McKenna v The Queen - [2022] SASCA 10

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MCKENNA v THE QUEEN
[2022] SASCA 10
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Doyle)
24 February 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
Application for permission to appeal and appeal against sentence.
On 7 February 2019, the applicant was sentenced to three years and six months imprisonment for two offences of aggravated assault causing harm with intent, suspended upon his entering into a three year good behaviour bond.
In late June 2020, police and ambulance emergency services were called to the applicant’s parents’ home, where the applicant resided in a granny flat at the rear of the premises. The applicant had been behaving erratically and had told his parents that he had overdosed on prescription medication in order to self-harm. On arrival at the premises, police observed the applicant lighting a bong and took it from him. The applicant stood up holding a large knife. One of the police officers pointed a taser at the applicant and told him to drop the knife and get on the ground. The applicant did so.
The applicant has a history of mental health related issues, including ADHD and intermittent explosive disorder, and associated drug and alcohol abuse disorders.
On 21 September 2021, the applicant pleaded guilty to two counts of assaulting a prescribed emergency services worker and was sentenced to a single sentence of one year, four months and five days imprisonment (from a head sentence of 18 months imprisonment, discounted by ten per cent on account of his guilty plea and by two days already spent in custody). The sentencing Judge revoked the suspended sentence on account of the applicant’s breach of bond. For both the revoked sentence and the new sentence, the sentencing Judge imposed a single sentence of four years and five days imprisonment (allowing ten months partial concurrency) and fixed a non-parole period of 30 months.
The applicant seeks permission to appeal against his sentence on three grounds: first, that he was sentenced on the erroneous factual basis that he had pulled out a large knife and walked or moved towards the police; secondly, that the sentence was manifestly excessive; and thirdly, that the sentencing Judge should have excused the breach of the suspended sentence bond pursuant to s 114(3) of the Sentencing Act 2017 (SA).
Held, per the Court, granting permission to appeal and allowing the appeal on ground 1:
1.      In relation to ground 1, the sentencing Judge erred in sentencing the applicant on the factual basis that he walked or moved towards the police officers while holding the knife.
2.      The sentence is set aside, and the appellant resentenced.
3.      In resentencing, proper grounds to excuse the breach were not established.
Criminal Law Consolidation Act 1935 (SA) s 20AA; Sentencing Act 2017 (SA) ss 26, 114(3), 114(5), referred to.
Police v Heritage (2019) 135 SASR 1; Ludgate v Police [2018] SASC 175; R v Buckman (1988) 47 SASR 303; Police v Peel (2021) 137 SASR 584; Norman v Lovegrove (1986) 40 SASR 266; Police v Van Boxtel [2013] SASC 82; R v Smith [2014] SASCFC 6; R v Scuteri [2018] SASCFC 103; R v Partridge (2008) 102 SASR 233; R v Drumgoon (unreported, Supreme Court of South Australia, Court of Criminal Appeal (Cox, Perry and Williams JJ), 13 December 1995); Police v Dyke (unreported, Supreme Court of South Australia, King AJ, 1 August 1997). R v Healey (unreported, Supreme Court of South Australia, Court of Criminal Appeal (Prior, Lander and Wicks JJ), 22 September 1998), considered.

MCKENNA v THE QUEEN
[2022] SASCA 10
Court of Appeal – Criminal: Livesey P, Lovell and Doyle JJA

THE COURT: The applicant pleaded guilty to two counts of assaulting a prescribed emergency services worker, contrary to s 20AA of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence is five years imprisonment. The circumstances of the applicant’s offending are outlined later in these reasons. The sentencing Judge imposed a single sentence for both offences of 18 months imprisonment, reduced by 10 per cent on account of his guilty pleas to one year, four months and seven days imprisonment. This was further reduced by two days on account of time spent in custody to one year, four months and five days imprisonment.
The applicant also admitted that, by this offending, he breached the suspended sentence bond that he had entered into on 7 February 2019. On that earlier occasion, the applicant was sentenced by a District Court judge to imprisonment for three years and six months, with a non-parole period of one year and nine months, for two offences of aggravated assault causing harm with intent. The victims of that offending were two very young children with whose mother the applicant was in a relationship. The sentence was suspended upon the applicant entering into a bond to be of good behaviour for three years.
The subject offending occurred less than 18 months after entering into the bond. The sentencing Judge found that there were no proper grounds to excuse the breach of bond and that it was appropriate to revoke the suspended sentence imposed on 7 February 2019.
The sentencing Judge allowed for 10 months partial concurrency in respect of the subject offending, resulting in an overall head sentence of four years and five days imprisonment. His Honour fixed a non-parole period of 30 months.
The applicant seeks permission to appeal on three grounds, contending that the sentencing Judge erred:
1.in sentencing him on an erroneous factual basis (namely that he pulled out a large knife and walked or moved towards the police);
2.in imposing a sentence for the subject offending that was manifestly excessive; and
3.by failing to excuse the breach of the suspended sentence bond pursuant to s 114(3) of the Sentencing Act 2017 (SA).
The application for permission to appeal was referred for hearing in conjunction with the appeal.
Circumstances of the subject offending
At about 6.30 pm on 26 June 2020, police were called to the applicant’s parents’ home in Whyalla Norrie. The applicant was living in a granny flat at the rear of the premises. The applicant’s parents had called an ambulance as the applicant told them that he had overdosed on prescription medication in an attempt to self-harm. They had also called police due to his erratic behaviour.
Constable Spano and Probationary Constable Brazil attended the premises, and the applicant’s father accompanied them to the granny flat. The officers observed the applicant holding a bong. Constable Spano took the bong from the applicant and turned away from the applicant to place it on a table. When she turned back around, she saw that the applicant had stood up and was holding a large knife. The blade was estimated by the police officers to be between 15 and 20 centimetres long. In his sentencing remarks, the Judge said that the applicant “pulled out a large knife, raised it and walked toward the police”. Later in his remarks, the Judge said that the applicant “drew a large knife on the officers and moved toward them”.
Probationary Constable Brazil drew his taser and pointed it at the applicant whilst instructing him to drop the knife and get onto the ground. The applicant dropped the knife, knelt on the ground and was handcuffed. The applicant then struggled and tried to roll onto his back.
The applicant repeatedly asked the officers why they had not shot him, telling them that he had wanted to die. The applicant was escorted to the police vehicle. Once alongside the police vehicle, the applicant lifted his foot and kicked the rear window. He was restrained on the ground until an ambulance arrived and took him to hospital.
The applicant’s offending did not involve him making any physical contact with either of the police officers. Neither of the police officers suffered any physical or psychological injury.
The offending occurred in circumstances where the applicant had been suffering from mental health difficulties, and related substance abuse issues, and his relationship with his parents, particularly his father, had been declining for several months. It had reached the point where his parents had told him that he was no longer welcome at their address. A few days prior to his offending, the applicant’s great aunt had died. On the day of his offending, the applicant was told that he was not able to attend her funeral due to COVID-19 restrictions on numbers. It was after learning this news that the applicant overdosed by taking a number of Valium tablets and pain killers. He had also been smoking cannabis and had consumed a large amount of spirits.
Erroneous factual basis
Ground 1 involves a complaint that the Judge sentenced the applicant on an erroneous factual basis. As initially framed, the ground focused upon the Judge’s reference to the applicant having “pulled out” and “raised” the knife. However, as ultimately pressed, the applicant’s submission was that the Judge erred in sentencing him on the basis that, while holding the knife, he “walked” or “moved” towards the police officers. The applicant submitted that the Judge erred in departing from the prosecution factual summary, and in making an adverse finding that was not supported by the evidence.
Sentencing submissions were made on the basis of a written prosecution summary of the facts which made reference to the applicant having stood up, and having pulled out and raised a large knife. But it made no reference to the applicant having walked or moved towards the police officers. The Judge declined the prosecutor’s offer to address him or the facts, and neither counsel made any submission or suggestion that the applicant walked or moved towards the police officers while holding the knife.
In sentencing on the factual basis that he did, it appears that the Judge had regard to the affidavits of the police officers that were in the materials available to the Court. In particular, Constable Spano said in her affidavit that when she turned and saw the applicant standing and holding a knife, she yelled at him to put it down. She said that she saw the applicant “take steps towards me quickly”.[1]
[1] Alternatively, the sentencing Judge might have obtained this same information from Constable Spano’s version of events appearing in the police apprehension report (and summarised in the pre-sentence report).
The finding that the applicant walked towards the police officers while holding the knife was a material adverse finding. It added to the threatening and dangerous nature of his behaviour, and the fear it would have instilled in the police officers. It added to the seriousness of his offending in a material way.
The difficulty with the sentencing Judge’s reliance upon Constable Spano’s version of events in making this finding is that he did so without notice that he intended to do so. In the circumstances described, the applicant’s counsel was entitled to assume that the applicant would be sentenced on a factual basis that did not differ in any materially adverse way from what appeared in the prosecution summary.
This difficulty is significant in the present case because the applicant contends that there was no proper basis for the Judge to have found beyond reasonable doubt that he did walk or move towards the officers while holding the knife. The applicant relies in this respect upon the body camera footage of the incident, which he contends negates Constable Spano’s suggestion that he walked or moved towards her while holding the knife.
It seems that the sentencing Judge did not have the body camera footage available to him. But this is of no consequence; it is likely that it would have been made available to him if there had been any suggestion during sentencing submissions that the applicant be sentenced on the basis that he walked or moved towards the police officers while holding the knife.
There was no objection to this Court receiving the body camera footage. The Court has viewed the footage. As might be expected, the incident occurred very quickly, and it is difficult to determine from the footage whether the applicant made any forward movement (beyond standing up with the knife in his hand) prior to him dropping the knife. If he did make any forward movement, it was very limited and did not add materially to the threat and danger posed by him having produced the knife. Having produced the knife, he held it only fleetingly. He dropped it virtually immediately upon being told to do so by the police officers.
Given the body camera footage, there was no proper basis for sentencing the applicant on the basis that, having produced the knife, he walked or moved towards the police officers. As there has been a factual error in relation to a matter materially adverse to the applicant, it is appropriate that the application for leave to appeal, and the appeal itself, be allowed on Ground 1. The applicant must be resentenced.
In the circumstances there is no need for this Court to address the remaining two grounds. However, the matters advanced in support of those grounds will be relevant to the Court’s exercise of its sentencing discretion, both in relation to the subject offending and the revocation of the suspended sentence.
Before resentencing the applicant, it is appropriate to expand upon his personal circumstances.
Personal circumstances
As at the date of sentencing, the applicant was 24 years of age. He was born in Whyalla, but lived for a number of years with his family in Townsville, where his father was stationed with the army. He relocated to Adelaide with his family when he was about 12 years old. He struggled at school; he regularly got into trouble and was bullied. He fell into the wrong crowd and began to abuse a variety of drugs, sometimes going on binges for days on end. According to his psychologist, the applicant suffers from a severe cannabis use disorder, and a moderate alcohol abuse disorder.
The applicant completed year 11 at high school. He returned to Whyalla with his family when he was about 17 or 18 years of age.
In addition to substance abuse problems, the applicant has had a lung condition since birth which causes him to suffer from pneumonic asthma.
The applicant has a limited work history. During 2018 he worked at Hungry Jacks. In 2019 he was employed by a labour hire firm and worked at OneSteel for several months. In March 2020 he was engaged by another labour hire firm and continued working at OneSteel until early June 2020 (that is, until just prior to the subject offences). In April 2021, while on bail for the subject offending, the applicant was placed back on a roster for work at OneSteel on a casual basis. He was sentenced, and returned to prison, in September 2021.
The applicant was not in a relationship at the time of his sentencing, but had become a father for the first time in May 2021, when his then partner gave birth to their son. The Department for Child Protection intervened after the birth and he was not permitted to have any contact with his son. The sentencing Judge surmised that this was on account of the nature of the offences for which he was sentenced in 2019 (see below), and the fact that domestic violence allegations had been made against him by his former partner. The applicant told the writer of his pre-sentence report that he thought the Department had acted without any justification, but that he was prepared to work with them to establish a relationship with his child.
In terms of his mental health, the applicant was diagnosed with attention deficit hyperactivity disorder when he was a young child. He has also been diagnosed by a psychologist as having intermittent explosive disorder, which makes it difficult for him to control his temper. According to that psychologist, the applicant’s difficulties in controlling his temper, including on the occasion of his offending, were likely exacerbated by his substance abuse.
Prior to the removal of his son, the applicant was engaging with the Whyalla Community Mental Health team. He was also counselled by a psychiatrist for mental health issues. It was this psychiatrist who first prescribed Valium, which the applicant then began to abuse. Despite these interventions, the applicant continued to abuse alcohol, which he said caused him to become depressed and have negative thoughts.
As the sentencing Judge observed, because the applicant had been on both bail and a bond over the period leading up to the subject offending, it was possible to make some assessment of his attempts at remaining abstinent from illicit substances. Between 2018 and 2021, he was subjected to urine analysis on six occasions, saliva testing on 16 occasions and breath testing on one occasion. Three of his samples tested positive for cannabis, and on one occasion he refused to provide a sample. The sentencing Judge concluded that those results suggested that the applicant was capable of periods of abstinence from drugs when motivated to do so.
In February 2018, the applicant participated in a counselling program conducted by Life Without Barriers for support with his drug problem. He attended 15 of the scheduled 27 sessions. He said that he found those sessions helpful.
The applicant has no criminal antecedents other than the offending that led to his entry into a suspended sentence bond in February 2019.
The earlier offending
In relation to that earlier offending, the applicant pleaded guilty to two charges of aggravated causing harm with intent. The circumstances of the offending were that in about June 2017 the applicant commenced a relationship with a young woman who at the time had two very young children. The applicant was 20 years of age and his partner was 18 years of age. The two children were aged just under two and just under one. The applicant’s partner had separated from the biological father of the two children earlier in the same year. The applicant and his partner had been living together in Whyalla for a couple of months and were heavy users of cannabis and ice.
In November 2017, it came to the attention of the police and child care authorities that the two children had visible injuries in various places on their bodies, including their heads and faces. The applicant was sentenced on the basis that he caused the injuries to both children on their buttocks and thighs, and on the backs of their hands. He was sentenced on the basis of his admission that he smacked both children on the buttocks when they would not go to sleep, and that when it appeared that their buttocks were too sore he smacked them on the back of their hands. The sentencing Judge sentenced him on the basis that it was apparent from the photographs of the children’s injuries that the very substantial bruising in those areas must have been apparent to the applicant. As recounted earlier, the applicant was sentenced to a period of imprisonment of three years and six months for this earlier offending (reduced by 30 per cent on account of his pleas of guilty from a notional starting point of five years imprisonment). The Judge imposed a non-parole period of one year and nine months.

In suspending that sentence the Judge said:
There remains the extremely difficult question of suspension. Understandably, the prosecution opposes suspension. This was serious offending against two vulnerable children. On the other hand, you were very young at the time, you have no prior convictions, you had an untreated mental illness, and I accept that you are truly remorseful. You have spent some time in prison. Somewhat belatedly you have taken some steps to get proper treatment of your mental health problems.
In combination I think these matters do amount to good reason to suspend the sentence. I will do that if you will enter a bond in the sum of $1,000 to be of good behaviour for three years. During two of those three years you will be under the supervision of a community corrections officer. You will have to obey that officer’s directions as to anger management, drug rehabilitation and you will have to undertake psychological and psychiatric treatment recommended by community corrections.
Revocation of the suspended sentence bond
The applicant has admitted that, by his offending on 26 June 2020, he breached the suspended sentence bond that he had entered into on 7 February 2019.
As mentioned, the sentencing Judge found that there were no proper grounds to excuse the breach of bond and hence that it was appropriate to revoke the suspended sentence of three years and six months imprisonment. His Honour reasoned as follows:
I turn to consider the question of whether there are proper grounds to excuse the breach. A significant matter in that regard is the circumstances of the two breaching offences. The offending occurred in the context of significant intoxication and having taken an overdose of prescription medication. I take into account the upsetting news you had received on the day of the offending with respect to your great aunt. I have also considered that your mental state had been declining in the months prior to this incident and that on the day of the offences you had apparently decided to make an attempt on your life. They are matters which explain but which do not significantly ameliorate the circumstances of the breaching offences. The police who attended at your parents’ house did so because their assistance had been requested to help you and in that sense they were there to take action in your best interests. You drew a large knife on the officers and moved toward them. One of the officers was apprehensive enough to feel the need to draw his taser. Police officers and, indeed all emergency services workers are entitled to discharge their duties without fear that they will be assaulted by members of the public and in particular the very persons whom they are called upon and duty-bound to assist.
Furthermore, you were on a bond for serious offences of violence and your breaching offences, whilst not acts of domestic violence, were self-evidently violent in nature.
I am not satisfied that there are proper grounds to excuse the breach of bond. I am satisfied that it is appropriate to revoke the suspended sentence imposed on you on 7 February 2019.
In circumstances where this Court has concluded that the sentencing Judge proceeded upon an erroneous factual basis that enhanced the seriousness of the subject offending, it is appropriate that we form our own view as to whether proper grounds existed to excuse the breach under s 114(3) of the Sentencing Act 2017 (SA).
As Blue J observed in Police v Heritage,[2] s 114 of the Sentencing Act evinces a clear legislative policy that ordinarily a breach of a condition of a suspended sentence bond should result in the offender serving the full term of the original sentence, and the Court should not lightly interfere by refraining from revoking the suspension (or reducing the term) of the earlier sentence.
[2] Police v Heritage (2019) 135 SASR 1 at [21] (Blue J, Stanley and Lovell JJ agreeing).
That said, revocation of the suspension of a sentence of imprisonment is not an automatic consequence of a breach of a suspended sentence bond. As Hinton J explained in Ludgate v Police:[3]
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 [in R v Buckman[4]] 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.
[3] Ludgate v Police [2018] SASC 175 at [46] (Hinton J).
[4] R v Buckman (1988) 47 SASR 303 at 307-308 (Jacobs J, King CJ agreeing).
The authorities governing the considerations bearing upon the existence of proper grounds for excusing a breach of a suspended sentence bond under s 114(3) were recently reviewed by the Full Court in Police v Peel.[5] There is no need to repeat the summary of the authorities in that case. It is sufficient to observe that the considerations relevant to the existence of proper grounds focus upon the nature of the breach and the circumstances in which it was committed, and any disproportionality between the nature and extent of the breach and the severity of the consequence of revoking the suspension and requiring the original sentence to be served.[6] While this invites a focus upon the objective circumstances of the breach offending, nevertheless a consideration of the seriousness of the breach, and any disproportionality inherent in a revocation of the suspended sentence, may in some cases also be informed by personal circumstances that bear upon the defendant’s culpability in committing the breach.[7]
[5]     Police v Peel (2021) 137 SASR 584 at [1]-[3] (Kourakis CJ), [5] (Kelly J) and [28]-[44] (Doyle J), summarising and applying Norman v Lovegrove (1986) 40 SASR 266 at 267 (Prior J, King CJ agreeing) and 271 (Olsson J, King CJ and Prior J agreeing), R v Buckman (1988) 47 SASR 303 at 304-305 (King CJ) and 307-309 (Jacobs J, King CJ agreeing) and Police v Heritage (2019) 135 SASR 1 at [21]-[31] (Blue J, Stanley and Lovell JJ agreeing).
[6]     Police v Peel (2021) 137 SASR 584 at [35], [38] (Doyle J, Kourakis CJ and Kelly J agreeing).
[7]     Police v Peel (2021) 137 SASR 584 at [2] (Kourakis CJ) and [39] (Doyle J, Kourakis CJ and Kelly J agreeing) and Police v Heritage (2019) 135 SASR 1 at [31] (Blue J, Stanley and Lovell JJ agreeing).
The applicant acknowledged the seriousness of his breach offending. It involved drawing a knife on two emergency services workers. While spontaneous and relatively fleeting, it was undoubtedly threatening and dangerous behaviour that must be strongly denounced and deterred.
In contending that the circumstances of the breach offending were nevertheless not so serious as to justify the revocation of the suspension of his earlier sentence of imprisonment, the applicant emphasised (i) the reduced seriousness of his offending once stripped of the erroneous finding that he walked or moved towards the police officers whilst holding the knife; (ii) his reduced culpability by reason of his mental health difficulties; and (iii) the different character and lesser seriousness of the breach offending relative to his earlier offending.
As to (i), it is appropriate, for the reasons explained, that this Court approach the matter on the basis that the applicant’s conduct was less threatening and dangerous, and thus less objectively serious, than the sentencing Judge found. However, even stripped of the erroneous finding, the offending remained serious. The creation of bespoke offences for causing harm to emergency workers (ss 20AA(1) and (2)) or assaulting them (s 20AA(3)), and the significant maximum penalties prescribed for each,[8] reflect Parliament’s concern to protect emergency workers from this type of the conduct, and its view as to the seriousness of such conduct. As the sentencing Judge observed, “police officers and indeed all emergency services workers are entitled to discharge their duties without fear that they will be assaulted by members of the public and in particular the very persons whom they are called upon and duty-bound to assist.”
[8] Being five years imprisonment in respect of an assault in contravention of s 20AA(3).
As to (ii), we accept that the applicant’s culpability was reduced by reason of his troubled mental state at the time of his offending, and that, as explained in Police v Peel, this was relevant to the existence of proper grounds. As detailed earlier, the applicant’s offending occurred against a long background of mental health difficulties and related difficulties with substance abuse. These difficulties included an intermittent explosive disorder, exacerbated by substance abuse. At the time of the offending he was experiencing a particularly acute episode. His relationship with his parents had deteriorated virtually to the point of collapse, he was struggling with the circumstances of the recent death of his great aunt, and he had overdosed by taking a number of Valium tablets and pain killers, smoking cannabis and consuming a large amount of spirits. These circumstances, combined with the applicant’s underlying mental health difficulties, undoubtedly contributed to his dangerously inappropriate response when confronted by two police, and in particular when Constable Spano removed the bong he had been using.
As to (iii), the applicant emphasises the very different character of the earlier offending and the present offending. The former involved inappropriate and excessive chastisement of two young children over a sustained period of time, whereas the latter involved a spontaneous decision to pull a knife on two police officers without making any physical contact with them, let alone causing either of them any physical or psychological injury. While it is true that the offending on each occasion was quite different, this is of limited significance given the underlying violent nature of the offending on both occasions.
In summary, even accepting that the breach offending was less serious than the earlier offending, we do not think that warrants a conclusion that it would be a disproportionate response to the breach offending to revoke the suspension of the sentence for that earlier offending.
It is true that proper grounds may exist even though the breach offending is not trivial. However, as reflected in the sentence we intend to impose in respect of that offending, it remains serious offending. Despite the applicant otherwise complying with the conditions of his suspended sentence bond, and despite his attempts to address his mental health difficulties and to engage in rehabilitation more generally, we consider that the revocation of the suspension of his earlier sentence would unacceptably diminish the deterrent and rehabilitative effects of the suspended sentence bond, and undermine the authority of the sentencing court in imposing that bond.
For these reasons, in resentencing the applicant, we would, like the sentencing Judge, and for essentially the same reasons as the sentencing Judge, revoke the suspension of the sentence earlier imposed upon the applicant.
Under s 114(5) of the Sentencing Act, the Court may, if it considers that there are special circumstances justifying it in so doing, make an order reducing the term of the suspended sentence. The authorities make it plain that the special circumstances that must exist to authorise a reduction in the term of the activated sentence must be such as to render the original sentence inappropriate for the earlier offending. Put another way, the Court must conclude that had the circumstances now existing (being typically circumstances personal to the offender) existed at the time of the original sentence, the original sentence would have been rendered inappropriate.[9]
[9] R v Buckman (1988) 47 SASR 303 at 304 (King CJ); Police v Heritage (2019) 135 SASR 1 at [25] (Blue J, Stanley and Lovell JJ agreeing).
As originally formulated, the applicant’s proposed grounds of appeal challenged the sentencing Judge’s conclusion that there were no special circumstances that would justify a reduction in the term of the activated sentence under s 114(5) of the Sentencing Act. The basis for the challenge was the mental health difficulties confronted by the applicant.
However, no submission of special circumstances had been advanced before the sentencing Judge, and this challenge was not ultimately pressed. The applicant’s counsel also disavowed any submission that this Court might, in resentencing, conclude that special circumstances exist.
These concessions were well made. Despite some additional information that is now available as to the nature and extent of the applicant’s mental health difficulties, the essential nature of these difficulties was a circumstance that existed, and was expressly considered and taken into account, when the applicant was sentenced for the earlier offending.
For these reasons, this Court must revoke the suspension of the sentence of imprisonment imposed for the applicant’s earlier offending. The applicant must serve the sentence of three years and six months imprisonment. It is unfortunate that the well-intentioned attempts of the applicant’s parents to help their son escalated into the incident and offending that have resulted in the imposition of a significant period of imprisonment. However, we see no way, consistent with proper sentencing principles, of avoiding this outcome.
The subject offending
The circumstances of the subject offending, and the applicant’s personal circumstances, have already been addressed at length and need not be repeated.
Like the sentencing Judge, we consider it appropriate to utilise s 26 of the Sentencing Act and impose a single sentence for the two offences of assaulting a prescribed emergency worker. While it is relevant that there were two police officers present when the applicant produced the knife, and hence two victims of his offending, nevertheless his offending involved the one act directed towards both victims.
While the applicant’s offending did not cause the police officer victims any physical or psychological harm, and was spontaneous and fleeting, his production of a knife was threatening and dangerous conduct. Even putting to one side the sentencing Judge’s finding that the applicant walked or moved towards the police officers whilst holding the knife, and accepting (as the body camera footage suggests) that, when requested, he immediately dropped the knife and dropped to his knees, the offending was threatening and dangerous. The policy rationale underpinning the creation of the s 20AA offences, and the specification of significant maximum penalties, calls for a strong sentencing response from the Court, particularly by way of denunciation and deterrence. The applicant’s mental health difficulties, both generally and in the immediate lead up to his offending, together with his intoxication at the time of his offending, reduce his personal culpability. However, they do not, in our view, alleviate the need for a significant sentence of imprisonment.
For the two counts of assaulting a prescribed emergency worker, we would start with a sentence of 15 months imprisonment. After reducing this by 10 per cent on account of the applicant’s pleas of guilty,[10] and allowing a further two days on account of time served, we would impose a sentence of 13 months and 12 days imprisonment.
[10] Giving 13 months and two weeks imprisonment.
The sentencing Judge ordered that the sentence imposed for the subject offending be served concurrently as to 10 months with the activated sentence of three years and six months for the earlier offending. When this Court questioned the appropriateness of this approach, we were directed to several authorities supporting its permissibility.[11]
[11] Police v Van Boxtel [2013] SASC 82 at [41]-[42] (White J); R v Smith [2014] SASCFC 6 at [21]-[23] (Sulan J, Nicholson J agreeing); R v Scuteri [2018] SASCFC 103 at [40] (Peek J, Lovell and Doyle JJ agreeing). See also R v Partridge (2008) 102 SASR 233 at [54] (Gray, Sulan and David JJ).
We accept that there is nothing in s 114 of the Sentencing Act, or any other matter of principle, that prevents a sentencing court ordering concurrency as between the estreated period of imprisonment and the sentence of imprisonment for the breach offending. Indeed, it might be said that the conferral (under s 114(5)(e)) of a discretionary power to order that the two sentences be served cumulatively implicitly assumes a power to order that they be served concurrently in the event that the sentencing court declines to exercise its discretion to make them cumulative.[12]
[12] R v Scuteri [2018] SASCFC 103 at [40] (Peek J, Lovell and Doyle JJ agreeing); R v Drumgoon (unreported, Supreme Court of South Australia, Court of Criminal Appeal (Cox, Perry and Williams JJ), 13 December 1995).
That said, a sentence imposed for breach offending should ordinarily be made cumulative upon the earlier suspended sentence that has been activated. As King AJ observed in Police v Dyke:[13]
As a general principle, sentences for subsequent offences which give rise to the activation of an earlier suspended sentence should be made cumulative upon the activated sentence.
It makes a mockery of a suspended sentence if it is simply absorbed into the sentence for the subsequent offending. There are, of course, exceptions to every rule but there is nothing in the circumstances of the present case, to my mind, which could justify making the sentences for the subsequent offending concurrent with the activated sentence.
[13] Police v Dyke (unreported, Supreme Court of South Australia, King AJ, 1 August 1997), cited in Police v Van Boxtel [2013] SASC 82 at [41] (White J).
Similar observations have been made in other authorities.[14] In R v Drumgoon,[15] Perry J (with whom Cox and Williams JJ agreed) said:
Under s 58(4)(c) of the Criminal Law (Sentencing) Act 1988 [being the predecessor to s 114 of the Sentencing Act], the Court … may, if it revokes the suspension of a sentence of imprisonment, direct that the sentence “be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer”. That section identifies a discretion. There is no obligation necessarily to direct that the activated sentence be cumulative upon any other sentence. In an appropriate case there is no reason why such a sentence could not be made concurrent with another sentence.
…
On the other hand, ordinarily, where the defendant has committed an offence while on a bond, upon the basis of which a sentence of imprisonment has been suspended, the activated sentence should not be made concurrent with other sentences. To do so would tend to nullify the significance of the suspension, and undermine the importance of observing the conditions of the bond. That is not to say, however, that there will [not] occasionally be cases where the “totality” principle might dictate another course.
[14] Police v Van Boxtel [2013] SASC 82 at [41] (White J); R v Nguyen (2002) 84 SASR 190 at [64] (Gray J); R v Healey (unreported, Supreme Court of South Australia, Court of Criminal Appeal (Prior, Lander and Wicks JJ), 22 September 1998).
[15] R v Drumgoon (unreported, Supreme Court of South Australia, Court of Criminal Appeal (Cox, Perry and Williams JJ), 13 December 1995) at p 6 (per Perry J, Cox and Williams JJ agreeing).

In Police v Van Boxtel,[16] White J observed that, in circumstances where the suspended sentence was unusually lengthy (in that case, close to five years), it may be appropriate to take account of the deterrent and rehabilitative effect likely to be achieved by the offender’s service of that previously suspended sentence, and to do so by ordering partial concurrency.[17]
[16] Police v Van Boxtel [2013] SASC 82 at [42] (White J).
[17] As noted in the concluding sentence of the passage quoted above from R v Drumgoon, the same concern might be addressed through a reduction on totality grounds.
It may be that the sentencing Judge had similar considerations in mind when ordering partial concurrency in the present case, albeit that his Honour only expressly mentioned the applicant’s relative youth and efforts towards ceasing his drug use in support of that approach.
In any event, having conceded the permissibility of concurrency in circumstances such as the present, the respondent accepted that in resentencing the applicant it would not be appropriate for this Court to deprive the applicant of the leniency inherent in the sentencing Judge’s approach. For that reason, we would, like the trial judge, order that the sentence for the breach offending be served concurrently as to 10 months with the sentence of imprisonment activated by the revocation of the suspension.
We would thus impose a total head sentence of three years, nine months and 12 days imprisonment.
It is necessary to set a new non-parole period. The non-parole period fixed by the earlier sentencing Judge was one year and nine months. In our view, the personal circumstances of the applicant, including not only those relevant to the culpability of his offending, but also his young age and the steps that he has taken to commence his rehabilitation, justify a relatively short non-parole period. There is room for cautious optimism that, with proper treatment for his mental health and substance abuse difficulties, he has reasonable prospects of successfully rehabilitating himself. We would fix a non-parole period of one year and 10 months.
We would order that both the head sentence and the non-parole period take effect from the date the applicant was originally sentenced, namely 21 September 2021.
Conclusion
We grant the application for permission to appeal, and allow the appeal on Ground 1. We set aside the sentence imposed below and resentence the applicant on the following basis. The suspension of the sentence of three years and six months imprisonment imposed on 7 February 2019 is revoked. A sentence of 13 months and 12 days imprisonment is imposed for the subject offending. This sentence is to be served concurrently as to 10 months, resulting in a total head sentence of three years, nine months and 12 days imprisonment. A non-parole period of one year and 10 months is fixed. Both the head sentence and the non-parole period are to take effect from the date the applicant was originally sentenced, namely 21 September 2021.