Long v Eaton  NTSC 42
PARTIES: LONG, John
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO: JA 49 of 2011 (21015008)
DELIVERED: 14 June 2012
HEARING DATE: 24 & 30 May 2012
JUDGMENT OF: BARR J
APPEAL FROM: NEILL SM
CRIMINAL LAW – APPEAL – EVIDENCE – Tender of new evidence on appeal – statutory requirements – court’s discretion to admit – new evidence would afford a ground of appeal – evidence admitted – appeal allowed
CRIMINAL LAW – APPEAL – APPEAL AGAINST RESTORATION OF SUSPENDED SENTENCE – BREACH – Full unserved balance of appellant’s sentence restored for conditional breaches – relevant evidence not brought to magistrate’s attention – magistrate acted to restore sentence under mistake of fact – injustice to appellant – appeal allowed – order quashed
Justices Act 163(1), s 176A, 177(2)(c)
Sentencing Act s 43
House v R (1936) 55 CLR 499, followed
Bukulaptji v The Queen  NTCCA 7; Pagett v Hales  NTSC 35, considered
Appellant: T Collins
Respondent: I McMinn
Appellant: Central Australian Aboriginal Legal Aid Service
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Bar1207
Number of pages: 13
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
Long v Eaton  NTSC 42
CORAM: BARR J
REASONS FOR JUDGMENT
(Delivered 14 June 2012)
 The appellant appeals against an order made by the Court of Summary Jurisdiction restoring the full unserved balance of his sentence because of his breach of the conditions of that suspended sentence.
 On 5 May 2010 the appellant committed an assault on his partner of five years. The assault occurred in the context of an argument in which the appellant verbally abused his partner. He then struck her with a stick twice, once to the cheek and once to the ankle. He was arrested, remanded in custody and on 10 May 2010 pleaded guilty to one count of aggravated assault in the Court of Summary Jurisdiction.
 On 14 May the appellant was convicted and sentenced to a term of imprisonment of two months, backdated and deemed to have commenced on the day of his arrest to reflect time spent by him in custody on remand. That sentence was suspended after 21 days, on conditions. The court set an operational period for the suspended sentence of 12 months.
 The appellant was released from prison on 25 May 2010.
 The conditions of the suspended sentence were that the appellant:-
1. Accept supervision of Director of Correctional Services and obey all reasonable directions as to reporting, residence, employment and counselling for anger management.
2. Undertake an Indigenous Family Violence Offender Program as directed by Probation and Parole Officers and successfully complete that program.
 On 19 October 2010 Ms Horsburgh, a Probation and Parole Officer, filed an application in the Court of Summary Jurisdiction for an order that the appellant be dealt with for breach of the terms of his suspended sentence. The grounds of application were stated in these terms:
“That you, John Long the offender failed to comply with the following conditions to which the order suspending your sentence was subject:
1. Failed to undertake an Indigenous Family Violence Offender program as directed by a Probation and Parole Officer and successfully complete that program”
 The application was served on the appellant on 20 October 2010. However, he did not appear on the return date of 28 October 2010, and a warrant was issued for his arrest.
 The appellant then remained at large for another 12 months or thereabouts.
 The application came back before the Court of Summary Jurisdiction on 16 November 2011. The appellant was then represented by counsel, who informed the court that the breach would be admitted.
 The prosecutor then read out the facts of the breach as follows:
“On 28 September 2010 the defendant breached the order by way of fail to undertake an Indigenous Family Violence Offender Program as directed by the Probation and Parole and successfully complete that program. The defendant reported to the Alice Springs Correction Office upon release from Alice Springs Correctional Centre. At this time the conditions of his order were explained to him in a clear and concise manner by the Probation and Parole Officer, Supervising Officer, and the consequences should he fail to comply. The defendant acknowledged that he understood his obligations.
The defendant has reported as directed for compliance purposes from 25 May 2010 to 18 October 2010. On 6 September 2010 the defendant read and acknowledged the conditions of the Director’s direction to attend the Indigenous Family Violence Offenders Program and the consequences should he fail to attend as directed on 28 September 2010 to 6 October 2010, dates inclusive.
The defendant reported in person to the Alice Springs Community Corrections Office as directed on 27 September 2010. At this time his attendance at the Indigenous Family Violence Offenders Program the following day was confirmed, and residential address was confirmed for transportation purposes.
On 28 September 2010 it was confirmed by the Indigenous Family Violence Offenders Program Co-ordinator that the defendant had not attended as required. The defendant did however attend on the second day of the program.
On 30 September 2010 it was confirmed by the Program Co-ordinator again that the defendant failed to attend.
On 7 October 2010 an attendance report for course participation confirmed that the defendant failed to attend any further sessions as directed.”
 After the facts had been read to the court, counsel for the appellant told the court that those facts were admitted.
 The magistrate found that breaches of conditions 1 and 2 of the suspended sentence imposed on 14 May 2010 had been proved.
 The conduct of the appellant which was found to constitute a breach of conditions 1 and 2 of the suspended sentence was not obeying the direction that he attend and participate in the Indigenous Family Violence Offender Program on specified dates and in breaching the specific condition that he undertake and successfully complete the Indigenous Family Violence Offender Program as directed by his Probation and Parole Officer.
 There was no allegation or evidence that the appellant had otherwise breached his reporting conditions.
 At the hearing of this appeal, I called for the file of the Court of Summary Jurisdiction and noted that annexed to and forming part of the Application for breach of the order suspending sentence filed 19 October 2010 were three documents. One was headed “Director’s Terms and Conditions” and contained a written direction, acknowledged by the appellant in writing, that the appellant attend the ‘Indigenous Family Violent Offending Program’ at the nominated venue in Schwarz Crescent, Alice Springs, on Tuesday 28 September 2010 at 9.00 am and thereafter on eight specified consecutive days from Wednesday 29 September 2010 to Wednesday 06 October 2010. Another document was headed “Indigenous Family Violent Offending Program Client Program Progress Report”. That document read, in part, as follows:
John did not attend the first day of the Program; I was not informed of his whereabouts.
John attended the second day of IFVOP however was extremely and did not participate in the group discussions. I was hoping by the third day he may have felt comfortable enough to open up a little.
John did not attend the third day of the program. I was in touch with Kaye Horsburgh (PPO) that afternoon whereby she informed me that she had spoken with him just the day before regarding IFVOP attendance requirements. At this time John failed to mention that he was at a funeral the first day of the program, and he also did not mention that he would be absent the following day due to attending a state funeral in Hermannsburg.
It was decided at this point that John was unable to return to the program due to missing a quarter of the program already. …
I recommend that John is breached for failing to meet the requirements of his Community Corrections orders and participate in the program at another time.
IFVOP Top End Coordinator
 My examination of the Progress Report led me to understand that the appellant did not attend the first day of the program because he was at a funeral. He attended the second day of the program, but did not greatly participate, and did not mention that he would be absent on the third day (or what would have been for him the third day of the program). He did not attend on the third day because he attended a state funeral in Hermannsburg.
 The appellant’s attendance was unsatisfactory in ways which are obvious from the contents of the previous paragraphs, but it appears that the appellant was excluded from the program (“It was decided at this point that John was unable to return to the program due to missing a quarter of the program already”), as a result of a decision made by the Program Co-ordinator in conjunction with Ms Horsburgh. The recommendation was that the appellant participate in the program at another time.
 A third document, described “Précis”, summarised the facts in relation to the breach, and confirmed that the appellant “reported as directed for compliance purposes from 25 May 2010 to 18 October 2010.”
 There was no evidence before the Court of Summary Jurisdiction as to what occurred between 7 October 2010, the date of the Progress Report, and 18 October 2010, the date on which the appellant reported for the last time. In particular, there was no evidence as to what matters were discussed with the appellant, or whether the appellant was directed to attend another Indigenous Family Violent Offender Program, as recommended. What is significant, in the circumstances, is that the appellant continued to report after 7 October 2010.
 Unfortunately, the contents of the Progress Report were not drawn to the attention of the magistrate on 16 November 2011, nor on 23 November 2011 (the date to which the hearing of the application was adjourned). The facts read out by the prosecutor confirmed the appellant’s non-attendance on days 1 and 3; however, with respect to further participation, the facts were that “on 7 October 2010 an attendance report for course participation confirmed that the defendant failed to attend any further sessions as directed.” The admitted facts did not refer to the appellant’s attendance at the state funeral on day 3 of the program. The admitted facts did not disclose that the appellant was not required to attend any further sessions after the aborted day 3, nor the reasons why. The admitted facts suggested that the appellant had failed to attend the fourth and subsequent days, in wilful breach of directions given.
 Counsel acting for the appellant put a number of submissions to the magistrate, which I summarise as follows:
1. Notwithstanding the conditional breaches, the appellant had not re-offended or been in any further trouble;
2. The appellant did attend on one day of the program, the second day, and hence had not avoided his obligations altogether;
3. The appellant’s general reporting to Community Corrections was in compliance with his obligations under the suspended sentence;
4. The appellant was now a different person to the person he was when he committed the offence of aggravated assault of his partner, in that his health, which was already poor at the time of offending, had deteriorated significantly;
5. The reason he did not attend the program on the third and subsequent days was because he was ill and was hospitalised.
 The magistrate did not accept the submission as to the appellant’s illness and hospitalisation and the matter was adjourned to enable evidence to be put before the court.
 When the matter came back before the court on 23 November 2011, counsel for the appellant conceded that the hospital records did not substantiate the submission made on the earlier occasion, and that accordingly he did not propose to tender any hospital or medical records. Counsel explained to his Honour that the appellant had had various hospitalisations over the previous 12 months and that the appellant had been confused about when those periods of hospitalisation had occurred.
 The magistrate made the following comments to the appellant’s counsel, in effect seeking further submissions:
“So a man is released. A sentence of imprisonment is imposed. He is released before having to serve the entirety of the sentence of imprisonment upon two specific conditions. He breaches both of those specific conditions. He provides an explanation to the court on the last occasion which proves to be false, or at least incorrect and you are saying that because time has passed that he was under the radar while the time was passing that it would be lack of justice if he were required to complete the term of imprisonment?”
 The magistrate was concerned because he had been misinformed as to the reason for the appellant’s non-attendance on the third and subsequent days of the program. Clearly, the appellant had not been in hospital. It is most unfortunate that the magistrate was not aware of the Progress Report concealed within the papers on the court file, and that neither the prosecutor nor counsel for the appellant drew that document to his Honour’s attention. It was a relevant consideration that, notwithstanding the appellant’s less than adequate participation in the first three days, his non-participation on the remaining days was probably as a result of an administrative decision made by the program co-ordinator, not as a result of the appellant’s unwillingness or disobedience.
 In deciding that the entirety of the suspended sentence should be restored, the magistrate referred to Bukulaptji v The Queen  NTCCA 7 and in particular to par  where Riley J stated relevant factors to be considered in deciding whether it would be unjust to make an order restoring the sentence or part sentence held in suspense. In the course of carefully considering those factors, the magistrate made two significant findings against the appellant:-
“ ‘whether the breach demonstrates a continuing attitude of disobedience of the law’. I think in your case it does demonstrate that. You chose to ignore the conditions of your suspended sentence.
“ ‘the circumstances surrounding or leading to the breach’. I have only been told that you were feeling unwell. In circumstances where your first explanation has been shown to have been, at best, incorrect, at worst, untruthful, there are no circumstances surrounding or leading to the breach which I can accept today as explanatory.”
 It can be seen that the failure of the parties to put relevant evidence before the magistrate led his Honour to make findings adverse to the appellant which he would probably not have made if all relevant evidence had been before him.
 Miss Collins of counsel for the appellant (who did not appear as counsel in the Court of Summary Jurisdiction) tendered the three documents referred to in par  and par  at the appeal hearing, and Mr McMinn of counsel for the respondent did not object to my considering the documents for the purpose of receiving them as evidence on appeal under s 176A Justices Act. There is no preliminary issue under s 176A that the evidence is likely to be credible in the sense that it is capable of belief. Further, the evidence would have been admissible in the proceedings from which this appeal has been brought, and there is a reasonable explanation for the failure to adduce the evidence in those proceedings. Further for present purposes, I will assume in the appellant’s favour that he has complied, or if granted an adjournment could comply with the formal requirements in s 176A(1)(c) Justices Act as to notice.
 Once the preliminary statutory requirements are established for the admission of the new evidence, this Court is required to receive the new evidence unless it decides on balance that it “would not afford a ground for allowing the appeal”. This is a test of relevance to the issues on the appeal.
 In my assessment, the evidence, if received, would afford a ground for allowing the appeal, and I am so satisfied. I therefore admit the evidence.
 For the appellant to succeed in this appeal, s 163(1) Justices Act requires that this Court be satisfied that there has been “an error or mistake”, whether of fact, or of law, or both. In this case I am satisfied, on the basis of the new evidence, that there has been an error in the exercise of the magistrate’s discretion under s 43(5) Sentencing Act. Through no fault on the part of his Honour, he acted under a mistake of fact and did not take into account material considerations. There has been an injustice to the appellant. As a result, this Court may on appeal interfere with the exercise of the magistrate’s discretion.
 I allow the appeal and pursuant to s 177(2)(c) quash the order made by the Court of Summary Jurisdiction on 23 November 2011.
 I turn to consider the order which should have been made. I am satisfied that the appellant breached the conditions of the order suspending his sentence made by the Court of Summary Jurisdiction on 14 May 2010. This Court is required by s 43(7) Sentencing Act to restore the part sentence held in suspense and order the offender to serve it unless it is of the opinion that it would be unjust to do so in view of all the circumstances which have arisen since the suspended sentence was imposed.
 In my opinion, it would be unjust to order the appellant to serve the whole of the part sentence held in suspense, because he had complied with his reporting obligations from 25 May to 18 October 2010, and further (notwithstanding the conditional breaches) had managed not to re-offend during the whole 12 months or more from October 2010 through to 23 November 2011. Further, although the appellant had made an inadequate attempt to participate in the Indigenous Family Violence Offenders Program, he had made some attempt and it had been recommended that he participate in the program at a later time. It is also relevant that the appellant’s non-participation on the days after day 3 was probably as a result of an administrative decision made by the program co-ordinator, not as a result of the appellant’s wilful refusal or disobedience.
 Pursuant to s 177(2)(c) Justices Act, I substitute the following order for the order made by the magistrate:-
Order restoring part of the part sentence held in suspense, namely the period of 7 days, to commence on 15 November 2011 to reflect time spend in custody.
 It was accepted on the appeal hearing that a State Funeral for a distinguished Aboriginal community leader and country and western singer did take place that day at Hermannsburg.
 See Hook v Ralphs (1987) 45 SASR 529 at 535, referred to by Mildren J in Pagett v Hales  NTSC 35 at .
 s 176A(1)(b) requires that there should be “a reasonable explanation for the failure to adduce” the evidence in the proceedings from which the appeal lies.
 Smith v Torney (1984) 29 NTR 31 at 33, per Muiread J.
 House v R (1936) 55 CLR 499 at 504.