BRETT v Police - [2013] SASC 199

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRETT v POLICE
[2013] SASC 199
Reasons for Decision of The Honourable Justice Nicholson
18 December 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
On 30 August 2013, the appellant was sentenced in the Magistrates Court for three offences. The Sentencing Magistrate imposed a four month term of imprisonment for two of those offences, theft and interfering with a motor vehicle without the consent of the owner. For the offence of carrying an offensive weapon, the Magistrate convicted the appellant without penalty. These three offences breached a bond to be of good behaviour entered into by the appellant on 6 September 2012 following the suspension of a term of imprisonment for 18 months with a non-parole period of 12 months. The Magistrate revoked the suspension and ordered that the appellant serve it cumulatively with the four month term of imprisonment. The Magistrate did not adjust the non-parole period. Ultimately, the appellant was ordered to serve a head sentence of 22 months with a non-parole period of 12 months both of which commenced on 30 August 2013.
Held:
1. The time within which the notice of appeal is to be filed is extended to 1 October 2013.
2. Permission to add new ground 5 by notice of further ground of appeal against sentence dated 3 December 2013 is granted.
3. Appeal allowed.
4. The sentence delivered in the Adelaide Magistrates Court on 30 August 2013 set aside.
5. The appellant is resentenced for the offences of theft and unlawful interference with a motor vehicle committed in April 2013 to a single term of two months imprisonment backdated to commence on 30 August 2013.
6. The appellant having served the term referred to in order 5 is to be released at the rising of the court but subject to entering into the bond referred to in order 7.
7. The appellant is to enter into a new bond to be of good behaviour for 12 months from today in the same terms as the, now expired, bond entered into on 6 September 2012.
8. In all other respects the respondent's application to enforce the breach by the appellant of the bond entered into on 6 September 2012 is dismissed.
Criminal Law (Sentencing) Act 1988 s18A, s32, s58; Offenders Probation Act 1913 s9, referred to.
R v Shepperbottom (2001) 121 A Crim R 69; R v McKay [2012] SASCFC 59; Holland v SA Police (1998) 178 LSJS 310; Heal v Police (1999) 75 SASR 331; Davies v Police [2004] SASC 318; Police v Smith [2004] SASC 38; Police v Morzanj [2005] SASC 263; Police v Van Boxtel [2003] SASC 82; Hocking v Police (2009) 105 SASR 79; R v Manunta (1989) 54 SASR 17; R v Abbott (2007) 170 A Crim R 306; R v Buckman (1988) 47 SASR 303, considered.

BRETT v POLICE
[2013] SASC 199
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an appeal against sentence. The appellant pleaded guilty on 30 August 2013 to three offences: the offence of interfering with a motor vehicle without the consent of the owner, the maximum penalty for which is two years imprisonment; the offence of theft, the maximum penalty for which is ten years imprisonment; and the offence of carrying an offensive weapon without lawful excuse, the maximum penalty for which is a fine of $2,500 or imprisonment for six months. All of the offences were committed on 18 April 2013 (the “April 2013 offending”).
On that same day the appellant was sentenced with respect to the first two offences to the one penalty of four months imprisonment and in so doing the Magistrate exercised the discretion available to him pursuant to s18A of the Criminal Law (Sentencing) Act 1988. The Magistrate started at “something in the vicinity of six months imprisonment” but, after “significant credit” for the plea was allowed, arrived at the sentence of four months. His Honour ordered that with respect to the offence of carrying an offensive weapon the appellant was to be convicted but without penalty.
The appellant admitted that the April 2013 offending breached a bond entered into on 6 September 2012 to be of good behaviour for 12 months. The bond supported a suspended term of imprisonment for 18 months with a non-parole period of 12 months imposed, as it happened by the same Magistrate. This sentence had been ordered, also in exercise of the s18A discretion, for three offences of theft and two counts of serious criminal trespass all committed in October 2011 (the “October 2011 offending”).
The Magistrate, when sentencing for the April 2013 offending, revoked the order for suspension and ordered that the sentence of 18 months imprisonment be served cumulatively with the sentence of four months ordered for the April 2013 offending. The Magistrate did not adjust the non-parole period that had been ordered with respect to the October 2011 offending. In the result, the appellant was ordered to serve a head sentence of 22 months with a non-parole period of 12 months both of which commenced on 30 August 2013, being the date of sentencing and when the appellant was taken into custody.
In his original notice of appeal, the appellant raised four grounds.
1.The Magistrate erred in imposing a sentence of imprisonment.
2.The sentencing Magistrate erred in revoking the suspended sentence bond.
3.In the alternative, the sentence of four months imprisonment was manifestly excessive.
4.In the further alternative, the Magistrate erred in failing to find good reason to reduce the period of imprisonment.
The notice of appeal was filed out of time but an order for an extension of time within which to file the notice of appeal was not opposed.
Two days before the hearing of the appeal and after the parties’ respective written outlines of argument had been filed, the appellant lodged a notice of further ground of appeal against sentence. During the hearing of the appeal, leave was sought to add this fifth ground notwithstanding the lateness of the application. Again, permission to add the ground was not opposed by the Crown.
5.The learned sentencing Magistrate erred by failing to impose a sentence authorised by law by failing to review and extend the existing non-parole period of the sentence which had been suspended in accordance with s32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA),
The appellant’s submission that the Magistrate did not sentence according to law is correct and, as a consequence, the appeal must be allowed, the orders of the Magistrate set aside and the appellant resentenced. However, the appeal should also be allowed on the basis of grounds 2 and 3.
Circumstances of the April 2013 offending
In or about mid-afternoon on 18 April 2013 a person was seen to enter an unlocked car parked on the street and to remove property. This was reported to police and the appellant was found nearby in possession of an empty shopping bag being of the non-disposable but “environmentally friendly” type commonly used at supermarkets and the like, an apparently empty ashtray and 12 home “burned” compact disks.
The appellant was arrested and the property returned to its owner undamaged. It can be seen that the property was of minimal value and, probably, of minimal use. There was no sign of forced entry to the motor vehicle and no damage caused to the motor vehicle. It would appear that as the appellant was walking past the car he gained access to it through the unlocked hatchback door. The offending was plainly opportunistic and not premeditated. Notwithstanding that the offences as charged (interfering with a motor vehicle and theft) are serious offences, as indicated by the applicable maximum penalties, the circumstances were such as to place the appellant’s offending at the very low end of the range for each of these offences. Furthermore, and whilst not justifying the appellant’s conduct but assisting to explain how it came about, the appellant on his own account, which is not disputed, had taken a very high dose (perhaps 10 tablets) of Xanax very soon before the offending and had only very limited memory of what he had done.
After being arrested, the appellant was granted police bail and was summonsed to appear in the Adelaide Magistrates Court on 20 May 2013. He appeared unrepresented and pleaded guilty to all charges.
The October 2011 offending giving rise to the suspended sentence bond
In October 2011, the appellant committed five dishonesty based or related offences. On 23 October 2011 he entered commercial premises and stole a computer. On 29 October 2011 he ran off with a handbag in the Adelaide Markets and on 30 October 2011 he again entered commercial premises and stole another computer. He pleaded guilty to two counts of serious criminal trespass in a non-residential building and three counts of theft. Following his plea, the appellant was assessed for and taken into the court’s treatment intervention program. It was found that his offending behaviour was consistent with his suffering from substance abuse and acute intoxication. The appellant failed to complete the program and was removed from it on 9 July 2012. He had failed to comply with various therapeutic requirements of that program. On 6 September 2012 he was sentenced, as I have earlier indicated, to a term of 18 months imprisonment with a non-parole period of 12 months but suspended.
The appellant’s personal circumstances – in brief
The material before the Magistrate at the time of sentencing for the April 2013 offending included a pre-sentence report dated 24 July 2013, the appellant’s offender history record, a two-page report from a clinical psychologist (Mr Mitch Durbridge) dated 29 August 2013 and his Honour’s previous sentencing remarks dated 6 September 2012, together with the oral submissions put on the appellant’s behalf by his counsel.
The appellant is 36 years of age and identifies as an Aboriginal man. He has only recently made contact with his biological mother after having been separated for 14 years or so. Early life for the appellant, his mother and his sister was difficult because his father was alcohol dependant and violent towards the appellant and his mother. He attended school until the age of 15 and then left home to live independently because of conflict within the family. He lived on the streets. He spent much of his teenage years travelling between Brisbane and Cairns, that is, between his mother’s and father’s houses. He would appear to have led a fairly indolent life for a few years after leaving school and developed a problem with alcohol.
The appellant committed the offences of assault and break and enter interstate when he was about 18 and spent something like four months in prison. He later came to Adelaide, when he was 20 or so, and undertook a horticulture course at a TAFE institution which focussed on arid lands conservation and land management. He has completed only two-thirds of that course and remains undecided about whether or not to continue with it. Since coming to South Australia the appellant has worked as a roof tiler, gutter guard installer and a gardener. Of recent times he has expressed an interest in undertaking study in drama and psychology. At the time of the preparation of the pre-sentence report the appellant was in receipt of the NewStart Allowance from Centrelink which was his only source of income, and had stable rental accommodation in a one bedroom flat in the city.
The appellant, whilst he has had a number of ups and downs in his life which have affected his psychological and emotional state and whilst he still suffers from the trauma experienced at his father’s hands, does not appear to have any significant psychiatric conditions other than a tendency to depression. However, at the time of sentencing he had been seeing Mr Durbridge regularly for quite some period in relation to a history of codine abuse, family issues and career prospects.
The appellant has a significant history of alcohol and prescription and non-prescription drug abuse. It is plain that the appellant has had a difficult life, has limited coping mechanisms, suffers from time to time with depression and anxiety and resorts from time to time to self-medicating with marijuana or other illicit substances.
The clinical psychologist, Mr Durbridge, included the following observations in his report.
[D]espite his recent offending history, [the appellant] had not previously had any legal issues for many years and continues to engage in efforts to better himself and pursue a meaningful and purposeful life. However, his difficulties in managing emotional stressors, and his tendency to sometimes utilise and abuse BZDs as a means of dulling these emotions remains a significant problem for him, especially as it would to lead to increased risk of engaging in illegal activities. As such, it would be vitally important that [the appellant] continue to receive assistance in addressing these issues. In the event that he is able, I would be happy to continue to support him in some capacity, however it would be vital that he had a means of overcoming his tendency to avoid when he is struggling the most.
Notwithstanding the appellant’s background and difficult circumstances, and somewhat surprisingly, he has only a very limited criminal record apart from the October 2011 offending and the April 2013 offending. The only other offending of any potential significance is that already mentioned as having taken place when the appellant was about 18. This occurred interstate and is referred to in the pre-sentence report. It does not appear on the offender history report exhibited to the affidavit of Leigh Andrew Simpson sworn 14 November 2013 and read by the Director of Public Prosecutions on the appeal. That offender history report refers only to the October 2011 offending and a failure to comply with bail agreement offence committed shortly thereafter (4 November 2011).
According to the pre-sentence report, the appellant spent four months in custody when he was 18 and was then released subject to a three year good behaviour bond with supervision. It would seem that, notwithstanding the very difficult life the appellant continued to experience as a young adult and the presence of a number of criminogenic factors that, in the experience of the Courts, predisposes certain persons to criminal offending, the period of time spent in custody when 18, is likely to have had a very significant rehabilitative effect on the appellant. It was not until October 2011, some 17 or so years later, that the appellant again came into contact with the criminal justice system by committing the offences for which he was given the suspended sentence bond by the Magistrate.
It was a condition of this suspended sentence bond that the appellant be under the supervision of a community corrections officer and obey the lawful directions of the officer with respect to drug, alcohol and psychological or psychiatric assessment, counselling and treatment. The author of the pre-sentence report, obtained to assist with the sentencing for the April 2013 offending, has made these observations.
[The appellant] has reported to the undersigned on a fortnightly basis, and has required reminding of his obligation to report on five occasions only. Overall his presentation has been positive, and he has shown a willingness to engage in discussions concerning his life in general as well as his issues with regard to relationships, reunification with his mother as well as indecisiveness concerning courses of study that would best suit him. [The appellant] seemed to overcome a level of grief once he made contact with his mother after many years of separation, and he has made plans for his contact with her to continue. This has clearly been a positive change in his life. [The appellant] appeared to struggle with emotional pain earlier in the year, a time when he needed to engage fully with his psychologist, Mr Dunbridge [sic: Durbridge]. Counselling with the writer explored his thoughts regarding studies that would satisfy his creative needs especially a skill he has in creative writing. It was suggested to [the appellant] that he consult a student counsellor at Flinders University with regard to courses of interest in drama and psychology.
To [the appellant’s] benefit he has stable housing, and he has been advised not to relinquish this without serious thought. He presents particularly well in terms of his grooming and personal care suggestive of a positive self-esteem, and his ability to articulate is impressive. “Dark” periods when troubled by his emotional and psychological state have led [the appellant] to seek guidance through concepts from new age literature which has been a helpful adjunct to therapeutic counselling with his psychologist.
Overall, [the appellant] has presented as being drug free, and urinalysis undertaken on 9 May 2013 and 28 November 2012 revealed a negative result for the presence of illicit substances. However, in recent months his presentation has appeared to be more anxious and he has needed reminding to report.
It can be seen, that the appellant has responded positively to the restrictions imposed by and the supervision required in accordance with the terms of the bond. There is much to be said for counsel’s submission that the most recent offending represented an isolated lapse by the appellant from his otherwise positive progress towards rehabilitation.
Appeal ground 5
The appellant submitted that by failing to review and extend the existing non-parole period the Magistrate failed to comply with s32(1)(b) of the Criminal Law (Sentencing) Act 1988. Section 32(1) provides as follows.
(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must--
(a)     if the person is not subject to an existing non-parole period--fix a non-parole period; or
(b)     if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
(c)     if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period--fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.
The Court of Criminal Appeal in this State has considered on a number of occasions the meaning and application of the phrase “the court must… review the non-parole period and extend it by such a period as the court thinks fit…” where that phrase occurs in s32(1)(b).[1] The burden of these authorities is to the effect that where a person is subject to an existing non-parole period and sentenced to a further term of imprisonment such that the total head sentence is increased, a court must extend the non-parole period. There is authority which supports the proposition that a residual discretion remains with the sentencing judge not to extend the non-parole period in circumstances where the further term of imprisonment imposed is ordered to be served wholly concurrently with the existing term such that the head sentence is not increased. In those circumstances, it may be open to the sentencing judge, after having reviewed the non-parole period as the judge is required to do in accordance with s32(1)(b), to decide not to extend it.[2] In no circumstances (save as a consequence of the exercise of the powers conferred by s58 of the Sentencing Act) does s32(1)(b) empower a court to reduce an existing non-parole period. This case does not fall within the exception to the general rule just outlined.
[1] See, for example, R v Shepperbottom (2001) 121 A Crim R 69; R v McKay [2012] SASCFC 59; Holland v SA Police (1998) 178 LSJS 310; Heal v Police (1999) 75 SASR 331; Davies v Police [2004] SASC 318; Police v Smith [2004] SASC 38; Police v Morzanj [2005] SASC 263; Police v Van Boxtel [2003] SASC 82.
[2] Hocking v Police (2009) 105 SASR 79.

The Magistrate dealt with the question of the non-parole period on two occasions during his Honour’s remarks on penalty. First of all his Honour indicated[3] that the most recent offending merited an immediate term of imprisonment and that any such period of imprisonment ought to be cumulative upon the earlier suspended prison term, the suspension of which was to be revoked. In that context, his Honour said this.[4]
I’m not satisfied that good reason exists to either excuse the breach of the bond or extend it for the reasons that I have given. I am also not satisfied that good reason exists to reduce the overall non-parole period but I think that a non-parole period overall of 12 months is probably appropriate.
It would appear that his Honour was there considering the question of whether a reduction in the non-parole period was warranted in accordance with the powers available to him under s58(4)(a) of the Sentencing Act, although his Honour made no direct reference to s58(4)(a).[5]
[3] Remarks on penalty, 30 August 2013 at [9].
[4] At [9].
[5] Paragraph (a) of s58(4) provides as follows:
Where a court revokes the suspension of a sentence of imprisonment, the court--
(a) may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
His Honour considered the issue of the non-parole period again, after having nominated four months to be the prison term for April 2013 offending, in the following terms.[6]
That four months is to be cumulative upon the revoked suspended term of imprisonment so your new head sentence is the 18 months plus the four months which is a total head sentence of 22 months. I have considered the non-parole period as I say and I am certainly not satisfied that good reason exists to reduce that period but I am of the view that perhaps 12 months is an appropriate overall non-parole period so I order that there be a non-parole period of 12 months.
The language used by his Honour does not suggest that his Honour attended to the requirement in s32(1)(b) to review the non-parole period, once his Honour had increased the head sentence, “and to extend it by such period” as thought fit. Even if his Honour did attend to the requirements of paragraph (b), his Honour did not extend the non-parole period as required by that sub-section.
[6] Remarks on penalty, at [11].
In the circumstances of this case, there were approaches pursuant to which the 12 months non-parole period might have been retained. For example, had the four month prison term been directed to be served concurrently with the 18 month term, on the authority of Hocking v Police,[7] the Magistrate could have left the non-parole period unchanged. Alternatively, if the Magistrate were in a position to find “special circumstances” within the meaning given to that term for the purposes of s58(4)(a) his Honour might have exercised the discretion to reduce the non-parole period earlier imposed with respect to the suspended sentence. If so, it would be any such new and reduced non-parole period that would have to be reviewed and extended in accordance with the requirements of s32(1)(b). However, his Honour expressly disavowed this approach.
[7] (2009) 105 SASR 79.
His Honour’s failure to review and extend the non-parole period was an error of law such that the sentence ultimately imposed was not one according to law. The appeal should be allowed on this ground and as a consequence the whole of the sentence set aside and the appellant should be resentenced.
Appeal ground 1
Under this ground the appellant submits that the Magistrate erred in imposing a sentence of imprisonment at all with respect to the most recent offending. The appellant has submitted that a court, when considering whether a penalty other than imprisonment would be inappropriate, is to have regard to the gravity or circumstances of the offence and in so doing is required “to give the usual weight to the traditional purposes of sentencing, namely the observation of a just proportion between the seriousness of the offending and the [sic: need for] punishment, general deterrence, personal deterrence and rehabilitation.”[8] The appellant also submitted that the offence was at the low end of the scale with no damage caused and all property recovered and that the offence was a one-off incident related to the appellant’s ongoing struggle with his drug problems.
[8] R v Manunta (1989) 54 SASR 17 at 24 (King CJ).
These submissions can be accepted. Nevertheless, in the circumstances of this matter and, in particular, where offences of dishonesty were committed whilst the appellant was serving a bond to be of good behaviour in support of a suspended prison sentence for having committed more serious offences of dishonesty, I am not satisfied that the Magistrate’s discretion to impose a term of imprisonment miscarried. Appeal ground 1 is dismissed.
Appeal ground 3
By this ground the appellant complains that the starting point of six months before reduction for a guilty plea for the April 2013 offending was manifestly excessive. In summary, the appellant made the following submissions in support of this ground.
(i)The April 2013 offences were of an opportunistic “one-off” nature. It could not be said that by committing these offences the appellant was reverting to a life of crime. Indeed, given the appellant’s background it could hardly be said that he had engaged previously in a life of crime to which he might revert.
(ii)The appellant had no criminal antecedents prior to the October 2011 offending, apart from the interstate offending which occurred in 1995 or so when the appellant was only 18.
(iii)The appellant had demonstrated a positive response to supervision under the suspended sentence bond.
(iv)The appellant’s problems have been of a long standing nature and necessarily will take time to overcome, as was recognised by the Magistrate.[9] In addition, all of the evidence before the Magistrate was to the effect that the appellant had continued to make strong efforts to better himself and to pursue a more meaningful and purposeful life.[10]
(v)The offending was very much towards the low end of the scale for offending of its type.
(vi)The appellant had indicated immediate remorse and contrition as evidenced by his very early guilty plea offered on his own account and without obtaining legal advice.
(vii)Given the circumstances of the offending the head sentence was not proportionate to the level of criminality involved.
[9] Remarks on penalty, 30 August 2013, at [8].
[10] See the pre-sentence report and psychologist report at 28 August 2013, particularly at p2.
The respondent submitted that the starting point of six months was within the range for offending of this type and fell within the discretion available to the Magistrate. The respondent also submitted that a Court on appeal needs to be careful not to “tinker” with a sentence. Furthermore, there was limited scope for leniency with respect to this appellant because the offences were committed whilst serving a bond with respect to previous offending of a similar and more serious character.
I agree that the scope for leniency is reduced for the reason just stated. However, that does not necessarily mean that there is no scope for leniency given the circumstances as a whole. I also agree that an appeal court should not “tinker” with sentences under review. However, the notion of “tinkering” is a relative one. I will return to this point shortly.
When regard is had to the gravity of the offending as committed (which must be seen as quite low) and the circumstances giving rise to the offending (the appellant’s lapse into drug abuse) together with the appellant’s personal circumstances generally including his prior criminal record and the significant steps he had taken towards rehabilitation, the starting point of six months did not fairly represent a justly proportionate response to the seriousness of the offending, the need for punishment, the need for personal and general deterrence, and the desirability of assisting the rehabilitation efforts of the appellant. Whilst a prison sentence was warranted for the April 2013 offending, an appropriate starting point was in the order of three months. Because of the early plea, the appellant was entitled to a reduction of up to 40 per cent. The Crown case against the appellant was strong and I therefore see no reason to depart from the Magistrate’s reduction of 33 per cent. Accordingly, on a resentencing of the appellant I would impose a sentence of two months imprisonment after reduction for the pleas of guilty.
I return to the question of “tinkering”. I appreciate that the difference in absolute terms between the Magistrate’s sentence of four months after discount and the sentence I would impose of two months after discount is not large, a matter of two months only. Nevertheless, in the circumstances, the Magistrate’s starting point was manifestly excessive[11] and a reduction by 50 per cent, as I would have it, is not to be seen as tinkering.
[11] In the sense that it was wholly outside the range of sentencing options available to the Judge for this offending when all of the circumstances are properly considered, cf; R v Abbott 170 A Crim R 306.
Appeal ground 2
The appellant submits that in refusing to excuse the breach of bond and in revoking the suspension of the prison term of 18 months, the Magistrate erred in the exercise of the discretion available to him pursuant to s58(3)(a) of the Sentencing Act. Sub-section 58(3)(a) provides as follows.
(3)Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court--
(a) may refrain from revoking the suspension; …
Where a probationer has failed to comply with a condition of a bond, as in the present case, and where the probationer is subject to a suspended sentence, the court “must, subject to sub-section (3), revoke the suspension and order the sentence be carried into effect”.[12] It is not in dispute that the failure by the appellant to comply with the requirements of the bond by committing the breaching offences could not be described as “trivial”. Accordingly, it is only if the appellant can point to “proper grounds” upon which the failure to comply with the bond should be excused that the discretion arises pursuant to s58(3) to refrain from revoking the suspension as otherwise required by s58(1)(d).
[12] Section 58(1)(d).
In R v Buckman[13] King CJ explained the meaning of “proper grounds” as that term was employed in a progenitor provision[14] which in all material respects was in the same terms as s58(3)(a). His Honour’s explanation of the meaning of “proper grounds” in that earlier context has been generally adopted as applicable to s58(3).
[The sub-section] authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds on which the breach might be excused. I think that parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
In the present case it seems to me that there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated. It is not irrelevant, moreover, that the offence constituting the breach is of a quite different character from that for which the sentence was imposed.
[13] (1988) 47 SASR 303 at 304.
[14] Offenders Probation Act 1913 s9(5).
On the facts of Buckman, the application of the approach just now described was very straightforward. The appellant had been sentenced to a suspended term of imprisonment for two and a half years with a non-parole period of one and a half years after having pleaded guilty to the offence of unlawful wounding. During the period of the bond the appellant committed a shoplifting offence involving goods to the value of $2.82. With those basal facts in mind, King CJ went on to find as follows.[15]
It seems to me that the total effect of the relatively minor nature of the offence constituting the breach, the difference in character between it and the offence for which the sentence was imposed and the disproportion between the seriousness of the offence constituting the breach and the sentence which would be activated, is such as to amount to proper grounds upon which the failure to observe the conditions of a recognisance should be excused.
It can be acknowledged at the outset that the case for the finding of proper grounds in the present case is not as strong as was the case in Buckman.
[15] At 305.
The Magistrate, in his remarks on penalty, noted the submission by counsel for the appellant that the revocation of the suspension, particularly if the discretion to reduce the period of imprisonment was not exercised, would lead to a “disproportionate result from a sentencing point of view”. However, the Magistrate took the view that the only appropriate penalty for the April 2013 offending was an immediate term of imprisonment and that in all of the circumstances “good reason” did not exist to excuse the breach.
Whilst, the Magistrate used the incorrect term, “good reason”, in this context rather than “proper grounds”, his Honour did appear to avert to the issue of whether or not revocation of the suspension would lead to a disproportionate result. However, his Honour has not indicated in his remarks the factors to which he had regard when, apparently, satisfying himself that the result following revocation would be proportionate. The language used by King CJ in this context is quite precise and, for the purpose of considering the discretion under s58(3), is needs to be carefully attended to. I am not satisfied that the Magistrate in this case did carefully attend to the meaning of the term “proper grounds” as King CJ explained. Nor is it clear from the Magistrate’s remarks what factors were taken into account in this respect. The appellant submits that the Magistrate failed to give adequate weight to the following matters when considering the question of proper grounds:
(i)the fact that the breaching offences did not suggest that the appellant had lapsed into a non-law abiding way of life; and
(ii)the disproportion between the seriousness of the breaching offences and the sentence of imprisonment which would be activated following revocation of the suspension.
In my view, and in the circumstances of this case, these two features do present a strong case for finding proper grounds not to revoke the suspension. For the reasons already given when I explained the circumstances of and surrounding the commission of the breaching offences, I take the view that the moral culpability of the appellant for this criminal conduct was considerably reduced. There is no doubt that the appellant behaved dishonestly and that he had also behaved dishonestly when committing the October 2011 which gave rise to the suspended sentence. However, the period between 1995 and 2011 during which the appellant received no convictions for offences of dishonesty or indeed for any offences at all, the positive responsiveness of the appellant to supervision under the bond and the steps taken towards continuing rehabilitation, as indicated by the pre-sentence report, in particular, cannot be ignored.
In my view, the Magistrate placed too much emphasis on the fact that the subsequent offending was also of a dishonest character and insufficient weight on the fact that it was of a very minor nature when compared with the offending which gave rise to the suspended sentence. Furthermore, there is a marked disproportion between the seriousness of the April 2013 (breaching) offences as committed, and the invocation of an 18 month term of imprisonment with a non-parole period of 12 months. I am not satisfied that the Magistrate directly attended to this consideration. In any event, if his Honour did, he placed insufficient weight on this level of disproportionality.
To return to the language of King CJ.[16]
I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which were otherwise ensued. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
The failure of the appellant to be of good behaviour by way of committing the two breaching offences, was such as should be excused from being the catalyst for the activation of a sentence of 18 months with a non-parole period of 12 months. In this sense, the Magistrate erred in failing to exercise the discretion available to him under s58(3)(a).
[16] Buckman at 304.
Appeal ground 4
Under this ground the appellant submits that the Magistrate erred in failing to exercise the discretion pursuant to s58(4)(a) of the Sentencing Act to reduce the length of the head sentence and non-parole period following revocation of the suspension of the earlier sentence. In the circumstances it is unnecessary to consider this ground of appeal.
Resentence
The reasons behind the resentencing of the appellant that I would order are readily apparent from my reasons to this point. I would resentence the appellant as follows.
I am satisfied that proper grounds exist upon which the appellant’s failure to comply with the conditions of the bond should be excused and I accordingly refrain from revoking the suspension of the prison sentence ordered by the Magistrate on 6 September 2012 with respect to the October 2011 offending. The bond was for only a 12 month period and would have expired by effluxion of time on 5 September 2013. As such, a discretion arises pursuant to s58(3)(b)(ii) of the Sentencing Act to require the appellant to enter into a further bond the term of which must not exceed one year. In the circumstances, and in particular having regard to the nature of the offending in each case (dishonesty based) and the potential inter-relationship of that type of offending at least insofar as this appellant is concerned with an ongoing battle with drug abuse, I think it is appropriate that I require the appellant to enter into a further bond to be of good behaviour for a period of 12 months in the same terms as the one just recently expired. That new 12 month bond will commence from today.
For the offence of theft and the offence of interfering with a motor vehicle without consent I exercise the discretion available under s18A of the Sentencing Act and impose just the one penalty, being a term of imprisonment for two months reduced from three months on account of the early pleas. This sentence will be backdated to commence 30 August 2013. For the offence of carrying an offensive weapon the Magistrate’s orders are to stand.
The appellant has been in custody since 30 August 2013, a period now of a little more than three months and two weeks. In the circumstances it would not be appropriate to suspend the term of imprisonment I have imposed. The appellant has served his time. The appellant is entitled to be released at the rising of the Court subject to entering into the bond to be of good behaviour that I have ordered.

I make the following orders.
(i)The time within which the notice of appeal is to be filed is extended to 1 October 2013.
(ii)Permission to add new ground 5 by notice of further ground of appeal against sentence dated 3 December 2013 is granted.
(iii)The appeal is allowed.
(iv)The sentence with respect to counts 1 and 2 delivered in the Adelaide Magistrates Court on 30 August 2013 is set aside.
(v)The appellant is resentenced for the offences of theft and unlawful interference with a motor vehicle committed in April 2013 to a single term of two months imprisonment backdated to commence on 30 August 2013.
(vi)The appellant having served the term referred to in order (v) is to be released at the rising of the court but subject to entering into the bond referred to in order (vii).
(vii)This appellant is to enter into a new bond to be of good behaviour for 12 months from today in the same terms as the, now expired, bond entered into on 6 September 2012.
(viii)In all other respects the respondent’s application to enforce the breach by the appellant of the bond entered into on 6 September 2013 is dismissed.
(ix)The Magistrate’s orders with respect to disqualification of licence on count 1 and the recording of conviction and forfeiture order on count 3 are to stand.