Fischer v Department for Correctional Services - [2022] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
FISCHER v DEPARTMENT FOR CORRECTIONAL SERVICES
[2022] SASC 2
Judgment of the Honourable Justice Stein
11 January 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
On 28 February 2020, the appellant was sentenced in the Magistrates Court to a period of imprisonment. A portion of the sentence was suspended on the appellant entering into a bond to be of good behaviour for 18 months. On 20 May 2021, a Magistrate found that the appellant had committed several breaches of the bond and revoked the suspended sentence.
The appellant appealed against the sentence on three grounds. Ground one was that the Magistrate failed to provide proper reasons for revoking the suspended sentence.
Held, allowing the appeal on ground one and re-sentencing the appellant:
1.The Magistrate’s reasons were not adequate as they did not set out any reasons for finding the breaches were not trivial or that there were no proper grounds to excuse the breaches.
2.There are proper grounds to excuse the breach in the particular circumstances taking into account the disproportion between the extent of the departure from the obligation to be of good behaviour and the severity of the penalty resulting from revoking the suspension.

Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 114; Supreme Court Criminal Rules 2014 (SA) r 104V(1)(a), referred to.
Cross v Police [2001] SASC 47 at [21], [30]; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601 at [42]; Lowndes v The Queen (1999) 195 CLR 665 at [15]; M, MA v Police [2013] SASCFC 140 at [12]; NBM v The Queen [2021] SASCA 105 at [90]-[91]; Playford v Police [2017] SASC 26 at [23]; Police v Heritage (2019) 135 SASR 1 at [21]-[23]; Police v Peel [2021] SASCFC 7 at [2], [38]-[40], [44]; R v Buckman (1988) 47 SASR 303 at 304; R v Pham [2014] SASCFC 95 at [10]-[11]; R v Smith [2014] SASCFC 98 at [24]-[25]; R v Wilton (1981) 28 SASR 362 at 362, applied.
Wittwer v Police [2004] SASC 226 at [16], discussed.
Police v Chilton (2014) 120 SASR 32 at [20]; R v McPhee [2014] SASCFC 107 at [34], considered.

FISCHER v DEPARTMENT FOR CORRECTIONAL SERVICES
[2022] SASC 2
Overview

The appellant pleaded guilty to a number of offences and, on 28 February 2020, was sentenced to a period of imprisonment, a portion of which was suspended on the appellant entering into a bond.
Following a number of drug tests which showed positive results for cannabis, the Department for Correctional Services applied to revoke the appellant’s bond.
In May 2021, the appellant admitted the breaches of bond. A Magistrate revoked the suspended sentence and ordered the appellant serve the balance of four months of imprisonment.
The appellant appeals against the sentence in relation to the breaches of bond.
The original offending
On 17 December 2019, the appellant assaulted a woman (“original offending”) with whom he had been in an on again and off again relationship and with whom he shared a child. The assault occurred while the complainant was carrying the child and resulted in the complainant receiving a broken arm which required surgery. At the time of the assault, a safe contact order was in place to protect the complainant and the appellant was subject to a suspended sentence bond (in respect of an aggravated assault on the complainant’s mother). After the assault, an interim variation was made to the intervention order to include the child and return the conditions to a full non-contact intervention order. Despite the terms of the intervention order, the appellant contacted the complainant on multiple occasions via phone and then through his mother.
On 25 February 2020, the appellant pleaded guilty before a Magistrate to aggravated assault causing harm, breach of an intervention order by physical violence and seven further offences of breach of intervention order. The appellant admitted that the breach of intervention order by physical violence and aggravated assault breached the suspended sentence bond and a separate good behaviour bond (which was entered into in relation to an offence of hindering or obstructing an authorised officer).
The Magistrate dealt first with the suspended sentence bond. She revoked the bond such that a period of imprisonment of one month and 13 days imprisonment came into effect. She revoked the good behaviour bond and imposed a fine. The Magistrate imposed a single penalty of eight months and 13 days for the “fresh offences”. Given the gravity of the aggravated assault cause harm, the need for general and personal deterrence and the protection of the community, the Magistrate considered a portion of the sentence must be served in custody. Having accounted for a reduction due to the pleas of guilty and for time served, she ordered that the appellant serve four months, two weeks and six days in custody. The Magistrate said that in view of the appellant’s personal circumstances and prospects of rehabilitation (should he address underlying issues), she was satisfied there was good reason to suspend the balance of four months on entering into a bond for a period of 18 months. The bond included conditions prohibiting the use of any illicit drugs and requiring the appellant to undergo testing. The Magistrate stated:
“[…] You are required to serve four months, two weeks and six days of that term in custody. The balance of four months will then be suspended on you entering into a bond with those conditions. If you comply with all the conditions and you do not re-offend during the period of the bond, you will not be required to serve the further four months imprisonment. If you do re-offend or you do not comply with the requirements of the bond, you will be brought back to Court and in all likelihood have to serve that four months imprisonment, so it will be up to you to make sure you do not put yourself in that position. […]”[1]
[1] Police v Fischer, Ex tempore Remarks on Penalty, 28 February 2020, File No. MCCHB-19-6644, MCCHB-19-6890, MCCHB-20-1093, MCCHB-19-6889 at 6.
I will refer to the sentencing Magistrate in respect of the original offending as the “first Magistrate”.
The breach offending
The appellant was released from custody in May 2020. He underwent drug screening on approximately a monthly basis commencing in early June. The first drug test was negative. Thereafter, four drug tests were positive for cannabis. In November 2020, an application was filed for enforcement of a breached suspended sentence bond. After that date the appellant tested positive for cannabis on five further occasions. I will refer to the positive drug tests as the “breach offending”.
The breach offending was admitted and found proved.
Compliance report
A compliance report (“compliance report”) was prepared prior to sentencing the appellant for the breach offending. The compliance report noted that the appellant’s cannabis use continued and that suboxone (prescribed in relation to an opioid addiction) was detected in his samples. The appellant reported that he had ceased his suboxone “cold turkey” to enable him to access medical cannabis. The compliance report stated that the appellant had attended some domestic violence intervention sessions and had engaged well when he attended. The appellant was also engaged with the SMART Recovery substance abuse group counselling. The appellant expressed a preference for the group-based program and was said to have stated that he was confident he could cease drug use on his own. He was, however, also said to have stated that he was attending only because he was required to do so. At the time of the compliance report the appellant had attended six group sessions.
Submissions to the Magistrate
I was provided with affidavits deposing (by reference to the audio recording of the hearing on 20 May 2021) to the submissions on penalty (in relation to the breach offending) made to the Magistrate. I will refer to the sentencing Magistrate in respect of the breach offending as the “second Magistrate”.
At the hearing before the second Magistrate, counsel for the appellant drew the second Magistrate’s attention to the first Magistrate’s remarks in relation to the appellant’s reasonable prospects of rehabilitation. Counsel drew attention to the absence of drug use playing any part in the original offending. Counsel submitted that the appellant was addressing issues, including no longer drinking alcohol. Counsel made reference to the compliance report. In response to the second Magistrate’s questions concerning the use of cannabis, counsel advised the second Magistrate that the appellant had a chronic pain injury and cannabis was used to address pain resulting from nerve damage to the appellant’s neck following a motorcycle accident. Counsel indicated he had been instructed the appellant would be prescribed with alternative pain medication after two months’ absence from taking suboxone. Counsel submitted the appellant was engaging in the substance abuse recovery program to address his cannabis use. Counsel invited the second Magistrate to excuse the breach of bond and submitted that it would be disproportionate for the appellant to serve a term of imprisonment for four months for the breaches when cannabis use was not a consideration of the first Magistrate at the time of the original sentencing.
Second Magistrate’s enforcement reasons
On 20 May 2021, the second Magistrate gave ex tempore remarks in relation to breach of the suspended sentence bond (“Remarks”). The Remarks are brief. I set them out below:[2]
In this matter, the defendant was originally sentenced for essentially domestic violence matters which were clearly serious at the time because a period of 8 months, 2 weeks and 6 days was imposed with a partial suspension. Magistrate Duncan made it clear in her remarks:
“If you do re-offend or you do not comply with the requirements of the bond, you will be bought back to Court and in all likelihood have to serve that 4 months’ imprisonment. So, it is up to you to make sure you do not put yourself in that position”.
Sadly, you have put yourself in that position and whilst, as I indicated earlier, it is commendable that you are attending to issues relating to your rehabilitation, sadly you are continuing to deal in drugs, which is a significant breach of the bond. In those circumstances, the suspended sentence is revoked. There are no proper grounds not to provoke [sic] and you will serve the balance of the period.
[2] Department for Correctional Services v Fischer, Remarks on Penalty, 20 May 2021, file No. AMC-21-41 at 1.
Grounds of appeal
The appellant sought an extension of time to appeal which was not opposed. The appellant appealed on the following grounds:
1.The learned Magistrate erred in failing to provide proper reasons for revoking the suspended sentence of imprisonment (“first ground”).
2.The learned Magistrate erred in not finding that there were proper grounds to excuse the breach (“second ground”).
3.The learned Magistrate erred in not finding that there were special reasons for reducing the term of imprisonment for the breach (“third ground”).
The grounds of appeal are related. Determination of the grounds of appeal requires consideration of the matters set out in s 114 of the Sentencing Act2017 (SA) (“Act”). I will therefore consider relevant authorities in relation to s 114 of the Act (“s 114”) before addressing the grounds of appeal.
Principles on appeal
This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and chapter 12A of the Supreme Court Criminal Rules 2014 (SA). Appeals from a Magistrate to a single judge of the Supreme Court are by way of rehearing pursuant to r 104V(1)(a) of the Rules.
In order to interfere in the exercise of a sentencing discretion there must be demonstrated some error of the kind described in House v The King.[3]
[3] (1936) 55 CLR 499.
In relation to the approach on appeal, White J stated in Wittwer v Police:[4]
The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or it if has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly: House v R (1936) 55 CLR 499 at 505 […]
[4] [2004] SASC 226 at [16].
The Court will not interfere merely because it would have exercised the sentencing discretion in a different way to the sentencing Magistrate.[5]
[5] R v Wilton (1981) 28 SASR 362 at 363; Lowndes v The Queen (1999) 195 CLR 665 at [15].
Sentencing Act
Section 114 provides as follows:
(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 —
(a)in the case of a bond requiring performance of community service—may—
(i)extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or
(ii)extend the period within which any uncompleted hours of community service must be performed by not more than 6 months; or
(iii)if the period within which the community service must be performed has expired, impose a period of not more than 6 months within which any uncompleted hours of community service must be performed; or
(iv)cancel the whole or a number of any unperformed hours of community service; or
(v)revoke or vary any other condition of the bond; 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.
…
Relevant authorities
In R v Buckman, (in addressing similar provisions contained in the Offenders Probation Act 1913), King CJ said:[6]
There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.
Parliament has recognised, however, that in some cases the rigorous application of the ordinary consequences of breach can be oppressive and even unjust. It has therefore provided to the courts the means of ameliorating those consequences in exceptional cases. Subsection (5) of s 9 of the Offenders Probation Act 1913 empowers the probative court to refrain from ordering that the sentence be carried into effect where the failure to observe the conditions of the recognisance is trivial or there are proper grounds for excusing it. Subsection (6) authorises the reduction of the term of imprisonment in “special circumstances”.
…
The purpose of subs (5) is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
[6] (1988) 47 SASR 303 at 304.
Police v Heritage (“Heritage”) addressed the interpretation of s 58 of the Criminal Law (Sentencing) Act 1988 (SA) (which is in relevant respects largely identical to s 114).[7] In Heritage, Justice Blue (with whom Stanley and Lovell JJ agreed) set out the steps which are required to be addressed in cases in which a Court has found there is a failure to comply with a condition of a suspended sentence bond.[8]
[7] (2019) 135 SASR 1.
[8] Police v Heritage (2019) 135 SASR 1 at [21].
Justice Blue said the first question to be addressed is whether the Court can and should revoke the suspension. The Court is only empowered to revoke the suspension if satisfied that the failure was trivial or there are proper grounds upon which the failure should be excused. If the answer to the first question is no, the Court must revoke the suspension. Blue J said that 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. The Court is only empowered to do so if satisfied there are special circumstances justifying that approach.
Justice Blue concluded that proper grounds upon which the failure should be excused are confined to the circumstances of the nature of the breach.[9] Special circumstances justifying the reduction of the term of the suspended sentence will comprise new or different circumstances which have arisen or changed since the imposition of the original sentence which, if they had existed at the time of the original sentence, would have justified a reduced sentence.[10]
[9] Ibid at [22].
[10] Ibid at [23].
In Police v Peel,[11] Doyle J considered the decision in Heritage. Doyle J stated that whether or not there are proper grounds for excusing a failure to comply with a suspended sentence bond requires consideration of the nature of the breach, the circumstances of the commission of breach and any disproportionality between the extent and nature of the breach and the severity of the consequences of requiring the original sentence to be served.[12] Doyle J agreed this requires consideration of the objective circumstances of the conduct comprising the breach offending. He concluded that Blue J in Heritage did not suggest there is a rigid or clear line excluding from consideration any personal matters or that such matters cannot inform consideration of whether proper grounds to excuse the breach exists. Matters which bear on the culpability of the offender in committing the offence which constitutes the breach may include matters such as state of mind and history of similar offending as such matters may be relevant to understanding the nature and seriousness of the offending constituting the breach and the question of disproportionality of revoking the suspension.[13]
[11] [2021] SASCFC 7.
[12] [2021] SASCFC 7 at [38].
[13] [2021] SASCFC 7 at [39].

Justice Doyle accepted that similarity or otherwise of the breach offending to the original offending for which the defendant was sentenced will be relevant to the existence of “proper grounds”.[14] Doyle J referred to R v Buckman[15] and R v Smith[16] and concluded that there is no reason why relevance cannot generally extend to the similarity of previous offending.[17] The history of similar offending may be relevant to inform a full understanding of the seriousness of the breach offending and also of the circumstances in which the original suspended sentence was imposed. That may impact on the proportionality or otherwise of revoking the suspension of the sentence.[18]
[14] [2021] SASCFC 7 at [40].
[15] (1988) 47 SASR 303.
[16] [2014] SASCFC 98.
[17] [2021] SASCFC 7 at [44].
[18] [2021] SASCFC 7 at [44].
Chief Justice Kourakis made some additional observations:[19]
I would emphasise that the authorities do not strictly limit ‘proper grounds’ to the nature and circumstances of the offence. They extend to the circumstances ‘related to the same point in time’, to ‘factors relating to the breach itself’, and to ‘circumstances existing at the time of the offence which bear on the culpability of the offender in committing the offence’ (emphasis added). […]
[citations omitted]
[19] [2021] SASCFC 7 at [2].
In R v Smith, Kourakis CJ said:[20]
However, it is as well to make some additional comments on the appellant’s submissions to the effect that the breach should have been excused because the crime of drive disqualified is not of the “same ilk” or at the same “level of seriousness” as a serious assault. There is no express or implied requirement in s 58(3) of the CLSA that the breaching offence be similar in kind to the offence for which the probationer was placed on a bond. The Judge correctly observed that a suspended sentence bond requires the probationer to be of good behaviour generally, and not merely to refrain from committing offences of a similar kind to that for which the suspended sentence was imposed.
[20] [2014] SASCFC 98 at [24].
Chief Justice Kourakis pointed out that the “trivial” and “proper grounds” aspects of the section invite attention to the nature, extent and circumstances of the breach of the condition of the bond. He reasoned that the word “proper” takes its meaning from its context, that is, triviality, and the condition that the circumstances must be such that they would excuse the breach. He continued:[21]
[…] For that reason, the disproportion of which King CJ spoke in Buckman is between the extent of the departure from the obligation to be of good behaviour and the severity of the penalty resulting from revocation of the suspension. As King CJ observed, differences between the original offence and the breaching offence are not irrelevant but their relevance is limited. The question is whether the circumstances in which the breach was committed are of a nature which excuses the failure to abide the condition of the bond having regard to the purpose for which it was imposed.
First Ground – Failure to provide proper reasons
[21] [2014] SASCFC 98 at [25].
Appellant’s submissions
The essence of the complaint is that the second Magistrate failed to provide proper reasons, firstly, as to why there were no proper grounds for excusing the breach of bond and, secondly, why there were no special circumstances to reduce the term of imprisonment. Counsel for the appellant submitted that there is a reasoning process in revoking a suspended sentence bond which was not articulated in the Remarks and that the second Magistrate failed to give reasons for his conclusion that there were no proper grounds to excuse the breach. He submitted that the Remarks were inadequate as it is impossible to discern the basis upon which the second Magistrate had arrived at the sentence he imposed.[22]
[22] Cross v Police [2001] SASC 47 at [21].
Respondent’s submissions
Counsel for the respondent submitted that it was not necessary for the second Magistrate exhaustively to recite all of the factors he took into account in determining that the breach of bond was not trivial and there were no proper grounds to excuse the breaches. She submitted that remarks on penalty given by Magistrates should not be analysed as settled reasons for judgment and that a failure to provide reasons or adequate reasons on any particular aspect of a sentence is not of itself an error.[23] Counsel for the respondent submitted that what is necessary is the remarks, read as a whole, disclose the appropriate process has been undertaken but that it is sufficient if the remarks do so inferentially.[24]
[23] Police v Chilton (2014) 120 SASR 32 at [20] (Kourakis CJ).
[24] R v McPhee [2014] SASCFC 107 at [34].
Counsel for the respondent submitted it was clear the second Magistrate had read the remarks of the first Magistrate in relation to the original offending, which included the appellant’s personal circumstances. The second Magistrate referred to the appellant’s rehabilitation, which indicated the second Magistrate had read the compliance report. The respondent’s counsel submitted that although the personal circumstances of the appellant are not expressly referred to in the Remarks, and the second Magistrate does not detail his reasons for finding the breaches were not trivial or there were no proper grounds to excuse the breaches, this did not mean those matters were not considered. She submitted in those circumstances the Remarks were sufficient.
Consideration
There is a possible factual error in the Remarks, that is, the reference to the appellant “continuing to deal in drugs” rather than consuming drugs. This reference may have simply been a slip of the tongue by the second Magistrate or may have indicated a misunderstanding of the breach offending. As counsel for the appellant did not place any reliance on that error, I have not taken it into consideration.
It is important not to be unduly critical after the event or to expect comprehensive and fully developed sentence remarks to be given, especially in routine cases with routine penalties.[25] Reasons can be brief.[26] However, the reasons must be sufficient to enable understanding by the appeal court of the sentencing process.
[25] Cross v Police [2001] SASC 42 at [21].
[26] Playford v Police [2017] SASC 26 at [23].
In NBM v The Queen, Lovell JA stated:[27]
The judicial obligation to give reasons is directed, in part, to facilitating the exercise of a party’s right of appeal, in addition to promoting public accountability as to how and why a judge has made a particular decision. […] The adequacy of a judge’s reasons (distinct from the adequacy of a judge’s reasoning) will depend on the circumstances of each case. […]
Reasons are to be read as a whole. It is not necessary for a judge to give extensive and elaborate reasons. However, an appellate court should not have to guess or speculate as to what a trial judge may or may not have meant, particularly on an important issue. […]
[citations omitted]
[27] [2021] SASCA 105 at [90]-[91].
It can be inferred from the references in the Remarks to the appellant’s rehabilitation that the second Magistrate took into account issues as to rehabilitation. Comprehensive reasons were not required, particularly in the context of routine cases conducted by a Magistrate running a busy list. The second Magistrate’s reasoning may well have been adequate. However, the Remarks do not set out any reasons for the finding that the breaches were not trivial or there were no proper grounds to excuse the breaches and I cannot discern from the Remarks the critical factors which were taken into account in the decision[28] or how the process required by s 114 was undertaken.[29] Consequently, the Remarks were not adequate in the circumstances and the appellant has made out this ground of appeal.
[28] Playford v Police [2017] SASC 26 at [23]; Cross v Police [2001] SASC 47 at [30].
[29] R v Pham [2014] SASCFC 95 at [10]-[11]; M, MA v Police [2013] SASCFC 140 at [12].
I will therefore set aside the order of the second Magistrate and re-sentence the appellant.
Second Ground – “Proper grounds”
Appellant’s submissions
Counsel for the appellant submitted that there were proper grounds to excuse the breach. He submitted that attention must be given to the criminogenic features of the original offending. In the present case, cannabis use played no part in the original offending. Counsel submitted that although the continued use of cannabis was not trivial, when viewed against the purpose for which the bond was imposed and the appellant’s significant compliance with all other aspects of the bond, the activation of the sentence would be a disproportionate consequence of the breach offending.
Respondent’s submissions
Counsel for the respondent submitted the appellant was drug tested on ten occasions and returned positive results of cannabis use on nine of those occasions, when the appellant was well aware that one of the conditions of his bond was not to use illicit substances. Counsel therefore submitted there were no proper grounds to excuse the breach offending.
Consideration
The first Magistrate in sentencing for the original offending did not identify cannabis use as an underlying issue contributing to the offending for which the appellant was originally sentenced. In light of the authorities to which I have referred, I accept that the lack of a criminogenic connection to the original offending can be a relevant factor in considering whether there are proper grounds to excuse. However, I do not accept the absence of such a connection is sufficient of itself to constitute proper grounds to excuse the breach. Taken to its logical conclusion, the submissions for the appellant would render nugatory any conditions of a good behaviour bond which did not relate directly to the original offending, which reasoning would not be consistent with prior authorities including the statements of Kourakis CJ in R v Smith.[30]
[30] [2014] SASCFC 98 at [24]-[25].
In respect of the second ground of appeal, I am not satisfied that there has been demonstrated an error of the kind required by House v The King,[31] including that it is not so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly. I therefore consider the appellant has not made out the second ground of appeal.
[31] (1936) 55 CLR 499.
Re-sentencing
In Kentwell v The Queen[32] the majority of the High Court said that where a judge has erred, the appeal court will not assess whether and to what degree the error has influenced the outcome. When the discretion has miscarried, the Court will exercise the discretion afresh.
[32] (2014) 252 CLR 601 at [42].
Counsel for the appellant properly conceded that nine breaches by way of failed drug tests cannot be characterised as trivial. In resentencing, I therefore must consider, in accordance with s 114, whether there are proper grounds on which the failure should be excused.
I have considered the authorities to which I have been referred as well as the submissions made by counsel.
In re-sentencing, I have reached the conclusion there are proper grounds to excuse the breach in this case. I have some reservation about the number of occasions on which the appellant failed his drug tests. It may imply either a disregard for the requirements of the bond or an inability to comply with the requirement to abstain from cannabis use. However, the appellant’s cannabis use is said to be related to a significant pain condition for which he is to be prescribed alternative medication once he has ceased his suboxone use (which may have now occurred).
I have considered the extent of departure from the bond against the severity of the penalty resulting from revocation while taking into account the purpose for which the bond was imposed. The following matters are relevant to that consideration. The purpose of the bond can be said to be the protection of the appellant’s previous partner and child and the community more generally. The breach offending is of a different kind from the original offending. The first Magistrate in sentencing the appellant for the original offending concluded that alcohol was an aspect of the original offending and there is no suggestion that the appellant has not abstained from alcohol. Cannabis use did not play any part of the original offending. The appellant’s cannabis use is ascribed to significant nerve related pain following an accident. The appellant has demonstrated some engagement in rehabilitation programs. In my view, there is a disproportion between activating a sentence for four months imprisonment and the nature and circumstances of the breach offending which, but for the suspended sentence, would not give rise to a custodial sentence. I also note the appellant has served one month and 23 days in custody in respect of the revoked suspended sentence prior to a grant of bail, that is, close to half of the suspended sentence.
The suspended sentence bond commenced 8 May 2020 for 18 months and thus expired in November 2021. Given my conclusion there are proper grounds to excuse the breach, pursuant to s 114(3)(c) I may require the appellant to enter into a further bond, the term of which must not exceed 12 months. I consider the appellant has some prospects of rehabilitation. The compliance report showed the appellant was engaging with domestic violence programs and had engaged with substance abuse group counselling to some extent. The appellant was receiving treatment for an opioid addiction and has received a mental health care plan and been referred for psychological assistance. In the circumstances, I have determined to require the appellant to enter into a further bond. I will hear the parties in relation to the length of such bond and its terms.
Given my conclusion, it is not necessary for me to address the third ground of appeal in relation to special circumstances to reduce the term of the suspended sentence.
Orders
I grant an extension of time for the appeal.
I allow the appeal.
I set aside the order made by the second Magistrate.
I will make further orders following hearing from the parties.