Antarakis v The Queen - [2020] SASCFC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
ANTARAKIS v THE QUEEN
[2020] SASCFC 105
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Doyle)
5 November 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
Appeal against a decision by a District Court Judge revoking the suspension of a suspended sentence of imprisonment.
The appellant tested positive for methylamphetamine on six occasions after entering into a suspended sentence bond. The Judge concluded that by taking methylamphetamine she breached a lawful direction by her community corrections officer not to use an illicit drug and also breached the obligation to be of good behaviour.
The appellant appeals, or seeks permission to appeal, on the following grounds:
1. The Judge erred in finding that the Direction Letter constituted a lawful direction to abstain from drug use because:
(a) the Ministerial Authorisation does not authorise a community corrections officer to impose a drug abstinence condition; or
(b) a proper objective construction of it reveals that it was only a direction to submit to drug testing.
2. The Judge erred in finding that the appellant breached the condition to be of good behaviour by using methylamphetamine.
3. The Judge erred by failing to find proper grounds to excuse the appellant’s breach of the suspended sentence bond.
4. The Judge erred by failing to find that special circumstances justified a reduction in the head sentence and non-parole period pursuant to section 114(5)(a) of the Sentencing Act 2017.
Held per Blue J (Kelly and Doyle JJ agreeing) dismissing the appeal:
1. The Direction Letter was not a lawful direction to abstain from drug use because the Ministerial Authorisation does not authorise a community corrections officer to impose a drug abstinence condition (at [46]).
2. On its objective construction, the Direction Letter was (purportedly) a direction to abstain from drug use (at [50]).
3. The Judge did not err in finding that the appellant breached the condition to be of good behaviour by using methylamphetamine (at [60]).
4. The Judge did not err in finding that there were not proper grounds to excuse the appellant’s breach of the suspended sentence bond (at [68]).
5. There were not special circumstances justifying a reduction in the head sentence or non-parole period (at [78]).
6. Appeal dismissed (at [84]).
Sentencing Act 2017 (SA) ss 96(1), 98, 108(1), 114(3), 114(5), referred to.
Higgins v Goldfinch (1981) 26 SASR 364; Police v Heritage (2019) 135 SASR 1; R v Marshall [2016] SASCFC 147, discussed.

ANTARAKIS v THE QUEEN
[2020] SASCFC 105
Court of Criminal Appeal: Kelly, Blue and Doyle JJ

KELLY J: I agree with the reasons of Blue J and would add with respect to his Honour’s remarks concerning sentencing of offenders where drug addiction is a criminogenic factor in the subject offending. If, in fact, on 18 June 2019 the Judge did deliberately omit the drug abstinence condition, I do not consider it would have been an appropriate exercise of the judicial discretion. As has been amply demonstrated by the circumstances of this matter, the omission to include that condition did nothing to advance the rehabilitation of the appellant and caused unnecessary confusion to those charged with the appellant’s supervision. It is a practice which should not be encouraged for the reasons explained by Blue J.
BLUE J: The appellant, Tamara Antarakis, appeals against a decision by a District Court Judge revoking the suspension of a suspended sentence of imprisonment.
The appellant tested positive for methylamphetamine on six occasions after entering into a suspended sentence bond which had been extended following earlier breaches. The Judge concluded that by taking methylamphetamine the appellant breached a lawful direction by her community corrections officer not to use an illicit drug and also breached the obligation to be of good behaviour.
The appellant appeals, or seeks permission to appeal, on the following grounds:
1The Judge erred in finding that the Direction Letter constituted a lawful direction to abstain from drug use because:
(a)    the Ministerial Authorisation does not authorise a community corrections officer to impose a drug abstinence condition;[1] or
(b)    a proper objective construction of it reveals that it was only a direction to submit to drug testing.[2]
2The Judge erred in finding that the appellant breached the condition to be of good behaviour by using methylamphetamine.[3]
3The Judge erred by failing to find proper grounds to excuse the appellant’s breach of the suspended sentence bond.[4]
4The Judge erred by failing to find that special circumstances justified a reduction in the head sentence and non-parole period pursuant to section 114(5)(a) of the Sentencing Act 2017 (the Act).[5]
[1]    Ground 1. Permission to appeal granted by single Judge.
[2]    Ground 2. Permission to appeal referred to Full Court.
[3]    Ground 3. Permission to appeal referred to Full Court.
[4]    Ground 4. Permission to appeal granted by single Judge.
[5]    Ground 5. Permission to appeal referred to Full Court.
Background
On 31 December 2015 the appellant was found in possession of methylamphetamine with a value of approximately $5,000. She was intending to sell it to friends without making a profit. She was sentenced on the basis that she had engaged in similar exercises in social trafficking in the past.
On 3 May 2017 the appellant was sentenced by a Judge in the District Court to imprisonment for two years and three months (reduced by ten per cent from a starting point of two years and six months on account of a late guilty plea), with a non-parole period of nine months. The sentence was suspended[6] on the appellant entering into a bond to be of good behaviour for two years with various conditions, including that she abstain from any drugs not lawfully prescribed and undergo tests for the presence of drugs in her system.
[6] Pursuant to section 38 of the Criminal Law (Sentencing) Act 1988 (SA).
The Judge sentenced the appellant on the basis that the offending was towards the lower end of the scale of seriousness for crimes of its kind, the appellant had been addicted to methylamphetamine for many years, she wanted to rehabilitate herself and her prospects of rehabilitation were reasonable.
The Judge warned the appellant in the following terms:
If you had of had any more drugs on you or if your record was worse, you would have been going straight to gaol. If you obey your supervising officer, if you stay off the drugs and if you stay out of trouble, all this will be behind you in two years. However, if you disobey your supervising officer, if you fail a drugs test, or if you commit any more offences, you will find yourself going to gaol and serving the sentence I have just suspended. So bear that in mind at all times and if you are ever tempted to step out of line, particularly by taking drugs or committing an offence, just remember where you will be going if you do.
After the appellant entered into the bond, her first two drug tests were negative but a third test on 21 December 2017 was positive.
On 6 March 2018 an application was brought by the Director of Public Prosecutions for enforcement of the bond.[7] On 17 May 2018, a different Judge of the District Court found that proper reason existed to excuse the breach.[8] The Judge in his sentencing remarks said amongst other things to the appellant:
I think the point to emphasise is that you have got a bond requiring you to be of good behaviour which first and foremost means you don’t offend in any way again including taking drugs. As Mr Evans said, he and the court acknowledge that it would be difficult to give up drugs but the idea of the bond is that you undertake counselling and treatment to achieve that object and end.
[7] Pursuant to section 57 of the Criminal Law (Sentencing) Act 1988 (SA).
[8] Pursuant to subsection 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) and section 114(3) of the Sentencing Act 2017 (SA).
On 15 June and 3 August 2018, further drug tests returned positive results for methylamphetamine.
On 30 August 2018 a second application was brought by the Director for enforcement of the bond.[9]
[9] Pursuant to section 113 of the Sentencing Act 2017 (SA).
The enforcement application came before a third Judge of the District Court on 19 October 2018. The Judge in due course requested a progress report and adjourned the application several times to enable further progress reports to be provided. The appellant tested negative to drugs on 30 October and 11 December 2018 and 4 January 2019.
The appellant tested positive to drugs on 20 December 2018 and 29 January, 14 February, 1 March and 13 March 2019. Her reporting and attendance at rehabilitation programs was intermittent.
On 18 June 2019 the Judge found that proper reason existed to excuse the breaches and, as the bond had by then expired, required the appellant to enter into a further bond to be of good behaviour for 12 months.[10] The Judge included various conditions in the bond but did not include drug abstinence or testing conditions. The appellant entered into the bond (the Bond).
[10] Pursuant to subsection 114(3)(c) of the Sentencing Act 2017 (SA).
On 20 June 2019 the appellant attended her first appointment with a community corrections officer. Thereafter, appointments were generally made on a fortnightly basis.
On 9 August 2019 the appellant was first seen by AB, who became her first regular supervising community corrections officer.
On 23 August 2019 the appellant failed to attend her appointment and a warning letter was issued to her. Thereafter, she generally attended appointments late.
On 31 October 2019 the appellant failed to attend an appointment and a further warning letter was issued to her. Her appointments were changed to weekly from 5 November 2019.
On 25 November 2019 AB issued a direction letter to the appellant (the Direction Letter). It included the following passages:
I refer to your Notice of Further Suspended Sentence Bond and note that you have a condition as follows:
2. “To be under the supervision of a community corrections officer for a period of 1 year and obey all the lawful directions given by the community corrections officer as to undergoing drug counselling, therapy or treatment and such psychologist or psychiatric counselling, therapy or treatment as directed”.
You are directed to submit to urinalysis testing so that any illicit drug use can be monitored. Urinalysis is also helpful to confirm abstinence.
You are directed to ensure:
That you do not, other than in strict accordance with the directions given to you by a legally qualified medical practitioner, use, possess or administer any narcotic or psychotropic drugs or any drug which cannot be legally obtained without the prescription from a legally qualified medical practitioner unless you have a prescription from a legally qualified medical practitioner for such a drug.
On 5 and 12 December 2019, the appellant’s drug tests returned positive for methylamphetamine. On 20 December 2019 the appellant failed to attend the next appointment.
On 20 December 2019 AB affirmed an affidavit for the purpose of an application to enforce the Bond. On 20 February 2020 an application was made by the Director to enforce the Bond.
On 9 January 2020 the appellant’s next drug test returned positive for methylamphetamine.
On 17 January 2020 the appellant was first interviewed by CD (by telephone), who became her second regular supervising community corrections officer, taking over from AB.
On 24 February 2020 the appellant’s next drug test returned positive for methylamphetamine.
Between 11 and 16 March 2020, the appellant undertook a five day detox program conducted by Drug and Alcohol Services South Australia (DASSA).
On 8 April 2020 the appellant’s next drug test returned positive for methylamphetamine.
On 24 April 2020 CD referred the appellant to OARS and she engaged with them. On 28 April 2020 she commenced weekly sessions with a psychologist.
On 26 May 2020 the appellant’s next drug test returned positive for methylamphetamine.
On 18 June 2020 the Bond expired.
On 26 June 2020 the Director’s application for enforcement of the Bond came on for hearing before a fourth District Court Judge. AB and CD both gave evidence.
On 10 July 2020 the Judge delivered ex tempore reasons on the enforcement application, revoked the suspension and ordered that the original sentence of imprisonment be carried into effect. The appellant was taken into custody and commenced to serve her sentence.
The Judge’s reasons
The Judge rejected a submission by the appellant that the Direction Letter did not direct abstinence from using illicit drugs. The Judge also implicitly rejected the appellant’s submission that any such direction would have been unlawful because it was not authorised pursuant to section 108 of the Act. The Judge concluded that breaches of the Bond by the appellant’s ongoing methylamphetamine use were thereby proved.
The Judge concluded in the alternative that the appellant’s continuing methylamphetamine use was in breach of the condition that she be of good behaviour. The Judge observed that methylamphetamine use is an offence against section 33L of the Controlled Substances Act 1984 (SA), for which the maximum penalty is imprisonment for two years. The Judge acknowledged that a breach of the criminal law will not always, of itself, constitute a failure to be of good behaviour. However, in the present case cessation of drug use was an essential feature of the appellant’s rehabilitation, the occasion for her original trafficking offending being her addiction to methylamphetamine and in all the circumstances her continued use of methylamphetamine did comprise a breach of the good behaviour obligation.
The Judge rejected a submission by the appellant that there were proper grounds to excuse the breaches. The Judge observed that the appellant had continued to use methylamphetamine throughout the periods of both bonds and had been given several warnings about the possible consequences, and this was not a case where, as in the case of many people suffering from drug addiction, a few lapses are to be expected on the road to recovery.
Alleged failure to comply with Direction Letter
The Bond did not contain a drug abstinence condition. However, the Judge concluded that the Direction Letter imposed a drug abstinence obligation and, implicitly, that the direction was lawfully authorised.
The appellant contends on appeal that AB had no authority to issue a direction requiring her to abstain from taking drugs and alternatively that, on its proper construction, the Direction Letter did not impose a drug abstinence obligation.
Authority of community corrections officer to direct drug abstinence
Subsection 96(1) of the Act empowers a court imposing a sentence of imprisonment to suspend the sentence on condition that the defendant enter into a bond—
(a)to be of good behaviour;[11]
(b)to comply with a condition prohibiting the defendant from possessing a firearm or ammunition or any part of a firearm;[12]
(c)to comply with a condition requiring the defendant to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or class of persons or body specified by the court;[13] and
(d)to comply with any other conditions of the bond as the court thinks appropriate and specifies in the bond.[14]
[11] Section 96(1)(a).
[12] Section 96(1)(b) and (2)(a).
[13] Section 96(1)(b) and (2)(b).
[14] Section 96(1)(c).
Subsection 98(1) lists non-exhaustively conditions that a court might think appropriate to specify in a bond. They include a condition requiring the defendant to be under the supervision of a community corrections officer for a specified period.[15]
[15] Section 98(1)(a).
Subsection 108(1)[16] empowers a responsible community corrections officer to give directions in the following terms:
[16] Subsection 108(2) empowers the giving of directions when the defendant is required by the bond to perform community service. It is not relevant in the present case.
108—Community corrections officer to give reasonable directions
(1)A community corrections officer responsible for supervising a person in the community—
(a)     must give reasonable directions to the person requiring the person to report to the officer on a regular basis; and
(b)     may give reasonable directions to the person—
(i)requiring the person to notify the officer of any change in the person's place of residence or employment; or
(ii)requiring the person to reside, or not to reside, in any particular place or area or with any particular person; or
(iii)requiring the person to take up, or not to take up, any particular employment, to be punctual in reporting to work or not to give up some particular employment; and
(c)     may give the person other directions of a kind authorised by the Minister for Correctional Services, either generally or in relation to that person.
On 31 May 2018 the Minister exercised the power conferred by section 108(1)(c) by issuing a Ministerial Authorisation (the Ministerial Authorisation) in the following terms:
Pursuant to Section 88(1)(c) and 108(1)(c) of the Sentencing Act 2017, I, Corey Wingard, Minister for Correctional Services, HEREBY AUTHORISE Community Corrections Officers to direct a person subject to their supervision to provide a biological sample for drug and/or alcohol testing:
· where there is a reasonable suspicion that drugs or alcohol have been consumed; or
· where the use of drugs and/or alcohol has been assessed as a criminogenic risk factor relevant to the persons offending behaviour.
The appellant contends that this only authorised a community corrections officer to direct a supervisee to submit to drug and/or alcohol testing. The Director contends that the Ministerial Authorisation implicitly also authorised a direction to abstain from using drugs or alcohol.
The Ministerial Authorisation plainly authorises the giving of directions to undergo drug or alcohol testing when either precondition is satisfied. It plainly does not authorise the giving of a direction to abstain from drugs or alcohol. The latter would be of a different nature and magnitude to the former. If the Minister had intended to authorise directions requiring abstinence from drugs or alcohol, such authority would have been included in the Ministerial Authorisation.
In addition, the authority to direct testing requires the existence of one of the alternative preconditions. If there were to be implied an authority to direct abstinence, it is to be expected that the preconditions to giving such a direction would be specified. It would not be rational to confine the authority to give a testing direction to specific circumstances but to authorise (implicitly) an abstinence direction in unlimited circumstances.
In addition, the subject of the testing specified in the Ministerial Authorisation is “drugs” or “alcohol”. It is not illegal or socially unacceptable to consume alcohol in itself. There is no basis to ascertain from the Ministerial Authorisation whether any (implicit) authority to give an abstinence direction would be confined to consuming excessive alcohol or would encompass consuming any alcohol at all. It would be essential for the Authorisation to specify preconditions justifying an abstinence condition. Similarly, the Authorisation refers generally to “drugs” and is not confined to illicit or prescription drugs. Again, if the Authorisation were construed as implicitly authorising abstinence directions, it would be essential to identify the type of drugs that might be the subject of the direction and the circumstances in which the direction could be given.

There is no basis on which it can be implied from the Ministerial Authorisation that the Minister authorised the giving of abstinence directions.
Ground 1 is established.
Construction of the Direction Letter
Given that any direction contained in the Direction Letter to abstain from using drugs would have been unlawful, it is not strictly necessary to decide whether the Direction Letter contained such a direction. However, I address this issue because it is also relevant to grounds 3 and 4.
The terms of the Direction Letter are set out at [20] above. The second paragraph plainly contains a direction to submit to urinalysis testing for illicit drugs. The third paragraph plainly contains a direction not to use or administer, except as medically prescribed, any drug other than a lawful non-prescription drug. Contrary to the appellant’s submission, the third paragraph cannot be read merely as explaining why the testing direction in the second paragraph has been given. The mere fact that the third paragraph does not contain the verb “abstain” does not entail that it is not an abstinence direction; this is the effect of the plain words used in the third paragraph.
The appellant contends that AB in her evidence accepted that the Direction Letter did not extend to requiring abstinence from using illicit drugs. I reject that contention. The effect of AB’s evidence was to the contrary. In any event, the issue the subject of ground 2 turns on the objective construction of the Direction Letter; it does not turn on AB’s subjective understanding or intent.
Ground 2 is not established. I would refuse permission to appeal on ground 2.
Conclusion
The first limb of the Judge’s finding that the appellant breached a condition of the Bond by breaching the abstinence condition contained in the Direction Letter was erroneous because that condition was unlawful.
Alleged failure to be of good behaviour
Good behaviour in the context of a condition of a bond under the Act generally means observance of the criminal law but not every breach of the criminal law comprises a breach of the obligation to be of good behaviour: the circumstances must be examined.
In Higgins v Goldfinch,[17] this Court considered the meaning of “good behaviour” in the context of subsection 51(6) of the Children’s Protection and Young Offenders Act 1979 (SA), which was modelled on section 2a of the Offenders Probation Act 1913 (SA), which was a predecessor of section 98 of the Act. King CJ said:
Section 2a of the Offenders Probation Act and s 51(6) of the Children’s Protection Act are concerned with the criminal law. Good behaviour as used in those sections may be taken to mean observance of the rules of the criminal law. The purpose of the sections is to rehabilitate convicted persons by encouraging them to abandon criminal ways. The suspended sentence offers them freedom in lieu of imprisonment in order to direct them away from criminal conduct and in the direction of a law abiding way of life. I think that the words “good behaviour” in those sections must be understood in that context and in the light of that purpose. I think that in order to amount to a departure from the standard of good behaviour so as to activate a suspended sentence, conduct must not only be such as to constitute a breach of the law attracting penal sanctions, but must constitute such a breach as can fairly be regarded as a relapse into non-law-abiding ways.
It follows from what I have said that, in my opinion, there are many offences on the statute books the commission of which would not be a departure from the standard of good behaviour for present purposes. A person is not necessarily in breach of a good behaviour condition of his bond because he infringes one of the many rules prescribed by statute and by subordinate legislation for the regulation of social and economic activity and for the protection and safety of the public. Traffic offences would not generally be breaches of good behaviour. Nevertheless the fact that an offence is created by the Road Traffic Act does not mean that its commission cannot be a departure from good behaviour. For instance, the offence of using motor vehicle without consent is found in the Road Traffic Act (s 44) and that is a serious crime of dishonesty.[18]
Legoe J said:
Good behaviour is clearly a term of wide import. In the context of the Act the purpose of such a condition would appear to be mainly rehabilitative and designed to give the child an opportunity to mould into the community again. If the conduct of the child during the tenancy of the condition to be of good behaviour transgresses into the field of community aggression or harm then this promise to adhere to a standard of behaviour would probably be characterized as contrary to good behaviour.
…
Proof of the commission of an offence subsequent to the bond will not necessarily be on its own sufficient proof of a breach of the condition to be of good behaviour.[19]
[17] (1981) 26 SASR 364.
[18] At 366-367.
[19] At 383, 385.
The appellant contends that it should be inferred that the Judge who imposed the Bond on 18 June 2019 deliberately omitted drug abstinence and testing conditions, which had been included in the original bond entered into on 3 May 2017. She contends that it should be inferred that this was a deliberate decision so that the appellant was not “set up to fail” and instead was encouraged to continue to engage with services that might help her overcome her drug addiction. She contends that in these circumstances the mere fact that she tested positive for, and continued to use, methylamphetamine did not constitute a breach of the good behaviour obligation.
There is no basis to draw an inference that the Judge on 18 June 2019 deliberately omitted drug abstinence and testing conditions. There is no reference to such omission in the transcript of the hearing or the Judge’s ex tempore sentencing remarks. Because the original bond had expired, the Judge imposed a new bond under section 114(3)(c) rather than varying the conditions of the original bond under section 114(3)(b)(iii).
In any event, the question whether the appellant breached the good behaviour obligation in the Bond was required to be determined objectively taking into account the circumstances in which the alleged breaches occurred as assessed by the Judge hearing the enforcement occasion. It was not to be, and could not be, judged prospectively and speculatively by the Judge imposing the Bond.
The trafficking offending for which the appellant was sentenced was directly related to her methylamphetamine addiction. It was recognised by the sentencing Judge that the appellant’s rehabilitation (and the continuing suspension of her sentence of imprisonment) depended directly upon her overcoming her addiction. It is recognised generally that there is a clear criminogenic link between usage of drugs of addiction and the commission of other crimes including trafficking and dishonesty offences. Given the link between the original trafficking offending and the appellant’s use of methylamphetamine, future offending by continuing use of methylamphetamine involved the type of transgression against the criminal law that would entail a “relapse into non-law-abiding ways”, in the words of King CJ.
It may be accepted that an isolated use of methylamphetamine would not necessarily entail such a relapse or amount to a breach of a good behaviour obligation. Similarly, it may be accepted that initial use of methylamphetamine shortly after entering into a bond followed by prolonged abstinence would not necessarily entail such a relapse or amount to a breach of a good behaviour obligation.
In the present case, the appellant consistently relapsed into continuing usage of methylamphetamine. Despite the explicit warning given by the sentencing Judge, the appellant used methylamphetamine in March 2018. In May 2018 she was given a second chance when the breach of original bond was excused. She again used methylamphetamine in May, June, August and December 2018 and January, February, and March 2019. In June 2019 she was given a third chance when the breaches were again excused. She again used methylamphetamine in December 2019 and January, February, April and May 2020. The appellant’s use of methylamphetamine after the Bond was imposed in June 2019, against the background of her earlier breaches, amounted to a clear breach of the good behaviour obligation.
Ground 3 is not established. I would refuse permission to appeal on ground 3.
Proper grounds to excuse breach
Subsection 114(3) of the Act empowers the court, after finding that a condition of a suspended sentence bond has been breached, to refrain from revoking the suspension if the court is satisfied that there are proper grounds on which the failure should be excused.
The appellant contends that the Judge erred in not finding proper grounds to excuse the breach. The appellant contends that she was entitled to expect that illicit drug use would not breach the bond because:
(a)the drug abstinence and testing conditions in the original bond were not replicated in the Bond, she was not warned by the Judge when she entered into the Bond that she was required to abstain from drug use and she was not warned by community corrections officers that drug use (of which they were aware) was in breach of the Bond;
(b)she complied with all directions to be tested for drugs and was always honest about her drug use with her community corrections officers; and
(c)she made substantial efforts to stop using drugs between March and June 2020 by attending the five day DASSA detox program, engaging with OARS and attending weekly sessions with the psychologist.
In relation to the first matter identified by the appellant, she did not give evidence before the Judge hearing the enforcement application. It does not follow from the fact that the Judge who imposed the Bond did not include drug abstinence and testing conditions and did not specifically warn her that future drug use would or might breach the good behaviour obligation that the appellant believed that she could continue to use methylamphetamine with impunity. The explicit warning given by the original sentencing Judge, the fact that two enforcement applications had been made and the importance of the appellant ceasing to use methylamphetamine were objective facts pointing towards use of methylamphetamine being likely to involve breach of the appellant’s obligations under the Bond. In addition, the appellant received an express direction not to use illicit drugs on 25 November 2019 by the Direction Letter. Although the direction was invalid, it should be inferred in the absence of evidence to the contrary that the appellant knew from this direction that use of methylamphetamine would breach the Bond. If the appellant wished to contend that she believed that she could continue to use methylamphetamine without breaching the Bond, it was incumbent on her to give evidence to that effect.
In relation to the appellant’s contention that she was not warned by her community corrections officers that continuing methylamphetamine use would or might be a breach of the conditions of the Bond, no affirmative evidence to this effect was adduced by the appellant. Although AB and CD did not give evidence that they gave such warnings, they were not asked in cross-examination whether they did so. It is inherently likely that they had discussions with the appellant about the importance of her ceasing to use methylamphetamine but there is an absence of evidence about the content of those discussions. The appellant herself did not give evidence that she was not given such a warning.
In relation to the second matter identified by the appellant, these are matters to be taken into account but in themselves could not amount to proper grounds to excuse the breaches.
In relation to the third matter identified by the appellant, it is also a matter to be taken into account. The steps taken by the appellant between March and June 2020 were commendable. However, despite those steps, she continued to test positive for methylamphetamine in April and May 2020 and there was no basis on which the Judge could have found that she had ceased to use methylamphetamine. In addition, the steps taken needed to be considered in the context of the lengthy history of methylamphetamine use by the appellant since she entered into the original bond in May 2017.
Taking into account all of the circumstances, no error has been demonstrated in the Judge’s conclusion that the appellant had not established proper grounds to excuse the breaches.
Ground 4 is not established.
Special circumstances to reduce term of suspended sentence
Section 114(5)(a) of the Act empowers a court, if there are special circumstances justifying it in doing so, to reduce the term of the suspended sentence.
In Police v Heritage[20] this Court said:
In respect of the expression “special circumstances justifying [the court] reduc[ing] the term of the suspended sentence” in subsection (4), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection (4) that those circumstances comprise new or different circumstances (which will usually if not invariably be personal circumstances) that have arisen or changed since the original sentence was imposed which if they had existed at that time would have justified a reduced sentence.[21]
[20] [2019] SASCFC 60, (2019) 135 SASR 1.
[21] At [23] per Blue J (with whom Stanley and Lovell JJ agreed). (Footnote omitted).
The appellant contends that there are special circumstances justifying a reduction in the term of the suspended sentence because:
(a)she spent three years on probation in circumstances in which she did not commit further offences other than personal drug use, thereby rendering the full custodial sentence oppressive, given the lower range of seriousness of the original offence;
(b)she was not warned that drug use would or might breach the Bond and should therefore be sentenced with less moral culpability than if she knew of such consequences;
(c)she made substantial efforts to stop using methylamphetamine and thereby rehabilitate herself.
In relation to the first matter identified by the appellant, the reason that she spent three years on probation was her use of methylamphetamine in breach of the conditions of her bond. The mere fact that she did so and the mere fact that she did not commit offences other than personal drug use do not comprise new or different circumstances that, if they had been known to the sentencing Judge, would have justified a reduced sentence. The sentencing Judge sentenced the appellant in the hope that she would cease using methylamphetamine and with the intent and expectation that, if she did not do so, she would serve the sentence imposed of imprisonment for two years and three months with a probation period of nine months.
In relation to the second matter identified by the appellant, for the same reasons as in respect of the issue of proper grounds to excuse the breaches, the onus lay on the appellant to prove her state of mind in relation to the consequences of continuing methylamphetamine use, and she failed to discharge that onus. If this had been established, it would have been more relevant to the issue of proper grounds to excuse the breaches than to special circumstances justifying a reduction in the sentence of imprisonment.
In relation to the third matter identified by the appellant, for the same reasons as in respect of the first matter, the recent efforts by the appellant to cease using methylamphetamine do not constitute new or changed circumstances capable of justifying reduction of the sentence of imprisonment.
The appellant relies on the decision of this Court in R v Marshall.[22] Marshall had been sentenced to imprisonment for three years with a relatively high non-parole period of two years. The sentence was suspended on his entry into a bond to be of good behaviour for three years with supervision for two years. He did not breach the good behaviour condition, he overcame his addiction to illicit drugs, he obtained employment and he had the continuing support of his family. He breached the supervision condition by failing to report to his community corrections officer and travelling to the Northern Territory after permission was refused. This Court concluded that special circumstances existed justifying a reduction in the non-parole period from two years to one year. There was no change to the head sentence of imprisonment.
[22] [2016] SASCFC 147.
Marshall is a rare and exceptional case. The present case is quite different. Unlike the circumstances in Marshall, the appellant in the present case failed to overcome her addiction and repeatedly breached the good behaviour obligation by continuing to use methylamphetamine. Although she made some progress in her rehabilitation in the months immediately before the enforcement application was heard and determined, her rehabilitation was not comparable with that of Marshall and she still did not overcome her addiction.
The appellant contends that the Judge failed to address the question of special circumstances in his sentencing remarks despite the appellant’s written submissions including an invitation to find special circumstances justifying a reduction in the sentence. The appellant made no oral submissions on special circumstances and the written submissions were confined to a single paragraph. Nevertheless, the Judge ought to have addressed the submission. However, assessed afresh, there were not special circumstances justifying a reduction in the sentence.
Ground 5 is not established. I would refuse permission to appeal on ground 5.
Postscript: observations on sentencing and community corrections practices
The following observations apply when the exercise of the sentencing discretion results in the defendant entering into a bond,[23] or being subject to an order,[24] requiring the defendant to be of good behaviour where drug addiction was a criminogenic factor in the subject offending.
[23] Such as a suspended sentence bond or good behaviour bond.
[24] Such as a home detention order, intensive correction order, recognizance release order or order and recognizance or a suspended sentence obligation in the Youth Court.
In such cases, it is not unusual for the sentencing Judge or Magistrate to include in the bond or order a condition that the defendant abstain from using, and submit to testing for, illicit drugs. So doing should not be regarded as “setting up a defendant to fail”. The discretion of a community corrections officer to report a defendant for breach or instead to give the defendant a warning and the discretion exercised by the Director whether to bring an enforcement application would potentially be available if the defendant initially tests positive for illicit drugs at the beginning of the term of the bond or order and then overcomes their drug addiction.
If the sentencing Judge or Magistrate decides not to include in the bond or order a condition that the defendant at the outset abstain from using, and submit to testing for, illicit drugs, the question should be considered whether such conditions should be included to operate after an initial period for the balance of the term of the bond or order. In either case, if drug abstinence and testing conditions are not included at the outset of the bond or order, it is desirable that the Judge or Magistrate explain to the defendant the obligation to be of good behaviour, that using illicit drugs is a serious criminal offence and that continuing to use illicit drugs is likely to result in an application for breach of the good behaviour obligation in the bond or order. This will avoid subsequent arguments that the defendant was not aware of the consequences of continued drug use.
In cases to which these observations apply, it may be expected that it will always be a condition of the bond or order that the defendant be under the supervision of a community corrections officer. If the defendant tests positive for, or admits to using, illicit drugs at the outset of the supervision period and the supervising community corrections officer chooses not to report the defendant, it is desirable that the officer warn the defendant that continuing use of illicit drugs will breach any drug abstinence condition or will be likely to breach the good behaviour obligation. This will avoid subsequent arguments that the defendant was not aware of the consequences of continued drug use.
Conclusion

I would refuse permission to appeal on grounds 2, 3 and 5. I would dismiss the appeal.
DOYLE J: I agree with the reasons of Blue J, and the orders he has proposed.