R v Hill - [2005] SASC 380

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v HILL
Judgment of The Court of Criminal Appeal
(The Honourable Justice Besanko, The Honourable Justice Vanstone and The Honourable Justice Layton)
30 September 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence - producing eight cannabis plants and possessing cannabis for sale - sentence of imprisonment for 2 years with non-parole period of 1 year - whether error in sentencing process - whether sentence manifestly excessive - appeal allowed - appellant sentenced afresh to 15 months imprisonment less time spent in custody and sentence suspended.
Controlled Substances Act 1984, s 32; Criminal Law (Sentencing) Act 1988, s 18A, s 38, referred to.
R v Mangelsdorf (1995) 66 SASR 60; Leung v The Queen (1999) 105 A Crim R 398, discussed.
R v Scali (1986) 40 SASR 597; R v Gjoka (Unreported, Court of Criminal Appeal (SA), 1 July 1997, No S6211), considered.

R v HILL
[2005] SASC 380
Court of Criminal Appeal: Besanko, Vanstone and Layton JJ

BESANKO J This is an appeal against sentence. The appellant pleaded guilty to two offences under the Controlled Substances Act 1984 (“CSA”). The first was the offence of producing cannabis contrary to s 32(1)(a) of the CSA, and the second was the offence of possessing cannabis for sale, contrary to s 32(1)(e) of the CSA.
The offence of producing cannabis was committed by the appellant between 1 December 2003 and 17 February 2004, and the offence of possessing cannabis for sale was committed on 17 February 2004. At those times the appellant and his partner lived in Stockport, South Australia, and the cannabis was grown in a coolroom at the rear of the property. The sentencing judge referred to the equipment in the coolroom as “elaborate”.
The quantity of cannabis in the offence of producing cannabis was eight mature cannabis plants under hydroponic cultivation, and the quantity of cannabis involved in the offence of possessing cannabis for sale was 7,586 grams, including 5,526 grams of female material. It was common ground before the sentencing judge that the dry weight of the cannabis was in the vicinity of 1.5 to 2 kilograms. The value in the marketplace of 1 pound of flowering head is between $2,200 and $3,500. It seems to have been common ground that if sold in bulk, the value of the dry cannabis was between approximately $7,000 and $15,000.
Having regard to those quantities, the penalty for the offence of producing cannabis is a fine not exceeding $2,000 or imprisonment for two years or both, and for the offence of possessing cannabis for sale it is a fine not exceeding $50,000 or imprisonment for 10 years or both.
There was a dispute between the parties as to whether the appellant’s purpose in growing the crop and possessing the cannabis for sale was for financial profit or merely to defray expenses. In that context it is to be noted that there was evidence before the sentencing judge that the appellant and his partner were consuming significant amounts of cannabis and, as I read the sentencing submissions, it was not disputed by the Director of Public Prosecutions or rejected by the sentencing judge that part of the cannabis was for personal consumption by the appellant and his partner. There was also a dispute before the sentencing judge about a related and less significant issue of whether the coolroom, which was constructed by the appellant and a friend in January 2003, was constructed for the purpose of slaughtering and hanging meat or for the purpose of producing cannabis.
The sentencing judge conducted a disputed facts hearing and determined both issues against the appellant. Significantly, he rejected the appellant’s contention that he only intended to sell cannabis for the purpose of defraying expenses. There is no reason to interfere with that conclusion.
It was submitted by the appellant that the sentencing judge erred in three respects and that he should have suspended the sentence.
First, it was submitted by the appellant that the judge overlooked the fact that some personal use of the cannabis by the appellant and his partner was not in dispute. It was submitted that the sentencing judge incorrectly saw the issue in terms of a contention by the Director of Public Prosecutions that all of the cannabis was to be sold for financial gain as against a contention by the appellant that some was for personal consumption and the balance was to be sold merely to defray expenses. It was submitted that when he came to sentence the appellant, the sentencing judge overlooked the fact that it was not disputed that some of the cannabis was for personal consumption even if the balance was to be sold for financial gain. In support of his submission the appellant referred to the following passage in the sentencing judge’s remarks:
The issue for me to decide with respect to the disputed facts hearing is whether the commercial element of the offence in count 2 was limited, as you allege, to an intention to sell part only of the harvest and then only to defray costs.
I do not think the sentencing judge made the error alleged. I have read the submissions on sentence and I think the sentencing judge saw the issue in terms of whether the cannabis, which, by his plea, the appellant admitted having in his possession for sale, was intended to be sold for financial gain or merely to defray expenses. That was a correct statement of the issue. I do not think the sentencing judge was rejecting any personal use of the cannabis by the appellant and his partner. He referred to the appellant’s evidence about personal use and I would have expected him to say that he was rejecting that evidence if that was what he was doing.
Secondly, it was submitted by the appellant that, in considering whether to suspend the sentence, the sentencing judge overlooked evidence as to the appellant’s character and contribution to the local community. It was submitted that the evidence in this case was not only evidence of good character, but that it spoke strongly of the appellant’s contribution to the local community, and in particular the youth of that community. It was said that the sentencing judge’s failure to refer to the evidence in detail meant that he had overlooked it. In the course of his sentencing remarks, the sentencing judge said:
Your counsel has submitted a number of letters, including character references and the report of a psychologist. The psychologist considers that various traumatic experiences in your life have triggered reactions and emotional states involving depressed mood and anger. Your counsel also called a witness to give character evidence about you.
Plainly, the sentencing judge considered the evidence as to the appellant’s character and his contribution to the local community. It was for the sentencing judge to decide how much weight he gave to that evidence and even if I was inclined to give that evidence more weight than the sentencing judge did, that is not a ground for appellate intervention. I reject the appellant’s submission in relation to the second alleged error.
Thirdly, it was submitted by the appellant that the sentencing judge erred in finding that the appellant’s purpose or intention in possessing the cannabis for sale was to secure “significant financial gain”. The sentencing judge said:
In the result, you will be sentenced upon the basis that your possession of the cannabis which is the subject of count 2 was for sale for significant financial gain, and not merely to offset expenses.
“Significant” is a relative term and it might be said that the sentencing judge’s use of it does not necessarily indicate error by him. Not without some hesitation, I think the sentencing judge did err in his characterisation of the appellant’s purpose or intention. It was not an error to find that the appellant’s purpose or intention was to secure financial gain, but, having regard to the quantity of cannabis and the fact that it was not disputed that some of it was for personal consumption, I think it was an error to characterise the appellant’s purpose or intention as the securing of “significant” financial gain. That was an important error in terms of this offending and I think it means that this Court must exercise its power to re-sentence the appellant. I propose to do that as at today so that I can take into account the period of almost four months which the appellant has spent in custody since he was sentenced.
The offences of which the appellant has been found guilty are serious offences. The elements of general and personal deterrence are important considerations in the sentencing process for the offences. I need do no more than refer to the remarks of the Chief Justice (with whom Prior J and Williams J agreed) in R v Mangelsdorf (1995) 66 SASR 60 at 68 – 69 and 73 - 76. I am not persuaded that the sentence of two years’ imprisonment and a non-parole period of one year was inappropriate for this offending and in fact I agree with counsel for the Director that the non-parole period was a lenient one. An allowance must now be made for the time the appellant has spent in custody since the sentence was imposed. I would reduce the head sentence and non-parole period by four months on account of that fact.
It seems to me that the real question is whether in the particular circumstances of this case there is “good reason” to suspend the sentence. Again, not without some hesitation, I have reached the conclusion that the appellant should be given a last chance to avoid further imprisonment and I would suspend the sentence. The appellant has a criminal record for a number of traffic and public order offences and he has a number of convictions for producing or possessing cannabis for which he has for the most part received small fines. The Court was told that in a number of cases the offences could have been dealt with by the payment of an expiation fee, but that the appellant did not attend to that and the matters went to court. There was no commercial element involved in the offences and, as far as I can see, the appellant has not previously been given a suspended sentence for a drug offence. In 2001 he was given a suspended sentence of three months’ imprisonment for driving while disqualified. A number of the offences were committed against a background of personal tragedy, which is referred to in the reasons for judgment of Vanstone J. In making these observations as to the appellant’s history, I have not overlooked the fact that he admitted growing an earlier crop in the coolroom.
The appellant not only produced references as to good character but also evidence as to the work he had done in the local community, including voluntary work in arranging activities for young people. The appellant is in a stable relationship, which includes caring for two young children. He has a good work record and is the proprietor of a small business called D & T Hill Earthworks Bobcat and Tipper Hire. If given the chance, he has the opportunity of making that a successful small business.
If the matters I have just identified are coupled with the fact that this was by no means a large operation, I think good reason exists for suspending the sentence.
Conclusion
I would allow the appeal and set aside the sentence imposed by the sentencing judge. I would impose a head sentence of one year and eight months and a non-parole period of eight months. I would suspend the sentence upon the appellant entering into a bond in the sum of $500 to be of good behaviour for two years.
VANSTONE J: Darren Edward Hill appeals against a sentence imposed in the District Court for producing cannabis and possessing cannabis for sale. That sentence was imprisonment for two years, with a non-parole period of twelve months. He asserts that the sentencing process was marked by error and, that in any event, the sentence imposed was manifestly excessive and that it should have been suspended.
The offences took place at the appellant’s home at Stockport. When police attended there they found eight cannabis plants growing hydroponically in a small shed near to the house. Also found was loose cannabis material drying on racks, plainly harvested from the plants. It was an agreed fact before the sentencing Judge that if allowed to continue drying, the quantity would have reduced from 7.5 kilograms to between 1.5 and 2. It was further agreed that 1.5 kilograms would be worth about $6,600 if sold in pound lots.
The maximum penalty for the producing offence is $2,000 and imprisonment for two years. For the possession for sale offence the same penalty tier applies to amounts of cannabis less than two kilograms. Where the amount of cannabis is more than two kilograms, but less than ten kilograms, the maximum penalty is $50,000 and imprisonment for ten years. That is the applicable maximum here, notwithstanding the prosecutor’s concession. But the concession still has significance. In Leung v R (1999) 105 A Crim R 398 Doyle CJ, speaking for the Court of Criminal Appeal, discussed the anomalies which can occur in application of the penalty ranges provided under the Act depending upon such matters as how far advanced are the processes of production or drying at the time of detection. In that case the Chief Justice made allowances, in reviewing the sentence, for the fact that the cannabis seized had come from a number of plants which would only have attracted the lowest penalty range, even though its weight when harvested placed the offence in the second tier. He further noted, without criticism, that the sentencing judge had taken into account that the cannabis seized was green and would have lost perhaps three-quarters of its weight when dry. I think that to be an important factor in this case.
The presumption relating to the purpose for which more than prescribed amounts of drugs of dependence or prohibited substances are possessed (s 32(3) Controlled Substances Act 1984) applies as much at the sentencing stage as it does at trial: R v Scali (1986) 40 SASR 597. However upon the appellant’s plea, the prosecutor confirmed that it was accepted that some part of the cannabis was for the appellant’s own use. Indeed it is plain from the appellant’s record that he had previously been convicted of a number of offences relating to possession of cannabis and equipment for consuming it. Those matters attracted fines.
Upon submissions being made for the appellant, the learned sentencing Judge appears to have taken exception to two matters. He was not prepared to accept, without more, a submission that the shed in which the cannabis was growing was not constructed for that purpose and further, he was not inclined to accept that the appellant’s determination to sell some of the yield was only formed when he realised that the crop would be bountiful. Accordingly, evidence going to these issues was taken. That led to the matter being rather more protracted and disjointed than sentencing hearings of this type would normally be. I make that observation not to be critical, but to explain that perhaps over the course of time, some direction in the matter may have become obscure.
In the event, the Judge was not persuaded by the appellant’s evidence on the issues I mentioned. When it came to sentence the Judge described the task at hand in these terms:
The issue for me to decide with respect to the disputed facts hearing is whether the commercial element of the offence in count 2 was limited, as you allege, to an intention to sell part only of the harvest and then only to defray costs.
The Judge then set out his reasons for rejecting the appellant’s evidence and that of a supporting witness. The Judge then said this:
In the result, you will be sentenced upon the basis that your possession of the cannabis which is the subject of count 2 was for sale for significant financial gain, and not merely to offset expenses.
The implication is, I think, that all the cannabis was to be sold.
Having examined the course of submissions and the full context on the remarks on sentence I conclude that in these statements the sentencing Judge fell into error. I infer that by the time he had heard the appellant’s evidence, rejected it and come to sentence him, he had overlooked the fact that, much earlier, the prosecutor had accepted that part of the crop was for personal use. My conclusion is reinforced by the reference, above, to “significant financial gain”. The appellant claimed to be a very regular user of cannabis, although not perhaps a heavy user. Plainly, over a period of time, a good deal of his yield might have been consumed. In that context particularly, the Judge’s characterisation of the potential gain as significant is surprising. It was accepted that the appellant had incurred expense of several thousand dollars in constructing the shed and he would have needed to sell a good proportion of the cannabis before even that cost was recovered.
I would add, though, that in terms of cannabis productions, this one was quite a modest venture. The number of plants tends to demonstrate that. Many of the cases which come before the District Court involve what are plainly calculated and sophisticated enterprises designed to reap profits in the tens and hundreds of thousands of dollars. This was, after all, a small undertaking, especially when the element of personal use was acknowledged. Additionally, although two offences were charged, there is only one enterprise under consideration. Taking these matters into account I consider that there is some force in the submission of Mr Boucaut, for the appellant, to the effect that in his remarks, the sentencing Judge overstated the scale of the offending.
Having identified an error in the sentencing process, it is appropriate to sentence afresh.
There are many matters personal to the appellant which incline me to the view that a merciful sentence is called for. The appellant is now 34 years of age. His life has been marked by a succession of tragedies. I shall mention them in the briefest terms only, to demonstrate their gravity. When he was seven years old he was shot in the thigh, which caused disruption to his emotional equilibrium as well as to his schooling. When he was about fourteen years old his father developed throat cancer and his voice box was ultimately removed. The stress this caused to both parents led to exacerbation of his parents’ drinking excesses. In about 1990 the appellant commenced a relationship which bore two children. His partner was pregnant with the second of those when she left their home, taking the elder child with her. He has not seen them since. Later that year his brother was killed in a car accident. His mother’s psychiatric state deteriorated to the extent of requiring admission to a hospital. Three years later his father committed suicide.
The appellant’s brother left behind a partner who was expecting their second child and a daughter. The appellant has now formed a relationship with his brother’s former partner and has effectively assumed the role of father to his brother’s children. That relationship is now of about six years duration.
Although the appellant had been before the courts on a number of previous occasions, all were fairly minor matters. Against that, he admitted to police and to the Court that he had grown a small crop previously in the shed, designed for personal use. It had failed.

The appellant has always been able to secure work. When he was first with his current partner he worked on oil rigs, but he later gave up that employment to strengthen the relationship. Recently he and his partner commenced an earthworks business which has entailed significant financial commitments. The appellant is well regarded in his community and has contributed to it in various ways outside his family life.
It is very much to the appellant’s credit that he has largely withstood the pressures and deprivations which life has brought him and that he remains a hard-working and committed family and community member.
These remain serious offences and a sentence of imprisonment must be imposed. In my view an appropriate sentence, using s 18A Criminal Law (Sentencing) Act 1988, would be one of 15 months imprisonment, after allowance of several months for the pleas. I would reduce that sentence to 11 months on account of the time spent in custody since sentence. The head sentence being less than one year, no non-parole period may be fixed. I find in all the circumstances good reason to suspend the sentence of imprisonment, upon the appellant entering into a bond in the sum of $200 to be of good behaviour for two years.
LAYTON J: I would allow the appeal and set aside the sentence of the Judge below. I have had the opportunity to read the draft reasons for decision of Vanstone J with whom I respectfully agree. In addition I am concerned that there are two further matters which appear to have wrongly influenced the Judge’s decision not to suspend sentence.
Whether the assertion that the coolroom was constructed to slaughter and store meat was “inherently implausible”
A significant element in relation to the offence was the circumstances in which the cannabis was found being in a cool shed with hydroponic equipment. It was the appellant’s case put to the sentencing Judge that the coolroom had not been initially set up for the purpose of cultivating cannabis. Instead it had been erected with the assistance of a friend, for the purpose of the slaughtering, hanging and butchering of sheep for personal use of both the appellant’s family and the friend who at that time lived next door. The Stockport sale yards were only a short distance from the back of the appellant’s house. The appellant and Darren Williams, constructed the coolroom over three to four weeks with second hand material obtained by the appellant from his work connections in the construction industry. These facts were not disputed.
When the appellant was first spoken to by the police who arrived at his property, he was questioned as to the coolroom and it was put to him by police that it had been built for the purpose of growing cannabis. The appellant denied the proposition and indicated immediately that “[i]t was actually to hang sheep in to begin with”.[1] Further information was given by the appellant to the police at that time including an indication that this was often done out in the country with family and friends.[2]
[1] AB 206.
[2] AB 206.
When this submission was first made to the sentencing Judge, his Honour expressed that he was “sceptical about the suggestion that the coolroom wasn’t purpose – built for the growing of cannabis”.[3] As a consequence the appellant’s then counsel indicated that this would be the subject of calling further evidence. The sentencing Judge indicated that a sworn declaration “probably would be sufficient”.[4] A statutory declaration from the appellant’s friend Darren Williams was given on 11 March 2005. At the point when this was tendered, the initial response of the prosecutor was to allow its tender but at the same time to contend that the explanation given in the statutory declaration was “inherently implausible”.[5] The sentencing Judge then indicated that the prosecutor could not on the one hand agree to the admission of the statutory declaration but on the other contest its content. Following further instructions the prosecutor then decided to object to the admission of the statutory declaration which in turn gave rise to the disputed oral fact hearing. At that hearing both the appellant and Darren Williams gave evidence.
[3] AB 89.
[4] AB 90.
[5] AB 95.
The appellant gave evidence as to the circumstances in which the coolroom was erected. In summary that evidence was that he had erected the coolroom with the intention of using it for the slaughtering of sheep for meat for personal consumption. He had done so with the help of a friend Darren Williams, who had some experience in slaughtering sheep. The appellant indicated that shortly after the coolroom was erected, Darren Williams left the vicinity and it was never used for the purpose for which it was initially built. Approximately two months later the appellant said that he decided instead to use the coolroom for the purpose of growing cannabis hydroponically. He said that he purchased all of the hydroponic equipment second-hand for about $2,500. He was cross-examined in considerable detail as to this and refuted the questions put to him that the expense was greater. The sentencing Judge appears to have accepted the appellant’s evidence on that point.
Darren Williams also gave evidence of assisting the appellant and also gave evidence as to how the idea came about to construct a coolroom. In essence he said that he had been sitting around with the appellant one night and they had a general discussion that it would be a good idea to slaughter their own meat and keep it in a room. Darren Williams also gave evidence that he knew how to slaughter and hang a sheep and gave detail as to how he would do it. He also states that his father knew how to gut and butcher the sheep as his father worked as a shearer. Darren Williams also indicated that the intention was to obtain assistance from his father in the latter processes of the butchering.[6]
[6] AB 125-6.
In his sentencing remarks the sentencing Judge rejected the explanation given by the appellant and Darren Williams by stating “the assertion that the coolroom was constructed to slaughter and store meat was inherently implausible”.[7] No reasons were given as to why this was regarded as “inherently implausible”.
[7] AB 151.
It may have been understandable if the sentencing Judge had said he did not accept the reason given by the appellant for the initial construction of the coolroom, or was not satisfied that the appellant’s evidence was truthful, but it is another to suggest that the reason proffered was “inherently implausible”. It seems to me that there is nothing “inherently implausible” about persons who are living in the country with the sheep sale yards almost on the back door; with one of them knowing how to slaughter and hang a sheep; who have access to assistance with the butchering of a sheep for personal use; then jointly building a coolroom with second hand materials for that purpose.
Therefore even before coming to the major issues upon which the appeal is based it appears that the sentencing Judge has rejected the appellant’s mitigating circumstance for an erroneous reason, namely, on the basis that the mitigating circumstance was “inherently implausible”. With great respect to the sentencing Judge it is an extreme assessment of the evidence to conclude that it intrinsically lacked credibility. This is not a conclusion which is dependent on credibility of the witnesses as such, it is a conclusion derived by the Judge from the very explanation given. There was, for example, no suggestion that the coolroom could not physically (as distinct from legally) have been used for the purpose of the slaughtering and hanging of a sheep.
In summary on this point, in my view the erroneous rejection of the mitigating circumstance importantly sets the scene for the approach which his Honour later took in reaching the sentence and declining to suspend sentence.
Suspension of the sentence
The first ground of appeal is that the learned sentencing Judge erred in not suspending the sentence of imprisonment. The power to suspend a sentence is found in s 38(1) of the Criminal Law (Sentencing) Act 1988, which provides that
Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond …
Reference was also made by both counsel to the case of R v Mangelsdorf[8] and the principle that in cases of drug offences involving commerciality, a sentence should only be suspended if “exceptional circumstances” exist. In that case, Doyle CJ said, at 63, that:
The Court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s32 [of the Controlled Substances Act].
[8] (1995) 66 SASR 60.
It was put to Mr Brebner QC, counsel for the respondent, in arguendo, that this could not be described as a case involving a background of involvement in commercial trading or dealing. He accepted that, although the Judge had found that the appellant’s possession of cannabis was for sale for significant financial gain, there was no evidence to support a background of involvement in commercial trading or dealing. I consider that the facts in this case could not properly be described as falling within that category of cases to which Mangelsdorf refers, and that it was not necessary for there to be “exceptional circumstances” to justify suspension.
I am fortified in this reasoning by the case of R v Gjoka[9] a case involving two counts of sale of some eight or ten capsules of heroin, Doyle CJ made the following comments about Mangelsdorf:
The power to suspend a sentence is conferred by s38 of the Sentencing Act. The court may suspend a sentence “…if it thinks that good reason exists for doing so.” That is the statutory criterion, and that is the test to be applied.
Nevertheless, it is appropriate for this Court in particular cases to determine, as it did in Mangelsdorf …that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension.
However, that is to some extent by the by in the present case. My remarks in Mangelsdorf were not directed to a case such as the present.
[9]Unreported, Supreme Court of South Australia, Court of Criminal Appeal, Doyle CJ, Olsson, Lander JJ, SCCRM 119 of 1997, S6211, 1 July 1997.
Earlier in that decision the Chief Justice noted that:
The distinguishing feature between this case and Mangelsdorf lies in the fact that the three offences are to be treated as isolated offences, and not as representative of a course of conduct.
In sentencing submissions before the learned sentencing Judge the prosecutor made the following submission:
In relation to sentencing standards, I refer your Honour to the case of The Queen v Mangelsdorf …In that matter, Mr Richards possessed just over 7 kilograms of cannabis and the Court of Criminal Appeal held that the sentencing judge was wrong in suspending a term of imprisonment. In the course of delivering his judgment, the Chief Justice stated [at 75]:
‘this Court has consistently said that suspension of a sentence of imprisonment is inappropriate in the case of the possession of cannabis for sale when that takes place against a backdrop of substantial involvement in cannabis trading.’
Perhaps, more importantly, he went on to say:
‘In my opinion, that is the case here, in the sense that the quantity of cannabis indicated an intention to engage in substantial trading.’
In relation to penalty, the Crown opposes a suspended sentence…
The learned sentencing Judge, in his sentencing remarks, made these comments with regard to suspension of the sentence:
Although clearly a term of imprisonment is required, your counsel has urged me to suspend the sentence. He has emphasised the importance of rehabilitation and the impact that an immediate term will have upon your business and your dependants. I take into account all that your counsel has said. Nevertheless, in the end, I have reached the conclusion that any penalty less than an immediate prison term would fail to sufficiently reflect the gravity of the offences and the need to deter you and others from future conduct of this kind.
The sentencing Judge, it seems, has not explicitly considered what test should be applied in determining whether or not the sentence of imprisonment should be suspended in this case. Although he had been referred to the case of Mangelsdorf, his Honour does not avert to either the requirement for “exceptional circumstances”, or the statutory criterion of “good reasons” in his remarks. In a case like this, where there were certainly a number of personal circumstances relevant to the question of suspension, it is preferable for a sentencing Judge to be more specific in identifying the factors which may be relevant to the question of suspension, and the criterion to which they are being applied. This is particularly the case where the prosecution has submitted that this is one of those cases which would require “exceptional circumstances” to justify the suspension of the sentence. In this case there is a significant risk that the sentencing Judge did not apply the correct test, namely whether “good reasons” exist to suspend sentence.
Mercy
I consider that the personal circumstances of the appellant would fit either a characterisation of “exceptional circumstances” as required by Mangelsdorf, or that “good reason exists” within the meaning of s 38 of the Criminal Law (Sentencing) Act 1988, for a suspended sentence on re-sentencing the appellant.
With respect I adopt the reasons given by Vanstone J in her reasons and emphasise the following important factors. It is to the appellant’s credit that notwithstanding his very difficult family circumstances, he has taken impressive responsibility by supporting his brother’s children, before and after he commenced his relationship with his sister-in-law, especially the oldest child who has gone to a private school because of her learning difficulties. Even more impressive are the character referees and oral evidence given by one of them. One of his referees described him as being:
… the driving force behind the creation, running and supervising of a youth group for the benefit of the younger members of our community. Therefore giving the often bored youth of this town a place to go and something to do. The petty crime and vandalism within the town dropped noticeably
He has always been willing to donate his time and labour to help with community projects. This included installation of a brand new playground and in the near future a new BMX bike track.[10]
[10] AB 41.
A further factor is also the crippling effect which his imprisonment would have on his family circumstances as a result of the fledgling stage of the business enterprise with his partner, the amount of the borrowings and their financial survival if he were imprisoned. Whilst this latter matter of itself may not be sufficient to found a suspended sentence, it is part of the relevant personal circumstances to be taken into account.
For these reasons I would allow the appeal and agree with the approach taken to re-sentencing proposed by Vanstone J.