Director of Public Prosecutions v Sheehy - [2012] SASC 152

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DPP v SHEEHY & ORS
[2012] SASC 152
Judgment of The Honourable Justice Kelly
4 September 2012
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - POWER TO BRING APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - AFFRAY, RIOT, UNLAWFUL ASSEMBLY AND LIKE OFFENCES - AFFRAY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - GENERAL PRINCIPLES
Crown appeal against sentence imposed by Magistrate - respondents pleaded guilty to one count of aggravated affray, contrary to s 83C(1) of the Criminal Law Consolidation Act 1935 (SA) - Magistrate sentenced all respondents to a head sentence of imprisonment for four months, reduced from six months on account of the respondents’ pleas - two of the respondents received an immediate custodial penalty, one respondent received a partially suspended sentence upon entering into a bond for three months, and the balance of the respondents received a wholly suspended sentence upon entering into a bond for 12 months - where circumstances of offending serious, and in context of revenge attack - whether sentence manifestly inadequate - discussion regarding prosecution appeals against sentence - discussion regarding the courts' approach to revenge taking - discussion of principles regarding suspended sentences of imprisonment.
Held: appeal allowed - offence was a serious one of its type - sentence was so low as to shock the public conscience - sentences imposed by Magistrate set aside and respondents resentenced.
Magistrates Court Act 1991 (SA) s 42; Criminal Law Consolidation Act 1935 (SA) s 83C, s 340, referred to.
R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; R v Nemer (2003) 87 SASR 168; R v Harkin (2011) 109 SASR 334; R v Menzies [2012] NSWSC 158; Dinsdale v The Queen (2000) 202 CLR 321, applied.
R v MacGowan (1986) 42 SASR 580; Elliott v Harris (No 2) (1976) 13 SASR 516; WorkCover Corporation of South Australia v Musolino (2008) 100 SASR 147, discussed.
Wood v Samuels (1974) 8 SASR 465; Darby v Police [2009] SASC 394; R v Kitchener [2003] NSWCCA 134; R v KR & PR [2008] NSWSC 970; R v Lewis [1999] NSWSC 131; R v Eken [2012] NSWSC 2; R v Hawi [2012] NSWSC 332; Knight v The Queen [2010] NTCCA 15; Smith v Tasmania [2012] TASCCA 3; R v O'Keefe [1969] 2 QB 29; R v Weaver (1973) 6 SASR 265, considered.

DPP v SHEEHY & ORS
[2012] SASC 152
Magistrates Appeals: Criminal
KELLY J.
Introduction

These are appeals against sentences imposed in the Magistrates Court on 25 May 2012.
Each of the nine respondents pleaded guilty to one offence of aggravated affray contrary to s 83C of the Criminal Law Consolidation Act 1935 (SA) (“the Act”). That offence carries a maximum penalty of five years.
The learned Magistrate sentenced each of the respondents to the same head sentence of four months after applying a discount of two months for the pleas of guilty.
The respondent Sheehy was sentenced to one month in custody with the balance of three months imprisonment suspended. The respondents Fotineas and Wayne McCarthy were both sentenced to immediate terms of imprisonment. Each of the respondents Brouwer, Cekic, Michael McCarthy, Puddy, Said, and Smith received wholly suspended sentences.
The principal issue which arises on this appeal is whether the sentence of four months imposed by the Magistrate is so manifestly inadequate as to justify the intervention of this Court.
Prosecution appeals against sentences imposed in the Magistrates Court
Under s 42 of the Magistrates Court Act 1991 (SA) there is a right of appeal to a single judge of this Court from any judgment in the Magistrates Court. The prosecution accepts, however, that the principle stated by the High Court in Everett v The Queen[1] applies to prosecution appeals from the Magistrates Court. In Everett the High Court stated:[2]
An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a "court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified". In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v The Queen:
“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
The reference to "matter of principle" in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting "error in point of principle".
[Footnotes omitted]
[1] Everett v The Queen (1994) 181 CLR 295.
[2] Everett v The Queen (1994) 181 CLR 295 at 299-300.
Although R v Osenkowski[3] predated the High Court decision in Everett, the remarks of King CJ in that case are consistent with the principle enunciated in Everett and remain good authority in this State. King CJ said:[4]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. 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.
[3] R v Osenkowski (1982) 30 SASR 212.
[4] R v Osenkowski (1982) 30 SASR 212 at 212-213.
More recently, Doyle CJ in R v Nemer[5] reaffirmed the principle:[6]
The result of the principles established by the High Court is that, to obtain leave to appeal against sentence, the Director must do more than satisfy the court that an error may have occurred. The court cannot grant leave to appeal, with a view to increasing a sentence, merely because it appears that an error has been made. 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 (as distinct from simply correcting an error in a particular case). In other words, the High Court has held that leave to appeal should be granted to the Director only when the allowing of the appeal is necessary to enable the court to establish relevant sentencing principles. 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": see R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; Everett (at 300). 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. There is a question of degree and a subjective assessment involved here, and that makes it difficult to apply this criterion.
[5] R v Nemer (2003) 87 SASR 168.
[6] R v Nemer (2003) 87 SASR 168 at [24].
Even though Doyle CJ dissented in Nemer, all members of that Court agreed with that statement of principle.
These are the principles which govern the disposition of this appeal.
Prosecution submissions on appeal
In this matter, although the prosecution points to some matters which the prosecutor says are arguably indicative of error on the part of the Magistrate, the prosecution’s fundamental submission is that there is manifest error in the length of the sentence imposed by the Magistrate. Although the learned Magistrate referred to all appropriate and relevant matters when sentencing each of the respondents, the sentence itself demonstrates that the Magistrate failed to appreciate the seriousness of this offending.
Respondents’ submissions on appeal
The respondents argue that it has not been shown that the Magistrate made any error, let alone one which would justify any intervention by this Court properly applying the principle laid down in Everett and other authorities. The respondents submit this Court should reject the prosecution invitation to interfere with the discretionary decision of the Magistrate, who addressed every relevant consideration, made no error and arrived at an appropriate sentence within the range available to him.
Background
At about 3.30am on Sunday 29 May 2011 members of the Hells Angels attended The Firm nightclub on North Terrace. Security officers recognised them, requested them to leave and telephoned the police. As they exited the premises they became involved in a physical altercation with three Finks motorcycle club members. As a result of that altercation one Hells Angels member and one Finks member were arrested for fighting and conveyed to the City Watch House. That incident served as a catalyst for subsequent event which gave rise to the charge of aggravated affray.
Following the incident at The Firm nightclub, 10 Hells Angels members moved to the City Nightclub on Hindley Street. At about 4.32am Finks member Peter Pantic was observed to enter the City Nightclub with two other people. At about 4.54am the nine respondents attended the City Nightclub. They forced their way past security at the front door, stormed across the dance floor and confronted the Hells Angels who were standing about inside. A violent brawl ensued, involving punching, kicking, stomping and the use of bar stools as weapons. As a consequence of the affray a member of the Hells Angels required 16 staples to his head. A number of other participants in the affray sustained injuries, including a broken arm. In total the affray lasted about three minutes.
The respondents were initially charged on an Information containing two offences; one, the major indictable offence of aggravated riot contrary to s 83B of the Act, and the alternative, minor indictable offence of aggravated affray contrary to s 83C of the Act. The Information was laid against eight of the respondents on 28 June 2011, and the Information in respect of Mr Brouwer was laid on 13 October 2011. On 30 May 2012 each of the nine respondents entered a plea of guilty to the offence of aggravated affray. The prosecution accepted that plea in full satisfaction of the Information.
The Magistrate’s decision
The Magistrate commenced his sentencing remarks by setting out the factual basis on which he intended to sentence the respondents.
It had earlier been accepted on behalf of the respondents that each of the nine respondents were members of the Finks Motorcycle Club.
After dealing with the personal circumstances of each of the respondents the Magistrate commented on the seriousness of the offence. He then said:
What is clear from the material before me is that following the incident outside The Firm nightclub, all of you went to the City Nightclub knowing members of the Hells Angels were there and you went there for the purpose of confronting and fighting them. You entered the nightclub and immediately confronted and fought with members of the Hells Angels. You did this in a public place where it could be expected members of the public would be present and indeed members of the public were present. You did this without any regard for the fear this aggressive and uncontrolled behaviour would place and did place members of the public and staff of the nightclub in. The fact that each of you went to the nightclub for this purpose distinguishes your offending from the spur-of-the-moment incident occurring in and around a nightclub or other licensed premises in the early hours of the morning that unfortunately the court regularly deals with. Because of this there is no doubt in my mind that each of you went to the nightclub for the purpose of getting involved for the type of incident that actually occurred.
In my view it is incumbent on courts to send a clear message that this sort of conduct is unacceptable.
He then determined that a sentence of imprisonment was necessary and imposed a head sentence of four months in each case after applying a discount for the pleas of guilty of two months. His Honour then proceeded to sentence each of the respondents according to their respective antecedents. In the result, three of the respondents received immediate custodial sentences and the remaining six received suspended sentences.
Discussion
The facts accepted by the learned Magistrate highlight the seriousness of this offending. The nine respondents acted as a group. Their actions were premeditated and motivated by a desire for retaliation or revenge arising from the earlier incident outside The Firm nightclub. They pushed past the security officers at the entrance to the nightclub and walked directly to the area in the nightclub where the Hells Angels members were standing. The sole purpose of their attendance at that nightclub was to have a violent confrontation with the Hells Angels members who were present there. They used bar stools as weapons to strike each other. Some were seriously injured, including one man who sustained injuries necessitating 16 staples to the head. These circumstances place the respondents’ conduct at the upper level of seriousness for an offence of aggravated affray.
In R v Menzies[7] Hulme J identified the gravamen of this type of offending. It must be acknowledged at the outset that the circumstances of the offending in Menzies were far more serious in that the Court there was dealing with two offences of affray and one offence of manslaughter. The offending occurred in the middle of the day at a busy airport terminal in a major city. It was an incredibly violent incident involving the use of 12.5 kilogram bollards, normally used to guide queuing passengers, as weapons. Many members of the public were present including young children, some of whom were frozen with fear. His Honour said:[8]
More important, however, is general deterrence; that is, the deterrence of others. It was brazen and arrogant for the offender and his Comanchero colleagues to further their ongoing dispute with the Hells Angels by carrying out a violent attack in such a public place as an airport terminal.
As I have said in other sentence proceedings, it is a regrettable and distressing fact that wars between rival bikie gangs occur from time to time. Those who perpetrate serious violence or property damage in pursuit of such wars must know that significant punishment awaits them upon detection. However, when the violence spills out into the public arena, as exemplified by this case, a clear message must be sent that it will be met by punishment that is severe.
[7] R v Menzies [2012] NSWSC 158.
[8] R v Menzies [2012] NSWSC 158 at [80]-[81].
The Court of Criminal Appeal in this State in R v Harkin[9] has also commented on the considerations which arise with regard to attacks motivated by revenge or retaliation. The remarks of Gray and Sulan JJ, albeit made in a different context, nevertheless apply with equal relevance:[10]
Attacks in revenge threaten the security of our community. That security depends upon respect for the police and proper policing practices. The apprehension of offenders should be left in the hands of the police. This is an important aspect of our democratic society. Taking the law into one's own hands undermines the manner in which our criminal justice system operates.
[Footnote omitted]
[9] R v Harkin (2011) 109 SASR 334.
[10] R v Harkin (2011) 109 SASR 334 at [42].
In the same case White J said:[11]
However, the fact that the respondents were engaged in an act of revenge or retribution cannot be regarded as mitigatory. A society subject to the rule of law cannot tolerate or condone private retribution or revenge-taking. Such conduct is outside the law. The courts have repeatedly stated the role of the criminal law in denouncing and deterring such conduct. The criminal law exists to protect the community and that includes protection of the community from private revenge-taking.
The courts have also emphasised that it is wrong, in circumstances of the present kind, to speak of offenders taking the law into their own hands. On the contrary, such conduct is itself criminal, and is therefore outside the law.
[Footnote omitted]
[11] R v Harkin (2011) 109 SASR 334 at [92]-[93].
I have quoted from the judgments in Harkin and Menzies because, even though both cases were decided in the context of different offences and markedly different factual circumstances, the statements of general principle enunciated by both Courts with specific reference to offences of retaliation or revenge carried out by a violent group, are relevant to the issues which arise on this appeal. I have been assisted by those authorities.
Here a group of young men set out to and did engage in a violent conflict with another group of young men in a public place.
The crime was premeditated. The motivation was retaliation and revenge for an earlier altercation which had taken place between the two groups. In this regard it is the fact that they acted as a group, rather than the identity of the particular group to which they belonged (Finks Motorcycle Club), which goes to the heart of the seriousness of this offending.
It was submitted on behalf of each respondent that this offending was “a two to three minute aberration by persons who had consumed an amount of alcohol”. It needs to be borne in mind that although the incident lasted less than three minutes, it takes less than that period of time to kill a person. Indeed the results of this affray were that a number of participants were seriously injured. Second, the fact that the alcohol consumption by each respondent may have fuelled their aggression is not a mitigating factor as appears to have been suggested by counsel for the respondents in the court below. It is precisely because offending of this nature often occurs after the consumption of alcohol that this Court should send a clear message that alcohol is no defence, nor is it a mitigating factor, in offences of this type. In my view it is an aggravating feature.

The respondents chose to commit this offence in a public place frequented by young people. The fact that there were not many people present at the nightclub at that early hour of the morning was purely fortuitous.
The Magistrate did identify some of these aggravating features in his sentencing remarks. However, it is plain from the length of the sentence he ultimately imposed that he did not appreciate the real gravity of the offending.
The High Court in Dinsdale v The Queen affirmed what was said in House v The King[12]:[13]
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
…
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.
[Footnote omitted]
[12] House v The King (1936) 55 CLR 499.
[13] Dinsdale v The Queen (2000) 202 CLR 321 at 325 per Gleeson CJ and Hayne J.
In my view, having accurately identified the aggravating features of this offending it necessarily follows that the offending as a whole must be categorised as in the upper level of seriousness for an offence of aggravated affray. The seriousness of this offending called for a sentence substantially in excess of six months.
In my view a starting point of six months reduced to four months by way of a discount for the plea, in no way reflects the need for general and person deterrence. I would add that the discount itself appears to be overly generous in that a discount of one third is usually reserved for cases in which there has been a plea at the earliest opportunity and cooperation with the authorities over and above the usual.
This is one of those cases referred to by the High Court in Dinsdale where the nature of the error is manifest in the length of the sentence. It is indeed so low as to shock the public conscience. It is one of those rare and exceptional cases where appellate intervention is required.
The appeal must be allowed and the respondents resentenced to sentences which adequately reflect the seriousness of the offending and the need for both general and personal deterrence.
I mention now the submission made by the parties about the relevance or otherwise of the admitted fact of each respondent’s membership of the Finks Motorcycle Club.
The Director argued that membership of the Finks Motorcycle Club is relevant in a number of ways to sentencing. First, it is relevant to the context in which the offending occurred, that is, as part of an ongoing conflict between two organised gangs. It was also said to be relevant to the issue of the prospects of rehabilitation of each respondent. The Director submitted that there was very little evidence of remorse or contrition on the part of any of the respondents, nor was there any suggestion that any respondent would cease to be a member of the Finks Motorcycle Club. As membership of that club was the genesis for the offending it was submitted that this Court can have little confidence that a respondent, while remaining a member of that club and continuing to associate with others involved in the same offence, would not offend again.
I was referred to authorities in New South Wales, Tasmania and the Northern Territory[14] on this topic.
[14] R v Kitchener [2003] NSWCCA 134 at [22]; R v KR & PR [2008] NSWSC 970 at [34] and [53]; R v Lewis [1999] NSWSC 131 at [31]; R v Eken [2012] NSWSC 2 at [55] and [71], R v Hawi [2012] NSWSC 332 at [80]; R v Menzies [2012] NSWSC 158 at [60] and [75]; Knight v The Queen [2010] NTCCA 15 at [142]-[145]; Smith v Tasmania [2012] TASCCA 3 at [9] and [30].
There may well be a case in which it becomes necessary to determine the correctness of the submission made by the Director on this appeal, however, I do not consider that the facts and circumstances here require any further consideration of the issue. First, because I do not have sufficient information before me to draw any inference that continued membership of the Finks Motorcycle Club implies that there are negative prospects of rehabilitation in relation to each respondent, and second, because I do not consider that determination of the issue is decisive one way or another with respect to any of the nine respondents. In the circumstances I have therefore left consideration of that issue out of the equation when determining an appropriate sentence for each of the respondents.
I turn now to the issue of resentencing. At this stage the issue of double jeopardy does not arise.
As all members of the Court in Harkin observed the terms of s 340 of the Act[15] makes it plain that the section operates in relation to a prosecution appeal only when the appellate court has decided, in accordance, with existing principle to allow the appeal.[16] I respectfully adopt the observations of the Court in Harkin.
[15] Criminal Law Consolidation Act 1935 (SA) s 340.
[16] R v Harkin (2011) 109 SASR 334 at [35]-[37] per Gray and Sulan JJ, [105] per White J.
I have therefore in resentencing each of the respondents approached the matter by considering what sentence should have been imposed in the first instance.
Before I turn to the issue of resentencing I say something about the submission which was made by the Director that the fixing of the same head sentence in respect of each respondent was arguably an error in itself. As that submission might become relevant in the issue of resentencing I make it clear that I have carefully considered the appropriateness of fixing the same head sentence for each respondent.
The Director’s submission on this topic was based on observations of King CJ in R v MacGowan:[17]
Where two or more persons are sentenced by the same judge for the same crime or crimes the sentences imposed on them should be proportionate to their respective degrees of culpability and to the various personal factors of aggravation and mitigation. Any distinctions in the sentences imposed should fairly reflect differences in the respective degrees of culpability and the circumstances of the offenders and should be explained by the sentencing judge. Unjustified disparities will be rectified by the Court of Criminal Appeal on appeal by the Attorney-General or the offender even though the sentence under review, considered apart from disparity, might be regarded as within the permissible sentencing range.
[17] R v MacGowan (1986) 42 SASR 580 at 582-583.
Here some of the respondents have considerable criminal histories and a number of them do not. However, in my view, the circumstances of this offending and the culpability of each respondent in the offending was substantially the same. Indeed the factual basis accepted by the parties in the court below was that each of the respondents were equally culpable for the offending. Having viewed for myself the footage taken from the CCTV cameras I consider that the factual basis agreed on for sentence was an appropriate one.
In all of the circumstances I consider that there are powerful reasons why the starting point for the head sentence in the case of each respondent should be the same. Their respective personal antecedents can be appropriately taken into account when fixing the non-parole period.
In my view a starting point in excess of two years for the head sentence for each of the respondents could be justified, however I intend to adopt a moderate starting point in respect of the head sentence.
Taking everything into account but for the pleas of guilty I would have imposed a head sentence of two years in the case of each respondent. That sentence will be reduced to 19 months on account of the pleas of guilty.
Resentencing
I turn now to deal with each respondent individually.
Mr Malek Bou Said is now 36 years of age, married with two children. He has no relevant prior convictions and the only convictions he has are matters related to drink driving. He has always been in full employment and there is nothing to distinguish him from the previous respondents in respect of whom I have found good reason to suspend. His sentence of 19 months with a non-parole period of 10 months will be suspended.
Mr Nicholas Brouwer is a 31 year old man without any significant history of relevant prior convictions. A number of medical reports tendered on sentencing detail injuries which he suffered in a motor vehicle accident in 2008, when a car turned in front of him as he was travelling on his motorcycle along Port Wakefield Road. He had only just returned to work prior to sentencing before the Magistrate. In my view a non-parole period of 10 months is appropriate. Taking into account all of the factors personal to Mr Brouwer I consider there is good reason to suspend that sentence.
Mr Bozidar Cekic is a 22 year old man and the youngest of the nine respondents. He was in fact 20 when the offending occurred. He was one of the participants in the affray who sustained quite serious injuries, namely lacerations to the head requiring suturing and staples. Material tendered on sentencing indicates that he has a supportive and close family and appears to be well regarded, at least by the President of the Free Serbian Orthodox Church who was prepared to provide him with a reference. He has always been in regular employment and is now a self-employed concreter. In my view there is not much apart from his age to distinguish his relevant circumstances to the previous respondent. I consider a non-parole period of 10 months to be appropriate. His circumstances also provide good reason to suspend the sentence of imprisonment imposed.
Mr Peter Fotineas is one of the two oldest members of the nine respondents. He stands in a quite different position to six of the other respondents who do not have any relevant prior convictions. By the time Mr Fotineas came to be sentenced before the Magistrate he was already serving another sentence of imprisonment of four and a half years with a non-parole period of three years. That sentence commenced on 4 April 2012. I have read the District Court Judge’s sentencing remarks in relation to Mr Fotineas. It is of relevance that the present offending occurred on 29 May 2011. Some six days later Mr Fotineas was found in possession of a commercial quantity of methylamphetamine in respect of which he was sentenced on 4 April 2012. While I do not take the subsequent offence into account as part of Mr Fotineas’ antecedents, the fact that he offended again six days after this offending is relevant to his prospects of rehabilitation. References tendered on his behalf before the sentencing Judge all attest to the fact that Mr Fotineas comes from a hardworking background and is genuine, generous, hardworking and ambitious. Those references need to be tempered against his criminal history, which is unimpressive. When the head sentence of 19 months is added to the head sentence for the term of imprisonment imposed in the District Court that makes a total of six years and one month. Having reviewed the non-parole period I consider it appropriate to extend his existing non-parole period by 12 months. That will make a total non-parole period to be served of four years.
Mr Michael McCarthy, at 39 years, is the oldest member of the group of respondents. Unlike some of the others, he does have prior convictions, including two previous relevant offences for possession of firearms. Those firearm convictions are of real concern. He was convicted in 2004, 2005 and 2006. One of those offences was possession of ammunition without a permit, which was committed in Alice Springs where Mr McCarthy worked for some time. His most recent conviction was in the Elizabeth Magistrates Court in 2010, where he was convicted of possessing a knife.
In his case a non-parole period of 12 months is appropriate. My mind has vacillated on whether this respondent is an appropriate candidate for a suspended sentence. The matter is finely balanced; however, I am conscious that since the offending last year he suffered a major injury from which he has not yet recovered. Notwithstanding the two firearms convictions that I have previously referred to, I note that he has been in regular employment for most of his adult life. He is in a stable relationship of some 20 years with four children, three of them now adults. It is likely he will have a permanent disability as a result of the accident he suffered in Singapore in November last year. In all of the circumstances, I am prepared to find good reason in his case to suspend the term of imprisonment imposed.
Mr Wayne McCarthy was 26 years old at the date of this offending. His criminal history is unimpressive. At the date of this offending on 29 May 2011 he was on parole for a number of serious offences, including one charge of aggravated driving dangerously to escape police pursuit and other matters. I note that Mr Wayne McCarthy has in the past had the benefit of bonds. His last conviction was in the Elizabeth Magistrates Court on 18 January 2012 for an offence of driving under disqualification on 13 September 2011. For the offences which included the aggravated count of driving dangerously to escape police pursuit, Mr McCarthy was sentenced on 8 April 2010 to a head sentence of 15 months with a non-parole period of five months. At the date of the offending on 29 May 2011 the unexpired parole in relation to that sentence was one month and eight days.
Unlike some of the other respondents I do not consider that there is anything in Mr McCarthy’s circumstances which could give rise to good reason to suspend. When the unexpired parole of one month and eight days is added to the head sentence of 19 months I have imposed for this offence that makes a total head sentence in relation to this respondent of 20 months and 8 days. I impose a non-parole period of 13 months. That sentence is to run from 25 May 2012 when he was taken into custody.
Although Mr Daniel Puddy, who was 26 years old at the date of this offending, is not the youngest of the respondents, he has no prior convictions of any relevance to this matter. The material tendered at sentencing demonstrated that he is in a stable relationship with a partner and child and has his own motorcycle repair shop. A 10 month non-parole period is appropriate for this respondent. There is nothing in the circumstances of Mr Puddy to distinguish him from other respondents in respect of whom I have found good reason to suspend. Accordingly, there is in his case also good reason to suspend the term of imprisonment imposed.
Mr Glen Smith is 24 years of age and has no relevant prior convictions. Since leaving school he has been in constant employment. He is in a stable relationship with a partner who is about to, or may already have, given birth to their first child. I see no reason to distinguish Mr Smith from the other respondents in respect of whom I have found good reason to suspend. His sentence of 19 months with a non-parole period of 10 months will also be suspended.
I turn now to Mr Brad Sheehy. He is 26 years old with a partner and one child. He was, prior to the date of sentencing before the Magistrate, employed to drive semi-trailers. I was told at the hearing of this appeal that as a consequence of his incarceration for a period of one month he lost that employment.
Mr Sheehy does have a relevant prior criminal history. He has in the past been dealt with by two District Court Judges in relation to an offence of possessing a prescribed firearm while not holding a firearms licence. Notwithstanding the seriousness of the circumstances surrounding his possession of that firearm, the District Court Judge who sentenced him on 11 March 2009 saw fit to release him on a bond to be of good behaviour for a period of three years. It is not clear from that Judge’s sentencing remarks whether Mr Sheehy was convicted or whether the Judge dealt with the matter without recording a conviction.
Notwithstanding that lenient approach, on 9 September 2011 Mr Sheehy came before another District Court Judge on an application by the Crown to enforce the bond entered into before the previous Judge. That Judge’s sentencing remarks on 9 September 2011 are revealing. The application before him on 9 September 2011 to revoke the bond was not the first application to revoke that bond. On 29 March 2010 Mr Sheehy had come before yet another Judge on an application to revoke the bond. After hearing Mr Sheehy’s explanations for his failure to comply with the bond, that Judge reduced the hours of community service required to be served by Mr Sheehy and allowed him an additional 12 months within which to complete that service. At that time Mr Sheehy was warned about noncompliance with supervision and with the requirement to perform the community service order within the stated time.
On 27 November 2010 he was dealt with for committing offences by entering a hotel in respect of which he had been barred.
The Judge who dealt with Mr Sheehy in September 2011 also set out in some detail the circumstances of the original offending. Mr Sheehy went to a hotel in Salisbury and told a security officer there that if he needed any help to let him know. A .22 calibre bullet was found near where he had been drinking at the bar. The police were called. They followed Mr Sheehy and watched him throw a pen gun onto the ground.
Taking into account the whole of the history and his current circumstances, the Judge in September 2011 imposed a custodial sentence of five months, which he suspended upon Mr Sheehy entering into a bond to be of good behaviour for 12 months from 9 September 2011. When sentencing Mr Sheehy the Judge said:
Mr Sheehy, you now have a copy of the bond which you signed. Let me make it very plain what will happen if you breach that bond in any way. The bond is for 12 months, it runs from today. If you breach that bond in any way, you will be liable to go to prison for five months. Do you understand that?
PRISONER: Yes.
Eight months later Mr Sheehy committed this offence.
It is convenient in the context of Mr Sheehy’s circumstances, to comment on the submission made during the hearing concerning the effectiveness of a suspended sentence. Mrs Shaw QC emphasised the point which has been made repeatedly over many years by a number of courts, beginning with the well known passage of Bray CJ in Elliott v Harris (No 2)[18] that a suspended sentence remains a real and effective punishment.
[18] Elliott v Harris (No 2) (1976) 13 SASR 516 at 527-528; R v O’Keefe [1969] 2 QB 29 at 32; R v Weaver (1973) 6 SASR 265; Wood v Samuels (1974) 8 SASR 465 at 468; Darby v Police [2009] SASC 394 at [32].
That is true, however, it must to be borne in mind that the comments made by Bray CJ in Elliott were in the context of the Court of Appeal finding it necessary to correct an erroneous comment made by a Magistrate, who had said that he agreed with the view then prevailing in England that a suspended sentence is really no punishment at all.
As Duggan J pointed out in WorkCover Corporation of South Australia v Musolino,[19] while there is still an element of general deterrence in a suspended sentence, that is not to say that a suspended sentence necessarily has the same deterrent effect as an unsuspended term. A suspended sentence is a significantly more lenient penalty than an immediate term of imprisonment. The deterrent effect is reduced by suspending the sentence although not eradicated entirely.
[19] WorkCover Corporation of South Australia v Musolino (2008) 100 SASR 147 at [73]-[74].

In Mr Sheehy’s case there is a real question whether successive suspended sentences have operated as a more effective deterrent than an immediate custodial sentence.
I cannot see that the previous bonds imposed upon Mr Sheehy have had the desired deterrent effect upon him. His history after being placed on the bond before the District Court Judge in March 2009 reveals that he had very little regard for that Court’s order. He committed further offences during the currency of that bond, and even after he was sentenced in September 2011 he once again offended in May 2011.
For these reasons I consider that Mr Sheehy, unlike some of the other respondents, is not a good candidate for a suspended sentence. The Magistrate must have taken the same view as he imposed a sentence which required Mr Sheehy to serve at least one month in prison. I take into account the fact that he has already served one month of the sentence imposed by the Magistrate. I also take into account his medical condition which is distressing and at times embarrassing for him. However, having read the medical reports it is apparent that he is able to lead a relatively normal life, including driving trucks. Nor did his medical condition appear to impede him from taking an active part in the commission of this offence, as the footage from the CCTV footage at the nightclub reveals. Mr Sheehy is sentenced to 18 months imprisonment. The non-parole period is nine months. I make it clear that in setting both the head sentence and the non-parole period I have taken into account the time already spent in custody by Mr Sheehy. The sentence will commence on the date he is taken into custody.
I will hear counsel as to the formal orders which should be made in light of these reasons.