R v Hunt

Case [2018] SASCFC 137

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v HUNT

[2018] SASCFC 137

Judgment of The Court of Criminal Appeal

(The Honourable Justice Kelly, The Honourable Justice Stanley and The Honourable Justice Hinton)

18 December 2018

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS

This is an appeal against sentence.

The appellant pleaded guilty to a range of offending relating to her addiction to methylamphetamine. The judge imposed a single sentence pursuant to s 26 of the Sentencing Act 2017 (SA) to be served on home detention. Subsequently the appellant breached the terms of the home detention order twice by using methylamphetamine. On application by the prosecution, the judge revoked the home detention order.

The appellant appeals against the sentence on the grounds that the sentencing judge erred in that she did not give the appellant full credit for time spent in custody; and that the sentence imposed is manifestly excessive.

The appellant also appeals against the subsequent decision to revoke the home detention order on the grounds that the judge erred in failing to find proper grounds to excuse the breach; and in refusing the appellant’s application for an adjournment to obtain an updated psychological report.

Held, dismissing the appeal per Stanley J (Kelly J agreeing) and per Hinton J:

1. The judge’s miscalculation of the time the appellant spent in custody is a technical error amenable to correction pursuant to s 20 of the Sentencing Act 2017 (SA).

2.  The sentence imposed should be rectified by reducing both the head sentence and non-parole period by 18 weeks.

3.  While the sentence imposed by the judge was not at the lower end of the range, it could not be characterised as falling outside the range available in these circumstances.

4.  Failure to reduce the sentence further for reasons of totality is not a basis upon which an appeal court will interfere with the exercise of the sentencing discretion.

5. The sentence imposed pursuant to s 26 of the Sentencing Act 2017 is not manifestly excessive.

6.  Revoking the home detention order will not necessarily result in consequences that are disproportionate to the breach in a way in which they may be if the appellant’s sentence of imprisonment had been suspended.

7.  The appellant has failed to demonstrate that the exercise of the discretion to revoke the home detention order is infected by error.

8.  A sentencing judge has a wide discretion to order any report that the judge considers may assist the judge in determining a sentence.  It does not follow that in every case in which it is requested, the judge is required to order a report.  A judge cannot be fettered in his or her discretion to order such reports.

9.  The refusal to adjourn for the purpose of a…

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R v Hunt [2018] SASCFC 137
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[2018] SASCFC 137
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CaseChat Overview and Summary

The appeal concerned the decision of a judge to revoke an appellant's home detention order. The appellant had been ordered to serve her term of imprisonment on home detention. She subsequently committed two breaches of this order by consuming methylamphetamine, which was confirmed by positive urine analyses. The appellant admitted these breaches. The judge revoked the home detention order pursuant to section 73 of the Sentencing Act. The appellant contended that the judge erred in revoking the order, arguing that proper grounds existed to excuse her failure to comply, and that the judge should have granted an adjournment to obtain a further psychological report.

The Court of Appeal was required to determine whether the judge erred in revoking the home detention order. Specifically, the Court considered whether the judge failed to find that proper grounds existed to excuse the appellant's breaches, and whether the judge erred in failing to grant an adjournment for a further psychological report, thereby potentially contravening section 73(13) of the Sentencing Act or the principles of procedural fairness. The appellant argued that the revocation was disproportionate to the nature of the breaches, which involved methylamphetamine use but were not accompanied by further substantive offending.

The Court held that the decision to revoke a home detention order is discretionary and would only be overturned on appeal if a *House v The King* error was demonstrated. The appellant had previously been warned about the consequences of further breaches after her first breach, and was given an adjournment to demonstrate that the breach was uncharacteristic. However, she breached the order again shortly thereafter. Section 73(1) of the Sentencing Act mandates revocation if a person breaches a condition of the order, unless subsection (2) applies, which allows the court to refrain from revoking if the failure to comply was trivial or there were proper grounds for excusing it. The appellant submitted that her breaches occurred in a stressful environment with drug users present, and that she was battling her addiction, exacerbated by media reports concerning her case. Despite these submissions, the Court found that the appellant had been warned and had reoffended shortly after the first breach.

The Court dismissed the appeal, finding no error in the judge's decision to revoke the home detention order. The judge's decision was within the scope of his discretion, and the appellant had failed to demonstrate the necessary grounds for intervention on appeal.

Orders

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Background

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Evidence

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Decision

Reasons for decision

STANLEY J (dissent)
I would dismiss this ground of appeal.Appeal against the decision to order revocation of the home detention order On 5 June 2018 the Court ordered that the appellant serve her term of imprisonment on home detention. The appellant committed two breaches of her home detention order by consuming methylamphetamine. This was evidenced by positive urine analyses on 13 June 2018 and 12 July 2018. The appellant admitted the breaches. The judge revoked the home detention order pursuant to s 73 of the Sentencing Act. The appellant contends that the judge erred in revoking the home detention order on two grounds: first, on the basis that the judge erred in failing to find that proper grounds existed upon which the Court should have excused her failure to comply with the conditions of home detention; and second, on the basis the judge erred in failing to grant an adjournment to permit the appellant to obtain a further psychological report before ordering revocation, either contrary to the requirements of s 73(13) of the Sentencing Act or contrary to the principles of procedural fairness. Failure to find proper grounds The decision to revoke the home detention order is discretionary. Accordingly, the Court will only intervene if a House v The King error is demonstrated. The appellant appeared before the Court in relation to the first breach on 10 July 2018. The appellant provided a letter to the Court explaining why this breach occurred and assuring the Court she had taken steps to ensure there would be no further breaches. The appellant was warned of the likely consequences if she did so. An adjournment was given for the appellant to demonstrate that this was an uncharacteristic aberration. She breached the conditions of the home detention order again just two days later. Section 73(1) and (2) provide:(1) Subject to this section, if the court that imposed a home detention order on a person is satisfied that— (a) a person subject to a home detention order has breached a condition of the order; or (b) the residence specified by the court at which the person is required to remain throughout the period of the home detention order is no longer suitable for the person and no other suitable residence is available for the person's detention, the court must revoke the home detention order and order that the balance of the sentence the person was serving on home detention be served in custody. (2) Despite subsection (1)(a), if the court is satisfied that the failure of the person to comply with the conditions of the home detention order was trivial or there are proper grounds on which the failure should be excused, the court— (a) may refrain from revoking the order; and (b) may impose a further condition on, or revoke or vary a condition of, the order. The appellant submits that the revocation of the home detention order was disproportionate to the nature of the appellant’s breaches. The nature of the breaches was the use of methylamphetamine. However, she submits that the breaches were not accompanied by any substantive offending of the type she committed that resulted in the sentence imposed by the Court. The appellant submits this occurred in circumstances where she had difficulty in finding a suitable home detention address. At the time of the first breach she was resident in a house where the other occupant was also a user of methylamphetamine. Other drug users frequented the address. In these circumstances she succumbed to temptation. The appellant sought to remove herself from the source of temptation and changed address. By this time, however, she was again battling her addiction and found herself using again when she felt under stress due to media reports concerning her home detention sentence which referred to the death of her son and the suspicion that she had some involvement in his death.

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