Police v TALEPOROS - [2022] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
POLICE v TALEPOROS
[2022] SASC 92
Judgment of the Honourable Justice McDonald
26 August 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
Appeal against a sentence imposed by a Magistrate. On 26 November 2021, the respondent was sentenced to three months and seven days imprisonment which was suspended upon him entering a bond to be of good behaviour for a period of 18 months (‘the suspended sentence bond’). On 26 November 2021, the respondent was further sentenced to a bond to be of good behaviour for a period of six months (‘the resentence bond’). The respondent was subsequently charged with three driving offences committed on 8 January 2022 to which he entered guilty pleas. On 7 March 2022, the respondent appeared before a Magistrate to be sentenced in the Mount Gambier Magistrates Court. The prosecution also made an application to estreat the two good behaviour bonds which had been imposed on 26 November 2021.
In sentencing on 7 March 2022, the Magistrate dealt with two of the offences committed on 8 January 2022 together by imposing a fine of $1,000 for both offences. The Magistrate dealt with the third offence of drug driving by ordering a period of licence disqualification of 12 months. In relation to the resentence bond, the Magistrate found the breach proved and, together with the offence of driving whilst disqualified, sentenced the respondent to two months imprisonment. That sentence was backdated to 8 January 2022, when the respondent had been taken into custody. The Magistrate took no further action on the application for enforcement of the suspended sentence bond and the respondent was immediately released from custody.
The appellant appeals against the sentence imposed by the Magistrate on the basis that the Magistrate erred in finding that there were proper grounds to excuse the breach of the suspended sentence bond.
Held, dismissing the appeal:
1.      It was incorrect to categorise the breaching offending as “not of like offending” or of such a different character that the activation of the sentence was a disproportionate consequence.
2.      The level of disparity between the seriousness of the offence for which a bond has been imposed, as compared to the breaching offence, was not such that it led to the conclusion that there are proper grounds to excuse the breach.
3.      The Magistrate failed to consider the respondent’s history of similar offending.
4.      The Magistrate erred in determining not to revoke the suspended sentence bond.
5.      Despite the error in the approach adopted by the Magistrate, this is an appropriate case in which to exercise the discretion to dismiss the appeal.
Australian Road Rules (SA) r 56(1)(a); Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) s 19AC(1)(a), s 19AB(2), s 29(3), s 86A(1); Sentencing Act 2017 (SA) s 114(3); Criminal Law (Sentencing) Act 1988 (SA) s 58; Magistrates Court Act 1991 (SA) s 42(1); Motor Vehicles Act 1959 (SA) s 74(2), s 91(5); Offenders Probation Act 1913 (SA); Road Traffic Act 1961 (SA) s 40H(5), s 43(1), s 47B(1)(a), s 47BA(1)(a); Summary Offences Act 1953 (SA) s 6(2), s 17(1), referred to.
Green v The Queen (2011) 244 CLR 462; Police v Heritage (2019) 135 SASR 1; Police v Peel (2021) 137 SASR 584; R v Buckman (1988) 47 SASR 303, applied.
Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150, discussed.
Griffiths v The Queen (1977) 137 CLR 293; House v The King (1936) 55 CLR 499; Malvaso v The Queen (1989) 168 CLR 227; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; Norman v Lovegrove (1986) 40 SASR 266; Police v Chilton (2014) 120 SASR 32; R v Bui (2016) 125 SASR 137; R v Gannon (2009) 103 SASR 398; R v Kinvig [2013] SASCFC 132; R v O’Connor [2012] SASCFC 15; R v Osenkowski (1982) 30 SASR 212; R v Ossitt [2011] SASCFC 23; R v Pham [2003] SASC 386; R v Scuteri [2018] SASCFC 103; R v Smith (2014) 118 SASR 487; R v Smith [2014] SASCFC 98, considered.

POLICE v TALEPOROS
[2022] SASC 92
Magistrates Appeal: Criminal
McDONALD J.
Background

On 7 March 2022, the respondent appeared before a Magistrate to be sentenced in the Mount Gambier Magistrates Court. The respondent pleaded guilty to three offences, namely, driving whilst disqualified contrary to s 91(5) of the Motor Vehicles Act1959 (SA), failing to stop a vehicle as directed contrary to s 40H(5) of the Road Traffic Act 1961 (SA) (‘the RTA’), and driving a motor vehicle whilst a prescribed drug was in his oral fluid contrary to s 47BA(1)(a) of the RTA. On that occasion, the prosecution also made an application to estreat two good behaviour bonds, both of which had been imposed on 26 November 2021. One of those bonds was attached to a sentence of three months and seven days imprisonment which was suspended upon the respondent entering a good behaviour bond for a period of 18 months (‘the suspended sentence bond’). The second bond was for a term of six months, with the respondent to be sentenced if he breached the bond (‘the resentence bond’).
The Magistrate imposed a fine in the sum of $1,100.00 for the offences of failing to stop a vehicle as directed and for the drug driving charge. In relation to the resentence bond, the Magistrate found the breach proved and, together with the offence of driving whilst disqualified, sentenced the respondent to two months imprisonment. That sentence was backdated to 8 January 2022 when the respondent had been taken into custody. In relation to the suspended sentence bond, the Magistrate declined to revoke the suspension and took no further action. The effect of the sentencing package was that the respondent was immediately released from custody.
The issue on appeal
The sole issue that arises on this appeal is whether the Magistrate erred in finding that there were proper grounds to excuse the breach of the suspended sentence bond.
The appellant contends that the Magistrate’s failure to revoke the suspended sentence bond was not within her sentencing discretion. It was submitted that to allow her Honour’s judgment to stand would support the imposition of a penalty that is manifestly inadequate, and which has the potential to create inconsistency in sentencing. It is put by the appellant that, in these circumstances, the appeal should be allowed to give the Court the opportunity to maintain an adequate standard of sentencing with regard to the enforcement of breached bonds.
The respondent’s offending
In order to contextualise the arguments made on appeal, it is necessary to have an appreciation of some aspects of the respondent’s offending history. The respondent’s criminal antecedents can be conveniently broken down into five separate episodes.
23 March 2020 – Contravention of an intervention order
On 12 February 2020, an intervention order was served on the respondent. The subject of that order was DP. Condition 3 of that intervention order stated:
3.The defendant must not contact or communicate with the protected person(s) either directly or indirectly in any way (including telephone, SMS messages, in writing, email or any other social media, etc).
On Monday 23 March 2020, the respondent breached condition 3 of the intervention order. At about 3.50pm on that day, DP was standing outside the front of his house when the respondent walked in his direction. The respondent, in what was clearly an act of defiance or aggression, stuck his middle finger up and yelled out to DP “You fucking wait cunt! Your time is coming; you want to get me locked!”. The respondent was reported for this offence on 27 April 2020, when the police came to deal with him for subsequent offending.
27 April 2020 – Driving offences
The relevant events of this date commenced at about 2.15pm. At that time, police observed the respondent driving a blue Hyundai near the intersection of Commercial Street and Anthony Street, Mount Gambier. Police attempted to stop the respondent and activated their emergency lights. Initially, the respondent made a jerking motion to the left as though he was about to stop, however, he did not. The respondent then accelerated at speed, travelling at 80 km/h in a 50 km/h zone. This all happened in the CBD of Mount Gambier, where there was considerable traffic. In the vicinity there were pedestrians, cars, narrow roads and commercial premises. At one stage the respondent’s vehicle started skidding as he turned left into one of the side streets, causing his front tyres to lock up. The respondent continued to drive in a dangerous manner, entering intersections without giving way as he accelerated in an apparent attempt to get away from the police. The police decided to terminate their pursuit because of the risk to the public and deactivated their lights in an attempt to de-escalate the situation. Within minutes, the respondent drove against a red signal at a traffic light at the intersection of Penola Road and Commercial Street, entering the intersection without giving way. This resulted in a collision with two other vehicles. The respondent was seen by members of the public to be running from the scene, despite the fact that the drivers of both of the other vehicles remained trapped and unable to get out of their cars. The respondent did not stop to offer any assistance. The drivers of the other vehicles both suffered injuries. One driver, who was aged 86 years, suffered lacerations to his scalp and left forearm as well as soreness to his neck. He was admitted to the Mount Gambier Hospital for treatment. The driver of the other vehicle, a 40-year-old woman, suffered cuts to her right-hand knuckles and soreness to her head.
Upon becoming aware of the collision, numerous police patrols were deployed to locate the respondent. They eventually found him hiding in a shed a short distance away from the collision.
As a consequence of these events, the respondent was charged with the offences of driving in a manner dangerous to escape a police pursuit,[1] driving unlicenced,[2] failing to stop, assist, and present to police after an accident,[3] leaving an accident scene after causing harm,[4] hinder police,[5] engaging in an act likely to cause harm,[6] failing to stop at a red traffic signal,[7] and being unlawfully on premises.[8]
[1]     Criminal Law Consolidation Act 1935 (SA) s 19AC(1)(a).
[2]     Motor Vehicles Act 1959 (SA) s 74(2)
[3]     Road Traffic Act 1961 (SA) s 43(1).
[4]     Criminal Law Consolidation Act 1935 (SA) s 19AB(2).
[5]     Summary Offences Act 1953 (SA) s 6(2).
[6]     Criminal Law Consolidation Act 1935 (SA) s 29(3).
[7]     Australian Road Rules 2016 r 56(1)(a).
[8]     Summary Offences Act 1953 s 17(1).
14 October 2020 – Breach of home detention bail conditions and further driving offences
On 9 October 2020, the respondent entered into a bail agreement in the Mount Gambier Magistrates Court. The conditions of that agreement included home detention with electronic monitoring.
At about 1.16am on 14 October 2020 the respondent’s Community Corrections Officer (‘Corrections Officer’) was notified of a bracelet tamper from the respondent’s electronic monitoring device. The Corrections Officer called the respondent’s telephone number and received no response. He then called the black box located in the respondent’s house which also went unanswered. The Corrections Officer contacted the police and advised them about the unauthorised absence of the respondent.
At about 1.28am police attended at the respondent’s residence. When they arrived, there were no lights on in the house and it was apparent that no one was home. Police entered the premises and could not locate the respondent. They subsequently found the respondent’s home detention bracelet in the gutter at the front of the address.
At about 3.58am police observed the respondent driving a vehicle travelling at speeds in excess of 150 km/h in an easterly direction on Princess Highway, Tantanoola. The car was observed driving towards Mount Gambier and then, as it reached the township, it slowed down to speeds of approximately 50 km/h. Police followed the vehicle and activated their lights. They observed the respondent driving throughout the CBD in Mount Gambier often on the wrong side of the road. Whilst the respondent’s speed was not excessive, his driving was dangerous. At one stage, as the vehicle approached the intersection of McGregor Street, it changed lanes to the wrong side of the road. It continued on the wrong side until a gap in the medium strip, at which point it then changed back onto the correct side of the road. Police continued to follow the car as it drove in an erratic and dangerous manner through the streets of Mount Gambier before finally stopping in the middle of Marara Street, at which point the respondent exited the car and was arrested. The respondent was charged with breaching bail,[9] driving whilst disqualified,[10] illegal use of a motor vehicle,[11] and driving in a manner dangerous to escape a police pursuit.[12]
[9] Bail Act 1985 (SA) s 17(1).
[10] Motor Vehicles Act 1959 (SA) s 91(5).
[11] Criminal Law Consolidation Act 1935 (SA) s 86A(1).
[12] Criminal Law Consolidation Act 1935 (SA) s 19AC(1)(a).
August 2021 – Breach of bail
One of the conditions of a bail agreement that the respondent entered into on 9 June 2021, was that he was subject to a curfew such that he could not leave his residence between 8.00pm and 6.00am and was required to present himself at the door if requested to by a police officer. There was a further condition that the respondent report at the Millicent Police Station between the hours of 9.00am and 4.00pm each Wednesday.
On 13 August 2021 at 11:23pm, police attended at the respondent’s residence to conduct a bail curfew check. He was not present at his residence at that time. This was the subject of a charge of failing to comply with a bail agreement. The respondent was charged with two further breaches of his bail conditions.[13] These were both breaches of the reporting condition. Records indicated that the respondent failed to report at the Millicent Police Station as required on 9 June 2021 and 18 August 2021.
[13] Bail Act 1985 (SA) s 17(1).
Sentence imposed 26 November 2021
On 26 November 2021 all of these matters came before the Magistrate. The Magistrate observed that whilst the respondent had some criminal history, there had clearly been a significant increase in his offending, as evidenced by the matters that were before the Court. She described that “things have escalated out of control”.[14] The Magistrate, taking into account the eight months and seven days that the respondent had spent in custody, and the two months and 19 days spent on bail with home detention conditions, imposed the suspended sentence bond in relation to the events of 14 October 2020 and the resentence bond in relation to all of the remaining offences.
[14] Sentencing Remarks at 3.
In delivering her sentencing remarks, the Magistrate made it plain that the personal circumstances of the respondent were such that she had formed the view that he was not without hope and that she was giving him an opportunity to obtain support and intervention to assist with his rehabilitation. On three separate occasions during the course of delivering the sentencing remarks, the Magistrate warned the respondent that if he failed to comply with the conditions of the bonds, he was at risk of being imprisoned.
8 January 2022 – The breaching offences
Within two months of those bonds being imposed, the respondent committed a further three offences. As set out previously these were driving whilst disqualified,[15] failing to stop a vehicle as directed,[16] and driving a motor vehicle whilst there was present in his oral fluid a prescribed drug.[17] These offences occurred on 8 January 2022. On that date, at about 1.48pm, police on patrol observed a Holden Sedan travelling past them in the opposite direction. The respondent was the driver of that vehicle. Police decided to stop the vehicle for a driver drug screen. They activated their emergency lights and flashed their headlights at the respondent. At that point, the respondent was observed to accelerate at increasing speed as he passed police. Police conducted a U-turn and followed the respondent with the emergency lights activated, but he did not stop. The respondent continued to increase the vehicle’s speed in an attempt to evade police. The police decided to terminate their pursuit so as not to exacerbate the dangerousness of the situation.
[15] Motor Vehicles Act 1959 (SA) s 91(5).
[16] Road Traffic Act 1961 (SA) s 40H(5).
[17] Road Traffic Act 1961 (SA) s 47BA(1)(a).
At 2.05pm police attended at an address at Mount Gambier and located the vehicle that the respondent had been driving parked in the front yard. Police observed the respondent running through the house. He was arrested at that time. The respondent was submitted to a “drug swipe” which registered a positive result for methylamphetamine. The respondent did not have a driver’s licence at this time. Not only had he never held a licence, but he had been disqualified by the Court for three years effective from 2 November 2021.
Application to estreat the bonds
On 7 March 2022, the respondent appeared before the Magistrate in relation to the new charges, as well as the applications for the enforcement of the suspended sentence bond and the resentence bond.
The respondent pleaded guilty to the new charges. On that basis, the prosecution submitted that the bonds should be revoked, and the respondent be sentenced to a term of imprisonment for the resentence bond and the January offence of driving disqualified.[18] Counsel for the respondent opposed that course and effectively put to the Court that the respondent should be given a final chance.
[18] The maximum penalty for the two other offences committed on 8 January 2022 were fines.
The sentence imposed by the Magistrate had the effect that the respondent was immediately released from custody and most significantly to the resolution of this appeal, the Magistrate declined to revoke the suspended sentence bond.
The appellant relies on a single ground of appeal, namely, that the Magistrate erred in failing to revoke the suspended sentence bond.
Legislative provisions and policy
Before turning to consider the sentence imposed, and in particular the decision of the Magistrate to not estreat the suspended sentence bond, it is prudent to consider the legal principles underpinning the approach to be adopted in relation to breaches of bonds.
The consequences of failing to comply with a good behaviour bond are dealt with in “Part 4, Division 3 – Enforcement of bonds, community service orders and other orders of non-pecuniary nature” of the Sentencing Act 2017 (SA) (‘the Sentencing Act’).
The relevant provisions appear under “Subdivision 1 – Bonds”. Section 114 sets out the regime for the approach to be adopted in the event that a probationer has failed to comply with a condition of a bond:
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—
(a)     may, if the bond requires the probationer to pay a sum in the event of non‑compliance with a condition of the bond, order the probationer to pay the whole or a part of that sum; or
(b)     may order a guarantor to pay the whole or a part of the amount due under the guarantee; or
(c)     may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond—
(i)sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or
(ii)if 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, refrain from taking any action in respect of the failure; or
(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)The court may not order a person to pay an amount pursuant to subsection (1)(a) unless the court is satisfied that—
(a)     the person has, or will within a reasonable time have, the means to pay the amount; and
(b)     payment of the amount would not unduly prejudice the welfare of dependants of the person.
(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.
(4)Section 105 applies in relation to a bond in respect of which a condition requiring the performance of community service is imposed under subsection (3)(b)(ii).
(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;
(b)     an order directing that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(c)     in the case of a probationer whose sentence of imprisonment was partially suspended under section 96(5) and even if the term of the sentence now to be served in custody is less than 12 months—an order fixing or extending a non parole period taking into account the time spent in custody by the probationer before being released on the bond;
(e)     an order directing that—
(i)in the case of a sentence partially suspended under section 96(4) or (5)—any part of the sentence that the probationer has not served in custody; or
(ii)in any other case—the suspended sentence,
be cumulative on another sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
(6)If a court other than the probative court sentences a probationer for the original offence, the court cannot impose a sentence that the probative court could not have imposed.
(Emphasis added)

Section 114(1)(d) of the Sentencing Act provides that where the Court is satisfied that the probationer has failed to comply with a condition of a bond and has been sentenced to a term of imprisonment that was suspended under that bond, the Court must revoke the suspension and order that the sentence be carried into effect.
Pursuant to s 114 (3) of the Sentencing Act, the Court may refrain from revoking the suspension where the Court is satisfied that the failure to comply was trivial or there are proper grounds upon which the failure should be excused. It is of significance that although the revocation of a suspended sentence is not automatic upon a breach occurring, the Court must revoke the suspended sentence unless the criteria in s 114(3) is satisfied. The legislative policy behind similar provisions in the earlier Offenders Probation Act1913 (SA) are set out in the often-cited decision of R v Buckman by King CJ:[19]
There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not likely interfere with the ordinary consequence for a breach of recognisance.
[19] (1988) 47 SASR 303 at 304.
Later decisions confirm that these remarks applied equally to the former s 58(3) of the Criminal Law (Sentencing) Act1988 (SA) and since then they have also been applied to the current Sentencing Act provisions.[20]
[20] R v Scuteri [2018] SASCFC 103 at [33].
What amounts to “proper grounds”?
In this matter there was no suggestion that the breaching offending was trivial, such that the Magistrate could, on that basis, excuse the breach. The only matter under consideration was whether there were “proper grounds” for the Magistrate to refrain from taking any action in relation to the suspension of the sentence of imprisonment.
There has been much judicial consideration of what may amount to proper grounds to excuse a breach of a bond. It has been authoritatively decided by this Court 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.[21]
[21] Norman v Lovegrove (1986) 40 SASR 266 at 267 (per Prior J, with whom King CJ agreed); at 271-272 (per Olsson J, with whom King CJ and Prior J agreed); R v Buckman (1988) 47 SASR 303 at 304 (per King CJ); at 307 (per Jacobs J, with whom King CJ agreed); 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] (per Blue J, with whom Nicholson J agreed); R v Smith [2014] SASCFC 98 at [25] (per Kourakis CJ, with whom Vanstone and Blue JJ agreed); R v Bui (2016) 125 SASR 137 at [60], [66] (per Kelly, Blue and Nicholson JJ).
In R v Buckman,[22] the Court of Criminal Appeal considered the predecessor of s 114(3) of the Sentencing Act. King CJ described the section as recognition by Parliament “that in some cases the rigorous application of the ordinary consequences of breach can be oppressive and even unjust”. In considering what might amount to proper grounds for excusing a breach both generally and on the facts of that case, King CJ said the following: [23]
… 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.
In the present case it seems to me that there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated. It is not irrelevant, moreover, that the offence constituting the breach is of a quite different character from that for which the sentence was imposed. … it seems to me that the total effect of the relatively minor nature of the offence constituting the breach, the difference in character between it and the offence for which the sentence was imposed and the disproportion between the seriousness of the offence constituting the breach and the sentence which would be activated, is such as to amount to proper grounds upon which the failure to observe the conditions of the recognisance should be excused.
[22] (1988) 47 SASR 303.
[23] R v Buckman (1988) 47 SASR 303 at 304.
Jacobs J similarly expressed a view that the focus of a determination of whether there were proper grounds was on the nature and circumstances of the breaching offence:[24]
This Court has on many occasions sought to emphasise the punitive nature of a suspended sentence; not to carry it into effect when the bond is broken diminishes the deterrent and rehabilitative purpose of the suspended sentence, and tends to undermine the authority of the sentencing court. Those are factors to be kept constantly in mind, but 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.
[24] R v Buckman (1988) 47 SASR 303 at 308.
In more recent times, Blue J in Police v Heritage,[25] and Doyle J in Police v Peel,[26] have revisited the question of the nature of the test to be applied in determining whether there are proper grounds to excuse the breach of a bond pursuant to s 114(3) of the Sentencing Act.
[25] (2019) 135 SASR 1.
[26] (2021) 137 SASR 584.
In Heritage, the police appealed against the excusal of the breach of a bond on the ground that the Magistrate had erroneously relied on the respondent’s personal circumstances as opposed to limiting the focus to the nature and circumstances of the offending. A single judge of the Supreme Court dismissed the appeal. The police made an application for permission to appeal to the Full Court against that dismissal. Blue J (with whom the other members of the Court concurred) allowed the appeal. The section under consideration at that time was s 58 of the Criminal Law (Sentencing) Act1988 (SA) which was essentially in the same terms as s 114(3) of the Sentencing Act. In considering the meaning of the expression “proper grounds upon which the failure should be excused”, Blue J said:[27]
…it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection (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).
(Footnote omitted)
[27] Police v Heritage (2019) 135 SASR 1 at [22].
Blue J then provided an example to illustrate the difference between the “circumstances of the offence” and “personal circumstances”:[28]
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.
(Footnote omitted)
[28] Police v Heritage (2019) 135 SASR 1 at [31].
In Peel, a Magistrate found that pursuant to s 114(3) of the Sentencing Act, there were no proper grounds upon which the defendant’s failure to comply with the conditions of the suspended sentence bond should be excused. The Magistrate revoked the suspension. The defendant appealed to a single judge of this Court. That Judge accepted the defendant’s contention that the Magistrate erred in treating the defendant’s previous offending as relevant to, and ultimately negating the existence of proper grounds to excuse the breach. The Judge allowed the appeal, found there were proper grounds to excuse the breach and set aside the Magistrate’s order revoking the defendant’s sentence of imprisonment.
The police sought permission to appeal to the Full Court, arguing that the Judge erred in holding that proven offending which predated a suspended sentence bond could not be taken into account.
In considering whether the Judge had been in error in adopting the approach of disregarding the defendant’s criminal history, the Full Court re-affirmed that the test to be applied was that which had been set out by King CJ in Buckman. In his brief reasons Kourakis CJ, citing Heritage, provided some clarity as to the parameters of the test to be applied in determining whether “proper grounds” had been established:[29]
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”, to “factors relating to the breach itself”, and to “circumstances existing at the time of the offence which bear on the culpability of the offender in committing the offence” (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.
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 , 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.
(Footnotes omitted)
[29] Police v Peel(2021) 137 SASR 584 at [2]-[3].
In Police v Peel, Doyle J also considered the issue of whether the tests for proper grounds may encompass a defendant’s history of offending. In doing so, Doyle J considered the line of authorities commencing with Norman v Lovegrove[30] and R v Buckman which had been more recently considered in Police v Heritage.Extrapolating from those authorities, Doyle J summarised the test to be applied in determining whether proper grounds had been established to excuse the breach of a bond:[31]
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.
[30] (1986) 40 SASR 266.
[31] Police v Peel (2021) 137 SASR 584 at [38]-[40].
The judgments of this Court in Police v Heritage[32] and Police v Peel[33] have expanded upon the decision of R v Buckman[34] and provided greater clarity as to how the Court should approach the question of what amounts to “proper grounds” for excusing a failure to comply with a suspended sentence bond. This requires the 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.[35] When determining whether proper grounds had been established in this matter, consideration should be given to the objective circumstances of the breach offending, including those circumstances of the offending that are related to the same point in time and factors relating to the breach itself. This consideration also extends to those circumstances existing at the time of the offending which bear on the culpability of the respondent committing the breach offending.[36] Relevantly in this matter, this includes consideration of a history of similar offending, particularly if circumstances of the breach offending is shown to be in flagrant disregard of the obligations imposed by the suspended sentence bond.
[32] (2019) 135 SASR 1.
[33] (2021) 137 SASR 584.
[34] (1988) 47 SASR 303.
[35] Police v Peel (2021) 137 SASR 584 at [38] (per Doyle J).
[36] Police v Peel (2021) 137 SASR 584 at [2]-[3] (per Kourakis CJ).
The consideration of these matters in this case are relevant to both fully understanding the nature and seriousness of the respondent’s breach offending, as well as whether it would be disproportionate to revoke the suspension of the respondent’s sentence in the circumstances. The question of disproportionality requires the weighing of the differences between the original offending and the breach offending; however the relevance of these considerations is nevertheless limited.[37] In R v Smith,[38] Kourakis CJ (with whom Vanstone and Blue JJ agreed) noted that “the question is whether the circumstances in which the breach was committed are of a nature which excuses the failure to abide the condition of the bond having regard to the purpose for which it was imposed”.[39]
[37] Police v Heritage (2019) 135 SASR 1 at [29]; R v Smith [2014] SASCFC 98.
[38] [2014] SASCFC 98.
[39] R v Smith [2014] SASCFC 98 at [25].
The approach to be adopted in determining whether there are “proper grounds”
Given the relatively narrow focus of s 114(3) of the Sentencing Act, the approach to be adopted by the Magistrate in determining whether to excuse the breach was very different to a general sentencing discretion. The Court is only empowered to refrain from revoking the suspended sentence if satisfied that the failure to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused. It is therefore to those two issues that the Magistrate was required to have turned her mind. Absent a positive determination of either of those two questions, the Magistrate had no power to excuse the breach.
The approach adopted by the Magistrate
Given that the Magistrate had previously sentenced the appellant and placed him on the two bonds, she was already familiar with his personal circumstances and criminal history. It followed that her sentencing remarks were relatively brief. I make no criticism of that. The Magistrate indicated that she accepted the respondent’s explanation of the reasons for having committed the breaching offences. That explanation was that at the relevant time the respondent had been removed from the Suboxone Program because of his failure to collect his medication from the chemist and had relapsed into methylamphetamine use two days before the subject offences. The Magistrate accepted that as a consequence and without thought, the respondent drove to get cigarettes on the day in question. It was whilst on route that the police came across the respondent.
The Magistrate accepted that both bonds had been breached as a result of the commission of the new offences and gave consideration to whether she should estreat them. The following passages set out in its entirety her Honour’s reasoning for determining to not revoke the suspended sentence bond:
I am considering what is best for the future. For you to stay on track is really important. I could revoke both bonds as requested by Prosecution. One has no term of imprisonment attached to it and the other has three months and seven days. I consider that the community would be best served for you not to simply serve a further period and come out of prison without any bond. …
I understand why the prosecutor wants me to revoke both bonds. That would be the normal course. However, once you are released from prison, I want you to still have something that is going to remind you that you have to stay on track.
…
I consider that the suspended sentence bond that you have breached is not of like offending, it is not a drive disqualified, it relates to more serious offending, and it would be disproportionate for me to revoke that bond and for you to complete the full term of imprisonment that is attached to that bond. In addition, looking at the bigger picture I consider that the community would be best served knowing that you have to stay on track and have something that is going to keep you on track for the future which is a suspended sentence bond. So I take no further action on the application for enforcement of a breached bond on file 22-13 for the reasons outlined and I consider that it would be best that that bond still remain in place for the future.
In relation to the application for enforcement of a breached bond for file 22-12, being a good behaviour bond, that bond was for you to come back for resentencing if breached. That bond relates to the same offence of driving whilst disqualified and has now been breached. I consider that this bond should be revoked and for you to be resentenced. I sentence you to a term of imprisonment on that file. I also sentence you to a term of imprisonment for the fresh offence of drive whilst disqualified. I note that you have spent two months in prison to date. I consider that to be penalty for the revoked good behaviour bond and the new sentence for drive whilst disqualified. The two months of imprisonment is backdated 8 January 2022. …

It is apparent from these passages that the Magistrate formed the view that the best outcome for both the respondent and the community was that the respondent be released from custody with a good behaviour bond remaining in place. On that basis, the Magistrate crafted a sentence that involved the estreatment of the resentence bond with a sentence that reflected the period that the respondent had spent in custody. Her Honour then determined to not revoke the suspended sentence bond to enable the respondent to be released into the community, subject to the conditions of that bond. The reason provided by the Magistrate for adopting that course was that the breaching offences were not “like offences” and consequently it would be disproportionate to revoke the bond resulting in the respondent serving the full term of imprisonment attached to that bond.
Was the Magistrate in error?
In my view, the Magistrate erred in a number of ways in her approach to the suspended sentence bond. It would appear that the error has come about by a focus on the end result rather than the Magistrate undertaking the appropriate approach that has been set out in the authorities in relation to breaches of bonds.
The decision of the Magistrate to decline to revoke the bond appears to be entirely based on arriving at a view that the breaching offences were of a different character or level of seriousness as compared to the suspended sentence offences. It was incorrect to categorise the breaching offending as “not of like offending” or of such a different character that the activation of the sentence might be a quite disproportionate consequence of it.[40] Although there were different circumstances and offences charged over the two occasions, both involved driving in a manner that put police and the public at risk. Both involved a deliberate disregard for the law and the rules of the road in circumstances in which the respondent had never held a driver’s licence. In many respects, there is a marked similarity in the pattern of offending, as both demonstrate a troubling disregard for the orders of the Court.
[40] R v Pham [2003] SASC 386 at [70] (per Perry J, with whom Besanko J agreed), at [118] (per Mullighan J).
It also cannot be that this level of disparity between the seriousness of the offence for which a bond has been imposed, as compared to the breaching offence, will lead to the conclusion that there are proper grounds to excuse the breach. There will almost always be one offence more serious and one less so. It should be remembered that in R v Buckman the appellant had pleaded guilty to the offence of unlawful wounding, resulting in a sentence of two years and six months imprisonment with a non-parole period of one year and six months. The breaching offence was a shoplifting offence involving goods to the value of $2.82. In that instance, it is immediately apparent why the Court came to the view that it would be disproportionate to revoke the bond and require the appellant to serve the terms of imprisonment. This matter is factually very different.
In R v Kinvig,[41] the appellant argued that it would be markedly disproportionate to revoke a suspended sentence bond imposed for drug trafficking offences that had been breached by the appellant committing the offence of driving whilst disqualified. The Court in a joint judgment observed:[42]
… A marked disproportion between the seriousness of the breaching offence and the sentence which would be activated can constitute proper grounds for excusing a breach. So to can a substantial difference between the character of the offence for which the suspended sentence was imposed and the breaching offence. However, the sentence passed for the offence of driving whilst disqualified which, as we have found, was properly imposed, is in itself a substantial proportion of the sentence which was suspended. Even though the offence of driving whilst disqualified is of a different kind to drug trafficking, it shows a troubling disregard for the orders of the court. That concern is reinforced by the revelation in the pre-sentence report provided to the sentencing Judge that the defendant’s reporting compliance throughout the period of the bond was “exceptionally poor”. It is not arguable that there is any disproportion in this case.
[41] [2013] SASCFC 132.
[42] R v Kinvig [2013] SASCFC 132 at [6].
The Magistrate also failed to consider the respondent’s history of similar offending, which was directly relevant to a consideration of the nature and seriousness of the breach and, in turn, to the question of whether it was disproportionate to revoke the bond. Her Honour’s reasons were silent as to the effect of the respondent’s various antecedents in determining his culpability for the breaching offence. That history was relevant to not only a full understanding of the nature and seriousness of the breaching offending but also whether it would be disproportionate to revoke the suspension of that sentence.[43]
[43] Police v Peel [2021] SASCFC 7 at [39].
It is also apparent from her reasons that the Magistrate considered irrelevant and extraneous matters for the purpose of determining whether to revoke the bond. In determining that question, the Magistrate took into account the “bigger picture” and considerations of how “the community would be best served” which deviated from the relatively narrow task that was to be undertaken.
Bearing all of these matters in mind, I have arrived at the view that in applying the test most recently set out in Police v Heritage[44] and Police v Peel,[45] the Magistrate erred in determining not to revoke the suspended sentence bond.
[44] (2019) 135 SASR 1.
[45] (2021) 137 SASR 584.
Principles on appeal
On an appellate review of a sentencing decision, the principles enunciated in House v The King are applicable.[46] A challenge to a sentencing judge’s discretionary decision can only succeed if the judge:[47]
1.made an error of legal principle;
2.made a material error of fact;
3.took into account some irrelevant matter;
4.failed to take into account, or gave insufficient weight to some [exceptional] relevant matter; or
5.arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
[46] (1936) 55 CLR 499.
[47] Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45].
Members of an appellate court cannot substitute, on appeal, a judgment which turns on their own exercise of discretion “merely because they would themselves have exercised the original discretion, had it attached to them, in a different way”.[48] For an appealable error in the exercise of judicial discretion to be established, the appellate court must be satisfied that what was done by the primary judge, in the judgment under appeal, amounted to a failure to properly exercise the discretion entrusted to the sentencing court. Such an error has been demonstrated here, in the manner that the Magistrate exercised her sentencing discretion.
[48] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [37] (per Gageler J).
The Everett principle
Section 42(1) of the Magistrates Court Act 1991 (SA) confers the right to any party to a criminal action to appeal against any judgment given in the action. The appeal lies to this Court and permission is not required.
Despite the absence of a requirement to obtain permission to appeal, the common law suggests that it is clear that the principles governing prosecution appeals against sentence, often referred to as the Everett principle or the rule against double jeopardy, apply to prosecution appeals against sentences imposed in the Magistrate Court.[49]
[49] Police v Chilton (2014) 120 SASR 32 at [29]; Police v Cadd (1997) 69 SASR 150.
The Everett principle established that, on a prosecution appeal, an appellate court will only interfere in “the rare and exceptional case”.[50] In that decision, the principle was enunciated in the following terms:[51]
… [T]he deep-rooted notions of fairness which underlie the common law principle against double jeopardy require that a court of criminal appeal approach an application by the Crown for leave to appeal against sentence on the basis that such leave should only be granted in the rare and exceptional case. Indeed, that approach was particularly appropriate in the present cases where the effect of the sentencing judge's orders had been that each of the appellants had been released from custody and had been permitted and encouraged to resume his place in the community and to set out on the path of rehabilitation.
[50] Everett v The Queen (1994) 181 CLR 295 at 299.
[51] Everett v The Queen (1994) 181 CLR 295 at 305.
This applies to appeals against sentences imposed by the Magistrates Court, despite those appeals lying as of right.[52]
[52] Police v Cadd (1997) 69 SASR 150 at 157-159 (per Doyle CJ, with whom Duggan and Mullighan JJ agreed).
In Police v Cadd,[53] Doyle CJ confirmed the application of the Everett principle in this State. His Honour went on to observe, however, that there was no difference in substance between what the High Court said in Everett with what King CJ said, in R v Osenkowski:[54]
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. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
[53] (1997) 69 SASR 150.
[54] (1982) 30 SASR 212 at 212-213.
An appeal can be justified where such inadequacy in a sentence may indicate error or departure from principle and it is therefore appropriate for the appellate court to exercise its influence towards consistency in sentencing.[55]
[55] Griffiths v The Queen (1977) 137 CLR 293 at 310 (per Barwick CJ); Malvaso v The Queen (1989) 168 CLR 227 at 234.
It is also well established that when an error in sentencing is established and permission to appeal is granted, but allowing the appeal would result in the defendant’s imprisonment after he or she has been living a law-abiding life in the community for a sustained period, the Court has a residual discretion to dismiss the appeal.[56] In Green v The Queen,[57] the High Court considered the exercise of the residual discretion in the context of a Crown appeal. It was observed: [58]
Other circumstances may combine to produce injustice if a Crown appeal is allowed. They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.
[56] Green v The Queen (2011) 244 CLR 462 at [43] (per French CJ, Crennan and Kiefel JJ); R v O’Connor [2012] SASCFC 15 at [21]-[22] (per Doyle CJ, with whom Gray and Stanley JJ agreed).
[57] (2011) 244 CLR 462.
[58] Green v The Queen (2011) 244 CLR 462 at [43] (per French CJ, Crennan and Kiefel JJ).
In my view, despite the error in the approach adopted by the Magistrate, this is an appropriate case in which to exercise that discretion. The respondent is still a relatively young man having just recently turned 26. He was sentenced on 7 March 2022. It follows that he has been out of gaol and in the community for more than five months. Whilst the delay is not of the duration that it was in many of the authorities, it is still a significant period of time. Of particular importance in this case is the fact that the same Magistrate dealt with the respondent on each occasion that he came before the Court. The Magistrate is very experienced and regularly deals with a variety of offenders from various backgrounds, cultures and walks of life. It is apparent from the approach that the Magistrate took on each occasion that the respondent appeared before her, and the reasons that she has provided, that she saw some hope for rehabilitation and a positive future for the respondent. It is no doubt for that reason that the Magistrate took a merciful approach on each occasion that she sentenced the respondent. I place considerable weight on the impression that she formed of the respondent’s prospects for the future.
Conclusion
In all of the circumstances, whilst error has been established, I dismiss the appeal.