BRK v Police
[2020] SASC 116
•26 June 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRK v POLICE
[2020] SASC 116
Judgment of The Honourable Justice Livesey
26 June 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence imposed by a Magistrate.
On 9 January 2020 the appellant was sentenced to imprisonment for five months and two weeks for aggravated assault, property damage and breaching an intervention order. Before the Magistrate the appellant conceded that a term of imprisonment was appropriate but contended that it should either be wholly suspended upon the appellant entering into a bond to be of good behaviour under s 96 of the Sentencing Act 2017 (SA) (“the Act”) or that it be served on home detention pursuant to s 71 of the Act.
The Magistrate ordered that the appellant serve two months of the sentence in prison with the remainder suspended upon the appellant entering into a bond to be of good behaviour for two years.
In this Court the appellant contended that the Magistrate erred on the following grounds:
1. By imposing a sentence that was manifestly excessive in that an immediate custodial sentence was imposed and the sentence was not wholly suspended (ground 1);
2. In the alternative to ground 1, in declining to order that the custodial sentence be served on home detention pursuant to s 71 of the Act (ground 2);
3. In erring in the approach taken to the "sentencing hierarchy", in particular the interpretation and application of ss 71 and 96 of the Act (ground 3); and
4. In the alternative to ground 2, in failing to provide adequate reasons for refusing to order that the appellant serve the custodial sentence on home detention (ground 4).
Held:
1. The Magistrate erred in failing to consider whether the sentence of imprisonment should be served on home detention. Section 71(1)(b) of the Sentencing Act 2017 (SA) does not prevent a sentencing court from considering home detention where partial suspension is in contemplation.
2. The Magistrate erred in failing to provide adequate reasons for declining to order that the term of imprisonment be served on home detention.
3. The parties will be heard on the factual basis on which the Court should exercise its discretion when considering whether to re-sentence the appellant.
Criminal Law Consolidation Act 1935 (SA) s 5AA, s 20, s 85; Criminal Law (Sentencing) Act 1988 (SA) s 33BB; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31; Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 3, s 4, s 9, s 10, s 19, s 26, s 69, s 71, s 72, s 96; Statutes Amendment (Home Detention) Act 2016 (SA); Summary Offences Act 1953 (SA) s 6, referred to.
Harmer v Police (2017) 127 SASR 320; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; R v Hosking (2017) 128 SASR 37; R v Lutze (2014) 121 SASR 144; Siropoulos v Police [2019] SASC 127, discussed.
Mak v Police [2008] SASC 342; Markarian v The Queen (2005) 228 CLR 357; Playford v Police [2017] SASC 26; Stenecker v Police (2014) 120 SASR 18; R v Copeland (No 2) (2010) 108 SASR 398; R v Horstmann [2010] SASC 103; R v Oake (2017) 128 SASR 260; R v Robins [2016] SASCFC 55; Ryan v The Queen (2001) 206 CLR 267; Tuncks v Chief Executive Officer of Customs [2005] SASC 408; Webb v O’Sullivan [1952] SASR 65; Wong v The Queen (2001) 207 CLR 584; Yardley v Betts (1979) 22 SASR 108, considered.
BRK v POLICE
[2020] SASC 116Magistrates Appeal: Criminal
LIVESEY J: This is an appeal against sentence. The appellant pleaded guilty to the following offences and was sentenced as follows by a Magistrate on 9 January 2020:
Date of offending Offences Maximum penalty Discount applied Sentence 14 September 2018
1. Aggravated assault vs s 20(3) Criminal Law Consolidation Act 1935 (SA)
2. Property damage vs s 85(2) Criminal Law Consolidation Act 1935 (SA)
Three years’ imprisonment
10 years’ imprisonment
20%[1]
20%
Pursuant to s 26 of the Sentencing Act 2017 (SA) (the Sentencing Act) imprisonment for 25 weeks reduced to 20 weeks (approximately five months) on account of the appellant’s guilty pleas
19 September 2018
Resist police vs s 6(2) Summary Offences Act 1953 (SA)
$2,500 fine or six months’ imprisonment
30%
Conviction and fine of $500
13 May 2019 – 3 June 2019
Breach of intervention order vs s 31(1) Intervention Orders (Prevention of Abuse) Act 2009 (SA) $1,250 fine[2]
40%
Conviction and fine of $100
28 July 2019
Breach of intervention order vs s 31(2) Intervention Orders (Prevention of Abuse) Act 2009 (SA)
$10,000 fine or
two years’ imprisonmentNot specified in the sentencing remarks
Imprisonment for 12 days (after taking into account the appellant’s guilty plea)
[1] On account of the appellant’s early guilty plea the Magistrate determined that the maximum applicable discount for the aggravated assault and property damage offences was 30% but ultimately awarded a 20% reduction in penalty.
[2] The Magistrate erroneously stated in her reasons that the maximum applicable penalty for this offence was imprisonment for two years. No issue was taken about this error.
The Magistrate ordered that the sentences imposed for the offending on 14 September 2018 and 28 July 2019 be served cumulatively, resulting in a total period of imprisonment of five months and two weeks. The appellant was ordered to serve two months of that sentence in prison, with the remainder of the term suspended upon the appellant entering into a bond to be of good behaviour for two years, which included a condition that he be placed under the supervision of a community corrections officer for 11 months.
In this Court the appellant does not question the sentences imposed for his offending on 19 September 2018 and between 13 May 2019 and 3 June 2019. Rather, his complaint is confined to the sentences imposed for the 14 September 2018 and 28 July 2019 offending. He seeks to appeal those sentences on the basis that the Magistrate erred on the following grounds:
1by imposing a sentence that was manifestly excessive in that an immediate custodial sentence was imposed and the sentence was not wholly suspended (ground 1);
2in the alternative to ground 1, in declining to order that the custodial sentence be served on home detention pursuant to s 71 of the Sentencing Act (ground 2);
3in erring in the approach taken to the sentencing hierarchy, in particular the interpretation and application of ss 71 and 96 of the Sentencing Act (ground 3); and
4in the alternative to ground 2, in failing to provide adequate reasons for refusing to order that the appellant serve the custodial sentence on home detention (ground 4).
For the reasons that follow there was, in my view, a failure to properly consider home detention, together with a failure to provide adequate reasons for declining to order that the period of imprisonment be served on home detention. I will hear from the parties as to the factual basis on which I should exercise my discretion when considering whether to re-sentence the appellant.
The circumstances of the offending
On 14 September 2018 at about 10.20 pm the appellant’s daughter and son were staying at his home. His daughter was accompanied by some of her friends. His daughter was aged 12 at the time, his son aged 13. An argument developed between the appellant and his daughter. His daughter rang her mother (TW) asking her to come and collect her. The appellant also rang TW, demanding that she collect their daughter.
TW arrived and approached the front door. The appellant was argumentative and aggressive. He blamed TW for the argument with their daughter stating words to the effect, “fuck off, this is your fault because you had to get her that [mobile] phone”.
The appellant then assaulted TW by pushing her towards the wall. He had his right hand at the base of her neck and pressed it hard against her throat. She struggled to breathe. She attempted to break free by pushing and scratching at him. This incident unfolded in the presence of the appellant’s son, daughter and friends who, by this stage, were crying and distressed.
The assault was aggravated because the appellant committed the offending knowing that the victim was his former spouse and because the incident occurred in the presence of the children (aggravated assault).[3]
[3] Criminal Law Consolidation Act 1935 (SA), s 5AA.
TW along with the children were then in her vehicle which was owned by TW’s husband. The appellant approached the vehicle. The appellant’s son, being protective of his mother, gave the appellant what was described in argument as “the fingers”. This caused the appellant to become even more enraged. He hit the vehicle hard causing the interior trim to fall off (property damage).
Shortly thereafter, police arrived at the appellant’s premises. TW and the children were asked to leave. The appellant had an assessment of his mental health and was considered suicidal.
The appellant was arrested five days later on 19 September 2018. He initially objected to being handcuffed. The police had to use force to get the appellant under control. He tried to pull away and objected to being interviewed (resist police). His explanation for behaving in this manner was that the arrest had occurred unexpectedly. As mentioned, the appellant does not complain about the sentence he received for this offence.
TW was granted an intervention order against the appellant on 2 October 2018. The appellant contravened condition 9 of this order by failing to attend the Safe Relationships Abuse Prevention Program (first breach of the intervention order). In this appeal the appellant does not complain about the fine he received for this offence.
Condition 4 of the intervention order prohibited the appellant from contacting or communicating with TW “either directly or indirectly in any way (including phone, letter, cards, SMS messages, E-mail, Facsimile, Facebook, Skype etc)”. The appellant failed to comply with this condition by sending a SMS message to TW on 28 July 2019, two days before he was due to be sentenced, asking her for a character reference. In his message, he wrote:[4]
You would know I have court Tuesday arvo. This text is not sent lightly. I understand the incident of Sept 14th last year was very traumatic for you. As you would know I am pleading guilty. It has been an extremely long 10 months. The remorse and guilt I have had since then has effected me. As I’m sure it has for you and I am deeply sorry for that. I have admitted to my lawyer and court that my actions on that evening intimidated you, scared you and upset you. And, as I’ve stated to my lawyer and will be said to the judge. For that I AM truly sorry. I know this is a strange request and I do not take it lightly [TW]. I’m asking if you would give me a character reference. For the person you fell in love with, for the person that fathered your children and for the father I hope you know I can be.
[4] Facts of Charge (exhibit A1).
TW did not reply and reported the breach of the intervention order to the police (second breach of the intervention order).
Criminal antecedents
In 2011 and 2014 the appellant was convicted of five driving offences, including two offences for driving under disqualification for which he was sentenced to 21 days’ imprisonment suspended upon the appellant entering into a bond to be of good behaviour for 12 months.
In October 2014 the appellant was convicted and sentenced for aggravated serious criminal trespass and aggravated assault by a Judge of the District Court. The complainant was AW, a former domestic partner with whom the appellant shares a daughter. Following their separation in February 2013 conflict ensued between the two which resulted in an intervention order being granted against the appellant.
In her 2014 sentencing remarks, the sentencing Judge detailed the circumstances surrounding the offending as follows:
These offences occurred on 28 June 2013 in Mount Gambier when you pushed your way into the home of [AW], your former domestic partner, and then assaulted her causing her to suffer a cut to the head requiring stiches, swelling and bruising to the head and jaw and chipped teeth.
…
The events that led to your offending related to your daughter’s second birthday party. You were not invited and you considered that you ought to be. A number of text messages passed between you and [AW] on the topic. You attempted to ring her to discuss the matter on a number of occasions and she would not answer your calls. You say you went around to her house because you were frustrated and angry. [AW] opened the door but when she saw it was you she tried to close it. You pushed through the door into the house. That is the criminal trespass. It is aggravated because she knew [AW] was present and because she was your former domestic partner.
Once inside the house matters escalated. [AW]’s mother, [SW], and your daughter were also present. The two women shouted at you to leave the home, you did not. Instead you were verbally abusive and then you punched [AW] once to the left eye with a closed right fist. At one point you attempted to try and grab your daughter out of her grandmother’s arms. [SW] resisted. Fearing for the safety of her mother and her daughter, [AW] tried to distract you as [SW] fled next door with your daughter. She was successful in that you let go of your daughter but you then proceeded to punch [AW] to the head and face on at least six occasions. You then left the premises saying that if [AW] called the police you would come back and slit her throat.
The appellant’s bail agreement at the time of the offending included a condition that he not contact AW. The breach of his bail conditions and the intervention order constituted aggravating features of his offending.
Whilst the sentencing Judge accepted that the appellant’s bipolar disorder at the time provided some explanation for the incident, she found that it was no excuse. He was sentenced to imprisonment for three years with a non-parole period of 18 months, suspended upon the appellant entering into a bond to be of good behaviour for three years. The bond was subject to a condition that the appellant be under the supervision of a community corrections officer for the duration of the bond and that he partake in any assessment, counselling, treatment and therapeutic programs deemed appropriate by his officer.
The appellant did not commit any further offences whilst subject to that bond.
In December 2014 the appellant was convicted of three counts of aggravated assault against his former spouse, damaging a building or motor vehicle and contravening the terms of an intervention order. Whilst I have very little information about these offences, I understand that they relate to conduct in April 2013 and resulted in a sentence of seven months’ imprisonment which was suspended upon the appellant entering into a $200 bond to be of good behaviour for 18 months which was subject to supervision.
The Magistrate’s remarks on sentencing
The Magistrate set out the circumstances of the appellant’s present offending and criminal antecedents before considering the appellant’s mental health issues. The appellant had previously been diagnosed with bipolar disorder and depression. A letter from his general practitioner dated 22 August 2019 revealed that he had been taking medication for his mental health issues. The Magistrate noted that he had been referred to a psychologist to receive counselling to deal with issues associated with his domestic violence.
The Magistrate then turned to consider a pre-sentence report dated 23 August 2019 which detailed how the appellant had responded to the suspended sentence imposed in October 2014.
The report writer stated that the main issues dominating the appellant’s life were his fluctuating relationships with his former domestic partners and regulating his bipolar condition and depression. The appellant had been referred to the Stopping Violence Program. His engagement in the program was detailed by the report writer as follows:
During his initial assessment for the Stopping Violence Program, [the appellant] is documented as lacking any real insight into his roles and responsibilities within relationships and is described as “often victim blaming” during the assessment process. He is further highlighted as presenting with an external locus of control and resistant to intervention, trying to justify his actions with comments such as “what is good for the goose is good for the gander”. He was described as being a reluctant participant for the program, but his negative attitudes towards his partners did necessitate program participation to assist any relationships [the appellant] entered into and reduce the impact of any domestic violence related behaviours.
The former program facilitator provided input that defined [the appellant] as being resistant to participating in the Stopping Violence program and he is described as ‘not believing he was fully responsible for his actions’ and instead placing a majority of the blame on his former partners “jealousy towards him concerning their open relationships”. [The appellant] was further described as appearing to be focused towards being a better father, but he could not understand how his domestic violence related behaviour towards the mothers could impact negatively on the children.
The appellant’s overall participation in the program was assessed as “poor” and he was described as “passive aggressive”. Nevertheless, and as acknowledged by the Magistrate, he appeared to respond better during the later stages of the program when his mental health was under control, his relationships with his former domestic partners improved and he had gained better access to his children. Risks remained, however, in respect of the appellant’s antisocial attitudes and his mental health issues.
On the basis of this report, the Magistrate considered that the appellant had not gained a full understanding of the dynamics of his domestic violence and had not taken full responsibility for his behaviour.
Also before the Magistrate was a report from the Safe Relationships Abuse Prevention Program which recommended that he be terminated from the program. The appellant was directed to undertake this program but said that he did not find it beneficial. The report noted that on two occasions he had challenged group facilitators and was verbally agitated and aggressive in the group environment. Whilst he was able to recognise some of his own behaviours in the incident that led him being directed to participate in the program, he tended to blame his behaviours on TW and his children.
The Magistrate then turned to the appellant’s personal circumstances. She said:
You have worked most of your life. You have obtained various qualifications, you have done a variety of jobs and you have set up some businesses. Since I commenced the sentencing process, I am told that you have obtained employment working as a furniture removalist. Obviously, if you spend some time in custody that employment may be in peril.
There are ongoing Family Court proceedings because you would like to be able to have a meaningful relationship with your children. …
Although I was told that you planned to move out of Mount Gambier, that has not occurred. Your parents were of ill health. Your father has recently passed because of cancer, your mother does need caring. I am told that there is an aunty and uncle who do assist in looking after your mother and you also assist them. It is hoped that your mother can get into residential care. I am told that your aunty and uncle are from Kangaroo Island and may have been impacted by the fires, but there is not any submission to me that they will not be able to look after your mother should you spend some time in custody.
The Magistrate referred to seven character references. They all speak of a man who is of good standing and integrity, and who is respectful and generous in nature. Whilst his friends and colleagues have not seen the appellant display aggressive behaviour when in their company, they are aware of both his current and previous offending. One referee stated, “[the appellant] is certainly aware that his actions with regard to 2014 and the present charges were totally wrong, not forgetting some very poor decisions were made. He has always admitted his mistakes from the start and regrets immensely that he has ‘stuffed up’”. The fact that the appellant’s referees regarded him well was not thought by the Magistrate to be inconsistent with his behaviour on 14 September 2018. She emphasised that those who commit acts of domestic violence do not necessarily display the same aggressive tendencies in non-domestic settings.
TW gave the Magistrate a victim impact statement. In her statement she spoke of her physical injuries, including a bruise to her right shoulder and scratches next to her left eye and jaw. TW now finds herself suffering from high levels of anxiety and panic attacks, and is fearful of retaliation. Her children’s lives “have been turned upside down”, as they too fear being approached by the appellant.
The Magistrate turned to sentence the appellant. She did not think that the appellant’s bipolar disorder and depression provided any explanation for his behaviour on 14 September 2018. She did not think that he could be sentenced on the basis that he had rehabilitated himself as there was no evidence indicating that he had fully understood the impact of his violence.
Her Honour then said:
Mr Caldicott accepts that imprisonment needs to be imposed at least for the offending on 14 September. He has made every submission he can make urging me to fully suspend that sentence. He suggests that you still need rehabilitation and that for protection of any future partners, and indeed in the best interests of your children, it would be preferable for you to be in the community undertaking programs than in custody.
The most important factor when dealing with domestic violence is deterrence. In your case personal deterrence does need to be weighted fairly heavily and that is because you have assaulted a domestic partner before, and you have not actually learnt from the experience of having a suspended sentence hanging over your head because you have now assaulted a second domestic partner. General deterrence also weighs heavily, particularly where people have a past history of committing domestic violence. Those factors are the most important factors in sentencing you today. Whilst I accept that ongoing rehabilitation is required, the court has provided you plenty of opportunities to gain acceptance and full understanding of your behaviour and that is not a factor that I will give greater priority to than the need for deterrence.
The Magistrate stated that a term of imprisonment was the only appropriate penalty for the 14 September 2018 and 28 July 2019 offending. She continued:
In relation to the resist police matter, you are convicted and there is a fine of $500 together with the relevant costs. In relation to the breach of the intervention order because you did not complete the program, the consequences of not completing the program are taken into account in sentencing you and so there will be a fine of $100 in relation to that matter with a conviction being recorded.
In relation to the sentence to be imposed for the aggravated assault and the damage property, I conclude that the appropriate starting point for the term of imprisonment is a term of imprisonment of 25 weeks. I reduce that by five weeks to allow for the 20 per cent guilty plea reduction. I impose a term of imprisonment of 20 weeks, which is about five months. In relation to the breach of the intervention order on 28 July 2019, after allowing for the guilty plea discount, I impose a term of imprisonment of 12 days. That is to be served cumulatively upon the five month term of imprisonment meaning the total head sentence is five months and 12 days.
I am not prepared to fully suspend that sentence. In my view, deterrence does require you to serve some time in custody, but I am prepared to partially suspend that sentence to yet again provide you with the opportunity to do another program under the auspices of community corrections. I require you to serve two months in custody. The balance of the sentence will then be suspended upon you entering into a bond to be of good behaviour. The length of the bond will be for a period of two years, the amount of the bond $300. … I will place you under the supervision of an officer of community corrections for a period of 11 months. … You are to obey any directions to undergo any counselling and in particular to obey directions to undergo any domestic violence program, psychological counselling or anger management as considered appropriate. …
(Emphasis added.)
Submissions
In relation to ground 1, the appellant conceded that a term of imprisonment was warranted, but submitted that the Magistrate, having found that good reason exists to suspend the sentence, erred in not suspending the whole term of imprisonment and this resulted in a manifestly excessive sentence.
In support of this ground, counsel for the appellant contended that the Magistrate had failed to give adequate weight to the appellant’s favourable personal circumstances, including the positive rehabilitative steps undertaken since the offending, and that the Magistrate placed too much weight on deterrence. He also submitted that the Magistrate had failed to apply, or to have proper regard to, the general principles of sentencing found in s 10 of the Sentencing Act.
Emphasis was given to the purpose of facilitating and enabling community-based non-custodial penalties, particularly suspension, because:
1the prospect of rehabilitation through insight should encourage a sentencing court to suspend;[5]
2the effect on employment and family may permit suspension;[6] and
3a suspended sentence of imprisonment is not “no punishment at all” and may assist rehabilitation because the appellant is at risk of it being “called automatically into effect”.[7]
[5] Vartzokas v Zanker (1989) 51 SASR 277, 279 (King CJ).
[6] G v Police (1999) 74 SASR 165, [44] (Perry J) and Crafter v Police [2001] SASC 336, [13] (Mullighan J).
[7] Elliott v Harris (No 2) (1976) 13 SASR 516, 527 (Bray CJ).
As for grounds 2 and 3 the appellant submitted that the Magistrate erred in failing to consider home detention. Essentially, there were two errors. The first was that the Magistrate erred in law in applying s 71(1)(b) of the Sentencing Act literally. That is to say, the Magistrate determined that she need not consider home detention at all if she was satisfied that some form of suspension was appropriate. Secondly, by partially suspending, and thereby imposing an immediate term of two months’ imprisonment, the Magistrate had “elevated the objective seriousness of [a] home detention sentence [to] a greater magnitude and severity than that of any period in custody of short duration”.
The appellant relied on the then Attorney-General’s second reading speech on the bill that ultimately became the Statutes Amendment (Home Detention) Act 2016 (SA) which first introduced the sentencing option of home detention orders.[8] Counsel submitted that the speech indicated that the home detention regime was intended to preserve flexibility to ensure that sentencing options could be moulded to the circumstances of a particular case. It was also contended that the steps a defendant had taken in the period between offending and sentencing might justify a sentence focused more on rehabilitation than punishment, notwithstanding that the relevant object and subjective features of the offending otherwise precluded a fully suspended sentence. [9]
[8] South Australia, Parliamentary Debates, House of Assembly, 10 September 2015, 2470-2474 (the Honourable John Rau).
[9] Whilst not explicitly addressed, the Full Court of this Court has recently reiterated the extent to which a second reading speech can be used to identify the mischief or purpose of an enactment, see Question of Law Reserved (No 1 of 2019) [2019] SASCFC 149, [16] (Stanley J).
These matters, the appellant submitted, demonstrated that there was a “hierarchy of sentencing options” with an immediate term of imprisonment remaining a matter of “last resort”. Reliance was placed on s 10 of the Sentencing Act. Reliance was also placed upon decisions in this Court before recent amendments to the Sentencing Act which, it was said, demonstrated that “imprisonment on home detention is intended to provide an alternative to custody within a prison”.[10]
[10] R v Dell (2016) 126 SASR 571, [42] (Doyle J). See also R v Filipponi (2016) 126 SASR 464 and R v Hosking (2017) 128 SASR 37.
The notion that there is a “hierarchy” of sentencing options was, it was submitted, reinforced by the observations made in R v Hosking (Hosking):[11]
A home detention sentence involves a higher level of punishment, community protection and deterrence than a suspended sentence of imprisonment. It involves a lower level of punishment, community protection and deterrence than a custodial sentence. A sentence of home detention is an intermediate form of punishment between a suspended sentence and a custodial sentence.
(Footnotes omitted.)
[11] (2017) 128 SASR 37, [59] (Blue J). See also R v Best [2017] SASCFC 55, [49] (Stanley J, with whom Parker and Lovell JJ agreed).
It was emphasised that in Siropoulos v Police (Siropoulos) the question of the interplay between home detention and partial suspension was raised but ultimately abandoned and not resolved.[12]
[12] [2019] SASC 127, [9] (Kourakis CJ).
Finally, the appellant pointed to the absence of any reasons explaining why home detention had been rejected.
For the respondent it was submitted that, as the Magistrate had partially suspended the sentence pursuant to s 96(4) of the Sentencing Act the power to grant a home detention order was not enlivened.[13] Moreover, the respondent contended that the Magistrate was not required to address s 71 of the Sentencing Act regarding the ability to order home detention because, on a literal reading of s 71, the Court had imposed a sentence of imprisonment and considered that the sentence should be suspended under s 96. Accordingly, there was “no ability to consider a home detention order as the necessary preconditions set out in s 71(1)(b) were not met”.
[13] Relying upon cases under the predecessor provisions which are substantially identical to s 71 of the Sentencing Act 2017 (SA), see R v Hosking (2017) 128 SASR 37, [52]-[54] (Blue J); R v Filipponi (2016) 126 SASR 464, [22] (Kourakis CJ) and R v Dell (2016) 126 SASR 571, [43] (Doyle J, with whom Kelly and Parker JJ agreed).
Similarly, the Magistrate was not required to provide any reasons for declining to make the home detention order because the discretion was not enlivened in circumstances where partial suspension was ordered.
Disposition of the appeal
This appeal has been brought pursuant to s 42 of the Magistrates Court Act 1991 (SA) and proceeds by way of rehearing. The sentence imposed by the Magistrate involved the exercise of a discretionary judgment. As such, the circumstances in which this Court on appeal can intervene with the sentence are limited. The approach to be applied is that stated by Gleeson CJ, Gummow Hayne and Callinan JJ in Markarian v The Queen:[14]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King,[15] itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
(Footnote in original.)
[14] (2005) 228 CLR 357, [25].
[15] (1936) 55 CLR 499, 504-505.
Ground 1
Although ground 1 is a complaint that the sentence was manifestly excessive because it was not wholly suspended, this was pressed on the basis that the Magistrate either failed to pay adequate regard to, or placed excessive weight on, various factors relevant to the exercise of the sentencing discretion. These various factors are those to which a sentencing Judge is required to have regard, and which an appeal court will consider when assessing whether a sentence is manifestly excessive. In my opinion ground 1, when distilled to its essence, amounts to a complaint that too much weight was given to deterrence over rehabilitation. It has been held on many occasions that questions of weight do not enliven the appeal court’s authority to intervene.[16] That is, a complaint of inadequate weight or excessive weight given to one or more relevant factors is not an appealable error.[17] As Kourakis CJ explained in Police v Chilton:[18]
It is not an appealable error, in accordance with the principle in House v The King, that a sentencing judge has placed too little or too much weight on one or more of the applicable sentencing considerations. It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways.
(Footnote omitted.)
[16] R v Lutze (2014) 121 SASR 144, [46]-[47], [51] (Vanstone and Parker JJ) and see also Gorladenchearau v The Queen (2011) 34 VR 149, [34] (Maxwell P).
[17] R v Campbell [2017] SASCFC 79, [73] (Vanstone and Kelly JJ); R v Lutze (2014) 121 SASR 144, [46]-[47] (Vanstone and Parker JJ); Goldsworthy v Police [2016] SASC 85, [25] (Stanley J); R v Doolan [2017] SASCFC 80, [27] (Nicholson J, with whom Kourakis CJ and Parker J agreed); R v Skyes [2017] SASCFC 59, [54]-[55] (Parker J, with whom Vanstone and Blue JJ agreed) and Gorladenchearau v The Queen (2011) 34 VR 149, [34] (Maxwell P).
[18] (2014) 120 SASR 32, [17].
And in R v Lutze Vanstone and Parker JJ observed:[19]
… It is very often impossible to discern the relative weight given to a particular factor; and the exercise is rarely profitable.
A submission that the sentencing judge did not give adequate weight to a factor is not, of itself, capable of enlivening the appeal court’s authority to intervene. Such a submission falls short of an assertion that no account was taken of a material consideration. It is not a complaint of specific error. At most, it can form part of a submission that there was manifest error; that is, that only by failing to give adequate weight to the material consideration could the judge have reached a sentence which is so unreasonable or plainly unjust, or, as the High Court recently put it, “outside the permissible range of sentences for the offender and the offence”: Kentwell at [35] …
[19] (2014) 121 SASR 144, [46]-[47].
The appellant did not identify anything in the sentencing remarks which suggests that the Magistrate did not give any weight to, or failed to appropriately apply, s 10 of the Sentencing Act.
Alternatively, to the extent that the appellant’s real complaint is simply that there had been an “outcome error”, in R v Morse King CJ, with whom White and Mohr JJ agreed, explained the approach to determining whether a sentence is manifestly excessive:[20]
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
[20] (1979) 23 SASR 98, 99. See also Hili v The Queen (2010) 242 CLR 520, [59]-[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
As will be seen, because I have concluded that there were process errors, I will have regard to the matters in R v Morse in connection with my deliberation as to whether, in the exercise of my discretion, the appellant should be re-sentenced.
It is therefore unnecessary to separately rule on ground 1.
Grounds 2, 3 and 4
It is convenient to consider grounds 2, 3 and 4 together. It is convenient to do so because the Magistrate appears to have proceeded in accordance with the approach advocated by the respondent, albeit that her reasons do not mention home detention.
By s 19 of the Sentencing Act a court, when sentencing, must “state the sentence that it is imposing … and its reasons for imposing that sentence” albeit that the validity of the sentence is “not affected by non-compliance or insufficient compliance with this section”.[21] The primary purpose of sentencing remarks is to provide a defendant with an explanation for the sentence that is imposed. Other important purposes are to demonstrate that correct principles have been applied so that the defendant and other sentencing courts are appropriately informed, and so that any appeal court is assisted in understanding the basis for the sentence when “performing its appellate function”.[22]
[21] Sentencing Act 2017 (SA), ss 19(1) and (3).
[22] R v Copeland(No 2) (2010) 108 SASR 398, [29] (Gray J) and Tuncks v Chief Executive Officer of Customs [2005] SASC 408, [9]-[10] (White J).
The case put to the Magistrate was one where she ought wholly suspend the sentence of imprisonment or, in the alternative, order that it be served on home detention. The transcript of the argument suggests that the Magistrate may have taken the view that, if she decided to suspend (even partially), then there was no occasion to consider s 71(1) of the Sentencing Act, which is in the following terms:
(1) Subject to this section, if—
(a)a court has imposed a sentence of imprisonment on a defendant; and
(b)the court considers that the sentence should not be suspended under Part 4 Division 2; and
(c)the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may order that the defendant serve the sentence on home detention (a home detention order).
In the absence of any reasons on the topic of home detention, there is necessarily scope for speculation about the reasoning actually undertaken by the Magistrate in this case.
In my opinion, if the Magistrate took the view that she could not even consider home detention because it was open to her to partially suspend the sentence of imprisonment imposed, that approach involved an error of law.
The primary and secondary purposes for sentencing are set out in ss 3 and 4 of the Sentencing Act in terms which, whilst not identical, are not materially different to the observations made by this Court over many years.[23] The primary purpose for sentencing and the general sentencing principles set out in ss 9 and 10 provide a clear hierarchy of considerations, and s 10(2) prevents the imposition of a sentence of imprisonment unless the seriousness of the offence is such that it is “the only penalty that can be justified”, or where it is required to protect the safety of the community.
[23] Webb v O’Sullivan [1952] SASR 65, 66 (Napier CJ) and Yardley v Betts (1979) 22 SASR 108, 112-113 (King CJ).
The cases relied on by the parties regarding the relative roles of suspension and home detention within the “sentencing hierarchy” in this State were all decided under the Criminal Law (Sentencing) Act 1988 (SA) (CL(S)A), and none dealt with partial suspension.
Partial suspension under s 96(4) of the Sentencing Act is only available where the period of imprisonment to which the defendant is liable under one or more sentences is more than three months but less than 12 months. In that event the defendant can be directed to serve not less than one month in prison, with the remainder suspended on condition that the defendant enter into a bond of the kind described in s 96(1) which will have effect on release from prison. The utility of partial suspension was described in Stenecker v Police as follows:[24]
The option of partially suspending a sentence of imprisonment is a very useful sentencing option in that it combines the specific and general deterrent effects of a period of imprisonment with a subsequent period of rehabilitation under supervision in the community. The utility of s 38(2a) of the Sentencing Act has been much enhanced by the capacity to impose a bond which extends beyond the length of the head sentence.
[24] (2014) 120 SASR 18, [14] (Kourakis CJ), cited in relation to the Sentencing Act 2017 (SA) in Siropoulos v Police [2019] SASC 127, [32] (Kourakis CJ).
In Siropoulos the appellant inflicted serious injuries on a former intimate partner and pleaded guilty to assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA).[25] He was sentenced in the Magistrates Court to 14 months’ imprisonment, which was reduced by 40 per cent to eight months and two weeks’ imprisonment for an early guilty plea. The sentence was partially suspended, allowing release after serving four months’ imprisonment upon entry into a bond to be of good behaviour for two years. The ground of appeal which complained that the sentence was manifestly excessive was dismissed. In addition, it was initially contended that the unsuspended portion of the sentence of imprisonment should have been served on home detention. As the Chief Justice explained, this ground was properly abandoned:[26]
An order of home detention for the unsuspended portion of the length of the sentence of imprisonment is precluded by s 71(1)(b) of the Sentencing Act 2017 (SA) … and, by implication, by the words ‘in prison’ in the text of s 96(4) ...
[25] [2019] SASC 127.
[26] Siropoulos v Police [2019] SASC 127, [9].
Nothing in Siropoulos assists regarding the proper approach to the “hierarchy” of sentencing options.
R v Filipponi (Filipponi) concerned a Crown appeal against sentence following a conviction for trafficking in cocaine.[27] The sentencing Judge had declined to suspend a sentence of four years and nine months’ imprisonment, ordering that it be served on home detention. This was done pursuant to the former s 33BB(1), which had permitted the court to “suspend the sentence … and order that the defendant serve the sentence on home detention”.[28] The appeal was allowed because the seriousness of the offending required strong general and personal deterrence, and condign punishment, and these were not met by a home detention order.[29] The Chief Justice emphasised that “some home detention orders will allow a great deal of social mobility and interaction with the community”, and the occasions when a home detention order will be appropriate for long terms of imprisonment will be “limited”.[30] His Honour also considered that in serious cases of drug trafficking, as distinct from cases at “the very lower end”, the purposes of sentencing are “unlikely” to be met by a home detention order where they have operated to preclude a suspended sentence.[31]
[27] (2016) 126 SASR 464.
[28] Section 33B of the Criminal Law (Sentencing) Act 1988 (SA) provided:
33BB—Home detention orders
(1) Subject to this section, if—
(a)a court has imposed a sentence of imprisonment on a defendant; and
(b)the court considers that the sentence should not be suspended under Part 5; and
(c)the court considers that the defendant is a suitable person to serve the sentence on home detention.
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a home detention order).
[29] R v Filipponi (2016) 126 SASR 464, [37]-[43] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed). The starting point had been five years’ imprisonment, reduced by five per cent for a guilty plea, and this was reduced to four years, six months and two weeks’ imprisonment, to reflect the period of home detention, with a non-parole period of two years, nine months and two weeks.
[30] R v Filipponi (2016) 126 SASR 464, [31], [34].
[31] R v Filipponi (2016) 126 SASR 464, [37]-[38].
After referring to the terms of the former s 33BB(1), the Chief Justice then explained:[32]
Subparagraphs (a), (b) and (c) of s 33BB(1) of the Sentencing Act are preconditions on the exercise of the discretion conferred on the Court by the words “may suspend … and order … home detention”. The reason for subpara (a) is self-evident. The purpose of subpara (b) is to ensure that the more onerous obligations of home detention are not placed on persons who would otherwise have received a suspended sentence. That precondition has another consequence: the occasion to impose a home detention order will only arise in those cases in which the balance of circumstances weighs against a finding that there is good reason to suspend the sentence, pursuant to Pt 5 of the Sentencing Act. It follows that home detention will only be ordered in cases in which the incidents of the home detention regime satisfactorily address those considerations which have precluded a suspended sentence. If the major consideration precluding a suspended sentence is general deterrence, fashioning a home detention regime which operates effectively as such may be difficult.
(Emphasis added.)
[32] R v Filipponi (2016) 126 SASR 464, [22].
It is noteworthy that Kourakis CJ described an order for home detention as “more onerous” than a suspended sentence. In context this could only have been a reference to a wholly suspended sentence. There is nothing in Filipponi to support the proposition that the sentencing court cannot consider home detention where partial suspension is in contemplation.
R v Dell (Dell) was another drug case.[33] There a father and son were convicted by a jury of one count of cultivating a commercial quantity of cannabis plants for sale and two counts of trafficking in a large commercial quantity of cannabis. Both received a sentence of three years and six months’ imprisonment with a non-parole period of 18 months. The appeals concerned the refusal by the sentencing Judge to order that the sentences be served on home detention. Doyle J, with whom Kelly and Parker JJ agreed, explained that:[34]
The power to order that a defendant serve their term of imprisonment on home detention is intended to provide an alternative to custody within a prison. A home detention order sits in the sentencing hierarchy between a suspended sentence under Pt 5 and a custodial sentence. That is, it is a more onerous punishment than a Pt 5 suspended sentence of imprisonment, but a less onerous punishment than a custodial sentence.
[33] (2016) 126 SASR 571.
[34] R v Dell (2016) 126 SASR 571, [42].
Again, in context, the reference to suspension was only to a wholly suspended sentence. And, just as Kourakis CJ had explained in Filipponi, Doyle J likewise accepted that the preconditions for the making of a home detention order needed to be established before the “discretion” to make the order “is enlivened”.[35] Before describing this as a “two stage approach”, his Honour said:[36]
Given the terms and structure of s 33BB(1), the discretion to make a home detention order is not enlivened unless and until the Court has determined to impose a sentence of imprisonment on the defendant (s 33BB(1)(a)), and has decided that the sentence should not be suspended under Pt 5 of the Sentencing Act (s 33BB(1)(b)). Once the power is enlivened, the balance of s 33BB(1) provides that if the Court considers that the defendant is a “suitable person” to serve the sentence on home detention (s 33BB(1)(c)), then it “may” make a home detention order. Section 33BB(2) to (4) then set out various matters to which the Court must have regard in determining whether to make a home detention order. Those in s 33BB(2) are in the nature of preconditions to an order being made, preventing the Court from making a home detention order in identified circumstances. Those in s 33BB(3) and (4) are in the nature of matters that must be taken into account, but without necessarily being determinative of whether a home detention order should be made.
In determining whether a home detention order should be made, while the matters in s 33BB(1) to (4) obviously need to be considered, the full range of ordinary sentencing considerations will also be relevant. To the extent this is not otherwise inherent in the nature of the discretion conferred upon the Court, it is made express by the requirement in s 33BB(4)(c) that the Court take into account “any other matter [it] thinks relevant”. Any matter that is relevant to the overall objectives of the sentencing process will be relevant to the determination of whether a home detention order should be made.
[35] R v Dell (2016) 126 SASR 571, [43].
[36] R v Dell (2016) 126 SASR 571, [43]-[44].
Applying the approach taken by Kourakis CJ in Filipponi, particularly the need for general deterrence in trafficking or cultivation offences, the Court dismissed the appeals.[37] Again, there is nothing in these remarks that constrains a sentencing judge to ignore home detention simply because partial suspension, and a period of time in prison, is in contemplation.
[37] R v Dell (2016) 126 SASR 571, [76]-[77] (Doyle J, with whom Kelly and Parker JJ agreed).
R v Hosking was yet another drug case.[38] The appellant had been sentenced to two years and 10 months’ imprisonment with a non-parole period of one year and five months for cultivating a commercial quantity of cannabis, possessing prescribed equipment and interfering with an electricity meter. The complaint on appeal was that either the sentence should have been suspended or that it should be served on home detention. The appeal was dismissed.
[38] R v Hosking (2017) 128 SASR 37.
After referring to Filipponi and Dell, Vanstone J, with whom Parker J agreed, rejected the submission that it was inevitably necessary to determine whether a defendant is “suitable” for home detention:[39]
Naturally, cases will arise where either suspension under either Pt 5 or Pt 3 Div 3A will be quite out of the question, and that will be so without any reference to the suitability of the defendant for a home detention order. That might be because of the necessity for considerations of general and personal deterrence, protection of the public or punishment to predominate.
I do not take the reasons of the Chief Justice in Filipponi or the reasons of Doyle J in Dell to suggest that in every case there will need to be a determination of whether a person is suitable for a Div 3A disposition. Where Doyle J spoke of the first and second stages of the inquiry, I do not take his Honour to dictate a sequence in which the relevant factors must be addressed. Rather, I consider he was making the point that they are separate matters for consideration and each must be addressed before a home detention order is made.
[39] R v Hosking (2017) 128 SASR 37, [8]-[9].
Vanstone J also held that home detention “needed to be considered”:[40]
In the present case the possibility of a home detention order needed to be considered. Having regard to the appellant’s age, prior good record, personal circumstances as put to the Court and his early pleas of guilty, he appeared to be a suitable person to serve the sentence on home detention: s 33BB(1)(c). There were no other prescribed matters which precluded such an order. Counsel who appeared for the appellant before the sentencing judge sought such an order as an alternative to suspension under Pt 5 of the Act. No report on the suitability of the proposed residence was sought.
(Emphasis added.)
[40] R v Hosking (2017) 128 SASR 37, [10].
The Court sought a report regarding the suitability of the proposed premises and the response disclosed that what had been conveyed to the sentencing Judge was a “false picture” of the appellant’s position which “eroded” his claims for a home detention order.[41] Accordingly, and even assuming that there had been an error in approach, the order made was correct.
[41] R v Hosking (2017) 128 SASR 37, [15]-[16].
Blue J, with whom Parker J also agreed, gave lengthy reasons on each of the sentencing options, including home detention:[42]
In the generality of cases in which a head sentence of imprisonment is imposed and there is not good reason to suspend the sentence,[43] the next step usually taken[44] is for the court to determine whether the defendant should serve the sentence on home detention on the basis that the sentence of imprisonment is suspended while the defendant complies with the conditions of home detention.[45]
(Emphasis added.) (Footnotes in original.)
[42] R v Hosking (2017) 128 SASR 37, [53].
[43] A sentence may not be suspended if the sentence is to be served cumulatively on or concurrently with another term of imprisonment then being served or about to be served.
[44] Sometimes no question of home detention arises due to the seriousness of the offence.
[45] Such a sentence is a form of suspended sentence: R v Neal (2017) 128 SASR 20, [62]-[78] (Kourakis CJ, with whom Nicholson and Parker JJ agreed).
Whilst in this passage Blue J suggested a staged approach to determining whether to order home detention, and only then after rejecting suspension, it would be wrong, in my view, to read this as determining the analysis that must be undertaken in all cases. First, his Honour was, of course, referring explicitly to the “generality of cases”.[46] Secondly, and most importantly, the precise issue before me was not in contemplation. Partial suspension was not being considered. Rather, this was a case where suspension was rejected and so home detention was necessarily in contemplation. That last matter, it seems to me, best explains the first passage below:[47]
[46] R v Hosking (2017) 128 SASR 37, [52].
[47] R v Hosking (2017) 128 SASR 37, [54]-[55] (Blue J, with whom Parker J agreed).
The court only considers whether to make a home detention order after it has already imposed a sentence of imprisonment on the defendant and determined that good reason does not exist to suspend the sentence.[48]
Before the court’s discretion to make a home detention order is enlivened, the court must be satisfied of three further preconditions:
1 the defendant is a suitable person to serve the sentence on home detention;[49]
2 the proposed residence is suitable and available for the defendant’s detention and the defendant will be properly maintained and cared for while detained therein;[50]
3 the Department for Correctional Services has adequate resources for the proper monitoring of the defendant while on home detention by a home detention officer.[51]
The first condition is directed to the defendant’s circumstances, including capacity to support himself or herself or be supported in private accommodation and likelihood of compliance with the conditions of home detention.[52] The subject matter of the second and third conditions is likely to be addressed by the home detention report ordinarily sought from the Department.
Once the court’s discretion is enlivened, the paramount consideration is the safety of the community. …
(Footnotes in original.)
[48] Criminal Law (Sentencing) Act 1988 (SA), ss 33BB(1)(a) and (b); R v Filipponi (2016) 126 SASR 464, [22] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed) and R v Dell (2016) 126 SASR 571, [41] (Doyle J, with whom Kelly and Parker JJ agreed).
[49] Criminal Law (Sentencing) Act 1988 (SA), s 33BB(1)(c); R v Filipponi (2016) 126 SASR 464, [23] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed) and R v Dell (2016) 126 SASR 571, [41], [49] (Doyle J, with whom Kelly and Parker JJ agreed).
[50] Criminal Law (Sentencing) Act 1988 (SA), s 33BB(2)(a)(i).
[51] Criminal Law (Sentencing) Act 1988 (SA), s 33BB(2)(b). The use of the word “should” in para (b) in contrast to the word “must” in para (a) suggests that this criterion is more flexible than the two foregoing criteria in para (a).
[52] R v Filipponi (2016) 126 SASR 464, [23] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed) and R v Dell (2016) 126 SASR 571, [49] (Doyle J, with whom Kelly and Parker JJ agreed).
Respectfully, I do not think there is anything in these reasons, when read as a whole, to suggest that a sentencing judge can only contemplate home detention after rejecting partial suspension. In many cases, as Blue J explains, it will be natural to consider less onerous sentencing options before arriving at what the sentencing judge regards as appropriate. For example, as Parker J said in Hosking:[53]
The sentencing judge seems to have concluded that a suspension under Pt 5 and a home detention sentence were both plainly inappropriate under ordinary sentencing principles. However, in light of both the subjective and objective circumstances of the offending that conclusion was by no means as clear as the judge found. For that reason it was necessary on the facts of this case for the judge to consider expressly and separately both of the considerations referred to by Doyle J in Dell. Nevertheless, because of the matters that were later brought to the attention of this Court by the content of the home detention report, the conclusion reached by the judge was correct.
[53] (2017) 128 SASR 37, [93].
The only case cited to me involving partial suspension is Harmer v Police.[54] There the appellant was sentenced by a Magistrate for offences including possessing a knife in a public place, two counts of carrying an offensive weapon and five counts of driving whilst disqualified. There was also an application for a breach of a bond. The appellant was directed to serve 60 days’ imprisonment with the remaining 108 days suspended upon entry into a bond to be of good behaviour for a period of 18 months. The actual complaint was described by Kelly J as follows:[55]
The appellant now complains that the magistrate erred in the application of s 33BB of the Act by failing to consider whether the period of 60 days imprisonment not suspended under the provisions of s 38(2a) of the Act should be served on home detention.
[54] (2017) 127 SASR 320.
[55] Harmer v Police (2017) 127 SASR 320, [5].
This echoes the abandoned submission in Siropoulos. The primary ruling made by Kelly J was that s 38(2a) of the CL(S)A, the precursor to s 96(4) of the Sentencing Act, precluded the making of an order that the unsuspended portion of a sentence be served on home detention.
Nonetheless, s 38(2c) in the CL(S)A provided:
If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant’s ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any other conditions included in the bond, include a condition (a home detention condition) requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:
(a) remunerated employment;
(b) necessary medical or dental treatment for the defendant;
(c) averting or minimising a serious risk of death or injury (whether to the defendant or some other person);
(d) any other purpose approved or directed by the community corrections officer to whom the defendant is assigned,
(and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period).
As to this it was held that s 38(2c) “clearly contemplates and necessarily requires that an offender serve at least one month of the sentence in prison”.[56] Whether that is a correct view of a repealed section which has no counterpart in the Sentencing Act is not in issue before me. What is relied upon is the following passage:[57]
I consider that the scheme of the Act requires the court to consider first whether there is good reason to suspend a sentence of imprisonment under Pt 5. If there is not good reason to suspend a term of imprisonment then the sentencing court may go on and consider whether any term of imprisonment should be served on home detention conditions under the provisions of s 33BB.
[56] Harmer v Police (2017) 127 SASR 320, [28] (Kelly J).
[57] Harmer v Police (2017) 127 SASR 320, [33] (Kelly J).
The appeal was dismissed, in part because the sentencing Judge had specifically adverted to home detention, but rejected it, and also because there was no demonstrable error in partially suspending the sentence.
In my view, this case is not authority for the proposition that home detention need not be considered where partial suspension is in contemplation. Apart from any other reason, the issue of home detention was explicitly considered, but rejected, by the Magistrate in that case.
I have adverted to the process of considering less onerous sentencing options before arriving at an appropriate sentencing option. In my opinion that does not mean that the process becomes mechanical or regimented, or something other than an “instinctive synthesis”.[58] Likewise, it does not mean that the “preconditions” to the enlivening of a discretion to make any relevant order are ignored. What it means is that the sentencing judge will first survey and consider the appropriate and available sentencing options. These options will depend on the circumstances of the particular case including the offending, the offender, the matters mandated by the Sentencing Act and the submissions and evidence before the court. The exercise of the discretion will then focus on the specific requirements of any preferred sentencing option. In many cases this approach to the sentencing hierarchy will not require any detailed consideration, save that adequate reasons for the preferred sentencing option must be given, together with why any key submissions were rejected.
[58] Wong v The Queen (2001) 207 CLR 584, [75] (Gaudron, Gummow and Hayne JJ) and Ryan v The Queen (2001) 206 CLR 267, [33] (McHugh J): “[s]entencing is not a mathematical process. Various factors have to be weighed”.
The terms of s 71(1)(b) prevent a sentencing judge ordering both home detention and suspension. As well, and as was seen in Filipponi, Dell and Hosking, the particular preconditions to the enlivening of a discretion to order home detention must be satisfied. As I have explained, that does not mean that the sentencing judge will latch onto suspension, whether whole or partial suspension, and exclude from all consideration home detention. That will be especially so where partial suspension, and therefore actual imprisonment, is an option.
The sentencing option of partial suspension with at least one month spent in custody does not neatly fit into the “sentencing hierarchy” discussed in Dell and Hosking. In a sense this option “straddles” home detention because it encompasses elements that are at once more onerous and less onerous than home detention. As the cases to which I have referred demonstrate, it will often be appropriate in a case where suspension is in contemplation, whether whole or partial suspension, to also consider home detention. However, that will ultimately depend on the circumstances of any particular case.
It follows that, in the circumstances of this case, and whatever the terms of s 71(1)(b), home detention remained an available sentencing option, particularly given the submissions made on behalf of the appellant.
Indeed, in circumstances where suspension was being urged, and in part acceded to by the Magistrate, it is arguable that home detention necessarily needed to be explicitly considered before imposing any period of actual incarceration. That is, as home detention was, in the particular circumstances of this case, an available sentencing option, the Magistrate needed to have regard to it when surveying the array of sentencing options at her disposal.[59]
[59] R v Dell (2016) 126 SASR 571, [55] (Doyle J, with whom Kelly and Parker JJ agreed).
Nothing in s 71 is otherwise directed at restricting the broad discretion reposed in a sentencing judge to consider, and ultimately to implement, the sentencing package which best meets the objectives and requirements of the Sentencing Act and the circumstances of the offender and the offending.[60] The exercise of that discretion requires that the appropriate and available sentencing options be considered before embarking on the particular pathways laid down by s 71 and s 96 of the Sentencing Act. That approach is consistent with the recognition in R v Dell that there exists a “sentencing hierarchy” in which home detention sits between a suspended sentence and a custodial sentence, and where partially suspending a sentence necessarily requires some period of actual incarceration. That approach is also reinforced by the fact that s 69(1) and s 71(1)(a) now provide that home detention is a “custodial sentence” whereas the former s 33BB(1) provided that a home detention order was a form of suspended sentence.[61]
[60] R v Dell (2016) 126 SASR 571, [44] (Doyle J, with whom Kelly and Parker JJ agreed).
[61] R v Oake (2017) 128 SASR 260, [3] (Vanstone J, with whom Parker J agreed).
Accordingly, the Magistrate erred in law to the extent that she determined that she was foreclosed from considering home detention, and in failing to consider home detention, before settling upon partial suspension of the sentence of imprisonment.
I have emphasised that there is some speculation involved in determining how the Magistrate proceeded. It might be said that it was unnecessary for a Magistrate to expose all of her reasoning in connection with sentencing, and it may safely be assumed that an available option such as home detention was considered but rejected. By contrast, it may be that the Magistrate gave no consideration to home detention because she had determined to partially suspend the sentence. What was done remains unclear. The Magistrate’s failure to address explicitly one of the two key submissions made to her means that this Court on appeal simply cannot say whether home detention was actually considered, but rejected. The decision-making by the Magistrate has not been revealed, and the reasons underpinning that decision-making have not been exposed.
It follows that this is not one of those cases where the appeal court can disregard the omission as an apparent oversight because it must necessarily have been taken into account or because it was unnecessary for the Magistrate to consider every submission and every available sentencing option that might theoretically apply.[62] On the contrary, home detention was central to the case put to the Magistrate on behalf of the appellant and, as a matter of sound sentencing practice, it required explicit consideration in the particular circumstances of this case.[63] That is not to say that the reasons needed to be lengthy. Given the volume of any Magistrate’s list a succinct explanation for rejecting a key submission would have been adequate. However, as I say, no reasons were given on the topic of home detention.
[62] Playford v Police [2017] SASC 26, [24] (Vanstone J) and Mak v Police [2008] SASC 342, [40] (Kourakis J).
[63] R v Robins [2016] SASCFC 55, [22]-[24] (Kelly J, with whom Stanley and Nicholson JJ agreed).
There are, therefore, errors of law which enliven this Court’s authority to intervene.[64]
[64] R v Horstmann [2010] SASC 103, [36] (Kourakis J).
I would accordingly notionally allow appeal grounds 3 and 4. Whether home detention should be ordered (ground 2) is a matter to be addressed in deciding whether this Court should re-sentence in the exercise of its sentencing discretion.
Re-sentencing?
It is accepted that an appeal court may refrain from interfering with a sentence if it thinks that the resulting penalty was appropriate notwithstanding a demonstrated process error, particularly where the same or a higher sentence would likely be imposed.[65] That, however, is a conclusion reached only following an independent exercise of the sentencing discretion, taking into account all relevant matters, including events since the sentence was passed.[66]
[65] R v Horstmann [2010] SASC 103, [38] (Kourakis J).
[66] AB v The Queen (1999) 198 CLR 111, [130] (Hayne J), [104]-[107] (Kirby J) and Kentwell v The Queen (2014) 252 CLR 601, [35]-[43] (French CJ, Hayne, Bell and Keane JJ).
I have already set out at some length the personal circumstances of the appellant, his antecedents and the subject offending.[67] In my view, the essential features are as follows:
1The 14 September 2018 offending was very serious and occurred in the presence of children, causing both the victim and the children serious and ongoing distress;
2The appellant had previously been given leniency for domestic violence, receiving two suspended sentences in 2014;
3Whilst the appellant had mental health issues these did not explain his behaviour in 2018; and
4The appellant had only a mixed response to court-ordered supervision and counselling, and failed to take full responsibility for his offending, in part blaming his victim and children for his criminal conduct.
[67] I propose to set out my preliminary views, which are necessarily subject to whatever further submissions or evidence may be put before me.
In these circumstances the Magistrate was, with respect, perfectly correct to find that the most important factor in this case of domestic violence was deterrence, both personal and general.[68] A sentence of imprisonment was appropriate where the appellant resorted to domestic violence when encountering difficulty and frustration with his daughter and where he had required that his former domestic partner come to his home to collect his daughter. Not only did he fail to exercise self-control at the time, he failed thereafter to recognise and take responsibility for his wrongdoing. As well, the Magistrate was entitled to take an adverse view of the breach of the intervention order.
[68] Deterrance has been said to be of fundamental importance in cases of domestic violence, see R v Saunders [2017] SASCFC 86, [82] (Hinton J, with whom Peek J agreed) and Pasinis v The Queen [2014] VSCA 97, [53], [57] (Neave JA and Kyrou JA).
Indeed, on appeal, it was not suggested that there was any error in the imposition of terms of imprisonment which totalled five months and two weeks after taking into account the appellant’s guilty pleas.
The real issue is whether that sentence of imprisonment ought to have been wholly suspended, partially suspended or served on home detention.
In circumstances where the appellant had already received the benefit of two suspended sentences there are powerful reasons to refrain from wholly suspending the sentence of imprisonment again.
However, it must be remembered that one of the benefits associated with suspension under s 96 is that the sentencing court can impose a bond that has a longer duration than the period of imprisonment imposed and which has, as part of its terms, scope for supervision and the facility to direct counselling so as to assist ongoing rehabilitation. By contrast, conditions that are imposed as part of a home detention order, whilst they can include conditions that facilitate rehabilitation,[69] cannot operate beyond the period of imprisonment imposed.
[69] See s 72(1)(i) of the Sentencing Act 2017 (SA) which provides that a home detention order can include “conditions as the court thinks appropriate and specifies in the order”.
When formulating a sentencing package appropriate for a particular offender the utility of a lengthy bond may well dictate in favour of suspension (including partial suspension) over home detention. That may well be a key feature where the sentencing court takes the view that rehabilitation will be best facilitated by the terms of a lengthy bond.
Whilst it was suggested that this Court could order home detention for five months for the 14 September 2018 offending, and suspend the two-week sentence of imprisonment for the 28 July 2019 offending on condition that the appellant enter into a bond to be of good behaviour, that appears doubtful given the terms of s 96(3)(a) of the Sentencing Act. That prohibits a sentence of imprisonment being suspended if a defendant is being sentenced to a period of imprisonment that is to be served cumulatively on another term of imprisonment.
A further consideration is whether, as part of giving effect to deterrence and the need for condign punishment, actual incarceration is required. Home detention cannot be “partially” ordered under s 71. As the Sentencing Act is presently framed, home detention can only be ordered for the whole term of a sentence of imprisonment. If some period of actual incarceration is thought necessary, then home detention must be rejected in favour of partial suspension.
Imprisonment is, without question in a case such as this, intended to bring home to the community and to the offender that domestic violence will not be tolerated, particularly in the presence of children. The same may be said, in the circumstances of this case, about the breach of an intervention order following domestic violence. As against that, serving a sentence of imprisonment on home detention is, as s 69(1) provides, a “custodial sentence”. The paramount consideration when determining whether to make a home detention order is to protect “the safety of the community”, whether that is the offender’s family in the case of domestic violence, or the “community in general”.[70]
[70] Sentencing Act 2017 (SA), s 69(2).
Importantly, however, by s 71(2) a home detention order “must not be made” if the sentencing court considers that the order “would, or may, affect public confidence in the administration of justice”. That is an important consideration, quite apart from whether the offender is suitable,[71] whether there is a suitable and available residence,[72] and whether there are adequate resources for proper monitoring,[73] together with the other prerequisites for the making of a home detention order.[74] Moreover, when considering home detention the sentencing court must also consider the impact home detention is likely to have on any victim, or any spouse or domestic partner or any other person residing at the residence in which the offender will reside.[75] These considerations are additional to any pre-sentence report and “any other matter the court thinks relevant”.[76]
[71] Sentencing Act 2017 (SA), s 71(1)(c).
[72] Sentencing Act 2017 (SA), s 71(2)(c).
[73] Sentencing Act 2017 (SA), s 71(2)(e).
[74] See ss 70, 71 and Div 7 more generally of the Sentencing Act 2017 (SA).
[75] Sentencing Act 2017 (SA), s 71(3)(a).
[76] Sentencing Act 2017 (SA), ss 71(3)(b) and 71(3)(c).
Whilst the requirements of s 71(3)(c) suggest a focus on the practical effect of home detention, the sentencing court is not confined to practical matters. Together with ss 69(2) and 71(2)(a) the sentencing court must reflect on whether home detention exposes the community generally, and domestic violence victims in particular, to risks to safety. Whilst these are appropriate considerations in this case, the fact that the Magistrate was prepared to partially suspend the sentence suggests that this particular appellant is not now thought to represent any immediate threat. As well, it appears that the appellant has been on bail without incident pending the outcome of this appeal.
Rather, the key considerations, it seems to me, concern the need for deterrence and punishment, balanced by allowance for ongoing rehabilitation. The Court must also consider whether public confidence might be undermined by a home detention order given the need for punishment and deterrence in the circumstances of this case, involving two prior suspended sentences, and a third sentence involving violence and a breach of an intervention order involving a former domestic partner.
As for the appellant’s personal circumstances, I have very little information about the steps taken, if any, since January 2020 to assist with his rehabilitation. I do not have any information on the availability of courses or counselling for his difficulties in managing violence and intimate relationships. I have no clear information about his current work and family circumstances. As I am exercising the sentencing discretion afresh, and required to consider events after January 2020, I propose to stand this matter over for further submissions or evidence on the factual basis for the exercise of discretion. Whether a report into the suitability of the appellant and any proposed home detention premises should be ordered should also be addressed.
Nonetheless, I emphasise that, whether this appeal ultimately succeeds depends on whether, in the exercise of my discretion, I decide to re-sentence the appellant.[77]
[77] Ierodiaconou v Police [2018] SASC 105, [30] (Nicholson J). Should I decide that a harsher sentence is appropriate, convention requires that I give the appellant an opportunity to abandon the appeal, Heal v The Queen (1982) 149 CLR 305, 308 (Gibbs J) and Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, 290 (Kirby P).
I will hear from the parties.
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