R v Hunt - [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 further psychological report being obtained involved the exercise of a discretion. No error in the exercise of the discretion has been demonstrated.
Sentencing Act 2017 (SA) s 20, s 26, 44(2), s 71, s 73; Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 30(2), s 58; Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA), referred to.
R v Tsonis [2018] SASCFC 86; R v Kuci [2016] SASCFC 136; R v Singh [2018] SASCFC 89; R v Summers [2017] SASCFC 141; Kentwell v The Queen (2014) 252 CLR 601; R v Dephin (2001) 79 SASR 429; The Queen v Morse (1979) 23 SASR 98; R v Buckman (1988) 47 SASR 303; R v Smith [2014] SASCFC 98, discussed.
R v Hussey [2013] SASCFC 41; R v Sansone [2015] SASCFC 168; R v Baldetti [2008] SASC 232; R v Hudson (2016) 125 SASR 171; R v Lutze (2014) 121 SASR 144; R v Scott [2011] SASCFC 149; R v Majors (1991) 27 NSWLR 624, considered.

R v HUNT
[2018] SASCFC 137
Court of Criminal Appeal: Kelly, Stanley and Hinton JJ

KELLY J: I agree that the sentence should be rectified pursuant to s 20 of the Sentencing Act 2017 in accordance with the reasons of Stanley J. I would dismiss the appeal against sentence and the appeal against the revocation of the home detention order for the reasons given by Stanley J.
I would add that there is nothing in the authorities referred to by Stanley J which would have precluded the appellant from making an application for rectification before the sentencing Judge. In my view, that is the preferred course.
STANLEY J.
Introduction
The appellant pleaded guilty to a range of offending between July 2015 and September 2016. She was sentenced, pursuant to s 26 of the Sentencing Act 2017 (SA) (Sentencing Act), to a single sentence of three years and five months imprisonment, with a non-parole period of one year and eight months. The Court ordered the sentence be served on home detention pursuant to s 71 of the Sentencing Act. The appellant appeals against the sentence imposed by the judge.
It is common ground between the parties the sentencing judge erred in fixing sentence in that she did not give the appellant full credit for time spent in custody.
Subsequently the appellant breached the terms of the home detention order by using methylamphetamine on two occasions. On the application of the DPP, the judge revoked the home detention order. As a result, the appellant is required to serve the remainder of her sentence in custody.
The appellant also appeals against the decision to revoke the home detention order.
The sentence
The appellant is a drug addict. The offending for which she fell to be sentenced relates substantially, if not wholly, to her addiction to methylamphetamine. Between 2 July 2015 and 26 September 2016 the appellant committed 38 offences on 10 or 11 separate days. Those offences included aggravated serious criminal trespass in a place of residence, theft, attempted theft, providing false information to second hand dealers, deception, unlawful possession, driving while disqualified, breaching bail and possessing controlled drugs with intent to supply. A number of these offences were committed while she was on simple bail or home detention bail. Although the value of the items stolen was greater than the money the appellant was able to realise from pawning and selling the stolen goods and withdrawing money from her victims’ bank accounts, the appellant obtained cash in the sum of $31,021.
The appellant pleaded guilty to this offending.
In imposing sentence the judge determined actual sentences as follows:
1.For one count of theft by receiving: seven months imprisonment reduced by 30 per cent from a notional starting point of 10 months;
2.For one count of drive while disqualified: two months and three days imprisonment reduced by 30 percent from a notional starting point of three months;
3.For one count of aggravated serious criminal trespass, 10 counts of theft and seven counts of attempted theft: two years and six months imprisonment reduced by 30 per cent from a notional starting point of three years and six months;
4.For one count drive while disqualified: two months and three days imprisonment reduced by 30 percent from a notional starting point of three months;
5.For two counts of possession of a controlled drug for supply: ten months and 24 days imprisonment reduced by 10 per cent from a notional starting point of 12 months; and
6.For one count of theft, one count of dishonestly dealing with documents, one count of misuse of personal identification information, two counts of deception, one count of breach of bail and two counts of unlawful possession: two years and six months imprisonment reduced by 30 per cent from a notional starting point of three years and six months.
The judge entered convictions but imposed no further penalty in relation to two counts of providing false information to a second hand dealer, two counts of stating false personal details, one count of driving unregistered, one count of failing to lodge an application to transfer the registration of a vehicle and one count of driving while unauthorised.
This aggregates to a period of six years and 10 months.[1]
[1] In fact the judge miscalculated the sum of the notional head sentences imposed, calculating it as six years and four months. This error, in favour of the appellant, was overtaken by the subsequent steps in the sentencing process.
The judge then gave the appellant the benefit of partial concurrency and made allowance for totality and reduced the notional head sentence to five years.
The judge then gave the appellant credit for time in custody and on home detention bail. The judge fixed a single sentence pursuant to s 26 of the Sentencing Act of three years and five months. The judge then imposed a non-parole period of one year and eight months and ordered that the term of imprisonment imposed be served on home detention pursuant to s 71 of the Sentencing Act.
The appellant appeals against the sentence on the grounds that the judge erred in failing properly to take into account the time spent in custody and the sentence imposed is manifestly excessive.
Failure properly to take into account time in custody
In her sentencing remarks the judge indicated that she would deduct 19 months from the head sentence she intended to impose to reflect the appellant’s time in custody. Her Honour said:
You were on home detention bail from 7 July 2016 until 26 September 2016. You have been in custody since your arrest on 26 September 2016. You are entitled to credit for that time in gaol, less a total of nine weeks in which you are were custody on other matters.
The respondent conceded that the judge mistakenly calculated the time spent in custody on the offences for which the appellant was to be sentenced. The error related to nine weeks the appellant spent in custody between 5 May 2016 and 7 July 2016. The respondent accepts that the judge intended the appellant should be given credit for this time in custody. It appears the judge mistakenly treated this nine-week period as being time served in custody on other matters. In fact, this was time served in custody in respect of the offences for which she fell to be sentenced. It appears the mistake arose from a submission put during sentencing submissions by the prosecution. The prosecutor submitted:
In terms of any sentence that your Honour may impose your Honour can backdate any sentence to 26 September 2016. It is also my submission that your Honour can take into account a total of nine weeks spent in custody, and that encompasses the time in custody that overlapped on the 12 July 2015 and 5 May 2016 matters at a time where bail had been revoked on both of these files. Your Honour should also have regard to the fact that the defendant was held in custody for a short amount of time in relation to warrants issued when she failed to attend court.
Section 44(2) of the Sentencing Act provides:
If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and –
(a)make an appropriate reduction in the term of the sentence; or
(b)[not presently relevant].
…
In R v Tsonis[2] the Court of Criminal Appeal recently analysed the correct approach to be taken by a sentencing judge in giving credit for time spent in custody and on home detention bail.[3] In Tsonis the Court was considering the predecessor provision to s 44(2), namely, s 30(2) of the Criminal Law (Sentencing) Act 1988 (SA). Section 30(2) is in comparable terms to s 44(2). In Tsonis the Court accepted that a practice had developed in accordance with s 30(2) of giving a defendant full credit for the time spent in custody. This is generally calculated to the day, although the Court in Tsonis recognised that mathematical precision is not necessarily required.[4]
[2] [2018] SASCFC 86.
[3] [2018] SASCFC 86 at [67]-[75].
[4] [2018] SASCFC 86 at [69].
The Court in Tsonis held that in light of the usual practice of giving full credit for time spent in custody, there must be good reason reflecting sound sentencing principles before it is appropriate to give less than full credit. Further, where in the exercise of the Court’s discretion it is decided to give less than full credit, it is incumbent upon the sentencing judge to disclose both the extent of the credit given for the time spent in custody (and hence the extent of the shortfall) and the reason or reasons for giving less than full credit.[5]
[5] [2018] SASCFC 86 at [75].
I accept that it was the judge’s intention to give the appellant full credit for time she had spent in custody. I am reinforced in this view by the absence of any explanation by the judge for her failure to do so.
In this case it is apparent that, notwithstanding the judge’s intention, in accordance with the usual practice, to give the appellant full credit for the time spent in custody, she mistakenly not only failed to give credit for the time spent in custody from 5 May 2016 to 7 July 2016 but she attributed this time spent in custody to other offending and thereby deducted that nine weeks from the period which the appellant had spent in custody after 26 September 2016. The error resulted in the sentence being 18 weeks longer than was intended by the judge.
The issue for the Court is whether this is an error which vitiates the exercise of the sentencing discretion requiring the sentence to be quashed and for this Court to resentence the appellant, or whether the judge’s miscalculation is a technical error amenable to correction pursuant to s 20 of the Sentencing Act.
The appellant submits the Court should adopt the former approach. The respondent submits the Court should adopt the latter approach.
Section 20 provides:
(1) A court that imposes, or purports to impose, a sentence on a defendant, or a court of coordinate jurisdiction, may, on its own initiative or on application by the DPP or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
(2) The DPP and the defendant are both parties to proceedings under this section.
Section 20 is in identical terms to its predecessor provision, s 9A of the Criminal Law (Sentencing) Act 1988 (SA) (1988 Act).
Section 9A was considered in a series of decisions of the Court of Criminal Appeal. In R v Kuci[6] Kourakis CJ, with Blue and Lovell JJ agreeing, addressed the course an appeal court should adopt where arithmetic errors made by the sentencing judge vitiated the sentences. The Chief Justice said:[7]
In the ordinary course, errors of this kind should be dealt with in the sentencing court pursuant to s 9A of the Criminal Law (Sentencing) Act 1988 … if arithmetical “slips” of the kind made by the judge resulted in a fresh exercise of the sentencing discretion on appeal, there would be understandable uncertainty in the administration of the criminal law.
[6] [2016] SASCFC 136.
[7] [2016] SASCFC 136 at [6]-[7].
The Chief Justice indicated that he would correct the arithmetic errors pursuant to s 9A exercising the jurisdiction of the Supreme Court conferred by the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) and by s 9A.
Subsequently the Court of Criminal Appeal in R v Singh[8] rejected a challenge to the correctness of the Court’s earlier decision in Kuci. Blue J said:[9]
Subsection 9A(1) confers on a sentencing court a power amongst other things to “rectify an error of a technical nature”. The concept of rectification is well known in the general law being a remedy available in equity to correct an instrument (such as a formal contract) to accord with the true intention of the party or parties executing it, such true intention being manifested by the anterior conduct of the relevant party or parties (such as an anterior less formal agreement). The concept of rectification in subsection 9A(1) is similar. The power conferred by that subsection is only available when the true intention of the sentencing judge is ascertained (either by the sentencing judge or when the sentencing judge’s intention can be confidently ascertained by this Court exercising power under the Auxiliary Act) and when the nature of the identified error is technical.
[8] [2018] SASCFC 89.
[9] [2018] SASCFC 89 at [8].
At issue in this appeal is whether the mistake made by the judge in relation to giving the appellant credit for time spent in custody is “an error of a technical nature”.
In Singh the sentencing judge mistakenly imposed a head sentence of imprisonment of two years and five months in circumstances in which it was common ground that the judge intended to impose a head sentence of two years to reflect time spent on remand. The Court treated this as an error of a technical nature which was amenable to rectification pursuant to s 9A.
In R v Summers[10] Peek J, with whom Nicholson and Bampton JJ agreed, dismissed an appeal against the sentencing judge’s use of s 9A to rectify the commencement date of sentences he intended to impose for offences of serious criminal trespass and robbery. In exercising the power pursuant to s 9A the judge identified the circumstances in which the section may properly be used, including where there was a need to take proper account of time spent in custody referable to the sentenced offence, citing R v Hussey,[11] R v Sansone,[12] R v Baldetti[13] and R v Hudson.[14]Referring to the judge’s reasons, Peek J said that he generally agreed with the judge’s remarks, however, he sought to emphasise that the categories identified by the judge which would warrant the exercise of the power conferred by s 9A involved or were limited to the correction of patent errors as distinct from later reconsideration or second thoughts. He referred to the category set out above and said that he considered it would be better expressed as follows:[15]
To correct errors made in calculating or determining: periods of custody, or dates of commencement or conclusion of sentences or non-parole periods, in the context of taking proper account of time spent in custody referable to the subject offending.
[10] [2017] SASCFC 141.
[11] [2013] SASCFC 41 at [8].
[12] [2015] SASCFC 168 at [8]-[9].
[13] [2008] SASC 232 at [10]-[11].
[14] (2016) 125 SASR 171 at [24]-[25].
[15] [2017] SASCFC 141 at footnote 21.
In Hussey[16] the Court of Criminal Appeal utilised s 9A to rectify an error made by a sentencing judge in backdating a suspended sentence of imprisonment to account for time spent in custody. A suspended sentence of imprisonment cannot be backdated.
[16] [2013] SASCFC 41.
In Baldetti[17] the Court of Criminal Appeal considered that the sentencing judge could use s 9A to rectify an error he made in reducing a sentence and non-parole period to make allowance for time spent in custody. The technical nature of the error occurred where the judge imposed two terms of imprisonment for separate offending. The judge then accumulated the terms of imprisonment and fixed a head sentence and a non-parole period. Having done so he then reduced each to reflect time spent in custody. That was an erroneous approach. The judge should have made the reduction from one or other of the two sentences which he eventually accumulated. The position would have been different if the judge had utilised s 18A to impose one sentence in respect of all offences.
[17] [2008] SASC 232.

In my view the errors made by the sentencing judge in this case are errors of a technical nature. The judge’s sentencing remarks plainly evince an intention on the judge’s part to give full credit to the appellant for the time she had spent in custody for these offences. Because the judge misunderstood the basis upon which the appellant was in custody for the period from 5 May 2016 to 7 July 2016 the head sentence was 18 weeks longer than the judge intended. In my view this is a paradigm example of where the exercise of the power conferred by s 20 is warranted.
On the hearing of the appeal a question arose as to whether the Court of Criminal Appeal is a court of coordinate jurisdiction within the meaning of s 20 of the Sentencing Act. In Kuci the Court of Criminal Appeal proceeded on the basis that it was a court of coordinate jurisdiction pursuant to s 9A of the 1988 Act. That approach was subsequently adopted in Singh. This Court is bound by the reasons of the Court of Criminal Appeal in Kuci and Singh. In Kuci and Singh the Court of Criminal Appeal exercised the power to correct a technical error in sentencing made by a judge of the District Court conferred by the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) and by s 9A. On the appeal in this matter no party submits that those cases were erroneously decided. This is not the occasion to revisit the question of whether or not this Court is a court of coordinate jurisdiction to the District Court for the purposes of the exercise of the powers pursuant to s 20. If the Court is to revisit that question it should be after hearing full argument.
For these reasons I would rectify the sentence imposed by the sentencing judge by reducing the head sentence by 18 weeks to three years and 26 days imprisonment.
I would reduce the non-parole period by 18 weeks. That results in a rectification of the non-parole period to one year, three months and 26 days.
Correction pursuant to s 20 does not require a review of the sentence or the imposition of a sentence which is in substance new or different.[18] The error does not vitiate the sentence.[19] The Court is not therefore quashing the whole of the original sentence as it would if the appeal was allowed.
[18] R v Singh [2018] SASCFC 89 at [62].
[19] R v Kuci [2016] SASCFC 136.
This means that the separate order that the sentence be served on home detention remained in force unchanged and unaffected. The nature of an order pursuant to s 71 that a defendant serve the sentence on home detention is separate and distinct from the order imposing the head sentence and the non-parole period.
Accordingly, the order for home detention remained in force from 5 June 2018 when the appellant was sentenced. Any breaches of that order were to be dealt with pursuant to s 73 of the Sentencing Act. The only difference is that the balance of any sentence to be served in prison must be calculated on the basis of the adjusted sentence and not the sentence originally imposed by the sentencing judge. That results in the appellant serving a term of imprisonment from 19 July 2018 of two years, 11 months and 10 days with a non-parole period of 14 months.
In this context I should add that the error made by the sentencing judge when calculating the notional head sentences for each of the offences for which she intended to impose a sentence of imprisonment resulted in a starting point of six years and four months when in fact the total was six years and 10 months. Accordingly, the resulting imposition of a five-year head sentence pursuant to s 26 meant the sentencing judge believed the reduction she gave for concurrency and totality was in the order of one year and four months whereas in fact it was one year and 10 months.
This was not a material error which vitiates the sentencing discretion.
First, the identification of a notional sentence in circumstances where there are so many offences will never be a strictly arithmetical exercise. The identification of a notional sentence is not the same as fixing a sentence. The process is designed to promote transparency, enable the defendant to understand the seriousness of individual offences and ensure that concurrency has been taken into account. When ultimately s 26 is used, the identification of notional sentences will frequently involve imprecision. This can be so notwithstanding the requirements of the discount legislation. In light of this process not being one of exactitude, the arithmetic error was of no moment.
Second, the error clearly advantaged the appellant. When an arithmetic error of this nature occurs and it benefits the appellant, the error cannot be described as material in the context of an appeal by the appellant against sentence. As was recognised by the plurality in Kentwell v The Queen,[20] not all errors in the sentencing of offenders vitiate the exercise of the sentencing discretion.
[20] [2014] HCA 37, (2014) 252 CLR 601.
Manifest excess
The appellant submits that the sentence imposed is manifestly excessive. Of course, this ground of appeal must now be considered on the basis of the sentence which this Court has rectified pursuant to s 20 of the Sentencing Act i.e. a head sentence of three years and four weeks and a non-parole period of one year and four months. Nonetheless the appellant submits that there are two relevant factors to be taken into account when assessing the final head sentence. First, the sentence did not include a period of more than 22 months that she was in custody before she was sentenced; and second, the final head sentence did not reflect the discounts she was given for her early pleas of guilty.
The appellant submits that in considering the question of manifest excess the starting point is an effective head sentence of more than seven years.
She submits that the vast majority of the offending was relatively minor but for the offence of aggravated serious criminal trespass in October 2015 and the theft / dishonest dealing offences in April and May 2016. While the drug offending comprises major indictable offences, nonetheless they were at the very low end of the scale for offending of this type. The appellant submits that given the nature of the offending was motivated by her underlying addiction, consideration of her personal circumstances are compelling.
The appellant has had a tragic life. Her childhood was marked by neglect and physical and sexual abuse. She became pregnant at the age of 16. Her relationship with the father of the child ended when he became involved with her mother. She had a second child who died as an infant. The appellant’s partner was charged with his murder. He was convicted although this conviction was overturned on appeal and he was acquitted on a retrial. During the retrial she was cross-examined to the effect that she was involved in the death of her son. After the death of her son she became addicted to methylamphetamine. The appellant gave birth to a third child while in custody. She has been involved in a string of abusive relationships. She has little by way of relevant prior offending.
The appellant submits that the notional starting point for this course of offending was far too high. The objectively most serious offence was the aggravated serious criminal trespass in a place of residence. The appellant submits that in respect of that offending the sentencing guidelines provided in R v Delphin[21] are well known and do not, even in combination with the other less serious offending in this case, justify the overall starting point.
[21] [2001] SASC 203, (2001) 79 SASR 429.
The factors to be considered in deciding whether a sentence is manifestly excessive are well known and are set out in the reasons of King CJ in The Queen v Morse.[22] In my view the sentence imposed pursuant to s 26 is not manifestly excessive.
[22] (1979) 23 SASR 98 at 99.
The amount of money stolen, the serious nature of the criminal trespass in a place of residence when the householders were home asleep, the persistent and repetitive nature of the appellant’s offending over a 15-month period and the fact she continued to offend even after obtaining $28,720 from one of the victims, all inform the objective seriousness of her offending.
The appellant’s addiction to methylamphetamine and her association with a series of abusive men go to explain why she chose to offend, but in light of the number of offences, the Court has to give considerable weight to considerations of personal and general deterrence. The courts of this State are too well aware of the fact that drug addiction frequently lies at the heart of this kind of offending. Courts must continue to impose penalties that deter those in this position from causing loss and anguish to law-abiding members of the community solely for the purpose of feeding their addictions.
The appellant’s reliance on Delphin is misplaced. In Delphin the Court of Criminal Appeal indicated that generally in the ordinary case of a plea of guilty to a single serious criminal trespass in a place of residence, where the intention upon entry is larceny, the penalty for a first offence should be in the order of 20 to 24 months. In this instance the offence is not serious criminal trespass but aggravated serious criminal trespass. In Delphin the Court was at pains to make clear that in cases of aggravated serious criminal trespass no such sentencing guideline could be set because of the multiplicity of circumstances in which the aggravated form of the offence could be committed.[23]
[23] R v Delphin [2001] SASC 203 at [49], (2001) 79 SASR 429 at 441.
The appellant’s complaint on this ground really can be distilled to a submission that the judge in sentencing failed to reduce the sentence further for reasons of totality.
I do not accept that submission.
The range of the offending, the number of offences, the period during which these offences were committed, and the fact that some of these offences were committed while the appellant was on conditional release, called for the imposition of a substantial sentence. 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. Further, the judge reduced the notional head sentence for reasons of totality. Effectively, the appellant’s submission is that the judge failed to give appropriate weight to this factor. That is not the basis upon which an appeal court will interfere with the exercise of the sentencing discretion.[24]
[24] R v Lutze [2014] SASCFC 134 at [44]-[51], (2014) 121 SASR 144 at 153-154.
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.
The appellant submits that these were unusual circumstances and evoke some sympathy. When considered in combination with the disproportion between the breaching conduct and the consequences of the breach the judge erred by failing to find proper grounds existed to excuse the breaches.
I do not accept this submission.
The application of s 73 of the Sentencing Act has not been considered previously by this Court. I am satisfied that the provisions relating to a breach of a home detention order mirror those in place for proceedings upon breach of a suspended sentence bond. Accordingly, some assistance in construing the provisions of s 73(1) and (2) can be derived from the reasons in R v Buckman[25] where King CJ said:[26]
There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.
…
The purpose of subs (5) is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.
[25] (1988) 47 SASR 303.
[26] (1988) 47 SASR 303 at 304.
In R v Smith[27] Kourakis CJ, referring to the operation of s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) said:[28]
However, it is as well to make some additional comments on the appellant’s submissions to the effect that the breach should have been excused because the crime of drive disqualified is not of the “same ilk” or at the same “level of seriousness” as a serious assault. There is no express or implied requirement in s 58(3) of the CLSA that the breaching offence be similar in kind to the offence for which the probationer was placed on a bond. The Judge correctly observed that a suspended sentence bond requires the probationer to be of good behaviour generally, and not merely to refrain from committing offences of a similar kind to that for which the suspended sentence was imposed.
Both the “trivial” and “proper grounds” limbs of s 58(3) of the CLSA invite attention to the nature, extent and circumstances of the breach of the condition to be of good behaviour. The word “proper” is a protean expression which takes its meaning from its context. In the context of s 58(3) of the CLSA, the word takes its meaning both from the other ground, the triviality of the breach, and the condition that the circumstances must be such as to “excuse” the breach. For that reason, the disproportion of which King CJ spoke in Buckman is between the extent of the departure from the obligation to be of good behaviour and the severity of the penalty resulting from revocation of the suspension. As King CJ observed, differences between the original offence and the breaching offence are not irrelevant but their relevance is limited. The question is whether the circumstances in which the breach was committed are of a nature which excuses the failure to abide the condition of the bond having regard to the purpose for which it was imposed.
[27] [2014] SASCFC 98.
[28] [2014] SASCFC 98 at [24]-[25].
Section 58 of the Criminal Law (Sentencing) Act 1988 (SA) is the predecessor provision to s 114 of the Sentencing Act. The terms of s 73 are similar to s 114.
In my view the disproportionality of the consequences of a breach is a relevant consideration in deciding whether proper grounds exist to excuse it.
The fact that the disproportionality of the consequences is a relevant consideration does not mean, however, that because a particular consequence may amount to proper grounds to excuse a breach of a suspended sentence, such a consequence will necessarily amount to proper grounds to excuse a breach of a home detention order. Pursuant to s 71 of the Sentencing Act a home detention order is an order made by the court that a sentence of imprisonment may be served by a defendant on home detention. The court can only make that order once it is satisfied that the sentence should not be suspended under Part 4 Division 2 of the Sentencing Act. When considering proportionality it is important to recognise when evaluating the consequences of the breach, that the defendant is serving a term of imprisonment not a suspended sentence. The character of a suspended sentence involves freedom that is not enjoyed by a defendant serving a term of imprisonment, even one served on home detention. A term of imprisonment on home detention is a term of imprisonment. The difference lies in where the sentence is being served. Revoking the home detention order will not therefore necessarily result in consequences which are disproportionate in a way in which they may be if the defendant’s sentence of imprisonment had been suspended. Conduct which demonstrates a flagrant disregard for the conditions of the home detention order might evidence a risk the defendant poses to the community if he or she is permitted to continue to serve their sentence in the community.

These considerations may preclude the Court from excusing the breach if they represent a substantial departure from the conditions the court considered appropriate in ordering an offender to serve a term of imprisonment on home detention.
When imposing the original sentence, the judge was entitled to assess the risk the appellant posed to the community by reference to her time in custody prior to sentence and the fact that she remained drug free during that period. Staying off illicit drugs was a crucial aspect to the appellant’s rehabilitation. Her offending was largely if not wholly motivated by her need to feed her addiction to methamphetamine. The two breaches of the home detention order, so soon after her release from custody, evidenced her inability to refrain from the use of illicit drugs when in the community as opposed to when she was in prison.
The order for home detention was made to promote the appellant’s rehabilitation. That highlights the importance of the condition imposed by the Court prohibiting her from using illicit drugs. The two breaches so soon after the commencement of the period of home detention demonstrated that the relative freedom of home detention was not promoting the appellant’s rehabilitation and demonstrated that being on home detention increased the risk of further reoffending of the kind that brought her before the Court for sentencing. The addiction which motivated that offending not only persists but results in her continuing to use methamphetamine. In the circumstances the judge could have no confidence that she would not continue to use methamphetamine in the future if she remained on home detention.
Further, the integrity and effectiveness of home detention orders pursuant to s 71 remain significant considerations. Persons serving such sentences will ordinarily have committed objectively more serious offences or have less prospects of rehabilitation than those subject to suspended sentences. Such persons will frequently pose a greater risk to the community. Accordingly, there is a need to ensure strict compliance with the conditions of those orders. While that does not preclude the court from excusing a failure to comply with the conditions of such orders these factors underline the caution courts must exercise in considering whether to excuse a breach.
The purpose of the order would be frustrated if breaches of this nature did not require the offender to serve the sentence.[29]
[29] R v Scott [2011] SASCFC 149.
The appellant has failed to demonstrate that the exercise of the discretion to revoke the home detention order is infected by error.
Failure to grant adjournment
I turn to consider the appellant’s complaints based on the judge’s refusal to grant an adjournment for the purpose of obtaining a psychological report relevant to the question of revocation. As mentioned above the appellant complains that this involved a contravention of s 73(13) of the Sentencing Act and a denial of the appellant’s right to procedural fairness.
It is convenient to deal with these arguments together.
Section 73(13) provides:
The court dealing with a person for breach of condition of a home detention order must hear any evidence adduced tending to establish that the person has failed to comply with a condition of the order and any evidence or representations that the person may wish to adduce or make in reply.
In my view s 73(13) does not apply to this matter. Section 73(13) imposes an obligation upon a court dealing with a person for a breach of a condition of a home detention order to hear evidence tending to establish the person has failed to comply with the condition of the order and any evidence or representations the person may wish to adduce or make in reply. The concern of the provision is confined to the procedure to be observed for the purpose of proving a breach not the consequences of such a breach once proved.
However, this is beside the point. There is no question that the appellant was entitled to put before the Court matters relevant to how she was to be dealt with for her admitted breach of the conditions of her home detention order. It matters not whether her right in that regard has its foundation in statute or the common law. That does not mean a defendant has an unfettered entitlement to adduce material which will not in fact assist the Court.[30] At the hearing on 19 July 2018, when the appellant admitted the breaches, she sought an adjournment for the purpose of obtaining a psychological report. The judge refused the application.
[30] R v Majors (1991) 27 NSWLR 624, (1991) 54 A Crim R 334.
At the hearing the Court had a psychological report in relation to the appellant dated 7 May 2018. The breaches occurred in June and July 2018. The report set out the issues potentially impeding the appellant’s rehabilitation, namely, her borderline personality disorder, poor coping skills and predisposition to rely on drugs. The proximity in time of the report to the breaches was a sufficient basis for the Court to conclude that no useful purpose could be served by obtaining a further report.[31] In R v McPherson[32] this Court said that 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, however, 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.
[31] Wonnocott v Department for Correctional Services [2009] SASC 18 at [17]-[20]; Spakianos v Police [2000] SASC 218, (2000) 113 A Crim R 248.
[32] [2011] SASCFC 105 at [16].
In this case the reasons for the breaches were known to the appellant and formed part of the submissions made to the judge.
The report of 7 May 2018 indicated that while the appellant had made considerable advances in the structured environment of prison she remained at risk. A further report could only confirm that she remained at risk of relapse in the community. So much was evident from the circumstances which had brought her back before the Court. Further, while the reasons for the breaches were understandable and may have evoked some sympathy on the part of the judge they could not amount to proper grounds to excuse the breaches for the reasons set out above. If a further report simply repeated the appellant’s instructions this could not have assisted. The appellant has not, and probably cannot, provide any evidence of how such a report may have assisted the Court in determining whether to revoke the order.
In any event, the refusal to adjourn for the purpose of a further psychological report being obtained involved the exercise of a discretion. For the Court to intervene a House v The King error also had to be established. No such error has been demonstrated.
For these reasons the judge did not err in revoking the home detention order.
Conclusion
I would dismiss the appeal against sentence and dismiss the appeal against the revocation of the home detention order.
HINTON J:
I have had the advantage of reading the judgment of Stanley J in draft for which I am grateful.
The respondent conceded that in sentencing the appellant on 5 June 2018 the sentencing judge intended to afford the appellant the full benefit of the time she had spent in custody on the offences for which she was to be sentenced and that the judge miscalculated that period resulting in the imposition of a sentence 18 weeks longer than was intended. Quite appropriately, the respondent also conceded that the error required rectification. However, rather than concede the appeal, the respondent submitted that this Court should dispose of the matter by utilising the slip rule contained in s 20 of the Sentencing Act 2017 (SA). The appellant did not oppose this course. She contended that her sentence was manifestly excessive in any event.
Two questions arise; first, can this Court exercise the power contained in s 20? Second, has the judge made an error of a kind that can be remedied utilising s 20? Section 20 provides:
20—Rectification of sentencing errors
(1)A court that imposes, or purports to impose, a sentence on a defendant, or a court of coordinate jurisdiction, may, on its own initiative or on application by the DPP or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
(2)The DPP and the defendant are both parties to proceedings under this section.
Section 20 has three parts. First, it identifies the repository of the power conferred — a court that imposes, or purports to impose, a sentence on a defendant, or a court of coordinate jurisdiction. Second, it prescribes the circumstances in which the power vested in the repository may be engaged — on its own initiative or on application by the Director of Public Prosecutions or the defendant. And third, it prescribes the powers conferred — to make orders as the repository is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order. The answer to the first of the two questions arising in the present case turns on whether this Court may be considered as one falling within the class of repository in which the power contained in s 20 is vested. The answer to the second question involves consideration of whether the error in this case is one that is amenable to correction utilising the first of the three powers that s 20 confers.
It is convenient to deal first with the second question.
The predecessor to s 20 was s 9A of the Criminal Law (Sentencing) Act 1988 (SA). In Question of Law Reserved on Sentence (No 1 of 1996) Doyle CJ remarked:[33]
It is not necessary in this case to explore the full scope of s 9A of the Act. I wish to make it clear that, in my opinion, s 9A is not a means of remedying any and every problem that may occur. In particular, it is not clear that it enables the passing of a completely new sentence, as distinct from the making of an order which affects the operation of a sentence already passed.
[33] (1996) 67 SASR 90 at 93.
In Burrell v The Queen, in the course of discussing the principle of finality, Gummow A-CJ, Hayne, Heydon, Crennan and Kiefel JJ said:[34]
The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.
[footnote omitted]
[34] (2008) 238 CLR 218 at [21]. See also Achurch v The Queen (2014) 253 CLR 141 at [18] (French CJ, Crennan, Kiefel and Bell JJ).
Consistent with this in R v Singh Blue J said:[35]
The power conferred by that subsection is only available when the true intention of the sentencing judge is ascertained (either by the sentencing judge or when the sentencing judge’s intention can be confidently ascertained by this Court exercising power under the Auxiliary Act) and when the nature of the identified error is technical.
[35] [2018] SASCFC 89 at [8].
In the present case I agree with Stanley J that the sentencing judge intended to afford the appellant full credit for the time she spent in custody. In that regard I think the sentencing judge’s true intention can be confidently ascertained. I agree that the error is one of a technical nature within the meaning of s 20 of the Sentencing Act 2017 (SA) which may be cured by deducting 18 weeks from both the head sentence and non-parole period imposed on 5 June 2018. Doing so in no way alters the original sentence imposed and does not involve this Court in any exercise of the sentencing discretion. In truth the sentence remains one of imprisonment for five years with a non-parole period of three years and three months.
As to the first question posed above, neither party on the hearing of the appeal contended that this Court could not exercise the power contained in s 20 of the Sentencing Act 2017 (SA) as picked up by s 5(1) of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA). However, the question of whether s 5(1) of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) confers power capable of exercise by a multi-member court such as this did arise in the course of argument. Whilst the issue was touched upon, it was not pursued by either party. In those circumstances consideration of the question should await another day.
I agree with Stanley J that the sentence imposed on 5 June 2018 should be rectified by reducing both the head sentence and non-parole period by 18 weeks and with the consequential adjustment to the order made on 19 July 2018.
I agree with Stanley J for the reasons he gives that the appeal against sentence and the appeal against the revocation of the home detention order should be dismissed.