AZADEGAN v Police - [2021] SASC 34

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
AZADEGAN v POLICE
[2021] SASC 34
Judgment of the Honourable Justice Parker
8 April 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
This is an appeal against a decision made by a Magistrate under s 73 of the Sentencing Act 2017 (SA) revoking an order that the appellant’s sentence be served on home detention and ordered that the balance of the sentence be served in custody.
On 17 September 2020, the appellant was convicted in the Magistrates Court for multiple driving and fail to comply with bail agreement offences and was sentenced to 5 months, 6 weeks and 58 days to be served on home detention.
On 18 November 2020, the Magistrate found that the appellant had committed two breaches of the home detention order which were not trivial and that there were no proper grounds to excuse the appellant’s failure to comply with the home detention order. In reaching this conclusion, the Magistrate observed that while the text of s 114(3) of the Sentencing Act, relating to breaches of suspended sentences, mirrors s 73(2), which applies to breaches of home detention sentences, there are different factors to consider when there is a breach of a home detention sentence.
The sole ground of appeal advanced by the appellant is that the Magistrate erred in failing to properly apply s 73(2) of the Sentencing Act 2017 (SA).
Held, per Parker J, dismissing the appeal:
1.The references by the Magistrate to “different factors” and “a different approach” were a recognition of the different responses to a breach authorised by s 73(2) and ss 114(3) and (5) respectively, and when viewed in context do not indicate that her Honour had narrowed the scope of the test to be applied when determining whether there are proper grounds to excuse the failure to comply with the conditions of a home detention order.
2.Parliament has made a clear policy choice by not including in s 73 a provision cognate to s 114(5). The omission of a provision permitting the reduction of a period of home detention if special circumstances exist, does not indicate that the phrase “proper grounds” should be given a wider meaning under s 73(2) than in the authorities decided under s 114 and its antecedent provisions.
3.The Magistrate did not err in finding that there were no proper grounds to excuse the failure of the appellant to comply with the home detention order.

Criminal Law (Sentencing) Act 1988 (SA) s 58; probationOffenders Probation Act 1913 (SA) s 9(5); Sentencing Act 2017 (SA) s 73, s 114, referred to.
R v Buckman (1988) 47 SASR 303; Police v Peel [2021] SASCFC 7, applied.
Police v Heritage (2019) 135 SASR 1, discussed.
CFMEU v Hadgkiss (2007) 169 FCR 15; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; Project Blue Sky Inc v Australian Broadcasting Corporation (1998) 194 CLR 355; R v Marston (1993) 60 SASR 320; Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 75, considered.

AZADEGAN v POLICE
[2021] SASC 34

Magistrates Appeal: Criminal

PARKER J: This is an appeal against the decision of a Magistrate to revoke the appellant’s home detention and order that he spend the remainder of his sentence, being 5 months, 6 weeks and 9 days in custody.
Extension of time
At the commencement of the appeal hearing, the appellant’s counsel noted that the notice of appeal was filed out of time, 12 days late. The respondent did not object to an extension of time being granted. In the circumstances, I grant the appellant an extension of time to 21 December 2020 to file the notice of appeal.
Background
On 17 September 2020, the appellant was convicted in the Magistrates Court of the following offences:
(a)One count of drive under disqualification or suspension committed on 7 December 2018;
(b)One count of drive motor vehicle not authorised after drug driving disqualification committed on 20 September 2019;
(c)One count of driving unregistered committed on 20 September 2019;
(d)One count of driving uninsured committed on 20 September 2019;
(e)One count of drive motor vehicle not authorised after drug driving disqualification committed on 20 November 2019;
(f)One count of fail to comply with bail agreement committed on 20 November 2019;
(g)One count of drive motor vehicle not authorised after drug driving disqualification committed on 14 March 2020;
(h)One count of fail to comply with bail agreement committed on 14 March 2020;
(i)One count of fail to comply with bail agreement committed on 24 April 2020;
(j)One count of fail to comply with bail agreement committed on 1 May 2020;
(k)One count of drive motor vehicle not authorised after drug driving disqualification committed on 7 July 2020; and
(l)One count of fail to comply with bail agreement committed on 7 July 2020.
The appellant was sentenced as follows:
(1)In relation to sub-paragraphs (a), (b), (e), (f), (g), (h), (k) and (l) above, imprisonment for 5 months, 6 weeks and 58 days to be served on home detention;
(2)In relation to sub-paragraphs (c) and (d) above, a $300 fine; and
(3)In relation to sub-paragraphs (i) and (j) above, a $100 fine.
The conditions of the home detention order relevantly included that the appellant was required to:
(1)Not consume alcohol or any other drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosage and that he submit to any drug and alcohol testing as directed by the Home Detention Officer to whom he is assigned and sign all required form and comply with the requirements of the testing procedures;
The Court initially required testing to be undertaken fortnightly in relation to the latter condition.
On 18 November 2020, the appellant was brought back before the Magistrate in relation to two breaches of the home detention order which occurred on 9 October 2020 and 15 October 2020. Those breaches related to drug tests returned by the appellant which indicated:
(1)On 9 October 2020, a positive result to methylamphetamine and amphetamine; and
(2)On 15 October 2020, a positive result to methylamphetamine, amphetamine and THC.
The breaches of the home detention order were admitted. The explanation given by the appellant was that a friend came to visit him to do some manual work and brought drugs with him. The friend offered the appellant the drugs and he took them to deal with fatigue caused by the manual work.
Ground of appeal
The appellant agitates one ground of appeal, namely, that the Magistrate erred in failing to properly apply s 73(2) of the Sentencing Act 2017 (SA).
Legislation
Section 73(1) and (2) of the Sentencing Act provide that:
(1) Subject to this section, if the court that imposed a home detention order on a person is satisfied that—
(a) a person subject to a home detention order has breached a condition of the order; or
(b) the residence specified by the court at which the person is required to remain throughout the period of the home detention order is no longer suitable for the person and no other suitable residence is available for the person's detention,
the court must revoke the home detention order and order that the balance of the sentence the person was serving on home detention be served in custody.
(2) Despite subsection (1)(a), if the court is satisfied that the failure of the person to comply with the conditions of the home detention order was trivial or there are proper grounds on which the failure should be excused, the court—
(a) may refrain from revoking the order; and
(b) may impose a further condition on, or revoke or vary a condition of, the order.
The Magistrate’s reasons
The Magistrate delivered ex tempore remarks on penalty. Her Honour noted at the outset that when the home detention order was made on 17 September 2020 she had made clear to the appellant the need to comply with all conditions of the home detention order. If there was a breach of any of the conditions, it was likely that he would have to serve a term of imprisonment. Her Honour noted that this observation was important when it came to determining whether or not the two breaches were trivial or if there were proper grounds to excuse the breaches.
The Magistrate observed that the appellant was on home detention with his parents, who her Honour described as “very good people, upstanding people involved in the Baha’i faith”. Her Honour also observed that the breaches demonstrated to the Court that the appellant was either unwilling or unable to comply with the sentence. The appellant’s decision to use methylamphetamine because it was offered to him by somebody who came to his house, on two occasions, clearly indicated a lack of adherence to a beneficial sentence which had been imposed.
The Magistrate found that the breaches were not trifling nor were there proper grounds upon which the appellant’s failure to comply should be excused. This was in the context of the appellant having been made aware that any breach of his home detention order was likely to result in a term of imprisonment and that at the time of sentencing the appellant had been drug free for four months. The fact that the breaches occurred within 22 days of the commencement of the sentence was also a relevant factor.
While acknowledging that the text of s 114(3) of the Sentencing Act, relating to breaches of suspended sentences, mirrors s 73(2), which applies to breaches of home detention sentences, the Magistrate considered that there are different factors to consider when there is a breach of a home detention sentence:
In imposing the home detention sentence, the court has already decided that you must go to gaol. It has already decided that the sentence will not be suspended but it is permitting you to serve that goal sentence at home. In my view, therefore, there is clearly a different approach to be taken to breaches of home detention sentences than the approach that is taken to a breach of a suspended sentence even though the criteria is the same.
Having found that the breaches were not trifling nor were there grounds to excuse the breaches, and on the basis that the appellant was aware that he would go to gaol if he breached any of the home detention conditions, the Magistrate held that the appellant would be required to serve the sentence. Taking into account the 22 days spent in compliance with the home detention sentence, and the 27 days spent in custody pending determination, the Magistrate ordered that the appellant serve a term of imprisonment of five months, six weeks and nine days.
The appellant’s submissions
The appellant’s primary contention is that the Magistrate misconstrued the legislative provisions that empower the court to refrain from revoking a home detention order following a breach. The appellant submits that due to the Magistrate’s “economical” remarks it is not clear what aspects of her Honour’s approach to s 73(2) of the Sentencing Act were affected by the reference to differing factors and different approaches. For that reason, the appellant has advanced two alternative submissions in support of his primary contention so as to address the alternative reasoning paths that the Magistrate might have adopted.
The first submission in support of the primary contention
The appellant accepts in his first submission that there is a key difference in the orders available upon breach of a home detention order as compared to those available where there has a breach of a suspended sentence bond. The fundamental difference is that, upon revocation of the suspension, a sentence may be reduced if the court is satisfied that there are proper grounds to do so. That option is not available when a home detention order is revoked although the period remaining to be served must be reduced in recognition of the period already spent on home detention.
Contrary to the interpretation allegedly adopted by the Magistrate, the appellant submits that the preceding differences have the effect of widening, rather than narrowing, the matters which a court can consider under s 73(2) as compared to s 114(3). While a wider variety of matters can be taken into account under s 73(2), the appellant submits that the principles which must be applied when determining an application to revoke a home detention order are no different than those required under s 114(3).
The appellant submits that, in the case of a suspended sentence, an offender’s personal circumstances will be particularly relevant in the context of the Court’s power to reduce the underlying sentence. The omission of a cognate provision in relation to home detention orders which might direct the attention of the Court to the personal circumstances of the offender is significant.
The appellant submits that although s 73(2) is expressed in identical terms to s 114(3), the former permits a wider range of circumstances to be taken into account than is the case when a court considers the revocation of a suspended sentence. For this reason, the appellant further submits that because s 73(2) does not define “proper grounds”, it does not preclude consideration of a probationer’s personal circumstances as forming, at least in part, the basis for a conclusion that proper grounds to excuse a breach exist.
For these reasons, the appellant submits that the Magistrate erred by adopting an approach to s 73(2) which effectively narrowed, rather than widened, the scope of the test to be applied when determining whether proper grounds have been established.
The second submission in support of the primary contention
The appellant’s second, and alternative, submission in support of the primary contention relies on two principles of statutory construction. Those principles are, first, that an Act is to be interpreted as a whole, and secondly, that words are assumed to be used consistently throughout an Act.[1] Accordingly, s 73(2) must be interpreted and applied in an identical fashion to s 114(3).
[1] Project Blue Sky Inc v Australian Broadcasting Corporation (1998) 194 CLR 355; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; CFMEU v Hadgkiss (2007) 169 FCR 15; Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452; Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 75.
For this alternative reason, the appellant submits that the Magistrate erred by finding that s 73(2) required different facts to be taken into account and was to be approached differently to s 114(3). Her Honour should have approached s 73(2) on the same basis as is required under s 114(3).
The respondent’s submissions
In summary, the respondent submits that the observation made by the Magistrate about the difference between revoking a home detention order and revoking a suspended sentence produces two different approaches to an identical test. However, that observation did not lead to the Magistrate impermissibly narrowing the range of “proper grounds” available. In any event, the respondent submits that there was no outcome error. If it is necessary to resentence the appellant, the same sentence should be imposed.
The respondent submits that Parliament has provided a simple framework to encourage compliance with home detention sentences. The default position is that a breach of a condition will result in the outstanding balance of the sentence being served in prison.[2] Section 73(2) of the Sentencing Act contains a merciful discretion to excuse a breach condition only if the breach is trivial, or if there are proper grounds on which the breach should be excused. It was never argued that the breaches were trivial.
[2] Section 73(1)(a) of the Sentencing Act.
The respondent contends that although the expression “proper grounds on which the failure should be excused” echoes s 114(3), it does not follow that factors which might establish proper grounds under s 114(3) will also establish proper grounds for the purpose of s 73(2). The respondent submits that the Magistrate was entirely correct in noting that there are different factors to consider when determining whether proper grounds exist.
What is “proper”, the respondent submits, requires an assessment of the proportionality of the default against the specific legal consequence that might flow from a decision that the breach not be excused.[3] If the consequence of default differs, then so too does the question of what is required to show that it is proper not to bring those consequences into effect. In that respect, the respondent submits that it was important for the Magistrate to recognise that a breach of a home detention order carries a different consequence to a breach of a suspended sentence bond. In considering an application for a revocation of home detention order, the Court is not asking if the sentence should be served, but rather where the sentence should be served from this point onward, i.e. at home or in a prison.
[3] R v Buckman (1988) 47 SASR 303; R v Marston (1993) 60 SASR 320.
The respondent highlighted in its submissions several examples where different factors must be considered in determining under s 114(3) or s 73(2) whether a proffered ground is a “proper ground”:
·A court looking for proper grounds not to revoke a home detention order knows that revocation would mean making an order that the balance of the sentence be served in custody. The court would then be required take into account time served in compliance with the order, and also time spent in custody pending determination of the application to revoke. However, those statutory requirements do not apply to a court assessing whether there are proper grounds not to revoke a wholly or partly suspended sentence.
·A court considering whether there are proper grounds not to revoke a suspended sentence when a bond is breached knows that it also has the option, upon revocation, of exercising a discretion to reduce the term of the sentence of imprisonment should “special circumstances” exist. This discretion is not available to a court considering the revocation of a home detention order.
·A court looking for proper grounds not to revoke a suspended sentence is aware that it may extend the suspended sentence bond. There is no discretion to extend the term of a home detention order.
Drawing particularly on the second and third examples, the respondent submits that it is clear that there is less scope for leniency to be extended to a person who breaches a home detention order than there is with a suspended sentence bond.
The respondent submits that, in any event, there was no outcome error because the breaches were clearly not trivial and there were no proper grounds to excuse them. As the appellant conceded that the breaches were serious, the respondent’s submissions focused on whether there were proper grounds to excuse the breach. In that light, the respondent submits that the Magistrate was properly entitled to take into account the circumstances in which the original sentence came to be imposed, and the importance of abstinence from drugs in making that decision. The appellant’s abstinence from drugs had significantly contributed to the Magistrate’s earlier decision that his sentence could be served by way of a home detention order. His repeated drug use shortly after the commencement of that sentence served to vitiate the factual basis upon which the original home detention order had been made.

Further, the respondent contends that the arguments advanced by the appellant that proper grounds did exist, namely, that he had completed 22 days in full compliance, he took drugs offered by his friend to combat fatigue, his time in custody was a salutary experience and that the breaches were quite different to the original offending, did not amount to proper grounds to excuse his breach.
Consideration
The central issue in this appeal is whether the Magistrate erred by holding that “there are different factors to consider when there is a breach of a home detention sentence” and at a later point that “there is clearly a different approach to be taken to breaches of home detention sentences”. It appears to me those observations by her Honour were made in recognition of the differences in the legislative regime applicable to a breach of a suspended sentence bond as compared to a breach of a home detention order.
Where a court finds that there has been a breach of a suspended sentence bond, if it is satisfied that the failure to comply with the conditions of the bond was either trivial or that there are proper grounds on which the failure should be excused, the court may refrain from revoking the suspension and take certain other action in its discretion. In the case of a bond that does not require the performance of community service, the term of the bond may be extended for up to 12 months, or a condition may be imposed requiring performance of a specified number of hours of community service, or any other condition of the bond may be revoked or varied. If the bond is already subject to the performance of a community service obligation various orders may be made in relation to that aspect of the matter. If the bond has already expired by the time the breach comes to be dealt with by the court, it may require the probationer to enter into a further bond for a term not exceeding 12 months.
If the court revokes the suspension of the sentence of imprisonment, it may reduce that sentence under s 114(5) if it is satisfied that special circumstances exist.
The range of powers available to a court are more limited where it is found that a failure to comply with the conditions of a home detention order was trivial or there are proper grounds to excuse the failure. In such a case, the court may refrain from revoking the order and may impose a further condition or revoke or vary a condition of the order. The court cannot extend the term of the home detention order and nor can it impose an obligation to perform community service.
Furthermore, if the Court does revoke a home detention order and require the sentence to be served in custody, there is no power to reduce the term of imprisonment. However, any period spent on home detention prior to the breach, and also in the period between the date of the breach and the determination of the Court, must be deducted from the sentence originally imposed. That is simply a recognition of the time already served on home detention and not a discretionary reduction upon special circumstances being found as is the case under s 114(5).
The appellant contends that the more limited range of options available to the Court to deal with a breach of a home detention order must lead to a wider reading of the phrase “proper grounds” in s 73(2) as compared to the stricter approach to the identical phrase in s 114(3). That contention makes it necessary to consider carefully the observations made by the Full Court concerning the operation of the phrase “proper grounds” in s 114(3). The most recent decision of the Full Court dealing with that issue is Police v Peel.[4]
[4] [2021] SASCFC 7.
Doyle J, with Kourakis CJ and Kelly J agreeing, conducted in Peel a thorough analysis of the leading authorities on the proper construction of the phrase “proper grounds” in s 114(3). His Honour noted that what is now s 114 of the Sentencing Act is relevantly identical to s 58 of the former Criminal Law (Sentencing) Act 1988 (SA). I also note the phrase “proper grounds” originated in s 9(5) of the Offenders Probation Act 1913 (SA).
In reviewing the authorities in Peel, Doyle J drew substantially from the earlier review conducted by Blue J, with Stanley and Lovell JJ agreeing, in Police v Heritage.[5] Blue J held in Heritage that “proper grounds” to excuse a breach were confined to the nature and circumstances of the breach and did not extend to the personal circumstances of the offender or to circumstances occurring after the breach. In contrast, “special circumstances” might justify the Court reducing the term of a suspended sentence under s 114(4). Special circumstances will “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”.[6]
[5] (2019) 135 SASR 1.
[6] Ibid at [23].
Doyle J held in Peel that it was important to recognise that the references by Blue J in Heritage to “proper grounds” being confined to “the nature and circumstances of the breach” and not extending to “personal circumstances of the offender” must be read and understood in the context of his Honour’s reasons as a whole and his discussion of the relevant authorities. Doyle J noted that in the authorities referred to by Blue J the concept of “proper grounds” for excusing a breach had required consideration of both the nature of the breach, the circumstances in which it was committed, and any disproportionality between the nature and extent of the breach and the severity of revoking the suspension and requiring the original sentence to be served.
Doyle J then made the following observations concerning the judgment of Blue J in Heritage:[7]
[39]As Blue J pointed out, this invites a focus upon the objective circumstances of the breach offending, as opposed to, for example, the personal circumstances of the defendant more generally. However, properly understood, his Honour did not suggest that there is clear or rigid line that excludes from consideration matters that might be said to be personal to the defendant, or that such matters cannot inform the Court’s consideration of whether proper grounds to excuse the breach exist. To the contrary, his Honour expressly contemplated that matters which “bear on the culpability of the offender in committing the [breach] offence” will be relevant. These may include not only the defendant’s state of mind, but also any history of similar offending (particularly where it constitutes the original offending giving rise to the suspended sentence bond). Such matters may be relevant not only to a full understanding of the nature and seriousness of the breach offending, but also whether it would be disproportionate to revoke the suspension of that sentence.
[7] [2021] SASCFC 7 at [39].
Doyle J went on to find that there was authority that the similarity or lack of similarity between the offending involved in the breach and the original offending will be relevant to the existence of “proper grounds”. It will also be relevant whether the offender had reverted to criminal conduct that was comparable, if not in kind, at least in general criminal culpability to the original offending. However, while differences between the original offence and the breaching offence are not irrelevant, they are of lesser importance.
Doyle J also held that the question of the relevance of past offending should not be limited to the similarity or otherwise between the breach offending and the original offending. The relevance could extend to the similarity of previous offending more generally. His Honour suggested that the history of similar offending may be relevant in that it informs a full understanding of both the seriousness of the breach offending and of the circumstances in which, and reasons for which, the original suspended sentence was imposed and thus the proportionality or otherwise of revoking the suspension of the sentence.
Doyle J concluded in Peel that the history of the respondent of breaching intervention orders “made more concerning and serious what might otherwise have been regarded as a relatively innocuous breach”. His Honour also observed that “[i]t also tended to show that the imposition of the suspended sentence had not had the deterrent effect it was intended to have”. His Honour held that the Magistrate was entitled to have regard to the respondent’s similar offending, both as part of the offending that led to the suspended sentence bond and more generally. That was a relevant and quite significant consideration.[8]
[8] Ibid at [45]-[46].
It is clear from the judgment of the Full Court in Peel that proportionality between the breaching conduct and the consequences of removing the suspension is a central consideration when a court determines whether proper grounds exist under s 114(3) to excuse a failure to comply with the terms of a bond. When the Court makes the assessment, it must take into account the availability of the several alternative responses to which I have already referred at [33] and [34].
In contrast, upon breach of a home detention order, the only options available to the Court if it finds that there are proper grounds on which the failure should be excused are to refrain from revoking the order and to impose a further condition or to revoke or vary a condition.
I consider the references by the Magistrate to “different factors” and “a different approach” to be a recognition of the different responses to a breach authorised by s 73(2) and ss 114(3) and (5) respectively. That is made clear by the fact that before making those observations her Honour had specifically noted that the relevant words in the provisions were the same. The differences in the authorised responses to which her Honour alluded may often be relevant and could potentially affect the assessment of the proportionality between a breach and its consequences when a court determines whether there are proper grounds not to revoke a home detention order.
The observations made by the Magistrate to which I have referred at [47] were also preceded by her Honour’s comment that the Court had already decided when it imposed the home detention sentence that the appellant must serve a custodial sentence but had determined that the sentence could be served at his home. That comment showed that the Magistrate was alert to the fact that the issue before her was whether there were proper grounds to refrain from changing the place of imprisonment from the appellant’s home to a correctional institution.
When viewed in that context, the references by the Magistrate to “different factors” and a “different approach” does not indicate that her Honour had narrowed the scope of the test to be applied when determining whether there are proper grounds to excuse the failure to comply with the conditions of a home detention order.
I reject the contention by the appellant that the failure to include a provision in similar terms to s 114(5), permitting the reduction of a period of home detention if special circumstances exist, indicates that the phrase “proper grounds” should be given a wider meaning under s 73(2) than in the authorities decided under s 114 and its antecedent provisions. I consider that the Parliament has made a clear policy choice by not including in s 73 a provision cognate to s 114(5). The latter provision confers a separate discretion to that conferred by s 114(3) and is exercisable in different circumstances, i.e. if the Court considers that special circumstances exist rather than it being satisfied that there are proper grounds to excuse the failure to comply. The discretions conferred by s 114(3) and s 114(5) become available to the court in different circumstances and also operate differently.
For that reason, the consideration by the Full Court in Peel, and in earlier authorities such as Heritage and Buckman, of the matters that may be taken into account when determining whether “proper grounds” exist under s 114(3) was not influenced by the possibility that a sentence may be reduced under s 114(5) if the Court finds that special circumstances exist. Jacobs J (with King CJ expressly agreeing on this point) specifically held in Buckman that the question of whether “special circumstances” existed to reduce a sentence was an entirely different matter to whether there were “proper grounds” to excuse a breach.[9]
[9] (1988) 47 SASR 303 at 307
That reinforces my view that the absence of a special circumstances provision in s 73 does not provide a basis to broaden what circumstances may be taken into account when determining whether “proper grounds” exist under s73(3). However, as I have already observed, when a court determines whether proper grounds exist to excuse a breach of a home detention order, the factors it must consider will differ, to some extent, from those that must be considered when it is dealing with a breach of a suspended sentence bond. In large part that is because of the different options available to the court under s 73 as compared to s 113. The fact that the court has previously found that a defendant should serve a custodial sentence, albeit at their home, will also be an important consideration, as it was in this case. The differences between the outcomes available under s 73 and s 113 are likely to be most significant when the court assesses the proportionality between a breach and its consequences.
While the appellant has not specifically complained of an outcome error, he has submitted that he should be resentenced on account of the process errors that he alleges. While I have found that there were no process errors, for completeness, I will consider whether there was an outcome error.
It was a specific condition of the home detention order that the appellant not consume unlawful drugs. The two breaches were particularly significant given that the offences that had led to the imposition of the home detention order had included multiple offences founded upon the use of unlawful drugs. Furthermore, the decision to order home detention, rather than immediate imprisonment, was substantially influenced by the submission that the appellant had abstained from drugs for four months. The first of the drug related breaches of the home detention order occurred only 22 days after the commencement of the sentence. The second such breach occurred only six days later.
After referring to this background and the fact that the appellant had taken drugs on two occasions when they were offered by a friend to relieve fatigue following the performance of heavy manual work, the Magistrate held that this indicated a dismissive attitude to Court orders. In the circumstances, I consider that observation by her Honour to be particularly apt. As her Honour noted, the appellant knew that he would go to gaol if he breached the conditions of his home detention order but nevertheless chose to do so.
I do not consider that the Magistrate erred in finding that there were no proper grounds to excuse the failure of the appellant to comply with the home detention order. I dismiss the appeal.
I will hear the parties as to the balance of the appellant’s sentence that remains to be served.