R v Hosking - [2017] SASCFC 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOSKING
[2017] SASCFC 50
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Parker)
18 May 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - CULTIVATION
Appeal against sentence.
The appellant pleaded guilty to cultivating a commercial quantity of cannabis plants for sale, possessing prescribed equipment and interfering with an electricity meter. He was sentenced by a District Court Judge to imprisonment for two years and 10 months with a non-parole period of one year and five months. The Judge declined to suspend the sentence or order that it be served on home detention.
The appellant appeals against the sentence on the grounds that the Judge erred in not suspending the sentence of imprisonment or alternatively not ordering that it be served on home detention.
At the hearing of the appeal, the Court ordered a home detention report. That report disclosed that the appellant’s personal circumstances were markedly different from those represented to the Court at the hearing of the appeal and in addition that the defendant admitted when taken into custody on being sentenced that he smoked cannabis daily.
Held:
1. The appellant has not demonstrated error in the exercise of the discretion not to suspend the sentence (at [4] per Vanstone J, [69] per Blue J and [88] per Parker J).
2. The Judge may have fallen into error in considering whether the sentence should be served on home detention. However, given the matters disclosed in the home detention report, the appellant is not a “suitable person” and in any event the discretion should be exercised against ordering that he serve his sentence on home detention (at [11]-[17] per Vanstone J, [78]-[86] per Blue J and [93]-[94] per Parker J).
3. Appeal dismissed.
Controlled Substances Act 1984 (SA) s 33B, s 33LA; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 11, s 18A, s 32, s 33BB, s 33BC, s 33BD, s 38; Electricity Act 1996 (SA) s 85, referred to.
Elliott v Harris (No 2) (1976) 13 SASR 516; House v The King (1936) 55 CLR 499; R v Dell (2016) 126 SASR 571; R v Filipponi [2016] SASCFC 148, discussed.
Dinsdale v The Queen (2000) 202 CLR 321; Director of Public Prosecutions v Sheehy [2012] SASC 152; Jarrett v R (1992) 58 SASR 457; Markarian v The Queen (2005) 228 CLR 357; Meeuwsen v Police [2003] SASC 306; Muldrock v The Queen (2011) 244 CLR 120; R v B, J [2008] SASC 67; R v Baker [2005] SASC 389; R v Creed (1985) 37 SASR 566; R v Doecke (1999) 205 LSJS 304; R v Domarecki [2016] SASCFC 67; R v Galffy [2009] SASC 261; R v Harris (2001) 122 A Crim R 241; R v Jongewaard (2009) 266 LSJS 283; R v Kane [2003] SASC 237; R v Malvaso (1989) 50 SASR 503; R v O’Toole [2013] SASCFC 18; R v Postolovski [2016] SASCFC 69; R v Regan [2003] SASC 287; R v Roberts (2016) 125 SASR 40; R v Shrestha (1991) 173 CLR 48; R v Stevens [2008] SASC 170; Veen v The Queen [No 2] (1988) 164 CLR 465; Wessling v Police (2004) 88 SASR 57; WorkCover Corporation of South Australia v Musolino (2007) 100 SASR 147, considered.

R v HOSKING
[2017] SASCFC 50
Court of Criminal Appeal: Vanstone, Blue and Parker JJ

VANSTONE J: Matthew Graham Hosking was committed for sentence for cultivating a commercial quantity of cannabis, possessing prescribed equipment and interfering with an electricity meter. He was found to have two crops of ten plants grown in a shed at his family home. A District Court Judge sentenced him to an immediate custodial sentence of two years and ten months imprisonment with a non-parole period of one year and five months, to reflect all three offences.
This is another appeal which raises the application of the relatively new Part 3 Division 3A of the Criminal Law (Sentencing) Act 1988 (SA) (the Act) and, incidentally, the extent to which a sentencing judge should explain his or her reasons for making a home detention order.
Arguments on appeal
The appeal proceeds on the ground that it is manifestly excessive, in that it should have been suspended under Part 5 of the Act, or, in the alternative, that the Judge should have ordered that it be served on home detention. Both before the sentencing Judge and this Court the appellant pointed to his prior good character, early pleas of guilty, his important family responsibilities and other factors, as justifying a non-custodial sentence.
The complaint that the sentence should have been suspended under Part 5 of the Act involves satisfying the appellate court that, such were the appellant’s claims for such a disposition, any correct exercise of discretion would have led to that result. Having regard to the deliberate nature of the appellant’s crimes and their seriousness, that argument cannot be made out. While I consider that it was open to the sentencing Judge to suspend the sentence, his Honour cannot be criticised for determining that it was not appropriate to do so.
The alternative complaint that a home detention order should have been imposed raises different issues, because error is alleged in the Judge’s consideration of the option of a home detention order. It is suggested that in considering that issue the Judge applied the very same criteria as he did with respect to the question of Part 5 suspension.
In R v Filipponi [2016] SASCFC 148 the Chief Justice (with whose reasons Justice Nicholson and I agreed) discussed the structure of Part 3 Division 3A of the Act and the circumstances in which there might be scope for a home detention order, yet not scope for suspension under Part 5. At [23]-[24] Kourakis CJ said this:
Subparagraph (c) is directed towards the suitability of the person to serve a sentence on home detention. That criterion addresses primarily the subjective circumstances of the defendant, like his or her capacity to support himself or herself, or be supported by others in private accommodation, and whether he or she is likely to comply with the conditions of home detention.
Once enlivened, the discretion conferred by s 33B(1) of the Sentencing Act to make a home detention order must be exercised having regard to the purposes of sentencing and all relevant considerations. Those purposes importantly include punishment, community protection and both general and personal deterrence on the one hand, and the scope for rehabilitation on the other.
In R v Dell (2016) 126 SASR 571 Doyle J, with whose reasons Kelly and Parker JJ agreed, considered the legislation in terms of the question whether a one-stage or two-stage approach to the making of such an order was required. Doyle J concluded that a two-stage approach was appropriate. That is, a sentencing judge should consider whether “the defendant was a suitable person to serve a sentence on home detention”: s 33BB(1)(c), and, if so, whether, having regard to the full range of sentencing considerations, the sentence should be suspended under Division 3A.
Naturally, cases will arise where either suspension under either Part 5 or Part 3 Division 3A will be quite out of the question, and that will be so without any reference to the suitability of the defendant for a home detention order. That might be because of the necessity for considerations of general and personal deterrence, protection of the public or punishment to predominate.
I do not take the reasons of the Chief Justice in Filipponi or the reasons of Doyle J in Dell to suggest that in every case there will need to be a determination of whether a person is suitable for a Division 3A disposition. Where Doyle J spoke of the first and second stages of the enquiry, I do not take his Honour to dictate a sequence in which the relevant factors must be addressed. Rather, I consider he was making the point that they are separate matters for consideration and each must be addressed before a home detention order is made. Indeed, at [65] Doyle J found no error in the Judge not having expressed a conclusion about the appellant’s suitability for home detention, having found that it was not appropriate.
Consideration
In the present case the possibility of a home detention order needed to be considered. Having regard to the appellant’s age, prior good record, personal circumstances as put to the Court and his early pleas of guilty he appeared to be a suitable person to serve the sentence on home detention: s 33BB(1)(c). There were no other prescribed matters which precluded such an order. Counsel who appeared for the appellant before the sentencing Judge sought such an order as an alternative to suspension under Part 5 of the Act. No report on the suitability of the proposed residence was sought.
The Judge dealt with the question of suspension under both Part 5 and Part 3, Division 3A in the same sentence of his remarks. He said:
Your crimes are so serious and the need to deter others is so significant that good reason to suspend your sentence cannot be found to exist and, for the same reasons, you are unsuitable for home detention and a home detention order cannot properly be made in your case.
I have some misgivings arising from this brief statement. First, as I have said, I consider that the appellant appeared to be a “suitable person” in terms of s 33BB(1)(c) and the narrow enquiry referred to by Doyle J as the first stage. Secondly, although in many cases the same reasons will militate against suspension of any kind, here the issue seemed to be more finely balanced. Having regard to the fact that a home detention order is a new tool in the armoury of the sentencing judges, involving new issues of statutory construction, and bearing in mind the brevity of the Judge’s remarks and his, perhaps, surprising reference to the appellant’s unsuitability for home detention, it is conceivable that the Judge fell into error in assessing the appellant’s claims for a home detention order.
The range of factors personal to the appellant which were put to the Judge and to this Court as indicating the appropriateness of the appellant for such an order has been mentioned in general terms already. It appeared from submissions put before the Court that suffering a work injury led to the appellant receiving a reduced income, and to depression, and these events led him to attempt to restore the family finances by growing cannabis. It was put that because he and his partner have two young children, his partner could not go out to work, as she was previously. It was said that if he were able to serve his sentence in their house, the appellant could look after the children and his partner could resume working. It was said there was a danger that they would lose their house if there were not the additional income her employment could provide.
Upon the hearing of the appeal, the Court sought a report addressing s 33BB(2)(a)(i), the suitability of the proposed residence. The Court provided to the Department of Correctional Services the name and telephone number of a woman said to reside there, Ms Varga. Those details were provided to the court by the appellant’s solicitors.
When the report was returned, the writer expressed reservations about the suitability of the appellant for home detention supervision. The writer referred to the appellant’s admission that he had been in the habit of smoking cannabis daily. More importantly, the report was directed to the suitability of house premises which are not those of the woman described in the submissions as the appellant’s partner and mother of his children. Indeed that person was referred to in the report as being a person protected from the appellant by an intervention order. The premises which were subject of enquiry were those of a Ms Varga. She was described in the report as the “partner” of the appellant of 10 months standing. He had apparently told the writer that he had been living with Ms Varga “on and off” for that period of time. If correct, that would entirely undermine the truthfulness of submissions put to the Judge in August 2016 and reiterated in November 2016. It would also mean he had breached the terms of his bail agreement which required him to live at his own home. Even if not quite correct, the proposal that the appellant live at Ms Varga’s home could not, on the face of it, have an impact on his former partner’s ability to rejoin the workforce and, from the fruits of her labour, make the outstanding mortgage payments on the jointly owned house.
It is most regrettable that a false picture of the appellant’s position has been put, not only to the District Court, but also to this Court. All courts rely on the diligence of solicitors to ensure that submissions they put to courts have a valid basis. At the least, their instructions should be recorded in writing and signed by the client. Clients should be advised that submissions put to the court must be truthful and any change in their situation relevant to those submissions must be promptly communicated so that the submissions can be corrected or updated. Senior Counsel assured this Court that neither he nor his instructing solicitor was aware of the inaccuracy of what was put on behalf of the appellant.
In the circumstances, the appellant’s claims for a home detention order are severely weakened. The pressing need for such an order in terms of the wellbeing of his family is eroded. In my view the misleading of the court as to the appellant’s situation reflects adversely on his character. It is relevant to the exercise of discretion under Part 3, Division 3A of the Act. It bears upon the matters of contrition and rehabilitation. In addition, for the separate reasons disclosed in the report, it appears that the appellant is not a “suitable person” in terms of s 33BB(1)(c).
Even assuming there were an error of approach by the Judge, the order he made was plainly correct. In these circumstances there is no utility in considering the matter further.
Conclusion
For these reasons I would dismiss the appeal.
BLUE J: This is an appeal against sentence.
The appellant, Matthew Hosking, pleaded guilty in the District Court to cultivating a commercial quantity of cannabis plants intending to sell their products,[1] possessing prescribed equipment[2] and interfering with an electricity meter[3] committed on 6 August 2015.
[1]    Controlled Substances Act 1984 (SA) section 33B(2).
[2]    Controlled Substances Act 1984 (SA) section 33LA(a).
[3]    Electricity Act 1996 (SA) section 85(1)(b).
The appellant was sentenced pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) to imprisonment for two years and ten months, with a non-parole period of one year and five months. The Judge declined to suspend the sentence or order that it be served on home detention.
The appellant appeals against the sentence on the grounds that the Judge erred in not suspending the sentence of imprisonment or alternatively in not ordering that it be served on home detention.
The offending
On 6 August 2015 police officers attended at the house of the appellant and his partner. They entered a shed at the rear of the house which had been divided into two rooms and an entranceway. In one room, they found ten mature cannabis plants with heights of between 50 and 100 centimetres and in the other room they found ten semi-mature cannabis plants with heights of up to 40 centimetres (count 1).[4] They found 17 electrical transformers and 14 lampshades and globes between the two rooms and a carbon filter in each room (count 2). They found that an electric cable had been connected to the main electrical switchboard, bypassing the meter and supplying electricity to the electrical transformers in the rear shed (count 3).
[4] The police also found 14 juvenile cannabis plants in the entranceway. The Judge accepted after a disputed fact hearing that these plants were for a friend of the appellant, were not cultivated for sale and could be disregarded.
Personal circumstances
The appellant was born in 1986 and was 30 years old when sentenced. His childhood was adversely affected by traumatic domestic violence perpetrated on his mother and bullying at school perpetrated on him due to his dyslexia. He completed schooling up to year 9. He completed an apprenticeship in wall and ceiling lining at the age of 20 and worked in the building industry since then.
In 2009 the appellant and his partner C purchased the family home with a mortgage of approximately $300,000. In December 2011 their daughter was born.
In October 2013 the appellant suffered a back injury at work. He commenced receiving payments of weekly income maintenance from WorkCover.
Before May 2014 the appellant’s general practitioner had diagnosed him as suffering from depression and had prescribed Sertraline. In May 2014 she referred him to Rosalie Whitelock, a psychologist specialising in workers’ compensation matters. Ms Whitelock considered that he was suffering from a Major Depressive Disorder, Chronic Pain Disorder and Adjustment Disorder with Anxiety. Ms Whitelock later considered that he was also suffering from Post-Traumatic Stress Disorder as a result of a home invasion by criminals when he was a child. He attended on Ms Whitelock for counselling and cognitive behavioural therapy on a fortnightly basis.
In April 2015 the appellant learnt that his partner was pregnant with their second child. He became concerned about the family’s financial condition because his partner had been unable to work when she was pregnant with their first child. He decided to grow ten cannabis plants and sell the produce wholesale to supplement the family’s income. While those plants were growing, he decided to grow ten further cannabis plants. At the same time, he ceased attending on Ms Whitelock for counselling.
In August 2015 the police seized the cannabis plants. In January 2016 the appellant’s son was born. He resumed attending on Ms Whitelock for counselling.
By the time of sentencing submissions, C had resumed work as a cleaner to supplement the family income.
The appellant has no relevant prior convictions.
Hearings at first instance and on appeal
In April 2016 the appellant pleaded guilty in the Magistrates Court to the charges. He was subsequently committed for sentence in the District Court.
On 15 November 2016 the Judge heard sentencing submissions. A favourable report by Ms Whitelock was provided to the Judge together with a positive character reference by the appellant’s aunt. It was submitted by counsel for the appellant that, although the appellant’s relationship with C was under pressure, he was attending counselling. It was submitted that, if the appellant were required to serve a custodial sentence, his partner C would no longer be able to work while he looked after their two children and potentially this might result in the loss of their family home which was mortgaged. The Judge revoked the appellant’s bail and remanded him in custody for sentence. On 18 November 2016 he was sentenced and has since been serving his sentence in prison.
On 17 March 2017 this Court heard the appeal. Counsel for the appellant (who had not been counsel at first instance) relied on the same factual basis about the appellant’s personal circumstances as had been put to the sentencing Judge. This included that, if the appellant is required to serve a custodial sentence, C would be unable to work because the appellant could not look after their two children while she is at work and this hardship to the appellant’s family is relevant to sentence. At the end of the hearing this Court made an order under section 33BB(4)(b) of the Sentencing Act that the Department for Correctional Services (the Department) provide a report as to the suitability and availability for the detention of the appellant at premises at Salisbury Heights in terms of a possible home detention order. The Court understood that this was the family home of the appellant and C.

On 31 March 2017 this Court received a home detention report from the Department. It recorded the fact that there was a current intervention order in place prohibiting the appellant from assaulting, threatening, harassing or intimidating C; that the address at Salisbury Heights at which the appellant proposed to reside was the address of S and her two children; that the appellant had been living at this address on and off over time; that the appellant was in a current stable relationship with S and had been for ten months; that S was the appellant’s partner and her two children were his step-children; and that the appellant admitted in November 2016 that he smoked cannabis on a daily basis.
These matters stated in the home detention report at face value suggested that the Court had been misled at the hearing of the appeal on 17 March 2017 as to the appellant’s past and present relationship with C and his intentions as to where he would live and what he would do if the appeal were allowed and he were resentenced to a suspended sentence or to serve his sentence on home detention. As a result the Court requested further submissions in relation to the matters raised by the home detention report.
On 5 May 2017 the Court heard further submissions. The following factual submissions were made by the appellant’s counsel concerning the appellant’s relationships based on his instructions from the appellant and S. No evidence was adduced from the appellant concerning this or other matters. It was submitted that by mid-2016 the relationship between the appellant and C had greatly deteriorated and there had been some periods of separation. The appellant met S and they entered into a friendship. When C learnt of this, she requested that it cease and the appellant and C work on their relationship, which they were doing in November 2016 when sentencing submissions were made to the Judge. After the appellant was sentenced, the relationship between the appellant and C ended and the appellant resumed friendship (or perhaps a nascent relationship) with S. The appellant still wished to look after his children when C was working so as to permit her to work and earn money to pay the mortgage on the former family home. The appellant admitted to the Department when interviewed on commencing to serve his sentence that he was smoking cannabis on a daily basis.
The appellant’s counsel informed the Court that on 17 March 2017 he was unaware of these matters and believed that the appellant was still in a relationship with C. The Court accepted this position but expressed its concern that the appellant had been present via audio visual link during the hearing of the appeal and had not attempted to correct the false impression given to the Court. The appellant’s counsel said that his instructions were that the appellant believed that the only matters relevant on appeal were those as at November 2016 when he was sentenced and he believed that the current position was irrelevant. The Court indicated that an inference was open that the appellant had been content to stand by while the Court was misled, believing that his prospects on appeal were thereby enhanced. The Court expressed its concern that the appellant appeared to have informed the Department that he had been in a stable relationship with S for ten months as at March 2017 and had lived on and off at her address. The appellant’s counsel said that his instructions were that the appellant meant to refer to the time he had known S when providing the ten month period. The appellant did not give evidence as to his beliefs during the hearing of the appeal in March or his relationship with C or S.
Sentencing remarks
The Judge summarised the circumstances of the offending. In relation to the appellant’s personal circumstances, the Judge said:
You are 30 years of age. You have no relevant previous convictions. You are in a long-term relationship. You endured an unsettled and violent childhood but you rose above this and you had a good employment history up until you went onto WorkCover as a result of a serious workplace injury to your back. Your income then dropped significantly and indeed at one stage your payments were stopped for about two months.
You suffer from severe pain as a result of your injury. You also suffer from a number of recognised psychological conditions, including anxiety, an adjustment disorder and a major depressive disorder which were either caused or exacerbated by your injury. You also exhibit symptoms of post-traumatic stress disorder and you have experienced suicidal ideations.
Your partner fell pregnant a little less than two years ago. She became extremely ill as a result and she had to give up work for the duration of her pregnancy. The same thing happened when she fell pregnant for a second time. You were on WorkCover by the time of her second pregnancy and you were unable to make ends meet without her income. You became panic-stricken and desperate and you ultimately made the stupid and selfish decision to cultivate cannabis in order to supplement the family income and to tide you over.
…
Your partner has returned to work as a cleaner since your arrest. I have been provided with a reference by your aunt. She speaks well of you and she is of the view that you and your partner could well lose your house if you were imprisoned and your partner has to stop work in order to care for your youngest child, however, this is an ordinary consequence of the commission of a crime such as yours arising, as it did, out of the use of the family premises to commit a serious offence.
You have been attending counselling for your alcohol and cannabis dependency and for your anxiety, depression, and pain disorder. Your progress is said to have been impressive. You are also undergoing career counselling with a view to finding some kind of work in the future. Your prospects for rehabilitation would thus appear to be reasonable at least.
I have taken everything which has been said and written about you on your behalf into your account and I have given each aspect of it the significance that I think it deserves.
The Judge set out the maximum penalties for the offences. The maximum penalty for cultivating a commercial quantity of cannabis is imprisonment for 25 years and/or a fine of $200,000. The maximum penalty for possessing prescribed equipment is imprisonment for two years and/or a fine of $10,000. The maximum penalty for diverting electricity is imprisonment for two years or a fine of $20,000.
The Judge said that the deterrence of others must ordinarily be the predominant consideration in fixing a sentence for the crimes charged. The Judge utilised section 18A of the Sentencing Act and identified a notional starting point of imprisonment for four years. The Judge discounted the starting point by 30 per cent on account of the appellant’s early guilty pleas to arrive at a sentence of imprisonment for two years and ten months. The Judge fixed a non-parole period of one year and five months.
The Judge then said:
Your crimes are so serious and the need to deter others is so significant that good reason to suspend your sentence cannot be found to exist and, for the same reasons, you are unsuitable for home detention and a home detention order cannot properly be made in your case.
Sentencing steps
Head sentence
The first step in sentencing is usually to determine an appropriate head sentence by instinctively synthesising all relevant factors.[5] Section 10 of the Sentencing Act sets out various factors to which a sentencing court must have regard. Such factors are usually broadly divided into the circumstances of the offending (offending circumstances) and the circumstances of the offender (personal circumstances). The court is required to have regard to and balance various sentencing objectives including that the punishment be proportionate to the crime,[6] protection of the safety of the community,[7] (encompassing general and personal deterrence[8]) and rehabilitation of the defendant.[9]
[5]    Veen v The Queen [No 2] (1988) 164 CLR 465 at 476-477 per Mason CJ, Brennan, Dawson and Toohey JJ; Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357 at [50]-[53] per McHugh J; Muldrock v The Queen [2011] HCA 39, (2011) 244 CLR 120 at [26] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
[6]    Criminal Law (Sentencing) Act 1988 (SA) section 10(1)(a), (b), (c), (e) and (j). The common law principle that the punishment should be proportionate to the crime applies in any event in the absence of statutory express provision or clear intendment.
[7]    Criminal Law (Sentencing) Act 1988 (SA) section 10(2)(a).
[8]    Criminal Law (Sentencing) Act 1988 (SA) section 10(1)(i).
[9]    Criminal Law (Sentencing) Act 1988 (SA) section 10(1)(m).
Where the maximum penalty for an offence includes imprisonment, section 11 precludes (other than in prescribed circumstances not applicable in the present case and not generally applicable)[10] a sentence of imprisonment being imposed unless any other sentence would be inappropriate having regard to the gravity or circumstances of the offence or a sentence of imprisonment is necessary to give proper effect to the policies of the criminal law stated in section 10. This means that in the generality of cases imprisonment is effectively a last resort.[11] In cases where a sentence of imprisonment is imposed, it is usually because the circumstances of the offence are so serious that any other penalty would be inappropriate.[12]
[10] The defendant has shown a tendency to violence; the defendant is likely to commit a serious offence if allowed to go at large; or the defendant has previously been convicted of an offence punishable by imprisonment: Criminal Law (Sentencing) Act 1988 (SA) section 11(1)(a)(i), (ii) and (iii).
[11] Meeuwsen v Police [2003] SASC 306 at [38]-[41] per Mullighan J; R v Kane [2003] SASC 237 at [40] per Gray J; R v Baker [2005] SASC 389 at [16] per Debelle J (with whom Besanko and Layton JJ agreed).
[12] R v Doecke (1999) 205 LSJS 304 at [14]-[15] per Mullighan J (with whom Doyle CJ and Perry J agreed); R v B, J [2008] SASC 67 at [20] per Gray J (with whom Perry J agreed).
Non-parole period
In cases in which a sentence of imprisonment of one year or more is imposed,[13] the next step usually taken is to fix a non-parole period under section 32 of the Sentencing Act.[14] The same factors that are relevant to determining the head sentence are relevant to determining the non-parole period.[15] It is often said that, when it comes to fixing the non-parole period, there is greater scope to give weight to personal circumstances (in contrast with the offending circumstances) than in determining the head sentence.[16]
[13] A non-parole period is not to be fixed when the sentence is for imprisonment for less than one year pursuant to section 32(5)(a).
[14] This does not mean that the question of suspension cannot be considered before fixing a non-parole period. See R v Spong [2008] SASC 36, (2008) 100 SASR 55 at [16]-[18] per Bleby J and [58] per Gray J (with whom David J agreed).
[15] R v Creed (1985) 37 SASR 566 at 568 per King CJ (with whom Cox and Olsson JJ agreed); R v Shrestha (1991) 173 CLR 48 at 68-69 per Deane, Dawson and Toohey JJ; R v Postolovski [2016] SASCFC 69 at [53]-[54] per Parker J (with whom Blue and Doyle JJ agreed).
[16] See for example R v Roberts [2016] SASCFC 41, (2016) 125 SASR 40 at [16]-[22] per Kourakis CJ, Blue and Stanley JJ.
Suspension of sentence
In the generality of cases in which a sentence of imprisonment is imposed,[17] the next step usually taken[18] is for the court to determine whether good reason exists to suspend the sentence of imprisonment while the defendant complies with the conditions of a bond pursuant to section 38 of the Sentencing Act. The same factors that are relevant to determining the head sentence are relevant to determining whether good reason exists to suspend the sentence of imprisonment.[19]
[17] A sentence may not be suspended if the sentence is to be served cumulatively on or concurrently with another term of imprisonment then being served or about to be served; if the period of imprisonment is less than three months and in certain other prescribed circumstances. A sentence may not be fully suspended if the period of imprisonment is less than one year.
[18] Sometimes no question of suspension arises due to the seriousness of the offence.
[19] Dinsdale v The Queen [2000] HCA 54, (2000) 202 CLR 321 at [85]-[86] per Kirby J; R v Stevens [2008] SASC 170 at [22] per Duggan J (with whom Doyle CJ and Anderson J agreed).
The imposition of a suspended sentence involves the imposition of a significant penalty.[20] It is a sentence of imprisonment to be served conditionally on the defendant failing to comply with the conditions of the bond.[21] In Elliott v Harris (No 2),[22] Bray CJ (with whom Bright and Zelling JJ agreed) said:
So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.[23]
[20] Elliott v Harris (No 2) (1976) 13 SASR 516 at 527 per Bray CJ (with whom Bright and Zelling JJ relevantly agreed); Jarrett v R (1992) 58 SASR 457 at 459 per King CJ (with whom Olsson and Mullighan JJ agreed); R v Regan [2003] SASC 287 at [24] and [27] per Bleby J (with whom Besanko and Sulan JJ agreed); WorkCover Corporation of South Australia v Musolino [2007] SASC 249, (2007) 100 SASR 147 at [71]-[74] per Duggan J (with whom White and Kelly JJ agreed).
[21] Elliott v Harris (No 2) (1976) 13 SASR 516 at 527 per Bray CJ (with whom Bright and Zelling JJ relevantly agreed).
[22] (1976) 13 SASR 516.
[23] At 527.
A suspended sentence of imprisonment operates as a punishment and a deterrence. As a generality, it involves a higher level of punishment and deterrence than a penalty not involving imprisonment (such as a fine, community service or a simple section 38 bond). On the other hand, it involves a lower level of punishment and deterrence than a custodial sentence.[24]
[24] WorkCover Corporation of SA v Musolino (2007) 100 SASR 147 at [72] per Duggan J (with whom White and Kelly JJ agreed); Director of Public Prosecutions v Sheehy [2012] SASC 152 at [67] per Kelly J; R v Galffy [2009] SASC 261 at [30]-[31] per Doyle CJ.
It follows from the very existence of a discretion to suspend a sentence of imprisonment that the mere fact that the objective circumstances of the offence were considered to be so serious that any penalty other than a sentence of imprisonment would be inappropriate does not entail that there is not good reason to suspend the sentence.
It may be appropriate to suspend a sentence of imprisonment when the offending circumstances are sufficiently serious as to require a sentence of imprisonment but not so serious as to preclude there being good reason to suspend that sentence. It may be appropriate to suspend a sentence of imprisonment as a result of greater relative weight being given to the defendant’s personal circumstances (vis a vis the offending circumstances) at the suspension stage compared to the head sentence stage. Usually it will be a combination of these two matters, weighing the offending circumstances with the personal circumstances. Ultimately, however, if the offending circumstances are sufficiently serious, there will not be good reason to suspend the sentence however favourable be the defendant’s personal circumstances.[25]
[25] R v Malvaso (1989) 50 SASR 503 at 511 per King CJ (with whom Cox and O’Loughlin JJ agreed); R v Filipponi [2016] SASCFC 148 at [39] per Kourakis CJ (with whom Vanstone and Nicholson JJ agreed); R v Dell (2016) 126 SASR 571 at [53] per Doyle J (with whom Kelly and Parker JJ agreed).
Home detention sentence
With effect on 1 September 2016, new Division 3A was introduced into Part 3 of the Sentencing Act to provide an alternative sentencing option of service of a sentence on home detention. Section 33BB addresses the circumstances in which the option is available and the matters to be taken into account in the exercise of the discretion. Section 33BC addresses the conditions of home detention. Section 33BD addresses orders that may be made on breach of those conditions.
In the generality of cases in which a head sentence of imprisonment is imposed and there is not good reason to suspend the sentence,[26] the next step usually taken[27] is for the court to determine whether the defendant should serve the sentence on home detention on the basis that the sentence of imprisonment is suspended while the defendant complies with the conditions of home detention.[28]
[26] A sentence may not be suspended if the sentence is to be served cumulatively on or concurrently with another term of imprisonment then being served or about to be served.
[27] Sometimes no question of home detention arises due to the seriousness of the offence.
[28] Such a sentence is a form of suspended sentence: R v Neal [2017] SASCFC 44 at [62]-[78] per Kourakis CJ (with whom Nicholson and Parker JJ agreed).
Section 33BB provides:
33BB—Home detention orders
(1)     Subject to this section, if—
(a)     a court has imposed a sentence of imprisonment on a defendant; and
(b) the court considers that the sentence should not be suspended under Part 5; and
(c)     the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a home detention order).
(2)     A home detention order—
(a)     must not be made—
(i)unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place; or
(ii)if the defendant is being sentenced to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; and
(b)     should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer.
(3)The paramount consideration of the court when determining whether to make a home detention order must be the safety of the community.
(4)The court must also take the following matters into consideration when determining whether to make a home detention order:
(a)     the impact that the home detention order is likely to have on—
(i)any victim of the offence for which the defendant is being sentenced; and
(ii)    any spouse or domestic partner of the defendant; and
(iii)any person residing at the residence at which the prisoner would, if released, be required to reside;
(b)     any report ordered by the court from the CEO or any other person or body for the purpose of assisting the court in determining whether to make a home detention order;
(c)     any other matter the court thinks relevant.
The court only considers whether to make a home detention order after it has already imposed a sentence of imprisonment on the defendant and determined that good reason does not exist to suspend the sentence.[29]
[29] Criminal Law (Sentencing) Act 1988 (SA) section 33BB(1)(a) and (b); R v Filipponi [2016] SASCFC 148 at [22] per Kourakis CJ (with whom Vanstone and Nicholson JJ agreed); R v Dell (2016) 126 SASR 571 at [41] per Doyle J (with whom Kelly and Parker JJ agreed).

Before the court’s discretion to make a home detention order is enlivened, the court must be satisfied of three further preconditions:
1the defendant is a suitable person to serve the sentence on home detention;[30]
2the proposed residence is suitable and available for the defendant’s detention and the defendant will be properly maintained and cared for while detained therein;[31]
3the Department for Correctional Services has adequate resources for the proper monitoring of the defendant while on home detention by a home detention officer.[32]
[30] Criminal Law (Sentencing) Act 1988 (SA) section 33BB(1)(c); R v Filipponi [2016] SASCFC 148 at [23] per Kourakis CJ (with whom Vanstone and Nicholson JJ agreed); R v Dell (2016) 126 SASR 571 at [41] and [49] per Doyle J (with whom Kelly and Parker JJ agreed).
[31] Criminal Law (Sentencing) Act 1988 (SA) section 33BB(2)(a)(i).
[32] Criminal Law (Sentencing) Act 1988 (SA) section 33BB(2)(b). The use of the word “should” in paragraph (b) in contrast to the word “must” in paragraph (a) suggests that this criterion is more flexible than the two foregoing criteria in paragraph (a).
The first condition is directed to the defendant’s circumstances, including capacity to support himself or herself or be supported in private accommodation and likelihood of compliance with the conditions of home detention.[33] The subject matter of the second and third conditions is likely to be addressed by the home detention report ordinarily sought from the Department.
[33] R v Filipponi [2016] SASCFC 148 at [23] per Kourakis CJ (with whom Vanstone and Nicholson JJ agreed); R v Dell (2016) 126 SASR 571 at [49] per Doyle J (with whom Kelly and Parker JJ agreed).
Once the court’s discretion is enlivened, the paramount consideration is the safety of the community. The court must also take into account the impact on the victim, the defendant’s spouse/domestic partner and any other resident at the premises and any home detention report ordered by the court. Subject thereto, the same factors that are relevant to determining the head sentence and whether good reason exists to suspend the sentence of imprisonment are relevant to determining whether to make a home detention order.[34]
[34] R v Filipponi [2016] SASCFC 148 at [24] per Kourakis CJ (with whom Vanstone and Nicholson JJ agreed); R v Dell (2016) 126 SASR 571 at [42] and [53] per Doyle J (with whom Kelly and Parker JJ agreed).
Under section 33BC, the court has a discretion to restrict or extend the purposes for and conditions on which the defendant may leave the residence and may do so progressively over the period of home detention.[35] This gives the court a degree of flexibility in tailoring strict, moderate or light conditions to the particular case. As a matter of generality, the stricter the conditions, the greater the level of punishment and community protection (including deterrence).[36]
[35] R v Filipponi [2016] SASCFC 148 at [30]-[36] per Kourakis CJ (with whom Vanstone and Nicholson JJ agreed).
[36] R v Filipponi [2016] SASCFC 148 at [33] per Kourakis CJ (with whom Vanstone and Nicholson JJ agreed).
A home detention sentence involves a higher level of punishment, community protection and deterrence than a suspended sentence of imprisonment.[37] It involves a lower level of punishment, community protection and deterrence than a custodial sentence.[38] A sentence of home detention is an intermediate form of punishment between a suspended sentence and a custodial sentence.[39]
[37] R v Dell (2016) 126 SASR 571 at [54] per Doyle J (with whom Kelly and Parker JJ agreed).
[38] R v Dell (2016) 126 SASR 571 at [54] per Doyle J (with whom Kelly and Parker JJ agreed).
[39] R v Dell (2016) 126 SASR 571 at [40] per Doyle J (with whom Kelly and Parker JJ agreed).
It may be appropriate to impose home detention when the offending circumstances are sufficiently serious as to require the imposition of a sentence of imprisonment and not to suspend it but not so serious as to preclude home detention. It may be appropriate to impose home detention as a result of greater relative weight being given to the defendant’s personal circumstances (vis a vis the offending circumstances) at this stage compared to the head sentence and suspension stages. Usually it will be a combination of these two matters, weighing the offending circumstances with the personal circumstances. Ultimately, however, if the offending circumstances are sufficiently serious, it will be inappropriate to impose home detention however favourable be the defendant’s personal circumstances.[40]
[40] R v Filipponi [2016] SASCFC 148 at [37] per Kourakis CJ (with whom Vanstone and Nicholson JJ agreed); R v Dell (2016) 126 SASR 571 at [53] and [56] per Doyle J (with whom Kelly and Parker JJ agreed).
In R v Dell,[41] Doyle J (with whom Kelly and Parker JJ agreed) said:
The power to order that a defendant serve their term of imprisonment on home detention is intended to provide an alternative to custody within a prison. A home detention order sits in the sentencing hierarchy between a suspended sentence under Part 5 and a custodial sentence. That is, it is a more onerous punishment than a Part 5 suspended sentence of imprisonment, but a less onerous punishment than a custodial sentence.
…
… 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).
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.[42]
[41] (2016) 126 SASR 571.
[42] At [44], [57]-[58].
Usually it may be expected that, when a question whether the power conferred by section 33BB should be exercised arises, the court will first consider whether the preconditions are met and then whether to exercise the discretion. However, if the court determines that on the assumption that the preconditions are met it is inevitable that the discretion would be exercised against ordering that the sentence be served on home detention, it will not be necessary to determine whether the preconditions are met.[43]
[43] R v Dell (2016) 126 SASR 571 at [69] per Doyle J (with whom Kelly and Parker JJ agreed).
In R v Dell,[44] Doyle J (with whom Kelly and Parker JJ agreed) said:
While a conclusion that a defendant is a “suitable person” is a necessary condition of an exercise of the discretion to make a home detention order, I do not think that it will always be necessary to make an express finding on this issue. Bearing in mind the nature of sentencing remarks, and on the assumption that the range of matters relevant to the sentencing process will have been mentioned earlier in the remarks, it will generally be sufficient that the sentencing judge’s remarks make it plain that he or she has turned their mind to the exercise of the discretion under s 33BB(1), and set out the outcome of that exercise. It follows that I do not consider that the Judge in this case erred in not expressing a conclusion as to the suitability of Karl and Jimmy Dell for a home detention order. It was sufficient that the Judge addressed, and expressed a conclusion, in relation to the ultimate issue, namely that it was not appropriate to exercise the discretion to make home detention orders in their favour in this case.[45]
[44] (2016) 126 SASR 571.
[45] At [69].
Ground 1: suspension of sentence
The first ground of appeal is that the Judge erred in not suspending the sentence of imprisonment.
A decision to suspend, or not suspend, a sentence of imprisonment involves the exercise of a discretion. Reasonable minds might reasonably differ on the exercise of a discretion. Accordingly, an appellate court can only interfere if an appellant demonstrates that the exercise of the discretion miscarried in one of the ways identified in House v The King.[46]
[46] (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ. See R v Jongewaard [2009] SASC 346, (2009) 266 LSJS 283 at [40] per Doyle CJ (with whom Layton J and Kourakis J (as his Honour then was) agreed); R v Domarecki [2016] SASCFC 67 at [23] per Nicholson J (with whom Parker and Lovell JJ agreed).
The appellant contends that there is an outcome error (rather than a process error). To succeed on this ground, it is necessary for the appellant to establish that the decision not to suspend the sentence was unreasonable or plainly unjust.[47]
[47] R v Domarecki [2016] SASCFC 67 at [26] per Nicholson J (with whom Parker and Lovell JJ agreed).
The appellant points to the fact that the offending involved cannabis rather than a hard drug such as methylamphetamine or heroin, and involved a relatively small quantity (20 plants) in the scale of overall trafficking offences; his physical and mental health and financial circumstances that led to the commission of the offences; his good character, good work record and family responsibilities; his prospects of rehabilitation; and the fact that his family would suffer substantial financial hardship as a result of his being taken into custody.
Each of the matters relied upon by the appellant is entitled to be given due weight in favour of suspension, but is also required to be weighed against the nature and extent of the appellant’s offending. The question is not whether it was open to the Judge to find good reason to suspend or whether this Court would itself have found good reason to suspend. The question is whether the Judge’s decision not to suspend the sentence was unreasonable or plainly unjust. This the appellant has failed to demonstrate.
Ground 1 is not established.
Ground 2: home detention
The second ground of appeal is that the Judge erred in not ordering that the sentence be served on home detention. The appellant contends that the Judge made two process errors and an outcome error in this respect.
Process errors
The first asserted process error is that the Judge conflated the question whether the appellant is a suitable person to serve the sentence on home detention with the question whether the discretion should be exercised to make a home detention order. The second asserted process error is that the Judge conflated the question whether there is good reason to suspend with the question whether a home detention order should be made.
The Judge gave the following reason for not suspending the sentence and not making a home detention order:
Your crimes are so serious and the need to deter others is so significant that good reason to suspend your sentence cannot be found to exist and, for the same reasons, you are unsuitable for home detention and a home detention order cannot properly be made in your case.
It is clear that the Judge treated the questions whether the appellant is suitable for home detention and whether a home detention order could properly be made as a single question, the answer to which turns on the same criteria. It is clear that the Judge construed section 33BB as involving a single stage question analogous to the single stage question whether there is good reason to suspend a sentence and the sentence should be suspended under section 38.[48] The Judge did not say that, regardless of whether the appellant was a “suitable person”, it was not appropriate to make a home detention order.[49]
[48] See Wessling v Police [2004] SASC 51, (2004) 88 SASR 57 at [27] per Besanko J; R v O’Toole [2013] SASCFC 18 at [50] per Peek J (with whom Sulan J agreed).
[49] On the contrary, the Judge said explicitly that the appellant was not a “suitable person”. Contrast the potential approach identified by Doyle J in R v Dell (2016) 126 SASR 571 at [69] in the passage extracted at [62] above.
The Judge’s approach proceeded from an erroneous construction. This Court has subsequently authoritatively determined that section 33BB involves a “two stage approach” in which two separate questions arise: whether the defendant is a suitable person to serve the sentence on home detention according to discrete criteria and whether the discretion should be exercised in favour of ordering home detention.
In R v Filipponi,[50] Kourakis CJ (with whom Vanstone and Nicholson JJ agreed) said:
Subparagraph (c) is directed towards the suitability of the person to serve a sentence on home detention. That criterion addresses primarily the subjective circumstances of the defendant, like his or her capacity to support himself or herself, or be supported by others in private accommodation, and whether he or she is likely to comply with the conditions of home detention.[51]
[50] [2016] SASCFC 148.
[51] At [23].
In R v Dell,[52] Doyle J (with whom Kelly and Parker JJ agreed) said:
Despite the general analogy with the approach taken to the suspension of sentences in these provisions in Part 5 of the Sentencing Act, I do not consider the one stage approach to be appropriate in the present context. The nature and structure of the approach indicated by s 33BB differs materially from that adopted by the legislature in the contexts of ss 38(1) and 38(2ba). …
In my view, given the terms and structure of s 33BB, there is no warrant or need for a one stage approach. The language and structure of the section is such that it is more naturally susceptible of the two stage approach that I have outlined. I consider that is the preferable construction of the section. This is consistent with the approach recently taken by this Court in R v Filipponi.[53]
[52] (2016) 126 SASR 571.
[53] At [49], [50].
While it is understandable why the Judge adopted a one stage approach in light of the approach held appropriate to the question of suspension under section 38 before this Court had considered the appropriate approach under section 33BB, nevertheless the Judge proceeded erroneously by adopting such an approach.
On the material before the Judge, the appellant was a suitable person to serve the sentence on home detention. On the material before the Judge, the appellant and C between them had the financial capacity to support their family if the appellant were not serving a custodial sentence. The proposed residence was appropriate, being the family home owned by the appellant and C. There was no reason to consider that the appellant was not likely to comply with the conditions of home detention and his prospects of rehabilitation appeared good. At the hearing of the appeal, the Director conceded that on the material then known the appellant was a suitable person to serve the sentence on home detention.
The appellant has established the first process error.
In the passage extracted at [72] above, it is not apparent that his Honour gave separate and independent consideration to the question whether to exercise the discretion to order that the appellant serve the sentence on home detention as distinct from the question whether there is good reason to suspend the sentence of imprisonment. The passage is ambiguous: on the one hand it might mean that the Judge weighed the seriousness of the offence against the personal factors in deciding against home detention in the same manner as in deciding against suspension; or on the other hand it might mean that the Judge weighed them afresh but happened to end up with the same negative result. There is nothing in the Judge’s reasons which recognises that a crime might be too serious and the need for punishment and deterrence too great to allow suspension of a sentence but not to preclude serving the sentence on home detention. There is nothing in the Judge’s reasons which recognises that greater weight might potentially be given to personal circumstances when considering whether a sentence should be served on home detention as opposed to whether it should be suspended.
As long as it is apparent that a judge has engaged in a separate weighing process in respect of home detention as opposed to suspension, a judge is not required to give reasons articulating why the weighing process has that result and it would be difficult to do so. If the Judge had first addressed whether the preconditions for ordering that the sentence be served on home detention had been met and then turned to the weighing process, this in itself would probably have demonstrated that the judge was approaching that question afresh as distinct from the question of suspension. However, because the Judge rolled up whether the appellant was a suitable person, whether he should serve the sentence on home detention and whether the sentence should be suspended in the passage extracted at [72] above, it cannot be safely inferred that the Judge correctly approached the question in the absence of this being demonstrated by his Honour’s sentencing remarks.
Fresh exercise of sentencing discretion
As noted above, this Court ordered that the Department provide a report under section 33BB(4)(b). That report and its consequences demonstrate that the appellant is not a suitable person to serve his sentence on home detention.
The appellant was prepared to stand by at the hearing of the appeal on 17 March 2017 while the Court was inadvertently misled by his counsel as to his personal circumstances and in particular his relationship with C. It is appropriate to draw the inference that he did so because he perceived (correctly) that it improved his prospects of this Court on any resentencing exercising the discretion to order that he serve his sentence on home detention (at the family home) and to reject the suggestion that he thought that the current position was irrelevant.
The appellant also either misled the Department when saying that he had been in a stable relationship with S for ten months, had lived off and on in her house (which would have been in breach of a condition of his bail that he reside at the family home) and was step-father to her two children (each of which was calculated to enhance his prospects of release on home detention at S’s house) or misled this Court on 5 May 2017 when instructing his counsel that these statements in the home detention report were incorrect and he only had a friendship with S. A defendant who invites the Court to order that a sentence of imprisonment be served on home detention must be honest and frank in disclosing relevant information to the Department and the Court.
A defendant who knowingly misleads the Department or the Court in respect of relevant information is unlikely to be suitable to serve his or her sentence on home detention. The appellant also admitted that he breached the condition of his bail to be of good behaviour by smoking cannabis on a daily basis. In this respect the sentencing Judge was misled by the appellant’s deployment of Ms Whitelock’s report.

Given the appellant’s conduct and the matters of which this Court has become aware since the initial hearing of the appeal on 17 March, the appellant is not a suitable person to serve his sentence on home detention and in any event it would not be appropriate to exercise any discretion to order that he serve his sentence on home detention.
Conclusion
I would dismiss the appeal.
PARKER J: I agree with Vanstone and Blue JJ that the appeal should be dismissed.
It is appropriate that I make some brief observations. I take the same view as Vanstone J of the observations made by Doyle J (with whom Kelly J and I agreed) in R v Dell where his Honour spoke of the two stage enquiry under s 33BB(1) of the Criminal Law (Sentencing) Act 1988.[54] In my view the point being made by Doyle J was that after a judge has decided that a sentence of imprisonment should be imposed and that it should not be suspended under Part 5, two discrete issues must be considered before the judge can determine that the sentence should be served on home detention.
[54] (2016) 126 SASR 571 at [45] – [48].
One issue is whether the defendant is a “suitable person” to serve the sentence on home detention. The other set of issues is whether, having regard to all relevant sentencing considerations and also the matters listed in s 33BB(3) and (4), the sentencing discretion should be exercised to order that the sentence should be served on home detention. Of course, as Doyle J also observed in Dell, the matters referred to in s 33BB(2) operate as a mandatory pre-condition to a finding that the sentence should be served on home detention.
In my view, Doyle J was not suggesting in Dell that these two discrete considerations must be considered in a particular order. Furthermore, his Honour held in Dell that it would not always be necessary to make an express finding on both issues.[55] The sentencing judge in Dell had not expressed a view as to the suitability of the defendants for home detention. However, it was sufficient, on the facts of that case, for the judge to conclude that the discretion should not be exercised to order home detention.
[55] Ibid at [67].
Consistently with that finding by Doyle J in Dell, I agree with Vanstone J that there will be many cases where a traditional suspension under Part 5 or a sentence of home detention under Division 3A of Part 3 will both plainly be inappropriate under ordinary sentencing principles. Where such a finding is appropriately made it is not necessary to also consider the suitability of the defendant for home detention.
The sentencing judge seems to have concluded that a suspension under Part 5 and a home detention sentence were both plainly inappropriate under ordinary sentencing principles. However, in light of both the subjective and objective circumstances of the offending that conclusion was by no means as clear as the judge found. For that reason it was necessary on the facts of this case for the judge to consider expressly and separately both of the considerations referred to by Doyle J in Dell. Nevertheless, because of the matters that were later brought to the attention of this Court by the content of the home detention report, the conclusion reached by the judge was correct.
I agree with Vanstone J and with Blue J that the facts now known to this Court indicate that the appellant is not a suitable person to serve his sentence on home detention.