Darby v Police - [2009] SASC 394

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DARBY v POLICE
[2009] SASC 394
Judgment of The Honourable Justice Gray
22 December 2009
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - GENERALLY
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Appeal against sentence - defendant and appellant pleaded guilty to charge of assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA) - following disputed facts hearing, defendant sentenced to term of three months’ imprisonment - sentence not suspended - whether sentence of imprisonment manifestly excessive - whether good reason existed to suspend sentence of imprisonment - whether Magistrate erred in finding that disputed facts hearing "compounded" defendant's offending - whether Magistrate erred in finding that victim suffered permanent injury.
Held: appeal allowed - Magistrate erred in finding that disputed facts hearing "compounded" defendant's offending - Magistrate erred in finding that victim suffered permanent injury - defendant resentenced - sentence of three months’ imprisonment appropriate in circumstances - sentence suspended on entry into bond.
Siganto v R (1998) 194 CLR 656; R v Gray [1977] VR 225; Harris v R [1967] SASR 316; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; Dinsdale v The Queen (2000) 202 CLR 321; Wood v Samuels (1974) 8 SASR 465; R v O’Keefe [1969] 2 QB 29; Vartzokas v Zanker (1989) 51 SASR 277; R v Weaver (1973) 6 SASR 265; Webb v O'Sullivan [1952] SASR 65, considered.

DARBY v POLICE
[2009] SASC 394
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
Introduction
The defendant and appellant, Ryan Lennie Darby, was charged with assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA).[1] On 16 April 2009, the defendant pleaded guilty to that charge in the Port Augusta Magistrates Court
[1]    20—Assault
(1)A person commits an assault if the person, without the consent of another person (the victim)—
(a)     intentionally applies force (directly or indirectly) to the victim; or
(b)intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
(c)threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—
(i)the person who makes the threat is in a position to carry out the threat and intends to do so; or
(ii)     there is a real possibility that the person will carry out the threat; or
(d)does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or
(e)accosts or impedes another in a threatening manner.
…
(4)A person who commits an assault that causes harm to another is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 3 years;
(b)for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 4 years;
(c)for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years.
On 4 September 2009, following a disputed facts hearing, the defendant was sentenced to a term of three months imprisonment. That sentence was not suspended. On 7 September 2009, the defendant was granted bail pending appeal, after having spent three days in goal.
Background
The offence occurred at Whyalla on 26 July 2008. At or about 3.00 am, the defendant and his friend, Matt Copeland, were near a taxi rank close to a hotel. Both men were intoxicated. The victim passed the area of the taxi rank in the near proximity of the two men and it was in these circumstances that the assault took place.
According to the defendant, the victim approached the vicinity of the taxi rank and made remarks to the defendant’s friend amounting to slurs concerning obesity. The defendant claimed that these remarks provoked the assault. In the course of evidence, the defendant said:
I heard him say something to Matt and it sounded like he called him fat and Mat [sic], sort of was just like okay, and said ‘F you’ or ‘F off’ and then he said something again and I have taken a swing at him and punched him with my right hand and then he stumbled … and he got up and had a swing at me and I hit him again.
The victim claimed that the attack was unprovoked. According to the victim, having escorted a number of female friends to their taxi some distance away from the hotel, he approached the area of the taxi rank near the hotel. He claimed that he was stopped by a young man who yelled something unintelligible. He described attempting to walk past this man before being attacked by the defendant without any provocation. The statement of the victim before the Magistrate described how the defendant punched him with a clenched fist in the region of the eye with enough force to knock him to the ground. This was followed by two more punches to the face.
Following the assault, the victim attended at the emergency department of the Whyalla Hospital. Some days later, he was assessed by his General Practitioner. He has subsequently been examined by a number of specialist medical practitioners. The victim initially presented with a suspected orbital fracture on the right side of his skull and a suspected fracture of the mandible. A cat scan and several X-rays confirmed the orbital fracture. Later scans found no evidence of a mandibular fracture and no fractures of the remaining facial bones were identified. The orbital fracture required surgery to reduce the herniated orbital contents and elevation of fracture. However, no post-operative problems have been identified. The victim experienced some vision impairment associated with the blow to his eye-socket following the assault, which has subsequently resolved. He has made a full recovery from his injuries.
In addition to the injuries outlined, two teeth were damaged, requiring dental work at a modest cost. A dental report indicated the possibility of future root canal treatment.
Following the disputed facts hearing, the Magistrate summarised the circumstances of the offence as follows:
In this case, I have no doubt at all that
[The defendant’s friend] made an [sic] drunken remark as a result of his desire to have taken the taxi;
The victim approached [the defendant’s friend] trying to understand what he was talking about;
The defendant, in his drunken state, believed the victim had caused his friend to feel hard done by; and
The defendant then punched the victim.
The Magistrate noted the seriousness of the conduct and observed that a sentence of imprisonment was appropriate:
It was appalling behaviour and, notwithstanding any written apology, avoidance of responsibility compounded the appalling behaviour on the night in question. In addition to being punched for no good reason the victim was required to give evidence and subjected to cross examination seeking to both minimise the defendant’s conduct and exaggerate the victim’s role in the events.
It appears to [be] behaviour that calls for imprisonment, the only question being whether or not the sentence is suspended, other people on the streets in the early hours who might be considering getting into altercations after drinking themselves into stupor as well to deter the defendant from doing anything like it again. I will hear from both counsel concerning this.
The Magistrate heard submissions in relation to penalty before sentencing the defendant. Her Honour’s remarks on penalty were provided in the following terms:[2]
As the prosecutor has indicated in his submissions there is a clear need for general public deterrents [sic] as well as deterrents [sic] of the offender and protection for the community from his actions. There also has to be a balance against protection of the community against the actions of others and the need to ensure people do not start taking private vengeance and rehabilitation.
This is a case where a person who has always been seen as [of] good character committed a very serious assault in early hours of the morning after a period of very heavy drinking. The victim of the offence has been left with permanent injuries that required immediate medical intervention and he is still receiving medical treatment for the damage to his eye socket as well as dental treatment.
There are far too many people being injured near the taxi ranks on Friday nights and in the vicinity of the Spencer Hotel and in the vicinity of the Eyre Hotel on Saturday nights those being the late opening nights of those hotels as the prosecutor indicates.
I have regard to the material that is contained in the defendant’s references that have been tendered.
This is [a] case where although there was an early plea of guilty it was offset by the matter being taken to trial over disputed facts in resect [sic] of provocation, and it was clear from the evidence that although the defendant may have felt provoked, the provocation he perceived was more due to his own alcohol consumption than anything said or done by the victim.
In relation to this matter the defendant will be sentenced to 3 months imprisonment not withstanding his previous character.
[2] The remarks provided were in draft form.
The Appeal
On appeal the defendant contended that the sentence of imprisonment was manifestly excessive and that the circumstances surrounding the offence and the defendant’s antecedents should have caused the Magistrate to impose a lesser penalty. It was further submitted that if the sentence of three months imprisonment was appropriate, the Magistrate did not give sufficient consideration to the suspension of that sentence.
Counsel for the defendant drew the Court’s attention to errors said to have been made by the Magistrate. It was contended that the Magistrate’s reasons demonstrated error in characterising the defendant’s avoidance of responsibility as compounding his behaviour. It was contended further that the Magistrate erred when concluding that the victim suffered permanent injury. This was contrary to the medical evidence, which suggested that a full recovery was made.
Counsel for the Police contended that the sentence was not manifestly excessive having regard to the maximum sentence of three years imprisonment, the severity of the offending and the need for general deterrence in light of the prevalence of this type of offending. As a consequence, counsel contended that no error in the exercise of the Magistrate’s sentencing discretion was identified.
It was further submitted that in light of the seriousness of the offence and the need for general deterrence, no good reason existed to suspend the sentence of imprisonment imposed. However, counsel for the Crown conceded that if error on the part of the Magistrate was identified, it would be open to this Court when resentencing to suspend any sentence of imprisonment.
Consideration of the Appeal
As earlier observed, the Magistrate when sentencing, considered that the defendant’s “avoidance of responsibility compounded the appalling behaviour on the night in question”. The Magistrate noted:
…In addition to being punched for no good reason the victim was required to give evidence and subjected to cross examination seeking to both minimise the defendant’s conduct and exaggerate the victim’s role in the events.
Counsel for the defendant contended that the Magistrate impermissibly took into consideration as a matter of aggravation the defendant’s unsuccessful dispute as to facts.
In Siganto[3] the High Court held that a person who pleads not guilty may not be penalised for the manner in which their defence has been conducted by the imposition of a sentence greater than would otherwise be imposed. Gleeson CJ, Gummow, Hayne and Callinan JJ adopted the reasoning of the Victorian Court of Criminal Appeal in Gray:[4]
It is impermissible to increase what is a proper sentence for the offence committed, in order to mark the court's disapproval of the accused's having put the issues to proof or having presented a time-wasting or even scurrilous defence.
[3] Siganto v R (1998) 194 CLR 656 at [22].
[4] R v Gray [1977] VR 225 at 231 as cited in Siganto v R (1998) 194 CLR 656 at [21].
Their Honours went on to emphasise the difference between the mitigatory effect of a guilty plea and the notion of a plea of not guilty as a circumstance of aggravation: [5]
[5] Siganto v R (1998) 194 CLR 656 at [22].
A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.
Later in the joint judgment, their Honours confirmed that the applicable principle is that in Gray as excerpted above:[6]
Equally well established is the proposition enunciated in Gray, above. The same proposition is expressed in Thomas, Principles of Sentencing, as follows:
"A plea of guilty may properly be treated as a mitigating factor, indicating remorse, and will justify a reduction in the sentence below the level appropriate to the facts of the offence; but the defendant who contests the case against him, while not entitled to that mitigation, may not be penalised for the manner in which his defence has been conducted by the imposition of a sentence above the ceiling fixed by the gravity of the offence."
In R v Richmond, Cussen J explained why a sentencing judge is not entitled to treat, as a circumstance of aggravation, the fact that an offender's testimony has been disbelieved. One reason is that even an innocent person may be deterred from seeking to defend himself or herself if it were the case that rejection of the defence case by a jury may result in an increased sentence. Similar considerations apply to the argument presently under consideration. A sentencing judge is punishing an offender for the crime, not for the conduct of the defence case.
There are a number of aspects of the process of criminal investigation, and of the administration of criminal justice, that are likely to cause distress to many victims of crime. Being subjected to cross-examination by defence counsel is one of them; but there are others as well. The very denial of guilt by a person charged may be distressing to a victim, especially if, as not infrequently occurs, it is accompanied by a version of events which is offensive. Distinguishing between a plea of not guilty and the manner of conduct of the defence case is difficult, both in terms of principle and in a practical sense.
…
…The applicable principle is that stated in Gray. To some, it may appear a matter of semantics to distinguish between denying the existence of circumstances of mitigation and asserting the existence of circumstances of aggravation; and judicial statements intended as the former may sometimes be misunderstood as intending the latter. However, the distinction can be important.
[6] Siganto v R (1998) 194 CLR 656 at [30]-[32], [34].
Similarly, in Harris[7] the South Australian Supreme Court held that a defendant may not be penalised for the conduct of their defence. Bray CJ, Hogarth and Mitchell JJ observed:[8]
…Nor indeed in our view could he properly be penalised at all for the conduct of his defence in so far as he denied the offences, caused the girls to endure cross-examination, or ascribed in his statement an obvious motive to them for concocting a false story. Obviously if a man wishes to defend himself against what he claims is a false charge it is, if not essential, at least exceedingly helpful, that he should be able to allege some motive form making a false charge. Finally, when one examines the accused’s statement it is fairly obvious that it is in his own language, at least with regard to the remarks about the girls, and once again we do not think vehemence in the expression of a defence, at least up to the limits reached in this case, should be held against an accused person, even if he is subsequently convicted. It is important that accused persons, many of whom still defend themselves, should not be tongue-tied in the expression of their defence, or be more severely dealt with if they fail to hedge their arguments or their denials with deprecatory disclaimers. And in our opinion the idea should be energetically repudiated that any prisoner has anything to gain by saving the Court trouble or Crown witnesses embarrassment.
On the other hand there is a difference, perhaps more apparent in logic than in practical application, between adding something to what would otherwise have been a normal sentence for the particular crime and refraining from deducting something from what would otherwise have been such a sentence. Contrition, repentance and remorse have always been regarded as mitigating factors, leading in a proper case to some reduction, it may be a considerable reduction, of the normal sentence. One way of manifesting contrition, repentance and remorse is, of course, by a plea of guilty and a full confession. It may be doubted how many pleas of guilty really proceed from such motives. Those which do not, and in particular those which result merely from an acceptance of the inevitable, are not, in our view, entitled to any particular consideration.
[Emphasis added]
[7] Harris v R [1967] SASR 316.
[8] Harris v R [1967] SASR 316 at 328.
The above observations of the High Court and this Court apply equally to the circumstances of a disputed fact hearing. A sentencing Court is not entitled to treat the circumstance of a defendant disputing a fact, as a matter of aggravation in sentencing. A defendant is entitled to put the prosecution to proof and may not be penalised for doing so.
As noted above, at the time of sentencing, the Magistrate observed that notwithstanding any written apology, avoidance of responsibility compounded the appalling behaviour on the night in question. The use of the word “compounded” suggests that the Magistrate treated the defendant’s actions in raising the issue of provocation and pursuing a disputed facts hearing as a circumstance of aggravation. Counsel for the Police pointed to the later reasons on penalty, where the Judge noted that the early plea of guilty was offset by the matter being taken to trial over disputed facts, to suggest that the Judge made no error when assessing the weight to be given to the dispute of facts. However despite the later language of “offset” used by the Magistrate, the use of the word “compounded” indicates that the Magistrate considered that the disputed facts matter exacerbated the defendant’s conduct. Having regard to the observations of Siganto and Harris, this was an error.

It is also to be observed that the Magistrate fell into error when observing that the victim suffered permanent injury as a result of the assault. The medical evidence available indicated that the victim made a full recovery. On the hearing of the appeal, counsel for the Police conceded that no permanent injury was suffered by the victim and that the Magistrate erred in making this finding.
As a consequence of these errors, the appropriate sentence to be imposed on the defendant must be considered afresh.[9]
[9] House v The King (1936) 55 CLR 499 at 504 - 505; see also Markarian v The Queen (2005) 228 CLR 357 and Dinsdale v The Queen (2000) 202 CLR 321.
Resentencing
The defendant was aged 20 years at the time of his offence. Significantly, the defendant was a first offender, with an otherwise unblemished record. At the time of the offence, the defendant was completing his fourth year of an apprenticeship at a local restaurant as an apprentice chef. The defendant currently retains that employment. A positive reference was provided to the Court by the defendant’s employer. The defendant resides with his parents and has a supportive family background. The defendant admitted his offending to the police and entered an early plea of guilty. In addition, the defendant expressed his regret and remorse for his offending in a letter written to the victim. Subsequent to the offending, the defendant has voluntarily undertaken an anger management course. The above matters suggest that the defendant has excellent prospects of rehabilitation. However, the defendant’s antecedents and prospects of rehabilitation must be considered in light of the severity of the offence. As earlier observed, the victim suffered serious, although not permanent injury. The attack was unprovoked and violent. The penalty imposed must adequately address the seriousness of this offence.
Section 11 of the Criminal Law (Sentencing) Act 1988 (SA) provides that imprisonment should only be imposed in certain circumstances:
Imprisonment not to be imposed except in certain circumstances
(1)     A sentence of imprisonment may only be imposed—
(a)     if, in the opinion of the court—
(i)the defendant has shown a tendency to violence towards other persons; or
(ii)the defendant is likely to commit a serious offence if allowed to go at large; or
(iii)the defendant has previously been convicted of an offence punishable by imprisonment; or
(iv)any other sentence would be inappropriate, having regard to the gravity or circumstances of the offence; or
(b)if a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10.
(2)     This section does not apply to a sentence of imprisonment imposed for the enforcement of sentence.
In the circumstances of the present proceedings, a term of imprisonment is the appropriate penalty. Any other sentence would be inappropriate, having regard to the gravity of the offending conduct. As noted, the assault was unprovoked and violent and caused the victim physical injury including a fracture and other damage, requiring time away from work, specialist treatment and surgery.
Although the maximum sentence available for the offence of assault causing harm is three years imprisonment, the three month term fixed by the Magistrate is appropriate having regard to the personal circumstances of the defendant, particularly his young age, previous good character, lack of antecedents and prospects of rehabilitation.
Discretion to suspend
The defendant’s good prospects of rehabilitation militate against an immediate custodial term. Immediate imprisonment should be imposed as a last resort, if the circumstances are such that no other option would be appropriate. An immediate custodial term should not be imposed in circumstances where a suspended sentence would suffice to adequately penalise an offender in accordance with the principles of sentencing. As was observed by Walters J in Wood v Samuels:[10]
[A] suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court’s clemency.
When considering the circumstances in which the imposition of a suspended sentence would be appropriate, Walters J adopted the following observations of Lord Parker in O’Keefe:[11]
It seems to this Court that before one gets to a suspended sentence at all, the court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, should be: is immediate imprisonment required, or can a suspended sentence be given?
[10] Wood v Samuels (1974) 8 SASR 465 at 468.
[11] R v O’Keefe [1969] 2 QB 29 at 32 as cited in Wood v Samuels (1974) 8 SASR 465 at 469.
The utility of a suspended sentence has been oft-discussed. In Vartzokas v Zanker[12] the Full Court reversed the decision of a single Judge of the Supreme Court confirming a Magistrate’s decision not to suspend a sentence of imprisonment imposed on the defendant. In the course of his reasons, King CJ noted that despite the gravity of the offending conduct, suspension of the sentence of imprisonment was warranted:[13]
The offence was undoubtedly serious. Aggravating aspects were the attempt to seduce a girl under the age of consent and the threat which was made when the approach was rebuffed. I suppose that the appellant did not intend any injury to the girl but what he did had the effect of terrifying her and leading to the injuries which she in fact sustained. It was fortunate that they were not more serious. I can well understand why the learned magistrate and the learned judge on appeal took such a serious view of the appellant's conduct.
I bear in mind, however, that this was the appellant's first lapse from good conduct and that he was only 20 years of age at the time. He had a good employment record and there are other positive aspects of his activities which were stressed by his counsel. Since the day of the offence he has resumed his law-abiding habits and has continued to live the life of an industrious and honourable citizen. The day of the offence was a black day in his life. He not only committed the offence in question, but about half an hour later made an approach to another young girl which led to his conviction for offensive behaviour. It is pretty obvious that on that day he was not coping with his sexual impulses.
The appellant's lapse from good conduct, by reason of succumbing to sexual impulses, was confined to a relatively short period of time. Apart from that period of not more than one hour in which both incidents occurred, his life appears to have been exemplary. He appears to have the resources of character to enable him to lead a useful and honourable life in the future. He has already suffered much punishment for his misdeeds. He spent one week in prison and to a young man of his type that would have been a very severe punishment. In addition he has had the anxiety associated with these proceedings and the threat of imprisonment which they involve for some two and three-quarter years. I think that all this amounts to a salutary punishment for his wrongdoing and that this Court is now free to give primary weight to the consideration of his rehabilitation. The degradation of imprisonment and the associations which it entails would only be detrimental to the development of the appellant's character. His employment would be disrupted and he might have difficulty in obtaining future employment. If imprisonment can be avoided, the prospects for his leading a useful and honourable life in the future can only be enhanced. Whilst I am acutely conscious of the seriousness of the appellant's offending and of the need to protect young girls from opportunistic marauders, I am satisfied that the circumstances of the case as they now present themselves to us, justify and indeed demand that the appellant be treated in a non-custodial way.
[Emphasis added]
[12] Vartzokas v Zanker (1989) 51 SASR 277 at 287.
[13] Vartzokas v Zanker (1989) 51 SASR 277 at 279-280.
In Weaver[14] Bray CJ, Mitchell and Sangster JJ made the following observations with regard to the imposition of suspended sentences and the effect of such sentences: [15]
Whenever a young person is before the court, particularly upon his first appearance as an adult, it seems to us that his rehabilitation should be a prominent consideration in fixing the sentence. In the case of this young man the information from Dr. Salter and from the Rev. Mr. Jepson suggests that it is urgent for his establishment as a useful citizen that his treatment should not be interrupted. This is a case in which it is proper that the sentences imposed should be suspended. If, as has been suggested, persons convicted and members of the public take a light-hearted view of a sentence which is suspended then time will, we believe, prove them to be wrong. If the convicted person does not take seriously the warning that any breach of his recognizance during its term will lead to the serving of the suspended sentence, he is likely to appreciate its truth if he is convicted of even a minor offence. The public will learn the truth about suspended sentences only if it takes the trouble to inquire what a suspended sentence really means. In this connection the news media could be of assistance.
[Emphasis added]
The observations of the Court with respect to the seriousness of a suspended sentence are relevant and appropriate.
[14] R v Weaver (1973) 6 SASR 265.
[15] R v Weaver (1973) 6 SASR 265 at 267.
It is to be observed that the media on occasion presents to the public a perception that a suspended sentence is not a real punishment. Often, such a sentence is labelled as a “slap on the wrist”, implying that the defendant being sentenced has not been duly punished or has been given a reprieve from punishment. Such a perception is not accurate. It is misleading.
Defendants who are subject to a suspended sentence are generally placed on a good behaviour bond for some time. Often that bond continues for several years and involves conditions, including the attendance at courses aimed at rehabilitation, such as the control of anger and the treatment of drug and alcohol abuse. A bond may be subject to reporting conditions or supervision requirements. Significantly, a suspended sentence does not remove the ultimate sanction of a custodial term. If a bond is breached during the term of the bond, that suspended custodial term may become effective and the defendant imprisoned. As was observed by Walters J in Wood v Samuels:[16]
From my knowledge of suspended sentences awarded in this Court, I have no doubt that the power of the Judges to suspend a sentence has been exercised judicially. I reject any suggestion that a suspended sentence has been used as a "soft option", or as what might be described as a mere loophole in a case where a Judge has not been quite certain what to do. After all, a sentence of imprisonment, followed by a suspension, remains a sentence of imprisonment (R. v. O'Keefe, per Lord Parker L.C.J. at p. 32; Kennedy v. Spratt, per Lord Reid at p. 91); and an offender dealt with in this way will continue to be at risk, during the period of the suspension, of having his suspended sentence reactivated on reconviction, with the original term unaltered.
[Emphasis added]
[16] Wood v Samuels (1974) 8 SASR 465 at 468.
Despite the fact that a suspended sentence is often incorrectly referred to as a “slap on the wrist” and its imposition labelled as lenient, it is to be observed that the law and the Courts should not be reactive to the inaccurate and misleading reporting which leads to such a perception. A suspended sentence remains a real and effective punishment.
As earlier observed, the seriousness of the defendant’s conduct in the present proceedings was such that a term of imprisonment was warranted. However, in light of the personal circumstances of the defendant, particularly his lack of antecedents and excellent prospects of rehabilitation, an immediate custodial term is not warranted.
The defendant is a young man with a previously unblemished record. He has employment and a stable domestic situation. He has demonstrated insight into his behaviour evidenced by his voluntarily commencing anger management counselling, and he has demonstrated his contrition and remorse, both by his plea of guilty and his letter to the victim. It is also to be noted that the defendant spent three days in prison, which was no doubt a salutary experience for him. An immediate custodial term in these circumstances could potentially disrupt the defendant’s demonstrated progress of rehabilitation. The observations of Napier CJ in Webb v O'Sullivan[17] are apposite; the Court ought not to award the maximum penalty which the offence would warrant, but rather the minimum which is consistent with a due regard for the public interest.
[17] Webb v O'Sullivan [1952] SASR 65 at 66.
In my view, the circumstances of the defendant are such as to give rise to good reason to suspend. In the circumstances, I consider it appropriate to exercise my discretion to suspend the sentence of imprisonment of three months on the defendant’s entry into a good behaviour bond.[18] That bond is to be for a period of two years and the defendant is to be supervised for the first six months. It is a condition of the bond that the defendant undertakes anger management and alcohol and drug abuse courses, and such further courses as may be directed.
[18] Criminal Law (Sentencing) Act 1988 (SA) section 38.
Conclusion
The appeal is allowed. The term of imprisonment of three months imposed by the Magistrate is confirmed. However, that term is suspended on entry by the defendant into a good behaviour bond on the terms outlined above.