Hubbard v Police - [2023] SASC 182

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
HUBBARD v POLICE
[2023] SASC 182
Judgment of the Honourable Justice Kimber
22 December 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
The appellant appeals against a sentence imposed by a Magistrate. The appellant pleaded guilty to offences which included Assault of a Prescribed Emergency Worker (x2), Ill-Treatment of an Animal, Damaging a Motor Vehicle, Carrying an Offensive Weapon, and Breach Bail (x2).
After reductions for the pleas of guilty and time in custody and on home detention bail, the Magistrate imposed a single sentence of 10 months. The Magistrate ordered that six months be served and the balance suspended upon entry into a good behaviour bond of two years.
The appellant contends the Magistrate erred in the following ways:
1.The Magistrate erred in her approach to s 26 of the Sentencing Act 2017 by failing to refer to concurrency.

2. The Magistrate failed to give a reduction of 40 per cent for one offence.
3. The sentence of 10 months was manifestly excessive.
4.The Magistrate failed to find good reason to suspend the suspend the whole term of imprisonment.

5.      The order that six months be served was manifestly excessive.
Held:
1.      The appeal is dismissed.
2.Although the Magistrate erred in her approach to s 26 of the Sentencing Act 2017, the error was in favour of the appellant. There was no error in failing to refer to concurrency.

3.      The appellant was not entitled to a reduction of 40 per cent for any offence.
4.      The sentence of 10 months was not manifestly excessive.
5.      It was open to the Magistrate to find good reason to suspend the whole sentence did not exist.
6.      The order that six months be served was not manifestly excessive.
Sentencing Act 2017 (SA) ss 26, 26(2a), 39(3), 39(3a), 11(1)(f); Criminal Law Consolidation Act 1935 (SA) s 20AA(3), 85(2); Animal Welfare Act 1985 (SA) s 13(1); Summary Offences Act 1953 (SA) s 21C(1)(a); Bail Act 1985 (SA) s 17(1), referred to.
Hili v The Queen (2010) 242 CLR 520; Bugmy v The Queen (2013) 249 CLR 571; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; Kentwell v The Queen (2014) 252 CLR 601; R v Lutz (2014) 121 SASR 144, 153; Brougham v R [2023] SASCA 75; Stenecker v Police (2014) 120 SASR 18, 22; R v Bachra [2012] SASCFC 31, applied.
R v Copeland (No 2) (2010) 108 SASR 398, 422; Cox v The King [2023] SASCA 43, considered.

HUBBARD v POLICE
[2023] SASC 182
Magistrates Appeal: Criminal

This is an appeal against sentence.
The appellant pleaded guilty in the Magistrates Court to the following offences. Two counts of Assault of a Prescribed Emergency Worker contrary to s 20AA(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), committed on 26 February 2022 and 6 February 2023 respectively. The maximum penalty for that offence is imprisonment for five years. An offence of Ill-treatment of an Animal contrary to s 13(1) of the Animal Welfare Act 1985 (SA), committed on 6 February 2023. The maximum penalty for that offence is a fine of $50,000 or imprisonment for four years. Offences of Damaging a Motor Vehicle contrary to s 85(2) of the CLCA and Carrying an Offensive Weapon contrary to s 21C(1)(a) of the Summary Offences Act 1953 (SA), committed on 23 February 2022. The maximum penalty for those offences are 10 years imprisonment and a fine of $2,500 or imprisonment for six months respectively. Two counts of breach of bail contrary to s 17(1) of the Bail Act 1985 (SA), committed on 26 February 2022 and between 24 February 2022 and 29 March 2022. The maximum penalty for that offence is a fine of $10,000 or imprisonment for two years.
After reductions for the pleas of guilty, time in custody and time on home detention bail, the Magistrate imposed a single sentence of 10 months. The Magistrate ordered six months be served with the remaining four months suspended upon entry into a bond to be of good behaviour for two years.
The appellant appeals the sentence on several grounds which assert both process error and outcome error. For the reasons which follow, I dismiss the appeal.
An overview of the offences
The offending for which the appellant was sentenced involved offences over a period of about one year.
On 23 February 2022, the appellant committed the offence of Damaging a Motor Vehicle. On that day, after an argument with his partner, the appellant smashed the rear window of a parked car with a hammer that he had removed from his backpack. After leaving the scene, the appellant was found by police carrying the hammer in his backpack which is the subject of the count of Carrying an Offensive Weapon.
Each Breach of Bail offence was committed between 24 February 2022 – 29 March 2022 and 26 February 2022 respectively. The first involved a failure to report in compliance with one of his bail conditions. The second involved the appellant attending an address in breach of another condition.
On 26 February 2022, the appellant assaulted a prescribed emergency worker. On that day, two paramedics were tasked to assist the appellant following a report that he may have injured himself. After arguing with the first paramedic who was trying to assist him, the appellant left the scene before returning and pushing the other paramedic, the victim, with enough force to knock him back into the ambulance. While being restrained, the appellant punched the victim to the jaw and chin area.
On 6 February 2023, the appellant committed the offences of Ill-treat an Animal and Assault Prescribed Emergency Worker. The Ill-treat an Animal offence occurred in the context of an argument between the appellant and his partner. During the argument, the appellant was aggressive towards his partner. He removed her pet rabbit from its cage and, holding it by its hind legs, hit his partner with the rabbit more than once and with such force as to cause the rabbit’s blood to spatter on the walls of the room in which the argument was occurring. The rabbit died as a result of its injuries.
The police attended and the appellant was arrested. After being observed headbutting the wall, the appellant was placed in a padded cell before being conveyed to the Lyell McEwin Hospital for an assessment. While there, the appellant threatened police and acted aggressively. While being restrained, he kicked a police officer to the right side of his face with such force as to cause blurry vision and significant pain.
The impact upon the victims of the two counts of assault
Each victim of the assaults provided a victim impact statement. The paramedic described suffering headaches, back and hip pain, and being unable to eat properly for a number of days after the assault. He is a paramedic with 20 years’ experience who has been left worried about his ‘ability to safely continue in the profession [he] loves’. In his statement, he describes the ‘worrying impact’ the assault had upon he and his wife who is also a paramedic and was on duty that night. The attack was unprovoked, violent and targeted, occurring while the victim was speaking into his radio. It has caused the victim ongoing anxiety in the workplace and to question his ability to work alone if necessary due to the failure of risk mitigation strategies and de-escalation tactics that are relied upon.
The second assault had a significant effect upon that victim. The kick left him with blurry vision and significant pain and shock. He was embarrassed by the fact that hospital staff and members of the public saw him being assaulted. He experiences ongoing injuries in his neck and back similar to whiplash. He has been unable to engage in physical play with his young daughter which has caused him to feel angry and bitter. This has placed pressure on his relationship with his family.
An overview of the personal circumstances of the appellant
Prior to committing the offences which were before the Magistrate, the appellant had no prior convictions. At the time of the offences, the appellant was 19 years of age. He was 20 at the time of sentence. The appellant provided the Magistrate with a report from Ms Heinrich, a clinical psychologist. The matters set out by Ms Heinrich are not in dispute.
The upbringing of the appellant was unsettled. The parents of the appellant separated when he was very young, and he did not have contact with his mother for several years after that. When the appellant and his mother reconnected, there was conflict and contact again ceased. The appellant lived with his father as a child but left the care of his father when he was about 14 and lived with his mother for a short period before becoming homeless. The appellant told Ms Heinrich that he only completed year eight and was frequently in trouble. The appellant commenced using drugs when he was 12 and reported being affected at the time of the offences in February 2022. The appellant told Ms Heinrich that he had no memory of the offences in February 2023.
The appellant had never been employed for any significant length of time. The appellant told the psychologist that ‘generally his temper or reactions to situations would cause him to be dismissed’. The appellant has a history of self‑harm, including more than one attempt on his life. The appellant first had contact with mental health services when he was 14. In the opinion of Ms Henrich, the appellant meets the criteria for a borderline personality disorder and a post‑traumatic stress disorder in relation to his experiences of trauma during his childhood. Ms Heinrich also opined that the greatest risk factor for the appellant re‑offending was his mental health and that treatment was more likely to be effective in the community than in custody. At the time of sentence, the appellant had been assessed for the ‘Abuse Prevention Program’ and the Magistrate was told that the appellant would commence that program if accepted.
The approach of the Magistrate to the sentence
During submissions, the Magistrate was told the guilty pleas entitled the appellant to a reduction of up to 30 per cent for all offences. What occurred during sentence makes it plain that the Magistrate had prepared her remarks, and arrived at a sentence, on that basis. However, while delivering her sentencing remarks, but before the sentence was announced, the Magistrate was told that the plea to the offence of Ill-treatment of an Animal entitled the appellant to a reduction of up to 40 per cent. In response, the Magistrate then paused to adjust her remarks before continuing. As it turns out, the Magistrate was inadvertently misled when it was put to her that one of the offences entitled the appellant to a reduction of up to 40 per cent.
The Magistrate adopted the following approach to sentencing. Consistent with the obligation in s 26(2a) of the Sentencing Act 2017 (SA) (Sentencing Act), the Magistrate identified notional starting points for each offence.
The Magistrate indicated that she intended to use s 26 of the Sentencing Act to impose a single sentence. The Magistrate then said:
I have considered whether I might use my power under s.26 of the Sentencing Act 2017 to impose on penalty for all or some of your offences. As I said, I have taken the time you have spent in custody into account which will be a total reduction of six months and 19 days. Using my power under s.26 of the Sentencing Act 2017, I sentence you to a total of two years imprisonment. You are entitled to up to a 30% discount and a 40% discount for one offence. I give you this discount and bring your sentence down to one year and five months imprisonment. Now, I have allowed a reduction for time spent in custody and also a small additional reduction for the 40% discount. So, your sentence is reduced to 10 months imprisonment.
With respect to the Magistrate, her approach is attended by error. I have no doubt the error occurred as the Magistrate had prepared her remarks on the basis that every offence entitled the appellant to a reduction of 30 per cent and a position to the contrary was only raised during sentencing.
It appears that, before being told one offence entitled the appellant to a reduction of 40 per cent, the Magistrate had decided to adopt a single starting point of two years for all offences, reduce that by 30 per cent (with some minor rounding) for the pleas to 17 months and then give a further reduction of six months and 19 days for time in custody and time on home detention bail. The appellant had spent two months and 22 days in custody and, earlier in her remarks, the Magistrate had indicated, generously, that she intended to reduce the sentence by a further three months and 27 days as the appellant had spent that period on home detention. That approach would have resulted in a head sentence of 10 months and 11 days.
On the basis on which the Magistrate proceeded (i.e. – that the appellant was entitled to a reduction of 40 per cent for one offence), there is at least the following error in approach. It was not open to identify a single starting point for all offences, reduce it by 30 per cent and then give a further reduction for the one offence which permitted a reduction of up to 40 per cent. [1]
[1] It can also be noted that after the paragraph extracted above, the Magistrate indicated what each individual notional sentence would be after the reduction. That step was taken after the sentence of 10 months had been arrived at and so cannot have informed the sentence of 10 months. It was done to meet the obligation imposed by s 26(2a) of the Sentencing Act.
There is a further complication. There was no offence for which the appellant was entitled to a reduction of up to 40 per cent. The Magistrate was inadvertently misled. The appellant first appeared with respect to the offence the Magistrate was told permitted a reduction of up to 40 per cent on 7 February 2023. The appellant did not enter the guilty plea until 26 June 2023. Subject to s 39(3) and s 39(3a), s 39(2)(a) of the Sentencing Act provides that a reduction of up to 40 per cent is only available if the plea is entered not more than four weeks after the first court appearance for the offence.
The appellant provided an affidavit from his counsel before the Magistrate. It sets out the history of the matter and is relied upon to establish the appellant could be brought within s 39(3) or s 39(3a) and that a reduction of up to 40 per cent was still open.
The affidavit sets out that a duty solicitor appeared for the appellant on 7 February, 13 February and 21 February 2023. The issues raised related to bail and adjournments were granted for enquiries to be made with respect to that. A grant of legal aid was made on 22 February 2023 and the counsel before the Magistrate at the time of sentence appeared for the first time. The matter was next listed on 10 March 2023. On that day, the matter was further adjourned as counsel for the appellant understood that the complainant in some other offences alleged to have been committed on 6 February 2023 may not have wished those offences to proceed. In addition, there was a desire to obtain a report with respect to mental competence and fitness to plead. That report was ultimately obtained from Ms Heinrich and is dated 11 April 2023. The matter was next listed on 17 March 2023 with respect to bail and the guilty plea was ultimately entered on 26 June 2023. The affidavit sets out that counsel for the appellant agreed with the prosecutor that a reduction of up to 40 per cent was open.
For the purposes of this appeal, it is accepted that it was prudent to seek the opinion of Ms Heinrich with respect to mental competence and fitness to plead. Nevertheless, that does not bring this case within s 39(3) or (3a) of the Sentencing Act. Obviously enough, nor does an agreement at the bar table.
This analysis establishes that the sentence of the appellant was attended by error. Nevertheless, neither party sought the appeal be allowed on this basis. The error was favourable to the appellant. The appellant received reductions from the starting point of two years on the basis that one offence attracted a reduction of 40 per cent. The error being of benefit to the appellant, I say no more about it.
I turn to the grounds of appeal.
The grounds of appeal
The appellant appeals on five grounds:[2]
1.The sentence imposed was manifestly excessive.
2.The Learned Magistrate erred in failing to suspend the whole term of imprisonment, there existing good reason to do so.
3.The Learned Magistrate erred in imposing a partially suspended sentence in which the period of time to be served before the balance was suspended was manifestly excessive.
4.The Learned Magistrate erred in utilising section 26 of the Sentencing Act 2017 in imposing one sentence.
5.The Learned Magistrate failed to make appropriate reductions in penalty pursuant to section 39 of the Sentencing Act 2017.
[2] Grounds of Appeal FDN 2.
Grounds 4 and 5 will be dealt with first as each complains of a process error in arriving at the sentence.
Ground 4
The appellant complains that although the Magistrate identified notional starting points, she did not identify the extent to which there was concurrency between those sentences.
When using s 26 to impose a single sentence for more than one offence, it is desirable to set out at least the broad approach taken to accumulation or concurrency.[3] Nevertheless, it is not an error of law to fail to do so. The obligation is to impose a proportionate sentence. The utilisation of s 26 is one way in which that may be achieved.[4]
[3] R v Copeland (No 2) (2010) 108 SASR 398, 422 [92].
[4] Cox v The King [2023] SASCA 43, [41].
As the Magistrate identified a starting point of two years, and then applied a reduction of about 30 per cent before a further reduction for the one offence she believed attracted up to 40 per cent, the appropriate measure of the two years is the notional starting points identified by the Magistrate for each offence. The notional starting points were as follows: for the offence of Damaging Property, one month imprisonment; for the Carrying an Offensive Weapon, seven days’ imprisonment; for each count of Breach of Bail, five days’ imprisonment; for each count of Assault Prescribed Emergency Worker, nine months imprisonment; for the Ill‑treatment of an Animal, six months’ imprisonment. The Magistrate also identified what each notional sentence would have been after the reductions she believed to be open, but that step was not reflected in the starting point of two years. For the reasons given, the Magistrate reduced the starting point of two years for the pleas of guilty twice.
In this case, had each reduced notional starting point been accumulated, the result would have been a starting point of 25 months and 17 days. It follows that the starting point chosen of two years reflects some concurrency, albeit limited. It was not essential for any concurrency to be reflected in the starting point of two years chosen by the Magistrate. It would have been open to have accumulated each starting point. However, it was open to consider some concurrency as being appropriate, at least, with respect to the two offences committed on 23 February 2022 and perhaps some concurrency with respect to the two offences on 6 February 2023.

It must be accepted that the Magistrate did not detail her approach to concurrency. It may well have differed from that just postulated as an approach which was open. Nevertheless, I am not satisfied that in utilising s 26 in this case, the Magistrate was obliged to give detail as to the approach to concurrency. It would have been desirable, but in this case, the absence of detail was not an error.
As for the error identified earlier in the way in which the Magistrate arrived at the sentence of 10 months, that is an error in the application of s 26 of the Sentencing Act. However, for the reasons given, that error was in favour of the appellant.
I dismiss Ground 4.
Ground 5
For the offence of Assault Prescribed Emergency Worker committed on 6 February 2023, the trial Judge reduced the notional starting point by 30 per cent for the plea of guilty. The appellant submits that he was entitled to a reduction of up to 40 per cent. On the hearing of the appeal, counsel for the appellant accepted the difficulties with this ground. For the reasons given earlier, the appellant was not entitled to a reduction of up to 40 per cent for any offence committed on 6 February 2023. His first appearance was the next day and the guilty plea was not entered within four weeks of that appearance.
I dismiss Ground 5.
Grounds 1–3
As articulated in the grounds, each involves a complaint of manifest excess. Before turning to each ground, it is helpful to set out some well‑established principles.
It is not sufficient for an appellate Court to merely conclude that it would have come to a different decision from that reached by the Magistrate, or that the sentence imposed is markedly different from the sentences imposed in other cases.[5] For a sentence to be manifestly excessive, it must be established that the Magistrate came to a decision that was unreasonable or plainly unjust, or that a specific error was made.[6] To put this another way, absent specific error, the sentence must be ‘outside the permissible range of sentences for the offender and the offence’ before an appellate Court may intervene.[7]
[5]     Hili v The Queen (2010) 242 CLR 520, 538–539; Bugmy v The Queen (2013) 249 CLR 571, 588–589.
[6]     House v The King (1936) 55 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, 370–371.
[7]     Kentwell v The Queen (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane JJ); Hili v The Queen (2010) 242 CLR 520, 539.
In Brougham v R, it was held:[8]
Whether a sentence is manifestly excessive requires consideration of a range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit on the scale of seriousness of crimes of that type, and the personal circumstances of the offender. There is, however, a limit to the amount of analysis that may be brought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not permit of lengthy exposition.
[8] Brougham v R [2023] SASCA 75, [28] (the Court).
A failure to suspend is a species of manifest excess and should be subjected to the same process applicable to where the length of a sentence is in issue. It is only open to the appellate Court to intervene where, having regard to the nature of the offending and the characteristics of the offender, the failure to suspend fell outside the range of permissible dispositions.[9]
[9] R v Lutz (2014) 121 SASR 144, 153 [47]–[49] (Vanstone and Parker JJ).
The submissions of the appellant
The submissions of the appellant with respect to manifest excess are common to all three grounds. The appellant particularly emphasises his lack of previous convictions; that he had not been in custody before his remand for the offences; the time in custody of about two months and three weeks; that he had gained insight; his mental health issues at the time of the offences; the subsequent diagnoses and treatment; the availability of support and accommodation; and his partner being about five weeks’ pregnant at the time of sentence. As to the mental health of the appellant, emphasis is placed upon the obligation under s 11(1)(f) of the Sentencing Act to take into account the appellant’s mental health and the opinion of Ms Heinrich that treatment was much more likely to improve his mental health in the community than in custody.
Ground 1
The appellant makes more than one complaint under this ground.
First, that the breaches of bail did not warrant imprisonment and the starting points for the other offences were manifestly excessive. Second, that the head sentence of 10 months was manifestly excessive. Allied to this, the appellant submits the trial Judge failed to have regard to the principle of totality.
The first complaint must be dismissed. The starting points identified for all seven offences were only notional sentences. As was held in Brougham v R:[10]
While notional starting points may provide some support for a submission that the sentence is manifestly excessive, the applicant must establish that the final sentence imposed for all the offending is manifestly excessive. When looking at the overall sentence, this Court is not bound to follow the ‘notional sentences’ nor the sentencing Judge’s approach to concurrency when considering whether the single sentence is manifestly excessive.
[10] Brougham v R [2023] SASCA 75 [31] (the Court).
I turn to the second complaint.
All the matters emphasised by the appellant needed to be weighed. Viewed as a whole, the matters in his favour made him a candidate for leniency. It may be accepted that his mental health was an important aspect of his personal circumstances, contributed to his offending and, to a degree, reduced his moral culpability. Nevertheless, it also gave rise to a very real concern about the risk of re-offending. Personal deterrence remained important. Viewed together, the assaults, damaging property and ill-treatment offences demonstrate the appellant has a habit of behaving violently. I am not satisfied that the mental health of the appellant reduced the need for general deterrence.
The circumstances of the appellant in favour of leniency had to be balanced with the seriousness of the offending. Some offences were serious examples of the offence. The two assaults are summarised above. The maximum penalty for each offence was five years. As the Chief Justice observed in Stenecker v Police, ‘the community has through Parliament, expressed its concern that condign punishment be imposed for assaults on police officers and other persons who put themselves at risk of violence in the course of the execution of their important public duties’.[11] General deterrence was a particularly important consideration and its significance was not diminished due to the mental health of the appellant. Each assault resulted in ongoing harm. The offence involving the ill-treatment of the animal was also a serious example of that offence. The motive for that conduct was, at least, to cause fear and distress to a partner. The same may be said of the offence involving damage to property.
[11] Stenecker v Police (2014) 120 SASR 18, 22 [20] (Kourakis CJ).
In all the circumstances, notwithstanding the matters emphasised by the appellant, a single sentence of ten months, after the reductions for the pleas of guilty and time in custody and on home detention, was not manifestly excessive.
As for the complaint about the failure to refer to totality, that complaint is without merit. In R v Bachra it was held:[12]
[12] R v Bachra [2012] SASCFC 31 [58]–[59] (White J).
The principle of totality is well established. King CJ in R v Rossi said:
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes become so crushing as to call for the merciful intervention by the court by way of reducing the total effect …
In Postiglione v The Queen Kirby J indicated that a sentence may be regarded as crushing if it “would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform”.
The circumstances in which it will be appropriate for a court to apply the totality principle are confined. Doyle CJ made this point in R v B, RWK when he said:
The totality principle cannot be invoked, as there is a tendency to do, as a routine argument for a further reduction in what is otherwise an appropriate sentence. The totality principle is one that will apply in relatively infrequent circumstances.
Further, the totality principle does not always require a sentence which is otherwise just to be reduced on the ground that it may be crushing to the offender involved. Doyle CJ made this point in R v E, AD when he said:
Care must be taken in using the concept of a crushing sentence. Not uncommonly, for particularly serious crimes, a sentence that is crushing in its effect must be imposed. The use of that term does not imply that when a very heavy sentence is called for, it is appropriate for the Court to reduce it simply because to the offender the sentence may be crushing. At the end of the day if that is what is called for, that is the sentence that must be imposed.
(Footnotes omitted)
This was not a sentence which necessitated the Magistrate considering a reduction due to totality. After reductions for the guilty pleas, time in custody and time of home detention bail, a sentence of 10 months was proportionate for the offences and this appellant. It was not a crushing sentence.
Ground 1 must be dismissed.
Grounds 2 - the failure to suspend
In finding that good reason to suspend the sentence did not exist, the Magistrate said:[13]
Your counsel has asked me to consider suspending any term of imprisonment that I might impose on you. I must consider whether there are good reasons to suspend your term of imprisonment. Your age, your background and your mental health challenges are good reason to partially suspend your sentence of imprisonment. I am of the view you will benefit from support and assistance in the community. However, it is important to send a message to you and the community that the violence you have displayed and the harm you have caused will not be tolerated. In my view, this means you must spend some time of your sentence in custody. I am ordering that you serve six months in custody commencing today. I suspend the remaining four months of your custody on a $500, two year good behaviour bond. Under the good behaviour bond, you are to follow the lawful directions of Community Corrections and undertake such assessment and treatment as they order.
[13] Sentencing Remarks of Magistrate Martin, 24 August 2023, 7.
Before considering the complaints about manifest excess, it is necessary refer to the absence in the passage above to the appellant having spent about two months and three weeks in custody. The appellant submits I should find that period was overlooked. I am not satisfied the Magistrate overlooked that period. The remarks of the Magistrate are to be read as a whole. Just before the passage above, the Magistrate had reduced the sentence which would otherwise have been imposed on account of time in custody.
The appellant also submits that the accumulation of the matters set out earlier meant that good reason to suspend the sentence existed. The decision whether good reason existed to suspend the sentence was a discretionary one involving the weighing of several competing considerations. Notwithstanding the matters in the favour of the appellant, given the offences, it was open to the Magistrate to conclude that good reason did not exist. Ground 2 must be dismissed.
Ground 3 – the period of six months
The appellant submits that the order that 6 months be served with a balance of four months suspended on a bond to be of good behaviour was manifestly excessive. The appellant again directs attention to the same matters, but particularly emphasises the periods in custody and on home detention bail.
An aspect of the submissions of the appellant was that it was in the interests of the appellant and the community that the period to be served be a lesser proportion of the sentence. Emphasis was placed on the importance of the appellant engaging in treatment for his mental health and the opinion of Ms Heinrich that treatment was more likely to be effective in the community.
There is force in the submissions of the appellant. The appellant had not been imprisoned before these offences, had already spent more than two months in custody and the best environment for the treatment of the mental health of the appellant was in the community. Treatment is not just in the interests of the appellant but also the community.
Nevertheless, there is no norm for the period of a sentence which should be served if part of the sentence is to be suspended. Subject to the period to be serve being not less than one month,[14] the decision as to the proportion to be served is discretionary. It involves the evaluation of more than one consideration and does not permit of a single answer. The period of six months was within the proper exercise of that discretion. It is not an approach that is unreasonable or unjust.
[14] S 96(4) Sentencing Act.
Ground 3 must be dismissed.
Conclusion
The appeal is dismissed.
I will hear the parties as to any further orders.