Commissioner of Police v Sapwell - [2025] SASC 144

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
COMMISSIONER OF POLICE v SAPWELL
[2025] SASC 144
Judgment of the Honourable Auxiliary Justice Bochner
4 September 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
This is an appeal against a sentence imposed in the Magistrates Court.
On 22 August 2023, the respondent was sentenced to a period of imprisonment of three months and four days. The sentence was suspended on the basis that the respondent enter into a suspended sentence bond for a period of two years. On 1 August 2024, the respondent was apprehended for the offence of driving while under a disqualification. As a result, the appellant applied for the enforcement of the suspended sentence bond entered into on 22 August 2023.
The sentencing magistrate took the period of three months and four days (being the ‘reactivated suspended sentence’) and the period of two months and 24 days (‘the sentence for the 1 August 2024 offending’) and then partially suspended the aggregate of the two sentences.
Held, allowing the appeal:
1.The sentencing magistrate was not the “sentencing court” for the purpose of the reactivated suspended sentence. That sentence had been imposed by a different court. As a result, it was not open to the Magistrate to aggregate that sentence with the sentence for the 1 August 2024 offending so as to give the respondent the benefit of s 96(4) of the Act.

2.The words, “the sentencing court may”, are fundamental in determining the meaning of s 96(4) of the Act. The use of those words limits the exercise of the power found in s 96(4) to the sentencing court. The respondent’s submission that the key focus of s 96(4) is the period of imprisonment for which the respondent is liable to serve under one or more sentences ignores these fundamental words. With respect to the reactivated suspended sentence, the sentencing magistrate was not the sentencing court.

Sentencing Act 2017 (SA) ss 96(4), 114(5), 114(5)(e), referred to.
R v Oake [2017] SASCFC 82; Police v Bicanin [2011] SASC 108, applied.
Fewings v Police [2008] SASC 205, discussed.

COMMISSIONER OF POLICE v SAPWELL
[2025] SASC 144
Magistrates Appeal — Criminal

BOCHNER AJ: This is a prosecution appeal against sentence. The sentence was imposed by the sentencing magistrate on 19 March 2025.
On 22 August 2023, the respondent was sentenced to a period of imprisonment of three months and four days. The sentence related to one charge of driving while under disqualification and three charges of driving while not authorised after a drug driving disqualification. The sentence was suspended on the basis that the respondent enter into a suspended sentence bond for a period of two years. I will refer to this as the ‘August 2023 sentence’.
On 31 July 2024, the respondent was sentenced to a period of imprisonment of one year, 10 months and 25 days for the offence of traffic in a controlled drug. The respondent entered into a suspended sentence bond for a term of two years.
On 1 August 2024, the respondent was again apprehended for the offence of driving while under a disqualification (‘1 August 2024 offence’). As a result of this offence, the appellant applied for the enforcement of the suspended sentence bond entered into on 22 August 2023. On 4 December 2024, the respondent pleaded guilty to the 1 August 2024 offence and admitted that this offending was in breach of his bond.
The sentencing magistrate sentenced the respondent to a period of imprisonment of five months and 28 days. This sentence comprised the period of three months and four days, attributable to the August 2023 sentence, which was activated on the breach by the respondent of the suspended sentence bond, and the period of two months and 24 days for the 1 August 2024 offence. In reaching the sentence of two months and 24 days, the sentencing magistrate imposed a sentence of four months which he then reduced to two months and 24 days on account of the respondent’s guilty plea.
The sentencing magistrate then said the following:[1]
[1]     Police v Sapwell (Magistrates Court of South Australia, Magistrate Jensen, 19 March 2025) 3-4.
The question that now arises is what to do with the five months and 28 days imprisonment that I have ordered. I received detailed submissions including helpful written submissions from your lawyer in relation to the possibility that I might order a home detention sentence for you. I make clear that I do not consider that I have the power to do so. That is consistent with the prosecutions (sic) submission and is founded in the wording of s.71(2)(d) of the Sentencing Act which says;
(d)     a home detention order must not be made if the home detention is to be served cumulatively on another term of imprisonment (other than a term of imprisonment to be served subject to a home detention order), or concurrently with another term of imprisonment then being served, or about to be served, by the defendant.
In that circumstance I therefore turn my attention to s.96(4) of the Sentencing Act, that section reads as follows;
(4)     Despite subsection (3)(a), if the period of imprisonment to which a defendant is liable under 1 or more sentences is more than 3 months but less than 12 months, the sentencing court may, by order—
(a) direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison.
Here the term of imprisonment is five months and 28 days which is more than three months, but less than twelve months.
I have some sympathy for your situation in so far as your ongoing back issues have meant that you need to be prescribed medication and if effects (sic) your everyday life.
I therefore extend to you the leniency of the court in terms of s.96(4). In considering whether to invoke that section I did consider that your breaching offence is the same as the bond for which you have been given the opportunity to be of good behaviour. I am also conscious that the term of the sentence in that bond was three months and four days. However, in the unusual circumstances of your matter, I am prepared to order that you serve one month of the term of imprisonment that I have imposed, being the minimum amount that is allowed by the legislation.
Thus, the sentencing magistrate took the period of three months and four days (‘the reactivated suspended sentence’) and the period of two months and 24 days (‘the sentence for the 1 August 2024 offending’) and then partially suspended the aggregate of the two sentences.
The appellant says that the sentencing magistrate fell into error by treating the reactivated suspended sentence and the sentence for the 1 August 2024 offending as one sentence for the purpose of s 96(4) of the Sentencing Act 2017 (SA) (‘the Act’). In making this submission, the appellant relies on authorities which stand for the proposition that a reactivated suspended sentence and a new sentence must be treated separately and that a reactivated suspended sentence cannot be resuspended.
The appellant does not take issue with the sentence imposed by the sentencing magistrate for the 1 August 2024 offence. It is the resuspension of the August 2023 sentence to which the appellant takes exception. The appellant describes the approach taken by the sentencing magistrate as one “akin to utilising section 26” of the Act.[2]
[2] Commissioner of Police, ‘Written Submissions of the Appellant’, Submission in Commissioner of Police v Sapwell, SCCRM-25-016129, 3 July 2025, 6 [27].
The respondent argues that no error was made by the sentencing magistrate, and that the sentencing magistrate was expressly empowered to accumulate the two separate periods of imprisonment by s 114(5) of the Act. Once the accumulated sentence was between three months and 12 months imprisonment, it was open to the sentencing magistrate to exercise the power conferred by s 96(4) of the Act.
The respondent contends that s 114(5)(e) of the Act allows the sentencing magistrate to direct that a suspended sentence be cumulative on another sentence of imprisonment being or to be served. This offers the sentencing magistrate a clear discretion to accumulate sentences, as the sentencing magistrate did in this case, contrary to the position taken by the appellant.
The respondent argues that, while s 114 does not allow a court to resuspend a period of imprisonment where the earlier suspension has been revoked, it does not prevent a court from exercising the power conferred by s 96(4). Section 96(4) expressly allows part of a sentence to be suspended where the sentence is to be served cumulatively on another term of imprisonment and where the total period of imprisonment is more than three months but less than 12 months.
In this case, the respondent was to serve a period of imprisonment of more than three months, under two sentences. As a result, it was open to the sentencing magistrate to take the approach that he took and partially suspend the period of imprisonment pursuant to s 96(4).
Consideration
In the case of Fewings v Police,[3] Vanstone J described the role of an appeal court in a matter such as this one in the following way:[4]
An appeal against sentence is an appeal against an exercise of the judicial discretion. Leaving aside any question of fresh evidence, the approach to an appeal against sentence by a defendant, whether it is pursuant to s 42 Magistrates Court Act 1991 or s 352 Criminal Law Consolidation Act 1935, is the same. The appellate court will interfere with the sentence only if the exercise of discretion has miscarried in some way, either due to a mistake of law or fact or by reason of the taking into account of some extraneous factor or failing to give consideration to a relevant factor. If the sentence is manifestly disproportionate to the crime, the court will infer that the discretion has miscarried, even though the precise error cannot be identified: Housev The Queen (1936) 55 CLR 499; R v Wilton (1981) 28 SASR 362 per King CJ at 363; Williams v McDonald (1984) 113 LSJS 210 per Cox J at 213. Therefore, on a sentence appeal, such as this, it is not for the appeal court to exercise the decision afresh. Rather, the appeal court must be satisfied that the failure to suspend was erroneous, that the only correct decision the magistrate could have made on the evidence was to suspend: Renshaw v Director of Public Prosecutions (CTH) (1996) 67 SASR 139 per Doyle CJ.
[3] [2008] SASC 205.
[4] Ibid 3 [11].
Appeals brought by the prosecution, however, are dealt with somewhat differently. Nicholson J, in R v Oake,[5] set out the principles to be applied:[6]
[5] [2017] SASCFC 82 (‘Oake’).
[6] Ibid 13-14 [41] – [43].
In R v Young, Blue J provided the following summary of the approach to be adopted with respect to a prosecution appeal against sentence:
On a sentencing appeal by the prosecution, mere establishment of material error by the sentencing Judge is insufficient to justify the grant of permission to appeal. The Court must be persuaded that there are public policy considerations that outweigh the public interest in protecting persons from having their liberty twice placed in jeopardy.
In R v Osenkowski, King CJ (with whom White J agreed) said:
The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
In R v Nemer, Doyle CJ said:
Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence. ... However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case.
In R v Payne, Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ said:
Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained.
(Footnotes omitted)
In the present case the respondent left court having been sentenced to a lengthy period of imprisonment to be served on home detention and having avoided an immediate custodial term. The issue of double jeopardy arises. However, its prejudicial effect on the respondent were permission to be granted and the appeal allowed is substantially ameliorated in this case for a reason I will come to.
Nevertheless, and in any event, the case is one where permission should be granted, first, in order to establish an important principle of sentencing law and, second, to maintain an adequate standard of sentencing where a suspended sentence bond has been breached in a way that is not to be characterised as trivial and does not give rise to proper grounds sufficient to excuse the breach…
(Footnotes omitted)
In this matter, leave to appeal is not required. If it were, I consider that this matter would fall into that category of cases described by Nicholson J, where leave should be granted, in order to uphold an important principle of sentencing law and to ensure that adequate sentencing standards are maintained where a suspended sentence bond has been breached.
I am satisfied that the sentencing magistrate erred in aggregating both the reactivated suspended sentence and the sentence for the 1 August 2024 offending and then applying s 96(4) of the Act. The authorities are clear that a suspended sentence, once revoked, cannot be suspended a second time, and when dealing with a reactivated suspended sentence and a sentence for new offending, the sentences must be dealt with separately. This is made clear by Duggan J in Police v Bicanin,[7] where his Honour said:[8]
Although s 58(3) empowers the court to refrain from revoking the suspension if satisfied that the failure to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, it is clear from the fact that the magistrate revoked the suspensions with respect to each bond that he did not utilise this power. And while s 58(4) allows a court which has revoked a suspension of sentence to reduce the term of the suspended sentence if there are special circumstances justifying it in so doing, there is no power to again suspend the sentence once the suspension has been revoked.
[7] [2011] SASC 108.
[8] Ibid 3-4 [9].
Section 96(4) of the Act provides:
(4)Despite subsection (3)(a), if the period of imprisonment to which a defendant is liable under 1 or more sentences is more than 3 months but less than 12 months, the sentencing court may, by order –
(a) direct that the defendant serve a specified period (being not less than 1 months) of the imprisonment; and
(b) suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.
The sentencing magistrate, however, was not the sentencing court for the purpose of the reactivated suspended sentence. That had been imposed by a different court. As a result, it was not open to him to aggregate that sentence with the sentence for the 1 August 2024 offence so as to give the respondent the benefit of s 96(4).
The respondent has submitted that the key focus of s 96(4) is the period of imprisonment which the respondent is liable to serve under one or more sentences. This ignores the words “the sentencing court may”, which I consider are fundamental in determining the meaning of the section. The use of those words limits the exercise of the power found in s 96(4) to the sentencing court. With respect to the reactivated suspended sentence, the sentencing magistrate was not the sentencing court.
Prima facie, the appeal must be allowed.
Resentence
Following the hearing of the appeal, I invited the parties to file further submissions on the question of resentence, in the event that I found error on the part of the magistrate. Both parties availed themselves of this opportunity.
At the time of the offence on 1 August 2024, the respondent was driving on the Sturt Highway when he was stopped by police. He admitted that he was aware that he was disqualified from driving. He and his wife were driving to Mildura; his wife was driving. She experienced a problem with the car and pulled over. The respondent decided to drive the rest of the way because of the problem with the car.
The appellant submits the 1 August 2024 offence was contumacious. There are no proper grounds on which it can be excused, nor can it be regarded as trivial. Revocation of the suspended sentence would not be disproportionate to the fresh offending and is required by s 114(1)(d) of the Sentencing Act. In addition, it further submits that the 1 August 2024 offending would normally attract a sentence of imprisonment, even when considered on its own.
The appellant submits that, if it is accepted that the reactivated suspended sentence must be served, the Court is not permitted to suspend any sentence for the 1 August 2024 as a result of s 96(3) of the Sentencing Act. This provides:
A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced—
(a) to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; or
…
As a result, the appellant submits that it is appropriate for the respondent to receive a sentence of imprisonment for the 1 August 2024 offence, to be served cumulatively on the reactivated suspended sentence of three months and four days. It acknowledges that credit must be given for the one month already served by the respondent.
The respondent submits that it is open to me to find that there are proper grounds to excuse his breach of the suspended sentence bond, pursuant to s 114(3) of the Sentencing Act. The breach was the result of extenuating circumstances, was atypical, and at the lower end of the range of seriousness.

The respondent submits that the offending cannot be regarded as contumacious. The Magistrate accepted that he had made the decision to drive the car because of his concern that there was something wrong with it. This has not been challenged by the appellant. It is clear that his conduct was the result of the difficult circumstances in which he found himself, rather than because of a total disregard of his disqualification and disobedience to the Magistrate who imposed it.
It is on this basis that the respondent says that there are proper grounds to excuse the breach; equally, it would be disproportionate to revoke the suspended sentence.
The respondent accepts that a sentence of imprisonment will be imposed for the 1 August 2024 offence. He says that it should be reduced to the time already spent in custody. Given the circumstances of the offending, the respondent’s personal circumstances, and the fact that he has already completed the sentence that was originally imposed, there is good reason not to impose any further period of imprisonment.
In the alternative, the respondent says that there are special circumstances which would justify the reduction of the suspended sentence pursuant to s 114(5)(a). The respondent served one month in custody and was then released; because of the appeal in this matter, he has been exposed to double jeopardy. He will suffer substantial hardship if he is returned to custody after being released. As a result, the respondent submits that it is appropriate for the sentences to be served concurrently.
In making this submission, the respondent relies on the fact that he has served one month in custody and was then released back into the community, on the understanding that he had served all of the required time in prison. After a substantial delay caused by the appeal, he is now faced with the prospect of another period in custody, through no fault of his own.
The respondent submits that the time that he has already spent in custody is sufficient to serve as general and personal deterrence. The time spent in custody has had a negative effect on his physical and mental health and his ability to address this has been affected by the appeal. It has also had a significant impact on his personal life.
The respondent submits that he remains committed to rehabilitation. He is undergoing psychological counselling to address the long-term impact of trauma, stress and other issues in his past. He has provided a letter from his general practitioner, who describes the difficulty that he had in obtaining his prescribed medication when in prison.
The respondent submits that any sentence imposed for the 1 August 2024 offence should be served concurrently with the reactivated suspended sentence. This submission is in line with the approach taken by Duggan J in Police v Bicanin.[9]
[9] [2011] SASC 108.
I note that, in addition to the respondent’s submissions, I was also provided with a statement from him setting out the negative impact that further imprisonment would have on him. He says that he suffered a serious deterioration in his physical and mental health during his period of incarceration, and since his release from prison, he has been undergoing treatment to address his chronic back pain and hypertension. Because of the uncertainty caused by this appeal, he has not been able to have several surgical procedures which he requires. He has also been prevented from engaging in other aspects of his life and has suffered financial consequences.
Section 114 of the Sentencing Act relevantly provides:
(1)If the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
…
(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 that the sentence be carried into effect.
…
(3) If 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 on which the failure should be excused, the court may refrain from revoking the suspension and—
…
(b)     in the case of any other bond—may—
(i) extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or
(ii) impose a condition on the bond requiring the probationer to perform a specified number of hours of community service; or
(iii)    revoke or vary any other condition of the bond; and
(c)     if the bond has expired in any case—may require the probationer to enter into a further bond, the term of which must not exceed 12 months.

…
(5) If a court revokes the suspension of a sentence of imprisonment, the court may make any of the following orders:
(a) if it considers that there are special circumstances justifying it in so doing—an order reducing the term of the suspended sentence;
(b) an order directing that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(c) in the case of a probationer whose sentence of imprisonment was partially suspended under section 96(5) and even if the term of the sentence now to be served in custody is less than 12 months—an order fixing or extending a non-parole period taking into account the time spent in custody by the probationer before being released on the bond;
(e)      an order directing that—
(i) in the case of a sentence partially suspended under section 96(4) or (5)—any part of the sentence that the probationer has not served in custody; or
(ii) in any other case—the suspended sentence, be cumulative on another sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
(6) If a court other than the probative court sentences a probationer for the original offence, the court cannot impose a sentence that the probative court could not have imposed.
In Police v Heritage,[10] Blue J provided a helpful analysis of the predecessor to s 114. He said:[11]
[10] [2019] SASCFC 60.
[11] Ibid 5-6, [20] – [23].
The Act was repealed with effect on 30 April 2018 and replaced by the Sentencing Act 2017 (SA) (the current Act). The relevant provisions of section 114 of the current Act are largely identical to the relevant provisions of the Act extracted above.
By reference to the text, context and evident purpose of section 58, it provides that, once the court finds that the probationer has failed to comply with a condition of a suspended sentence bond:
1     The first question to be addressed (where it is a live issue) is whether the court can and should revoke the suspension under subsection (3).
2     The court is only empowered to revoke the suspension if satisfied that:
(a)the failure was trivial; or
(b)there are proper grounds upon which the failure should be excused.
3     If the answer to the first question is no, the court must revoke the suspension.
4     Once the court revokes the suspension, the second question to be addressed (where it is a live issue) is whether the court can and should reduce the term of the original sentence under subsection (4).
5     The court is only empowered to reduce the term of the original sentence if satisfied that there are special circumstances justifying its so doing.
6     The power to refrain from revoking the suspension arises at an earlier stage and involves different conditions and criteria to the power to reduce the term of the original sentence.
7     There is a clear legislative policy that ordinarily a breach of a condition of a bond should result in the offender serving the full term of the original sentence and the court should not lightly interfere by refraining from revoking or reducing the term of the original sentence.
Turning to the meaning of the expression “proper grounds upon which the failure should be excused” in subsection (3), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection (3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach. This follows from a combination of the juxtaposition between the criteria of trivial breach and proper grounds for excusal (the former giving colour to the latter), the concept of “excusal” of the breach suggesting that the circumstances of the breach justify excusal, the legislative policy that ordinarily a breach should result in the offender serving the full term of the original sentence and the contrast between excusing a breach under subsection (3) and reducing the term of the original sentence by reason of special circumstances under subsection (4).
In respect of the expression “special circumstances justifying [the court] reduc[ing] the term of the suspended sentence” in subsection (4), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection (4) that those circumstances comprise new or different circumstances (which will usually if not invariably be personal circumstances) that have arisen or changed since the original sentence was imposed which if they had existed at that time would have justified a reduced sentence.
(Footnotes omitted)
I turn first to the respondent’s submission that I should find that there are proper grounds to excuse the breach. In Police v Cadd[12], Doyle CJ said this of the offence of driving while disqualified:[13]
An offender who is aware that he or she is in breach of the law, who has no substantial excuse for the breach, in effect admits to indifference to the law's requirement in favour of the offender's own convenience. The need to deter others from committing the same offence, and the corrosive effect upon licence disqualification as a punishment of this offence, combine to require severe punishment in such cases unless the law is to be mocked. But the circumstances of the offence and the circumstances of the offender may disclose matters which provide a basis for a less severe approach, quite apart from the relevance of the circumstances of the offender to the question of suspension.
[12] (1997) 69 SASR 150.
[13] Ibid 167.
There can be no doubt that the respondent was aware that his conduct was in breach of the suspended sentence bond. Nor can the respondent’s concerns about the car amount to proper grounds to excuse the breach, given that they did not dissuade him from driving it. Without expressing a view on whether the offending should be characterised as contumacious or not, I am satisfied that the respondent’s reason for driving in contravention of the disqualification cannot give rise to proper grounds to excuse the breach.
Nor can the offending be regarded as trivial. It is in fact the very same offending which gave rise to the suspended sentence bond. Taking into account the seriousness of the offence and the need for both general and personal deterrence, I consider that it is appropriate to revoke the suspension.
I turn now to consider whether there are special circumstances which should lead me to reduce the term of the suspended sentence pursuant to s 114(5)(a). In determining whether special circumstances exist, it is open to me to examine circumstances which have changed since the suspended sentence was imposed. In R v Buckman,[14] King CJ said this about the predecessor to s 114(5)(a):[15]
It is to be remembered that the sentence which is activated is the sentence for the original offence. 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.
[14] (1988) 47 SASR 303.
[15] Ibid 304.
I consider that the respondent has established the existence of special circumstances which justify a reduction in the term of the suspended sentence. In accordance with the sentence imposed by the magistrate, the respondent has spent one month in prison; he was then released on the basis that he had served the entirety of the custodial period of his sentence. Since his release, he has spent a considerable period of time in the community. A return to custody now would cause significant hardship to him.
Were it not for the fact that he has served the term of imprisonment imposed by the magistrate and had been released back into the community some considerable time ago, I would have considered it appropriate to revoke the suspension of the August 2023 sentence and take no other step in relation to it.
In the circumstances, it is appropriate to reduce the term of the suspended sentence to one month. Taking into account the time that the respondent has spent in prison, that sentence has now been served in full.
I turn now to the sentence to be imposed for the 1 August 2024 offence. The 1 August 2024 offence must be considered against the background of his previous convictions for the same offence. Taking this into account, it is appropriate that a sentence of imprisonment is imposed. I consider that the sentence imposed by the magistrate is appropriate, and accordingly, I impose a sentence of four months and 14 days, which I reduce by 30% on account of his guilty plea, leading to a sentence of three months and three days. Given the finding that I have made as to the existence of special circumstances, I consider that it is appropriate, pursuant to s 96(4) of the Sentencing Act to require one month of that sentence to be served concurrently with the sentence that I have imposed in lieu of the August 2023 sentence. I suspend the balance of the sentence upon the respondent’s entering into a bond to be of good behaviour. In determining the length of the bond, I have taken into consideration the respondent’s history of committing this type of offence, and the need for general and personal deterrence. I consider that an 18-month good behaviour bond is appropriate.