Ludgate v Police - [2018] SASC 175

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LUDGATE v POLICE
[2018] SASC 175
Judgment of The Honourable Justice Hinton
22 November 2018
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - PRODUCING OR CULTIVATING
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
On 9 December 2015 the appellant was sentenced to imprisonment for one year and four months with a non-parole period of seven months for a number of drug and firearm related offences. The sentence was suspended upon the appellant entering into a bond to be of good behavior for two years, which was extended for a further three months on 24 November 2016.
On 2 February 2018 the appellant was charged with cultivating more than the prescribed number of cannabis plants and possession of prescribed equipment. These offences were committed in breach of the suspended sentence bond. The breach of the bond prompted the respondent to apply for the revocation of the suspended sentence imposed on 9 December 2015. The appellant pleaded guilty to the 2 February 2018 offending and acknowledged the breach of the 9 December 2015 bond. On 13 September 2018 the Magistrate revoked the suspended sentence and ordered that the appellant serve the 9 December 2015 sentence in addition to sentencing the appellant to six weeks’ imprisonment for the 2 February 2018 offences, such sentence to be served cumulative upon the revoked suspended sentence.
The appellant appealed against the sentence on the grounds that the Magistrate erred in:
1.       failing to consider whether the suspended sentence could be served on home detention;
2.       concluding that an intensive corrections order could not be made in relation to the suspended sentence;
3.       failing to excuse the breach of the bond and suspend the sentence for the 2 February 2018 offending;
4.       in the alterative to ground 3, failing to find that special circumstances existed to justify reducing the term of the revoked suspended sentence; and
5.       failing to provide adequate reasons for the sentences imposed.
Held, dismissing the appeal:
1. Section 114(3) of the Sentencing Act 2017 (SA) is exhaustive as to the options available to a court upon finding that a suspended sentence had been breached.
2.       The Magistrate did not err in refusing to excuse the breach and did not err in concluding that special circumstances to reduce the revoked suspended sentence did not exist.
Criminal Law (Sentencing) Act 1988 (SA) s 58; Firearms Act 1977 (SA) ss 11, 23, 41(1), 61; Firearms Regulations 2008 (SA) regs 38(1), 61; Mental Health Act 2009 (SA); Sentencing Act 2017 (SA) ss 19, 71, 81, 114; Offenders Probation Act 1913 (SA) s 9, referred to.
Hodgson v Police [2002] SASC 35; Jones v Police [2009] SASC 137; M, PA v Police (2012) 218 A Crim R 276; R v Buckman (1988) 47 SASR 303; R v Marston (1993) 60 SASR 320; R v Hibeljic [2018] SASCFC 35; R v Saleh [2017] SASCFC 75; R v Smith [2014] SASCFC 98; Shrubsole v Rodriguez (1978) 18 SASR 233; Wainohu v New South Wales (2011) 243 CLR 181, considered.

LUDGATE v POLICE
[2018] SASC 175
Magistrates Appeal
HINTON J:
Introduction

This is an appeal against sentence.
On 9 December 2015 the appellant, Brenton Martin Ludgate, was sentenced by a Magistrate to imprisonment for one year and four months for a number of drug and firearm related offences. A non-parole period of seven months was fixed before the Magistrate suspended the sentence upon the appellant agreeing to enter into a bond in the sum of $1,000 to be of good behaviour for two years. That suspended sentence bond was extended for three months on 24 November 2016 when the appellant was sentenced for the offences of driving a vehicle with an unknown drug in his oral fluid or blood and contravening a condition of a probationary licence.
Subsequently, the appellant was arrested and charged with cultivating more than the prescribed number of cannabis plants and possession of prescribed equipment. On 13 September 2018 he was sentenced to six weeks’ imprisonment for these offences.
The offences subject of the 13 September 2018 sentence were committed on 2 February 2018 in breach of the suspended sentence bond imposed on 9 December 2015 as extended on 24 November 2016. The breach prompted the respondent to apply for the revocation of the suspension of the sentence imposed on 9 December 2015. That application was dealt with on 13 September 2018 at the same time as the appellant was sentenced for the 2 February 2018 offending and by the same Magistrate. As it happens the Magistrate who sentenced the appellant on 9 December 2015 also sentenced him on 13 September 2018.
On the application to revoke the suspended sentence the Magistrate considered that proper grounds within the meaning of s 114(3) of the Sentencing Act 2017 (SA) (the Sentencing Act) did not exist to excuse the breach. Further, he did not consider that special circumstances existed justifying a reduction in the 9 December 2015 sentence nor that it was open to him to suspend that sentence or to order that the appellant be subject to an intensive corrections order. The Magistrate proceeded to revoke the suspension and order that the appellant serve the 9 December 2015 sentence. He then ordered that the sentence fixed for the 2 February 2018 offending be served cumulative upon the revoked suspended sentence resulting in an overall period of imprisonment for one year five months and 12 days. The Magistrate fixed a fresh non-parole period of seven months and two weeks.
The appellant appeals on the grounds that the Magistrate erred:
i.in failing to consider whether to suspend the sentence and order that it be served on home detention;
ii. in concluding that an intensive corrections order could not be made;
iii.in failing to excuse the breach of bond, and, further, in failing to impose a suspended sentence for the extant offending;
iv.in the alternative to ground 3, in failing to find that special circumstances existed to justify reducing the term of the revoked suspended sentence; and
v. in failing to provide adequate reasons for the sentence imposed.
I would dismiss the appeal. My reasons follow.
The appellant’s drug offending
In what follows I deal with the appellant’s convictions for drug offending, including the offending subject of the 9 December 2015 and 2 February 2018 sentences chronologically according to when the matters were disposed of by the Magistrates Court.
A. The 12 February 2015 sentence for drug driving
On 12 February 2015 the appellant was dealt with in the Magistrates Court for the offence of driving whilst there was methamphetamine present in his oral fluid or blood. The offence was committed on 21 November 2014 at a time when the appellant would have been on bail for the offences committed on 14 October 2014 referred to below. The appellant was convicted, fined and had his licence disqualified.
Prior to committing the 21 November 2014 offence the appellant had only previously come into contact with the criminal justice system once in 2008 when he was convicted, fined and had his driver’s licence disqualified for the offence of driving with an excess blood alcohol content.
B. The sentence of 9 December 2015 for the 14 October 2014 offending
The 9 December 2015 sentence was imposed after the appellant pleaded guilty to five drug offences being trafficking in a commercial quantity of a controlled drug,[1] cultivating more than the prescribed number of cannabis plants,[2] possessing prescribed equipment,[3] possessing prescription medication without lawful authority (two counts)[4] and four offences relating to a class A firearm (a shot gun), these being possession of a firearm without a licence,[5] possession of an unregistered firearm,[6] failing to keep a firearm secured in accordance with regulations[7] and failing to store ammunition in a locked container separately from firearms.[8] Each of these offences was charged consequent upon the police searching the appellant’s home at Happy Valley on 14 October 2014. The Magistrate sentenced the appellant on a factual basis provided by the prosecution in a document entitled, Prosecution Summary of Facts. The Magistrate said:
[12] … Various items were found when police attended your home on 14 October 2014. They found 1.73 kg of cannabis in a vacuum sealed bag on the kitchen table, seven cannabis plants growing outside, one in a pot about a metre high and six smaller plants in a foam box. Some growing equipment, namely a light shade, four globes, a ballast box and cannabis grinder, was found in a shed and in a spare room. Prescription medication, the subject of count 4, namely 43 tablets in blister packs being 14 Stilnox, 7 oxycodone and 22 oxycontin in the kitchen safe and as to count 5, five vials of Evanject steroid found in a walk in wardrobe. The firearms offences relate to a single barrel break-action shotgun located in the lounge room under the lounge, ten shotgun shells were located on the bedside table in the main bedroom, four further shotgun shells were located loose on the kitchen bench and five were found in a gun belt on the kitchen bench. One further cartridge was located in a vehicle parked under the carport. There was a hole in the ceiling of the study and a carbon filter in the ceiling, together with footage and photographs showing hydroponic cannabis growing. This suggests you had previously grown cannabis hydroponically at this location. If so, you are not to be punished for that, but the offences relating to cannabis cannot be regarded as isolated. There were scales on the kitchen table and in addition, an incubator for growing plans [sic] and three vacuum sealed bags were found together with two packets of plastic deal bags, a bottle bong and some green vegetable matter, presumably cannabis, in a small plastic tub.
[13] You had bought 1.7 kg of cannabis for $1,000 and I sentence you on the basis that you would have sold about a kilo of it to various people, mainly friends and you would have used the remainder yourself. The seven cannabis plants were not particularly healthy and you were growing them to satisfy your own dependence on cannabis. The prescription drugs, the subject of count 4, had been left there by a friend and there was no other reason for you having them and the steroids were for your own use. You had obtained them at an earlier time when you were attending the gym and by that, I understand that I was being told that you were no longer intending to use them.
[14] The shotgun was not yours and you did not have it in furtherance of any criminal enterprise. It had been brought to the house by your friend who came to share your house a few weeks before your arrest. It was in fact owned and registered in the name of your friend’s father. Your friend could not pay his rent and your father had, shortly before the police visit, put him on a bus to Alice Springs and the shotgun was left behind.
[1]    Controlled Substances Act 1984 (SA) s 32(2).
[2]    Controlled Substances Act 1984 (SA) s 33K(1)(b).
[3]    Controlled Substances Act 1984 (SA) s 33LA.
[4]    Controlled Substances Act 1984 (SA) s 18(3).
[5]    Firearms Act 1977 (SA) s 11(1).
[6]    Firearms Act 1977 (SA) s 23.
[7]    Firearms Regulations 2008 (SA) regs 38(1), 61.
[8]    Firearms Act 1977 (SA) ss 41(1), 61.
As mentioned, for this offending a sentence of imprisonment for a total period of one year and four months, with a non-parole period of seven months, was imposed. Further, that sentence was suspended upon the appellant entering into a bond that required, amongst other things, that he not consume illicit drugs and that he be of good behaviour for a period of two years commencing 9 December 2015.
C. The 3 June 2016 sentence for the 3 October 2015 and 23 November 2015 offending
On 3 June 2016 the appellant was convicted, fined $1100 and his licence disqualified for the offences of drug driving and contravening a condition of a probationary licence committed on 3 October 2015.
That same day the appellant was sentenced for three drug offences — cultivating a controlled plant, possessing equipment to use with a controlled drug and possessing a prescribed drug not being a drug of dependence. These offences occurred on 23 November 2015 when the police searched the appellant’s home and located two mature cannabis plants being grown hydroponically and three seedlings in addition to five vials suspected of being steroids. Thus whilst on bail for the 14 October 2014 drug offences the appellant proceeded to grow cannabis a second time. He was convicted and required to enter into a good behaviour bond for 12 months a condition of which was that he come up for sentence if called upon.
D. The 24 November 2016 sentences
On 24 November 2016 the appellant appeared in the Magistrates Court:
i.for sentence in relation to the offences of drug driving and contravening a condition of a provisional licence committed on 8 January 2016. He was convicted of both offences, fined $1,100 and had his licence disqualified.
ii.on an application for the enforcement of the bond imposed on 3 June 2016. The appellant was convicted of the 23 November 2015 offending and fined $800.
iii.on an application for the enforcement of the bond imposed on 9 December 2015. The bond was extended by three months. Thus the two-year bond imposed on 9 December 2015 now expired on 9 March 2018.
iv.for sentence in relation to the offence of driving whilst disqualified committed on 29 June 2016. He was convicted and imprisoned for two weeks.
v.for sentence in relation to the offences of drug driving and contravening a condition of a probationary licence committed on 30 March 2016. He was convicted and fined $1,100.
E. The 13 September 2018 sentence and the 2 February 2018 offending
On 2 February 2018 police attended at the appellant’s home at Happy Valley in relation to information received regarding the cultivation of cannabis. The appellant was home. The premises were searched under the authority of a general search warrant. In a rear bedroom the police located six mature cannabis plants being grown hydroponically. When interviewed the appellant stated that he alone was responsible for setting up and maintaining the plants. He said that he was growing them for his own use.
Photographs taken by police of the plants located on 2 February 2018 show that they had been tendered with considerable care to maximise, I infer, the likely yield. The six plants largely filled the room. Modifications had been made to accommodate high intensity lights and exhaust fans. Wires were strung from one wall across the room to the other to provide a grow path for the plants. A large drum of a kind often associated with watering systems can also be seen but it is not clear whether there was in fact a watering system installed. Clearly considerable effort and some expense had gone into the set up and ongoing maintenance of the crop. The Magistrate rightly described the arrangements for growing the cannabis as fairly sophisticated.
Lastly, the fact that the plants had reached maturity meant that the appellant commenced the undertaking some time well before 2 February 2018.
As mentioned the appellant was charged with cultivating more than the prescribed number of cannabis plants and possessing prescribed equipment.
The appellant’s personal circumstances
In his 9 December 2015 reasons for sentence the Magistrate recorded:
[15] … You are 28 years of age and you have only two prior offences, in 2014 driving with methyl amphetamine in your oral fluid and in 2007 an offence of drink driving. This is your first time in court for any serious offending.
[16] You grew up in Alice Springs, left school at 15 and became a butcher’s apprentice and you worked at Woolworths. In the butchering trade, you were introduced to methamphetamine by others who were using it. That was social and your use of it increased when you came to Adelaide at the age of about 19 in 2006. You established a long term relationship and became engaged in 2013. However, there were fractures in your relationship last year as a result of your drug use and because of money problems. Your fiancé ultimately lost her employment and unbeknown to you, but on behalf of both of you, she borrowed $10,000 from your father to help meet the mortgage payments. Your discovery of this was the catalyst for the final breakdown of your relationship later in 2014. By this time, you had been a long term regular user of both cannabis and methamphetamine. In the depths of your addiction, you became distant from family and friends. In about September last year, your deteriorating mental health became clear to your family and you sent a picture to your father and mother saying you were going to end it all. It showed you with the shotgun in your mouth. You then went off binging on drugs and were uncontactable for about a week.
[17] It was then that police attended and your offences were discovered. …
[18] Two weeks after your arrest, you attempted suicide, which fortunately was not successful.
[19] I have regard to all of the submissions of your counsel and the three references and the letter from Drug and Alcohol Services which have been tendered on your behalf. You have a close family network, which is helping you try to make the best of a bad situation, which has been brought to a head by these charges. The letter from Drug and Alcohol Services confirms that you have been attending for drug counselling for more than seven months. The clinician describes you as punctual and engaging and perceives that you realise that your involvement with drugs was a significant factor in the breakdown of your relationship and that you intend to maintain abstinence from cannabis with further one to one counselling to help you achieve this. In his letter, your father describes you as a talented junior sportsperson, a good student and as a young man, committed to your work in butchering and then in a garden irrigation business and also to your relationship. He describes your descent into financial difficulties and the contribution to that of your growing drug addiction and that in the last 12 months, since you realised how low things had sunk, that he is very much involved in assisting you by spending time with you during the week (as is your mother on the weekend) and supporting you to change your life. It is clear that he thinks that you are on the path to recovering your health and your commitment to work and family.
[20] I note that a former manager of yours speaks highly of you and your new partner has seen your happiness and outlook improve enormously, particularly since you started counselling for drug use.
In the lead up to his offending in October 2014 the appellant was suffering from drug addiction and depression and was suicidal. Around the time of his offending he had, in fact, been detained under the Mental Health Act 2009 (SA). His poor mental state was the result of a failed relationship.
Prior to entering into the bond in December 2015 the appellant had commenced drug counselling. He had managed to remain drug free between April 2016 and December 2017. Subsequently he re-commenced cannabis use to cope with the loss of his job as a butcher with Holco in December 2017 and the birth of his son in January 2018 and the pressures associated with having two young children.
The appellant is now 31 years old. He and his partner, Ms Gregson, have a daughter and a son who are approximately two years old and 11 months old respectively. The appellant is a good father and partner. Following the birth of their son, Ms Gregson has suffered post-natal depression and severe anxiety. The appellant has responded by taking on a greater role in the care of the children and in assisting her. Ms Gregson describes the appellant as a very good father who enjoys a great bond with both of his children. Happily Ms Gregson reports that her health is improving but she continues to depend upon the appellant’s love and support and the support of his family. A testimonial provided by the appellant’s parents shows that he continues to enjoy their support.

In May this year the appellant obtained work with Drake Supermarkets in their meat centre. A letter from his employer states that he has quickly proven himself a reliable worker and it is anticipated that he will be offered a full-time position in the near future.
In August 2018 the appellant commenced treatment for his drug issues with HOA Drug Arm Australasia, Community and Family Support Services, an organisation offering support around lifestyle and personal issues concerning drug and alcohol use and related treatment programs.
The Magistrate’s remarks
The Magistrate commenced his remarks by reminding himself of the maximum penalties applicable to each of the offences to which the appellant pleaded guilty. He then referred to those offences as breaching the bond imposed on 9 December 2015. He observed:
[3] You breached those conditions fairly smartly by committing two drug driving offences the following year. They were both breaches of the obligation to be of good behaviour but they also breached the obligation not to take drugs.
[4] It appears now, looking at your offender history, that shortly before being dealt with for those offences for which the suspended sentence was imposed you had been apprehended for another cultivation. That was later dealt with by the imposition of a simple good behaviour bond to come up for sentence, so that is another aspect of your offending history that I am now aware of.
The Magistrate reminded himself of the appellant’s personal circumstances as he had recorded them in sentencing the appellant on 9 December 2015 which I have reproduced above and of the appellant’s antecedents. He then noted that the 2 February 2018 offending was not undertaken for commercial gain, but nonetheless could not be treated as an isolated offence.
Next the Magistrate referred to the appellant’s personal circumstances as they currently were before turning to sentence the appellant. He said:
[8]   … taking into account all the matters I must under the Sentencing Act 2017 and bearing in mind the matters I have to consider under Section 44 of the Controlled Substances Act, none of which lead me to have to impose a more severe penalty due to any allegation of commerciality, the offence of cultivating cannabis in this instance involves a reasonably sophisticated hydroponic setup of a nature previously undertaken by you and in relation to which you had received a sentence of imprisonment, which was in that instance suspended. Even though you have done well more recently, the offence of cultivating cannabis and having that equipment requires a sentence that will deter you specifically from such offending and will also operate to deter others. It is relatively low level offending but nevertheless in my view only a sentence of imprisonment can appropriately reflect the gravity of the circumstances of that offending.
[9]   There should be a single sentence imposed for these offences. I take a starting point of 2 months imprisonment and reduce it to 6 weeks to give you credit for your pleas of guilty. The suspension of the sentence which had in fact been extended on one occasion when your breach of it was excused, will be revoked. I reject the argument that proper grounds exist to excuse the breach on the basis of the asserted disproportionality of the outcome. So the sentence of 1 year and 4 months will be activated. It is not open to me to suspend that sentence. That is the view I take. It is not open to order an intensive corrections order. That will commence immediately, 1 year, 4 months with a 7 month non-parole period and the sentence of 6 weeks imprisonment will be served cumulatively upon it. I extend that previous non-parole period by a period of 2 weeks so the total sentence will be 1 year, 4 months and 6 weeks. The non-parole period will be 7 months and 2 weeks. That will commence forthwith. …
[10]   I also conclude that special circumstances do not exist to justify reduction of the revoked suspended sentence.
In rejecting the argument that proper grounds for excusing the breach by the appellant of the bond he entered on 9 December 2015, the Magistrate was referring to s 114(3) of the Sentencing Act. In concluding that it was not open to him to suspend the activated sentence, the Magistrate was dealing with a submission that it was open to the Court to order that the total period of imprisonment could be served on home detention under s 71 of the Sentencing Act. In the alternative to home detention, counsel for the appellant had submitted that the Magistrate could order that the sentence be subject of an intensive correction order. As is clear from paragraph nine of the Magistrate’s reasons that submission was rejected. My understanding is that with respect to the availability of home detention or an intensive correction order in the alternative, the Magistrate considered that he did not have power to order either outcome, not that he had power but such penalties were inappropriate. Admittedly, the Magistrate’s remarks are ambiguous in this regard, but the question of power arose in the course of submissions and the Magistrate adjourned for a short period to consider the question before returning to the courtroom and sentencing the appellant.
Submissions
The first two grounds of appeal challenge the Magistrate’s rejection of the contention that he had power to order that the activated sentence and the sentence for the 2 February 2018 offending be served on home detention or in the community subject to an intensive correction order. The appellant submitted, in effect, that as a matter of construction of the relevant provisions of the Sentencing Act those options were available. Further, this was a case where it was appropriate to make either order bearing in mind the appellant’s family circumstances, his blameworthiness in relation to the original offending, his mental health, his participation in a drug rehabilitation program, his employment and the relative seriousness of the breaching offence. The same factors suggested that an intensive correction order would be appropriate.
With respect to the third ground of appeal the appellant argued that the Magistrate was wrong in concluding that proper grounds did not exist to excuse the breach of the bond. In this regard the appellant contended that the extent of the departure by the appellant from the obligation to be of good behaviour did not warrant revocation.
The argument in support of the fourth ground of appeal was to the effect that having regard to the appellant’s personal circumstances as at 13 September 2018 special circumstances existed justifying a reduction in the revoked suspended sentence.
In relation to the fifth ground of appeal the complaint is that the reasons do not adequately reveal the reasons for declining to excuse the breach of bond or for concluding that special circumstances did not exist justifying a reduction in the term of the suspended sentence. In the present case it is said that the reasons do not allow this Court to determine whether the Magistrate failed to take into account a relevant factor or took into account an irrelevant factor.
The respondent submitted that s 114(3) of the Sentencing Act was, like its predecessor s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA), exhaustive as to the options available to a court upon finding that a suspended sentence had been breached. Those options did not include either home detention or intensive correction orders. Further, and in any event, affording the text of ss 71 and s 81 of the Sentencing Act its ordinary meaning also meant that neither sentencing option could be deployed in circumstances where the court was not itself imposing a sentence for the offences to which the breached bond related. Moreover, having regard to the appellant’s antecedents neither option was appropriate.
In response to the argument advanced in support of the third ground of appeal, the respondent contended that the appellant’s submissions ignored the fact that the February 2018 offending was of a substantially similar character to the original offending. Further, it could not be said that the appellant’s personal circumstances as at February 2018 caused him to engage in the breach offending given the degree of planning and effort necessarily involved in establishing and tending to the cannabis plants.
As to the fourth ground of appeal, the respondent contended that the Magistrate gave adequate regard to the appellant’s personal circumstances as they currently were, including that the appellant now had children and associated responsibilities. But the change of circumstances, it was said, was not significant enough to justify a reduction of the revoked suspended sentence.
Turning to the fifth ground of appeal, the respondent submitted that as the Magistrate was only determining whether to give effect to a suspended sentence, rather than imposing a sentence for the first time, inadequacy of reasons may not amount to an error of law that warrants this Court’s intervention. In any event, the Magistrate’s reasons were adequate given that it is possible to discern the approach the Magistrate took to sentencing the appellant.
Consideration
It is convenient to deal with the third ground of appeal first.
There is no dispute that in committing the offences of 2 February 2018 the appellant acted in breach of the bond he entered into on 9 December 2015. In the circumstances s 114(1)(d) of the Sentencing Act was enlivened. It provided:
[i]f the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—[the sentencing court] must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
Relevantly s 114(3) provided:
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 services—may—
…
(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.
It is important to note that s 114(3) is only engaged upon the court first being satisfied that the probationer has breached the bond. Thereafter the powers contained in s 114(3)(a), (b) and (c) are enlivened if the court is satisfied that the failure to comply with the conditions of the bond was, either, trivial, or, one in relation to which there are proper grounds to excuse. The appellant did not suggest that his failure to comply with the bond of 9 December 2015 was trivial. Rather, he submits that there were proper grounds to excuse his breach. That argument can only succeed if this Court concludes that it was not open to the Magistrate to arrive at the contrary view. Mixed in with this argument was the submission that the Magistrate had misunderstood the task that he was required to undertake in the application of s 114(3) in that he had not turned his mind to an assessment of the extent to which the appellant departed from the obligation contained in the bond to be of good behaviour for the period of the bond. This submission was also linked to the fifth ground of appeal in that the Magistrate’s conclusion that proper grounds do not exist “on the basis of the asserted disproportionality of the outcome” not only, it is said, supported the contention that he did not understand the task required, but amounted to inadequate reasons for concluding that proper grounds did not exist.
The powers vested in a sentencing court by ss 114(3) and 114(5) were previously contained in ss 58(3) and 58(4) of the Criminal Law (Sentencing) Act 1988 (SA) and, before that, ss 9(5) and 9(6) of the Offenders Probation Act 1913 (SA). In R v Buckman, in relation to s 9(5) of the Offenders Probation Act 1913 (SA), King CJ commented:[9]
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.
[9] (1988) 47 SASR 303 at 304.
In that same case Jacobs J said that “proper grounds for excusing the breach look to the nature of the breach and the circumstances in which it was committed”.[10] He added:[11]
In one sense it is easy enough to say that when a recognisance to be of good behaviour is imposed with a suspended sentence, a breach of the recognisance is rarely if ever “excusable”. This Court has on many occasions sought to emphasise the punitive nature of a suspended sentence; not to carry it into effect when the bond is broken diminishes the deterrent and rehabilitative purpose of the suspended sentence, and tends to undermine the authority of the sentencing court. Those are factors to be kept constantly in mind, but the legislation contemplates that a breach may be excusable, if it is trivial or if there are otherwise proper reasons to excuse the breach; but whether trivial or not, those reasons must lie primarily in the nature of the breach itself.
[10] R v Buckman (1988) 47 SASR 303 at 307.
[11] R v Buckman (1988) 47 SASR 303 at 308.
In R v Marston King CJ emphasised the importance of strictly enforcing suspended sentence bonds to maintaining the “integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders”.[12]
[12] (1993) 60 SASR 320 at 322.
More recently in R v Smith Kourakis CJ, with whom Vanstone and Blue JJ agreed, said:[13]
Both the “trivial” and “proper grounds” limbs of s 58(3) of the CLSA invite attention to the nature, extent and circumstances of the breach of the condition to be of good behaviour. The word “proper” is a protean expression which takes its meaning from its context. In the context of s 58(3) of the CLSA, the word takes its meaning both from the other ground, the triviality of the breach, and the condition that the circumstances must be such as to “excuse” the breach. 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.
[13] [2014] SASCFC 98 at [25].
A suspended sentence hangs over the head of an offender like the Sword of Damocles. In that way it is intended to serve as a deterrent. As Jacobs J intimated and the Parliament has implicitly acknowledged, in dealing with an offender who has acted in breach of a bond, simply to revoke the suspension on the basis that the offender abused the reprieve they were given is to reduce the suspended sentence to pursuing the utilitarian value of general deterrence to the exclusion of the other purposes of punishment also pursued by the suspended sentence. Section 114(3) acknowledges that revocation is not an automatic consequence of a breach. The interplay of considerations relevant to an assessment of the circumstances in which the breach was committed may be complex and on occasion intricate.They may indicate that the failure to abide the condition of the bond has not defeated its purpose in the sense that the purpose of suspending the sentence ceases to be appropriate. If the deterrent and rehabilitative purposes of the bond are not unacceptably diminished, if the authority of the sentencing court remains intact, and if the integrity of the suspended sentence as a real sentence is maintained, it is likely proper grounds exist.
In the appellant’s case the offending of 2 February 2018 is the third time he has been detected and charged with offences related to growing cannabis. It is to be noted that the 2 February 2018 cultivation was the first since he entered the bond imposed on 9 December 2015. The cultivation subject of the 3 June 2016 bond was undertaken before the appellant was sentenced on 9 December 2015.
It is also important to observe the qualitative difference between the October 2014 cultivation that was subject of the 9 December 2015 sentence and the 2 February 2018 cultivation; the latter involved no element of commerciality. It is not the case then that the appellant has simply reverted to his former ways, picking up where he left off. It is to his credit that having lost his job, his partner not working and being unwell, and having the pressure of caring for his partner and two small children that he did not.
In December 2015 the Magistrate foresaw the need for the appellant to have the benefit of supervision, but only for 12 months. Thus, when shortly before February 2018 the appellant decided to grow cannabis he was dealing with the pressures of his circumstances without the benefit of professional assistance.
Between 9 December 2015 and 2 February 2018 the appellant was twice dealt with for drug driving and once for driving whilst disqualified. The seriousness of this offending can be measured by the penalties imposed. The bond that the appellant entered into on 9 December 2015, as extended on 24 November 2016, was due to expire on 9 March 2018, some five weeks after he was arrested on 2 February 2018. Thus within the two years and almost two months since he entered into the bond on 9 December 2015, the appellant did not commit an offence which the authorities considered warranted the estreatment of the bond, despite the bond containing a condition that the appellant not take drugs. Further, and in any event, the appellant did not commit a drug offence in the 22 or so months preceding the 2 February 2018 offending, and did not commit any offence in the 19 or so months preceding the 2 February 2018 offending.
At this juncture it is convenient to consider the complaint regarding the adequacy of the Magistrate’s reasons in rejecting the submission that proper grounds to excuse the breach of bond existed. Here the starting point is to observe that s 19(1) of the Sentencing Act imposes a duty on a sentencing court to “state the sentence that it is imposing for the offence or offences and its reasons for imposing that sentence, including (for example) any reason why a sentence that would otherwise have been imposed for the offence or offences has been reduced”. In the discharge of that duty the observations made by Wells J in Shrubsole v Rodriguez provide sound guidance:[14]
Remarks on sentencing are primarily spoken to and for the benefit of the prisoner, and only secondarily to and for the benefit of the world at large. They follow the exercise by the court of a wide judicial discretion by means of which numerous factors are to be brought into a delicate balance, but the results of that exercise are not, except in the rarest of cases, susceptible to being presented as the inexorable outcome of a process of inductive or deductive reasoning. They appear at their most helpful and illuminating when they make plain to the prisoner the disrupting effect of his or her offence upon the community, or some segment of the community; explain to him or her the necessity for the sentence imposed or the order made, and where appropriate, how a particular order will operate for his betterment; and offer to him or her some sensible, practical advice, some serious, pertinent, admonition, or some encouragement, for the future. It would be wrong to force such remarks into an artificial mould whose shape and volume is dictated by the demands of a judicial process fundamentally different from that of sentencing.
I respectfully agree with the remarks of Walters J. in Tame v. Fingleton and of Mitchell J. in Felstead v. Giersch on the desirability of Magistrates stating “the factors which affected or influenced the Magistrate in passing sentence” (see Tame v. Fingleton, at p. 510). Where a substantial penalty is being imposed, it is likely to have a salutary effect on the prisoner and to satisfy the public conscience if those factors are clearly stated; moreover, to state them in the manner suggested above will assist an appeal court asked to review the sentence or order but will not circumscribe the uninhibited exercise by the primary judge of his judicial discretion.
[footnotes omitted]
[14] (1978) 18 SASR 233 at 235-236.

Respectfully, I would add that in a case where a particular sentencing option is urged upon the court but rejected, and, on any reasonable appraisal of all factors relevant to sentencing that option warrants consideration, the sentencing court should state why it was rejected. I also agree with Doyle J when in R v Hibeljic he said:[15]
… where the circumstances of the offending and of the offender have been essayed in the sentencing remarks, it will not generally be necessary to repeat these matters at each stage of the sentencing process. While the issues differ at each stage, there is often little different that can usefully be said at each stage. Having at some point in the sentencing remarks set out all relevant considerations, the conclusion at each stage (including in relation to home detention) often admits of little by way of analysis, let alone by way of detailed exposition of that analysis. While this Court needs to ensure that adequate regard has been had to the differing discretions at each stage of the sentencing exercise, it at the same time needs to be wary of mandating an approach that would require that sentencing remarks include a detailed or exhaustive explication of every step in the process. To do so would result in sentencing remarks becoming unnecessarily, and indeed undesirably and artificially, long and would risk the resort to formulaic repetition in an attempt to articulate what is, after all, meant to be the product of an instinctive synthesis that is often not readily susceptible of detailed articulation.
[15] [2018] SASCFC 35 at [75].
All this said, the grounds upon which this Court may interfere must be borne in mind and if the reasons do not provide the Court with the appropriate level of comfort that all relevant factors have been taken into account, that no irrelevant factor has been considered, that no error of fact or law has been made, and that the sentencing court has understood the task it was required to undertake, then it may be considered that the outcome is unreasonable and arrived at in error.
Reference was also made to s 19(3). It provides:
(3) The validity of a sentence is not affected by non‑compliance or insufficient compliance with this section.
Much has been written in decisions of this Court about the predecessor to s 19(3), namely, s 9(2) of the Criminal Law (Sentencing) Act 1988 (SA).[16] Sections 9(1) and (2) were identical in their terms to ss 19(1) and (3). With respect to s 9(2), in Hodgson v Police, Doyle CJ said:[17]
Does that mean that the sentence is valid but wrong in law and liable to be set aside? Or, does it mean that the sentence is valid and not liable to be set aside unless the absence of reasons is such that a court on appeal cannot properly discharge its functions, or unless the court takes the view that having regard to the sentence imposed, it was necessary for the court to give reasons?
[16] See the various authorities discussed in Jones v Police [2009] SASC 137.
[17] [2002] SASC 35 at [7].
In Jones v Police (Jones) Gray J conducted a comprehensive survey of the authorities. He concluded said:[18]
Common to the approach of the above authorities has been a distinction between the concepts of validity and error. Whilst a failure to comply with section 9(1) will not prevent the sentence delivered from standing as a valid and enforceable order of the Court, this does not preclude a separate challenge alleging that the otherwise valid order was reached by a faulty means such as an error of law or fact, and that it should be set aside.
This approach appears to recognise the different purposes for which reasons are delivered. Earlier decisions have considered that the primary purpose of giving reasons on sentence is for the benefit of the defendant. Later decisions have recognized the additional role of reasons in assisting an appellate court to perform its role of reviewing the sentence. The wording of section 9(1), particularly subsection (b), suggests that both section 9(1) and section 9(2) are concerned primarily with the former rather than latter purpose. In this context, the failure to comply with section 9(1) might be regarded as one of a number of procedural matters not affecting validity of the order of the Court, without precluding subsequent challenge in the event of an error of law or fact.
The provisions of section 9 do not prevent a Court from setting aside a decision where a failure to provide adequate reasons frustrates the discharge of the appellate function by a court of review, or where such failure results in justice being not seen to be done. Section 9(2) saves such a sentence from being regarded as “invalid” in the sense that the sentence will remain a valid order of the Court. However, section 9(2) will not save such an order from being set aside in the event that it was arrived at in error.
[footnotes omitted]
[18] [2009] SASC 137 at [37]-[39].
In M, PA v Police the Full Court cited Jones with apparent approval.[19] In R v Saleh[20] it was suggested that Jones may have to be revisited in the light of the High Court’s decision in Wainohu v New South Wales.[21] In the present case counsel were united in the view that I should approach the application of s 19(3) in the same way as s 9(2) was in Jones. I do so. Whilst a sentence imposed in breach of s 19(1) is unlawful for want of compliance with the legal duty that the section imposes, such breach of itself does not invalidate the sentence imposed.[22] Section 19(3) does not, however, immunise the sentence from any other appealable error. In this connection the absence or inadequacy of reasons may lead an appellate court more readily to conclude that error has been committed. In this way I treat the fifth ground of appeal as supplementary to the third and fourth grounds.
[19] (2012) 218 A Crim R 276 at 284.
[20] [2017] SASCFC 75 at [41].
[21] (2011) 243 CLR 181.
[22] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
Returning to the present case; I have referred above to a number of factors supportive of the submission that to excuse the appellant’s breach of the bond would not unacceptably diminish the deterrent and rehabilitative purposes of the bond imposed on 9 December 2015 or the integrity of the suspended sentence as a real sentence either specifically or generally, and would not undermine the authority of the sentencing court. In particular, the appellant was a short time away from completing the bond, his breach occurred when under considerable stress and with little assistance and support, it was constituted by the commission of an offence similar but qualitatively different to the offence in relation to which the bond was imposed, and was committed after the appellant had managed for a lengthy period not to offend.
As indicated the Magistrate revoked the suspension and stated that he rejected the submission that the disproportionality of the outcome provided proper grounds to excuse the breach. That statement of conclusion does not, taken in isolation, suggest that the Magistrate misunderstood the task he was required to undertake. True that statement does not betray the Magistrate’s reasoning. It is most likely that the Magistrate’s reason was the obvious; this was the appellant’s third cultivation. Twice before he had been afforded leniency. Despite this he chose to offend yet again. The photographs of the 2 February 2018 crop demonstrate, as I have already noted, that considerable effort was devoted to doing what twice courts had told him not to do upon pain of imprisonment. It was not as if growing cannabis was a spur of the moment decision. The plants were planted sometime, likely weeks, before 2 February 2018. Throughout the period leading up to his arrest the appellant must have known what he was risking. He did not heed the warnings he had been given. Not to activate the suspended sentence would undermine that sentencing option as a meaningful penalty generally and in the appellant’s particular case.
Even allowing for the factors supportive of the submission that proper grounds exist, in all the circumstances I cannot say that the Magistrate’s decision was plainly wrong or plainly unjust. I would dismiss the third ground of appeal.
The very last paragraph of the Magistrate’s reasons contained the statement that special circumstances do not exist to justify reducing the revoked suspended sentence. Here the Court was required to look at whether there had been any significant change in circumstance since the time of sentence that would justify a reduced sentence.[23] To justify a reduced sentence the special circumstances must render the original sentence inappropriate:[24]
The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate.
[23] R v Gannon (2009) 103 SASR 398 at [33] (Sulan J, Doyle CJ and Kelly J agreeing).
[24] R v Buckman (1988) 47 SASR 303 at 304 (King CJ).
In the present case the factors which in combination are said to render the original sentence inappropriate are that the appellant is now a father twice over, has gained employment, has embraced treatment, is the sole income earner in his household, and that his partner needs his assistance with the children and more generally. However, knowing these things the appellant nonetheless chose to offend, despite having the benefit of the two warnings to which I have referred and the benefit of leniency. In the circumstances I cannot say that the Magistrate’s conclusion that special circumstances do not exist was plainly wrong or plainly unjust. Unfortunately, the consequences of the appellant’s actions for his family would be the common outcome of the revocation of a suspended sentence imposed on a person with a young family. I would dismiss the fourth ground of appeal.
I turn to deal with grounds one and two. In my view the Magistrate was right to conclude that the revoked suspended sentence could not be served on home detention and could not be served in the community while the appellant was subject to an intensive correction order. I provide three reasons for arriving at this conclusion. First, ss 71(1) and 81(1) provide for sentencing options that may be invoked at the time of the imposition of sentence, whereas s 114 provides for the situation where a sentence has been imposed and suspended is subsequently breached. That is to say, textually ss 71(1) and 81(1) do not apply to applications for the enforcement of breached bonds. In this regard I embrace the reasoning of Nicholson J in R v Oake.[25] In my view the force of that reasoning applies equally to the construction of ss 71 and 81. Second, nothing in s 114 purports to pick up the sentencing options contained in ss 71 and 81 as options available to a court exercising power under s 114. Third, in s 114 Parliament has seen fit to, in effect, re-enact s 58 of the Criminal Law (Sentencing) Act 1988 (SA) in terms not materially different. The Parliament may be taken to have understood the construction afforded to s 58 by this Court and intended the same in relation to s 114.[26] That construction is to the effect that s 114(3) is exhaustive of the steps that may be taken to ameliorate a suspended sentence once revoked under s 114(1)(d).[27]
[25] R v Oake (2017) 128 SASR 260 at [38]-[39]. See also R v Moore-McQuillan [2018] SASCFC 121 at [15]-[18] (Kelly J).
[26] Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489 at [15] (French CJ, Hayne, Kiefel, Gageler and Keane JJ).
[27] R v Oake (2017) 128 SASR 260 at [31]-[34] (Nicholson J).
The first and second grounds of appeal are not made out.
Conclusion
I would dismiss the appeal.