R v Cunningham (No 2)

The case of *R v Cunningham (No 2)* concerned an appeal against a sentencing decision made by the District Court. The appellant, Cunningham, sought to have the suspension of a previously imposed sentence of imprisonment revoked and to be resentenced. The appeal was heard by Kourakis CJ, Nicholson and Parker JJ.

The central legal issue before the Full Court was whether the suspension of Cunningham's sentence should be revoked, and if so, whether the court should exercise its discretion under section 58(4) of the relevant legislation to reduce the length of the suspended sentence. This discretion arises where a court revokes the suspension of a sentence and considers there to be special circumstances justifying a reduction. The court also considered the appellant's application to adduce fresh evidence on appeal, relating to the significant ongoing care needs of her disabled daughter.

The Court noted that the power to reduce the length of a suspended sentence under section 58(4)(a) only arises if the suspension is revoked. While the Chief Justice indicated that there were strong grounds to reduce the sentence if revocation were to occur, given the substantial changes in the appellant's personal circumstances since the original sentencing, the suspension was ultimately not revoked. The Court therefore did not need to exercise the discretion under section 58(4).

The Court made orders resentencing the appellant to a term of six months imprisonment for the District Court offences, backdated to commence on 5 August 2016. The respondent's application for enforcement of breaches of a bond was dismissed. Taking into account the time already spent in custody and on home detention bail, the appellant was deemed to have fully served the resentenced term and was discharged, with orders for home detention bail vacated.