R v Leathley

In *R v Leathley*, the appellant pleaded guilty to two counts of cultivating controlled plants for sale and admitted breaching a suspended sentence bond. The sentencing Judge imposed a single sentence of six years' imprisonment with a non-parole period of three years, which included the revocation of a previously suspended sentence of two years and three months' imprisonment with a non-parole period of 14 months. The appeal concerned whether the Judge erred in using section 18A of the *Criminal Law (Sentencing) Act 1988* (SA) to impose one penalty when the appellant was to be dealt with for both the breach of a suspended sentence bond and the subsequent drug offending.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether section 18A of the *Criminal Law (Sentencing) Act 1988* (SA) permitted the imposition of a single sentence of imprisonment where that sentence encompassed both the activation of a previously suspended sentence and a penalty for new offending. The Court was also required to consider whether the sentencing Judge had properly had regard to the relevant provisions of the *Sentencing Act* when dealing with the breach of the suspended sentence bond.

The Court held that section 18A of the *Criminal Law (Sentencing) Act 1988* (SA) could not be lawfully used to impose a single term of imprisonment when part of that sentence involved the activation of a previously suspended sentence. The Court reasoned that the Judge had failed to consider the matters set out in section 58(4) of the *Sentencing Act*, including whether "special circumstances" existed to justify a reduction in the term of the suspended sentence. Furthermore, the Judge had not specified how the single sentence was apportioned between the breach of the bond and the subsequent offending.

Consequently, the appeal was allowed, the sentence was set aside, and the matter was remitted to the District Court for re-sentencing before a different judge.