MCINTEE v Police - [2022] SASC 100

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
MCINTEE v POLICE
[2022] SASC 100
Judgment of the Honourable Justice Kimber
9 September 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
The appellant appeals against a sentence imposed by a Magistrate. The appellant entered guilty pleas in respect of offences committed on 17 February 2021 (the February offences) and 6 July 2021 (the July offences). The February offences were Assault Causing Harm, Theft, Property Damage and Resist Arrest. The July offences were Breach of Bail, Serious Criminal Trespass with Intent to Damage Property and Property Damage.
After separate reductions for the pleas of guilty, the Magistrate fixed several individual sentences. One of the individual sentences was 22 days for the Theft, after a reduction of 30 per cent for the plea of guilty. The Magistrate made some sentences concurrent, arriving at a period of 12 months and 20 days. That period was reduced by one month and 19 days for time spent in custody. The Magistrate believed the appellant had spent six months and five days on home detention bail. The Magistrate stated he would give a reduction of five days for each month and gave a further reduction of 30 days. The period on home detention bail was in fact six months and fourteen days. This resulted in a total head sentence of 10 months and one day. The Magistrate declined to suspend the head sentence, but ordered it be served on home detention.
On appeal, the appellant put forward the following grounds of appeal:
1. The sentence for the Theft was manifestly excessive.
2.The Magistrate failed to give consideration the participation of the appellant in an Abuse Prevention Program.
3.The Magistrate erred in his approach to the period on home detention bail. In particular, the Magistrate understated the period on home detention; erred in not giving a reduction equivalent to the entire period on home detention bail; in the alternative, erred in not giving a greater reduction that five days for each month.

4.      A home detention sentence was manifestly excessive.
Held per Kimber J, allowing the appeal on Ground 3:
1.      The sentence for Theft was not manifestly excessive.
2.      The Magistrate did not err in failing to refer to the Abuse Prevention Report.
3.Whether to give a reduction for a period on home detention bail and, if a reduction is given, the extent of that reduction is subject to a broad discretion. The Magistrate did not err in not giving a reduction equivalent to the period on that form of bail, nor did he err in not giving a period of greater than five days for each month. The only error the Magistrate made with respect to a reduction for the period on home detention was to understate the period on home detention bail. In the circumstances of this case, the appeal must be allowed on ground 3. The exercise of the discretion to give a reduction must be revisited, as must consideration of whether good reason exists to suspend the sentence.
4.The appellant is re-sentenced to an effective total head sentence of nine months and one day, to be served on home detention.

Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 13; Sentencing Act 2017 (SA) s 71(1), referred to.
House v The King (1936) 55 CLR 499; Tazebe v Police [2013] SASC 194; R v Kong (2013) 115 SASR 425; R v Tsonis (2018) 131 SASR 416, applied.
Kentwell v The Queen (2014) 252 CLR 601; Playford v Police [2017] SASC 26, considered.

MCINTEE v POLICE
[2022] SASC 100
Magistrates Appeal: Criminal
KIMBER J:
Background

This is an appeal against sentence. The appellant entered pleas of guilty to offences committed on 17 February 2021 (the February offences) and 6 July 2021 (the July offences). The February offences were Assault Causing Harm, Theft, Property Damage and Resist Arrest. The July offences were Breach of Bail, Serious Criminal Trespass with Intent to Damage Property and Property Damage.
For the February and July offences, the Magistrate imposed a total head sentence (the head sentence) of 10 months and one day. After fixing individual sentences (after reductions of 30 per cent for the pleas of guilty), the head sentence was arrived at in the following way. For the February offences: a sentence of two months and three days for the Assault Causing Harm, a sentence of 22 days for the Theft and a single sentence of two months and three days for the two offences of Property Damage and Resist Arrest (that single sentence to be served concurrently with the sentence for Assault Causing Harm). For the July offences: conviction without further penalty for the Breach of Bail, nine months and 25 days for the Serious Criminal Trespass in a Place of Residence and one month and 15 days for the Property Damage (to be served concurrently with the sentence for Serious Criminal Trespass in a Place of Residence). Having arrived at a period of 12 months and 20 days, the Magistrate reduced that period by one month and 19 days for time spent in custody and then further 30 days for what he described as six months and five days on home detention bail. This resulted in the head sentence of 10 months and one day. The Magistrate declined to suspend the head sentence, but ordered it be served on home detention.
Grounds of Appeal
The amended notice of appeal sets out six grounds as follows:
1.The Home Detention sentence of 10 months and 1 day was manifestly excessive.
2.The Learned Sentencing Magistrate failed to give sufficient consideration (in the alternative failed to give adequate consideration) to the 8 months and 3 weeks already served by way of Home Detention bail.
3.The Learned Sentencing Magistrate erred, in the exercise of his discretion, to not wholly suspend the term of imprisonment imposed pursuant to section 96(1) of the Sentencing Act 2017 (SA).
4.In the alternative to 3) above, the Learned Sentencing Magistrate erred, in the exercise of his discretion, to not impose a Home Detention sentence upon penalty, pursuant to section 71 of the Sentencing Act 2017 (SA), that gave sufficient, proper or adequate consideration of the time already spent on home detention bail.
5.The Learned Sentencing Magistrate erred in sentencing the Appellant, by declining to impose either a wholly suspended term of imprisonment, or in the alternative, a Home Detention sentence that reflected the time already spent on Home Detention bail.
6.The Learned Sentencing Magistrate erred in failing to take into account the Abuse Prevention Program report dated 12 May 2022.
As can be seen, there is some overlap between the grounds of appeal and some grounds were expanded during the hearing of the appeal. That being so, I will treat the appellant as advancing four grounds of appeal, namely:
1.The sentence for the Theft was manifestly excessive.
2.The Magistrate failed to give consideration the participation of the appellant in an Abuse Prevention Program.
3.The Magistrate erred in his approach to the period on home detention bail.
4.A home detention sentence was manifestly excessive.
For the reasons which follow, I allow the appeal on Ground 3 as outlined at [4] above but dismiss the remaining grounds. I allow Ground 3 as in exercising the discretion to give a reduction for time spent on home detention bail, the Magistrate understated the period spent on that form of bail. I am satisfied that error requires me to revisit that discretion afresh. As I would give a greater reduction for time on home detention bail, thereby reducing the total head sentence to nine months and one day, I must also consider whether good reason exists to suspend that sentence. Good reason does not exist to suspend that sentence, but it is appropriate that sentence be served on home detention.
The offending
It is convenient to begin by summarising the offending of the appellant.
The February offending
At about midday on 17 February 2021, the victim was leaving a house, having attended that premises for his work. As he was walking from the house towards his vehicle, the victim observed the appellant walking towards him and spit over the fence of the house. The victim then said to the appellant: ‘Do you mind not doing that? That’s one of my client’s houses’. The appellant became agitated and commenced taking photos of the registration plate of the car of the victim. The victim got into his car, and while the window of the driver’s door was down, the appellant attacked the victim, punching him through the open window and delivering two or three punches to the right side of the victim’s face. The victim started the car and put his window up. The appellant struck the window and door of the car, before pulling the driver’s door open. The appellant then punched the victim again. Following the assault, the appellant took the victim’s wallet from the door of the car. When later arrested, the appellant resisted arrest.
As a result of the offending, the victim suffered a broken nose and bruising to his face. The car was damaged. The wallet stolen was an item of sentimental value and not recovered, although some of its contents were found. During sentencing submissions, a Victim Impact Statement was read to the Magistrate. The Magistrate described the impact of the offending as ‘both physical and mental’, causing ‘significant financial difficulties, relationship difficulties and a complete deterioration of his enjoyment of life’.[1]
[1] Remarks on Penalty of Magistrate B Dixon, 7 June 2022, p. 2.
The July offending
The July offending involved the appellant entering the home of his former girlfriend at Gawler South while intoxicated. That forced entrance took place in the following way. The appellant banged on the front and back door with a hammer before forcing entry. The occupants took refuge behind a bedroom door. The appellant struck that door with a hammer, causing ‘significant’ damage.[2] During the course of the incident, the appellant ‘made reference to a well-known horror film’ which the Magistrate found ‘would … have intimidated and threatened (the) victims’.[3] The Breach of Bail offence concerned the breach of a condition not to use alcohol.
[2] Ibid.
[3] Ibid.
Ground 1 – The sentence for Theft was manifestly excessive
The circumstances of the Theft are set out above.
In submitting the sentence was manifestly excessive, the appellant particularly emphasised his absence of prior offending, compliance with home detention bail, the steps he had towards rehabilitation and his mental health issues, including that he was suffering from those issues at the time of the offence.
As to the steps towards rehabilitation, the appellant had not only complied with conditions of home detention bail. Commencing in October 2021, he had also participated in an Abuse Prevention Program over about six months and his engagement in that program was reported as positive. As to mental health issues, the Magistrate had a report before him from Dr Begg, a psychiatrist. Among other things, Dr Begg reported the appellant had been hospitalised for two days as a voluntary patient in February 2021 after a ‘suicidal episode’. Dr Begg further reported the appellant suffered from Borderline Personality Disorder, the predominate feature of which was experiencing anxiety causing an angry or violent outburst. On appeal, the appellant emphasised the Magistrate said he was ‘mindful… that where a person offends while suffering from a mental health condition issues of deterrence become less significant in the sentencing process’.[4] The effect of the submission of the appellant was that observation of the Magistrate did not find reflection in the sentence imposed.
[4] Remarks on Penalty of Magistrate B Dixon, 7 June 2022, p. 3.
Consideration
The contention a sentence is manifestly excessive is a complaint the sentence was unreasonable or plainly unjust such that it can be inferred the outcome has been attended by error.[5] It is not enough that the appellate court would have imposed a different sentence to that imposed by the Magistrate.[6] Rather, the sentence must be ‘outside the permissible range of sentences for the offender and the offence’.[7]
[5] House v The King (1936) 55 CLR 499, 504-505.
[6] Ibid.
[7] Kentwell v The Queen (2014) 252 CLR 601, [35].
There is no sentencing standard for the offence of Theft. The Theft was not the most serious offence of its type, it was an opportunistic offence and the item taken had more sentimental than monetary value. Nonetheless, it had a serious aspect. Whilst care needed to be taken not to sentence the appellant for committing a robbery, nor sentence the appellant twice for Assault Causing Harm, it remained relevant the offence was committed after the victim had been attacked. After a reduction of 30 per cent for the plea of guilty, the sentence of 22 days may have been a strong one for a first offender, but I am not persuaded it was manifestly excessive. A sentence of 22 days after a discount of 30 per cent was within the range of appropriate sentences. This ground is dismissed.
Ground 2 – Failure to give consideration to participation in an abuse the prevention program
The appellant had been recommended for an intervention order program under s 13 of the Intervention Order (Prevention of Abuse) Act. [8] The Magistrate had been provided with a report (the report) about the participation of the appellant in that program. The report set out the appellant had been engaged in the program and demonstrated insight into appropriate strategies to regulate his behaviour. The Magistrate made no reference to the report, or its content, in his sentencing remarks. The appellant submitted the absence of reference to the report constituted a failure to take account of a ‘material consideration’, particularly given the light the report shed on the appellant’s rehabilitative prospects.
[8] Intervention Order (Prevention of Abuse) Act 2009 (SA) s 13.
The report did not refer to the February or July offending. Nonetheless it was provided to the Magistrate during sentencing submissions and was the subject of oral submissions. The appellant was sentenced on the same day as submissions on sentence were made. I accept the report shed some light upon the rehabilitative prospects of the appellant, but it had far less significance than the report of Dr Begg which was necessarily more detailed and made specific reference to both sets of offending. The Magistrate referred to pertinent aspects of the report of Dr Begg in his sentencing remarks.
In all of the circumstances, I am not satisfied the Magistrate erred in failing to refer to the report, nor am I satisfied the Magistrate did not take it into account. A sentencing court is not obliged to refer to every relevant matter.[9] That a matter is not expressly set out as having been relied upon or considered by a sentencing court does not, of itself, indicate that it was not considered.[10]
[9] Playford v Police [2017] SASC 26, [24].
[10] Tazebe v Police [2013] SASC 194, [10].
This ground is dismissed.
Ground 3 – Error in the approach to the period on home detention bail
As set out above, before arriving at the sentence the Magistrate gave a reduction of one month and 19 days for time the appellant had spent in custody and a further reduction of 30 days for time spent on home detention. The time on home detention bail was approached in the following way. The Magistrate set out the appellant had spent six months and five days on home detention bail and then said he was ‘prepared to allow five days for each month by way of reduction, making a reduction of 30 days imprisonment’.[11] Contrary to the understanding of the Magistrate, the appellant had spent six months and 14 days on home detention bail. That error is only one of the complaints advanced by the appellant under this ground, but I will deal with that error first.
[11] Remarks on Penalty of Magistrate B Dixon, 7 June 2022, p. 4.
The remarks of the Magistrate can be construed in more than one way. One reading is the intention was to give a reduction of five days for every completed month. On that basis, the abovementioned error would have made no difference. Another reading is the intention was to give five days for every completed month and some allowance for any part of a month, provided it called for a reduction of at least a day. That reading is open as the belief of the Magistrate was there was only an additional five days on home detention bail, beyond the sixth completed month. Presuming for the moment a reduction of five days was appropriate for each 30 days (i.e. – one month) on home detention bail, the five days on home detention fell short of requiring any additional day by way of reduction. There are arguments in favour of both readings of the approach of the Magistrate. On one view, it may be surprising if the first reading was correct. In that event, as an example, had the additional period beyond a completed month been almost a whole month on home detention bail, there would have been no reduction for that period, despite the Magistrate determining that five days per month was an appropriate reduction. On another view, given the reduction to be allowed for a period on home detention bail is a discretionary one not amenable to precision, an approach of five days for each completed month may have been what was intended. However, in this case, as there is no doubt the Magistrate overlooked a period of nine days, it follows the discretion was exercised on an incorrect basis, one which may have been unfavourable to the appellant.
Given the broad discretion which exists in giving a reduction for home detention bail and that it is not a calculation amendable to precision, it may be that in many cases an error of this type is not a ‘process error’. Nonetheless, in this case, the Magistrate having exercised the discretion to give a reduction for the period on home detention bail and having determined with precision how that reduction was to be calculated (i.e. - five days for every month), I am satisfied the error understating the period on home detention bail is a ‘process error’. It follows the appeal must be allowed, at least with respect to the approach taken to the reduction for the period on home detention bail and, if a different total head sentence is arrived at, whether good reason exists to suspend the sentence must be considered afresh.[12]
[12] R v Kong (2013) 115 SASR 425, [45]-[47].
Given the appeal will be allowed on this ground and I will need to consider afresh the discretion with respect to a reduction for the period on home detention bail, it may be unnecessary to deal with the balance of the complaints made about the approach of the Magistrate to home detention bail. Nonetheless, consideration of those complaints will inform my approach to the discretion.
In submitting the Magistrate failed to give ‘sufficient, proper or adequate consideration’ to the period on home detention bail, the primary submission of the appellant was that when a home detention sentence is imposed, time on home detention bail should be treated as equivalent to time in custody. In the alternative, the appellant submitted that, in the circumstances of this case, a greater reduction than five days for every month should have been given.

A necessary starting point is the decision whether to give a reduction for time spent on home detention bail is a discretionary one. There is no obligation to give a reduction. Further, if a reduction is given, the extent of that reduction is also discretionary. It is well settled there is no formula or ordinary approach. In R v Tsonis the Court held:[13]
In the context of determining the extent of any credit to be given for time spent on home detention bail (as opposed to time spent in custody), the courts do exercise a very broad discretion having regard, inter alia, to the nature and extent of the conditions imposed upon the defendant, the imposition they represent for the defendant, and the defendant’s compliance with them. In some cases the sentencing judge may quite appropriately give no credit at all for the time spent on home detention bail, although depending upon the length of time involved and other matters, such as those mentioned above, that will not always be appropriate. And further, where credit is given, there is no formula for determining the extent of the credit to be given. While full credit (in the sense of day for day credit) will rarely if ever be appropriate, the permissible range will generally be quite broad.
(Footnotes omitted)
[13] R v Tsonis (2018) 131 SASR 416, [86].
The present issue is whether the broad discretion which ordinarily exists applies when the sentence imposed is ordered to be served on home detention. Put another way, in that situation, must the reduction be equivalent to the time spent on home detention bail?
In my view, notwithstanding that the conditions on home detention bail may be the same as the conditions in place when a sentence is served on home detention, the discretion whether to give a reduction, and if one is given, the extent of that reduction, remains subject to a broad discretion. I am of that view for the following reasons. First, as held in R v Tsonis,[14] consideration of the discretion will take account of more than one matter and those matters may vary from one case to another. That potential for variation is not amenable to a single fixed approach. Second, unlike a period on home detention bail, a home detention sentence is just that – a sentence. The person has been convicted and a sentence imposed. That being so, their position is materially different to a person on bail for offending yet to be established. For that reason alone, even when the conditions on home detention bail mirror in every respect the conditions to be in place when serving a home detention sentence, I am not prepared to assume the approach to monitoring of those conditions, including approaches in granting permission to leave the home, will be the same.
[14] R v Tsonis (2018) 131 SASR 416.
There is potentially a third consideration, although one about which it is unnecessary to decide in the absence of full submissions. The submission of the appellant may be inconsistent with the approach demanded by s 71(1) of the Sentencing Act 2017 (SA). That is, that the length of the sentence must be determined before consideration can be given to ordering that sentence be served on home detention.
Section 71(1) states:[15]
(1)     Subject to this section, if—
(a)     a court has imposed a sentence of imprisonment on a defendant; and
(b)     the court considers that the sentence should not be suspended under Part 4 Division 2; and
(c)     the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may order that the defendant serve the sentence on home detention (a home
detention order).
[15] Ibid.
The natural reading of s 71(1) is that consideration of the discretion to order the sentence be served on home detention sentence is conditioned on two matters. First, the imposition of a sentence of imprisonment. Second, that good reason does not exist to suspend the sentence. In my view, for both of those conditions to be met, the length of the sentence must be identified, requiring any reduction for time on home detention to be made before the court can consider the discretion to order the sentence be served on home detention. Put another way, before a reduction is given, or not given, the court will not have ‘imposed a sentence of imprisonment’ as the court cannot do so until the final length of the sentence is determined. Further, the length of the sentence will be one of many matters to be considered in evaluating whether there is good reason to suspend the sentence of imprisonment.
I turn to the alternative submission of the appellant, namely that the Magistrate did not give ‘sufficient, adequate or proper’ weight to the period on home detention bail. An aspect of that submission is that more than five days for every month was appropriate. This complaint of the appellant must also be dismissed. That a sentencing court gave insufficient, inadequate or improper weight to a relevant sentencing consideration is not, of itself, capable of enlivening the authority of the Appeal Court to intervene.[16] Further, as set out above, the discretion to give a reduction having been exercised, the approach to the extent of the reduction involved a broad discretion.
[16] R v Lutz (2014) 121 SASR 144, [47].
Ground 4 – A home detention sentence was manifestly excessive
I will deal with this ground as it will inform the approach I must undertake having allowed the appeal on Ground 3.
On the hearing of the appeal, the appellant particularly advanced the following submissions. First, good reason existed to suspend the sentence and, for that reason, a sentence to be served on home detention was manifestly excessive. Second, the Magistrate erred in not making the sentence for the Theft concurrent with the sentence for the Assault Causing Harm. Third, the Magistrate erred in not allowing at least some concurrency between the February offending and the July offending.
The complaints about an absence of concurrency
It is convenient to deal first with the two complaints about concurrency.
In Attorney-General (SA) v Tichy, Wells J outlined the relevance of offending forming part of one course of criminal conduct:[17]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[17] Attorney-General (SA) v Tichy (1982) 30 SASR 84, 92-93.
It is not only where offending can be described as a single course of conduct that a degree of concurrency may be appropriate. Less than fully cumulative sentences may be appropriate when the similarity and proximity of multiple offences overlap. Sentencing courts have a broad discretion in achieving an aggregate sentence which is proportionate.[18]
[18] R v Copeland (No 2) [2010] 108 SASR 398, [102]-[106]; Giordiamania v The Queen [2020] SASCFC 28, [34]-[35].
The Magistrate did not fall into error in ordering the sentence for the Theft be cumulative upon the sentence for the Assault Causing Harm. In respect of the February offending, while there was considerable overlap between the offences (i.e. - the victim was the same for both the offences which occurred at the same time), cumulative sentences were within a proper exercise of the sentencing discretion. Notwithstanding the overlap, it remained the case that the two offences involved different conduct and different intentions. The victim having been assaulted, the appellant made a separate, albeit opportunistic, decision to steal.
The Magistrate also did not fall into error in not ordering any concurrency between the February offending and July offending. Those two sets of offending were about four months apart and the motivations on each occasion were very different. The February offending may be characterised as spontaneous violent conduct towards a stranger. The July offending involved the appellant using a weapon to forcibly enter the home of a former partner, with the intention of causing property damage and delivering on that intention. The Magistrate was entitled to conclude a wholly cumulative approach between the two sets of offences was warranted to adequately address and achieve the objectives of the sentencing process. In my view, bearing in mind the offending and the appellant’s personal circumstances, a sentence of 12 months and 20 days (before the reductions for time in custody and on home detention bail) was proportionate.
Whether a sentence on home detention manifestly excessive
I turn to whether a sentence of home detention was manifestly excessive. The Magistrate rejected a suspended sentence as appropriate ‘given the serious nature of [the appellant’s] offending and the fact that on each offence there are victims who have suffered at [the appellant’s] hands, it would be entirely inappropriate to suspend the sentence’.[19]
[19] Remarks on Penalty of Magistrate B Dixon, 7 June 2022, p. 4.
On appeal, the appellant particularly emphasised his lack of relevant offending history, mental health issues, performance on home detention bail and participation in the Abuse Prevention Program as matters which favoured a finding of good reason to suspend the sentence. In my view, notwithstanding the matters advanced by the appellant, the decision to order the sentence be served on home detention did not result in a sentence which was manifestly excessive.
It is not sufficient upon review that an Appeal Court would have come to a different conclusion than the Sentencing Court. The sentence must be unreasonable or plainly unjust.[20] The appellant offended on two separate occasions. There were some serious aspects to that offending. The February offending involved an attack upon a victim who had done no more than make an appropriate request. The response of the appellant was without justification and violent. The victim was struck more than once, causing physical and emotional injury. The February offending did not end there. The appellant then damaged the vehicle, took the wallet and continued his anti-social conduct once the police arrived. There were also the July offences. The Serious Criminal Trespass in July was a serious example of an offence of its type. The appellant was armed. The occupants of the house had to seek refuge behind a door. The appellant damaged that door using the weapon. That offending was aggravated by the appellant being on bail.
[20] House v The King (1936) 55 CLR 499, 505; Markarian v The Queen (2005) 228 CLR 357, [25].
While there were some matters in favour of finding good reason to suspend the sentence, particularly the lack of prior offending, pleas of guilty, mental health issues and positive participation in the Abuse Prevention Program, in all the circumstances, it was open to the Magistrate to take a different view. That is particularly so given the seriousness of the July offences, committed while on bail and against the background of the offending in February. The order the sentence be served on home detention was not manifestly excessive.
Ground 4 is dismissed.
Re-sentencing
For the reasons given, Ground 3 must be allowed. The approach taken to the period on home detention must be revisited. Those aspects of the sentence unaffected by error will not be interfered with, namely the individual sentences, the approach to concurrency and the reduction for time in custody. That approach resulted in a sentence of 11 months and one day before any reduction for the period on home detention.
Against that background, the bail issue is the period of six months and fourteen days on home detention bail and whether I should reduce the period of 11 months and one day for that period. Although the Magistrate was not wrong to give five days for each month, the discretion is a broad one and I must exercise that discretion afresh. I am not bound by the approach of the Magistrate. In exercising the discretion to give a reduction for the period on home detention bail, I would give a greater reduction than the Magistrate. I reduce the period of eleven months and one day to a total head sentence of nine months and one day.
The total head sentence is less than that arrived at by the Magistrate. I must consider whether good reason exists to suspend the sentence. Before the offending the subject of this appeal, the appellant had no relevant offending. The appellant appears to have complied with home detention bail, and that part of his home detention sentence served to date. The appellant pleaded guilty and has mental health issues which likely impacted upon his conduct in both February and July 2021. The report of Dr Begg and the participation of the appellant in the abuse Prevention Program are consistent with the rehabilitative prospects of the appellant being reasonable, provided he does not use alcohol or other drugs.
Nonetheless, the need to protect the community is the paramount consideration and personal deterrence is important, particularly in light of the offending being unprovoked and the appellant’s Borderline Personality Disorder. It is the opinion of Dr Begg that the disorder of the appellant will endure and has as its predominant feature experiences of anxiety and an increased risk of an angry or violent outburst. The offending in July was particularly serious as it involved a weapon and was aggravated by being committed while on bail. Given those matters, good reason does not exist to suspend the total head sentence of nine months and one day.
I order the sentence of nine months and one day be served on home detention with the balance of the conditions imposed the same as those imposed by the Magistrate. That sentence will commence on the same day as the Magistrate imposed sentence, 7 June 2022.
Orders
1.The appeal is allowed.
2.The appellant is re-sentenced.
3.I will hear the parties as to any further orders.