering police, resisting police, being an unauthorised person driving a motor vehicle and failure to comply with a bail agreement.  He was sentenced to imprisonment for nine months, suspended upon him entering into a bond to be of good behaviour for two years.  That two-year period would have ended on 1 August 2010. 

3. On 6 October 2009, the defendant was convicted of dishonestly taking property without the owner’s consent, assault and attempting to obstruct or pervert the course of justice.  The offences were committed on 12 March 2009.  He was sentenced to four months’ imprisonment, suspended upon him entering into a further bond to be of good behaviour for two years. On that day, the earlier bond of 1 August 2008 was extended for six months to expire on 30 January 2011.

4. The result was that the defendant was subject to two suspended sentence bonds, one to expire on 30 January 2011 and the other to expire on 6 October 2011.

   Proceedings in the Magistrates Court

5. On 9 February 2012 the defendant was convicted for three counts of assault, assault causing harm, unlawful possession and theft.  The Magistrate also dealt with two applications for breach of bond, relating to the bonds entered into on 1 August 2008 and 6 October 2009.

6. The defendant was sentenced to four months’ imprisonment, suspended for a period of 18 months, for all the offences other than the theft, for which he received a bond.  In arriving at that sentence, the Magistrate took into account five months which was part of a credit of nine months for time spent in custody.

7. As to the breaches of bond, the Magistrate estreated the bond entered into on 6 October 2009.  He took into account part of the period spent in custody as satisfying the four months’ imprisonment the defendant was required to serve for breach of that bond.

8. As to the bond entered into on 1 August 2008, the Magistrate noted that the offence which breached the bond was the theft.  He excused the breach of that bond.

   Proceedings in the District Court

9. On 11 July 2012, the defendant pleaded guilty to one count of aggravated serious criminal trespass in a place of residence and one count of aggravated causing harm.  On 21 December 2012, the date on which the defendant was due to be sentenced, he failed to attend and a bench warrant was issued.

10. On 6 March 2013, the Director of Public Prosecutions applied for the defendant to be sentenced in absentia.  The Judge was provided with the Magistrates sentencing remarks of 9 February 2012.  The Judge sentenced the defendant in absentia.  He sentenced the defendant to 23 months’ imprisonment.

11. The Judge also dealt with two applications relating to breach of the bonds entered into on 1 August 2008 and 6 October 2009.  The Judge revoked the suspension of the sentences for nine and four months respectively, and ordered that they be served cumulatively with the 23 months’ imprisonment.  Accordingly, the defendant was sentenced to a total of 36 months’ imprisonment, with a non-parole period of 20 months, to commence from the date the defendant was taken into custody.

12. After sentence had been delivered, the Director and counsel for the defendant agreed that an error had been made, as the suspended sentence bond of 6 October 2009 had been dealt with by the Magistrate on 9 February 2012.

13. The Director wrote to the Judge’s Chambers explaining the error and requesting that the matter be re-listed.  The matter was listed before the Judge on 11 April 2013.  At that stage, the Director submitted that, because the defendant had agreed that he had breached the bond (which had previously been estreated) that little could be done until the defendant was before the Court and, as requested, the Court permitted him to withdraw his agreement.  The Judge was advised that the Director would not oppose an application by the defendant to appeal against the sentence of this Court.  I consider that the Judge could have corrected the error.

    Discussion

14. The bond which the defendant entered into on 6 October 2009 was estreated by the Magistrate on 9 February 2012.  The Magistrate had set off the time the defendant had spent in custody against the four months that the defendant would otherwise have been required to serve.  The Director should not have applied for estreatment of that bond.  The position could have been rectified on 11 April 2013.  The Judge had ordered a sentence to be served when it had already been served by virtue of the Magistrate’s order of 9 February 2012.  The failure of the Judge to correct the position has resulted in this appeal.

15. The error is corrected and I make the following orders:

    1      The appeal is allowed.

    2      The sentence is set aside. 

    3Pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) the offences of aggravated serious criminal trespass in a place of residence and aggravated causing harm with intent to cause harm, the defendant is sentenced to 23 months’ imprisonment, to be served cumulatively upon the sentence of nine months’ imprisonment.

    4The bond entered into by the defendant on 1 August 2009 is estreated and the sentence of 9 months’ imprisonment is brought into effect.

    5The total sentence is 32 months’ imprisonment.  I impose a non-parole period of 16 months’ imprisonment.  The head sentence and non-parole period to commence from when the defendant as taken into custody on 5 June 2013.

16. VANSTONE J:     I am prepared to acquiesce in the orders proposed by Sulan J. The confusion arose from the Magistrate’s failure to deal explicitly with the application for estreatment of the bond associated with the four months suspended sentence. Had the appropriate order in terms of s.58(1) and (4) of the Sentencing Act then been made the position would have been clear for all time.