R v Farrer - [2017] SASCFC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FARRER
[2017] SASCFC 27
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Nicholson)
10 April 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - CULPABLE OR DANGEROUS DRIVING CAUSING DEATH OR BODILY HARM - GENERALLY
Appeal against sentence.
On 21 October 2016, the appellant was sentenced for aggravated causing death by dangerous driving and leaving the scene of an accident after causing death. The appellant was sentenced to four years imprisonment on the first count and two years imprisonment on the second, one year of which was to be served concurrently with the four year term. The Judge set a non-parole period of three years, two months and 12 days.
At the time of sentence the appellant had a 15-month old child who was born some 18 months after the incident. Whether sentence is manifestly excessive - whether the Judge gave appropriate and adequate weight to the effect of imprisonment on the applicant’s young child – whether special reasons existed to suspend the sentence or make a home detention order – whether the Judge erred in accumulating any part of the two head sentences.
Held per Kelly J (Vanstone & Nicholson JJ agreeing) dismissing the appeal:
1.       The sentence imposed is not manifestly excessive in all of the circumstances and permission to appeal on that ground is refused.
2.       The Judge gave appropriate weight to all of the appellant’s circumstances including the effect of imprisonment on the appellant’s child.
3.       The Judge demonstrated no error in refusing to suspend the sentence.
4. The Judge gave due consideration to the issue of home detention in refusing to make an order under s 33BB of the Criminal Law (Sentencing) Act 1988 (SA).
Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(n), s 18A, s 33BB, s 38, s 58(4)(a); Criminal Law Consolidation Act 1935 (SA) s 19AB; Crimes Act 1914 (Cth) s 16A, referred to.
R v Wooldridge (2015) 123 SASR 422; R v Payne (2004) 89 SASR 49; R v Buckskin [2010] SASC 138; Police v Holer [2016] SASC 187; R v Dell; R v Dell [2016] SASCFC 156, applied.
R v Constant (2016) 126 SASR 1, distinguished.
R v Farrer [2016] SADC 49; R v Farrer [2017] SASCFC 3, discussed.

R v FARRER
[2017] SASCFC 27
Court of Criminal Appeal: Vanstone, Kelly and Nicholson JJ

VANSTONE J. I agree with the orders proposed by Kelly J and with the reasons she has written.
KELLY J.
Samantha Magdaleine Farrer appeals against a sentence imposed in the District Court for aggravated causing death by dangerous driving and leaving the scene of an accident after causing death.
The sentence imposed was four years imprisonment on the first count and two years imprisonment on the second, one year of which was to be served concurrently, and a non parole period of three years, two months and 12 days. The Judge declined to suspend the sentence or to order that the sentence be served on home detention.
Upon the appeal it is put that the sentence was manifestly excessive, that the Judge erred in failing to suspend it or to make a home detention order, and that there was error in the Judge accumulating any part of the two head sentences.
Background
This Court, as presently constituted, recently delivered judgment dismissing the appellant’s appeal against conviction. The following account of the facts is taken from the judgment of Kelly J in that appeal: R v Farrer [2017] SASCFC 3.
The offences occurred during the mid-morning of 27 December 2013 on the Inman Valley Road between Yankalilla and Victor Harbor. At that time the deceased was riding her bicycle towards Victor Harbor. There was a flashing red light under the back of her bicycle seat. The appellant was driving a Holden sedan in the same direction but was behind the deceased. On a straight level section of the road the left side front bumper bar of the Holden struck the rear wheel of the deceased’s bicycle causing her to be thrown back over the left side of the car’s bonnet, hitting and shattering the left side of the windscreen, with her helmet hitting the roof of the car. There was no dispute about the police investigator’s estimate that the appellant was travelling in the vicinity of 50 to 60 kilometres per hour at the time of impact. There was no evidence of braking. A lone cyclist following behind the deceased said that shortly before the collision the Holden vehicle was travelling at about 20 to 30 kilometres per hour, but that then it accelerated and drove away.
Although the appellant and her passenger had been heading for Victor Harbor, planning to see her father, after the collision she determined to drive instead to Adelaide. She was stopped by police on the Southern Expressway at about half past eleven that morning, not far from Adelaide. When questioned about the obvious damage to the left side of the Holden vehicle, the appellant told the officer that she had hit a post. A blood sample was taken from her at 12.57 pm that day. The sample revealed the presence of 0.43 milligrams of methylamphetamine per litre of blood and small quantities of other drugs including amphetamine, pseudoephedrine and ephedrine. Amphetamine, pseudoephedrine and ephedrine are all constituents of prescription medications and used in the manufacture of methylamphetamine.
Evidence of the movements of the appellant prior to the collision came from her passenger, Mr Repanich. He said that on the night before the collision he and the appellant had driven together from his home at Collinswood to Cape Jervis. There, Mr Repanich went fishing. The next morning they travelled together toward Victor Harbor, the appellant driving. The location of the collision was about 60 kilometres from Cape Jervis. In the course of the reasons of the Judge for finding the appellant guilty of both offences, His Honour found that the appellant had been awake from the evening of the night before until after the collision. The Judge made no finding as to whether the collision was due to the appellant having fallen asleep at the wheel, although the appellant told police she was trying to stay awake. The Judge also found that most, if not all, of the methylamphetamine detected in her blood had been consumed by the appellant before the collision. The Judge found that it was objectively dangerous for the appellant to drive knowing that amphetamines initially caused sleepiness and then, a great need for sleep.[1] The Judge also found that, contrary to her assertion to police, the appellant had left the scene of the accident “knowing full well that she had collided with someone and having quite quickly decided to return to Adelaide…”[2]
[1] R v Farrer [2016] SADC 49 at [148].
[2] R v Farrer [2016] SADC 49 at [110].
In sentencing the appellant the Judge noted that she was 40 years of age and the mother of a 15 month old boy born some 18 months after the collision. The Judge referred to some minor prior court appearances relating to drugs. The Judge said he regarded the manner of driving as serious. He said that while there was no evidence of erratic driving before the collision and no evidence of excess speed at the time of the collision, the offence was aggravated by the consumption of amphetamines.
The Judge explained that he was ordering only a limited degree of concurrency as between the two sentences because the second offence was a separate incursion into crime and involved a deliberate decision to offend in that manner. The Judge dealt with the question of suspension, noting that the appellant had no relevant prior convictions and a good work record. He said that, more important than those factors was the effect of imprisonment on the appellant’s son. Notwithstanding that matter he did not find good reason to suspend.
The Judge also dealt with the possibility of home detention. He observed that the seriousness of the offences and the need for general and personal deterrence outweighed the factors favouring suspension under Division 3A and an order serving the sentence on home detention. The sentence was backdated to 18 October 2016 to take into account three days spent in custody before release on bail, and the appellant’s driver’s licence was disqualified for 10 years to commence upon release from prison.
A Judge of this Court referred the first ground of appeal – the complaint that the sentence is manifestly excessive – to this Court and granted permission to appeal on the other grounds.
Complaint of manifest excess
The first ground of appeal is a complaint that the sentence imposed is manifestly excessive.
The appellant argues that, although the offence was aggravated by the presence of methylamphetamine in the appellant’s blood, there were no other aggravating features of the kind often found in cases of causing death by dangerous driving, such as excessive speed, a police chase or a protracted period of bad driving. The appellant referred to the absence of any evidence which pointed to a lack of control, excessive speed or prolonged bad driving from the time the appellant and Mr Repanich left Cape Jervis to the point of the collision, other than the evident momentary distraction when the appellant failed to see the deceased on the roadway ahead. In these circumstances the appellant submitted that the objective circumstances surrounding the appellant’s driving, together with the fact that she had never before been convicted of any other offence, called for a more lenient approach. The appellant submitted that the culpability of the appellant’s conduct in driving was not to be overemphasised because she had methylamphetamine in her blood.
The Court was referred to a number of decisions in this State over the previous 10 to 15 years on the basis of which the appellant submits a lower starting point than four years for the head sentence for causing death by dangerous driving was called for.
One of these is R v Wooldridge,[3] which counsel for the appellant sought to compare with the facts here. Mr Wooldridge pleaded guilty to four counts of causing death by dangerous driving and one count of causing serious harm by dangerous driving. Those offences are basic offences attracting a maximum term of imprisonment of 15 years. The offending occurred in circumstances where the appellant was approaching a T-junction at a highway and was distracted by looking at a GPS device in his vehicle. He entered the highway without giving way or appreciably reducing his speed, thus causing the collision which killed four people and injured another.
[3] (2015) 123 SASR 422.
The sentencing Judge adopted a starting point of seven years. After reduction for the plea of guilty the Judge decided to impose one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) and imposed a head sentence of four years and two months.
The Court in Wooldridge discussed the proper approach to sentencing in cases of causing death by dangerous driving which caused multiple deaths and/or harm by the one act of driving. The Court acknowledged the difficulties in assessing the overall culpability of the offender’s conduct in these circumstances. The Court observed that although the offender’s driving had caused the catastrophic consequences of causing four deaths and seriously injuring one person, the moral turpitude of the offender’s conduct in the driving was no different than if he had caused only one death.
In Wooldridge, as in many other cases to which the Court was referred, it has been noted that comparisons with other cases can only be of very limited assistance.
Another decision to which the Court was referred is R v Payne.[4] In Payne this Court provided general guidance and advice in respect of the proper approach to sentencing in cases of cause death by dangerous driving. It is significant, however, that in so doing the Court was careful not to identify any particular starting point as a benchmark or “standard” for sentencing for the basic offence.
[4] (2004) 89 SASR 49.
The remarks of Doyle CJ in Payne, even though made in the context of a sentencing regime which provided significantly lower maximum penalties than now apply, nevertheless remain helpful. Doyle CJ said:[5]
[70]As the practice of sentencing judges shows, a sentence of imprisonment of the order of three years, not suspended, will often be appropriate. It will be appropriate despite the reluctance of a court to imprison a person who has no record of offending, and whose prospects of rehabilitation are relatively good. This reflects the seriousness of the offence, and the fact that it continues to occur.
[71]There will be cases warranting a heavier penalty, and sometimes a much heavier penalty. That will usually be the result of significant circumstances of aggravation, and particularly circumstances linked to the bad driving which is at the heart of this offence.
[72]There will be cases warranting a lesser sentence, or an order suspending a sentence of imprisonment. A lesser sentence will usually reflect a relatively low level of culpability, and often a finding that the death was caused by momentary inattention or carelessness. A suspended sentence will usually reflect significant personal mitigating circumstances.
[73]Our reference to a sentence of three years imprisonment is not an endorsement of that sentence as the right sentence, or as a benchmark. We refer to it because sentencing practice shows that it has often been considered an appropriate sentence. We have not been satisfied that the sentencing patterns of the past reflect an inadequate assessment of the seriousness of the offence or inconsistency of approach.
[74]We simply remind sentencing judges of the need to bear in mind the statutory maximum, and remind them that from time to time there will be cases calling for substantially heavier punishment than a sentence of three years imprisonment.
[5] R v Payne (2004) 89 SASR 49 at [70]-[74].
The facts in Wooldridge and in Payne, which are not comparable to the facts here, underline why comparisons between cases can only ever be of limited assistance.
In the present case, the Judge was required to sentence the appellant for one offence of causing death by dangerous driving. That was not a basic offence but an aggravated offence, which carries the maximum penalty of life imprisonment. The Judge was also required to sentence the appellant for a second and different offence of leaving the scene after an accident. That offence attracts a maximum penalty of 15 years for a first offence.
The sentencing Judge correctly acknowledged that the circumstances surrounding that offence amounted to a separate incursion into crime. He said:
Although the two offences were committed almost contemporaneously, the driving on after the accident is, in a sense, a separate incursion into crime. I do it also to reflect what I see as slightly different requirements for personal and general deterrence as between the two counts. The courts have acknowledged that despite the criminality of people who cause death by dangerous driving, almost none ever intends to do so. That cannot be said for the offence of leaving the scene of an accident.
The offence of leaving the scene of an accident was enacted following upon recommendations of the Kapunda Royal Commission. The second reading speech introducing the amendment which led to s 19AB of the Criminal Law Consolidation Act 1935 (SA) contained the following paragraph:[6]
The Bill deals with a matter of great concern to the Government and the public. The recent outcry about penalties imposed in prominent road accident cases, and one in particular, has highlighted the need for changes to the laws dealing with causing death by dangerous driving and leaving the scene of an accident.
The Government finds it abhorrent that a person could kill or seriously injure another in an accident and then drive off without stopping to provide assistance and pay so little by way of a penalty. The law must reflect the serious nature of such action and ensure penalties are sufficient. We must deter people who think about shirking their responsibilities.
[6] South Australia, Parliamentary Debates, Legislative Council, 24 November 2005, 3213 (The Honourable P Holloway).
It is plain that the appellant’s conduct in failing to stop, and simply driving on after she had killed the deceased, in circumstances where the Judge found she was well aware she had struck a human being, was a seriously aggravating feature of her conduct on that day.
In the end, the Judge chose to adopt a merciful approach and ordered one year of the two years imprisonment imposed for the second offence to be served concurrently with the sentence of four years imprisonment for the offence of causing death by dangerous driving. In adopting that approach to sentence the appellant received some advantage in that the mandatory minimum non-parole period in respect of the first offence was calculated separately and resulted in a distinct benefit to the appellant.
For these reasons I do not consider it is even arguable that the head sentence of four years for causing death by dangerous driving and the sentence for leaving the scene of an accident of two years is manifestly excessive and I would refuse permission to appeal in respect of the first ground.
I turn now to deal with the second and third grounds of appeal which can be conveniently discussed together.
Failure to order home detention
The gravamen of the complaint made in respect of both these grounds is that the Judge failed to accord proper weight to s 10(1)(n) of the Sentencing Act. That provision reflects the common law position that a court is required to consider the probable effect any sentence of imprisonment would have on the dependants of an offender.
In advancing the argument in support of these grounds the appellant’s counsel relied primarily on a recent decision of this Court in R v Constant.[7] The appellant’s counsel submitted that the Court should apply what she identified as the “rationale and principle” in Constant. Ms Powell QC submitted that in applying the principle in Constant this Court should arrive at the result that the appellant should not be required to serve an immediate term of imprisonment, or at the very least, that any immediate term of imprisonment should be served on home detention. It was submitted that the circumstances of this case are in all relevant respects on all fours with the facts in Constant.
[7] (2016) 126 SASR 1.
In Constant the appellant was to be sentenced for six counts of attempting to import a marketable quantity of a border controlled precursor drug. In committing those offences the appellant breached a suspended sentence bond which had been imposed by a District Court Judge in 2012. At the time of the appeal to the Court of Criminal Appeal the appellant had a daughter aged 22 months and was six months pregnant with her second child.
Much of the Court’s discussion in Constant was in the context of determining whether in all of the circumstances the appellant had established “special circumstances” within the meaning of s 58(4)(a) of the Sentencing Act to justify the reduction of the revoked sentence of imprisonment imposed in 2012. In the end, the Court held that there were special circumstances and reduced the sentence imposed by the District Court Judge from 15 months with a non-parole period of six months to a term of 13 months, with a new non-parole period of four months. In relation to the Commonwealth offences for which she was to be sentenced, the Court held that the head sentence imposed by the District Court Judge of two years and seven months was manifestly excessive, but in the end adjourned the matter for further submissions on an appropriate sentence.

In reaching its decision the Court appears to have relied on a combination of circumstances which included the steps the appellant had already taken to rehabilitate and the fact that she had ceased using drugs, which was closely tied up with the fact that she had become a mother of a child for whom she was caring in a responsible manner. The Court had the benefit of a report from a psychologist who expressed the perhaps not surprising conclusion that the 22 month old child of the appellant would suffer harm if separated from her mother.
The added complication in Constant’s case was the fact that the appellant was due to give birth to a second child which would, if the sentence imposed in respect of the Commonwealth offences were to stand, happen whilst still serving that sentence.
In the end the Court adjourned the sentencing of the appellant for a further report from a psychologist as to the effect of separation from the mother of the newborn child.
I do not consider that the circumstances in Constant can be meaningfully compared with the circumstances of the present appellant. There are a number of significant differences. Perhaps the most important is the fact that, unlike in Constant, the appellant stood to be sentenced for two very serious offences, the first, an offence of causing death by dangerous driving, which was aggravated by the presence of methylamphetamine in her blood; and the second, an equally serious offence of leaving the scene of an accident after causing death. Another important factual distinction between the two cases is that, unlike the offender in Constant, the appellant, after the date on which she committed these offences, continued to lead a chaotic and dysfunctional life and continued to take drugs. The appellant’s choice to allow herself to become pregnant at a time when she was already on bail awaiting trial on charges in respect of which she was ultimately convicted is perhaps the most irresponsible aspect of her conduct in the period after committing these offences.
It was accepted before the sentencing Judge in the court below that the appellant’s 15 month old child would be cared for by the appellant’s mother in the event that she was to serve an immediate term of imprisonment.
For these reasons I do not consider that the case of Constant is of any assistance to the appellant here. In any event, in its extensive discussion about the importance of the mother/child relationship and about parenting and fatherhood in general, I do not understand the Court to have enunciated any new or different principle to those already well-established and well-understood principles in sentencing developed in a long line of cases, some of which were referred to by the Court in Constant. The decision in Constant is an example of the application of those well understood principles to a particularly difficult set of factual circumstances.
In an earlier decision, R v Buckskin,[8] this Court enunciated in clear and comprehendible terms, the proper approach to the application of the principles in s 10(1)(n) of the Sentencing Act and, by implication, s 16A of the Crimes Act 1914 (Cth), both of which reflect the position at common law as follows. In Buckskin Nyland and Gray JJ said:[9]
[39]It is well established that a Court may have regard to the probable effect of a sentence on the dependants of a defendant. However, it is also well accepted that hardship to a third party is an inevitable consequence that follows the imposition of most sentences of imprisonment. As a consequence, the consideration of the effect of a custodial sentence on dependants will only have a significant impact on penalty if the effect it has in the case under consideration is out of the ordinary or “exceptional”.
…
[45]It is important to note that in the process of evaluating the hardship occasioned to a defendant’s dependants as a consequence of the sentence imposed, the seriousness of the offending must also be evaluated. In this respect the following remarks of the New South Wales Court of Criminal Appeal in Hinton are apposite:
…a finding that the effect on a third party of the imprisonment of an offender is so exceptional that it can be taken into account to reduce the otherwise appropriate sentence must depend upon an evaluation of the objective seriousness of the offence for which sentence is being passed. The more serious the offence, the less likely it is that the effect of imprisonment on a third person will be sufficiently exceptional so that regard might be taken of it.
[footnotes omitted]
[8] [2010] SASC 138.
[9] R v Buckskin [2010] SASC 138 at [39]-[45].
In the same case Kourakis J (as he then was) said:[10]
[108]It is often observed that sentences of imprisonment necessarily impose hardship upon the dependants of a convicted person.   In R v Wirth, Bray CJ thought that it would be patently unjust if two people accused of the same crime in the same circumstances with no other differentiating factor were to receive different sentences because of the effect of the sentence on the family of one. Bray CJ accepted that it may be that in “extreme cases” the court could take into account the effect of the sentence, but he found it difficult to envisage any circumstance where it would be logical to do so. Wells J thought that “hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so”.
[109]The exception articulated by Wells J has been recognised in many cases since.   In my respectful opinion, even though the exception is not strictly logical by reference to matters of sentencing principle, it is justifiable on the grounds of public policy. In my view, where a claim is made to mitigate a sentence on the grounds that it will adversely affect an offender’s family, the court must necessarily weigh the public interest in imposing a sentence which sufficiently serves the purposes of punishment and deterrence against the public interest in the welfare of the children and dependents of the offender.   The offender’s failure to discharge his or her duty to them does not extinguish the public interest in their welfare. The welfare of children is a matter of public interest of the highest importance.
[110]With respect, I do not find the threshold test of “exceptional circumstances” useful because it focuses on circumstances which are peculiar instead of the substance of the concern about the childrens’ welfare and its relationship to the other sentencing considerations.   I would prefer to take the approach that the welfare of the children of an offender who faces imprisonment is always a relevant consideration but that in the majority of cases it will have no material effect on the sentence imposed because of the public interest in the imposition of condign punishment. However, the effect of imprisonment of an offender on his or her children or other dependents must be considered in the circumstances of each case and an appropriate balance struck between their welfare and the need to protect the community through the enforcement of the criminal law. The approach I prefer probably differs little in the results it yields, but in my respectful opinion it better explains that result and, in part at least, answers the illogicality which concerned Bray CJ in Wirth.
[footnotes omitted]
[10] R v Buckskin [2010] SASC 138 at [108]-[110].
Applying these principles to the circumstances here, the Judge was required to sentence the appellant in the context of all the relevant circumstances, which included the very significant fact that the appellant was to be sentenced for, not one, but two very serious offences arising out of her conduct on 27 December 2013. The second offence committed by the appellant on that day was a serious aggravating feature of her driving conduct. That alone is an important distinction between the circumstances of this appellant and the offender in Constant.
It is plain from the Judge’s sentencing remarks that he well understood the material submitted to the court during sentencing submissions, in particular the requirement that he take into account the effect of an immediate custodial sentence upon the child.
It is obvious also that the Judge was referred to the decision in Constant and that he well understood the rationale of that decision. In fact, he explicitly referred to it in the course of his sentencing remarks. It is also apparent that the Judge carefully considered the report from the psychologist who assessed the appellant on two occasions, the first occasion when her 15 month old child was present and the second when the appellant attended alone. The psychologist discussed the likely effect of separation upon the child from his mother and discussed what has been described as “attachment theory”. By that expression it appears the psychologist is referring to the likelihood that a child of very tender years separated from his primary caregiver is likely to suffer psychological and emotional damage later in life. Given that a pre-sentence report also before the sentencing Judge echoed that same opinion, it is obvious that the issue was at the centre of submissions made before the Judge.
It is significant that in the course of submissions on that topic the Judge was told that the appellant’s mother would assume control and custody of the child if the appellant was required to serve an immediate term of imprisonment and that during any term of imprisonment she would care for him.
I do not consider that the appellant has demonstrated that the Judge made any error on the facts or on the law in his approach to this issue in sentencing the appellant. In fact, he very carefully considered the matter and expressly stated as follows:
I turn to the topic of the effect of sentence on you having now become the mother of a child who is 15 months old. In South Australia offenders are not able to look after their children in prison. Mr Broomhall concluded that you have formed a stable home environment for your son and that you have established a secure attachment to him. He concluded that separation from you would inevitably disrupt and damage the secure attachment and lead to negative consequences for the child. The negative consequences include psychological and psychosocial difficulties. You told Mr Broomhall that in the event of your incarceration your mother would be looking after your son with the assistance of a friend called Tanya. However, you told Mr Broomhall that you had not arranged for your son to stay with your mother overnight and your mother had not set up a room for him in her house. Although you say that you and your mother are not close, it is not clear why your mother has not had overnight contact or why arrangements for a bedroom have not been made. No details are given in any of the reports about the assistance that your friend Tanya can give.
I accept Mr Broomhall's observations about the attachment between you and your son. I am unable to know anything about the attachment between your son and either his grandmother or your friend Tanya. However, I am willing to accept Mr Broomhall's opinion that incarceration will have the potential to cause psychological difficulties for your son. The effect of imprisonment of a parent on dependants, particularly children, is an important consideration which has to be balanced against other sentencing criteria.
As this Court has pointed out more than once, in exercising the discretion whether to make a home detention order all of the usual considerations relevant to the imposition of the sentence and possible suspension must be taken into account. Obviously a home detention order may be made in cases where the Court will refuse to suspend a sentence of imprisonment. However, it remains the position that in many cases the combination of factors militating against suspension will not only lead to rejection of whole of partial suspension under s 38 of the Sentencing Act, but will also lead on balance, to rejection of a submission that a home detention order should be made.[11]
[11] Police v Holer [2016] SASC 187 at [44] per Peek J.
In R v Dell; R v Dell[12] Doyle J (with whom Parker J and I agreed) made a similar observation:[13]
[57]I have mentioned that in exercising the discretion to make a home detention order, the full range of ordinary sentencing considerations will be relevant. Whether this so because it is inherent in the discretion conferred by the concluding words in s 33BB(1), or by reason of the requirement in s 33BB(4)(c) that the court take into account any other matter it considers relevant, the effect is the same. Much like the discretion to suspend a sentence of imprisonment under Part 5 of the Sentencing Act, the requirement to take into account the full range of sentencing considerations will in some cases give the court the ability to attach greater weight to the considerations personal to the defendant than is appropriate at the stage of determining the head sentence. On the other hand, and again like with the discretion to suspend in Part 5 of the Act, the requirement that the full range of sentencing considerations be taken into account means that the Court cannot overlook the need to ensure that the sentence ultimately imposed has adequate regard to not only the rehabilitative objective of sentencing, but also the objectives of punishment, denunciation and general deterrence. These remain important objectives at all stages of the sentencing process. Just as the nature and seriousness of certain types of offending, and consequential weight to be afforded to the need for punishment and general deterrence, can go close to foreclosing the discretion to suspend under Part 5 of the Sentencing Act, so too similar considerations may operate in this way in the context of the discretion to make a home detention order under s 33BB(1).
[58]In this respect, it is important to bear in mind that while serving a term of imprisonment on home detention represents a significant entrenchment upon a defendant’s ordinary liberty and freedom of movement, and is a more onerous form of punishment than a suspended sentence of imprisonment, the reality is that it is a significantly less onerous form of punishment than a requirement that the defendant serve an immediate term of imprisonment within a prison. The New South Wales authorities in relation to the similar regime for home detention orders that exists in that jurisdiction make this plain.
[59]The significance of the less onerous nature of a home detention order is that courts will need to be astute to ensure that the making of such an order – even if it will assist in the rehabilitation of the defendant and provide sufficient personal deterrence – does not inappropriately undermine achievement of the objectives of punishment and general deterrence. The ultimate sentence imposed must always be appropriate having regard to the criminality of the conduct involved, and the Court’s concern to achieve a level of punishment and general deterrence. The greater the weight to be attached to these objectives in an individual case, the less likely it will be appropriate that there be an order for home detention.
[footnote omitted]
[12] [2016] SASCFC 156.
[13] R v Dell; R v Dell [2016] SASCFC 156 at [57]-[59].
Here, the Judge gave very careful consideration to the issue. He weighed up all of the appellant’s circumstances, giving particular attention to the effect of likely separation between the mother and child during any period of incarceration. In the end he was not persuaded that this is an appropriate case in which to either suspend wholly or partially, or to exercise the powers under s 33BB of the Sentencing Act. In doing so, it has not been demonstrated that he made any error in his approach.
The final head sentence was moderate and the non-parole period was merciful.
Conclusion
For these reasons I would:
1. Refuse permission to appeal on ground 1; and
2. Dismiss the appeal.
NICHOLSON J. I agree that the appeal should be dismissed for the reasons given by Kelly J. There is nothing I can usefully add.