R v Muldoon
[2015] SASCFC 69
•8 May 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v MULDOON
[2015] SASCFC 69
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Stanley)
8 May 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - OTHER OFFENCES INVOLVING GRIEVOUS BODILY HARM OR SERIOUS INJURY
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - OTHER CASES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PROCEDURE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
The Respondent first appeared in the Magistrates Court on an information, charging aggravated intentionally causing serious harm, on 20 January 2014 and a number of dates thereafter. On 22 July 2014 a new information, charging recklessly causing serious harm, was laid, the Respondent pleaded guilty to this on 24 July 2014.
The Respondent was sentenced in the District Court on 4 December 2014. The sentencing Judge would have placed a notional head sentence of three and a half years, which he reduced by 38 per cent to account for his guilty plea. The sentencing Judge found that there were good reasons to suspend the sentence and did so with the Respondent entering into a good behaviour bond.
The Director of Public Prosecutions applied to this court for permission to appeal the sentence of the District Court.
Held (Per Kourakis CJ, Gray and Stanley JJ agreeing):
1. The removal of the power of the court to impose a community corrections order, which spares an offender from a period of imprisonment, is a substantive matter and not a matter of procedure.
2. Section 38(2)(b) of the Criminal Law (Sentencing) Act 1988 (SA) does not have retrospective effect.
3. The Magistrates Court had no power to take the Respondent’s admission or plea to the alternative charge on the original information.
Criminal Law Consolidation Act 1935 (SA) s 23, s 25, s 285B, s 274, s 352; Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 38, s 57; Criminal Law (Sentencing)(Suspended Sentences) Amendment Act 2014 (SA); Acts Interpretation Act 1915 (SA) s16; Summary Procedure Act 1921 s 114, referred to.
R v Wakefield [2015] SASCFC 10, applied.
R v Siganto (1997) 97 A Crim R 60, distinguished.
Samuels v Songalia (1977) 16 SASR 397; Re Raison; Ex Parte Raison [1891] L.T. 709; R v Crabbe (1985) 156 CLR 464; R v Lovegrove [2007] SASC 283; R v D, WD [2013] SASCFC 32; Glouftsis v Police [2014] SASC 136; R v Postiglione (1997) 98 A Crim R 134; R v Allen (2002) 81 SASR 434, considered.
R v MULDOON
[2015] SASCFC 69Court of Criminal Appeal: Kourakis CJ, Gray and Stanley JJ
KOURAKIS CJ: This is an application for permission to appeal against sentence brought by the Director of Public Prosecutions.
On 14 December 2013 the respondent was charged with an offence of aggravated intentionally causing harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act). He first appeared in the Magistrates Court on 20 January 2014. He appeared again on 20 March 2014, 22 May 2014, 19 June 2014 and 10 July 2014. On 22 July 2014 a new information charging recklessly causing serious harm contrary to s 23(3) of the Act was laid. On 24 July 2014, the respondent pleaded guilty to that charge. He was committed to the District Court for sentence, which was imposed on 4 December 2014.
The Judge would have sentenced the respondent to three and a half years imprisonment but for his guilty plea. He reduced the sentence on account of his guilty plea by 38 per cent to two years and two months imprisonment. He fixed a non-parole period of one year. The Judge found that there were good reasons to suspend the sentence and did so on the respondent entering into a bond in the sum of $1,000 to be of good behaviour for three years.
The Director appeals on two grounds. First, that the Judge was precluded in law from suspending the sentence by s 38(2)(b) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) because that subsection operated retrospectively. Secondly, the Director contends that the Judge erred in reducing of the notional sentence he would have imposed by more than 30 per cent for the respondent’s guilty plea because the respondent pleaded guilty to the offence of recklessly causing serious harm more than four weeks after his first appearance in the Magistrates Court. The Director contends that the respondent could have pleaded guilty to recklessly causing serious harm on his first appearance even though he was at that time charged only with aggravated intentionally causing harm and that therefore s 10C(2)(b) of the Sentencing Act prescribed a maximum reduction of 30 per cent.
The legal premises on which the grounds are based are false. As to the first ground s 38(2)(b) of the Sentencing Act does not have retrospective effect. As to the second ground the respondent could not have pleaded guilty to aggravated recklessly causing harm on the first information. The applications for permission to appeal on both grounds should be refused. My reasons follow.
The offence
The offending occurred late at night in a hotel. The Judge found that the assault was precipitated by an allegation that the victim had behaved inappropriately towards a woman or women on the dancefloor. Another man first punched the victim to the back of his head. The victim was dragged to the ground, by the co-accused, but was unharmed and stood up immediately. Seconds later, the respondent struck the victim on the face with a raised left forearm. The victim then fell to the floor hitting the back of his head on the tiled floor. The victim suffered a skull fracture which caused bruising on his brain resulting in a permanent cognitive impairment.
The Judge accepted that the respondent was contrite. The respondent had relevant prior convictions. The respondent was convicted of breaching a restraining order in 1989. In 2007 he was fined for common assault and, stalk or intimidate with intent to cause fear of physical or mental harm. Those offences were offences of domestic violence.
The respondent was 50 years of age at the time of sentencing. He has three children who are not in his care. He was molested as a boy. He has suffered from alcoholism and depression for much of his life.
Suspension of the sentence
On 24 November 2013, the Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2013 (SA) (the 2013 Amendment) commenced operation. The 2013 Amendment amended s 38 of the Sentencing Act by changing the precondition for the exercise of the power to suspend a sentence of imprisonment imposed for particular offences in certain circumstances from “good reason” to “exceptional circumstances”. A transitional provision of the 2013 Amendment provides that the amendments it effects apply prospectively only from its enactment.
On 2 November 2014, the Criminal Law (Sentencing) (Suspended Sentences) Amendment Act 2014 (SA) (the 2014 Amendment) came into operation. Some of the provisions of the 2013 Amendment were repealed but re‑enacted, with some minor changes of drafting style, by the 2014 Amendment. Relevantly to this application, the 2014 Amendment precludes a court from wholly suspending a custodial sentence imposed for the offence of recklessly cause serious harm when the term of imprisonment exceeds two years. The 2014 Amendment does not contain a transitional provision.
Marked up versions of s 38 of the Sentencing Act showing the changes made by the 2013 and 2014 Amendments is appended to these reasons.
Legislation which retrospectively alters rights and obligations is presumed not to operate retrospectively. The presumption may be rebutted by an express provision to the contrary or by necessary implication. On the other hand, it is accepted that statutory provisions which effect mere procedural rights may be construed, without more, to operate both retrospectively and prospectively.
In Samuels v Songaila,[1] this Court held that a statutory increase in severity, or the amount, of a penalty provided for a criminal or quasi-criminal offence is a matter of substance and not procedure. As Bray CJ observed in that case:[2]
It would be absurd, I think, to say, for example, that the substitution of life imprisonment for capital punishment was merely a matter of procedure.
In the same case,[3] King J cited with approval[4] the observation made by Cave J in Re Raison; Ex parte Raison that:[5]
There is an old and well-known saying with regard to new laws, that you are not by a new law to affect for the worse the position in which a man already finds himself at the time when the law is actually passed.
[1] (1977) 16 SASR 397.
[2] (1977) 16 SASR 397, 400.
[3] Samuels v Songaila (1977) 16 SASR 397.
[4] (1977) 16 SASR 397, 404.
[5] [1891] 63 L.T. 709, 710.
The question of the temporal effect of the re-enactment by the 2014 Amendment of those provisions of the 2013 Amendment which restricted the power to suspend a sentence of imprisonment need not be resolved here. It suffices to say that it raises questions as to the operation of s 16 of the Acts Interpretation Act 1915 (SA) and the continuity of operation of the re-enacted provisions. Be that as it may, s 38(2)(b) of the Sentencing Act which was enacted by the 2014 Amendment, and which precluded the suspension of the respondent’s sentence, had not been enacted by the 2013 Amendment.
The Director makes the following submissions in support of his contention that the 2014 Amendment operates retrospectively. First, the Director contends that because Parliament did not enact a transitional provision in the 2014 Amendment, after expressly enacting that the 2013 Amendment was to operate prospectively only, it must impliedly have intended a retrospective operation for the 2014 Amendment. That submission fundamentally misunderstands the effect of the presumption against retrospectivity. The transitional provision in the 2013 Amendment simply made express what the Court would otherwise have presumed. The Parliament must be taken to legislate in the knowledge of the common law presumption against retrospectivity. On every occasion that Parliament intends its legislation to operate retrospectively, it must expressly, or by necessary implication, so provide. Parliament cannot abrogate the common law presumption by occasionally enacting legislation with a transitional provision which has the same effect.
Secondly, the Director relies on the Second Reading Speech which refers to the 2014 Amendment operating on “any serious violent offender”. On its proper construction the Second Reading Speech refers to any offender who commits any of the prescribed offences. It does not expressly deal with the temporal application of the section. In any event, the court’s construction of the temporal application of an Act cannot be determined by a declaration in a Second Reading Speech on the question. The mischief at which the legislation is addressed may shed some light on the question of retrospectivity. However, speaking generally, the Parliament’s intention on the retrospective operation of an Act must appear in the statute and not from its debates.
Finally, the Director sought to distinguish Samuels v Songaila[6] on the basis that an increase in a maximum penalty was substantive but that an alteration of an ancillary sentencing power, like the power to suspend, was merely procedural. That submission must be rejected. If an increase in the maximum term of imprisonment is more than a matter of procedure, then the removal of a power to impose a community corrections order which spares an offender from the obligation to serve any period of imprisonment at all is, even more obviously, substantive.
[6] (1977) 16 SASR 397.
In aid of this contention the Director relied on the decision of the Northern Territory Court of Criminal Appeal in R v Siganto.[7] However, that decision concerned the retrospective operation of legislation which abolished a system of remissions administered under the prerogative. The legislation in question had no effect on the penalties imposed judicially.
[7] (1997) 97 A Crim R 60, 67.
I would refuse permission to appeal on ground 1.
Ground 2 – the Judge erred in allowing a discount of 38 per cent
The Judge reduced the term of the imprisonment he would otherwise have imposed for his “early guilty plea”. Section 10C(2) of the Sentencing Act provides:
10C—Reduction of sentences for guilty plea in other cases
…
(2)If a defendant has pleaded guilty to an offence or offences—
(a) not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b) more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
…
The issue raised by the Director’s second ground of appeal is whether the respondent first appeared in a court in relation to the relevant offence on 20 January 2014 or 24 July 2014 and therefore within or outside the period of four weeks.
On a proper construction of s 10C(2) of the Sentencing Act, the relevant offence is the offence to which the “defendant has pleaded guilty” referred to in the first line of that section. The phrase “relevant offence or offences” is an abbreviated reference to the offence or offences to which the defendant has pleaded guilty. It cannot refer, as the Director submits, to the general conduct on which a charge is based. A defendant is never called on to “plead” to amorphous conduct but to a particular offence charged in a discrete count. In this case it is the offence of recklessly causing harm contrary to s 23(2) of the Act to which the respondent pleaded. The question is therefore whether the respondent first appeared “in relation to” that offence of recklessly causing harm when he appeared in answer to the information charging him with aggravated intentionally causing harm.
The words “in relation to” are of wide import. I would hold that a defendant who appears in answer to an information charging an offence or offences also appears in relation to those alternative offences to which he or she could plead guilty. This Court proceeded on that unstated premise in the obiter remarks it made on the question in R v Wakefield.[8] It is to the question whether the defendant could have pleaded guilty to the offence of recklessly cause harm on the first information to which I now turn.
[8] [2015] SASCFC 10, [63]-[68].
Section 23 of the Act provides:
23—Causing serious harm
(1)A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 20 years;
(b) for an aggravated offence—imprisonment for 25 years.
…
(3)A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 19 years.
Section 25 of the Act provides:
25—Alternative verdicts
If —
(a) a jury is not satisfied beyond reasonable doubt that a charge of an offence against this Division has been established; but
(b) the Judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of a specified lesser offence or any 1 of a number of specified lesser offences; and
(c) the jury is satisfied beyond reasonable doubt that the specified lesser offence, or a particular 1 of the specified lesser offences, has been established,
the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of the lesser offence.
The power of a jury to return a verdict of guilty to a “lesser offence” against the Division pursuant to the express power conferred by s 25 of the Act is not determinative of the question whether the defendant could have entered a meaningful plea of guilty to the offence of recklessly causing harm before the new information was laid.
At common law a defendant may plead guilty to an offence which is a natural alternative to the one charged. However, in R v Wakefield[9] this Court explained why the offence of recklessly cause harm was not a natural alternative to an offence of intentionally doing so:[10]
The offences of intentionally causing harm and recklessly causing harm created by subsection 24(1) and subsection 24(2) of the Consolidation Act respectively have a common physical element being causing harm to another. They have different mental elements. The mental element of the offence created by subsection 24(2) that the defendant recklessly causes harm to another is not an element of the offence created by subsection 24(1) that the defendant intentionally causes such harm. Recklessness and intention are different states of mind. An offender who commits an act intentionally desires the proscribed outcome. That offender may also know that that outcome is a probable consequence of his or her conduct but his or her conduct is intentional even if he or she believes that the likelihood of the outcome is no more than barely possible. Conversely, the element of recklessness is defined by section 21 of the Consolidation Act for the purpose, inter alia, of section 25 and requires doing an act despite being aware that there is a substantial risk of causing harm.[11] The offence of recklessly causing harm is therefore not an alternative offence under the common law doctrine.
…
Section 25 creates a statutory alternative verdict regime that applies to charged offences against Division 7A of Part 3 of the Consolidation Act.[12] Section 21 defines the term “lesser offence” relevantly to mean “another offence against this Division … for which a lesser maximum penalty is prescribed”. Accordingly the offence created by subsection 24(2) is a lesser offence vis a vis section 24(1).
However, section 25 is confined in its operation to verdicts by juries. While this operation is extended by subsection 7(4) of the Juries Act 1927 (SA) to verdicts by judge alone[13] and by section 354 of the Consolidation Act to verdicts by this Court on appeal,[14] section 25 is confined in its operation to verdicts after a trial and does not apply to guilty pleas. Section 25 does not in any event apply to proceedings in the Magistrates Court.[15]
Accordingly, it was not open to the defendant to plead guilty to recklessly causing harm until the information charging that offence was laid on 22 January 2014. The laying of that information suggests that the Director took this view at the time.
(Footnotes in original)
[9] [2015] SASCFC 10.
[10] R v Wakefield [2015] SASCFC 10, [63]-[67].
[11] Compare the common law requirement: R v Crabbe (1985) 156 CLR 464 at 469-70 per Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ; R v Lovegrove [2007] SASC 283 at [36]-[38] per Nyland J (Anderson and Layton JJ agreeing).
[12] Similar statutory alternative verdict regimes are created by sections 19B and 32B when the charged offence is murder or manslaughter, section 75 when the charged offence is rape etc and section 83F when the charged offence is assault etc in respect of criminal activity of a criminal organisation.
[13] R v D, WD [2013] SASCFC 32, (2013) 116 SASR 99 at [43]-[55] per Nicholson J (Anderson and Peek JJ agreeing).
[14] Ibid at [56]-[99] per Nicholson J (Anderson and Peek JJ agreeing).
[15] Glouftsis v Police [2014] SASC 136, (2014) 120 SASR 420 at [55]-[58] per Kelly J.
On this appeal the Director eschewed reliance on s 25 of the Act and accepted the correctness of the decision in R v Wakefield on whether the offences were natural alternatives. The Director relied instead on s 285B of the Act:
285B—Conviction on plea of guilty of offence other than that charged
Where a person arraigned on an information pleads not guilty of an offence charged in the information but guilty of some other offence of which he might be found guilty upon trial for the offence charged, and the plea of guilty is accepted by the prosecution, then (whether or not the two offences are separately charged in distinct counts)—
(a)the person may be convicted on the plea of guilty and his conviction shall operate as an acquittal of the offence charged; and
(b)if he has been placed in the charge of the jury, the jury shall be discharged without being required to give a verdict (unless the trial is to continue in respect of further counts that are unaffected by the plea); and
(c)he shall be liable to be punished for the offence of which he has been convicted in the same manner as if he had been found guilty of the offence upon trial for the offence charged.
The first hurdle encountered by the Director in his reliance on s 285B of the Act is s 274(2) of the Act which provides:
In this Part (except in sections 275 and 276)—
information means any criminal information presented to the Supreme Court or the District Court.
The information to which the respondent appeared on 20 January 2014 was not an information presented in the District Court. Nonetheless, the Director submitted that the information to which a defendant appears in committal proceedings is the information presented in the Supreme Court or District Court (the Higher Court). That submission too must be rejected. If a defendant is committed for trial a new information is presented in the Higher Court charging the offences on which the defendant was committed.
The position is not as clear when a defendant admits a charge and is committed for sentence. On the face of s 103 of the Summary Procedure Act 1921 (SA), the Higher Court’s jurisdiction to sentence is enlivened by the order of committal for sentence made in the Magistrates Court. Despite the admission of the charge in the Magistrates Court, a defendant committed to a Higher Court for sentence is only convicted of the offence in the Higher Court when that Court unequivocally commences the sentencing process. However, a real difficulty arises in the application of s 352 of the Act for the purposes of an appeal against sentence. A defendant sentenced in a Higher Court upon a committal for sentence is not, on the face of it, “convicted on information” or at last on an information presented to the Higher Court. In R v Postiglione,[16] the Court of Appeal of New South Wales held that in that State the committal order is the equivalent of the information for the purpose of entering on it a record of the Court’s orders.
[16] (1997) 98 A Crim R 134.
Following Postiglione this Court considered the definition of “information” for the purpose of s 57(4a) of the Sentencing Act. In R v Allen[17] Lander J said:
[57]The practice of the District Court is not to file informations in the District Court where a person has been committed to the District Court for sentence. That person is sentenced on the initiating proceeding in the Magistrates’ Court. Usually it would be an information, but an “information” filed in the Magistrates’ Court. That information would not come within the terms of s 348 of the Criminal Law Consolidation Act because information under that section is restricted to any information upon which a person is put on his or her trial for any offence at any criminal session of the Supreme Court or District Court. Because no information is filed in the District Court where a person is committed to that Court for sentence no information of the kind exists. However, that does not prevent a person who has been sentenced from seeking leave to appeal in accordance with the provisions of s 352.
[17] (2002) 81 SASR 434.
There is therefore both dicta and long standing practice to support the proposition that for the purposes of s 352 of the Act “convicted on information” includes a conviction entered on the order committing a defendant to a Higher Court for sentence. However it does not follow that s 285B should be construed to apply in the Magistrates Court.
Even if it were necessary to construe “information” to include an information filed in the Magistrates Court for the purposes of s 352 of the Act, it would not follow that the same approach must be applied to s 285B of the Act. The Director’s reliance on s 285B of the Act must fail for a further reason. Section 285B of the Act on its face applies only to proceedings in the District Court and Supreme Court because only in those courts is a person “arraigned”. A defendant “appears” and may be asked to plead in the Magistrates Court but is not arraigned. In particular, a defendant is not arraigned in the course of committal proceedings. The committal procedure is governed by s 103 to s 111 of the Summary Procedure Act 1921 (SA) and there is no reference in those provisions to an arraignment, or even to pleading guilty for that matter. Instead those provisions speak of a defendant admitting a charge.
It is convenient here to expressly advert to a matter which is implicit in my reasons to this point. In my view for the purposes of s 10C(2) of the Sentencing Act the admission of a major indictable offence in the Magistrates Court is a plea of guilty. Indeed the admission is, as a matter of long standing practice, so described in the records of the Magistrates Court.
After the Court reserved its judgment the Director brought the Court’s attention to rules made by the Magistrates Court pursuant to s 114 of the Summary Procedure Act 1921 (SA) which provides:
The rules may provide that specified provisions of the Criminal Law Consolidation Act 1935 apply with necessary adaptations and modifications to the trial or sentencing by the Court of a person charged with an indictable offence.
Rule 24 of the Magistrates Court Rules 1992 (Criminal) provides:
24.00 PROCEDURAL PROVISIONS - C.L.C.A.
24.01 The following provisions of the Criminal Law Consolidation Act 1935 apply (with necessary adaptations and modifications) to the trial or sentencing of a person charged with a minor indictable offence:
So much of rule 6 of Schedule 3 as relates to the naming of the owner of property, and rule 10 of Schedule 3.
Sections 19B (3), 19B (4a), 19B (5), 25, 285B, and 290.
Rule 24 on its terms applies only to the trial or sentencing in the Magistrates Court of a person charged with a minor indictable office. It has no application to committal proceedings on charges of major indictable offences. Indeed it is doubtful that a rule made pursuant to s 114 of the Summary Procedure Act 1921 (SA) could regulate committal proceedings because they are not a “trial” and, at least until a charge is validly “admitted”, in the course of committal proceedings, there can be no sentencing.
For the above reasons there was no power in the Magistrates Court to take the respondents admission, or plea, to the alternative charge of recklessly causing serious harm. It follows then that the respondent did not appear in relation to that offence until 24 July 2014 when he first appeared on the information charging that offence.
Conclusion
I would refuse the Director’s application for permission to appeal.
GRAY J: I agree with the order proposed by the Chief Justice. I do not wish to add to his reasons.
STANLEY J: I agree that permission to appeal should be refused. I agree with the reasons of the Chief Justice.
APPENDIX
The text in italics indicates the amendments made by the 2013 Act.
The underlined text in italics amendments contained in the 2013 Act that were then reincorporated but in a different format and with a different section number into the 2014 Act.
The text in bold and italics indicates amendments that were not previously included in the 2013 Act.
Relevant aspects of s38 after the 2013 Act
38—Suspension of imprisonment on entering into bond
(1) Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond -
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
(2)A sentence of imprisonment may not be suspended under this section where the sentence is to be served cumulatively upon another term of imprisonment, or concurrently with another term then being served, or about to be served, by the defendant.
(2a)However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than 3 months but less than one year, the sentencing court may, by order -
(a) direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b) suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.
(2b)The court may not suspend a period of imprisonment under this section in any of the following cases:
(a) the defendant is being sentenced as an adult for a serious and organised crime offence or specified offence against police;
(b) the defendant is being sentenced as an adult for a designated offence and during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.
(2ba)Despite subsection (2b), the court may, if satisfied that exceptional circumstances exist for doing so -
(a) suspend a sentence of imprisonment imposed on a defendant for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2b)(b), on condition that the defendant enter into a bond of a kind described in subsection (1); or
(b) make an order under subsection (2a) in respect of a defendant being sentenced for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2b)(b), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 1 year.
(2c)If the court suspends a period of imprisonment under this section on the ground that, because of the defendant’s ill health, disability or frailty, it would be unduly harsh for the defendant to serve time in any prison, the court may, in addition to any other conditions included in the bond, include a condition (a home detention condition) requiring the defendant the reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one to the following purposes:
(a) renumerated employment
(b) necessary medical or dental treatment for the defendant
(c) averting or minimising a serious risk of death or injury
(d) any other purpose approved or directed by the community corrections officer to whom the defendant is assigned.
(and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period)
(3)If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished.
(4)In this section -
designated offence means any of the following offences under the Criminal Law Consolidation Act 1935:
(a) an offence under section 12, 12A, 13 or 13A;
…
(f) an offence under section 23 or 24;
Relevant aspects of s38 after the 2014 Act
38—Suspension of imprisonment on defendant entering into bond
(1) Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond -
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
(2)A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced -
(a) 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; or
(b) as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence; or
(c) as an adult for a serious and organised crime offence or specified offence against police; or
(d) as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.
(2a)Despite subsection (2)(a), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 1 year, the sentencing court may, by order -
(a) direct that the defendant serve a specified period (being not less than 1 month) of the imprisonment in prison; and
(b) suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.
(2b)Despite subsection (2)(b), if a defendant is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence, the sentencing court may, by order -
(a) direct that the defendant serve a specified period of the imprisonment in prison (which, if a non-parole period has been fixed in respect of the defendant, must be a period that is one-fifth of the non-parole period fixed);and
(b) suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant’s release from prison.
(2ba)Despite subsection (2)(c) and (d), the court may, if satisfied that exceptional circumstances exist for doing so -
(a) suspend a sentence of imprisonment imposed on a defendant for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2)(d), on a condition that the defendant enter into a bond of a kind described in subsection (1); or
(b) make an order under subsection (2a) in respect of a defendant being sentenced for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (2)(d), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 1 year.
(2c)If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant’s ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any conditions included in the bond, include a condition (a home detention condition) requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:
(a) renumerated employment
(b) necessary medical or dental treatment for the defendant
(c) averting or minimising a serious risk of death or injury
(d) any other purpose approved or directed by the community corrections officer to whom the defendant is assigned.
(and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period)
(3)If a probationer under a bond entered into pursuant to this section complies with the conditions of the bond, the sentence of imprisonment is, on the expiration of the bond, wholly extinguished.
(4)In this section -
designated offence means any of the following offences under the Criminal Law Consolidation Act 1935:
(a) an offence under section 12, 12A, 13 or 13A;
…
(f) an offence under section 23 or 24;
prescribed designated offence means an offence under section 13 or 23 of the Criminal Law Consolidation Act 1935…
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