Police v Town - [2007] SASC 45

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v TOWN

[2007] SASC 45

Judgment of The Honourable Justice Layton

15 February 2007

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER

Crown appeal against sentence – respondent sentenced in relation to a number of offences on five separate files, including Threatening to Cause Harm, Non-Aggravated Serious Criminal Trespass, and a range of property offences – sentenced to three years imprisonment with a non-parole period of 21 months, suspended upon entry into a three year good behaviour bond – whether sentence manifestly inadequate – whether the Magistrate erred in suspending the sentence of imprisonment – Held: Sentence imposed is so far below the appropriate range of sentence that it reflects an error in principle – sentence is manifestly inadequate – sentence imposed by Magistrate set aside – respondent re-sentenced to four years imprisonment with non-parole period of 26 months - sentence suspended upon entry into three year good behaviour bond – appeal allowed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS

An application for enforcement of a breach of bond was also brought before the Magistrate on the basis that the respondent had failed to report to Correctional Services in accordance with his bond conditions – Magistrate excused the breach of bond – Magistrate failed to give reasons for excusing breach – whether Magistrate erred in excusing the breach of bond – Held: Proper grounds existed for excusing the breach – Magistrate did not err in excusing the breach.

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Magistrates Court Act 1991 (SA) s 42; Criminal Law (Sentencing) Act, 1988 (SA) ss 18A, 58(3); Criminal Law Consolidation Act, 1935 (SA) ss 19(2), 8593), 134(1) 169(1), 241(1)(b); Graffiti Control Act, 2001 (SA) s 9(1); Bail Act, 1985 (SA) s 17; Summary Offences Act, 1953 (SA) s 17(1), referred to.
Police v Cadd and Ors (1997) 69 SASR 150; Everett v The Queen (1994) 181 CLR 295; Griffiths v R (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212; Dinsdale v R (2000) 202 CLR 321; R v Nemer (2003) 87 SASR 168; R v Buckman (1988) 47 SASR 303; R v Kruger (1977) 17 SASR 214, applied.
Director of Public Prosecutions v Leach (2003) 139 A Crim R 64; R v Delphin (2001) 79 SASR 429; R v Smith (2002) 224 LSJS 134; Lawrie v The Queen (1992) 59 SASR 400; R v Marston (1993) 60 SASR 320; R v Hicks (1987) 45 SASR 270; R v Hayes (1987) 29 A Crim R 452, considered.

POLICE v TOWN
[2007] SASC 45

Magistrates Appeal: Criminal

LAYTON J:

Introduction

This is a prosecution appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991 (SA). On 13 September 2006, a Magistrate sentenced the respondent in relation to the following files:
·       AMC-04-8480: Non-Aggravated Serious Criminal Trespass (Non-Residential); Dishonestly Take Property Without Owner’s Consent; Mark Graffiti between 24 and 28 January 2004.
·       AMC-05-12363: Dishonestly Take Property Without Owner’s Consent; Assist Offender on 28 November 2004.
·       AMC-05-10943: Threatening to Cause Harm; Damaging Property; Dishonestly Take Property Without Owner’s Consent on 18 February 2005.
·       AMC-05-11788: Fail to Comply with Bail Agreement; Unlawfully on Premises; Dishonestly Take Property Without Owner’s Consent; Damage Property Not By Marking Graffiti/Damage Type Unknown on 24 August 2005.
·       AMC-06-12632: Unlawfully on Premises; Fail to Comply with Bail Agreement; Dishonestly Take Property Without Owner’s Consent on 8 August 2006.
On file AMC-04-8480 the respondent was found guilty of all three charges following a trial. On all other files the respondent pleaded guilty to each of the offences charged.
The Magistrate imposed one penalty for all counts on the above files pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (‘the Act’). The respondent was sentenced to three years imprisonment with a non-parole period of 21 months. The sentence of imprisonment was suspended upon the respondent entering into a bond to be of good behaviour for a period of three years.
At the time of sentencing, the respondent also admitted a breach of bond, which is the basis of file AMC-06-965. The application for enforcement of the breach of bond was brought on the basis that the respondent had failed to report to Correctional Services in accordance with his bond conditions. The Magistrate excused this breach pursuant to s 58(3) of the Act.
The prosecution appeals on three grounds: First, that the sentence is manifestly inadequate; second, that the learned Magistrate erred in law in excusing the breach of bond on file AMC-06-965; and third, that the learned Magistrate erred in suspending the sentence of imprisonment.

Circumstances of offending

The Magistrate’s Remarks on Penalty do not make any reference to the circumstances of the offences for which the respondent was sentenced. It is necessary to set out in some detail the circumstances of the offending as submitted to the Magistrate by the prosecutor and defence counsel.

AMC 04-8480

Between 25 and 27 January 2004, the respondent broke into the premises of Multi Slide Industries, Edwardstown. The respondent stole an air compressor, grinders and general tools, and also marked the wall with graffiti. The tools were not recovered. The victim sought compensation in the amount of $3650 for replacements of the tools and removal of the graffiti from the walls.

AMC 05-12363

The prosecutor alleged that at about 11.10pm on Sunday, 28 November 2004, the clubroom window of the Edwardstown Football Club was smashed with a 44 gallon steel drum. Two bottles of alcohol to the estimated value of $100 were stolen from the bar area within the football club.
When questioned by police, the respondent denied the offences, but stated that he had been drinking whisky from the Johnny Walker Red Label bottle knowing that the property was probably stolen.
Counsel for the defence indicated that the respondent accepted the police allegations. It was further submitted that on this particular evening the respondent with his partner and a friend were all out together in the friend’s car, driving around Adelaide. During this time the respondent consumed amphetamines. After they had been driving around for some time, the friend drove the car to the car park of the Edwardstown Football Club, and indicated that he was going to break into the clubrooms and did so. The respondent’s involvement was transferring stolen bottles of alcohol from the clubrooms to the vehicle, and consuming some of this alcohol.

AMC 05-10943

The prosecutor alleged that at about 11.45 pm on Friday, 18 February 2005, the victim Tsivoulidis was at home asleep in bed, when he was awoken by knocking on his bedroom window. The victim said he went to the front door and saw the respondent, whom he knew as a neighbour for seven to eight years. He said the respondent came in with some wine and that they sat in the kitchen for about five minutes whilst the respondent drank some wine. Tsivoulidis said that the respondent was moderately intoxicated.
Tsivoulidis stated that the respondent then left his house and Tsivoulidis went back to bed. Within a couple of minutes Tsivoulidis said that he heard a knock on the front door and called out, “Who is it?”, to which he got a reply of, “It’s the same person”. Tsivoulidis opened the main wooden front door and saw a knife lodged at about head height impaled in the security door. The screen door was then flung open and he saw the respondent, who had a cloth across his face and was wearing a black beanie, holding a large kitchen knife in his left hand. The respondent entered the house waving the knife at him and stated, “I’m here to rob you”. Tsivoulidis said words to the effect of, “You’ve got to be joking”, and the respondent replied, “I’m serious.” Tsivoulidis said, “Fuck off” and pushed the knife away forcing the respondent to hit himself with the knife in the head area. The respondent then said, “I’m going to kill you” whilst approaching Tsivoulidis with a stabbing motion. Tsivoulidis then kicked the respondent in the stomach, causing him to fall backwards. The respondent then got up and again began to rush at Tsivoulidis, who was able to quickly close the front door and lock him out. The respondent then fled from the house and Tsivoulidis called police.
Upon police arriving at the scene, Tsivoulidis noticed that his mobile telephone was missing from the kitchen table. Tsivoulidis also inspected his front screen door and saw that there were two holes slashed in it, one at about head height and the other near the door handle.
At about 2.17am, police arrested the respondent at his home. Police searched the respondent and located the victim’s mobile phone secreted down his underpants.
When questioned by police, the respondent denied all allegations. Police observed that he was moderately to grossly affected by alcohol.
Counsel for the respondent submitted to the Magistrate that this offending once again occurred when the respondent was under the influence of drugs and alcohol. It was submitted that because of the respondent’s intoxication he did not have a clear memory of this particular incident. He acknowledged that he knew the victim, that he remembered attending at the victim’s house on the day and he was welcomed into the victim’s house. After spending some time with the victim the respondent said that they got into an argument. The respondent remembers that during the argument the victim called him a “faggot” which upset him quite significantly. After this comment, the respondent decided to leave the victim’s premises. The respondent had a vague memory of stealing the victim’s phone, but could not explain why. The respondent returned home and then returned to the victim’s premises. He cannot recall exactly what he did upon his return, but accepts the version given by the victim.
Defence counsel submitted to the Magistrate that the respondent’s offending on this occasion was intrinsically linked to issues raised within the psychological report of Mr Greg Ireland. Specifically, the fact that the respondent has been a victim of prior sexual abuse. It was submitted that the respondent’s underlying psychological difficulties were linked to the respondent’s aggressive and inappropriate behaviour on this occasion.

AMC 06-11788

In relation to Count 1 on this file, the respondent breached his home detention bail by being absent without approval.
Counts 2, 3 and 4 are charges of being unlawfully on premises, dishonestly taking property and damaging property. Police attended an unoccupied Housing SA house in Edwardstown, at approximately 10.30am on 24 August 2005. They observed the respondent exit the house, via the roof carrying a quantity of copper piping in his hand. He was arrested for unlawfully on premises and was searched. Located in his jacket pocket were two screwdrivers.
When questioned by police, the respondent made full and frank admissions to all offences. He stated that he gained entry to the house through the rear because it had no windows, and had then removed copper piping from the roof cavity. He stated that he exited by removing some roof tiles because he could not get the copper piping out through the rear of the house. The respondent agreed that he had no permission to be on the premises or permission to remove the piping. He further stated to police that he believed the piping to be valued at about $10 per metre and that he intended to sell it to buy food. The respondent stated that he didn’t think it mattered if he stole the piping because the house was subject to demolition and it would only become salvage.
The Magistrate was advised that the allegations were accepted by the respondent. Counsel indicated that this offending occurred after the respondent noticed a house which was in the process of being demolished. The respondent decided that he would enter the property to see whether he could locate any copper piping in the house, which he could then sell. It was submitted before the Magistrate that the respondent committed these offences as he had no money to live on.

AMC 05-14767

The respondent left his Home Detention premises at 6.49am on 27 September 2005, without permission and in breach of his bail conditions. When questioned by police, the respondent stated that he left in the morning to have a coffee with his mother. He stated that he was aware of his bail conditions and understood them.
Before the Magistrate, the respondent admitted leaving the house earlier then his stated leave pass, which commenced at 9.00am. It was submitted that he left the house early as he was due to receive his Centrelink payment on that date. His intention again was to purchase some food for himself, as there was nothing left in his house.

AMC 06-1459

At about 9.30am on Tuesday, 3 January 2006, police stopped the respondent while he was walking on Waverley Avenue, Edwardstown. The respondent advised police that he was on home detention bail but that he had been given a leave pass to attend the Castle Plaza Shopping Centre and Cash Converters, Clovelly Park, between the hours of 9.00am and 12.30pm, and that he had just come from Castle Plaza and was heading towards Cash Converters to pick up some goods he had in for pawn. The respondent provided police with the details of his home detention officer, Andrew Norton, and stated that police could contact Norton to confirm his current bail conditions.
Police attended Correctional Services, Edwardstown, and were advised by staff that the respondent was given a leave pass to attend Castle Plaza Shopping Centre only. Police attended Cash Converters, Clovelly Park, to find the defendant at the counter collecting his pawned goods. Police spoke to the respondent regarding his leave pass and the respondent admitted that he was not permitted to attend Cash Converters. Police later confirmed with Norton that the defendant’s leave pass did not permit him to attend Cash Converters.
The respondent accepted the police allegations and admitted attending at Cash Converters to collect items that he had pawned. Defence counsel advised the Magistrate that the respondent did not think that he was really doing anything wrong, as he did not go out of his way to get to Cash Converters.

AMC 06-12632

At about 12.15am on Tuesday, 8 August 2006, police were called to Dunorlan Avenue, Edwardstown, in relation to a person seen on the roof at that location. Upon arrival, police observed the respondent on the roof of a house owned by Housing SA.
Police checks revealed that the respondent was currently on bail. It was a condition of that bail agreement that the defendant not be absent from his place of residence between the hours of 8.00pm and 7.00am, and that he present himself at the door of the residence if required to do so by the police.
Upon inspection, police located at the rear of the premises copper piping of various lengths on the ground and within a wheelie bin. Copper piping located at the premises totalled approximately five kilograms in weight. Police also located removed roof tiles and various lengths of copper piping on the roof of the premises, which had been removed from within the roof cavity.
When questioned by police, the respondent admitted that he was on the roof of the premises with the intention of removing copper piping, that he was aware he was on bail and that his conditions, amongst other things, were for him to be at his home address between the hours of 8.00pm and 7.00am daily. He stated that on this occasion he was not aware of the time nor that it was so late, and was not aware that he was breaching his bail. He stated to police that he intended to sell the copper at “Denham’s Scrap Metal” for approximately $7 per kilogram and would use the money to buy food.
Before the Magistrate, the respondent admitted the charges. It was submitted that the respondent had attended his father’s house and had forgotten about monitoring the time to ensure he returned before his curfew.
On his journey home he noticed a house which looked ready for demolition. He submitted that he made the foolish decision to try and remove some copper piping from the house. This decision was made because his family was suffering from financial hardship at the time, caused by a number of outstanding bills requiring payment, which left his family with nothing to eat for the remainder of the week.

Crown Appeals Against Sentence

The principles governing Crown appeals have been discussed in a number of cases. In Police v Cadd,[1] a majority of the Court held that when a prosecutor appeals against a custodial sentence imposed by the Magistrates Court on the grounds that the sentence is inadequate, the Court should exercise the same restraint as is exercised when the Court of Criminal Appeal considers an application by the Director of Public Prosecutions for leave to appeal against sentence.
[1] Police v Cadd and Ors (1997) 69 SASR 150.
It is well established that a court will only entertain a prosecution appeal against sentence in “rare and exceptional circumstances”,[2] where it is necessary to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons;[3] to establish and maintain adequate standards of punishment for crime;[4] to correct the idiosyncratic views of individual judicial officers as to particular crimes or types of crimes;[5] to correct a sentence which was so disproportionate to the seriousness of the crime as to shock the public conscience;[6] and to ensure, so far as the subject matter permits, that there would be uniformity in sentencing.[7]
[2] Everett v The Queen (1994) 181 CLR 295, 299.
[3] Griffiths v R (1977) 137 CLR 293, 310 per Barwick CJ.
[4] R v Osenkowski (1982) 30 SASR 212, 212-13.
[5] Ibid.
[6] Ibid.
[7] Everett v The Queen (1994) 181 CLR 295, 306.
An error in the sentencing judge’s approach must be identified before a sentence may be increased. In Dinsdale v R, Kirby J stated that:[8]
As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.
[8] Dinsdale v R (2000) 202 CLR 321, 339-340 per Kirby J.
An appellate court may interfere to correct a sentence where it is so far below the appropriate range of sentence that it reflects an error of principle, or would “shock the public conscience” in the administration of justice were it allowed to stand.[9] Error may be latent and may be inferred from a sentence that is plainly unreasonable or unjust. However a sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result.[10]
[9] R v Nemer (2003) 87 SASR 168, 172 per Doyle CJ; R v Osenkowski (1982) 30 SASR 212, 213.
[10] Ibid.
Appellate courts are rightly reluctant to interfere with the discretion of sentencing judges to exercise mercy and leniency where the circumstances of the case require it.[11] In R v Osenkowski, King CJ commented:[12]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must be 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.
[11] R v Osenkowski (1982) 30 SASR 212, 212-13; See also Director of Public Prosecutions v Leach (2003) 139 A Crim R 64, 74 per Eames JA.
[12] R v Osenkowski (1982) 30 SASR 212, 213.

Was the sentence manifestly inadequate?

The sentence imposed by the Magistrate was a term of imprisonment of three years with a non-parole period of 21 months. The Magistrate gave limited remarks on penalty. After listing the offences set out above, without a description of the circumstances, he simply stated:
Using section 18A of the Sentencing Act, I will impose one penalty in relation to all of those counts. Mr Town you will be imprisoned for three years with a non parole period of 21 months, both to become effective forthwith. Credit has been given for your early pleas and I am aware of the time you spent in custody. The only outstanding question is whether I can properly suspend that sentence.
Thereafter, the Magistrate discussed matters relating to suspension of sentence. The Magistrate did not advert to the circumstances of any of the offending even in a limited way, nor did he indicate the amount of credit which he allowed for the respondent’s pleas of guilty in relation to four sets of the offences (AMC-05-12363, AMC-05-10943; AMC-05-10943 and AMC-06-12632). The Magistrate also did not indicate the amount of time the appellant had already served in custody, or give reasons for excuse of the breach of the bond. On the last matter, the affidavit of the prosecutor, Emmanuel Athans deposes that when the Magistrate was asked why he excused the breach of the bond, the Magistrate stated words to the effect “you can make that decision”.
In considering the grounds of appeal, it is relevant to note that the maximum penalties for the offences charged range between six months and 10 years imprisonment. They are as follows:
a)Non-Aggravated Serious Criminal Trespass (Non-Residential) pursuant to s 169(1) of the Criminal Law Consolidation Act - Imprisonment for 10 years.
b)Dishonestly Take Property pursuant to s 134(1) of the Criminal Law Consolidation Act - Imprisonment for 10 years.
c)Mark Graffiti pursuant to s 9(1) of the Graffiti Control Act - $2500 or imprisonment for 6 months.
d)Assist Offender pursuant to s 241(1)(b) of the Criminal Law Consolidation Act - Imprisonment for a term not exceeding 7 years
e)Threatening to Cause Harm pursuant to s 19(2) of the Criminal Law Consolidation Act - Imprisonment for a term not exceeding five years.
f)Damaging Property pursuant to s 85(3) of the Criminal Law Consolidation Act - Imprisonment for two years.
g)Failing to Comply with a Bail Agreement pursuant to s 17 of the Bail Act - $10,000 or imprisonment for two years.
h)Unlawfully on Premises pursuant to s 17(1) of the Summary Offences Act - where the unlawful purpose is the commission of an offence punishable by a maximum term of imprisonment of two years or more—imprisonment for two years.

Counsel for the appellant, Ms Ballard, submitted that as the Magistrate imposed one penalty with respect to all offences, pursuant to s 18A of the Act, the starting point of at least some of the offences must have been too low. Counsel for the respondent, Ms Willis, submitted to the contrary and drew attention to the fact that the usual credit for pleas of guilty ranges between 15–25 per cent and that the head sentence before reduction would have been between three years and five months and three years and nine months imprisonment. She further submitted that the Magistrate took into account the one month and three days that the respondent had spent in custody, and therefore the starting point for the sentence would have been between three years and six months and three years and 10 months. In response, counsel for the appellant submitted that the reduction for the pleas would not have been so generous, as the respondent was pleading guilty to the inevitable. It was submitted that in the absence of the Magistrate expressing any credit, a midway position for the starting point of the sentence after allowing for the pleas and time spent in prison, would be about three years eight months.
In relation to all files, counsel for the appellant submitted that the Magistrate failed to have adequate regard to the principles of general and personal deterrence, punishment of the offender and protection of the community. It was argued that the Magistrate placed too much emphasis on the personal circumstances of the respondent to the exclusion of these important matters. It was also submitted that the offences were aggravated by the fact that the respondent was either on bail or subject to a good behaviour bond at the time of their commission.
Counsel for the respondent conceded that the sentence imposed for all offences was on the light side, but argued that it was not manifestly inadequate. She argued that there was no evidence that the Magistrate had not considered all relevant matters, and that in fact a concern for the community interest could be gleaned from his Honour’s remarks.
Counsel also addressed me in relation to some of the particular offences charged, and the adequacy of the sentence imposed for these offences. In relation to the offence of non-aggravated serious criminal trespass at Multi Slide Industries in January 2004 (AMC-04-8480), Ms Ballard drew my attention to the cases of R v Delphin[13] and R v Smith,[14] as suggestive of an appropriate sentencing range.
[13]R v Delphin (2001) 79 SASR 429.
[14] R v Smith (2002) 224 LSJS 134.
In the case of R v Smith, the Court of Criminal Appeal held that a starting point of 22 months was appropriate for an offence of aggravated serious criminal trespass (non-residential) where, as in this case, the trespass was accompanied by the taking of property, and was committed by a young man with a troubled background.[15] However, the Court in that case expressly stated that the penalty imposed was particular to the offender and the offending in that case and was not to be treated as setting a sentencing standard for serious criminal trespass in commercial premises.[16] Further, the offence of trespass in R v Smith was aggravated by the fact that it was committed in company, while the offence in this case was non-aggravated.
[15] Ibid, 137.
[16] R v Smith (2002) 224 LSJS 134, 137.
While the appellant conceded that the offending on file AMC-04-8480 was not the most serious offending of its kind, Ms Ballard submitted that in light of the authorities, and the head sentence of three years imposed for all of the offences, the starting point for this and/or other offences must have been too low.
Further, with respect to the offences of threatening to cause harm, damaging property and dishonestly taking property on file AMC-05-10943, Ms Ballard submitted that the circumstances of this offending placed it in the higher category of seriousness for these types of offending. In particular, Ms Ballard pointed to the use of a weapon and the pre-meditation involved in returning to the victim’s home with a knife and partial disguise. It was submitted that the Magistrate failed to give any or adequate weight to the effect of these offences upon the victim, despite the tender of a victim impact statement. Accordingly, it was argued that the starting point for these offences was too low.
Counsel for the respondent submitted that the respondent’s history of sexual abuse and his sensitivity to comments about sexuality, took this case outside of the ordinary context. Ms Willis also submitted that this background explained why the respondent hadn’t shown remorse in relation to this offending.
I agree with Ms Ballard that this was very serious offending. I also agree that the fact that the respondent was under the influence of alcohol at the time of the offending does not excuse his actions. However, I do consider that the respondent’s intoxication and the alleged objectionable name-calling provide some explanation for why the respondent acted so aggressively.
The maximum penalty for the offence of threatening to cause harm is imprisonment for a period of up to five years. I agree with Ms Ballard that the circumstances of this offence place it in the higher category of seriousness for this type of offending. The respondent entered the victim’s home, threatened him with a knife and said he was going to kill him. He also caused damage to the victim’s front door, and stole the victim’s mobile phone. The maximum penalty for damaging property is two years imprisonment. The maximum penalty for dishonestly taking property without consent is ten years imprisonment.
Having regard to all of these matters, I consider that the Magistrate’s starting point in sentencing, at least in relation to the offence of threatening harm, must have been too low. Further, looking at the sentence as a whole, I consider that it is so far below the appropriate range of sentence that it reflects an error of principle. I consider that the Magistrate in sentencing had insufficient regard to the gravity of the offending, particularly to the effect of the offences in AMC-05-10943 upon the victim, and to the need to reflect issues of general deterrence. Accordingly, I consider that the Magistrate has erred in exercising his sentencing discretion, and that intervention is required by this Court.
I consider that applying s 18A of the Act to all the offending and having regard to the circumstances of the offences, general deterrence, specific deterrence and the personal circumstances of the offender, that the starting sentence should be five years imprisonment. I would give credit for one month and three days spent in custody and take into account his early pleas and admissions. Consequently, I consider the head sentence should be four years with a non-parole period of 26 months.

Suspension of sentence

I now turn to consider the question of suspension. Appellate courts are often particularly reluctant to interfere and impose a sentence of imprisonment where an offender was given a non-custodial or suspended sentence at first instance. As King CJ observed in R v Hicks: [17]
When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating.
[17] R v Hicks (1987) 45 SASR 270, 273. See also R v Hayes (1987) A Crim R 452, 469 per Kirby P.
Ms Ballard argued that the Magistrate erred in exercising his discretion to suspend the sentence of imprisonment. She submitted that the Magistrate failed to give adequate weight to the seriousness of the offending; to the fact that the respondent was not a first time offender; the respondent’s failure to respond to earlier leniency; the lack of remorse or contrition; the need for general and personal deterrence; and the effect of the offending on the victim. Ms Ballard further submitted that the appellant’s history of sexual abuse and its psychological effects alone were not sufficient reason to suspend the sentence.
Ms Willis argued that the Magistrate had appropriately focussed on the youth and rehabilitation of the respondent, in deciding to suspend the sentence. Ms Willis pointed to the fact that the respondent’s offending history commenced around the time he was sexually assaulted, and that this assault had been the catalyst for the respondent’s drug and alcohol abuse. Prior to this time, the respondent had a steady record of employment and, in Ms Willis’ words, was leading “a positive life”. For these reasons, Ms Willis argued that the respondent had good prospects for rehabilitation, and that the Magistrate was justified in suspending the sentence on this basis.
The suspension of a sentence of imprisonment is warranted for an offender for whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court’s clemency.[18] To this end, I consider that the respondent’s age, psychological issues, limited criminal history, and his prospects for employment and rehabilitation, are all relevant issues, to be balanced against the seriousness of the offending and the need for general and personal deterrence. In particular, I note the report of Mr Ireland, which refers to the respondent’s efforts to turn his life around. I also note the psychologist’s concerns about the effect of imposing any sentence of imprisonment, having regard to the respondent’s age and his very high anxiety associated with mixing with other males, as a consequence of prior sexual assaults on him.
[18] R v Kruger (1977) 17 SASR 214, 221.
Taking all of these matters into account, I agree that the Magistrate had good reason to suspend the sentence. While the respondent has not always taken full advantage of the leniency and the opportunities for assistance that have been afforded him, I consider that this is a proper case to suspend the sentence and give the respondent a chance to continue his rehabilitation. It is also to be remembered that a suspended sentence is a significant penalty,[19] and will hang heavily over the respondent’s head.
[19] Ware v Betts (1987) 134 LSJS 212.
The bond imposed by the Magistrate was for a period of three years commencing on 13 September 2006. I consider that credit should be given for the five months already served. Therefore the period of the bond should be for a period of two years and seven months.

Breach of bond

The second ground of appeal argued was that the Magistrate erred in excusing the breach of bond (AMC-06-965). Section 58(3) of the Act provides the power to excuse a breach of bond where the breach was “trivial” or there are “proper grounds” for excusing the breach. It was not argued before the Magistrate that the breach in this case was trivial.
The respondent was convicted of possessing a controlled substance for sale, namely cannabis, on 5 April 2004. The respondent was sentenced to two months imprisonment, suspended upon entry into a bond to be of good behaviour and to be under the supervision of a Probation Officer/Community Corrections Officer, for a period of two years. The sole ground upon which it is claimed that the respondent breached the good behaviour bond, was failure to report to Community Corrections since 10 November 2005.
Before the Magistrate, the respondent submitted that he did not realise that he was in breach of the bond, as he was having regular contact with his home detention officer from Correctional Services at the time. The Magistrate excused the breach, but gave no reasons for so doing.
The appellant argued before me that there were no proper grounds for excusing the breach, and that the Magistrate erred in failing to give reasons for doing so.
Following the decision of R v Buckman,[20] in determining whether proper grounds exist to excuse the breach, the Court is required to look only to the nature of the breach and the circumstances in which it was committed. The offender’s personal circumstances are not relevant to the exercise of this discretion.
[20] R v Buckman (1988) 47 SASR 303, applied in Lawrie v The Queen (1992) 59 SASR 400 and in R v Marston (1993) 60 SASR 320.
In R v Buckman, King CJ made the following observations with respect to the power to excuse:[21]
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.
[21] R v Buckman (1988) 47 SASR 303, 304.
In this case, the activation of the suspended sentence would require the respondent to serve two months imprisonment. This appears to me to be an unduly harsh and disproportionate consequence of the respondent’s failure to report to Community Corrections, particularly in circumstances where the respondent was in regular contact with Correctional Services at the relevant time.
The Magistrate certainly should have indicated his reasons for excusing the breach. Nonetheless, I consider that the Magistrate must have found, as I do, that proper grounds existed for excusing the breach. Accordingly the Magistrate has not erred in the exercise of his discretion.

Conclusion

In conclusion, I make the following orders.
1.     Appeal allowed.
2. The sentence imposed by the Magistrate be set aside and the following sentence pursuant to s 18A of the Act be imposed in lieu thereof: Four years imprisonment with a non-parole period of 26 months to commence from 13 September 2006.
3.     The head sentence and non-parole period to be suspended upon the respondent entering into a bond to be of good behaviour for two years and seven months.
4.     In all other respects the orders of the learned Magistrate are confirmed.