Cole v Police

[2015] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

COLE v POLICE

[2015] SASC 83

Judgment of The Honourable Justice Nicholson

2 June 2015

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CUMULATIVE SENTENCES - GENERALLY

Application for permission to appeal, out of time, against a sentence imposed by a Magistrate.  On 12 March 2014, the appellant pleaded guilty in the Magistrates Court to the offences of behaving in a disorderly manner, causing damage to property and two counts of basic assault.  That offending caused the appellant to breach a good behaviour bond entered into on 26 October 2011 with respect to convictions for aggravated assault and damage to property.  The bond supported a suspended sentence of 15 months imprisonment with a non-parole period of seven months.

The appellant admitted the breach of bond on 11 September 2014 and was taken into custody on that day. He was sentenced soon after on 16 September 2014. The Magistrate revoked the suspension and backdated the sentence to commence on 11 September 2014. For the breaching offending, the Magistrate in reliance on section 18A of the Criminal Law (Sentencing) Act 1988, imposed the one penalty for all offences, of nine months imprisonment to be served cumulatively upon the activated sentence of 15 months imprisonment. This resulted in a total head sentence of 24 months imprisonment to commence 11 September 2014. The Magistrate extended the non-parole period by one month to eight months.

The appellant now contends that the Magistrate erred in failing to consider, pursuant to subsection 58(4) of the Sentencing Act, whether special circumstances existed to justify a reduction in the term of the activated sentence. The appellant contends that his recent efforts to pursue drug and other rehabilitation and the delay (through no fault of his) before he began receiving professional help for his various personal issues, warrant a reduction. The appellant submits that the sentence should be set aside and that he be sentenced afresh.

Held: Permission to appeal out of time refused. The Magistrate had proper regard to all of his sentencing options under the Sentencing Act as a consequence of the appellant’s breach of bond, including the discretion to reduce the activated sentence of 15 months imprisonment. In any event, the factors raised by the appellant do not, in this case, constitute special circumstances for the purpose of subsection 58(4)(a). It was well within the Magistrate’s discretion to refuse a reduction of the activated sentence and there is no basis upon which to disturb the sentence imposed. As the foreshadowed appeal has no prospect of success, permission to appeal out of time is refused. However, the form of the Magistrate’s sentence is varied so as to comply with the requirement that an activated suspended sentence cannot be backdated. The nine month sentence is backdated to commence 11 September 2014 and the activated sentence of 15 months is to operate cumulatively on that sentence.

Summary Offences Act 1953 s7; Criminal Law Consolidation Act 1935 s20 s85; Criminal Law (Sentencing) Act 1988 s18A, s19B, s32, s58; Supreme Court Civil Rules 2006 r281; Offenders Probation Act 1913 s9; Correctional Services Act 1982 s66, referred to.
Griffiths v The Queen (1977) 137 CLR 293; Legg v SA Police Prior J, 6 September 1994, Judgment No S4760 (unreported); R v Teague [2007] SASC 65; Police v Warren [2000] SASC 285; R v Gannon [2009] SASC 73, considered.

COLE v POLICE
[2015] SASC 83

Magistrates Appeal:  Criminal

NICHOLSON J.       

Introduction

1. This is an appeal, filed out of time, against a sentence imposed by a Magistrate.  The appellant was charged, by information dated 1 March 2013, with the offences: behaving in a disorderly manner;[1] causing damage to property;[2] and two counts of basic assault.[3]  All of the offences were committed while the appellant was at the Hampstead Hotel in Collinswood on the evening of 28 December 2012.

   [1] Contrary to subsection 7(1)(a) of the Summary Offences Act 1953, the maximum penalty for which is a fine of $1,250 or imprisonment for three months.

   [2] Contrary to subsection 85(3) of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for ten years.

   [3] Contrary to section 20 of the Criminal Law Consolidation Act 1935, the maximum penalty for each of which is imprisonment for two years.

2. On 12 March 2014, the appellant entered pleas of guilty in the Holden Hill Magistrates Court.  The appellant’s offending caused him to breach a bond to be of good behaviour entered into on 26 October 2011 following his convictions for the offences of aggravated assault and damage to property.  The bond supported a suspended prison term of 15 months with a non-parole period of seven months.  An application for enforcement of the bond was laid by the police on 9 April 2014.

3. On 11 September 2014, the appellant admitted the breach of the suspended sentence bond following which his then counsel made detailed submissions as to penalty.  Various letters of support and medical reports were provided in aid of those submissions.  The Magistrate adjourned the matter to enable him to further consider the submissions and supporting materials.  However, his Honour revoked the appellant’s bail and he was taken into custody.

4. The appellant was sentenced on 16 September 2014.  After refusing an application for a so called “Griffiths” remand,[4] the Magistrate delivered reasons revoking the suspension of the appellant’s earlier sentence and backdating its commencement to 11 September 2014, being the date the appellant was taken into custody.[5]

   [4]    Griffiths v The Queen (1977) 137 CLR 293 but see now the power to defer sentence for the purpose of allowing a defendant to demonstrate rehabilitation and for other purposes provided for by s19B of the Criminal Law (Sentencing) Act 1988.

   [5]    This was an error by the Magistrate although not one the subject of the appeal.  An activated suspended prison sentence cannot be backdated, Legg v SA Police, Prior J, 6 September 1994, Judgment No S4760 (unreported); R v Teague [2007] SASC 65 at [50].

5. In relation to the breaching offences, the Magistrate relied on section 18A of the Criminal Law (Sentencing) Act 1988 to impose a single sentence of imprisonment for nine months[6] to be served cumulatively upon the activated sentence of 15 months imprisonment.  This resulted in a combined head sentence of 24 months imprisonment which the Magistrate also ordered was to commence on 11 September 2014.  His Honour extended the non-parole period of seven months to eight months.[7]  The appellant was also convicted without penalty on a charge of providing false details to police on 23 June 2013.

   [6]    The Magistrate started at 12 months but allowed a discount of 25 per cent on account of the appellant’s pleas.

   [7] Pursuant to subsection 32(1)(b) of the Criminal Law (Sentencing) Act 1988 where a person sentenced to a term of imprisonment is already subject to a non-parole period, the Court must review the non-parole period and extend it by such period as the Court thinks fit.

6. By notice of appeal filed 27 March 2015, the appellant has sought permission to appeal against the sentence activated as a result of his breach of bond. The appeal is brought on the one ground; that the Magistrate erred in failing to consider whether special circumstances existed to justify a reduction in the term of the suspended sentence, in accordance with subsection 58(4)(a) of the Criminal Law (Sentencing) Act.  The appellant contends that the sentence should be set aside and that he be resentenced.

   Factual basis for the breaching offences

7. The appellant is 32 years of age. On the evening of 28 December 2012, he was drinking at the Hampstead Hotel in Collinswood.  By about 8.30pm he had become grossly intoxicated and was behaving in a disorderly manner, yelling obscenities and being generally loud and obnoxious.  At one point he spilt his drink and demanded a refund from the barman.  After the barman refused, the appellant began throwing beer glasses at him, one of which struck the barman in the forearm causing a large cut.  The appellant proceeded to throw and break a tray full of beer glasses.

8. The police were called and hotel staff and security attempted to detain the appellant until they arrived.  The appellant violently resisted, biting one of the security officers on the hand.  The police arrived a short time later and, after obtaining information as to what had transpired, arrested the appellant and conveyed him to the Holden Hill holding cells. Given the extent of the appellant’s intoxication, an interview was not conducted. 

9. The appellant was charged as earlier described.  The charge of property damage was in relation to the beer glasses the appellant destroyed at the Hotel which were valued at approximately $200.  The two assaults related to the incidents in which the appellant struck the barman with a beer glass and bit the security officer’s hand.  The latter assault did not result in any substantial injury.  However, the victim of the glass-throwing incident still had a piece of glass embedded in his forearm at the time police arrived. 

   Factual basis for the earlier suspended sentence offences

10. This offending occurred in August 2010 and was very serious offending. The victim was the appellant’s former domestic partner.  She had spent the evening of 27 August 2010 at a friend’s place after having received various unsolicited visits and text messages from the appellant.  When the victim returned home the next morning she found the appellant in her bed.  As she tried to leave the appellant grabbed her and pinned her down on the bed.  He placed his hands around her neck and strangled her until she lost consciousness.

11. After the victim regained consciousness, she sent a text message to the appellant’s mother who came and collected him from the house.  However, in the following days the appellant continued to send text messages to the victim and, on 30 August, he returned to her home and caused damage to the front and rear windows of her motor vehicle.  Police were called and the appellant was arrested later that day.

12. The appellant, ultimately, pleaded guilty in the Magistrates Court to the offences of aggravated assault and property damage.  A sentence of 15 months imprisonment was imposed but suspended upon the appellant entering into a good behaviour bond for a period of two years with a condition of supervision for the first eight months.  It was approximately 14 months into the period of the bond when the appellant, on 28 December 2012, committed the breaching offences.

    The notice of appeal

13. The notice of appeal was filed on 27 March 2015, some five months or so beyond the period within which such an appeal is to be commenced, as prescribed by rule 281 of the Supreme Court Civil Rules 2006. An extension of time is therefore required.

14. The basis on which the appellant seeks an extension is deposed to in an affidavit sworn by him on 30 March 2015.  The appellant initially gave instructions to his lawyer by telephone from prison that he did not wish to appeal.  However, at the time of giving those instructions he was taking medication for depression, as prescribed by the prison authority.  The medication, combined with the stress of his incarceration, prevented him from thinking clearly at the time he elected to forgo an appeal.  After he ceased taking the medication, he was able to consider his position with greater clarity.  He thereupon resolved to pursue an appeal and advised his lawyer to this effect on 24 February 2015.

15. In Police v Warren[8] Gray J helpfully  summarised the principles which will guide the Court when considering an application to extend time to appeal.

    [8] [2000] SASC 285 at [16].

    (1) The discretion exists for the sole purpose of doing justice between the parties.[9]

    (2) Some material must be advanced upon which the court can exercise its discretion.[10]

    (3) There is an obligation to explain with frankness and candour the reason for delay.[11]

    (4) The longer the delay the more exceptional or substantial the explanation required.[12]

    (5) If no sufficient grounds of appeal are disclosed an extension will not be granted.[13]

    (6) The court is not obliged to consider the merits in detail.[14]

    (7) The court will consider whether any substantial grounds exists for apprehending a miscarriage of justice.[15]

    (8) Absent satisfactory explanation about delay an applicant is still entitled to an extension if otherwise there will be a miscarriage of justice.[16]

    [9]    Hughes v National Trustees Executors & Agency Co of Australasia [1978] VicRp 27; [1978] VR 257; Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479.

    [10]   Ratnam v Cumarasamy (1964) 3 All ER 933 at 935.

    [11]   Hall v The Nominal Defendant [1966] HCA 36; (1967-68) 117 CLR 423 at 435.

    [12]   R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; R v Armstrong (1983) 35 SASR 356

    [13]   R v Trotter (1979) 22 SASR 64.

    [14]   Jackamarra v Krakouer [1998] HCA 27; (1998-99) 195 CLR 516.

    [15]   Gikas v Police (1999) 202 LSJS 301 at 306.

    [16]   Gikas v Police (1999) 202 LSJS 301 at 306.

16. It is not necessary in this case that I embark upon an enquiry into each of these principles.  There is no suggestion that the Crown has been prejudiced or embarrassed by the appellant’s delay in bringing his appeal.  Ultimately, the question of whether or not permission to appeal out of time should be granted will turn on the merits of the appellant’s arguments on appeal, in particular, whether the refusal of an extension of time would lead to a miscarriage of justice.

    The issue on appeal

17. The orders potentially available to the Magistrate following the breach of the suspended sentence bond were as provided for by section 58 of the Criminal Law (Sentencing) Act 1988.  They include the following.[17]

    [17]   I have not reproduced provisions which allow for alternative courses of action that plainly are not appropriate to or available with respect to the terms of the appellant’s bond.

    58—Orders that court may make on breach of bond

    (1)Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court— 

    (a)     may, if the bond requires the probationer to pay a sum in the event of non-compliance with a condition of the bond, order that the probationer pay the whole or a part of that sum;

    (b)     ... ;

    (c)     ... ;

    (d)     if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order the sentence be carried into effect.

    (2)... .

    (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; and

    (b)     may—

    (i)—

    (A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or

    (B)... ; or

    (C)... ;

    (D)revoke or vary any other condition of the bond; or

    (ii)... .

    (4)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;

    (b)     ... ;

    (baa) ... ;

    (ba)   ... ;

    (c)     may direct that—

    (i)... ; or

    (ii)in any other case—the suspended sentence,

    be cumulative on any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.

    (5)... .

18. The appellant’s sole argument on appeal is that the Magistrate erred by limiting his consideration of the options available to him under section 58 to whether or not there were proper grounds, under subsection 58(3)(a), to excuse the breach. The Magistrate’s refusal to find proper grounds has not been challenged. However, the appellant contends that upon finding that no proper grounds existed, the Magistrate failed to undertake the further necessary enquiry under subsection 58(4)(a) as to whether there were special circumstances justifying a reduction in the activated sentence of 15 months imprisonment.

    Consideration

19. If a court decides that a breach of bond is not to be excused it must go on to consider whether special circumstances exist justifying a reduction in any suspended prison sentence to be activated.  It will be an error of law not to do so.[18]  With this in mind, I turn to consider the sentencing remarks delivered by the Magistrate on 16 September 2014.  His Honour commenced by summarising, in some detail, the nature of the appellant’s breaching offending and the earlier offending underlying the suspended sentence.  The Magistrate also had regard to the appellant’s offender history which included a conviction before the Youth Court in 1998 on a charge of assault occasioning actual bodily harm and at least one prior conviction for breach of bond.  The Magistrate noted that whilst the appellant was not to be punished for his previous offending, it was a relevant factor to be taken into account in sentencing. 

    [18]   See generally R v Gannon [2009] SASC 73 at [30]-[33].

20. The Magistrate had regard to the significant steps taken by the appellant in addressing his substance abuse and mental health issues, as demonstrated by the medical reports made available.  The Magistrate noted that the appellant had been engaging with various support services provided by Drug & Alcohol Services South Australia and was trying to overcome his various problems, including an addiction to amphetamine use.  Reference was made to a letter from the appellant’s parents, which spoke of the change both had seen in their son since he had begun receiving professional help.  The Magistrate also noted a submission from counsel to the effect that the appellant was now leading a healthier and more active lifestyle which had put him in a “much better place” than when he committed the offending in December 2012.

21. Having summarised the various rehabilitative steps taken by the appellant, the Magistrate made the following prefatory remarks:

    I take all of those matters into account. I make it abundantly clear that there is much that can be said for the defendant’s efforts in recent times to improve himself and rehabilitate himself. I remind myself of all the matters I need to take into account pursuant to section 10 of the Criminal Law Sentencing Act. I am aware of all my various sentencing options, including options pursuant to section 58 in relation to the application before me to breach the suspended sentence.[19]

    [19]   Police v Cole, Magistrates Court of South Australia, MCCHL-14-1445, Remarks on Penalty, 16 September 2014 at [22] (emphasis added).

22. The Magistrate then canvassed a submission by counsel for the appellant that, notwithstanding the nature of the breaching offending, he ought to find proper grounds upon which to excuse the breach of the suspended sentence pursuant to subsection 58(3)(a) of the Sentencing Act.  Although he expressed approval with respect to the significant steps taken by the appellant, his Honour dismissed this submission on the following basis.

    At the end of the day I do think this matter could be said to be finely balanced. It may be that some of my colleagues would be prepared to adopt a different approach. I repeat, there is much that can be said, and has been said on behalf of the defendant. Notwithstanding everything that has been said upon the defendant’s behalf, I am not satisfied proper grounds exist upon which the breach of bond can be excused…

    I repeat, in my view, notwithstanding everything that has been put on his behalf I am not satisfied proper grounds exist upon which to excuse the breach, and consistent with that, I am of the view that the only appropriate penalty for his offending on 28 December 2012 is an immediate period of imprisonment. Even when I consider everything that has been put for the defendant, and I balance the circumstances of his offending with his personal circumstances, (which includes his recent efforts at rehabilitation) I am not satisfied good reason exists to suspend the period of imprisonment.[20]

    [20]   At [27]-[28].

1. The Magistrate proceeded to sentence the appellant.

   In my view, the most appropriate way to reflect the steps that he has taken in recent times is to fix what I consider to be a merciful non-parole period. Given matters personal to the defendant I consider a much lower than might otherwise be the case non-parole period is appropriate in all the circumstances. 

   I order that the 15 months imprisonment that was previously suspended be hereby revoked and I order that commence from 11 September 2014 when the [appellant] went into custody. In relation to his offending on 28 December 2012, I intend to utilise section 18A of the Sentencing Act. My starting point for those four offences would have been twelve months imprisonment, and I give him 25% discount for his guilty pleas, and so the one penalty for those four matters will be 9 months imprisonment which I order to be cumulative to the 15 months. That is a head sentence of 24 months which I order commence from 11 September 2014.[21]

   [21]   At [29]-[30].

2. The appellant submits that whilst the Magistrate paid close attention to his rehabilitative efforts when addressing whether proper grounds existed for excusing the breach, his Honour had no regard to those efforts when determining whether special circumstances existed such as to warrant a reduction in the length of the activated sentence pursuant to section 58(4)(a) of the Sentencing Act.  The appellant went further and contended that the Magistrate failed to turn his mind altogether to the question of whether special circumstances did in fact exist.

3. In R v Buckman[22] King CJ explained the meaning of “special circumstances” as that term was employed in a progenitor provision, [23] which, in all material respects, is replicated by the terms of subsection 58(4)(a) of the Sentencing Act.  His Honour’s explanation has generally been adopted as applicable to subsection 58(4)(a).

   The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper. Subsection (6) exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.[24]

   [22] (1988) 47 SASR 303.

   [23]   Offenders Probation Act 1913, subsection 9(6).

   [24]   At 304.

4. The Magistrate, in his reasons, did not expressly address the potential application of subsection 58(4)(a).  The main thrust of the Magistrate’s reasons is directed towards dealing with the submission of counsel that the appellant’s breaching offending should have been excused on the basis of proper grounds.  However, I am not persuaded that the Magistrate did overlook the potential application of subsection 58(4)(a).

5. Section 58 provides for a number of alternative courses where a bond is breached. Those of potential relevance to the particular form of the bond in this case are those in the extract from section 58 set out earlier. In the circumstances of this case it was always highly unlikely that the Magistrate would find the breach trivial or that there were proper grounds upon which the appellant’s failure to comply with the bond might be excused. It was in this context that the Magistrate stated “I am aware of all my various sentencing options, including options pursuant to section 58 in relation to the application before me to breach the suspended sentence.”

6. The Magistrate specifically referred to “options [plural] pursuant to section 58.” On the facts of this case, the only realistic options were to activate or not to activate the sentence and, having determined to active the sentence, to consider reduction under subsection 58(4)(a). The Magistrate did expressly reflect on the appellant’s rehabilitative steps a second time, and after having decided to revoke the suspension, when his Honour expressed his reasons (at [23] above) for modestly extending the non-parole period from the existing seven months to eight months.

7. When the Magistrate’s reasons are considered as a whole, I am satisfied that his Honour was alive to the power available under subsection 58(4)(a) as one of “the options pursuant to section 58” but decided that the approach of providing a lower than usual non-parole period, rather than reducing the head sentence, was the appropriate response to the personal considerations.[25]  This approach was open to the Magistrate.  Indeed, it made good sense in that it meant that the appellant would have a significant period in the community under supervision on parole which would further assist his rehabilitative efforts.

   [25]   I do not mean to suggest that these were alternatives; the Magistrate could, of course, have done both.

8. Furthermore, for the reasons I discuss below, the matters relied on by the appellant should carry little, if any, weight in this case with respect to the question of special circumstances under subsection 58(4)(a).  As such, it is not surprising that the Magistrate, being alive to the discretion available under subsection 58(4)(a), chose not to exercise it.  It was open to him to so choose.

9. In short, I am satisfied that the Magistrate was alive to and sufficiently attended to the discretion available under section 58(4)(a). For this reason, I would dismiss any appeal.

10. If I am wrong and the Magistrate did err in not properly considering the potential application of subsection 58(4)(a), it would be appropriate for this Court to resentence in this matter rather than remitting it for resentence before another Magistrate.  In the circumstances, if sentencing afresh, I would not come to a result any different from that reached by the Magistrate.

11. The appellant’s breaching offending involved two offences of violence and followed a very serious episode of violent offending in 2010 for which he received the suspended sentence.  The appellant has a demonstrated propensity for channelling his emotions in a manner that risks serious harm to, and jeopardises the safety of, others in the community.  He is to be commended for his recent efforts in pursuing self-improvement.  However, I would not regard those efforts as carrying much, if any, weight as a special circumstance for the purpose of subsection 58(4)(a). As was explained by King CJ in Buckman, special circumstances for this purpose are limited to circumstances that have arisen subsequent to a suspended sentence being imposed which, had they been known by the sentencing judge, would have resulted in a lower sentence.  It is a curious notion that the appellant’s later active pursuit of rehabilitation is a circumstance that, had it been known at the time of sentence that it was to occur, would have encouraged the sentencing Magistrate to order a suspended sentence of less than the 15 months in fact ordered. 

12. Central to the Magistrate’s thinking would have been a fervent hope, if not an expectation, that the appellant would seek to benefit from the leniency of a suspended sentence by taking steps to get his life back on track.  That was a central purpose underlying the suspension and the bond to be of good behaviour.  The appellant’s rehabilitation efforts and successes were relevant to the question of proper grounds not to revoke and to the question of extending the non-parole period.  However, in my view, they have little, if any, relevance to the discretion under subsection 58(4)(a).  The fact that the appellant did what was expected of him and took steps towards rehabilitation, whilst commendable, does not in this case form a sound basis on which to revisit the sentence originally imposed.

13. There was a further aspect to the appellant’s submission regarding special circumstances.  Counsel referred to the fact that after being sentenced for his original offending in October 2011, the appellant was not referred to Drug & Alcohol Services South Australia for assessment until 19 March 2012.  As a consequence, the appellant’s path to rehabilitation did not begin to take shape until some six months into the eight month period of supervision stipulated by his suspended sentence bond.  The appellant submitted that had the Magistrate known that the prescribed period of supervision would have proven to be ineffective and had the Magistrate been fully aware of the depth of the personal problems faced by the appellant, a different sentence would have been constructed.  Again, to my mind, these circumstances are not such as to render the length of the suspended sentence inappropriate.  It is unfortunate that the appellant did not begin receiving professional help until very late in his period of supervision.  However, that is not a basis on which to reduce the length of the suspended sentence.  If anything, the answer to that concern would be to have ordered a longer term of supervision.

14. In sentencing for the appellant’s breach of bond, it is clear that the Magistrate chose to reflect the significant strides taken by the appellant in terms of personal rehabilitation by setting a relatively low non-parole period of eight months (an increase of only one month on the suspended non-parole period).  As earlier noted, it would appear that the Magistrate was of the view that the appellant’s continued rehabilitation would benefit from a reasonable period of supervision on parole.[26]  It was well within the discretion available to the Magistrate to refuse a reduction of the activated sentence of 15 months imprisonment.  As earlier indicated, I would not sentence any differently.

    [26] It is to be noted that, because the two assault offences each constitute an “offence of personal violence” as defined in section 66(3) of the Correctional Services Act 1982, the appellant does not enjoy an automatic right to release on parole; see generally section 66 of the Correctional Services Act 1982.  The appellant’s non-parole period has now expired.  According to his counsel an application for parole is to be considered by the Parole Board on 4 June 2015.  If the application is successful, the appellant will not be released before 11 June 2015.

    Conclusion

15. The appeal has no prospect of success.  As such, a refusal of permission to appeal out of time would not cause a miscarriage of justice.  I refuse the application to extend the time within which to appeal. 

16. However, I should correct the form of the Magistrate’s sentence.  His Honour ordered that the activated sentence of 15 months be backdated to commence 11 September 2014 with the nine month sentence for the fresh offending to operate cumulatively.  As earlier indicated,[27] an activated suspended sentence cannot be backdated. However, the appellant is entitled to credit for the period of time spent in custody prior to being sentenced. In reliance on the power available under section 58(4)(c)(ii) (see earlier), I order that the Magistrate’s sentence be varied so that the nine month sentence is to be backdated to 11 September 2014 and the activated suspended sentence of 15 months is to operate cumulatively on that sentence. In all other respects, the Magistrate’s orders remain unchanged. I will hear the parties with respect to any consequential matters.

    [27]   See fn 5.