R v MARSHALL - [2016] SASCFC 147

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MARSHALL
[2016] SASCFC 147
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Doyle)
21 December 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
Appeal against decision of District Court Judge to revoke a bond associated with a suspended sentence and order that the sentence be served. Whether Judge erred in finding that no special circumstances existed justifying reduction of the sentence. No reasons given by Judge for that finding.
Held (per Vanstone J, Parker and Doyle JJ agreeing): Appeal allowed. Special circumstances exist to reduce the non-parole period.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 54(4), referred to.
R v Buckman (1988) 47 SASR 303; Stanitzki v Higgins (1994) 63 SASR 309; Wiltshire v Leech (1987) 136 LSJS 339, considered.

R v MARSHALL
[2016] SASCFC 147
Court of Criminal Appeal: Vanstone, Parker and Doyle JJ

VANSTONE J: This is an appeal against the decision of a District Court Judge to revoke a bond associated with a suspended sentence and order that the sentence be served. The appeal focuses on the sentencing Judge’s decision that there were no special circumstances justifying reduction of the sentence.
Background
In September 2013 the appellant pleaded guilty in the District Court to being unlawfully on premises, aggravated assault causing harm and damaging property. In February 2014 he was sentenced for those offences. Each offence had been committed in Whyalla on 16 September 2012, some three days after the appellant’s 21^st birthday. The Judge imposed one penalty pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) being imprisonment for three years with a non-parole period of two years. The sentence was wholly suspended upon the appellant entering into a bond for three years with conditions including supervision for two years, drug and alcohol counselling and psychological counselling.
The offending for which that sentence was imposed was serious. In the early hours of the morning the appellant went to the home of his former girlfriend, taking with him a metal pole. He entered the premises, abused the girlfriend and then hit a man who was in her bed, over the head. There were also blows to the legs. The appellant was abusive and threatening. As he left he smashed the windows of the man’s motor vehicle. The victim suffered serious injuries. In committing these offences the appellant was in breach of a simple bond entered into only a month before, for common assault. An earlier good behaviour bond for damaging property had been estreated in 2011. Therefore, up to the time of sentence the appellant’s response to bonds had been poor. Nonetheless, describing the decision as “lineball”, the Judge determined that the sentence should be suspended.
In the event, the appellant’s response to supervision was less than exemplary. In February 2015, he was brought before the court for a breach of the bond conditions. There was a further court appearance in November 2015 for the same reason. On each occasion the court found proper grounds to excuse the breach.
When the appellant again came before the District Court, to be dealt with in relation to this, the third breach, it again involved a failure to comply with the conditions of supervision. It was acknowledged that the appellant had failed to report to his community corrections officer and had left the jurisdiction to go to the Northern Territory, despite permission for such a departure being refused.
Section 58(4)(a) of the Criminal Law (Sentencing) Act 1988 (SA) confers upon the probative court which orders a sentence to be carried into effect a discretion to reduce the term of the sentence where it is satisfied that there are “special circumstances” justifying that course. The approach of the Court to the treatment of such special circumstances was discussed by King CJ in R v Buckman (1988) 47 SASR 303 at 304:
It is to be remembered that the sentence which is activated is the sentence for the original offence. The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. It cannot be too strongly emphasised that where a suspension is revoked, the consequence, in the absence of special circumstances so understood, is that the offender is ordered to serve the sentence which the original court judged to be proper. Subsection (6) exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.
Therefore, special circumstances encompass broader issues not directly related (if related at all) to the breaching conduct. Demonstrated reformation and real progress in overcoming substance abuse can amount to special circumstances: Wiltshire v Leech (1987) 136 LSJS 339 at 344. Lapse of time since the offending for which the sentence was imposed may be relevant to the question of whether special circumstances exist: Stanitzki v Higgins (1994) 63 SASR 309.
Argument on Appeal
In support of the appeal it is put that, although the appellant had been repeatedly warned about the consequences of failing to meet his obligations under the bond, his breaching conduct did not involve the commission of any further offences. Indeed, no offences have been committed since the 2012 offending for which he was sentenced in 2014. It is said that the appellant has overcome his substance abuse and that his rehabilitation is well in progress. Whilst in Darwin the appellant found employment, although he left that to return to Whyalla, apparently to support his grandmother who had serious health problems. He has the ongoing support of his family and friends, some of whom speak of significant positive changes in his attitude and lifestyle since he was originally sentenced. It is said that to require the appellant now to serve the entirety of the sentence imposed in 2014 would be oppressive, having regard to the progress that has been made.
The respondent argues, in effect, that there was a certain inevitability about the orders which were finally made in the District Court, the appellant having repeatedly showed an attitude of indifference to the obligations imposed on him by the bond. It could not be said that the Judge took a course which was outside the ambit of his discretion and therefore this Court should not interfere.
Analysis
It is true that the appellant largely brought upon himself the orders made most recently in the District Court. He was repeatedly warned that failure to comply with the terms of his bond would lead to the very orders which were ultimately made. The breach of the terms of the bond was serious. On the other hand it is very encouraging that in terms of his wider responsibilities to the community, the appellant has made much progress. That he has apparently overcome his abuse of illicit substances and that he has not been convicted for any offence since 2012 is a matter of great credit to him. His ability to secure employment in Darwin is another positive indicator of rehabilitation.
The appellant was indeed fortunate to receive the benefit of a suspended sentence in 2014 and one can well understand why the original sentencing Judge found difficult the decision of whether good reason existed. Those same difficulties continue to plague the Court’s dealings with this appellant. However, the sentencing Judge’s hopes for the appellant have been largely vindicated.
It is to be remembered that at the time of the original offending the appellant was just 21 years of age. Clearly he has matured a great deal since then, although there is still progress to be made.
The matters put before the District Court and this Court in support of the contention that special circumstances to reduce the sentence should be found are substantial ones. They are different from the submissions put to the Judge in support of the argument that the breach should be excused. Principal among them is that the main purpose of the bond – to secure the appellant’s good behaviour and reformation – appears to have been met. Unfortunately, while the Judge under appeal gave extensive reasons for rejecting the argument that proper grounds should be found, his Honour gave no reasons at all for failing to find special circumstances. That being so I consider this Court is justified in looking at the matter afresh.
I consider that there are special circumstances to reduce the non-parole period to some extent to ensure that the processes of rehabilitation are not impeded, if not halted, by the appellant spending at least two years in gaol. I propose that the non-parole period be reduced from two years to one year. That will mean that the appellant is likely to spend some two years on parole. This, hopefully, will enable him to re-establish himself in the community.
Conclusion
I would allow the appeal.
I would order pursuant to s 58(4) of the Criminal Law (Sentencing) Act 1988 (SA) that the term of the sentence to be served be reduced by reducing the non-parole period from two years to one year.
The appellant commenced serving that sentence on 16 August 2016.
PARKER J: I agree with the reasons of Vanstone J and the orders she proposes.
DOYLE J: I agree with the reasons of Vanstone J for considering the issue of “special circumstances” under s 58(4) of the Criminal Law (Sentencing) Act 1988 (SA) afresh, and with her Honour’s reasons for concluding that such circumstances exist and warrant a reduction in the appellant’s non-parole period.
In summary, the matters relevant to the existence of special circumstances in this case are that the appellant has not offended in the period of over four years since the offending that gave rise to his suspended sentence; he appears to have overcome his substance abuse; he has the continued support of his family; and he has been able to obtain employment. The combination of these factors suggests that, despite the appellant’s poor compliance with the conditions of his bond, his rehabilitation is well progressed, and the objective of the suspension of his original sentence has been in large measure achieved. The authorities recognise the capacity for such considerations to qualify as special circumstances.[1] They are capable of rendering the original sentence inappropriate or oppressive in the special circumstances now existing.[2]
[1] Wiltshire v Leech (1987) 136 LSJS 339 at 343-344; Stanitzki v Higgins (1994) 63 SASR 309 at 316.
[2] R v Buckman (1988) 47 SASR 303 at 304.
Given the appellant’s relatively young age (particularly when the sentence was first imposed) and the relatively high proportion of the non-parole period to the head sentence, I consider that there are special circumstances warranting a reduction in that non-parole period.
I therefore agree with the orders proposed by Vanstone J.