Police v HERITAGE - [2018] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HERITAGE
[2018] SASC 47
Judgment of The Honourable Justice Parker
11 April 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
This is an appeal by the police against a decision by a Magistrate to excuse a breach of a suspended sentence bond.
The respondent assaulted his domestic partner and was sentenced to imprisonment for nine months, suspended upon entry into a good behaviour bond. The respondent subsequently assaulted the same victim in breach of the bond. A Magistrate excused the breach of the bond but extended its term by six months under ss 58(3)(a) and 58(3)(b)(i)(A) of the Criminal Law (Sentencing) Act 1988 (SA).
On appeal, the appellant contends that the Magistrate erred by having regard to the personal circumstances of the respondent and by having insufficient regard to the circumstances of the offending.
Held per Parker J, dismissing the appeal:
1. When determining whether there are proper grounds to excuse a breach of a bond under s 58(3), the court may consider the personal circumstances of the defendant when those factors properly form part of the circumstances of the breaching offence and suggest that revocation of the suspended sentence may be a disproportionate response, per R v Buckman (1988) 47 SASR 303; R v Marston (1993) 60 SASR 320; R v Gannon (2009) 103 SASR 398; R v Smith (2014) 118 SASR 487. In this case the Magistrate did not err by having regard to the personal circumstances of the respondent, at [51]-[54].
2. A contention that a sentencing judge gave insufficient weight to relevant factors is incapable of enlivening intervention of an appeal court in circumstances where the error alleged is a process error and not one of manifest inadequacy, per Police v Chilton (2014) 120 SASR 32; R v Lutze (2014) 121 SASR 144. In any event, it is clear that the Magistrate took into account the circumstances of the offending, at [56].
Criminal Law (Sentencing) Act 1988 (SA) s 58, referred to.
R v Buckman (1988) 47 SASR 303; Police v Chilton (2014) 120 SASR 32; Police v Deng [2017] SASC 151; R v Gannon (2009) 103 SASR 398; Johnson v South Australian Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995); R v Lutze (2014) 121 SASR 144; Manning v Police (1993) 59 SASR 427; R v Marston (1993) 60 SASR 320; R v Reynolds (Unreported, Supreme Court of South Australia Court of Criminal Appeal, Mulligan, Debelle and Nyland JJ, 27 October 1995); R v Smith (2014) 118 SASR 487; Stanitzki v Higgins (1994) 63 SASR 309; Police v Summers [1998] SASC 6950; Police v Vannarath [2015] SASC 187, discussed.

POLICE v HERITAGE
[2018] SASC 47
Magistrates Appeal: Criminal

PARKER J: This is an appeal by the police against a decision by a Magistrate to excuse a breach of a suspended sentence bond. For the reasons that follow I would dismiss the appeal.
Background
On 12 September 2016 the respondent assaulted his domestic partner who was then 26 weeks’ pregnant (‘2016 offence’). The respondent had struck the victim across the head with a cat scratching pole causing a 4 cm laceration that required hospital treatment. The respondent pleaded guilty to aggravated assault causing harm. On 21 December 2016 he was sentenced by a Magistrate to imprisonment for nine months which was suspended upon entry into an 18 month good behaviour bond (‘the bond’). The Magistrate warned the respondent that he would “go into custody if [he laid] a finger on anybody else in the future”.
On 2 November 2016 the Magistrates Court confirmed a basic intervention order against the respondent. That order included a condition that the respondent must not assault, threaten, harass or intimidate the victim.
On 20 September 2017 the respondent assaulted the same victim whilst she held their infant child. The respondent was watching television, became upset with the victim and punched her in the face. She became dazed and suffered a blood nose but did not require medical treatment. The respondent pleaded guilty to two charges of aggravated assault against a child or a spouse and contravening a term of an intervention order (‘2017 offences’).
On 12 October 2017 the appellant applied for orders with respect to the respondent’s breach of the bond. The breach was admitted by the respondent. On 16 October 2017 a Magistrate sentenced the respondent for the breach of the bond and the 2017 offences. The Magistrate excused the breach of the bond but extended its term by six months under ss 58(3)(a) and 58(3)(b)(i)(A) of the Criminal Law (Sentencing) Act 1988 (SA) (‘Sentencing Act'). In relation to the 2017 offences, the Magistrate adopted a starting point of three months’ imprisonment. That sentence was discounted by 40 percent due to the respondent’s early pleas. He was also given credit for the 26 days he had spent in custody. This resulted in a sentence of imprisonment for 28 days, which was suspended upon entry into an 18 month good behaviour bond.
The ground of appeal
The only ground of appeal is:
The learned Magistrate erred in applying s 58(3) of the Criminal Law (Sentencing) Act 1988 to excuse the respondent’s failure to comply with the condition of a bond by having regard to personal circumstances of the defendant and having insufficient regard to the circumstances of the offending.
The sentencing remarks
The Magistrate noted that the respondent had pleaded guilty at the earliest opportunity. Her Honour went on to describe the 2016 offence and the 2017 offences:
[2]…You caused a laceration by striking your partner with a cat scratching pole while she was 26 weeks pregnant. She ended up having to go to hospital by ambulance. She sought assistance from police and the hospital. You were immediately remorseful and made full admissions about the argument that you had with her over money and what you did after that, is you picked up a scratching pole and hit her with it. You immediately came to her assistance and police observed this when they attended the home address where they found a blood soaked towel to the victim’s head and you were assisting her in trying to stop the blood from flowing. This assault caused a 4 cm laceration to her head and it is as a result of that matter that you were given the suspended sentence bond of nine months. You were also ordered not to assault, threaten, harass or intimidate her which was a basic Intervention Order that was put in place from 2 November 2016.
[3]You breached that condition as a result of this fresh offending. You got upset with the victim whilst watching television and you ended up punching her once with a clenched fist to her nose whilst she was holding your 10 month old child. She became dazed and she ended up with a blood nose. She ran to the neighbour and the neighbour called police. Police observed blood later, both at the neighbour’s address and at your address. You did not answer any questions. There was no medical intervention in relation to the victim’s injury.
Her Honour then noted the criminal history and the personal circumstances of the respondent at some length:
[4]You come before the court with some history. That includes a Restraining Order in 2012 in relation to a different victim. On 18 July 2011, you pleaded to three counts of aggravated assault; the assaults having been committed on 12 January 2011. You were placed on a two year good behaviour bond without any conditions.
[5]…You have been in a relationship with the victim for two years. She is in support of you in court with your mother. She has also provided a detailed letter of support that I have taken into consideration. You have a 10 month old child together and you have a family unit where you are residing with your child and your partner. She is a stay-at-home mother. Prior to your incarceration you were working at Seeley’s International as a factory hand. You do have a good work history and you have various qualifications, both in civil construction, traffic control, child care and horticulture as well as fencing work that you acquired while you were still at school. You have had your own mental health issues resulting from your parents’ domestic violence that you witnessed as a child, and in the end your father directed his anger towards you. You were physically assaulted around 12 years of age. You ended up receiving psychological treatment from CAMS at the age of 16 and then later from a psychologist and psychiatrist at the age of 19. At the time you were diagnosed with anxiety, depression and post traumatic stress disorder. The post traumatic stress disorder having arisen due to your father’s domestic violence towards you and your mother. You also sought some treatment from a psychologist last year at Old Reynella and you have been placed on some medication called Seroquel.
[6]In relation to this matter, you have also had an exacerbation of your post traumatic stress disorder earlier this year having been the victim of a home invasion. The offender has pleaded guilty. You were stabbed during the course of that home invasion, and your partner was present. That occurred in January 2017.
After considering those matters the Magistrate concluded that revoking the bond would be “disproportionate and oppressive” to the offending before the Court. Her Honour’s reasons were as follows:
[7]Mr Hill has submitted that you are genuinely remorseful for your actions. This was not a sustained attack on the victim, but a single strike, and was committed against the background of your mental health issues. I would agree with that submission. I note that the reference that has been provided to the court by the Chaplain from the Catholic Prison Ministry Committee talks about you not being on your medication at the time and that you have now been assisted in that regard. I consider that with the mental health issues that you have; the anger management issues that you have; the history that you have in terms of assaults, not just on this victim but on others, that you need to obtain professional assistance. I consider that if I was to revoke the bond of nine months imprisonment it would be disproportionate and oppressive to the offending that is before me. I have taken into account that you are a young man with a 10 month old child and financially supporting your partner and child. You have mental health issues that have been outlined, and you yourself have been the victim of domestic violence and also more recently, the victim of a home invasion. You need professional help and you need to do something about it so that you can stay out of the criminal justice system.
[8]In all the circumstances, with respect to the application for enforcement of a breach of bond, for the reasons that I have outlined, I do consider good reasons exist for me to refrain from revoking that bond. Instead I will extend the period of that bond by six months. That means that bond will expire on 20 December 2018.
Her Honour then went on to sentence the respondent for the 2017 offences:
[9]In relation to the fresh offending, you have already served a term of imprisonment of 26 days. I consider that in relation to this matter, you are entitled to a 40 percent discount. I would normally be imposing a period of imprisonment of three months. With the 40 percent discount, that is reduced to one month and 24 days. I consider that taking into account the time that you have spent in custody, namely, 26 days, there are 28 days left that you should serve. However, I consider that it is important that you address your mental health issues and your anger management issues for the future so that you can remain a productive member of the community and also without any violence. What I propose is that I suspend the remaining 28 days of imprisonment that are attached to your sentence and I order that you be under the supervision of the Department for Correctional Services. In particular for that supervision to include addressing mental health issues, anger management issues and domestic violence issues. The bond will be for 18 months and for that period you are to be supervised. I am partially suspending your sentence so it means that what you have served has been taken into consideration and the balance will be suspended, but you will be under supervision of the Department for Correctional Services. On your release form you will receive details of where you are to report and you are to report within two working days and make sure you attend all the programs considered necessary to assist you in your rehabilitation. They might undertake a psychological assessment to see exactly what is going on and then organise appropriate rehabilitation so that you can be a good father, a good spouse, and a productive person in the community. The court fees are waived, but the victims of crime levy and prosecution costs need to be paid.
Section 58 of the Sentencing Act
The powers of a court when dealing with a breach of bond are set out in s 58 of the Sentencing Act. It relevantly provides:
58—Orders that court may make on breach of bond
(1)Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
(a)     …
(b)     …
(c)     …
(d)     if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
(2)     …
(3) Where 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 upon which the failure should be excused, the court—
(a)     may refrain from revoking the suspension; and
(b)     may—
(i)     —
(A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
(B)…
(C)     …
(D)     revoke or vary any other condition of the bond; or
(i)     …
(4)     …
(5)     …
(Underlining added)
In the present matter, the sentencing Magistrate exercised her power under s 58(3)(a) to refrain from revoking the suspension and under s 58(3)(b)(i)(A) to extend the term of the bond by six months.
The appellant’s submissions
The appellant submits that the Magistrate erred in her application of s 58(3) of the Sentencing Act. While the appellant acknowledges that Crown appeals against sentence will only succeed in exceptional circumstances, it submits that the error of principle made by the Magistrate requires the intervention of this Court.
The appellant refers to the finding of the Court of Criminal Appeal in R v Buckman that the clear legislative policy expressed in what is now s 58(3) of the Sentencing Act is that a breach of a suspended sentence bond should result in the offender serving the suspended sentence. The Court “will not lightly interfere” with this ordinary consequence.[1]
[1] (1988) 47 SASR 303 at 304, King CJ.
When considering under s 58(3) whether there are proper grounds to excuse a failure to comply with the conditions of a bond the Court should consider the nature of the breach and the circumstances in which it was committed rather than the personal circumstances of the offender.[2] Proper grounds to excuse a failure to adhere to a bond may be found where the “breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it”.[3] That may be the case where the breaching offence is of “a quite different character from that for which the sentence was imposed”.[4]
[2] Ibid at 307, Jacobs J.
[3] Ibid at 304, King CJ.
[4] Ibid at 305 King CJ.
The appellant further submits that matters that arise subsequent to the breach of the bond are not relevant to the application of s 58(3). That provision is only concerned with the circumstances existing at the time of the breach and whether the breach should be excused.[5] If the offending that has given rise to a breach of the bond is of the same character as that which the suspended sentence was intended to deter, that is a factor in favour of revocation of the bond.[6]
[5] Ibid at 308, Jacobs J.
[6] R v Pham [2003] SASC 386 at [88]-[90], Perry J, Besanko J agreeing, Mullighan J dissenting; R v Chandra (Unreported, Supreme Court of South Australia Court of Criminal Appeal, Doyle CJ, Cox and Williams JJ, 17 February 1998).
The appellant drew the attention of the Court to the fact that certain decisions of single judges have suggested that it is permissible, when applying s 58(3), to consider the personal circumstances of a defendant in an exceptional or special case.[7] However, the Full Court has reiterated on a number of occasions that the proper approach to the application of s 58(3) is that adopted in R v Buckman.[8] Counsel for the appellant made detailed submissions about the authorities.
[7] Johnson v South Australian Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995); R v Reynolds (Unreported, Supreme Court of South Australia Court of Criminal Appeal, Mulligan, Debelle and Nyland JJ, 27 October 1995) 6, Debelle J with Mullighan and Nyland JJ not deciding the point; Police v Summers [1998] SASC 6950 at [23], Olsson J.
[8] R v Smith [2014] SASCFC 6; R v Gannon (2009) 103 SASR 398 at [31]-[32], Sulan J, Doyle CJ and Kelly J agreeing; R v Pham [2003] SASC 386 at [70], Perry J, Besanko J agreeing, Mullighan J dissenting; R v Chandra (Unreported, Supreme Court of South Australia Court of Criminal Appeal, Doyle CJ, Cox and Williams JJ, 17 February 1998); R v Marston (1993) 60 SASR 320 at 322, King CJ, Perry and Duggan JJ agreeing.
The appellant submits that the circumstances of the breach were plainly not trivial. Thus, it was necessary for the Magistrate to consider whether there were proper grounds to excuse the breach. The appellant submits that her Honour erred by focusing upon the respondent’s personal circumstances. If the Magistrate had compared the offending that had given rise to the suspended sentence and bond with the offending which breached the bond it would have been apparent that there was no relevant disproportion. In fact, the appellant submits that the current offending is more serious than the earlier offence. The respondent had assaulted the same victim while she held their infant child. That conduct also breached an intervention order made to protect the victim from further violence of this kind. The purpose of the suspended sentence bond was to deter further violent offending, especially offending against this victim. The reoccurrence of that offending spoke strongly in favour of revocation of the bond.
For these reasons the appellant submits that the Magistrate erred by focusing upon the personal circumstances of the respondent. The circumstances required the Magistrate to revoke the suspension and order that the respondent’s earlier sentence be carried into effect. On that basis the appellant submits that the sentence should be set aside and the respondent re-sentenced by this Court.
During the course of submissions counsel for the appellant conceded that the certificate of record prepared by the Magistrates Court is incorrect as it purports to indicate that the suspended sentence of 54 days imposed upon the appellant was backdated. There are two errors. First, the suspended sentence could not be backdated.[9] Secondly, the record does not recognise that the Magistrate gave the respondent credit for the 26 days he had spent in custody. The respondent submits that this Court should direct the Magistrates Court to correct the record or, alternatively, this Court should exercise its power under s 42(5)(c) of the Magistrates Court Act 1991 (SA) to make an order correcting the record.
[9] Franzi v Police [2014] SASC 161 at [15], Nicholson J.
The respondent’s submissions

The respondent submits that the decision of the Magistrate not to revoke the suspended sentence bond was open to her Honour. While the decision was merciful there was no House v The King error.[10] The respondent further submits that even if error was established, this is not such a rare and exceptional case that the appeal should be allowed and the respondent imprisoned in the face of the double jeopardy principle.[11] If the Court does conclude that the respondent should be re-sentenced, a sentencing package should be tailored that does not give rise to a now belated further custodial sentence.
[10] (1936) 55 CLR 499.
[11] Everett v The Queen (1994) 181 CLR 295.
In support of these contentions the respondent refers to the observations by King CJ in R v Osenkowski that:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.[12]
[12] (1982) 30 SASR 212 at 212-213.
The respondent submits that the present case is precisely the type of case referred to by King CJ. An experienced Magistrate extended mercy to the respondent at a critical juncture in his, and his young family’s, life. Thus far, he has grasped the opportunity for reform. For that reason the respondent submits that the Court should not belatedly deny him the opportunity to continue on his positive path. The respondent submits that the complaint by the appellant that the Magistrate focused upon the personal circumstances of the respondent will only demonstrate error if it is established that his personal circumstances were an irrelevant factor that the Magistrate was not entitled to take into account at all.[13]
[13] Police v Chilton (2014) 120 SASR 32 at [17]-[19], Kourakis CJ, David J agreeing; Markarian v The Queen (2005) 228 CLR 357 at [25], Gleeson CJ, Gummow, Hayne and Callinan JJ; R v Lutze (2014) 121 SASR 144 at [46]-[47], Vanstone and Parker JJ.
The respondent submits that neither the plain words of s 58(3) of the Sentencing Act nor the authorities, when properly understood, preclude the Court from taking into account the personal circumstances of the offender when considering whether there is proper reason to excuse a failure to comply with a condition of a bond. For that reason, the respondent submits that the Magistrate did not err by taking into account his personal circumstances when determining whether there were proper grounds to excuse his failure to comply with the bond. The weight to be given to that matter was a matter for the Magistrate. While her Honour’s approach was certainly merciful, the respondent submits that his personal circumstances were exceptional and the favourable exercise of the discretion under s 58(3) was open to the Magistrate.
The respondent also submits that, similarly to the facts before the Court in Stanitzki v Higgins, subsequent events have shown that, at least to date, the central aim of the sentencing strategy, being the rehabilitation of the respondent, has been successful.[14]
[14] (1994) 63 SASR 309 at 313 and 316, Olsson J.
The respondent also submits that there is no basis to the suggestion by the appellant that the Magistrate failed to compare the breaching offence to the offence that led to entry into the bond. The Magistrate was clearly aware of the circumstances of both offences and specifically referred to the revocation of the bond being disproportionate to the offence before the Court. The respondent contends that the Magistrate clearly did not share the view expressed by the appellant that the later offending was more serious than the earlier offending. That is apparent from the starting point of three months’ imprisonment adopted by the Magistrate for the later offending.
The respondent submits that this is a relatively unremarkable case. If the Court finds the Magistrate erred, the appeal should nevertheless be dismissed with the Court stating in its reasons any relevant principles and giving guidance so as to ensure that adequate sentencing standards are maintained.
Consideration
The central issue in this appeal is whether the Magistrate erred in finding that there were proper grounds upon which the failure by the respondent to comply with the conditions of his bond could be excused. The contentions advanced by the appellant make it necessary to review the authorities in some detail.
The Authorities
R v Buckman
In Buckman the Court of Criminal Appeal dealt with the operation of ss 9(5) and 9(6) of the former Offenders Probation Act 1913 (SA). The repealed provisions cannot relevantly be distinguished from ss 58(3) and 58(4) of the Sentencing Act. The analysis of Jacobs J concerning the terms “proper grounds” and “special circumstances” was as follows:
Despite the width of both expressions the distinction, I think, is this: proper grounds for excusing the breach look to the nature of the breach and the circumstances in which it was committed; special circumstances for reducing the sentence, if the breach is not excused, look to some significant change of circumstances since the prisoner was sentenced, which had they existed at that time might have justified a reduced sentence.[15]
[15] R v Buckman (1988) 47 SASR 303 at 307.
Jacobs J also stated:
… 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.[16]
[16] Ibid at 308.
King CJ agreed with the reasons of Jacobs J but made the following additional observations about the former s 9(5):
[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.[17]
R v Marston
[17] Ibid at 304.
The principles expressed by King CJ and Jacobs J in Buckman must be considered in light of the subsequent Full Court decision in R v Marston.[18] The appellant was a 19 year old woman who suffered from a range of intellectual and psychological problems. She had previously been convicted of robbery with violence and sentenced to three years imprisonment with a non-parole period of two years. That sentence was suspended upon her entering a bond to be of good behaviour. Some three months after entering the bond she committed an offence of larceny. No additional penalty was imposed for the larceny. However, the sentencing Judge rejected her submission that there were proper grounds upon which her failure to comply with the bond should be excused. The suspended sentence was therefore activated.
[18] (1993) 60 SASR 320.
On appeal, King CJ repeated his observations in Buckman that:
[t]here is a clear legislative policy that in general a breach of a condition of a recognizance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. [19]
[19] Ibid at 322.
King CJ also stated:
[i]t is of great importance that the courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.[20]
[20] Ibid.
King CJ also noted that “there are circumstances in which it is proper to refrain from revoking the suspension of the sentence.” His Honour described the offence of larceny committed by the appellant as minor but not trivial. In the early morning she entered a hotel to speak to a friend. She had been drinking and was hungry. Food was laid out on the table for breakfast at the hotel. She took two muffins and a knife with which to spread butter on the muffins.
King CJ held:
... I think that the activation of a severe sentence for robbery with violence is not justified by the relatively minor nature of the offending which constitutes the breach. I think that that consideration, together with the evidence of the psychological problems confronting this appellant, constitute proper grounds upon which the failure to comply with the condition of the bond to be of good behaviour should be excused.[21]
[21] Ibid at 323.
Perry and Duggan JJ agreed with King CJ. Perry J further stated that the sentencing Judge may have over emphasised the importance of the warning about the consequences of breaching the bond that had been given by a Judge at the time the appellant was released on a bond.
Later authorities
The gravamen of the respondent’s case is that, on a fair reading, the phrase “the circumstances in which [the breach] was committed”, used by Jacobs J in the passage from Buckman reproduced at [29] above, may include circumstances personal to the offender as they existed at the time of the breach. On that basis the respondent submits that R v Buckman does not stand for the proposition that “proper grounds” must relate solely to the circumstances of the breach, rather than the circumstances of the offender. The respondent notes that this view was adopted by Debelle J in Johnson v South Australian Police[22] and Reynolds v R[23] and also by Olsson J in Police v Summers.[24]
[22] Johnson v South Australian Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995).
[23] R v Reynolds (Unreported, Supreme Court of South Australia Court of Criminal Appeal, Mulligan, Debelle and Nyland JJ, 27 October 1995).
[24] Police v Summers [1998] SASC 6950.
In Johnson, Debelle J stated:
I do not think that [Jacobs J in R v Buckman] was purporting to limit the operation of sub‑s (3) or was intending to state that the proper grounds should be related only to the nature of the breach. The words of sub-s (3) are not so limited. They give the court the discretion not to revoke the suspension whenever the court is satisfied that proper grounds upon which the failure should be excused exist.
Thus, if a probationer is able to demonstrate that there are special or exceptional circumstances which pertain either to himself personally or otherwise relate to the breach of the bond, it is appropriate to have regard to them in determining whether the suspended sentence should be revoked. Plainly that discretion will not be lightly exercised. To do so would be manifestly inconsistent with the legislative policy. In that respect, it is relevant to repeat the comments of Perry J in Lawrie v R (1992) 59 SASR 400 at 403:
To excuse or vary the consequences of the breach of bond, the grant of which resulted in the suspension of a term of imprisonment, has a tendency to undermine the integrity of the sentencing process generally. It follows that the power to do so should be exercised sparingly, and only in cases where proper grounds have clearly been made out or where genuinely special circumstances exist.
It is for that reason that I have suggested that there must be special or exceptional circumstances which should excuse the failure to comply with the bond. In this respect I do not seek to alter the terms of sub-s (3), which refers to "proper grounds". I seek to indicate that which might constitute such grounds.[25]
[25] Johnson v South Australian Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995) at 5-6.
In Reynolds v R, Debelle J rejected the suggestion by the sentencing judge that what he had said in Johnson was contrary to the view expressed by Jacobs J in Buckman. His Honour stated that his understanding of the reasons of Jacobs J in Buckman was that the words of s 58(3) did not exclude consideration of the personal circumstances of the offender. Mullighan J (with Nyland J agreeing) held that it was unnecessary to decide the reach of the term “proper grounds”.
In obiter remarks in Police v Summers Olsson J agreed with the view expressed by Debelle J in Johnson.[26]Olsson J also held in Stanitzki v Higgins that the subsequent rehabilitation of the appellant, when combined with the circumstances associated with the breaching offence, provided proper grounds not to revoke a suspension.[27]
[26] In Police v Summers Olsson J suggested that Mullighan and Nyland JJ had not dissented from the view expressed by Debelle J in Reynolds v R. I consider it quite clear that their Honours expressly refrained from expressing any view on this issue.
[27] (1994) 63 SASR 309 at 316.
In Manning v Police[28] Perry J found that the appellant’s mental condition when combined with the immediate circumstances of the offending amounted to proper grounds to refrain from revoking the suspension.
[28] (1993) 59 SASR 427 at 431.
In R v Gannon[29] Sulan J (with Doyle CJ and Kelly J agreeing) restated the principles expressed by King CJ and Jacobs J in Buckman. Sulan J stated:
In considering whether the failure to comply with the conditions of the bond was trivial, or whether proper grounds exist to excuse the breach, the court considers the nature of the breach and the circumstances in which it was committed. One of the factors to which the Court must have regard is whether the breaching offence is such that there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated. A further factor might be whether there is a difference in character between the offence for which the sentence was imposed and the nature of the breach.
In R v Buckman … King CJ and Jacobs J decided that the question of whether the failure of a person to comply with the conditions of their bond is trivial, or whether there are proper grounds upon which the failure should be excused, is limited to consideration of looking at the nature of the breach and the circumstances in which it was committed. If there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated, then this might amount to proper grounds upon which the failure should be excused. In considering that question, matters such as the relatively minor nature of the offence constituting the breach, the difference in character between it and the offence for which the original sentence was imposed, and the disproportion between the seriousness of the offence constituting the breach and the sentence which would be activated, are factors to which the court will have regard in considering whether proper grounds exist to excuse the failure to observe the conditions of bond.[30]
[29] (2009) 103 SASR 398.
[30] Ibid at [31]-[32].
The observations made by Sulan J in R v Gannon were repeated by his Honour in R v Smith.[31] In a separate judgment, Blue J stated that proper grounds for the purposes of s 58(3) are limited to consideration of the nature of the breach and the circumstances in which it was committed.[32] Typically, proper grounds might exist where there is a marked disproportion between the seriousness of the breaching offence and the sentence which would be activated, particularly where the breaching offence is of a “quite different character from that for which the sentence was imposed.”[33] Nicholson J agreed with both Sulan and Blue JJ.
[31] (2014) 118 SASR 487.
[32] Ibid at [70].
[33] Ibid.
In Police v Vannarath, Nicholson J noted that notwithstanding the reference by King CJ in Buckman to the character or circumstances of the breach, there were authorities to the effect that there will be occasions where a defendant’s personal circumstances, of an exceptional or special nature, might be relevant to the question of “proper grounds”.[34] However, Nicholson J decided the appeal on the ground that the Magistrate had relied solely on the fact that she had already decided to suspend the prison sentence to be imposed for the breaching offence. His Honour held that this could not amount to “proper grounds” on any understanding of s 58(3)(a).
[34] [2015] SASC 187; (2015) 73 MVR 479 at [62].
In Police v Deng, Kelly J noted the discussion in the cases concerning the relevance of a defendant’s personal circumstances to the question of proper grounds.[35] However, her Honour decided the appeal on the basis that the respondent’s personal circumstances were not of such an exceptional special nature as to justify the decision to excuse the breach of the bond.[36]
[35] [2017] SASC 151.
[36] Ibid at [30].
Discussion
It is apparent from my review of the authorities that the Full Court has consistently adhered to the interpretation of “proper grounds” adopted by King CJ and Jacobs J in Buckman, i.e. the matters that may be taken into account when determining whether a breach may be excused are limited to the nature of the breach and the circumstances in which it was committed. It may be thought that some of the older single judge decisions are inconsistent with Buckman and the more recent Full Court decisions in Gannon and Smith. However, for the reasons that follow, it is not necessary for me to decide that question.
I take that view because of the approach adopted by King CJ in Marston. In that case, King CJ took into account the appellant’s intellectual and psychological dysfunction as part of the circumstances of the breaching offence when determining whether the breach ought to be excused on the basis that revocation of the suspension would be a disproportionate response to the breaching offence. Perry J took much the same approach in Manning v Police.[37]Thus, in my view, when a court considers whether to excuse a breach of bond, it may sometimes be relevant to take into account the mental health or psychological difficulties of the defendant or exceptional personal circumstances as they stood when the breaching offence was committed. Such factors may be taken into account if and only if, on careful analysis, they may properly regarded as part of the circumstances of the breaching offence and suggest that revocation of the suspension may be a disproportionate response to that offence.
[37] (1993) 59 SASR 427 at 431.
Therefore, the question in this case is whether, consistently with the approach adopted by King CJ in Marston, the Magistrate took into account the mental health or psychological difficulties of the respondent as part of the circumstances of the breaching offence when considering whether revocation of the suspension may be a disproportionate response.
In considering her Honour’s ex tempore reasons I am mindful of the warning by Kourakis CJ in Police v Chilton against “too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy magistrates”.[38]
[38] (2014) 120 SASR 32 at [19].
In my view, for the reasons that follow, I consider that the Magistrate adopted the same approach as King CJ in Marston by taking into account the respondent’s psychological difficulties as part of the circumstances of the breaching offence for the purpose of assessing whether revocation of the suspension would be a proportionate response.
The Magistrate stated that she agreed with the submission made on behalf of the respondent that the offence “was committed against the background of [the respondent’s] mental health issues”. Consistently with that observation the Magistrate went on to note that at the time of the offence the respondent was not taking his prescribed medication, Seroquel.

While the passages in the Magistrate’s reasons to which I have referred were interspersed with a more general discussion about the respondent’s mental health and personal circumstances, those materials nevertheless formed an integral element of her Honour’s conclusion that it would be disproportionate to the 2017 offending if she were to activate the suspended sentence of nine months’ imprisonment.
The wider references by the Magistrate to the personal circumstances of the respondent were relevant to the sentence imposed for the 2017 offences and also to her Honour’s decision concerning the extension of the respondent’s good behaviour bond. Those matters are not the subject of this appeal.
The appellant has also contended that the Magistrate had insufficient regard to the circumstances of the offending when determining whether the breach of the suspended sentence bond should be excused. In that context the appellant suggests that the 2017 offences were more serious that the 2016 offence.
I consider that the Magistrate did take into account the circumstances of the 2017 offending. She specifically agreed with the defence submission that the assault was not a sustained attack but a single strike and was committed against the background of the respondent’s mental health issues. While domestic violence is repugnant, particularly in this case as the victim was holding their infant child when the respondent punched her on the nose, in contrast to the 2016 offence, the 2017 offences did not involve use of a weapon, nor did the victim require medical treatment. For those two reasons the 2017 offences were inherently less serious than the 2016 offence, as the differing sentences recognised.
I also observe that the appellant’s contention about insufficient weight is contrary to the statements by the Full Court in Police v Chilton[39] and in R v Lutze[40] that a complaint that adequate weight was not given to a factor is not, of itself, capable of enlivening the authority of an appeal court to intervene. At most, such a contention can merely form part of a submission that manifest error had occurred as the sentence was unreasonable or plainly unjust. It is not necessary to consider that issue as the appellant has not contended that the sentence for the 2017 offences was manifestly inadequate. Instead, the appellant has pursued this appeal on the basis that the Magistrate impermissibly took into account the circumstances of the respondent.
[39] (2014) 120 SASR 32 at [17]-[19], Kourakis CJ, David J agreeing.
[40] R v Lutze (2014) 121 SASR 144 at [46]-[47], Vanstone and Parker JJ.
Conclusion
The appeal is dismissed.
The Magistrate’s Court is directed to correct the Certificate of Record to reflect the true sentence imposed on 16 October 2017 for the 2017 offences, being 28 days’ imprisonment suspended upon entry into a bond to be of good behaviour in the amount of $500 for a period of 18 months.