R v Pham

R v PHAM
[2003] SASC 386
Court of Criminal Appeal
Coram: Perry, Mullighan and Besanko JJ

PERRY J. This is an appeal by leave against the sentence imposed upon the appellant in the District Court following his plea of guilty to possessing heroin.
Initially the appellant was charged on an information alleging possession of heroin for sale, but the Crown accepted his plea to simple possession in satisfaction of the information.
The offence arose out of a police search of the appellant’s house on 19 April 2001, when a balloon containing 1.59 grams of heroin was found in a cupboard.
This was not the first time that the appellant had been convicted of a heroin related offence.
On 28 May 1999 in the District Court, the appellant was ordered to serve a term of imprisonment of 3 years with a non-parole period of 18 months for the offence of knowingly taking part in the supply of heroin to another person. That offence was committed on 18 December 1998, when police officers located in the appellant’s motor vehicle a balloon containing 4.79 grams of heroin.
The sentence of 3 years imprisonment was suspended upon the appellant’s entry into a bond to be of good behaviour for 2 years.
The sentencing judge commented, when pronouncing sentence:
“By a narrow margin I have decided to accept your counsel’s submission that the term of imprisonment should be suspended. Do not expect to receive any further leniency if you offend again.”
As for the offence the subject of the present appeal, which I will describe as the breaching offence, the sentencing judge intimated that were it not for the plea of guilty, he would have imposed a sentence of 9 months imprisonment. Having regard to the plea, he reduced that to 7 months.
At the same time, he ordered that the 3 year suspended sentence which the appellant received in May 1999, be carried into effect, and that the 7 months sentence be served cumulatively upon it.
Against the total head sentence of 3 years and 7 months he imposed a non-parole period of 1 year and 8 months.
In his notice of appeal, the appellant complains that the sentence of 7 months for the breaching offence was manifestly excessive, and that the sentencing judge erred in failing to suspend it. In addition, he complains that the sentencing judge erred in holding that there were no proper grounds to excuse the breach of bond, and that he failed to have adequate regard to s 58(3) and s 58(4) of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).
Background
The appellant is a 42 year old refugee from Vietnam, who came to Australia in 1992. Before leaving Vietnam he was persecuted by the authorities and was subjected to torture. He spent many years in hiding from the authorities.
The sentencing judge had before him a number of medical reports, including three psychiatric reports and a forensic neuropsychological assessment performed by Mr Richard Balfour, psychologist. In addition, he had before him a psychosocial report furnished by Mr Steven Thompson, the co-ordinator of a program for assisting survivors of torture and trauma.
On the basis of those reports, the sentencing judge accepted that the appellant suffered from a severe post traumatic stress disorder, and that he was still suffering, or had suffered from a range of other symptoms, including depression, anxiety, insomnia, flash-backs and vivid nightmares. He accepted also that the appellant was in poor physical health and suffered from chronic headaches, a back injury and liver and kidney problems.
His treatment for these conditions included the medical administration of morphine, but the appellant from time to time unlawfully supplemented this with heroin.
The appellant explained his possession of the heroin the subject of the offending now in question on the footing that he was taking it to alleviate pain.
Due to his poor health since arriving in Australia, the appellant has remained unemployed. He speaks no English, and receives a disability support pension.
The appellant’s antecedent report records that apart from the offence of taking part in the supply of heroin, for which the sentence of 3 months imprisonment was imposed, in 1995 the appellant committed the offence of producing cannabis, and in 1998 offences of larceny and unlawful possession. For those offences he received fines without convictions being recorded.
The appellant is married with two children aged 13 and 4.
He was at one stage separated, but at the time he was sentenced on the offence now in question, he and his wife had reconciled.
Arguments on appeal
The appellant contended through his counsel Mr Schapel that the starting point for the penalty imposed with respect to the breaching offence, which was 9 months, represented a “significant proportion”, as he put it, of the maximum penalty of 2 years imprisonment, and that the circumstances of the offence did not deserve such a severe penalty.
Mr Schapel argued that as the appellant was using the heroin for pain relief, this was a significant mitigating factor, and that in all the circumstances the sentence of 7 months was, on his contention, manifestly excessive.
He further contended that the penalty for the breaching offence should have been suspended, and that the sentencing judge should either have exercised his power under s 58(3) of the Sentencing Act to refrain from revoking the suspension of the earlier sentence of 3 years, or should have reduced the term of the 3 year sentence pursuant to s 58(4).
As for the latter submission, while he conceded that the breaching offence was of a similar nature to the offence upon which the suspended sentence had been imposed, Mr Schapel contended that there was a substantial difference in the seriousness and in the quality of the offences. This resulted in what he described as a “manifest disproportion” between the seriousness of the breaching offence and the length of the sentence which was activated.
Insofar as the appellant had contended before the sentencing judge that the term of the bond pursuant to which the 3 year sentence had been suspended should be extended, by reason of the appellant’s medical condition, Mr Schapel argued that the sentencing judge was in error in observing during the course of his sentencing remarks:
“You have been under regular medical supervision over the years, and indeed it would appear that many of the problems advanced on your behalf were in existence at the time this court imposed the suspended sentence. As well as that, you were supervised for a period by a probation officer.”
Mr Schapel contended that there was no material before the sentencing judge to suggest that any real attempt had been made to address the appellant’s problems during the course of the bond.
Mr Henchliffe, who appeared for the prosecution, contended that the breaching offence was far from trivial, and that 7 months was an appropriate penalty. He drew attention to the quantity of heroin and its value. There was evidence that if it had been bought as a 5 gram weight, it would have cost between $1,200 and $2,000.
Mr Henchliffe submitted that the fact that the heroin was for the appellant’s personal use was not a mitigating factor, as given that he was charged only with simple possession, he could not have been punished for possessing it for any other reason.
He submitted that there was no good reason to suspend the sentence of 7 months, and that activation of the earlier sentence of 3 years imprisonment was justified, on the footing that there was no good reason to justify adoption of any of the alternative courses provided for in s 58(3) and s 58(4) of the Sentencing Act.
The penalty imposed for the breaching offence
It is important to recognise that separate discretions, turning upon different principles, apply to the determination of the penalty to be imposed upon the breaching offence, the question whether the sentence imposed with respect to the breaching offence should have been suspended, and the question whether the earlier suspended sentence should have been activated, or if activated, reduced.
Consideration of those principles must proceed against the backdrop of the requirement that interference by this Court will only be justified if the appellant is able to demonstrate error in the sense explained in House v R,[1] as affirmed recently by the High Court in Dinsdale v R.[2]
[1] (1936) 55 CLR 499.
[2] (2000) 175 ALR 315.
The imposition of the penalty for the breaching offence involved an exercise of what might be described as the general sentencing discretion, as to which relevant considerations appear in s 10 and s 11 of the Sentencing Act.
The maximum penalty for possession of heroin is 2 years imprisonment. While the amount of heroin in this case was, to use Mr Schapel’s expression, “not unduly large”, it was significant. Furthermore, allowance should be made for the fact that the appellant’s possession of the drug was not an isolated incident, given that the appellant maintained that he had been using the drug for the relief of pain.
The prosecution did not join issue with the appellant’s assertion that his possession of the drug was for that purpose, and it appears to have been accepted by the sentencing judge.
The fact that the offence was committed while the appellant was on a good behaviour bond, albeit towards the end of it, is a circumstance of aggravation.
The sentencing judge’s allowance for the plea of guilty, namely a deduction of 2 months from a starting point of 9 months was a 22 per cent discount.
Following the appellant’s plea of not guilty to possession for sale which was entered on 2 October 2001, there was a voir dire hearing largely directed to the admissibility of evidence which would have been relevant to sale as opposed to simple possession, and subsequent negotiations which eventually led to the entry of the plea of guilty to the lesser charge. In the intervening period the proceedings in the District Court became somewhat attenuated by reason of the time taken to obtain the psychiatric and psychological reports, which were largely directed to the question whether or not the appellant was fit to plead.
However, for some time the appellant continued to deny responsibility for the heroin found at his house, for example, in the history which he gave to the psychiatrist, Dr Raeside.
In all the circumstances, the reduction for the plea of guilty was reasonable. Mr Schapel did not suggest otherwise.
While use of heroin for pain relief may sometimes be regarded as a mitigating circumstance on a charge alleging its possession, it appears from the medical reports that since his arrival in Australia the appellant has regularly sought assistance from his general practitioner and has had access to a number of medical specialists who prescribed what appears to have been a large variety of medications. In addition, he had the assistance of a psychiatrist through the organisation known as STTARS which is a counselling service for survivors of torture and other traumas.
As to this aspect of the matter, I would conclude that the appellant has consistently had ready access to medical and psychiatric help and to lawfully prescribed medications.
However, I accept that the appellant’s antecedents, including the tragic circumstances leading up to his migration to this country and his persistent poor state of health, were circumstances of mitigation, as to which appropriate weight was to be given.
But with drug offences, the objective seriousness of the offending and the need for the sentence to reflect a substantial element of general deterrence means that in such cases the allowance to be given for the personal circumstances of the offender may more readily be recognised in the setting of the non-parole period.
Effectively, by increasing the previous non-parole period of 18 months to 20 months, the sentencing judge set a very low non-parole period of only two months with respect to the breaching offence. There could be no serious complaint as to that.
In all the circumstances, in my view, the appellant has not demonstrated that the sentence for the breaching offence was manifestly excessive.
Suspension of the sentence for the breaching offence
This involves a consideration of the exercise of the discretion under s 38 of the Sentencing Act.
As to the nature of that discretion, I repeat what I said in R v Wacyk:[3]
“The discretion to suspend a sentence arises under s 38 of the Criminal Law (Sentencing) Act 1988 (SA). Pursuant to that section, a sentence may be suspended by the court ‘if it thinks that good reason exists for doing so’. The section speaks for itself. It would be wrong to circumscribe those plain words by reference to any supposed formula or other gloss.
A suspension of sentence may be granted with respect to any offence unless the power to do so in a particular case is expressly taken away by Parliament. The exercise of the discretion miscarries if it is approached with a preconceived view that any particular offence or class of offences may only properly be met by an immediate custodial term of imprisonment.
.... notwithstanding indications given from time to time by this Court that certain offences ordinarily call for an immediate custodial term, there must always be room for the odd exception. Strictures that a given offence or class of offences will ordinarily deserve an immediate custodial term are nothing more than an indication that the need for general deterrence attaching to them will commonly outweigh idiosyncratic features attaching to the case, including considerations personal to the offender.
...........
It will never be possible to isolate any single factor in a given case as being determinative of the exercise of the discretion whether or not to suspend. The exercise of that discretion one way or the other must turn upon a careful evaluation of the overall circumstances of the particular case, which will include consideration of the circumstances of the offending and the circumstances personal to the offender.”
[3] (1996) 66 SASR 530 at 535.
“Good reason” to suspend may, of course, be apparent from a combination of circumstances.
In considering whether or not a sentence warrants suspension, it is necessary to revisit all of the circumstances to which attention may have been directed in determining the sentence sought to be suspended.
As it was put by Kirby J in Dinsdale v R[4] in dealing with the comparable legislation applicable in Western Australia:
“[85]... the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term.[5] This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender.”
[4] (2001) 175 ALR 315 at 336.
[5] Thomas, Principles of Sentencing, 2^nd ed, 1979, pp 244-5; R v P (1992) 39 FCR 276 at 285; 111 ALR 541 at 551.
In this case, Mr Schapel argued in effect that the appellant’s poor state of health and his possession of the drug to relieve pain constituted a “good reason” to suspend. Mr Schapel also submitted that if the bond pursuant to which the three year term of imprisonment was to be suspended, then in those circumstances the seven months term of imprisonment should also be suspended.
I suppose that it could be said that if circumstances existed which would properly support an extension of the bond pursuant to which an earlier sentence of imprisonment has been extended, it is likely that those circumstances would also constitute “good reason” to suspend any sentence of imprisonment which might be imposed with respect to the breaching offence.
But there may be cases where the justice of the case might best be met by extending the period of the bond for the earlier offence but requiring the defendant to serve some shorter term of imprisonment for the breaching offence.
Conversely, if the previously suspended sentence is to be activated, there may nonetheless be good reason to suspend the sentence to be imposed on the breaching offence. Such a result could well be justified by reason of the fact that the existence of “good reason” to suspend a sentence imposed on the breaching offence may well be satisfied by evidence falling short of circumstances which would justify the exercise of any of the powers under s 58(3) and s 58(4) of the Sentencing Act.
The fact that the defendant has previously had the benefit of a suspended sentence must ordinarily be regarded as a circumstance which tends against the suspension of a sentence for an offence which is committed subsequently, a fortiori where that offence is committed during the currency of the bond pursuant to which the earlier sentence was suspended.
That is not to deny that there may be occasions where successive suspensions may be ordered. But the commission of a further offence following the suspension of an earlier sentence must reduce the sentencing options which it is appropriate to bring into play for the second offence.
At the end of the day, the appellant must satisfy this Court that the sentencing judge erred in failing to suspend the sentence for the breaching offence. It is not enough that opinions might differ as to whether the sentence should have been suspended.
In all the circumstances, I am not satisfied that the sentencing judge erred in taking the course which he did.
In my view, this ground of appeal is not made out.
Activation of the three year term of imprisonment
As I have indicated, Mr Schapel argued that the bond pursuant to which the three year term of imprisonment was suspended should have been extended, or if the suspension was revoked, that the term of the suspended sentence should have been reduced.
The separate discretions relevant to the question whether or not the court should take either of those courses are to be found in s 58 of the Sentencing Act, the relevant provisions of which, including the heading, are as follows:
“Orders that court may make on breach of bond
58(1)    Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court-
(a).......
(b).......
(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-
(i)-
(A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
(B)in the case of a bond requiring performance of community service, extend, by not more than six months, the period within which any remaining hours of community service must be performed; or
(C)cancel the whole or a number of any unperformed hours of community service; or
(D)revoke or vary any other condition of the bond; or
(ii)if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year.
(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)may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(ba)may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;
(c)may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
(5)    .........”

Once breach of a bond pursuant to which a sentence of imprisonment has been suspended is proved, the starting point is the command in s 58(1)(d) that in those circumstances the court “must ... revoke the suspension and order that the sentence be carried into effect”.
That is subject only to the ameliorating provisions to be found in s 58(3). Those provisions are invoked if the court is satisfied that the breach “was trivial or that there are proper grounds upon which the failure should be excused”.
Here, it is not suggested that the breaching offence was trivial.
The question then is whether the sentencing judge erred in failing to find “proper grounds upon which the .... [breach] .... should be excused”, and if he did not err in that respect, whether there were “special circumstances” within the meaning of s 58(4)(a) which would justify the court in reducing the term of the suspended sentence or adopting one of the other options contained in that subsection.
The principles governing the application of the relevant provisions of s 58 were discussed in R v Buckman.[6]
[6] (1987) 47 SASR 303.
That case concerned the corresponding provisions of the Offenders Probation Act 1913. The relevant provisions of that Act were in substantially the same terms, and to the same effect, as the corresponding provisions in the Sentencing Act. More particularly, s 9(4), s 9(5) and s 9(6) of the Offenders Probation Act may, for present purposes, be taken to correspond with s 58(1), s 58(3) and s 58(4) of the Sentencing Act.
In Buckman King CJ observed:[7]
“There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.”
[7] Ibid 304.
King CJ went on to discuss the application of the discretions conferred by s 9(5) and s 9(6) of the Offenders Probation Act. In doing so, his comments may be taken as pertinent to consideration of the corresponding discretions conferred by s 58(3) and s 58(4) of the Sentencing Act.
He said:[8]
“Parliament has recognised, however, that in some cases the rigorous application of the ordinary consequences of breach can be oppressive and even unjust. It has therefore provided to the courts the means of ameliorating those consequences in exceptional cases. Subsection (5) of s 9 of the Offenders Probation Act 1913 empowers the probative court to refrain from ordering that the sentence be carried into effect where the failure to observe the conditions of the recognisance is trivial or there are proper grounds for excusing it. Subsection (6) authorises the reduction of the term of imprisonment in ‘special circumstances’.
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.
The purpose of subs (5) is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. I think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.” (emphasis added)
[8] Ibid 304.
It will be seen from the second italicised passage from that quotation that King CJ was of the view that the “proper grounds” which might operate to excuse the failure to comply with conditions of the bond will generally give rise to a situation where activation of the sentence would be “a quite disproportionate consequence”.
However, if the sentence is activated and the question is whether there are “special circumstances” justifying the reduction of the term of the sentence, this will not be a proper course to follow unless subsequent to the imposition of the suspended sentence circumstances have arisen which, if they had been in existence at the time the sentence was imposed, would have rendered it inappropriate.
In Buckman, Jacobs J, who was in general agreement with the judgment of King CJ, expressed the same approach in this way:[9]
“.... 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.” (emphasis added)
[9] Ibid 307.
In this case, the sentencing judge held that there were no proper grounds for excusing the breach under s 58(3). In the course of his sentencing remarks, he said:
“You have two prior drug-related offences: producing cannabis and taking part in the supply of heroin. For the latter offence, you received from this court, on 28 May 1999, a suspended sentence and a bond to be of good behaviour for two years. On your own admission, this offending has breached that bond.
You were warned at the time of that bond that you could not expect any further leniency if you offended again, but your counsel has nonetheless asked that I excuse your breach in this case, referring to your medical and psychological problems, the reasons for your use of heroin, the difficulties you might encounter in prison and your difficult personal history and family circumstances.
In the first place, it is plain that your offending is not trivial, so I have then considered whether there are proper grounds for excusing it.
I am not persuaded that there are. You have been under regular medical supervision over the years and, indeed, it would appear that many of the problems advanced on your behalf were in existence at the time that this court imposed the suspended sentence. As well as that, you were supervised for a period by a probation officer.
Accordingly, I order that the suspension of your sentence be revoked and that the three-year sentence you received in May 1999 be carried into effect.”
In challenging that finding, Mr Schapel emphasised the disproportion which he suggested existed between the breaching offence and the length of the suspended sentence. In the course of his address he invited the Court:
“.... to look at the man, look at his history, what has happened to him, the background to the offending which gave rise to the breach, and his reasons for that offending, caused no doubt, by this man’s unfortunate background. If all of that is to be accepted, as it seems to have been by the learned sentencing judge, then we say there were plain reasons why the breach of a suspended sentence should have been excused, and even if we can’t point to an error in his sentencing remarks, we say that the outcome in this case, being as disproportionate as it was to this man’s breach, must indicate an error on the part of the learned sentencing judge.”
It is true that in the passage which I have cited from his judgment in Buckman King CJ identifies disproportion between the breaching offence and its consequences in terms of activation of the suspended sentence as a circumstance relevant to the exercise in favour of the defendant of the discretion conferred by s 58(3).
King CJ did not, however, refer to disproportion in isolation, but in Buckman regarded the “total effect of the relatively minor nature of the offence constituting the breach, the difference in character between it and the offence for which the sentence was imposed and the disproportion between the seriousness of the offence constituting the breach and the sentence which would be activated” as amounting to proper grounds upon which the failure to observe the conditions of the recognisance might be excused.
On the facts of Buckman it is easy to understand how that conclusion was reached. In that case the appellant had been sentenced to two and a half years imprisonment suspended on a three year good behaviour bond on a charge of unlawful wounding.
The breaching offence was committed 18 months later when the appellant pleaded guilty to shop lifting involving goods to the value of $2.82.
R v Marston[10] turned on similar considerations, namely a marked disparity between the consequences of activating the suspended sentence of imprisonment and the circumstances of the breaching offence.
[10] (1993) 65 A Crim R 595.
In Marston the appellant was sentenced to a suspended term of three years imprisonment for robbery with violence. Three months later she committed a larceny of two muffins and a knife, the total value of which was $24.
In Marston the Court of Criminal Appeal[11] emphasised that in the ordinary course of events breach of a bond pursuant to which a sentence is suspended will result in the revocation of the suspension, but that may not necessarily be the case where there is a marked disparity between the seriousness of the breaching offence and the sentence to be activated.
[11] King CJ (Perry and Duggan JJ concurring).
Similar considerations were held in Lawrie v The Queen[12] to justify an order setting aside the revocation of the suspension of a sentence of imprisonment imposed on an aboriginal woman for offences of house break and larceny, the breaching offences in that case being a number of relatively minor street offences involving police.
[12] (1992) 59 SASR 400.
A case involving similar considerations but in which there was a different outcome is R v Chandra.[13]
[13] (Unreported) CCA, Doyle CJ, Cox and Williams JJ, 17 February 1998, judgment No S6554.
In that case the appellant had been convicted in November 1994 on a charge of attempting to procure a person to become a prostitute. The offence was committed in February 1994. Following her conviction, she was sentenced to imprisonment for six months. The sentence was suspended upon her entry into a bond to be of good behaviour for two years.
Subsequently she was charged with two counts alleging breach of the bond. Breaches were said to have been constituted by two convictions for attending premises frequented by prostitutes. These offences were committed on 25 March and 30 April 1996.
The District Court judge who dealt with the appellant for breach of bond ordered that the suspension of the sentence be revoked. He found that there were no special circumstances justifying him in reducing the term of the suspended sentence.
Doyle CJ, with whose judgment Cox and Williams JJ concurred, held that the judge was not in error in revoking the suspension. Doyle CJ observed:[14]
“Much reliance was placed upon the disproportion, as it was said to be, between the six months sentence to be activated and the relatively minor nature of the breaching offences. That is a factor to be taken into account and I refer again to R v Marston.[15] Reliance was also placed upon the redeeming aspect of the appellant’s involvement in the sex industry and upon the other good things that she had done.
The District Court judge considered all that. He was not persuaded that there was any disproportion between the seriousness of the breaching offences and the length of the suspended sentence. He found that there were no proper grounds upon which the failure to comply with the bond should be excused and he revoked the suspension of the sentence.
I begin by noting, as did King CJ in R v Marston (supra), that there is a clear legislative policy that, in general, a breach of a bond upon which a sentence has been suspended should result in the offender serving the sentence which was suspended. Departure from that principle runs the risk of undermining the integrity of the system of suspended sentences, and their effectiveness as a means of deterring future offenders. To say that is in no sense to undermine the requirement to consider whether there are proper grounds upon which the failure should be excused. What King CJ said merely reflects the context in which that question is to be considered. That is, a context in which a suspended sentence is to be regarded as a real sanction, and the sanction is the risk of activation of the suspended sentence if there is a breach of the terms of the relevant bond.
It is submitted that the judge erred in finding that there was ‘some similarity’ between the original offence and the breaching offences. I reject that submission, although the words used by the judge were not ideal. The judge said that there were links to prostitution in each case. I consider that there were, and that that is a relevant factor.
In a general sense it can be said that one of the purposes behind the suspended sentence was to deter the appellant from engaging in prostitution and any conduct related to prostitution. Being at premises frequented by prostitutes, in my opinion, has a link to prostitution. The breaching offences demonstrate that the intended deterrence had not been fully effective. The judge was entitled to consider that factor.”
[14] Ibid 3.
[15] (1993) 60 SASR 320.
For other reasons, the court considered the matter afresh. In doing so, Doyle J added:[16]
“The one matter that gives me pause is the disproportion between the seriousness of the breaching offences and the length of the sentence which is to be activated. The sentences for the breaching offences are relatively minor, although their minor nature is, in the present case, to be weighted against the fact that they are offences that do bear similarities to, or have links to, the offence in respect of which the suspended sentence was imposed. In my opinion it cannot be said in this case that the breaching offences are, in the words of Jacobs J, offences of ‘a quite different character from that for which the [suspended] sentence was imposed’. I again refer to R v Buckman. There is a relevant relationship between the breaching offences and the original offence.”
[16] Ibid 4.
Later he said:
“I consider that the appellant has shown a tendency to offend in the very area from which the suspended sentence was intended to deter her.”
Of course, each case must be decided on its own facts. But it seems to me that the considerations which moved the court in Chandra to decline to disturb the order revoking the suspension, are in many respects comparable to this case.
Here, the suspended sentence was imposed for being in possession of heroin for the purposes of sale. The breaching offence involves simple possession of a not insignificant amount of the same substance.
I have set out above the terms of the warning which was given by the sentencing judge who dealt with the appellant upon the occasion when the 3 year term of imprisonment was imposed.
There is no reason to suppose that the sentencing judge failed to take into account all relevant circumstances in holding that no proper grounds had been made out to excuse the failure to comply with the bond.
As for the question agitated on appeal as to whether or not if the suspension is to be revoked there are nonetheless grounds upon which it would be proper to reduce the term of the activated sentence, this involves a consideration of the separate and distinct discretion identified in s 58(4) of the Sentencing Act.
In his sentencing remarks the sentencing judge does not refer to s 58(4) or to the possibility that the term of the activated sentence might be reduced. It does not appear that he was invited to consider the exercise of the discretion to reduce the sentence, in the event that the sentence was activated.
However, Mr Schapel urged this Court to consider doing so if we were not disposed to interfere with the activation of the sentence.
As to this aspect of the matter, it appears to me that the appellant faces the difficulty that, as was made clear in Buckman (supra), the special circumstances which must exist in order to justify a reduction in the term of the suspended sentence must be circumstances which have arisen since the imposition of the sentence and which, if they had been in existence at that time, would be likely to have resulted in a shorter term.
Here, the principal matters relied upon by the appellant to justify the exercise of the powers in his favour under both s 58(3) and s 58(4) are his unfortunate personal background and his state of health. But both of those factors existed at the time the 3 year term of imprisonment was imposed. There is no material before the Court which points to any significant change in the appellant’s circumstances in that respect over the relevant period.
The personal circumstances of the appellant excite a good deal of sympathy, and I have anxiously considered whether or not there is any basis upon which this Court could ameliorate the effect upon the appellant of the sentence under appeal.
However, for the reasons which I have given, I am of the opinion that the appellant has failed to demonstrate that the sentencing judge erred in taking the course which he did.
I would dismiss the appeal.
MULLIGHAN J. I have had the advantage of considering the reasons for judgment of Perry J in which he sets out the factual background and the issues on this appeal.
The circumstances of the appellant are very sad. They excite considerable sympathy. His life in Vietnam was harsh and oppressive and it is difficult for anyone in this country to appreciate the severity of his environment in his developing years. His life in a refugee camp in Indonesia for two to three years and his migration to Australia as a boat refugee about 9 to 10 years ago must also have been difficult and stressful experiences for him.
He now has serious ill health. He suffers Chronic Post Traumatic Stress Disorder and a significant mood disorder which probably constitutes a Major Depressive Disorder. He suffers insomnia, poor appetite, poor short-term memory in some respects, severe headache, including possibly migraines, asthma and liver and kidney disease. He also suffers nightmares with the theme of being tortured, attacked and thrown off a cliff. His physical health is poor and he suffers significant back pain.

He lives with his wife and children but otherwise his life is substantially isolated. He spends most of his time at home. He is unable to work and has few interests outside watching television. He has limited capacity to speak English.
This brief description of the circumstances of the appellant is taken from psychiatric, neuro-psychological and medical reports which were before the learned Sentencing Judge. There is no dispute about them or any reason to doubt their accuracy.
The appellant claimed that he acquired the heroin for his own use to alleviate pain. That claim is not disputed. I agree that it is reasonable to approach this appeal on the basis that the learned Sentencing Judge accepted that claim as a basis for sentencing.
The sentence
I think that the sentence of seven months after the reduction for the plea of guilty is a severe sentence. The appellant’s prior offending, particularly the offence of possessing heroin for sale, is important. Committing the present offence during the currency of the bond is a matter of aggravation. For the reasons expressed by Perry J, the amount of the reduction in the sentence for the eventual plea of guilty was appropriate. However, given the relatively small amount of the drug which he possessed and the reason for his use of heroin against the background of his distressing personal circumstances and ill health, I think the sentence starting point of nine months was a little high.
However, the question is whether the exercise of the sentencing discretion miscarried. I think it has miscarried. The learned Trial Judge accepted that it was likely that, due to the medical and psychiatric condition of the appellant, he would serve his sentence in prison with “some difficulty”. It appears that he brought that matter to account when extending the non-parole period. It is certainly relevant to the exercise of that discretion, but it is also an important matter when fixing the head sentence.
It is well established that ill health of an offender is relevant to consideration of an appropriate sentence, particularly when the offender suffers from a condition which will cause a hardship to the offender when serving the sentence or will adversely affect his or her health: R v Smith (1987) 44 SASR 587 per King CJ. He said at 589:
“How far should the new information about the appellant’s health affect the matter? The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.”
See also R v De Vroome (1988) 38 A Crim R 146, per King CJ at 147-8; Inge v The Queen (1999) 199 CLR 295 per Kirby J at 316 and R v Liddy (No 2) (2002) 84 SASR 231 at 260-261. This position is to be contrasted with additional hardship caused only by the nature of the offence, eg child sexual abuse.
This principle is acknowledged in s 38(2c) of the Criminal Law (Sentencing) Act (“the Act”) which provides:
“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 other 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) remunerated employment;
(b) necessary medical or dental treatment for the defendant;
(c)averting or minimising a serious risk of death or injury (whether to the defendant or some other person);
(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).”
Whilst no evidence was placed before the learned Sentencing Judge as to the effect upon the appellant in serving a sentence of imprisonment, particularly as to his health, it does not take much consideration to reach the conclusion that time spent in prison will be very hard for him indeed. He will serve his time much harder than a person in good, or even average, health. Furthermore, the appellant speaks little English so further isolation from his family, and the limited sphere of the community in which he operates, is likely to have a harsh impact upon him, much more so than a person without his poor health and disability.
This matter was not considered by the learned Sentencing Judge when fixing the head sentence. There should be a reduction of an otherwise appropriate sentence for that reason. In my view, the sentencing discretion miscarried and must be exercised afresh. The starting point should be a sentence of eight months which I would reduce by two months on account of the appellant’s plea of guilty and by a further two months because of his ill health and the problems this will pose for him in prison. The head sentence should be six months. If there were no complication of the existing suspended sentence and the appellant had not been in prison since the sentence was imposed, I would have suspended the sentence and imposed a home detention condition of the bond for a period of six months pursuant to s 38(2c).
The appellant has been in prison under sentence since 22^nd May 2003, a period of nearly six months. But for the complication of the previous suspended sentence, I would have regarded the time already served in prison as sufficient punishment and would not impose any further sentence, including a home detention as a condition of a bond.
In view of the conclusions which I have reached, it is not necessary to consider whether the sentence imposed by the learned Sentencing Judge should have been suspended.
I now turn to the decision of the learned Sentencing Judge to revoke the suspended sentence. As Perry J has stated, the learned Sentencing Judge was required to revoke the suspension of that sentence and order that it be carried into effect, unless he was satisfied that the failure to comply with the conditions of the bond was trivial, which is plainly not the case, or there are proper grounds upon which that failure should be excused: s 58(3) of the Act. If not, the suspension of the sentence must be revoked and the learned Sentencing Judge had to consider whether there were special circumstances justifying the terms of the sentencing being reduced: s 58(4)(a) of the Act.
In R v Buckman (1987) 47 SASR 303 King CJ discussed the predecessor to s 53(3) in the Offenders Probation Act 1913: s 9(5). He said at 304:
“The purpose of subs (5) is different. It authorises the probative court to avoid altogether the revocation of the suspension where there are factors relating to the breach itself which justify that course. One such factor is the trivial character of the breach. The other is the existence of proper grounds upon which the breach might be excused. I think that Parliament had in mind that a breach, although not trivial, might be of such a character that the activation of the sentence might be a quite disproportionate consequence of it. It think that the notion of excuse is not employed in the absolute sense of the breach being excusable in itself but rather in a relative sense of being excusable in relation to the consequences which would otherwise ensue. The notion is that of the failure being excused from being the catalyst of the activation of the sentence.”
Jacobs J expressed his view as follows at 307:
“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.”
There has been no attempt to specify what may amount to proper grounds. It is not necessary to establish that there is disproportion between the original offence and the breaching offence but only that, in all the circumstances, the breaching offence of such a character that the activation of the sentence might be a disproportionate consequence of it. Parliament has made it clear that the discretion may be exercised when the breaching offence is not trivial. It follows, in my view, that the breaching offence may be a significant breach of the criminal law but there may be proper grounds to excuse the resultant breach of the bond if the circumstances of the offence and offence justify that course.
The learned Sentencing Judge gave only brief reasons for his conclusions that proper grounds did not exist. He said:
“You were warned at the time of that bond that you could not expect any further leniency if you offended again, but your counsel has nonetheless asked that I excuse your breach in this case, referring to your medical and psychological problems, the reasons for your use of heroin, the difficulties you might encounter in prison and your difficult personal history and family circumstances.
In the first place, it is plain that your offending is not trivial, so I have then considered whether there are proper grounds for excusing it.
I am not persuaded that there are. You have been under regular medical supervision over the years and, indeed, it would appear that many of the problems advanced on your behalf were in existence at the time that this court imposed the suspended sentence. As well as that, you were supervised for a period by a probation officer.”
I do not think the warning given to the appellant at the time the sentence was suspended is relevant to the determination of whether proper grounds exist as it is not relevant to the nature of the breach or the circumstances in which it occurred. The difficulty due to ill health and the other matters personal to the appellant, which I have mentioned, in serving a sentence in prison and the reason for the use of heroin are relevant matters, and I do not think they were given adequate weight. The learned Sentencing Judge appears to have discounted them because they existed at the time the suspended sentence was imposed. It appears that the supervision by a probation officer of the appellant was regarded as being contrary to a finding of proper reasonable grounds to excuse the breach. The period of supervision was during the first year of the bond and therefore I do not think it is a relevant factor.
In my view, the learned Sentencing Judge erred in his conclusion that proper grounds did not exist. Whilst it must be acknowledged that the crime of possessing heroin is a significant breach of the criminal law, it was committed through private use of the drug to relieve pain. It did not involve, or cause harm, to others. Whilst the crime involved heroin like the original offence, it is of a very different character to possessing heroin for sale which necessarily causes devastating consequences to others when the heroin is sold.
The pathetic circumstances of the appellant are relevant. I have discussed the sentencing principle regarding his ill health and the consequences to him serving a prison sentence.
Another reason not to revoke the suspension of the sentence is to permit the appellant to continue his rehabilitation following his conviction for possessing heroin for sale. He had satisfactorily completed nearly the complete term of the bond before the present offence was detected, and there is no reason to suppose that he has again breached the bond by committing some other offence. The term of the bond has long since expired.
I conclude that there are proper grounds to excuse the breach of the bond and the discretion pursuant to s 58(3) must be exercised afresh. I would require the appellant to enter into a further bond in the sum of $100 for a term of one year to be of good behaviour, to be under the supervision of a probation officer and obey reasonable directions as to any medical or psychiatric treatment which may be desirable and as to place of residence. It should be a condition of the bond that the appellant report to the office of the Department for Corrections within two days of having entered into the bond.
As I am of the opinion that the suspension of the sentence should not be revoked, the sentencing discretion as to the breaching offence may be exercised without consideration of the suspended sentence. I would set aside that sentence and as the appellant has been in prison for nearly six months, I would not impose another sentence.
I would allow the appeal and set aside the sentence of imprisonment for seven months, the revocation of the suspended sentence, and the new non-parole period, I would order that the appellant enter into a fresh bond as I have proposed.
BESANKO J:         In my opinion, this appeal should be dismissed. I agree with the reasons for judgment of Perry J and there is nothing I wish to add.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (1936) 55 CLR 499.
2. (2000) 175 ALR 315.
3. (1996) 66 SASR 530 at 535.
4. (2001) 175 ALR 315 at 336.
5.    Thomas, Principles of Sentencing, 2^nd ed, 1979, pp 244-5; R v P (1992) 39 FCR 276 at 285; 111 ALR 541 at 551.
6. (1987) 47 SASR 303.
7.    Ibid 304.
8.    Ibid 304.
9.    Ibid 307.
10. (1993) 65 A Crim R 595.
11.    King CJ (Perry and Duggan JJ concurring).
12. (1992) 59 SASR 400.
13.    (Unreported) CCA, Doyle CJ, Cox and Williams JJ, 17 February 1998, judgment No S6554.
14.    Ibid 3.
15. (1993) 60 SASR 320.
16.    Ibid 4.

[2003] SASC 386

18 December 2003