Adeseolu v The King - [2022] SASCA 113

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
ADESEOLU v THE KING
[2022] SASCA 113
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
31 October 2022
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - OTHER FACTORS - CIRCUMSTANCES OR CONDITIONS OF IMPRISONMENT
Application for permission to appeal against sentence.
The applicant was convicted of one count of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA).
Through a series of transactions over the period 8 to 15 May 2019, the applicant transferred $64,872.51 in funds belonging to the Victorian Country Fire Authority through a series of bank accounts held either in the applicant’s name or in the name of two former partners of the applicant. In doing so, he dealt with the funds dishonestly and without regard for the proprietary rights of the true owner of those funds.
The applicant was sentenced in the Magistrates Court. The sentence, which was reduced on account of the applicant’s guilty plea from a notional starting point of seven months, was five months and 29 days imprisonment. The Magistrate partially suspended this sentence, ordering that the applicant serve one month and 29 days of the sentence of imprisonment in prison, and suspending the balance upon his entering into a good behaviour bond.
The applicant seeks permission to appeal against his sentence on two grounds. The first ground complained that the sentence imposed was manifestly excess. By his second ground, the applicant complained that the Magistrate erred in not giving consideration to ordering that the sentence be served on home detention, or in the alternative in giving inadequate reasons for declining to order that it be served on home detention.
Held, per the Court, granting permission to appeal but dismissing the appeal:
1. The Magistrate erred in not making reference to the possibility of home detention in determining that a partially suspended sentence was the most appropriate sentence in the circumstances.
2. Notwithstanding the Magistrate’s process error, this is a case where the Court declines to interfere with the sentence below on the basis that this Court would, in resentencing, not have imposed any lesser sentence.
Criminal Law Consolidation Act 1935 (SA) s 134; Criminal Procedure Act 1921 (SA) ss 5, 116; Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) ss 10, 52, 71, 96, referred to.
BRK v Police [2020] SASC 116; Kentwell v R (2014) 252 CLR 601; Moran v The Queen (2020) 136 SASR 504; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; R v Hosking (2017) 128 SASR 37; R v Jurisic (1998) 45 NSWLR 209; Siropoulos v Police [2019] SASC 127; Stenecker v Police (2014) 120 SASR 18, considered.

ADESEOLU v THE KING
[2022] SASCA 113
Court of Appeal – Criminal: Doyle, David and Bleby JJA

THE COURT: The applicant pleaded guilty to one count of theft, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and with a maximum penalty of 10 years imprisonment.
Under s 5 of the Criminal Procedure Act 1921 (SA) (CPA) the offence was a major indictable offence, being an offence under Part 5 of the CLCA involving more than $30,000. Pursuant to s 116(1) of the CPA, a Magistrate determined and imposed sentence.
From a starting point of seven months imprisonment, and after a reduction of 15 per cent on account of the applicant’s plea of guilty, the Magistrate imposed a sentence of five months and 29 days imprisonment. Pursuant to s 96(4) of the Sentencing Act 2017 (SA), the Magistrate partially suspended that sentence, ordering that the applicant serve one month and 29 days of the sentence of imprisonment in prison, and suspending the balance of the sentence on condition that the applicant enter into a good behaviour bond.
On the day the sentence was imposed, the applicant filed an application for permission to appeal his sentence, and was released on bail pending the hearing and determination of his appeal.
Under s 42(2)(ab) of the Magistrates Court Act 1991 (SA), an appeal against sentence in respect of a major indictable offence lies, with permission, to the Court of Appeal.
The applicant seeks permission to appeal on two grounds, namely:
1.that the sentence imposed was manifestly excessive; and
2.that the Magistrate erred in not giving consideration to ordering that the sentence be served on home detention, or in the alternative, in giving inadequate reasons for declining to order that it be served on home detention.
The applicant does not complain about the length of his sentence of imprisonment. His complaint is that it was unreasonable and plainly unjust, and hence not open to the Magistrate, to decline to wholly suspend his sentence of imprisonment. In the alternative, he contends that the Magistrate erred in failing to consider, or even mention, the possibility of home detention before determining to partially suspend the applicant’s sentence.
Permission to appeal having been opposed by the Director of Public Prosecutions, the question of permission was referred for hearing as on appeal.
Following argument, the Court made orders granting permission to appeal, but dismissing the appeal, with reasons to be published at a later date. Our reasons for making that order follow.
It is appropriate to commence by summarising the circumstances of the applicant’s offending and his personal circumstances, before then returning to the Magistrate’s approach to sentence and the challenges made by the applicant.
Circumstances of the offending
The applicant pleaded guilty to one count of theft by dealing with the property of the Victorian Country Fire Authority (the victim) dishonestly and without its consent.
On 6 May 2019, the victim received two invoices by email from a real estate company (RT Edgar Real Estate) for a total of $64,872.51, with the payment details having been fraudulently altered. The altered bank account details nominated a Westpac bank account that was held in the joint names of the applicant and his ex-partner, Ms Mill.
Later the same day, the victim paid both invoices, transferring $64,872.51 into this Westpac account.
Whilst this transfer of the funds was the product of a deception upon the victim, the applicant was not charged with any offence arising out of this transaction. The prosecution acknowledged that there was no evidence to prove that the applicant had sent the emails attaching the fraudulent invoices.
However, through three subsequent transactions over 8 and 9 May 2019, the applicant transferred the funds from this first Westpac account into a second Westpac account, also held in the joint names of the applicant and Ms Mill.[1] It was these subsequent transfers that were the subject of the charge of theft to which the applicant pleaded guilty.
[1] These three transfers totalled $64,800, with the remaining balance transferred on 15 May 2019.
Through a series of subsequent transfers over the period from 9 to 15 May 2019, the applicant then transferred the funds through a series of further bank accounts held in either the applicant’s name or in the name of another former partner of the applicant (Ms Agudah). The vast majority of the funds were ultimately withdrawn by the applicant in cash.
Neither Ms Mill nor Ms Agudah knew anything about these transfers.
Except for $10,000, which was ‘stopped’ by the bank before it was transferred out of the second Westpac account and hence recovered by the victim, the balance of the funds ($54,872.51) was not recovered by the victim. That said, the sum lost by the victim was covered by insurance, with the ultimate financial loss suffered by the victim confined to the $2,500 excess it was required to pay the insurer.
As the Magistrate explained, by pleading guilty, the applicant accepted, and fell to be sentenced on the basis that, when transferring the funds from the first Westpac account to the second Westpac account, he did so knowing that the money was not his, and that he was thereby dealing with those funds dishonestly and without regard for the proprietary rights of the true owner of those funds. He also fell to be sentenced on the basis that these transfers were the first in a series of steps that the applicant intended to take in order to avoid detection of the theft for which he was charged, so that the funds could be used not by their true owner, but by the applicant or someone else.
As explained, the amount of the theft was $64,872.51. The applicant was, however, sentenced on the basis that he only benefited from the theft to the extent of $4,000. The Magistrate accepted the submission on behalf of the applicant that he had himself been the subject of a scam, and that he offended in an attempt to recover the $4,000 he had lost through this scam, rather than with any intention to profit over and above that amount. As the Magistrate explained:
Your lawyer has told the court what you now say took place. You say you had invested $4,000 with a company called Aspen Holdings, apparently believing it would be invested in cryptocurrency. You say that when the Commonwealth Bank contacted you about the possibility of that being fraudulent, you contacted Aspen Holdings and were reassured that everything was legitimate. However, you say when you later wanted to withdraw your money, Aspen Holdings told you that could not happen because it was invested - but with your assistance the company could make arrangements to provide the $4,000. You say this company told you that you would be provided with an amount of money into your account, and you would be told when and where to pay it to others. You indeed received money into your account. You did transfer it, and you did pay it, you say as requested by Aspen Holdings, at Marion, Arndale, and Castle Plaza.
Your lawyer tells me that you knew when the money was paid into your account that this was not legitimate and that you knew you were part of a scam. Your lawyer says that is consistent with you telling the police that the money was not yours. What your lawyer says is that you were acting desperately to get back what you saw as your $4,000.
If what you are saying is that you acted not to make a personal profit but to recoup a personal loss then, while I understand the motive for you to commit this crime, I do not see it as significantly mitigating the moral wrongness of what you did. On your version you knowingly took part in what you had realised and knew was a pre-organised crime, in which your part was to take $64,000 of what you knew was someone else’s money, and to pay it to people other than its true owner - and that your reward for doing that was going to be receiving $4,000. I accept that from what you are saying there may be other people who made more money than you did from this criminal enterprise - but you cannot escape the fact that you actually wanted that to occur; you wanted them to gain their dishonest benefit just so you could get your $4,000. Put another way, you wanted the true owner to lose all of its money just so you could get yours.
The applicant’s personal circumstances
At the date of sentencing, the applicant was 39 years of age. He was born in Nigeria and grew up in a relatively stable family environment. He obtained a degree in science and applied maths. He was working as a classroom teacher when, in 2007, he was called upon to perform compulsory national service. He subsequently worked in a factory.
The applicant married in 2012, and has a daughter from that marriage who was five years old at the date of sentencing.
In 2017 the applicant decided to leave Nigeria for Australia, to escape what he described as the trauma associated with living in a country where violence was commonplace. He came to Australia on a study visa, leaving his wife and daughter in Nigeria.
Once in Australia, the applicant began working six days a week in a factory, as well as undertaking some study. He continued to provide child support and school fees for his daughter in Nigeria.
In 2018, the defendant commenced a relationship with Ms Agudah. As at the date of sentence, the defendant was the primary provider for Ms Agudah and her children.
The defendant was living in rented accommodation. He had taken out a short-term loan with a high interest rate to enable him to make ends meet. He has two brothers in Perth and a sister in Melbourne. He was heavily involved in a church.
The Magistrate had regard to character references from both Ms Agudah and a fellow member of the defendant’s church.
The Magistrate accepted that the defendant was remorseful for his offending.
Since arriving in Australia the defendant had been convicted of some driving offences. In 2018, he was convicted of driving whilst unregistered, uninsured, disqualified and intoxicated. In 2020 he was convicted of driving the wrong way down a one-way street, while intoxicated, and failing to comply with breath analysis directions. The Magistrate accepted that these antecedents were “not in the same league” as the subject offending, but was “information which I weigh in the balance when I consider your character and the character references you have provided.”
Sentencing submissions
In sentencing submissions before the Magistrate, counsel for the defendant, while accepting that a term of imprisonment would be appropriate, submitted that his Honour should (wholly) suspend the sentence of imprisonment. He argued that there was good reason to suspend given the defendant’s lack of relevant prior offending, the fact that he was gainfully employed, his family’s reliance upon his income, and the length of time that had passed since the offending. He also emphasised that his offending, while serious and involving a significant sum of money, was motivated by a desire to recover a loss (rather than to make a profit), and only resulted in a gain to him of $4,000 and a loss to the victim of $2,500. In the alternative, he submitted that the Magistrate should order that the sentence be served on home detention.
The prosecutor submitted that, in light of the seriousness of the offending, there was no good reason to (wholly) suspend the term of imprisonment. On the other hand, the prosecutor accepted that the issue of home detention “may be more finely balanced”. He accepted that it was a sentencing option that was open to the Court in the event that it accepted that there was not good reason to suspend the sentence.
In the course of sentencing submissions, the Magistrate raised the possibility of a partially suspended sentence. Counsel for the defendant submitted that any term of imprisonment would have an impact on the defendant’s employment and family, and hence would be more onerous from the defendant’s perspective. The prosecutor acknowledged that a partially suspended sentence was an available sentencing option. However, he reiterated his primary submission that the court should not wholly suspend the sentence, while acknowledging that it might nevertheless be appropriate to order that the sentence be served on home detention so that the defendant could maintain his employment and support his family.
The Magistrate’s sentencing remarks
In his sentencing remarks, the Magistrate summarised the circumstances of the offending, and the defendant’s personal circumstances, in terms similar to the above.
After mentioning the primary and secondary purposes of sentencing under the Sentencing Act, the judge pronounced sentence:
The Director of Public Prosecutions has submitted that the wilfulness of your dishonesty and the amount you stole calls for a sentence with significant personal and general deterrent effect. The Director says that no other sentence than a sentence of imprisonment is appropriate. While the Director’s initial position was that it should be served either in a prison or on home detention, he has since indicated that it may be open to the court to partially suspend a period of imprisonment. Your lawyer has accepted that a period of imprisonment is warranted. However, he urges upon me that there is good reason to suspend any such period of imprisonment. Your lawyer has accepted that a period of imprisonment is warranted. However, he urges upon me that there is good reason to suspend any such period of imprisonment. That good reason, he says, can be found in the fact of your gainful employment, your lack of prior significant criminal history, the reliance by your family upon your income and the length of time for which you have remained trouble free from offending since this accident.
After considering the nature and gravity of the offence that you committed, your personal circumstances and the purposes of sentencing, I agree that due to the amount stolen, the only appropriate sentence is a sentence of imprisonment. As I said, the maximum penalty is 10 years. Whilst I would have started, in your case, at a period of seven months imprisonment, that figure will he reduced by 15 percent to five months and 29 days for the timing of your guilty plea.
I am not convinced that total suspension of the sentence is appropriate. I consider your offending to be too serious to justify that course. The matters that have been raised are sufficient to persuade me that good reason exists to partially suspend the period of imprisonment that I consider must be imposed.
The order of the court is that you will be sentenced to a period of imprisonment of five months and 29 days. You will commence that period of imprisonment forthwith, but you will be released after one month and 29 days. That means that the remaining four months of the imprisonment will be suspended if you enter into a bond in the sum of $1,000 to be of good behaviour for three years.
It can thus be seen that, having determined that it was appropriate to partially suspend the applicant’s sentence of imprisonment, the Magistrate did not squarely address the defendant’s submission that the Court should order that his sentence be served on home detention. Indeed, the only mention the Magistrate made of home detention was in the first paragraph of the above extract from his sentencing remarks, being a passing reference to the prosecution’s acknowledgment that it was a sentencing option that was available to the Magistrate.
Consideration
For reasons which will become apparent, it is convenient to commence by addressing Ground 2.
The essence of the applicant’s argument under this ground is that, in circumstances where defence counsel contends that home detention is an appropriate sentencing option, it is incumbent upon the sentencing judge to give consideration to that submission before concluding that it is appropriate to impose a partially suspended sentence of imprisonment (a corollary of which will be, of course, that some part of the sentence will need to be served in prison rather than on home detention). The applicant argues that the sentencing judge in the present case erred in failing to consider home detention, or in the alternative, if he did consider it, in failing to give any reasons for rejecting that sentencing option in favour of the more onerous option of a partially suspended sentence of imprisonment.
The respondent’s argument in response is that there was no need for the sentencing judge to have expressly addressed the issue of home detention; that on a proper interpretation of s 71(1)(b) of the Sentencing Act, home detention only becomes an available sentencing option once the sentencing judge has rejected suspension (whether full or partial), with the result that, because the judge considered it was appropriate to partially suspend the applicant’s sentence, there was no occasion in the present case for his Honour to have given any direct consideration to home detention. Alternatively, it was argued that even though his Honour did not mention home detention, his reasons for rejecting it were apparent from a reading of the transcript of sentencing submissions and the Magistrate’s sentencing remarks.

In assessing these competing submissions, it is useful to commence with some basic principles governing the sentencing exercise.
Under s 19(1) of the Sentencing Act, the court must “state the sentence that it is imposing … and its reasons for imposing that sentence”. A primary purpose of sentencing remarks is to provide a defendant with an explanation for the sentence that is imposed. Another is to enable this Court to undertake its appellate function. However, it is trite that sentencing remarks may be brief and to the point, and need not contain reference to, let alone a detailed explanation of, every issue that arises during the sentencing process. It will ordinarily be sufficient that they contain some reference to the key submissions advanced by the parties, and some short explanation for the acceptance or rejection of those submissions.
Further, while regard may be had to sentencing submissions for the purposes of understanding, and putting in context, matters mentioned in the sentencing remarks, some care is needed in this respect. Statements made during the course of sentencing submissions may provide some assistance in understanding how the sentencing judge has approached the matter, but may not be sufficient to discharge the sentencing judge’s obligation to provide reasons for the sentence imposed, particularly when a matter has not been mentioned at all in the sentencing remarks.
Under s 10(2) of the Sentencing Act, a court must not impose a sentence of imprisonment unless it decides that the seriousness of the offence is such that the only penalty that can be justified is imprisonment, or that imprisonment is required for the purposes of protecting the safety of the community. A sentence of imprisonment is, in that sense, a sentence of last resort.[2]
[2] R v Hosking (2017) 128 SASR 37 at [44] (Blue J).
In circumstances where a sentencing judge determines that a sentence of imprisonment is appropriate, the judge may, under s 96 of Part 4 Division 2 of the Sentencing Act,[3] suspend that sentence if it thinks that “good reason” exists for doing so:
[3] Section 96 appears in Part 4 (Other community based sentences), Division 2 (Bonds, community service and supervision in the community) of the Sentencing Act.
96—Suspension of imprisonment on defendant entering into bond
(1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(b)     to comply with the conditions of the bond referred to in subsection (2); and
(c)     to comply with any other conditions of the bond as the court thinks appropriate and specifies in the bond.
Subsection 96(3) sets out various circumstances in which suspension is not available, but none of those are relevant in the present case.
Ordinarily, any suspension will be of the whole sentence. However, in the case of a sentence of imprisonment of more than three months but less than 12 months, the sentencing judge may, under s 96(4), ‘partially suspend’ the sentence:
(4)Despite subsection (3)(a),[4] if the period of imprisonment to which a defendant is liable under 1 or more sentences is more than 3 months but less than 12 months, the sentencing court may, by order—
(a) direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison; and
(b) suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
[4] Noting that s 96(3)(a) prevents the sentencing judge suspending a sentence where it is to be served cumulatively upon, or concurrently with, another term of imprisonment then being served, or about to be served, by the defendant.
It follows from the terms of s 96(4) that a partially suspended sentence entails the defendant first spending a specified period (of not less than one month) in prison, before then having the remainder of the sentence suspended. The utility of a partially suspended sentence lies in its capacity to combine the specific and general deterrent effects of a period of imprisonment with a subsequent period of rehabilitation under supervision in the community.[5]
[5] Stenecker v Police (2014) 120 SASR 18 at [14] (Kourakis CJ).
Another sentencing option that may be available to the sentencing judge is to make an order under s 71(1) of Part 3 Division 7 of the Sentencing Act[6] that the defendant serve their sentence on home detention:
[6] Section 71 appears in Part 3 (Custodial sentences), Division 7 (Community based custodial sentences), Subdivision 1 (Home detention) of the Sentencing Act.
71—Home detention orders
(1)     Subject to this section, if—
(a)     a court has imposed a sentence of imprisonment on a defendant; and
(b) the court considers that the sentence should not be suspended under Part 4 Division 2; and
(c)     the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may order that the defendant serve the sentence on home detention (a home detention order).
As can be seen from the terms of s 71(1), the sentencing court’s discretion to make a home detention order is conditioned upon satisfaction of ss 71(1)(a), (b) and (c).[7] Relevantly for the purposes of the present case, under s 71(1)(b), the court must consider that the sentence “should not be suspended under Part 4 Division 2”. In other words, the court’s discretion to make a home detention order is not enlivened unless the judge has rejected suspension under s 96 (which appears within Part 4 Division 2 of the Sentencing Act). Once enlivened, the exercise of the discretion to make a home detention order is governed by a consideration of the matters listed in s 71(3).
[7] It is also conditional upon none of the circumstances of preclusion in s 71(2) existing.
Putting to one side for the moment those cases in which a partially suspended sentence might be available (that is, where the sentence of imprisonment is for a period of more than three months but less than 12 months), it is accepted that a sentencing court cannot make a home detention order unless it considers that good reason does not exist to (wholly) suspend the sentence. [8] That is the plain effect of s 71(1)(b) of the Sentencing Act.
[8] R v Hosking (2017) 128 SASR 37 at [54] (Blue J); R v Filipponi (2016) 126 SASR 464 at [22] (Kourakis CJ, Vanstone and Nicholson JJ agreeing); R v Dell (2016) 126 SASR 571 at [42] (Doyle J, Kelly and Parker JJ agreeing).
This approach is consistent with the view that there is, in effect, a hierarchy of sentencing options available once it has been determined that a sentence of imprisonment is appropriate. A fully suspended sentence, although a significant penalty,[9] is the least onerous option and sits at one end of the hierarchy. A sentence of imprisonment, to be served in a prison, is the most onerous option and sits at the other end of the hierarchy. An order that the sentence be served on home detention sits between those alternatives. As Doyle J said in R v Dell:[10]
The power to order that a defendant serve their term of imprisonment on home detention is intended to provide an alternative to custody within a prison. A home detention order sits in the sentencing hierarchy between a suspended sentence … and a custodial sentence [in prison]. That is, it is a more onerous punishment than a … [wholly] suspended sentence of imprisonment, but a less onerous punishment than a custodial sentence.
…
… [I]t is important to bear in mind that while serving a term of imprisonment on home detention represents a significant entrenchment upon a defendant’s ordinary liberty and freedom of movement, and is a more onerous form of punishment than a suspended sentence of imprisonment, the reality is that it is a significantly less onerous form of punishment than a requirement that the defendant serve an immediate term of imprisonment within a prison. The New South Wales authorities in relation to the similar regime for home detention orders that exists in that jurisdiction make this plain.[11]
The significance of the less onerous nature of a home detention order is that courts will need to be astute to ensure that the making of such an order — even if it will assist in the rehabilitation of the defendant and provide sufficient personal deterrence — does not inappropriately undermine achievement of the objectives of punishment and general deterrence. The ultimate sentence imposed must always be appropriate having regard to the criminality of the conduct involved, and the Court’s concern to achieve a level of punishment and general deterrence. The greater the weight to be attached to these objectives in an individual case, the less likely it will be appropriate that there be an order for home detention.
[9] R v Hosking (2017) 128 SASR 37 at [47]-[48] (Blue J), referring to Elliott v Harris (No 2) (1976) 13 SASR 516 at 527 (Bray CJ, Bright and Zelling JJ agreeing).
[10] R v Dell (2016) 126 SASR 571 at [42], [56]-[57] (noting that under the legislation in force at the time that home detention was treated as a form of suspended sentence, whereas under the Sentencing Act now in force it is treated as a custodial sentence); see also R v Hosking (2017) 128 SASR 37 at [59]-[61] (Blue J).
[11] R v Jurisic (1998) 45 NSWLR 209 at 215, 250.
A partially suspended sentence also sits between the two alternatives of a fully suspended sentence and a sentence that is to be served in prison. However, precisely where it sits relative to home detention is not so clear. In BRK v Police,[12] Livesey J described a partially suspended sentence as not fitting neatly within the sentencing hierarchy discussed in R v Dell and R v Hosking, adding that, “[i]n a sense this option ‘straddles’ home detention because it encompasses elements that are at once more onerous and less onerous than home detention.”[13] Perhaps all that can be said about where a partially suspended sentence sits in the hierarchy of sentencing options is that it sits between the two alternatives of a fully suspended sentence and a sentence that is to be served in prison, and alongside a sentence to be served on home detention.
[12] BRK v Police [2020] SASC 116.
[13] BRK v Police [2020] SASC 116 at [83] (Livesey J).
The applicant contends that, for him at least, a partially suspended sentence (requiring that he serve an initial period in prison) would be a more onerous sentencing option than home detention. We accept that this would be so, and indeed would likely be so for many defendants, particularly those who have not previously served a term of imprisonment in prison, who face losing their employment if required to serve a term of imprisonment, or who otherwise have family members or other persons dependent upon them.
Accepting that a partially suspended sentence will often be more onerous than home detention, an issue that arises is whether a sentencing judge is required to consider making an order that the sentence be served on home detention before determining to impose a partially suspended sentence.
On one view, the terms of s 71(1)(b) of the Sentencing Act might be said to prevent the court making (or even considering) an order that the sentence be served on home detention unless and until it has rejected partial suspension.
Under that subsection, the court’s discretion to make an order that a sentence of imprisonment be served on home detention is only enlivened if the court considers that “the sentence should not be suspended under Part 4 Division 2”. In circumstances where the court’s power to both wholly suspend (s 96(1)) and partially suspend (s 96(4)) appear in Part 4 Division 2 of the Sentencing Act, it would seem that the court’s discretion to make a home detention order is only enlivened if the court considers that it should not wholly or partially suspend the sentence of imprisonment.
The applicant contends for a different construction of s 71(1)(b). He contends that because s 71(1)(b) refers to suspension of “the sentence”, as opposed to “part of the sentence”, it should be construed as only referring to, and only requiring rejection of, a wholly suspended sentence. He contends that only a wholly suspended sentence entails suspension of “the sentence”; that a partially suspended sentence entails suspension of only part of the sentence.
We do not accept this construction of s 71(1)(b). The better view is that the reference in s 71(1)(b) to a sentence being “suspended under Part 4 Division 2” is a reference to any form of suspension under Part 4 Division 2. In our view, partial suspension under s 96(4) is a form of suspended sentence. Whilst partial suspension under s 96(4) is subject to an additional pre-condition (namely that the head sentence be more than three months but less than 12 months), s 96 treats both wholly and partially suspended sentences as forms of suspended sentence. If Parliament had meant to distinguish between these two forms of suspended sentence in s 71(1)(b) then it could easily have done so, and one would expect it to have done so. Even if only partially suspended, the sentence is nevertheless a suspended sentence for the purposes of s 71(1)(b).
Some support for this construction may be found in the reasons of Kourakis CJ in Siropoulos v Police.[14] In holding that the court was not empowered to order a period of home detention with the balance of the sentence to be suspended, Kourakis CJ explained that this was precluded not only by the inclusion of the words “in prison” in s 96(4), but also by the terms of s 71(1)(b).[15] His Honour’s reference to this latter subsection assumes that it refers to both wholly and partially suspended sentences.
[14] Siropoulos v Police [2019] SASC 127.
[15] Siropoulos v Police [2019] SASC 127 at [9] (Kourakis CJ).
We also observe in passing that our conclusion as to the proper construction of s 71(1)(b) is consistent with the Court’s conclusion in Moran v The Queen[16] that the reference to “a suspended sentence” in s 52(3) of the Sentencing Act (which states that the provisions governing the sentencing of serious repeat offenders apply to a sentence of imprisonment “other than a suspended sentence”) should be construed as a reference to both wholly and partially suspended sentences.[17]
[16] Moran v The Queen (2020) 136 SASR 504 at [59] (Bampton J, Parker and Doyle JJ agreeing).
[17] Noting that s 52 of the Sentencing Act was subsequently amended, but retains an equivalent reference to “a suspended sentence” in the proviso to the definition of a “serious offence”.
The applicant further contends that, even if s 71(1)(b) precludes the court from making a home detention order unless and until it has rejected both a wholly suspended sentence (s 96(1)) and a partially suspended sentence (s 96(4)), this does not prevent the court from at least considering the appropriateness or otherwise of a home detention order before reaching a conclusion as to whether or not partial suspension is the appropriate sentencing option.
It is true that the decisions in each of R v Filipponi,[18] R v Dell,[19] and R v Hosking[20] provide some support for a sequential, or staged, approach that involves first rejecting a suspended sentence before considering home detention as a sentencing option. However, as Livesey J explained in BRK v Police,[21] it is significant that partial suspension was not under consideration in any of those cases. In cases where the only sentencing options under consideration are a wholly suspended sentence and home detention, an approach that involves rejection of the former before considering the latter not only meets the requirements of s 71(1)(b), but also accords with an approach that involves considering less onerous sentencing options before arriving at a conclusion to impose a more onerous option.
[18] R v Filipponi (2016) 126 SASR 464 at [22] (Kourakis CJ, Vanstone and Nicholson JJ agreeing).
[19] R v Dell (2016) 126 SASR 571 at [43] (Doyle J, Kelly and Parker JJ agreeing).
[20] R v Hosking (2017) 128 SASR 37 at [52], [54] (Blue J).
[21] BRK v Police [2020] SASC 116 at [73]-[74] (Livesey J).
Livesey J went on to explain that there will be some cases in which it will be appropriate, and indeed necessary, to give at least some consideration to the possibility of home detention before reaching a conclusion that suspension is the appropriate sentencing option:[22]
I have adverted to the process of considering less onerous sentencing options before arriving at an appropriate sentencing option. In my opinion that does not mean that the process becomes mechanical or regimented, or something other than an “instinctive synthesis”. Likewise, it does not mean that the “preconditions” to the enlivening of a discretion to make any relevant order are ignored. What it means is that the sentencing judge will first survey and consider the appropriate and available sentencing options. These options will depend on the circumstances of the particular case including the offending, the offender, the matters mandated by the Sentencing Act and the submissions and evidence before the court. The exercise of the discretion will then focus on the specific requirements of any preferred sentencing option. In many cases this approach to the sentencing hierarchy will not require any detailed consideration, save that adequate reasons for the preferred sentencing option must be given, together with why any key submissions were rejected.
The terms of s 71(1)(b) prevent a sentencing judge ordering both home detention and suspension. As well, and as was seen in Filipponi, Dell and Hosking, the particular preconditions to the enlivening of a discretion to order home detention must be satisfied. As I have explained, that does not mean that the sentencing judge will latch onto suspension, whether whole or partial suspension, and exclude from all consideration home detention. That will be especially so where partial suspension, and therefore actual imprisonment, is an option.
[22] BRK v Police [2020] SASC 116 at [81]-[82] (Livesey J), omitting citations.
Livesey J went on to say that “it will often be appropriate in a case where suspension is in contemplation, whether whole or partial suspension, to also consider home detention.”[23] As his Honour acknowledged, whether that will be so in a particular case will depend very much upon the circumstances of the particular case.
[23] BRK v Police [2020] SASC 116 at [83] (Livesey J).
On the facts of that case, where home detention was an available sentencing option, and was central to the sentencing submissions made on behalf of the defendant, his Honour held that the Magistrate was required to have regard to it when surveying the array of sentencing options at her disposal,[24] and erred in failing to give any explicit consideration to the possibility of home detention.[25] At the same time, his Honour was careful to explain that even in those cases where it is necessary for the sentencing judge to address the possibility of home detention, the sentencing judge’s reasons for rejecting that option need not be lengthy.[26]
[24] BRK v Police [2020] SASC 116 at [85] (Livesey J).
[25] BRK v Police [2020] SASC 116 at [89]-[90] (Livesey J).
[26] BRK v Police [2020] SASC 116 at [89] (Livesey J).
We agree generally with this approach. We accept that the court’s discretion to make an order for home detention is, by reason of s 71(1)(b) of the Sentencing Act, not enlivened unless it considers that there is not good reason to wholly or partially suspend the sentence of imprisonment. However, there will be cases where home detention is a realistic sentencing option, and the defendant submits that it is a more appropriate sentencing option than a partially suspended sentence, presumably on the basis that he or she regards it as a less onerous form of punishment than a partially suspended sentence (because it has, embedded within it, a period of time in prison). In those cases, the court should give at least some consideration to home detention in the course of determining the appropriate sentencing outcome. Put another way, in that type of case, a conclusion that partial suspension is the appropriate sentence necessarily entails a conclusion that home detention would be an inadequate, or at least less appropriate, sentencing option. Some consideration of that alternative sentencing option is thus required.

However, we should not want the above to be understood as requiring that the sentencing judge embark upon a detailed consideration of home detention in every case where he or she is considering a partially suspended sentence over home detention. The sentencing judge may quite simply and instinctively form the view that home detention will not adequately achieve the objectives of the sentencing exercise because, for example, it will not achieve an adequate measure of punishment, or personal and general deterrence, given the seriousness of the offending. Speaking generally, all that will be required in the sentencing remarks is some indication that the judge has considered home detention as a sentencing option, and some indication of the judge’s reasons for deciding that partial suspension, rather than home detention, is the appropriate sentencing option.
Applying that approach to the present case, while the defendant’s primary submission was that his sentence of imprisonment should be wholly suspended, his alternative submission was that the Magistrate should order that his sentence be served on home detention. When the Magistrate mentioned partial suspension as an option, counsel for the defendant submitted that home detention was a more appropriate option. The prosecutor acknowledged the potential appropriateness of an order that the sentence be served on home detention.
Despite the centrality of home detention to the defendant’s sentencing submissions, the Magistrate did not make any reference at all to the possibility of home detention in his sentencing remarks, save for one passing reference to the prosecutor’s acceptance that it was an available sentencing option. After rejecting the appropriateness of a wholly suspended sentence, the Magistrate moved immediately to a conclusion that good reason existed to partially suspend the period of imprisonment that he considered must be imposed.
In our view, the Magistrate erred in failing to advert to the possibility of home detention at this point in his remarks. It may well be that his Honour considered that home detention would not involve an adequate measure of punishment, or personal and general deterrence, given the seriousness of the offending. However, if that was his view, it is not apparent from the Magistrate’s sentencing remarks, or indeed anything he said during the course of sentencing submissions. The defendant, and this Court, should not have been left to speculate.
Disposition of the appeal
Having identified error, it falls to this Court to consider resentencing the defendant. However, consistently with the approach outlined by the High Court in Kentwellv R,[27] the Court may nevertheless dismiss the appeal if it is satisfied that it would not have imposed any lesser sentence.
[27] Kentwell v R (2014) 252 CLR 601 at [43] (French CJ, Hayne, Bell and Keane JJ).
As mentioned earlier, there is no challenge to the length of the applicant’s sentence of imprisonment. As against the maximum sentence of 10 years imprisonment, the sentence of seven months imprisonment (reduced by 15 per cent to five months and 29 days imprisonment on account of the applicant’s plea of guilty) was a relatively modest sentence.
In contending that the sentence of imprisonment should be wholly suspended, or in the alternative served on home detention, the applicant relies upon his difficult personal history in Nigeria, his history of employment since moving to Australia, the fact that he remains gainfully employed, his family’s reliance upon his income, his genuine remorse, his lack of any significant antecedents, and the length of time that had passed since his offending. He relies upon the fact that he has not previously had an opportunity to demonstrate his capacity for rehabilitation through a suspended sentence or period of home detention. The applicant also emphasises that his offending, while serious and involving a significant sum of money, was motivated by a desire to recover a loss (rather than to make a profit), and only resulted in a gain to him of $4,000 and a loss to the victim of $2,500.
We accept that these are all relevant considerations. They provide some support for either a wholly suspended sentence, or an order that the sentence be served on home detention. However, in our view, neither of these sentencing options would achieve the significant need for punishment and deterrence, particularly general deterrence, given the nature and seriousness of the applicant’s offending. While the limited profit earned by the applicant, and limited loss ultimately suffered by the victim, are relevant considerations, it must not be overlooked that the sum involved in the applicant’s theft was significant ($64,872.51). The applicant knew the sum involved, and must take responsibility for this sum even though he did not personally benefit to this extent. While committed over a relatively short period of time, and at a time when the applicant was in a desperate position having himself been the victim of a scam, his offending was not spur of the moment offending. He had time to reflect and yet made a conscious decision to make the relevant transfers as the first steps in a series of steps designed to avoid detection of his theft.
For these reasons, we are satisfied that neither a fully suspended sentence, nor an order that the sentence be served on home detention, were appropriate sentencing options. We would not have imposed any lesser sentence than the sentence that the Magistrate imposed. It is for this reason that we made the order following the hearing of the appeal, allowing the application for permission to appeal, but dismissing the applicant’s appeal.
For completeness, we add that, having reached the conclusion that we would not have imposed any lesser sentence, it follows that we have rejected the submissions put by the applicant in support of Ground 1. We do not accept that the sentence imposed was manifestly excessive by reason that it should have been wholly suspended rather than partially suspended.
We grant permission to appeal, but dismiss the appeal.