R v Bui - [2016] SASCFC 53

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v BUI
[2016] SASCFC 53
Reasons for Decision of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
13 May 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application by Director of Public Prosecutions for permission to appeal against sentence.
In April 2011, the respondent was sentenced to imprisonment for three years and six months, with a non-parole period of two years, for trafficking in a controlled drug. The sentence was suspended upon her entering into a bond to be of good behaviour for three years.
On 9 August 2013, the respondent’s partner murdered another man. Between 10 and 16 August 2013, the respondent on four occasions made false statements to the police giving her partner a false alibi on the night of the murder and falsely denying that he had any cuts on his hands.
Subsequently, the police arrested the respondent’s partner and he ultimately pleaded guilty to murder. The defendant was charged with assisting an offender, pleaded not guilty and the matter was listed for trial.
Shortly before commencement of trial, the intended trial Judge called the matter on for directions. The Judge indicated that, if the respondent pleaded guilty, it was likely that the sentence imposed would not exceed one reflecting the time she had already spent in custody on remand of approximately six months and on home detention bail and that there would be found proper grounds not to revoke the earlier suspended sentence. Subsequently, the respondent changed her plea to guilty. The Judge told counsel that submissions on sentence could be brief because he had already indicated the penalty and, if the Director applied for revocation of the suspended sentence, it would be refused.
Subsequently, counsel for the parties made brief submissions. The Judge convicted the respondent without further penalty in light of the time spent in custody and on home detention bail and found proper grounds not to revoke the suspension of the earlier sentence.
The Director appeals against the conviction without further penalty on the ground that the penalty was manifestly inadequate and against the decision not to revoke the suspension of the earlier sentence on the ground that there were no proper grounds to refrain from doing so.
Held by the Court:
1.       A sentence equivalent to imprisonment for six months was manifestly inadequate (at [46]).
2.       Observations concerning the inappropriateness of a sentencing judge formulating sentence before ascertaining all relevant facts and hearing submissions (at [48]-[52]).
3.       There were no proper grounds to refrain from revoking the suspension of the earlier sentence [at [70]).
4.       This is one of those rare cases in which permission to appeal should be granted in favour of the Director (at [72]-[74]).
5.       Appeal allowed. Orders of the Judge set aside. Further submissions from the parties invited (at [76]-[77]).
Criminal Law Consolidation Act 1935 (SA) s 241; Criminal Law (Sentencing) Act 1988 (SA) s 58; Controlled Substances Act 1984 (SA) s 32, referred to.
R v Buckman (1988) 47 SASR 303; House v The King (1936) 55 CLR 499; R v Marston (1993) 60 SASR 320; R v Osenkowski (1982) 30 SASR 212; R v Smith [2014] SASCFC 98, discussed.
R v Marien 2011] SASCFC 116; R v Nemer (2003) 87 SASR 168; R v Perdikoyannis [2011] SASCFC 82; R v Pham [2003] SASC 386, considered.

R v BUI
[2016] SASCFC 53
Court of Criminal Appeal: Kelly, Blue and Nicholson JJ
THE COURT:

This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
The respondent, Ngoc Linh Bui, was sentenced by a Judge of the District Court for one count of assisting an offender.[1] The Judge convicted the respondent without further penalty, taking into account that she had spent five months in custody and four months on home detention bail while on remand. The Judge found that, by the offending, the respondent failed to comply with the conditions of a bond earlier entered into as a condition of suspension of a sentence of imprisonment for three years and six months, but there were proper grounds to excuse the breach and refrained from revoking the suspension.
[1] Criminal Law Consolidation Act 1935 (SA) s 241(1)(b).
The Director seeks permission to appeal against the sentence of conviction without further penalty on the ground that it is manifestly inadequate and against the decision to refrain from revoking the suspension on the ground that the Judge erred by finding proper grounds to excuse the failure to comply with the conditions of the bond.
Circumstances of the offending
On 15 April 2011, the respondent was sentenced by a District Court Judge for one count of trafficking in a controlled drug.[2] The respondent was sentenced to imprisonment for three years and six months, with a non-parole period of two years. The sentence was suspended upon the respondent entering into a bond to be of good behaviour for three years. The respondent was found in possession of 1.37 grams of heroin and was sentenced on the basis that she was running a business of selling heroin at street level for profit.
[2] Controlled Substances Act1984 (SA) s 32(3).
In August 2013, the respondent was living with her partner, Phi Ngoc Phu Le, at Paralowie.
In the early hours of Friday 9 August 2013 between 4.30 and 6.00 am, armed with a filleting knife and machete, Le attended at the house of Amin Allen Asrawe at Paradise to await his return home. When Asrawe returned home, Le murdered him by stabbing him 24 times with the filleting knife and machete.
On the afternoon of 10 August 2013, two detectives spoke to the respondent at her son’s soccer game and then at home at Paralowie. She told them that she knew Asrawe, having borrowed $100,000 from him two years earlier but she had repaid the loan. She said that Le knew Asrawe quite well. She told the detectives that on the Thursday night through to the Friday morning she was at home all night and Le was with her. She told the detectives that she had a fight with Le on the way to her son’s soccer game, dropped him off at the Ingle Farm shopping centre and could not now locate or contact him.
On the morning of 11 August 2013, three detectives attended at the respondent’s home. The respondent told them that on the Thursday night through to the Friday morning she and Le were home all night. She said that she had had no contact with Le since dropping him off at the Ingle Farm shopping centre the previous day.
On the afternoon of 12 August 2013, two of the detectives who spoke to the respondent the previous day attended again at her home. The respondent reiterated to them that on the Thursday night through to the Friday morning she and Le were home all night and that she had had no contact with Le since dropping him off at the Ingle Farm shopping centre on 10 August.
On the morning of 16 August 2013, several detectives attended at the respondent’s home. One of the detectives wrote out a statement in his notebook in the name of the respondent. It included the following passage:
My partner Phi was home with me all night at our home address the night that Allen was murdered. 8 and 9 August 2013. I was with Phi during the day on 9th August and we went out for Sushi Train at Welland on Friday night. I did not see any injuries on his hands, face or body at this time. Specifically he does not have any cuts on his hands or arms.
The respondent signed the statement.
On the morning of 18 August 2013, detectives located Le at Virginia and arrested him for the murder of Asrawe.
Detectives subsequently obtained closed circuit television footage showing that on the morning of 9 August 2013 at 2.43am the respondent and Le attended at a service station at Paralowie and the respondent purchased fuel. They ascertained that on the night of 10 August 2013 the respondent and Le attended at a medical clinic at Elizabeth during which Le presented with injuries to his right hand and the respondent told the nurse that it had been caused by a filleting knife. They ascertained that in the early afternoon of 11 August 2013 at about 12.30 pm the respondent and Le attended a soccer game and later that day the respondent and Le had yum cha in Gouger Street, Adelaide. They ascertained that the respondent and Le had frequent telephone communications between 11 and 16 August 2013.
Personal circumstances
The respondent was born in 1980 in Vietnam. She arrived in Australia with her family in 1990, and completed year nine at high school. She has worked for many years in her brother’s market garden at Penfield. She lives with her mother and has three children, aged 15, 14 and 12, who live with them.
In November 2010, the respondent was sentenced in the District Court to imprisonment for 18 months, with a non-parole period of eight months, suspended on entering into a bond to be of good behaviour for 18 months on a charge of recklessly causing harm to another committed in April 2009.
In March 2012, the respondent was sentenced in the Magistrates Court to imprisonment for 10 days, suspended on entering into a bond to be of good behaviour for 12 months, on a charge of attempting to drive a motor vehicle while under the influence of alcohol committed in September 2011. That offence was committed in breach of the November 2010 bond, but no application was made for revocation of the suspension of the sentence of imprisonment.
The proceedings
On 27 February 2014, the respondent was arrested for the murder of Asrawe.
On 27 June 2014, Le pleaded guilty at committal in the Magistrates Court to the charge of murder and was committed for sentence to the Supreme Court.
On 31 July 2014, the charge against the respondent of murder was withdrawn and there was substituted a charge of assisting an offender. The respondent was committed for trial on the charge of assisting an offender. On 5 August 2014, the respondent was remanded on home detention bail.
On 15 September 2014, the respondent was arraigned in the District Court. She pleaded not guilty.
On 23 December 2014, the respondent was remanded on ordinary bail.
On 3 February 2015, Le was sentenced in this Court to imprisonment for life with a non-parole period of 20 years.
The hearings
On 29 September 2015, the intended trial Judge in the District Court called the respondent’s matter on for directions. The trial had been listed to commence on 6 October 2015. The Judge said:
I have had a read of the file. It seemed to me, Mr Vadasz, that this is a matter that should also resolve on the basis that what your client did, according to what I have read at least, clearly was to assist the principal offender to avoid being prosecuted for the charge of murder, which he ultimately pleaded guilty to at an early stage of the proceedings.
The Judge referred to time in custody on remand and was informed by the respondent’s counsel that it was six or seven months together with an unquantified period on home detention. The Judge said:
That is clearly getting around the mark for what would be expected if she were to plead guilty to the charge.… So I am just wondering whether you had spoken to your client about all of that. I have been fairly frank with you in terms of what I consider might be an appropriate sentence if she were to plead guilty to the charge. That is a long time to serve in custody and then a further period on home detention bail.
Counsel for the Director referred to the suspended sentence bond and the Judge said:
Given the amount of time that she’s served already on this matter, that might well amount to a reason for me to excuse the application for a suspended sentence… If someone serves such a lengthy period in custody and then on home detention bail … for what amounts to the sentence the court would ordinarily impose, then it would certainly be an important consideration in any application brought by the Director.
On being informed by the respondent’s counsel that the respondent had three dependent children, two of whom were still at school, the Judge said:
That is just another factor that one adds on to the application.
…concerning any application brought to revoke the suspended sentence. But I must take into account when considering an attitude towards that, the length of the time already served by the probationer, the sentence to be imposed by the court, the fact that that bond has now expired and your client’s other personal circumstances Mr Vadasz.…
I have flagged a fairly strong preliminary view...
The Judge invited the respondent’s counsel to obtain instructions on a guilty plea and counsel for the Director to obtain instructions on an appropriate sentence for the assist offender charge and on the question of revocation of the suspended sentence bond and adjourned the matter for directions to the morning of trial.
On 6 October 2015 at the directions hearing, counsel for the respondent enquired whether the Judge would be available the following morning to take a plea, saying that he still needed to get final formal instructions but anticipated that that was what would happen. He said that, if there were a guilty plea, he would like to obtain some more material. The Judge responded:
I have indicated previously what the appropriate sentence will be in light of the time served by your client and if there is an application to revoke the suspended sentence, I can indicate to you now as well, Mr Vadasz, that I think there would be proper grounds upon which to excuse the breach.
On 7 October 2015, the respondent pleaded guilty to the charge. The Judge asked the respondent’s counsel if he would like to make submissions, and he responded that the prosecutor had not yet filed an application to revoke the suspended sentence bond. The Judge said:
They know what I’m going to do with it.… As I have indicated the penalty already, you can be brief in your submissions.
Counsel for the Director said that he had informed the respondent’s counsel that he would be making a submission that a further immediate custodial sentence, in addition to time already served, was warranted. The Judge responded:
You can make that submission, but I’ve made my view clear and I’m not going to change that view now.
On 16 October 2015, the Director filed an application for enforcement of a breached bond. Counsel for the Director forwarded to the Court and to the respondent’s counsel a document entitled Prosecution Sentencing Facts. The document essentially set out the facts as summarised above, cross-referenced to the witness declarations that had been filed.
On 23 October 2015, the respondent admitted the breach of the conditions of the suspended sentence bond. Counsel for the Director handed up an antecedent report and the sentencing remarks of 15 April 2011 and 3 February 2015. Counsel for the Director referred to the Prosecution Sentencing Facts provided earlier in the week and provided details of time spent in custody and on home detention bail. Counsel for the Director submitted that a further immediate custodial term was warranted on the assist offender charge and the suspended sentence should be revoked in full.
Counsel for the respondent summarised her personal circumstances. He submitted that the respondent was not privy to the details of what happened between Le and Asrawe but accepted that she did give assistance in the manner particularised by the prosecution. He said that she was remorseful and regretful about her involvement. He asked that the breach of bond be excused in the circumstances that the breaching offence was a vastly different offence to the original offence, the lapse of time, and the fact that the respondent’s children needed her, all being at school and having no father figure.
The Judge proceeded to sentence the respondent immediately at the conclusion of the submissions.
Sentencing remarks
The Judge summarised the circumstances of the offending as follows:
The police first spoke to you on 10 August 2013. You told the police that Le was with you on the night of 8 August 2013 and through to the morning of 9 August 2013. You said that you did not observe any injuries to Le. The following day you provided a similar account to the police.
On 16 August 2013 you provided the police with a signed statement effectively giving Le an alibi for the murder. Subsequent police investigations revealed evidence contradicting your statement to the police and clearly implicating Le in the murder.
The Judge summarised the history of the charges. The Judge then said:
You were born in 1980 in Vietnam and arrived in Australia with your family when you were young. You are the mother of three children who are aged 16, 14 and 13 years. You have the care of your children and you live with them and your mother. You are presently working and have been for some time in your brother’s market gardening business in the packing shed. Your sister-in-law has provided you with a reference supporting you and confirming that you have employment in the business.
The offending that you were subject to the suspended sentence was very different to the assistance you provided Le by lying to the police concerning his whereabouts at the time of the murder, which is a factor I can take into consideration. More importantly, however, is the fact that you spent just over five months in prison upon the murder charge before that was withdrawn, and the prosecution thereafter proceeded with the offence of assisting an offender for which you were released on home detention bail in August 2014, which bail was varied in December 2014. You must be credited for the time that you served in prison before you were released on bail and then for the short time that you are subject to strict conditions of home detention.
I will proceed to sentence you for the offence of assisting an offender. Your lies to the police about Le being with you did not seriously impede the investigation and the police soon saw through your false accounts and indeed, ended up charging you with murder and assisting Le. Le did not contest the murder charge and pleaded guilty at his committal hearing in the Magistrates Court.
Allowing you a sentencing discount of 10 per cent or thereabouts for pleading guilty to the charge at your trial, I consider that an appropriate sentence to be one of six months imprisonment. As I said, I must allow you credit for time that you have served in prison and the subsequent period that you are subject to home detention bail. I consider that the six month sentence I have imposed has been accounted for through the combination of each of those factors. Accordingly, you have served the sentence I would have imposed upon you. In those circumstances, I convict you without imposing any further penalty for the offence of assisting an offender.
I now turn to the application to revoke the suspended sentence. I consider that there are proper grounds upon which to refrain from revoking the suspended sentence based on what I have already set out, and the disproportionate consequences that would result if you were ordered to now serve that sentence of three and a half years imprisonment for assisting Le. In the circumstances, I make no further order in relation to that suspended sentence bond.
Permission to appeal
On a sentencing appeal by the prosecution, unlike an appeal by the defendant, mere establishment of material error by the sentencing Judge is insufficient to justify the grant of permission to appeal.[3]
[3] R v Nemer [2003] SASC 375, (2003) 87 SASR 168 at [24] per Doyle CJ and approved in R v Marien [2011] SASCFC 116 at [11] per Gray, Sulan and Blue JJ.

In R v Osenkowski,[4] King CJ (with whom White J agreed) said:
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.[5]
[4] (1982) 30 SASR 212. See also R v Nemer [2003] SASC 375, (2003) 87 SASR 168 at [24] and approved in R v Marien [2011] SASCFC 116 at [11] per Gray, Sulan and Blue JJ.
[5] At 213. Approved in R v Perdikoyannis [2011] SASCFC 82 at [31] per Gray J (with whom Anderson and White JJ relevantly agreed); R v Marien [2011] SASCFC 116 at [11] per Gray, Sulan and Blue JJ.
Manifest inadequacy
The Director contends that the starting point of imprisonment for just over six months adopted by the Judge in respect of the assist offender offence is manifestly inadequate.
The maximum penalty by way of imprisonment for assisting an offender varies depending on the maximum penalty by way of imprisonment for the principal offence as shown in the following table.

Principal offence

Assist offender

Life

10 years

10 years or more

7 years

7 to 10 years

4 years

Less than 7 years

2 years or maximum penalty for principal offence (whichever is less)

The maximum penalty indicates a legislative intention that there be a relationship between the penalty for the ancillary offence and the penalty for the principal offence, albeit this will only be one factor in fashioning a penalty appropriate to both the circumstances of the offending and of the offender.
In the present case, the maximum penalty for the principal offence of murder is life imprisonment and it follows that the maximum penalty for this offence of assisting an offender is imprisonment for 10 years.
The seriousness of assisting offender offences varies largely as to the nature, extent, premeditation and effect of the assistance. For this reason, like manslaughter and unlike armed robbery, there is no indicative range of an appropriate penalty and reference to penalties imposed in other cases is of limited assistance.
As to the nature of the assistance, the respondent gave to police an alibi for Le which went to the heart of the only live issue in the police investigation into the murder of Asrawe being the identity of the assailant. The respondent’s assistance was premeditated in that she was not called on to give an account of Le’s movements on the night in question until 36 hours later. Her assistance was prolonged over the period from 10 to 16 August 2013. Her assistance involved not only answering questions by the police over the six-day period but formally signing a written statement on 16 August 2013 providing a false account to assist Le. Although not part of the charge itself, this assistance was provided in a context in which, contrary to the statements she was providing to the police at the time, the respondent had accompanied Le in his vehicle to Paralowie in the early hours of 9 August 2013 before the murder, was in regular phone and personal contact with him over the next seven days, was aware of the injury to his right hand and accompanied him to the Elizabeth medical clinic on the evening of 10 August 2013 for treatment of that injury.
All of these circumstances result in this being a serious instance of the offence of assisting an offender. The only mitigating factor in the circumstances of the offence was the fact that, contrary to the respondent’s intent and best endeavours, the police were not misled or were not misled for long, and arrested Le when they located him on 18 August 2013.
As to the personal circumstances of the respondent, while it was appropriate for the Judge to take into account her good work record and responsibility as a single mother in bringing up her children, the respondent was not entitled to the leniency that might otherwise have been afforded if she had been a first offender. Although they were for offences of a different nature, the respondent had previously been afforded leniency on three occasions when sentences of imprisonment had been suspended in November 2010, April 2011 and March 2012, the offence on the third occasion having been committed in breach of the bond entered into on the first and second occasions.
In all the circumstances, a starting point of imprisonment for just over six months was manifestly inadequate.
As explained in House v The King,[6] if there is error in the outcome of the exercise of a sentencing discretion, it may be inferred that there has been an implicit error in the manner of exercise of that discretion even if no explicit error is identifiable. In that case, Dixon, Evatt and McTiernan JJ said:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts the result of the exercise of the sentencing discretion is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[7]
[6] (1936) 55 CLR 499.
[7] At 505.
In the present case, it appears that the error in the outcome of the exercise of the sentencing discretion was the result of the formation and disclosure to the parties by the Judge of his view as to the appropriate penalty before the Judge ascertained all of the facts relevant to penalty or heard submissions and before the respondent pleaded guilty.
The Judge expressed what he characterised at the time as a “fairly strong preliminary view” at the directions hearing on 29 September 2015. That view related to an appropriate sentence not exceeding the credit to be given for time in custody and on home detention bail and to non-revocation of the suspended sentence. That view was expressed solely by reference to the witness declarations without counsel identifying an agreed or assumed factual basis for sentencing. It was expressed without the Judge knowing precisely how long the respondent had spent in custody or on home detention bail. It was expressed with the Judge knowing little of the personal circumstances of the respondent and without knowing whether she had any previous criminal convictions other than the conviction that had led to the imposition of the suspended sentence bond.
At the next directions hearings on 6 and 7 October 2015, the Judge did not receive any further material information concerning the circumstances of the offence or of the respondent. The Judge unequivocally stated on these occasions that “I have indicated previously what the appropriate sentence will be”, that “I have indicated the penalty already”, that as to an application by the Director to revoke the suspended sentence “I’ve made my view clear and I’m not going to change that view now” and that the parties could be brief in their submissions because they would not affect the outcome. In retrospect, it became apparent that what had been expressed on 29 September 2015 as a fairly strong preliminary view was in fact a firm view.
It is clear that the Judge had pre-judged the outcome of the exercise of his sentencing discretion by 29 September, or at the latest by 6 October 2015, before becoming aware of all of the relevant circumstances or hearing submissions. It is necessary to express in the strongest terms that this involves an abdication of the proper exercise of the sentencing discretion. It is critical that, whatever tentative or preliminary views might be formed or expressed, a sentencing Judge retains an open mind about the ultimate exercise of the discretion until becoming aware of all relevant circumstances and hearing submissions from the parties.
It should be noted that, before the respondent pleaded guilty on 7 October 2015, counsel for the Director made it clear to the respondent’s counsel that, if the respondent pleaded guilty, the Director would nevertheless submit that a further immediate custodial sentence, in addition to time already served, was warranted and that the Director reserved the right to apply for revocation of the suspended sentence. The respondent could have had no expectation that, if the Judge proceeded to sentence in the manner foreshadowed, the Director was constrained from applying for permission to appeal or that this Court would be constrained on hearing such an application.
It remains to consider whether, notwithstanding that the Director has established error by way of imposition of a manifestly inadequate sentence, permission to appeal ought to be granted. That question is considered after addressing the Director’s contention that the Judge also erred in finding proper grounds to excuse the breach and in refraining from revoking the suspension of the earlier sentence of imprisonment.
Proper grounds to excuse breach
Section 58(3)(a) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) provides:
Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a) may refrain from revoking the suspension.
The Judge did not clearly identify the “proper grounds” upon which he considered that the failure of the respondent to comply with the bond should be excused. In the last paragraph extracted at [35] above, the Judge referred to “what I have already set out” as amounting to proper grounds, but the ambit of the matters already set out in this respect is not clear.
It is clear that one, and it appears the primary, ground relied on by the Judge was the Judge’s assessment that the offending that gave rise to the suspended sentence was very different to the assisting offender offence and that a disproportionate consequence would result if the respondent were ordered now to serve the original sentence of three years and six months imprisonment for assisting Le. The Judge’s remarks at the directions hearing on 29 September 2015 earlier quoted suggest that his Honour was also influenced by the respondent’s personal circumstances including that she had the care of three children.
The Director contends that the Judge’s approach in this respect was erroneous. The respondent contends that the Judge’s approach was open in the circumstances.
The starting point is that section 58 of the Sentencing Act manifests a general intention that the suspension of a sentence of imprisonment affords an offender a last chance to avoid imprisonment by being of good behaviour for the period of the bond and ordinarily a substantial (non-trivial) breach of the conditions of the bond will lead to revocation of the suspension.
In R v Buckman,[8] King CJ said:
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 lightly interfere with the ordinary consequence of a breach of the recognisance.[9]
and in R v Marston,[10] King CJ added:
It is of great importance that the courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.[11]
[8] (1988) 47 SASR 303.
[9] At 304.
[10] (1993) 60 SASR 320.
[11] At 322.
Nevertheless, section 58(3)(a), in empowering the Court to excuse a breach on proper grounds, proceeds on the basis that the nature and circumstances of some breaches, while not trivial, might be such that it would be disproportionate if they were to have the consequence of revoking the suspension and requiring the original sentence to be served.
In R v Buckman,[12] King CJ said:
Parliament has recognised, however, that in some cases the rigorous application of the ordinary consequences of breach can be oppressive and even unjust. It has therefore provided to the courts the means of ameliorating those consequences in exceptional cases...
… subs (5) … 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.[13]
[12] (1988) 47 SASR 303.
[13] At 304.
In R v Smith,[14] Kourakis CJ (with whom Vanstone and Blue JJ agreed) said:
… it is as well to make some additional comments on the appellant’s submissions to the effect that the breach should have been excused because the crime of drive disqualified is not of the “same ilk” or at the same “level of seriousness” as a serious assault. There is no express or implied requirement in s 58(3) of the CLSA that the breaching offence be similar in kind to the offence for which the probationer was placed on a bond. The Judge correctly observed that a suspended sentence bond requires the probationer to be of good behaviour generally, and not merely to refrain from committing offences of a similar kind to that for which the suspended sentence was imposed.
Both the “trivial” and “proper grounds” limbs of s 58(3) of the CLSA invite attention to the nature, extent and circumstances of the breach of the condition to be of good behaviour. The word “proper” is a protean expression which takes its meaning from its context. In the context of s 58(3) of the CLSA, the word takes its meaning both from the other ground, the triviality of the breach, and the condition that the circumstances must be such as to “excuse” the breach. For that reason, the disproportion of which King CJ spoke in Buckman is between the extent of the departure from the obligation to be of good behaviour and the severity of the penalty resulting from revocation of the suspension. As King CJ observed, differences between the original offence and the breaching offence are not irrelevant but their relevance is limited. 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.
Even though different in kind to the offence of aggravated assault, the offences of drive disqualified were serious breaches of the obligation to be of good behaviour and were committed soon after entering into the bond which was calculated to give the appellant an opportunity to return to law abiding ways. There were no circumstances which called for the breach to be excused. Far from being disproportionate, the revocation was the condign consequence of the breach. It was a consequence demanded by the policy of the section articulated by King CJ in Marston.[15]
[14] [2014] SASCFC 98.
[15] At [24]-[26].
In the present case, the offence of assist an offender is, in the words of Kourakis CJ, “of a different ilk” to the offence of trafficking. However, when the assistance is in respect of a principal offence of murder, both are serious offences and both carry a maximum penalty of imprisonment for 10 years. The particular offence of assisting an offender committed by the respondent was a serious instance of its kind for the reasons given above. It was an offence involving deliberate conduct by the respondent engaged in on a premeditated basis over six days. There is no disproportionality between the seriousness of the breach of the bond condition and the consequence by way of revocation of the suspended sentence.
The Judge’s assessment that a disproportionate consequence would result if the respondent were ordered to serve the earlier imposed sentence of 3 ½ years imprisonment for assisting Le was erroneous.
As observed above, it is not clear to what extent the Judge took into account other factors in deciding to excuse the breach of the condition of the bond. Taking into account the sentencing submissions made by the respondent’s counsel and the observation by the Judge on 29 September 2015 extracted at [23] above, together with the fourth paragraph from the Judge’s sentencing remarks extracted at [35] above, it is likely that the Judge took into account the fact that the respondent had spent just over five months in custody on remand on the murder charge for which the assist offender charge was later substituted. If the Judge did so, this was erroneous.
This Court has held that “proper grounds” for excusal of the breach under section 58(3) are confined to the nature and circumstances of the breach and do not extend to extraneous matters. In R v Buckman,[16] King CJ said:
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.[17]
and Jacobs J said:
… proper grounds for excusing the breach look to the nature of the breach and the circumstances in which it was committed: special circumstances for reducing the sentence, if the breach is not excused, look to some significant change of circumstances since the prisoner was sentenced, which had they existed at that time might have justified a reduced sentence.[18]
[16] (1988) 47 SASR 303.
[17] At 304.
[18] At 307.
In any event, on the Judge’s own assessment that an appropriate starting point for sentencing the respondent for the assist offender offence was just over six months, the time spent on remand in custody of five months was counted as if it were service of such a sentence. Even if what amounts to “proper grounds” were unconstrained, the fact that the respondent spent that time in custody was incapable of amounting to proper ground to excuse the breach of the bond condition.
Taking into account the sentencing submissions made by the respondent’s counsel and the observation made by the Judge on 29 September 2015 extracted at [25] above together with the first paragraph from the Judge’s sentencing remarks extracted at [35] above, it is likely that the Judge took into account the fact that the respondent had three teenaged children who were dependent upon her. If the Judge did so, this was erroneous because this was unrelated to the circumstances of the breaching offence. That is not to say that such considerations and perhaps others may not be potentially relevant to any consideration of subsection 58(4) of the Sentencing Act. Subsection 58(4) provides:
58—Orders that court may make on breach of bond
(4) Where a court revokes the suspension of a sentence of imprisonment, the court—
(a)     may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b)     may direct 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;
(baa) may, in the case of a probationer whose sentence of imprisonment was partially suspended under section 38(2b) and even if the term of the sentence now to be served in custody is less than 1 year, fix or extend a non-parole period taking into account the time spent in custody by the probationer before being released on the bond;
(ba) may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;
(c)     may direct that—
(i) in the case of a sentence partially suspended under section 38(2a) or (2b)—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 any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.

In the event that the suspension of the sentence were to be revoked, the sentencing Court would need to consider whether special circumstances have since arisen such that, had they been before the original sentencing Judge, they would have justified a lower sentence.[19] Submissions on this topic were not received as a result of the Judge’s premature indication that the suspension would not be revoked.
[19] R v Pham [2003] SASC 386 at [95]-[101] per Perry J (with whom Besanko J agreed).
The Judge erred in finding that there were proper grounds on which the failure by the respondent to comply with the conditions of the bond should be excused and that the suspension of the sentence should not be revoked.
It remains to consider whether, even though the Director has established error by way of failure to revoke the suspension of the sentence, permission to appeal ought to be granted in all of the circumstances.
Permission to appeal
In relation to the sentence imposed by the Judge for assisting an offender, the sentence imposed is so low that it is necessary to grant permission to appeal to maintain adequate standards of punishment for the crime of assisting an offender where the principal offence carries a maximum penalty of life imprisonment. It is also necessary to grant permission to appeal to enable idiosyncratic views of an individual Judge to be corrected.
In relation to the excusal of the breach of bond condition and failure to revoke the suspension of the sentence of imprisonment, it is necessary to grant permission to appeal to maintain adequate standards of punishment when there is a serious breach of a condition of a bond entered into on suspension of a significant term of imprisonment, and to enable idiosyncratic views of an individual Judge to be corrected.
The respondent points to the fact that she has been at liberty since she was released on home detention bail in August 2014, has resumed her former employment and has responsibility for raising her three teenage children. This is a factor to be taken into account in deciding whether to grant permission to appeal. However, it is significant that the respondent was on bail from August 2014 to October 2015 because she maintained a plea of not guilty in circumstances in which she ultimately pleaded guilty on the eve of trial. If an appropriate sentence had been imposed in October 2015, the respondent would nevertheless have been at liberty for more than a year up to that point.
During the hearing of the appeal, the Court enquired of the respondent’s counsel whether, if the Court were to grant permission to appeal and allow the appeal, the respondent would seek to challenge her conviction on the ground that her guilty plea had been induced by the sentencing indication given by the Judge. The respondent’s counsel responded that she would prefer first to ascertain the Director’s attitude to such a challenge. The Court enquired of the Director’s counsel whether, if such a challenge were made, it would be opposed by the Director. The Director responded that it would not be opposed. The respondent made no further response to the Court’s question following the Director’s response. In any event, this is not a matter that is relevant to the issues on this appeal.
Disposition of the appeal
We grant permission to appeal. We allow the appeal and set aside the orders made by the Judge.
We will hear submissions on the fresh exercise by this Court of the sentencing discretion including whether there are special circumstances justifying a reduction in the term of the original sentence of imprisonment for three years and six months.

Principal offence	Assist offender
Life	10 years
10 years or more	7 years
7 to 10 years	4 years
Less than 7 years	2 years or maximum penalty for principal offence (whichever is less)