Police v Peel - [2021] SASCFC 7

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v PEEL
[2021] SASCFC 7
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, the Honourable Justice Kelly and the Honourable Justice Doyle)
5 February 2021

CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
The respondent was convicted of several offences, including two contraventions of intervention orders, and was sentenced to four months 15 days imprisonment. The sentence was partially suspended, and after serving one month, the respondent was released from prison upon his entering into a suspended sentence bond.
The respondent subsequently breached this bond through a further contravention of an intervention order, rendering him liable to serve the balance of his sentence, subject to the breach being excused pursuant to s 114(3) of the Sentencing Act 2017 (SA). A Magistrate declined to excuse the breach, and made an order revoking the suspension and requiring the respondent to serve the balance of his sentence of imprisonment.
The respondent appealed the Magistrate’s order to a single Judge of this Court, contending that the Magistrate erred in his exercise of his discretion under s 114(3) of the Sentencing Act by failing to properly consider whether “proper grounds” existed for excusing the breach, and in giving undue weight to the respondent’s personal circumstances (and, in particular, his previous breaches of intervention orders). A single Judge allowed the appeal, and set aside the Magistrate’s order revoking the suspension.
The appellant seeks permission to appeal against the single Judge’s order.
Held, per Doyle J (Kourakis CJ and Kelly J agreeing), refusing permission to appeal:
1.      Consideration of whether there are “proper grounds” for excusing a failure to comply with a suspended sentence bond involves consideration of the nature of the breach and the circumstances in which it was committed, and of 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.
2.      A history of similar offending may be relevant on the basis that it informs a full understanding of both the seriousness of the breach offending, and of the circumstances in which, and reasons for which, the original suspended sentence was imposed and hence the proportionality or otherwise of revoking the suspension of that sentence.
3.      The Magistrate was entitled to have regard to the respondent’s significant history of similar offending, both as part of the offending giving rise to the suspended sentence bond and more generally, and the Judge below erred in concluding otherwise.
4.      There is no utility in either granting permission to appeal or allowing the appeal in this case, as the respondent has now served the unexpired portion of the original sentence as a result of a further breach of the suspended sentence bond.
Sentencing Act 2017 (SA) 114, 114(1), 114(3); Criminal Law (Sentencing) Act 1988 (SA) 58, 58(3); Offenders Probation Act 1913 (SA) 9, 9(4), 9(5), 9(6), referred to.
Peel v Police [2020] SASC 48 ; Duff v Police [2015] SASC 24; Police v Heritage (2019) 135 SASR 1; Norman v Lovegrove (1986) 40 SASR 266; R v Buckman (1988) 47 SASR 303; R v Gannon (2009) 103 SASR 398; R v Ossitt [2011] SASCFC 23; R v Smith (2014) 118 SASR 487; R v Smith [2014] SASCFC 98; R v Bui (2016) 125 SASR 137; R v Chandra (unreported, Court of Criminal Appeal, SA, No S6554), considered.

POLICE v PEEL
[2021] SASCFC 7

Full Court: Kourakis CJ, Kelly and Doyle JJ

KOURAKIS CJ: I agree with the observations of Doyle J on the application of s 114(3) of the Sentencing Act 2017 (SA), and on the meaning of the phrase ‘proper grounds on which the failure should be excused’ in particular.
I would emphasise that the authorities do not strictly limit ‘proper grounds’ to the nature and circumstances of the offence. They extend to the circumstances ‘related to the same point in time’[1], to ‘factors relating to the breach itself’[2], and to ‘circumstances existing at the time of the offence which bear on the culpability of the offender in committing the offence’[3] (emphasis added). It follows that if earlier conduct shows that the breach itself was committed in flagrant disregard of the obligation to be of good behaviour, the earlier conduct may be taken into account and weighs against a finding that there are proper grounds to excuse the breach.
[1]     Norman v Lovegrove (1986) 40 SASR 266 at 267.
[2]     R v Buckman (1988) 47 SASR 303 at 304.
[3]     Police v Heritage (2019) 135 SASR 1 at [31].
There may also be some, relatively few, cases in which subsequent events will paint a different picture of the offender’s culpability at the time of the offence. However, that is plainly not this case. Moreover, as Blue J observed in Police v Heritage,[4] proper grounds to excuse a breach do not extend to subsequent treatment which an offender may have received, or proposes to receive, in order to address the criminogenic factors which led to the breach because subsequent treatment, in and of itself, unlike the underlying criminogenic factors, does not bear on the offender’s culpability for the earlier breach.
[4] Police v Heritage (2019) 135 SASR 1 at [31].
I would refuse permission to appeal on the ground that there is no longer any utility in the application.
KELLY J: I agree with the reasons of Doyle J and also the further observations of Kourakis CJ.
DOYLE J: This appeal concerns the proper construction of s 114(3) of the Sentencing Act 2017 (SA), and in particular the “proper grounds” which condition the Court’s discretion under that subsection to excuse a failure to comply with a suspended sentence bond.
The respondent (Mr Peel) was convicted of several offences, including two contraventions of intervention orders, and was sentenced to four months 15 days imprisonment. The sentence was partially suspended, and after serving one month of imprisonment the respondent was released from prison upon his entering into a bond to be of good behaviour for 15 months.
The respondent subsequently breached this bond through a further contravention of an intervention order, rendering him liable to serve the balance of his sentence, subject to the breach being excused pursuant to s 114(3) of the Sentencing Act. The Magistrate declined to excuse the breach, and made an order revoking the suspension and requiring the respondent to serve the balance of his sentence of imprisonment.
The respondent appealed the Magistrate’s order to a single Judge of this Court. He contended that the Magistrate erred in the exercise of his discretion under s 114(3) by failing to appropriately consider whether “proper grounds” existed for excusing the breach, and in giving undue weight to the respondent’s personal circumstances (and, in particular, his previous breaches of intervention orders). The single Judge allowed the appeal, and set aside the Magistrate’s order revoking the suspension, in effect holding that the Magistrate erred in having regard to the respondent’s previous like offending when considering whether there were proper grounds for excusing the breach.
The appellant (Police) now seeks permission to appeal the single Judge’s order. The appellant’s sole ground of appeal is as follows:
The learned Appeal Judge erred in holding that proven offending which predated a breached suspended sentence bond could not properly be taken into account in considering whether or not the breach of that bond should be excused pursuant to s 114(3) of the Sentencing Act 2017, where the prior proven offending was like in nature to some of the offending for which the bond was imposed and like in nature to the breaching offence.
Background
The respondent has had a troubled past. He has an extensive history of criminal offending, particularly in the nature of assaults and failing to comply with court orders. Many of his antecedents involve contraventions of intervention orders that have been made against him, and breaches of suspended sentence bonds and bail agreements.
On 2 September 2019, the respondent was convicted of several offences, including two counts of breaching an intervention order, aggravated assault, breaching bail and various driving offences. The breaching of intervention order offences involved the respondent having physical contact with his former partner, RN. The relevant intervention order prohibited the respondent, inter alia, from being within 100 metres of RN.
A Magistrate sentenced the respondent to four months 15 days imprisonment for these offences, backdated to commence on 14 August 2019. The sentence was partially suspended, in that the respondent was to be released after serving one month of imprisonment and upon his entering into a bond to be of good behaviour for 15 months. On 13 September 2019, the respondent entered into a suspended sentence bond and was released.
On 23 October 2019, the respondent committed another contravention of an intervention order through further contact with RN. The respondent was visiting family at Port Augusta when RN arrived at the premises. Instead of leaving, as he was obliged to do, the respondent remained at the premises. The breach was detected when police attended in response to a disturbance unrelated to the respondent.
The Magistrate’s decision
On 24 October 2019, the respondent appeared before a Magistrate. He pleaded guilty to contravening the intervention order against him in respect of RN, and admitted that through this contravention he had breached the suspended sentence bond.
It thus fell to the Magistrate to sentence the respondent in respect of the fresh contravention of the intervention order, and to determine whether to revoke the suspended sentence bond pursuant to s 114 of the Sentencing Act, thus requiring the respondent to serve the balance of the original sentence.
In his remarks on penalty, the Magistrate referred in some detail to the respondent’s extensive history of offending, and particularly his repeated breaches of court orders. In this regard, the Magistrate said that “[t]he impression gained with respect to restraining orders and intervention orders and, to a less relevant extent breaching bail, is that you don’t really care whether you comply with those obligations or not.”
The Magistrate then turned to consider whether there were “proper grounds” on which the respondent’s failure to comply with the conditions of the suspended sentence bond should be excused pursuant to s 114(3) of the Sentencing Act.
The Magistrate recognised that the offending conduct in this case was a product of what was essentially an innocuous chance encounter. However, viewing the breach holistically in the context of the respondent’s demonstrated and consistent indifference towards compliance with intervention orders and other court orders, his Honour was not satisfied that there were proper grounds upon which to excuse the breach. The Magistrate said:
If it were to be viewed in isolation then yes, effectively a chance encounter with [RN], you stayed when you shouldn’t have stayed, but nothing threatening or abusive happened possibly the court wouldn’t be too concerned about that. The community wouldn’t be too concerned about that but it didn’t happen in isolation it happened against the background that I have mentioned and I haven’t had the time to canvass the full background but I have tried to highlight relevant aspects of that background.
I have to look at it from a holistic, I am going to look at it from a holistic point of view. You have been in effect a serial offender so far as assaults are concerned. You have been a serial offender so far as breaching orders of the court is concerned. Intervention orders are put in place, and in this case this has been in place since 2016, you have had since 2016 or you have had some of that time since 2016 available to you to come to the court and ask for that intervention order to be revoked or varied so that you could be with [RN] if that is what you wanted and that is what she wanted but you haven’t done that. Intervention orders are designed to protect persons. If, when they are breached they are not punished effectively then the repute of the court, the integrity of the court will be diminished and we might as well just treat them as bits of paper that aren’t particularly important. They are bits of paper but they are particularly important because domestic violence is a scourge in this country and in this particular community.
In ordinary circumstances I would be inclined to find that there was good or proper reason to excuse the breach or to reduce the term to be served but against the background that I have just mentioned I do not believe that either of those options are available to you.
Having refused to excuse the breach, the Magistrate revoked the suspension of the respondent’s earlier sentence and ordered that he serve the remaining three months 14 days imprisonment. His Honour also sentenced the respondent to an additional three weeks imprisonment for the contravention of intervention order.
The single Judge’s decision
The respondent appealed to a single Judge of this Court against the Magistrate’s decision to revoke the suspended sentence bond.[5] He complained that the Magistrate erred in his exercise of the discretion in s 114(3) of the Sentencing Act by failing to appropriately consider whether “proper grounds” existed for excusing the breach, and by giving undue weight to respondent’s personal circumstances. In particular, the respondent contended that the Magistrate erred in treating his history of similar offending as relevant to the existence of proper grounds to excuse the breach.
[5] Peel v Police [2020] SASC 48.
In considering the meaning of “proper grounds” to excuse a failure to comply with a bond within the meaning of s 114(3), the Judge relied upon the following passage from the reasons of Blue J (with whom Stanley and Lovell JJ agreed) in the recent decision of Police v Heritage:[6]
Turning to the meaning of the expression “proper grounds upon which the failure should be excused” in subs (3), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subs (3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach. This follows from a combination of the juxtaposition between the criteria of trivial breach and proper grounds for excusal (the former giving colour to the latter), the concept of “excusal” of the breach suggesting that the circumstances of the breach justify excusal, the legislative policy that ordinarily a breach should result in the offender serving the full term of the original sentence and the contrast between excusing a breach under subs (3) and reducing the term of the original sentence by reason of special circumstances under subs (4).
[6] Police v Heritage (2019) 135 SASR 1 at [22] (citations omitted).
While this passage included reference to “proper grounds” being confined to “the nature and circumstances of the breach”, and not extending to “personal circumstances of the offender”, counsel for the appellant argued that the respondent’s history was nevertheless relevant, at least in circumstances where his previous offending (including the offending giving rise to the suspended sentence bond in question) had included offending that was similar to the offending in breach of the suspended sentence bond. Counsel relied in this respect upon the following passage from the reasons of Nicholson J in Duff v Police:[7]
The fact that the appellant has offended again with respect to the very type of offending that the suspended sentence was intended to deter, is a factor in favour of revocation and a factor that can limit the extent to which any lack of proportionality might otherwise be relied on to avoid revocation.
[7] Duff v Police [2015] SASC 24 at [21].
Having referred to these decisions and submissions, the Judge accepted the respondent’s contention that the Magistrate erred in treating his previous offending as relevant to, and ultimately negativing, the existence of proper grounds to excuse the breach. His Honour reasoned as follows:[8]
The question whether there are proper grounds for excusing the breach is to be confined to the nature of the breach itself without any consideration of matters personal to the offender. That principle has been clearly stated in Heritage. That is not inconsistent from the principle stated in Duff, namely that the similarity between the original offending and the offending which constitutes the breach is clearly a factor to be taken into account. However, the Magistrate in the present case went further and was influenced by the previous like offending of the appellant. The sentencing Magistrate acknowledged that the nature of the breach, although not technically trivial, was such that without the addition of his previous behaviour, there would be proper grounds to excuse it. In going further and taking into account his previous record when considering whether there are proper grounds for excusing the breach, he has erred.
[8] Peel v Police [2020] SASC 48 at [15].
The Judge went on to reason that in looking at the matter afresh, and confining consideration to the breach itself, there were proper grounds for excusing the breach. His Honour thus allowed the appeal and set aside the Magistrate’s order revoking the suspension of the respondent’s sentence of imprisonment.[9]
[9] Peel v Police [2020] SASC 48 at [16].
The legislation
In considering whether the single Judge erred in his approach to “proper grounds” for the purposes of excusing a breach of a suspended sentence bond, it is convenient to commence by reproducing the relevant subsections of s 114 of the Sentencing Act. They are in the following terms:
114 – Orders that court may make on breach of bond
(1) If the court is satisfied that the probationer has failed to comply with a condition of the bond, the court –
…
(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.
…
(3) If a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds on which the failure should be excused, the court may refrain from revoking the suspension and –
(a)     in the case of a bond requiring performance of community service – may –
(i) extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or
(ii) extend the period within which any uncompleted hours of community service must be performed by not more than 6 months; or
(iii) if the period within which the community service must be performed has expired, impose a period of not more than 6 months within which any uncompleted hours of community service must be performed; or
(iv) cancel the whole or a number of any unperformed hours of community service; or
(v)     revoke or vary any other condition of the bond; and
(b)     in the case of any other bond – may –
(i) extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or
(ii) impose a condition on the bond requiring the probationer to perform a specified number of hours of community service; or
(iii)    revoke or vary any other condition of the bond; and
(c)     if the bond has expired in any case – may require the probationer to enter into a further bond, the term of which must not exceed 12 months.
…
(5) If a court revokes the suspension of a sentence of imprisonment, the court may make any of the following orders:
(a)     if it considers that there are special circumstances justifying it in so doing – an order reducing the term of the suspended sentence;
…

Section 114 of the Sentencing Act came into force on 30 April 2018, replacing the relevantly identical provisions in s 58 of the now repealed Criminal Law (Sentencing) Act 1988 (SA).
Consideration
In Police v Heritage,[10] Blue J (Stanley and Lovell JJ agreeing) explained the operation of s 58 of the repealed legislation in the context of a failure to comply with a suspended sentence bond. In terms equally applicable to s 114 of the Sentencing Act, his Honour said:[11]
[10] Police v Heritage (2019) 135 SASR 1.
[11] Police v Heritage (2019) 135 SASR 1 at [21] (citations omitted).
1. The first question to be addressed (where it is a live issue) is whether the court can and should [refrain from] revok[ing] the suspension under subs (3) [now s 114(3)].
2. The court is only empowered to [refrain from] revok[ing] the suspension if satisfied that:
(a)     the failure was trivial; or
(b)     there are proper grounds upon which the failure should be excused.
3.     If the answer to the first question is no, the court must revoke the suspension.
4. Once the court revokes the suspension, the second question to be addressed (where it is a live issue) is whether the court can and should reduce the term of the original sentence under subs (4) [now s 114(5)].
5. The court is only empowered to reduce the term of the original sentence if satisfied that there are special circumstances justifying its so doing.
6. The power to refrain from revoking the suspension arises at an earlier stage and involves different conditions and criteria to the power to reduce the term of the original sentence.
7. There is a clear legislative policy that ordinarily a breach of a condition of a 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 or reducing the term of the original sentence.
Blue J then turned to explain the “different conditions and criteria” that exist in respect of the power to excuse a breach and the power to reduce the term of the original sentence, referred to above. It was in the context of explaining this distinction that his Honour said:[12]
Turning to the meaning of the expression “proper grounds upon which the failure should be excused” in subs (3), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subs (3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach. This follows from a combination of the juxtaposition between the criteria of trivial breach and proper grounds for excusal (the former giving colour to the latter), the concept of “excusal” of the breach suggesting that the circumstances of the breach justify excusal, the legislative policy that ordinarily a breach should result in the offender serving the full term of the original sentence and the contrast between excusing a breach under subs (3) and reducing the term of the original sentence by reason of special circumstances under subs (4).
In respect of the expression “special circumstances justifying [the court] reduc[ing] the term of the suspended sentence in subs (4), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subs (4) that those circumstances comprise new or different circumstances (which will usually if not invariably be personal circumstances) that have arisen or changed since the original sentence was imposed which if they had existed at that time would have justified a reduced sentence.
[12] Police v Heritage (2019) 135 SASR 1 at [22]-[23] (citations omitted).
As mentioned above, the single Judge in these proceedings quoted from, and relied upon, the first paragraph of this passage from the reasons of Blue J, and in particular his Honour’s reference to “proper grounds” being confined to “the nature and circumstances of the breach”, and not extending to “personal circumstances of the offender”. However, as will be seen, it is important to read and understand this passage in the context of Blue J’s reasons as a whole, and in particular his Honour’s subsequent reference to the relevant authorities, and explanation and application of the relevant principles to the circumstances of that case.
As to the authorities, Blue J first considered the decision of Norman v Lovegrove,[13] which concerned the interpretation of the equivalent predecessor provisions under the Offenders Probation Act 1913 (SA). His Honour extracted the following passage from the reasons of Olsson J, with whom King CJ and Prior J agreed:[14]
[Mrs Branson for the prosecutor] contended that it is important to differentiate both between the essential thrust of subss (5) and (6) and the factual events which properly bear upon a consideration of each. As she put the concept the former directs its attention to the circumstances under which the breach was committed, whilst the latter extends to broader areas of concern not necessarily related to the commission of the breach.
So it was that she argued that the essential import of sub-s. (5) is that, if the court is satisfied that the failure of a probationer to observe the conditions of a recognizance is either trivial or, although not strictly trivial, is nevertheless of such a nature as to be excusable then the powers conferred in that sub-section may be exercised. In other words the “proper grounds” are necessarily related to the same point in time as any potential triviality.
In my opinion this contention is correct and accords the whole section a logical and sensible mode of application. I consider that, as the learned Chief Justice put it to Mrs Branson arguendo, sub-s. (5) was intended, in its totality, to overcome the difficulty which could exist when a relatively minor breach might necessarily result in activating a very long sentence. It empowers the court, in such circumstances, to say: “This is a breach, but it is not a very serious one, and it may therefore be wholly or substantially excused”.
On the other hand subs (6) is manifestly directed to wider areas of concern which may involve a need to review circumstances arising after the breach. Here the statute is (inter alia) preoccupied with true matters of mitigation of all types bearing upon whether it is appropriate, as at the time at which it deals with the matter, to make special orders modifying the original sentence or the mode by which it is actually executed.
[13] Norman v Lovegrove (1986) 40 SASR 266.
[14] Norman v Lovegrove (1986) 40 SASR 266 at 271; Police v Heritage (2019) 135 SASR 1 at [24] (emphasis added by Blue J) (citations omitted).
His Honour also reproduced the following passage from the reasons of Prior J, with whom King CJ also agreed:[15]
I agree [with Olsson J] that the correct construction of subs (5) of s 9 of the Offenders Probation Act 1913 is that [“proper grounds”, upon which the failure of a probationer to observe conditions of a recognizance entered into upon a suspension of imprisonment may be excused, relate to circumstances under which the breach of the recognizance was committed.] Proper grounds are necessarily related to the same time which is relevant to the question whether any breach is trivial. That time cannot be any point beyond the breach giving rise to an application that the suspension be revoked and the sentence of imprisonment carried into effect.
The power to deal with matters arising after any breach of conditions occurs is dealt with by subs (6) of s 9. That section speaks, not of “proper grounds”, but “special circumstances” justifying a reduction in the term of the suspended sentence.
[15] Norman v Lovegrove (1986) 40 SASR 266 at 267; Police v Heritage (2019) 135 SASR 1 at [24] (emphasis added by Blue J) (citations omitted).
Blue J then addressed the decision of R v Buckman,[16] which also involved consideration of the provisions of the Offenders Probation Act. His Honour quoted from the reasons of Jacobs J, with whom King CJ agreed, as follows:[17]
The court has already decided that there are no such proper grounds before it comes to consider the special circumstances, and the structure of the legislation therefore requires the two concepts to be distinguished. 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. It seems to me that they will generally be personal factors, of the kind that may dispose a court to greater leniency, which have arisen subsequent to the sentence of imprisonment – ill health or acute domestic problems or obligations spring to mind as examples, but they are only examples, and it is impossible and unwise even to attempt to state exhaustive categories of such special circumstances.
[16] R v Buckman (1988) 47 SASR 303.
[17] R v Buckman (1988) 47 SASR 303 at 307; Police v Heritage [2019] 135 SASR 1 at [25] (emphasis added by Blue J) (citations omitted).
His Honour also referred to the following passage from the reasons of King CJ:[18]
I agree with what Jacobs J has said as to the meaning and relationship of these two subsections. It is to be remembered that the sentence which is activated is the sentence for the original offence. The special circumstances which must exist to authorise a reduction, must therefore be such as [to] render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate … Subsection (6) exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.
The purpose of subs (5) is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue.
[18] R v Buckman (1988) 47 SASR 303 at 304; Police v Heritage (2019) 135 SASR 1 at [25] (emphasis added by Blue J).
Blue J then referred to several other authorities. Those authorities described the concept of “proper grounds” for excusing a breach as involving consideration of both the nature of breach and the circumstances in which it was committed,[19] 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.[20]
[19] R v Gannon (2009) 103 SASR 398 at [31]; R v Ossitt [2011] SASCFC 23 at [30]; R v Smith (2014) 118 SASR 487 at [70].
[20] R v Smith [2014] SASCFC 98 at [25]; R v Bui (2016) 125 SASR 137 at [60] and [66].
Blue J concluded his discussion of the notion of “proper grounds” by explaining:[21]
The distinction between circumstances of the offence and personal circumstances is well understood in practice although it is more difficult to define in a priori terms. The circumstances of the offence comprise those circumstances existing at the time of commission of the offence which bear on the culpability of the offender in committing the offence. They include both the objective gravity of the offence and the state of mind of the offender in committing the offence. For example, if the offender was suffering a mental impairment which caused or contributed to the commission of the offence, that may mitigate the offender’s culpability; whether it does so will depend on matters such as whether the impairment was the result of consuming illicit drugs or alcohol and if so the extent to which it was excusable and whether the defendant was aware of the impairment and taking medication and/or undertaking treatment for it. On the other hand, the fact that it is desirable that a defendant receive treatment for a mental impairment which cannot effectively be provided in prison is a personal circumstance and not a circumstance of the offence, as is hardship caused to the offender’s dependents.
[21] Police v Heritage (2019) 135 SASR 1 at [31] (citations omitted).
In applying these principles, Blue J disagreed with the Magistrate’s reasons for concluding in that case that activation of the original sentence would be a disproportionate consequence of the breach offending. In so doing, Blue J relied upon not only the inherent seriousness of the breach offending, but also its similarity in nature and seriousness to the original offending (with both involving aggravated assaults by way of single blows to the head of the same victim), and the absence of any connection between the breach offending and the respondent’s underlying mental health issues.[22]
[22] Police v Heritage (2019) 135 SASR 1 at [40].
It is apparent from the above that consideration of whether there are “proper grounds” for excusing a failure to comply with a suspended sentence bond involves consideration of the nature of the breach and the circumstances in which it was committed, and of 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.
As Blue J pointed out, this invites a focus upon the objective circumstances of the breach offending, as opposed to, for example, the personal circumstances of the defendant more generally. However, properly understood, his Honour did not suggest that there is clear or rigid line that excludes from consideration matters that might be said to be personal to the defendant, or that such matters cannot inform the Court’s consideration of whether proper grounds to excuse the breach exist. To the contrary, his Honour expressly contemplated that matters which “bear on the culpability of the offender in committing the [breach] offence” will be relevant. These may include not only the defendant’s state of mind, but also any history of similar offending (particularly where it constitutes the original offending giving rise to the suspended sentence bond). Such matters may be relevant not only to a full understanding of the nature and seriousness of the breach offending, but also whether it would be disproportionate to revoke the suspension of that sentence.
Certainly there is authority to the effect that the similarity or otherwise of the breach offending to the original offending is relevant to the existence of “proper grounds”. As explained, Blue J said as much in determining that the Magistrate in that case had erred in concluding that there were proper grounds for refraining from revoking the respondent’s suspended sentence.
In R v Buckman,[23] immediately following the passage from King CJ’s reasons extracted earlier in these reasons, and in concluding that there were proper grounds to refrain from revoking the suspension of the appellant’s sentence in that case, his Honour reasoned that it was “not irrelevant, moreover, that the offence constituting the breach is of a quite different character from that for which the sentence was imposed.”[24] Jacobs J reasoned similarly, noting that consideration of whether there were proper grounds for excusing a breach invited comparison between the breach offending and the original offending, and in particular whether the offender had reverted to criminal conduct that was comparable, even if not in kind, at least in its culpability and general criminal content.[25]
[23] R v Buckman (1988) 47 SASR 303.
[24] R v Buckman (1988) 47 SASR 303 at 305.
[25] R v Buckman (1988) 47 SASR 303 at 309.
In R v Smith,[26] in a passage referred to by Blue J in Police v Heritage,[27] Kourakis CJ (with whom Vanstone and Blue JJ agreed) referred to the above observations of King CJ in R v Buckman,[28] stating that differences between the original offence and the breaching offence were not irrelevant, albeit adding that their relevance was nevertheless “limited”.[29]
[26] R v Smith [2014] SASCFC 98.
[27] Police v Heritage (2019) 135 SASR 1 at [29].
[28] R v Buckman (1988) 47 SASR 303.
[29] R v Smith [2014] SASCFC 98 at [25].
Similarly, in R v Chandra,[30] in considering whether there were proper grounds for excusing a breach of a suspended sentence bond, Doyle CJ (with whom Cox and Williams JJ agreed) said:[31]
The one matter that gives me pause is the disproportion between the seriousness of the breaching offences and the length of the sentence which is to be activated. The sentences for the breaching offences are relatively minor, although their minor nature is, in the present case, to be weighed against the fact that they are offences that do bear similarities to, or have links to, the offence in respect of which the suspended sentence was imposed. In my opinion it cannot be said in this case that the breaching offences are, in the words of Jacobs J, offences of ‘a quite different character from that for which the [suspended] sentence was imposed’. I again refer to R v Buckman… There is a relevant relationship between the breaching offences and the original offence. Nevertheless, I am influenced by the disproportion.
[30] R v Chandra (unreported, Court of Criminal Appeal, SA, No S56554, 17 February 1998).
[31] R v Chandra (unreported, Court of Criminal Appeal, SA, No S56554, 17 February 1998) at 4-5.
It is true that these authorities have focused upon the relevance of the similarity or otherwise between the breach offending and the original offending giving rise to the suspended sentence bond. However, in my view, there is no reason why this relevance cannot extend to the similarity of previous offending more generally. That history of similar offending may be relevant on the basis that it informs a full understanding of both the seriousness of the breach offending, and of the circumstances in which, and reasons for which, the original suspended sentence was imposed and hence the proportionality or otherwise of revoking the suspension of that sentence.
In the present case, the respondent had a significant history of contravening court orders, and in particular intervention orders. In my view, this history of like offending (which included, but was not limited to, his offending in respect of which the suspended sentence bond was imposed) was relevant both to a full understanding of the seriousness of the breach offending, as well as the proportionality of requiring the respondent to serve the balance of his original term of imprisonment. More particularly, the respondent’s history of breaching intervention orders made more concerning and serious what might otherwise have been regarded as a relatively innocuous breach following a chance encounter with RN. It also tended to show that the imposition of the suspended sentence had not had the deterrent effect it was intended to have, and had not brought home to the respondent the importance of his observance of intervention orders. It tended to make the activation of his earlier sentence a more appropriate and proportionate response than it might otherwise have been if the breach offending were considered in the abstract, and divorced from the context of the respondent’s history of similar offending.

In my view, when considering whether there were proper grounds to excuse the respondent’s breach of his suspended sentence bond, the Magistrate was entitled to have regard to the respondent’s history of similar offending, both as part of the offending giving rise to the suspended sentence bond and more generally. This history was a relevant, and indeed quite significant, consideration in the context of the present case. It follows that the single Judge erred in concluding otherwise.
Subsequent events
It is necessary at this point to refer to a development in the factual background to this case, as it influences the appropriate course to be taken by this Court in disposing of the appeal.
On 9 April 2020, the respondent appeared before another Magistrate in respect of fresh offending. That Magistrate found that this conduct amounted to a further breach of the suspended sentence bond, and refused to excuse the breach. As a result of this decision, the respondent has now served the unexpired portion of the original sentence. As such, if the appeal were to be allowed in this case, there would be no suspended sentence bond for the breach to operate upon, and an effective order revoking the suspension could not be made.
By reason of this change in circumstances, this Court does not need to reach a final view as to whether the Magistrate was wrong to refuse to excuse the breach in this case. Having addressed and corrected the error of principle in the single Judge’s reasons, there is no utility in this Court either granting permission to appeal or allowing the appeal.
Conclusion
For the reasons set out, I would refuse permission to appeal.