R v Oake - [2017] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v OAKE
[2017] SASCFC 82
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Nicholson and The Honourable Justice Parker)
14 July 2017
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
The Director of Public Prosecutions appeals against a sentence imposed in the District Court. The respondent separately appeals against the same sentence. The sentencing Judge estreated a bond associated with a suspended sentence and imposed a cumulative sentence for the breaching offence. He then ordered that the resultant sentence be suspended under s 33B of the Act and served on home detention. The Director contended that the Judge was not empowered to suspend the resultant sentence and sought permission to appeal.
Held (Vanstone J, Parker J agreeing; Nicholson J agreeing in separate reasons): Permission to appeal is granted. The appeal is allowed. A home detention order is a form of suspension. This precludes a court from further suspending a sentence which was previously suspended but later subject to an order for revocation. The matter is remitted to the District Court for resentencing. It is unnecessary to deal with the respondent’s appeal.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 20AAC, s 33B, s 33BD, s 38, s 58; Criminal Law Consolidation Act 1935 (SA) s 340, s 353; Offenders Probation Act 1913 (SA) s 9, referred to.
R Neal [2017] SASCFC 44; R v Willett [2017] SASCFC 62; Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453; The Palace Gallery Pty Ltd v WorkCover Premium Review Panel & Anor (2014) 119 SASR 408; Police v Bicanin [2011] SASC 108; R v Wilson [2016] SASCFC 139; Police v Moraldo [2005] SASC 479; R v Young [2016] SASCFC 102; R v Brougham [2015] SASCFC 75; R v Fusco [2017] SASCFC 47; R v Kong (2013) 115 SASR 425; R v Buckman (1988) 47 SASR 303; House v The King (1936) 55 CLR 499; R v Bui (No 2) [2016] SASCFC 80; R v Buckskin [2010] SASC 138; R v McLean [2013] SASCFC 144; DPP v Stone (1994) 63 SASR 297; R v Jeffries [2004] SASC 188; McGarry v The Queen (2001) 207 CLR 121; Strong v The Queen (2005) 224 CLR 1; R v Tyler [2016] SASCFC 7; R v Irvine [2016] SASCFC 104; R v Saunders [2011] SASCFC 37; Johnson v SA Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995); Reynolds v R (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, 22 October 1995); Wonnocott v The Department of Correctional Services [2009] SASC 18; Manning v Police (1993) 59 SASR 427; Police v Summers [1998] SASC 6950; Hayes v Department for Correctional Services [2016] SASC 76, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Suspended sentence"

R v OAKE
[2017] SASCFC 82
Court of Criminal Appeal: Vanstone, Nicholson and Parker JJ
VANSTONE J.

The Director of Public Prosecutions applies for permission to appeal against a sentence imposed in the District Court.
The Judge under appeal took the following steps. He:
1estreated a bond associated with a suspended sentence of two years and one month,
2reduced the term of the suspended sentence to nine months,
3imposed a sentence for the breaching offence of imprisonment for two years and three months,
4ordered that the two sentences be served cumulatively giving a total head sentence of three years imprisonment,
5fixed a non-parole period of 15 months,
6determined that there was no good reason to suspend the sentence under s 38 of the Criminal Law (Sentencing) Act 1988 (SA), and
7ordered that it be suspended under s 33B of the Sentencing Act and served on home detention.
Step number 7 was not open to the Judge. As the section itself makes clear, a home detention order is a form of suspension and there is clear authority that s 58 of the Sentencing Act precludes a court from further suspending a sentence which was previously suspended but later subject to an order for revocation. In his reasons for decision, Nicholson J has cited the relevant authority.
Therefore the sentence imposed is vitiated by error. Since this is an important matter of principle arising in relation to relatively new legislation, the grant of permission to appeal to the Director is justified. In these circumstances the sentence must be set aside and the respondent resentenced.
It was suggested on the appeal by counsel for the Director that the sentence for the breaching offence could not be set aside as it is not the subject of an appeal. I disagree. The appeal attacks the order that the accumulated sentence be served on home detention. Therefore the constituent parts of the sentence the subject of that order are infected by the error. (Having said that, there is no suggested error in the fixing of the head sentence for the breaching offence).
Upon the hearing of the appeal the Court was told that upon any resentencing the respondent wishes to present further material personal to the respondent. The Director does not oppose this course. In those circumstances it is appropriate to remit the matter
The Director also claims that the finding of special circumstances to reduce the original sentence and a reduction of that sentence from 25 to nine months was an error. The argument appears to be a strong one. However, since the matter is to be remitted and further evidence presented, I prefer to say nothing more about that issue.
I would like to specifically dissociate myself from any suggestion that two or more accumulated sentences may not be the subject of a single order for suspension and a single bond. Similarly, I do not agree that separate home detention orders might be required for a sentence which is comprised of accumulated periods of imprisonment. If there is any controversy about those matters, which I doubt, it can be left to another day.
The respondent separately appeals against the decision of another judge of the District Court taken subsequently, revoking the home detention order. In the circumstances that appeal is overtaken by this decision and it is not necessary to deal with it.
The orders I would make are as follows. I would grant permission to the Director to appeal against the sentence. I would allow the appeal, set aside the orders made in the District Court and remit the matter to the District Court for resentencing. I would dismiss the respondent’s separate appeal.
NICHOLSON J.
Introduction
On 1 December 2016, Emma Oake, the respondent, was sentenced in the District Court to imprisonment for two years and three months after having been found guilty at trial of the offence of aggravated causing harm with intent to cause harm.[1] The commission of this offence caused the respondent to breach a suspended sentence bond. The Judge revoked the suspension, reduced the earlier imposed head sentence of imprisonment for two years and one month to nine months[2] and ordered the two periods of imprisonment to be served cumulatively. His Honour fixed a non-parole period of 15 months and then suspended the total three year period of imprisonment and ordered that it be served on home detention. In so doing, his Honour relied on section 33BB of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act).
[1] Contrary to section 24(1) of the Criminal Law Consolidation Act 1935; maximum penalty, imprisonment for 13 years.
[2] The judge exercised the discretion provided for by section 58(4)(a) of the Criminal Law (Sentencing) Act 1988.
The Director of Public Prosecutions has applied for permission to appeal on three grounds. The third ground of appeal and primary complaint is that the Judge erred in ordering the accumulated sentence to be served on home detention. It is the Director’s contention that, in the circumstances of this case and given the ambit of section 33BB of the Sentencing Act properly construed, there was no power to make such an order. It is contended, in appeal grounds one and two, that the Judge also erred in finding “special circumstances” so as to enliven the discretion under section 58(4) of the Sentencing Act to reduce the period of the suspended sentence; and in his Honour’s exercise of the discretion to reduce that sentence, by 16 months, to nine months.
I would grant permission to appeal and would allow the appeal on the Director’s third ground. I would set aside the orders in the District Court and remit the matter to the District Court for resentencing before a different judge.
On 29 December 2016, the respondent breached the home detention order by using methylamphetamine. On 19 January 2017, a different District Court judge allowed the Director’s application for breach, set aside the suspension and home detention order and ordered that the respondent serve her sentence commencing 1 December 2016. The respondent has applied for permission to appeal against this decision on the ground that the Judge erred when exercising the discretion available in this respect. The respondent contends, inter alia, that the Judge paid insufficient regard to the respondent’s responsibility for the care and welfare of her two very young children.
Argument on the two applications was heard at the same time. However, given the approach I have taken with respect to the Director’s application for permission to appeal, the respondent’s application lacks utility and ought to be dismissed.
Further background
On 15 July 2010, the respondent was sentenced for the offence of manufacturing methylamphetamine. She was released on a bond to be of good behaviour. The bond contained a condition that she was to return to be sentenced in the event of breach. The respondent breached the bond by again committing the offence of manufacturing methylamphetamine.
On 22 August 2012, the respondent was sentenced to imprisonment for seven months for the initial manufacturing offence and for 18 months for the second manufacturing (breaching) offence, to be served cumulatively. A non-parole period of 12 months was fixed. The total period of two years and one month was suspended upon the respondent entering into another bond to be of good behaviour.
The respondent breached this bond by testing positively for the use of illicit substances and by failing to report for supervision on four occasions. The breaches were excused save that the bond period was extended by one year. It was this bond, as extended, that was breached when the respondent committed the offence of aggravated causing harm with intent to cause harm.
It is not necessary for the factual basis of the breaching offence and for the respondent’s personal circumstances to be set out at this stage. There is no challenge by either party to the head sentence of two years and three months imposed by the Judge for the aggravated causing harm with intent offence. There is a challenge to the reduction of the suspended head sentence. However, given the manner by which I would dispose of the Director’s application, it will not be necessary to review the non-parole period or to give consideration to the factual basis of the breaching offence and the respondent’s personal circumstances for this purpose.
The Director’s primary contention
At the time of sentencing, the respondent was subject to a term of imprisonment that had been suspended in reliance on the power to suspend conferred by section 38(1) of the Sentencing Act. The Judge was not persuaded that the breach of bond was trivial or that there were proper grounds to excuse the breach and therefore was obliged[3] to revoke the suspension and “order that the sentence be carried into effect”.[4] The Judge did this but went on to order that the sentence thus brought into effect be served on home detention rather than in custody. The Director submits that there is no power to make such an order with respect to a sentence the suspension of which has been revoked pursuant to section 58. I agree with this submission. I note that the issue of power was not raised or argued before the Judge during submissions. It appears to have been common ground that the approach adopted by the Judge was within power.
[3] Sections 58(1)(d) and 58(3) of the Sentencing Act.
[4] Subject to the power to reduce the term of the suspended sentence in accordance with section 58(4) of the Sentencing Act which power the Judge, in this case, exercised.
The proper construction and interaction of the material provisions in sections 38 (contained in Part 5 of the Sentencing Act), 58 (contained in Part 9) and 33BB (contained in Part 3 Division 3A) is central to the debate.[5] Those material provisions are in the following terms.
[5]    Of course, these sections must be construed in the context of the Act as a whole and, in particular, after having regard to other sections in the Act that bear on the deployment of a suspended sentence.
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)-(d) ...
(2a)Despite subsection (2)(a), if the period of imprisonment to which a 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)-(4) ...
58—Orders that court may make on breach of bond
(1)Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
(a)-(c) ...
(d)     if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
(2)...
(3)Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a)     may refrain from revoking the suspension; and
(b)     may ...
(4)Where a court revokes the suspension of a sentence of imprisonment, the court—
(a)     may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b)-(ba) ...
(c)     may direct that—
(i)...
(ii)... —the suspended sentence,
be cumulative on any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
(5)...
33BB—Home detention orders
(1)Subject to this section, if—
(a)     a court has imposed a sentence of imprisonment on a defendant; and
(b) the court considers that the sentence should not be suspended under Part 5; and
(c)     the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a home detention order).
(2)A home detention order—
(a)     must not be made—
(i)unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place; or
(ii)if the defendant is being sentenced 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; and
(b)     should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer.
(3)The paramount consideration of the court when determining whether to make a home detention order must be the safety of the community.
(4)The court must also take the following matters into consideration when determining whether to make a home detention order:
(a)     the impact that the home detention order is likely to have on—
(i)any victim of the offence for which the defendant is being sentenced; and
(ii)any spouse or domestic partner of the defendant; and
(iii)any person residing at the residence at which the prisoner would, if released, be required to reside;
(b)     any report ordered by the court from the CEO or any other person or body for the purpose of assisting the court in determining whether to make a home detention order;
(c)     any other matter the court thinks relevant.
The following three propositions support and make good the Director’s primary contention.
(i)An order suspending a sentence and that it be served on home detention, pursuant to section 33BB(1) (“home detention order” or “HDO”), is a suspended sentence.
(ii)There is no power to order a sentence, brought into effect by revoking its prior suspension as required by section 58(1)(d), to again be suspended.
(iii)An HDO is captured by the injunction in (ii) above.
The first proposition has recently been authoritatively dealt with by the Court of Criminal Appeal, albeit in a different context, in R v Neal[6] and R v Willett.[7]
[6] [2017] SASCFC 44 (Kourakis CJ with whose reasons Nicholson and Parker JJ agreed).
[7] [2017] SASCFC 62 (Parker J with whose reasons Kourakis CJ and Nicholson J agreed)
In Neal,[8] this Court, differently constituted, held that an HDO is a suspended sentence for the purpose of section 20AAC of the Sentencing Act. It followed that such an order with respect to a serious firearm offence, made without first satisfying section 20AAC(2), was invalid.[9] The Court in Willett adopted and applied the reasoning in Neal.
[8] At [62].
[9]    Section 20AAC is in these terms:
(1)     Subject to subsection (2), but despite any other provision of this Act or any other Act or law, the following provisions apply in relation to the sentencing of a person who is a serious firearm offender for a serious firearm offence (including where the offence is the serious firearm offence that resulted in the person being a serious firearm offender):
(a)if the maximum penalty for the serious firearm offence includes a period of imprisonment—a sentence of imprisonment must be imposed on the person;
(b)the sentence of imprisonment cannot be suspended;
(c)section 18 does not apply in respect of the sentencing of the person;
(d)if—
(i)the person is also being sentenced in respect of other offences; and
(ii)1 or more of those offences are not serious firearm offences,
section 18A does not apply to the sentencing of the person in respect of the serious firearm offence (however nothing in this paragraph affects the operation of section 18A in respect of the other offences).
(2)     A court sentencing a person who is a serious firearm offender for a serious firearm offence may declare that subsection (1)(b) does not apply to the person if he or she satisfies the court, by evidence given on oath, that—
(a)his or her personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in the sentencing (as set out in section 10(2)(e)); and
(b)it is, in all the circumstances, appropriate to suspend the sentence.
(3)     If subsection (2) applies, section 10(2)(e) is taken not to apply in relation to the sentencing.

The reasoning in Neal on this issue and the Chief Justice’s broader analysis of the proper characterisation of an HDO and its interrelationship with other provisions in the Sentencing Act[10] was obiter. In Neal, the Court allowed a conviction appeal and ordered an acquittal. As such, it was unnecessary to decide the sentence appeal heard at the same time. The adoption of the reasoning in Neal by the Court in Willett was central to the outcome of that appeal.
[10] R v Neal [2017] SASCFC 44 at [56]-[69].
Further, the analysis in Neal and Willett, strictly, was confined to the issue then before the Court in each case, the interrelationship between section 33BB and section 20AAC which constrains the sentencing discretion with respect to serious firearm offenders. Nevertheless, the analysis should be accepted as of general application. It would make no sense and be productive of confusion and incoherent outcomes for an HDO to be treated as a suspended sentence for one or more but not all purposes under the Sentencing Act.
In Neal,[11] the Chief Justice first made the finding central to the issue before the Court and then went on to make more general observations.
[11] At [62]-[67].
It follows that on the plain words of s 33BB of the Sentencing Act, a home detention order is a suspended sentence for the purpose of s 20AAC(1)(b) of that Act.
There is a further strong textual reason for so reading the provisions. Before Division 3A was enacted, s 30 of the Sentencing Act provided that a court which imposes a sentence of imprisonment, but does not suspend the sentence, must specify the date on which the sentence is to have been taken to have commenced. At that time the only power to suspend a sentence of imprisonment was that conferred by Part 5 of the Sentencing Act. On the enactment of the home detention regime, s 30 was amended with the effect of limiting the section’s application to orders for suspension not made pursuant to Part 5 of the Sentencing Act:
30—Commencement of sentences and non-parole periods
(1) Where a court imposes a sentence of imprisonment and does not suspend the sentence under Part 5, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
The amendment of s 30 shows that Parliament intended to impose an obligation on courts to specify the commencement date for a home detention order. That is to be expected. There are at least three important reasons why the commencement date of a period of home detention must be known. First a defendant must know when the obligation to comply with the home detention conditions commences. Secondly both the defendant and justice agencies must know when the order is discharged by compliance and thirdly they must know how much of it has been complied with in the event of breach.
When an Act is amended by a later Act both the principal and amending acts are to be regarded as one connected and combined statement of the will of the Parliament.[12]
If s 30 had not been amended, it would not, on its face, have applied to home detention orders because of its express exclusion of suspended sentences and the express reference to suspension in s 33BB. The amendment of s 30 demonstrates that Parliament treats references to suspension in the Sentencing Act as including suspension for the purposes of giving effect to a home detention order pursuant to Division 3A.
There is also a practical reason for treating a home detention order as a suspended sentence for the purposes of other provisions of the Sentencing Act. Section 33BB(2)(a)(ii) of the Sentencing Act precludes the making of a home detention order where the defendant is being sentenced to a sentence of imprisonment which is to be served cumulatively or concurrently on another term of imprisonment then being served or about to be served. If a sentence of imprisonment served on home detention is not a suspended sentence, and is instead a sentence of imprisonment being served, or about to be served, then s 33BB(2)(a)(ii) of the Sentencing Act would prevent the Court from imposing concurrent sentences of home detention. Such a construction would preclude a home detention order as a sentencing option in many cases because defendants often fall to be sentenced for multiple offences. Section 18A of the Sentencing Act may obviate that practical difficulty in many cases but the application of that section is precluded by statute for certain offences. Moreover, occasionally for other reasons it may be undesirable or impractical to use s 18A of the Sentencing Act. It is unlikely that Parliament intended to burden sentencing courts with this practical difficulty by treating a home detention order as an unsuspended sentence of imprisonment.
[12] Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453, 463, 479. See also The Palace Gallery Pty Ltd v WorkCover Premium Review Panel & Anor (2014) 119 SASR 408 at 418 (per Kourakis CJ).
The second proposition, central to the Director’s argument, is a statement of the received view concerning the powers of a court following the revocation of a suspended sentence bond which view has not been challenged in the authorities to date.
In Police v Bicanin,[13] Duggan J held that once the suspension of a sentence has been revoked, the Court could not, by relying on section 38 and given the terms of section 58, suspend the sentence again. In Bicanin, a Magistrate imposed a sentence of imprisonment for six months with respect to a number of offences some of which caused the offender to breach each of two suspended sentence bonds. The two suspensions were revoked and the Magistrate ordered the two sentences to be served cumulatively on the six month sentence, leading to a total period of imprisonment of nine months and 21 days. This total period of imprisonment was then suspended. The prosecution appealed.
[13] [2011] SASC 108 at [9].
Duggan J’s reasoning relied directly on the terms of section 58 of the Sentencing Act as then applied. The material provisions of section 58 in its present form have been set out earlier. The section has been quite substantially amended since Bicanin. However, the amendments do not touch upon the issue that was before Duggan J. The appeal in Bicanin was conceded by the defence and his Honour’s judgment, in the main, canvassed issues related to resentencing. Duggan J said this.[14]
The appellant argues that the learned magistrate erred as a matter of law in ordering that the total sentence be suspended in that a component of the sentence was the period of imprisonment for three months and 21 days, the suspension of which had been revoked before being suspended once again.
According to the argument, the orders made by the magistrate were contrary to s 58 of the CLSA which provides as follows: ...
Although s 58(3) empowers the court to refrain from revoking the suspension if satisfied that the failure to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, it is clear from the fact that the magistrate revoked the suspensions with respect to each bond that he did not utilise this power. And while s 58(4) allows a court which has revoked a suspension of sentence to reduce the term of the suspended sentence if there are special circumstances justifying it in so doing, there is no power to again suspend the sentence once the suspension has been revoked.
Counsel for the respondent quite properly conceded that the sentencing process miscarried when the previously suspended sentences were again suspended and that the respondent must be sentenced afresh.
The principal argument put forward on behalf of the respondent is that this Court should exercise the power under s 58(3) of the CLSA and refrain from revoking the suspension of the original sentences. ...
[14] Police v Bicanin [2011] SASC 108 at [8]-[11].
In effect, Duggan J took the view that section 58(4) covered the field with respect to options available to a court once it has revoked a suspension in accordance with section 58(1)(d) and 58(3). At the time Bicanin was decided, the HDO sentencing option provided for in section 33BB was not available. If, at the time of enacting section 33BB, Parliament had intended an HDO to be an available option in this context, one would expect to see a clear expression of that intent, whether by way of amendment of section 58 or otherwise. Parliament did not expressly evince any such intention. Section 58(4) provides for five means by which a court may ameliorate a sentence “carried into effect” following the revocation of its suspension. An HDO under section 33BB is not included.
Further, an order pursuant to section 58(1)(d) that “the sentence be carried into effect”, as the Director has submitted, reflects a step beyond the imposition of the sentence. Once such an order is made, the offender is to serve the sentence in the usual way, that is, in a custodial institution subject to any discretionary amelioration allowed pursuant to section 58(4). The opportunity to again suspend either in reliance on section 38 or through some other mechanism has passed.
Finally on this issue, I restate my agreement with the following observation by the Chief Justice in R v Wilson.[15]
[I] observe that it is doubtful that a suspended sentence once revoked can be suspended either in whole or in part. Section 58(1)(d) of the CLSA provides that upon being satisfied of a breach of bond the Court ‘must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect’. If the matters in subs (3) are not satisfied, it is difficult to see how a sentence of imprisonment can be carried into effect other than by serving it in prison in full.[16]
[15] [2016] SASCFC 139 at [41] (Kourakis CJ with whose reasons Nicholson J agreed).
[16] Police v Bicanin [2011] SASC 108 at [9] per Duggan J; Police v Moraldo [2005] SASC 479.
For these reasons, I am of the view, with respect, that the position espoused by Duggan J in Bicanin remains sound.
The third proposition referred to earlier is also sound. An HDO is a suspended sentence of imprisonment.[17] It is not a sentence of imprisonment that has been “carried into effect” as required by section 58(1)(d). There is a fundamental difference between a sentence of imprisonment being carried into effect, that is, by way of imprisonment and one that is suspended, albeit on home detention conditions. As the Director has submitted and as the language of section 33B(1) implies,[18] section 33BB is used to suspend a prison sentence so that it is not in fact carried into effect. An act of suspension, that is, not requiring immediate incarceration, is fundamental to being able to order the serving of the term on home detention conditions.
[17] R v Neal [2017] SASCFC 44, R v Willett [2017] SASCFC 62.
[18] Section 33BB(1) provides:
Subject to this section, if … the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a home detention order).
The phrase “carried into effect” is also employed in section 33BD(1) and (4) which address the situation where an HDO has been breached. The fundamental difference between serving a sentence of imprisonment by way of suspension on home detention conditions and the imprisonment itself being carried into effect is clearly articulated within the home detention order regime.
There are other textual considerations in section 33BB itself which lend support to the conclusion that an HDO is not available following the revocation of a previous suspension. The language of section 33BB(1) which establishes essential preconditions to the exercise of the discretion is antithetical to the availability of an HDO in the circumstances under consideration. Section 33BB(1) is directed to the original sentencing judge and not a judge who at a later time comes to consider whether or not to revoke a suspended sentence. Subsection 33BB(1) provides as follows.
(1)Subject to this section, if—
(a) a court has imposed a sentence of imprisonment on a defendant; and
(b) the court considers that the sentence should not be suspended under Part 5; and
(c) the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a home detention order).
By paragraph (a), the discretion is reposed (only) in a court that has imposed the sentence of imprisonment under consideration. It is to be part and parcel of the sentencing process that the judge who imposes the prison term also considers whether or not it is to be suspended in the conventional manner under section 38 or, failing that, on home detention conditions under section 33BB. In the present case, the judge who revoked the suspension and then purported to apply section 33BB was not the judge who had imposed the sentence of imprisonment as envisaged by section 33BB(1).
That the “court” here refers to the original sentencing judge rather than the judge who has revoked the suspension even though they may be members of the same Court, is further supported by paragraph (b). An essential pre-condition to exercising the HDO discretion is that the court must first give consideration to but reject a suspension of the sentence under Part 5, that is, section 38 of the Act. However, the discretion to suspend under section 38 is not available to the revoking judge. That judge cannot suspend (a second time) under Part 5. To require, in accordance with section 33BB(1)(b), that judge to consider whether he or she should do so makes no sense.
For these reasons, I agree with the Director’s contention that an order suspending on home detention conditions the original sentence imposed with respect to the two manufacturing methylamphetamine offences would be without lawful authority and invalid. It follows that the term of imprisonment imposed with respect to the breaching offence also could not be suspended whether on home detention conditions or otherwise.[19]
Prosecution applications for permission to appeal against sentence and conclusion with respect to ground three
[19] Section 33BB(2)(a)(ii) and section 38(2)(a) of the Sentencing Act. Section 38(2a) cannot apply to the breaching offence because the prison term imposed exceeds one year.
In R v Young,[20] Blue J provided the following summary of the approach to be adopted with respect to a prosecution appeal against sentence.[21]
[20] [2016] SASCFC 102; (2016) 126 SASR 41 at [145]-[148] (Blue J with whose reasons Doyle J agreed).
[21] See also the more extended discussions by Peek J in R v Brougham [2015] SASCFC 75; (2015) 122 SASR 546 and Doyle J in R v Fusco [2017] SASCFC 47.
On a sentencing appeal by the prosecution, mere establishment of material error by the sentencing Judge is insufficient to justify the grant of permission to appeal. The Court must be persuaded that there are public policy considerations that outweigh the public interest in protecting persons from having their liberty twice placed in jeopardy.
In R v Osenkowski, King CJ (with whom White J agreed) said:
The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.
In R v Nemer, Doyle CJ said:
Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose, such as to give the court an opportunity to establish a principle of sentencing law or to establish or to maintain an adequate standard of sentencing for a particular offence or kind of offence. ... However, even when those purposes would not be served, the court can correct a particular sentence if the sentence is so far below the appropriate range of sentence that the sentence reflects an error of principle or would “shock the public conscience”. Another way of expressing this point is to say that the court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case.
In R v Payne, Doyle CJ, Mullighan, Nyland, Sulan and Anderson JJ said:
Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained.
[footnotes omitted]
In the present case the respondent left court having been sentenced to a lengthy period of imprisonment to be served on home detention and having avoided an immediate custodial term. The issue of double jeopardy arises.[22] However, its prejudicial effect on the respondent were permission to be granted and the appeal allowed is substantially ameliorated in this case for a reason I will come to.
[22] The issue of double jeopardy remains a consideration at the permission stage of a prosecution application for permission to appeal notwithstanding section 340 of the Criminal Law Consolidation Act 1935, R v Kong [2013] SASCFC 15; (2013) 115 SASR 425 at [31]-[36].
Nevertheless, and in any event, the case is one where permission should be granted, first, in order to establish an important principle of sentencing law and, second, to maintain an adequate standard of sentencing where a suspended sentence bond has been breached in a way that is not to be characterised as trivial and does not give rise to proper grounds sufficient to excuse the breach. As to this issue of proper grounds, the factual circumstances underlying the breaching offence rendered it a serious example of the offence of aggravated causing harm with intent and the respondent has a long list of criminal antecedents, some quite serious. When regard is had to the considerations identified by King CJ in R v Buckman[23] as relevant to the question of proper grounds and as further explained in later cases and which focus on the nature and circumstances of the breaching offence, proper grounds simply did not arise on the evidence available to the Judge. In my view, the Judge had no alternative but to revoke the suspension.
[23] (1988) 47 SASR 303 at 304. His Honour was giving consideration to section 9(5) and (6) of the Offenders Probation Act 1913 which for our purposes was in materially the same terms as section 58(3) and (4).
I earlier indicated that granting permission and allowing the prosecution appeal with the consequence of converting a non-custodial sentence into a custodial sentence would be less of a concern in this case than it otherwise might have been. The respondent was in the community under home detention conditions for seven weeks or so before, on 19 January 2017, the HDO was revoked and the respondent was taken into custody to serve the balance of her sentence. It is unnecessary to consider in detail the respondent’s appeal against this decision because, as I have indicated, I would grant permission with respect to the Director’s appeal even in the face of exposing the respondent to the double jeopardy of an immediate term of imprisonment. As such the respondent’s application for permission to appeal would lack utility. However, and after having regard to the circumstances of the respondent’s breach of the home detention order and the terms of section 33BD, in my view the order for revocation was well within the Judge’s discretion; no process or outcome error in the House v The King[24] sense has been established. As such, the double jeopardy principle carries less weight with respect to the permission question for ground three than it otherwise might have.
[24] [1936] HCA 40; (1936) 55 CLR 499.

I would grant permission to appeal on the Director’s third ground. As a consequence, and for reasons to be explained, I would set aside the combined sentencing order of the Judge such that the sentence for the breaching offence and the sentence applicable following the revocation of the suspension are to be considered afresh.
The Director’s grounds one and two
I turn to consider briefly the Director’s appeal grounds one and two.
The sentence originally imposed for the two offences of manufacturing methylamphetamine, one committed on 12 October 2009 and the second on 17 February 2011, was imprisonment for 25 months with a non-parole period of 12 months. The Judge in exercising the discretion available under section 58(4) of the Sentencing Act, to reduce the period of 25 months to nine months, relied on the accumulated weight of the following circumstances:
(a)the offences occurred more than six years before sentencing;
(b)the respondent had spent five months in custody in relation to the first offence;
(c)the respondent had made considerable progress including weaning herself from drugs since entry into the bonds to be of good behaviour; and
(d)the welfare of the respondent’s two children who resided with her.
The Judge also relied on “the other factors to which I have referred”. This presumably is a reference to the respondent’s overall personal circumstances which had earlier been summarised by the Judge in some detail. In this respect, it is apparent that the respondent, who was 37 at the time of sentence, has experienced, as from when very young, a difficult and unstable background. She has suffered a number of physical injuries and has had psychological problems since a child. She had two small children living with her, one of three years and the other of 20 months who suffers from a very concerning breathing condition. The respondent was sentenced for the manufacturing offences in August 2012. It would appear that the personal considerations of any real significance that arose after being sentenced for the manufacturing offences related to the respondent’s responsibility for and care of the later born children.
The discretion now available under section 58(4) and formerly available under section 9(6) of the Offenders Probation Act 1913, was explained by King CJ in R v Buckman.[25]
I agree with what Jacobs J has said as to the meaning and relationship of these two subsections. 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.
[25] (1988) 47 SASR 303 at 304. His Honour was giving consideration to section 9(6) of the Offenders Probation Act 1913 which was in materially the same terms as section 58(4).
Jacobs J said this.[26]
[B]ut if the court declines to act under subs (5), and orders that the suspended sentence is to be carried into effect, it is then, but only then, that it has to consider the various options in subs (6). One of those options is to reduce the term of the suspended sentence if there are “special circumstances” for so doing but that in my opinion is an entirely different question from that which the court has to address under subs (5) in asking itself whether there are “proper grounds” to excuse the breach. The court has already decided that there are no such proper grounds before it comes to consider the special circumstances, and the structure of the legislation therefore requires the two concepts to be distinguished. Despite the width of both expressions the distinction, I think, is this: proper grounds for excusing the breach look to the nature of the breach and the circumstances in which it was committed; special circumstances for reducing the sentence, if the breach is not excused, look to some significant change of circumstances since the prisoner was sentenced, which had they existed at that time might have justified a reduced sentence. It seems to me that they will generally be personal factors, of the kind that may dispose a court to greater leniency, which have arisen subsequent to the sentence of imprisonment - ill health or acute domestic problems or obligations spring to mind as examples, but they are only examples, and it is impossible and unwise even to attempt to state exhaustive categories of such special circumstances.
[26] At 307.
Delay of itself, ordinarily, will not constitute a special circumstance. The lengthy period between the commission of the first offence and the breaching offence and subsequent sentencing arose essentially as a consequence of conduct attributable to the respondent. There has been no unreasonable delay caused by the prosecution or the court procedures.[27] A lengthy delay such as that referred to in (a) above may provide the occasion for relevant changes in personal circumstances to intervene. However, the fact of and length of the delay, of itself, is not a special circumstance.
[27] Cf; R v Bui (No 2) [2016] SASCFC 80 at [12]-[13].
The five months spent in custody ((b) above) is also not a special circumstance. This time served was taken into account at the time the original sentence was passed as part of the reduction from a starting point of 15 months to the seven months imposed.
The Director contends that the proposition in (c) is factually incorrect; that the respondent has, in truth, shown little effective “progress” as illustrated, in particular, by the circumstances of the breaching offence and the respondent’s failure to take responsibility for the violent assault committed against her 15 year old daughter. There is force in this submission. Nevertheless, it always will be a matter of judgment and degree as to the weight to be accorded any such “progress” if, in fact, it is capable of constituting a special circumstance.
However, in my view, progress towards rehabilitation whilst subject to a suspended sentence bond, considered in isolation, ought not be seen as amounting to special circumstances. Such progress may involve events or changes in position that would so qualify but the fact of progress itself ought not. The expectation of progress towards rehabilitation being achieved is at the forefront of considerations leading to a suspended sentence bond. To later characterise any progress achieved as special circumstances such as to make the original sentence inappropriate or such that had the sentencing judge been aware of the progress a lesser sentence would have been imposed makes little, if any, sense.
Finally, the birth of, responsibility for and welfare of the two young children were matters that can qualify as special circumstances.[28] The prosecution conceded this but submitted that this consideration alone, on the facts before the Judge, was not sufficient to justify the substantial reduction to nine months.
[28] R v Bui (No 2) [2016] SASCFC 80.
The reduction, particularly when regard is had only to the matter in (d), certainly was generous and, arguably, fell outside the discretion available to the Judge. Even if so, I would not grant permission if grounds one and two had stood alone.
Had grounds one and two stood alone, it would have been sufficient to have identified for future guidance those matters said to constitute special circumstances with which I disagree. There would be no necessity in this respect to establish an important principle of sentencing law or to maintain an adequate level of sentencing. Furthermore, to have revisited the length of the suspended sentence would, in all the circumstances, have unfairly exposed the respondent to the double jeopardy of an increase in the time to be served. It would not be in the public interest that the respondent should be again vexed with the prospect of having her liberty interfered with by the prospect of a higher sentence being imposed on appeal.
Disposition of the appeals
The only successful challenge by the Director as to the two sentences under appeal is as to the HDO. It should be accepted that the fact that the Judge determined to make an HDO ought to have had no bearing on either of the two “head sentences” or the non-parole period imposed. An HDO, like an order for suspension under section 38, is to be entered upon independently of the determination of a proper head sentence and non-parole period, although all factors relevant to sentence are to be considered at each stage of the process.[29] As such, the question arises whether it would be appropriate simply to set aside the HDO but otherwise affirm the Judge’s sentencing outcome rather than set aside the sentencing outcome as a whole and resentence.[30]
[29] See generally the discussion by Kourakis J (as his Honour then was) in R v Buckskin [2010] SASC 138 at [86]-[103] particularly at [99]-[102] and R v McLean [2013] SASCFC 144; (2013) 118 SASR 280 at [37] (Nicholson J with whose reasons Kourakis CJ and Peek J agreed).
[30] Cf; DPP v Stone (1994) 63 SASR 297. In Stone, the Court of Criminal Appeal appeared to do just this when ordering only that an order for suspension under section 38 be set aside with the original sentence to be served. However, the decision can be understood on the basis that the Court entered upon a resentencing process and saw no reason to interfere with the original head sentence and non-parole period but without articulating as much.
In the context of considering whether this would be a proper disposition of the appeal, a possible technical difficulty with the structuring of the original sentence, raised by the Director, should be mentioned.
Submissions were put on behalf of the Director canvassing the power, under section 33BB, if any, to order a single HDO with respect to a total period of imprisonment arrived at by accumulating two or more separate sentences, as was done in this case. It was contended that on one construction, and as a matter of principle, a court would be constrained to order separate HDOs and notwithstanding that this might lead to practical difficulties in the event of breach and enforcement.
If there were to be such a problem, it would be avoided where a total period of imprisonment arises as the result of one sentence being ordered pursuant to section 18A of the Sentencing Act. However, section 18A cannot be used where, as in the present case, the components of a total prison term include a sentence brought into effect following the revocation of its prior suspension.[31]
[31] R v Jeffries [2004] SASC 188 (Court of Criminal Appeal).
Whether the Judge in this case erred by imposing a single HDO is not a ground of appeal. The issue briefly identified just now does not need to be further considered and I express no view. In the result, the Judge arrived at a single sentencing decision or outcome. The single HDO is part of that single outcome or an “integer of [the] sentence” in the sense discussed in McGarry v The Queen[32] and Strong v The Queen.[33]
[32] (2001) 207 CLR 121.
[33] (2005) 224 CLR 1 at [25], [27] (McHugh J) and see also R v Tyler [2016] SASCFC 7; (2016) 124 SASR 412, R v Irvine [2016] SASCFC 104; (2016) 126 SASR 146 and R v Saunders [2011] SASCFC 37.
Once the sentencing discretion has miscarried (in this case, a component thereof has been exercised without power) the requirements of section 353(4) of the Criminal Law Consolidation Act 1935 must be observed. Section 353(4) provides as follows.
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that the sentence is affected by error such that the defendant should be re-sentenced—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
Bearing in mind that section 18A of the Sentencing Act is not available, I take the view that different sentences with respect to each of the breaching offence and the breach of the suspended sentence bond should have been passed, at the least, being in each case a sentence that does not include an HDO. As such the respondent must be sentenced afresh either by this Court or following remittal to the District Court.
The Director has succeeded in having the whole sentencing outcome set aside. The question of whether there are proper grounds not to revoke must be considered afresh. In addition, the question of any reduction under section 58(4) may need to be considered afresh.
The matter is complicated by the fact that the respondent has indicated a wish to present further evidence in the event of any resentencing and has made submissions that the proper course in such an event would be to remit the matter to the District Court for resentencing pursuant to section 353(4)(a)(ii) of the Criminal Law Consolidation Act 1935.
During submissions, counsel for the respondent advised the Court that very shortly prior to the appeal hearing the respondent was served with an application under the relevant legislation seeking an order that the respondent’s two young children be taken into the care of the Minister. This, it is argued, may be seen as constituting a material change in personal circumstances arising after the original sentencing and relevant to any resentencing. In addition, as at the date of the appeal, the respondent had had no contact with the two children in her primary care since being taken into custody on 19 January 2017. The respondent’s counsel was unable to obtain full instructions on these matters as at the hearing of the appeal. Counsel indicated that, in the event of a resentencing, his client would wish to obtain further evidence concerning the likely future progress of the care application and the effect an order placing the children in the care of the Minister, if made, might have on the wellbeing of the children.
I accept that further evidence on these issues is likely to be relevant, one way or the other, to a reconsideration of the section 58(4) reduction issue. It is conceivable that the respondent may gain further support for the reduction to remain at nine months or perhaps lower. I put it no higher than that. The respondent also contends that further evidence on these issues would be relevant to the question under section 58(3) of the Sentencing Act whether proper grounds can be found as at the time of resentencing not to revoke the suspension at all. I find this to be a dubious proposition if one were confined to the considerations as explained in Buckman which focus on the nature and circumstances of the breaching offence. However, there are later cases that lend some support to allowing personal considerations to play a part when assessing proper grounds particularly if they throw light on the nature and circumstances of the breaching offence.[34] Without having the benefit of any such new evidence, I would not be prepared at this stage to exclude any potential it might turn out to have to influence the section 58(3) issue.
[34] See for example, Johnson v SA Police (Unreported, Supreme Court of South Australia, Debelle J, 22 June 1995), Reynolds v R (Unreported, Supreme Court of South Australia, Court of Criminal Appeal, 22 October 1995), Wonnocott v The Department of Correctional Services [2009] SASC 18 (David J), Manning v Police [1993] SASC 4366; (1993) 59 SASR 427 (Perry J), Police v Summers [1998] SASC 6950 and see the discussion of these and other authorities by Stanley J in Hayes v Department for Correctional Services [2016] SASC 76 at [21]-[26].
The respondent should be given the opportunity to present further evidence relevant to resentencing including with respect to the presently identified matters. In these circumstances, I would remit the matter to the District Court for resentencing before a different District Court Judge, a course which is not opposed by the Director.
Conclusion
The Director’s appeal should be allowed. The respondent’s appeal has no utility and should be dismissed. I would make the following orders.
1.Permission for the Director to appeal on the basis of ground three be given.
2.The Director’s appeal be allowed.
3.The orders made in the District Court be set aside.
4.The matter be remitted to the District Court for resentencing before a different Judge.
5.The respondent’s application for permission to appeal be dismissed.
PARKER J.
I agree with the reasons of Vanstone J and the orders that she proposes.