Millhouse v Police

The appellant, Jaystin Rodi Millhouse, appealed against his sentence in the Supreme Court of South Australia. He had pleaded guilty in the Magistrates Court to cultivating a controlled plant for sale and possessing equipment to use with a controlled drug. He was sentenced to seven months imprisonment on the first count. The appeal was based on the grounds that the sentence was manifestly excessive and should have been suspended or partly suspended. The court was required to determine whether the sentence imposed by the Magistrate was manifestly excessive and if there was an error in not suspending or partly suspending the sentence.

The court found that while the appellant's offending was at the lower end of the scale, the offence was still serious. The court considered that the sentence imposed by the Magistrate was appropriate, but there was an error in not considering the possibility of partially suspending the sentence. The court held that the Magistrate erred in failing to have regard to the power under s 38(2a) of the Criminal Law (Sentencing) Act 1988 to partly suspend the sentence. The court found this to be an appropriate case in which to exercise that power. Consequently, the appeal was allowed, and the appellant was re-sentenced to seven months imprisonment, of which four months were suspended on the condition that he entered into a bond to be of good behaviour.

The final orders of the court were that the appellant serve three months in prison and that the remaining four months be suspended on the condition that he enter into a bond to be of good behaviour for those four months. The bond would take effect upon his release from prison. The appellant had been in custody since 16 September 2008, and the court ordered his release from prison on 16 December 2008. The suspended sentence and bond were to come into effect on that date.