R v ROBINSON - [2024] SASCA 118

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v ROBINSON
[2024] SASCA 118
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice S Doyle and the Honourable Justice Bleby)
16 October 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
Following a plea of guilty, the respondent was sentenced for one count of attempting to prevent or dissuade a person from giving evidence in a judicial proceeding in contravention of s 244(3)(b) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for that offence is imprisonment for 10 years.
From a starting point of four months and two weeks imprisonment, but after reductions for the respondent’s guilty plea and time served, the sentencing magistrate imposed a sentence of three months and 10 days imprisonment. The magistrate partially suspended the sentence, with the respondent required to serve one month in custody before being released upon entering into a bond to be of good behaviour for 12 months.
The Director seeks permission to appeal on two grounds: first, that the sentence imposed was manifestly inadequate; and secondly, that the magistrate erred in partially suspending the respondent’s sentence under s 96(4) of the Sentencing Act 2017 (SA) without considering whether there were ‘exceptional circumstances’ for doing so under s 96(6) of that Act.
Held (per the Court), refusing permission to appeal:
1.Having regard to the seriousness of the respondent’s offending, and his personal circumstances, the sentence imposed was manifestly inadequate.
2.The sentence imposed was infected by a process error as the magistrate erred in the exercise of his discretion to partially suspend the sentence under s 96(6)(b) of the Sentencing Act 2017 (SA).
3.However, having regard to the nature and significance of the errors, and the principle of double jeopardy, this is not a case in which it is appropriate to grant permission to appeal. In particular, the sentence imposed was not so low that allowing it to stand would undermine public confidence in the administration of justice, and it is otherwise sufficient that this Court provide the guidance contained in these reasons.

Criminal Law Consolidation Act 1935 (SA) s 244(3)(b); Magistrates Court Act 1991 (SA) s 42(2)(ab); Sentencing Act 2017 (SA) ss 96(1), 96(3)(c), 96(4), 96(6), 96(6)(a), 96(6)(b), 96(9), referred to.
House v The King (1936) 55 CLR 499; R v Buttigieg [2020] SASCFC 38; R v Jenner (2000) 110 A Crim R 512; R v Jones [2022] SASCA 105; R v Kelly [2023] SASCA 22; R v McIntyre (2020) 138 SASR 17; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Ossitt [2011] SASCFC 23; R v Singh [2024] SASCA 81; R v White [1999] SASC 43; R v Wilson [2024] SASCA 20; R v Yaroslavceff [2022] SASCA 123, considered.

R v ROBINSON
[2024] SASCA 118
Court of Appeal – Criminal: Lovell, Doyle and Bleby JJA

THE COURT: This is an application by the Director of Public Prosecutions for permission to appeal against sentence.
Following his plea of guilty, the respondent was convicted of a single count of attempting to prevent or dissuade a person from giving evidence in a judicial proceeding in contravention of s 244(3)(b) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for that offence is imprisonment for 10 years.
From a starting point of four months and two weeks imprisonment, but after reductions for the respondent’s guilty plea and time served, the sentencing magistrate imposed a sentence of three months and 10 days imprisonment. The magistrate partially suspended the sentence, with the respondent required to serve one month in custody before being released upon entering into a bond to be of good behaviour for 12 months.
The Director seeks permission to appeal on two grounds: first, that the sentence imposed was manifestly inadequate; and secondly, that the magistrate erred in partially suspending the respondent’s sentence under s 96(4) of the Sentencing Act 2017 (SA) without considering whether there were ‘exceptional circumstances’ for doing so under s 96(6) of that Act.
At the conclusion of the oral hearing of the Director’s application, the Court refused permission to appeal. These are our reasons for joining in that order. In short, whilst there is merit in the Director’s submissions in support of both grounds of appeal, there is not a sufficient basis for this Court to intervene in circumstances where the respondent was due for release from prison within a few days of the oral hearing.
Circumstances of the offending
The victim and the respondent were known to one another, having previously lived in the same street. Approximately two years prior to the offending, the victim had engaged the respondent’s roofing business to assist with some repairs to his home. The respondent contended that he had purchased and supplied the victim with some Colourbond samples for his roofing repairs. When the victim decided not to proceed with the respondent’s services, this led to a dispute, and then ongoing animosity, between the two of them.
On 21 April 2023, the victim was at the Grange Hotel with some of his friends when he was approached by the respondent. The respondent began to push the victim to the chest with both of his hands. When the victim attempted to walk away, the respondent followed. He continued to push and follow the victim, whilst yelling words to the effect of ‘I will meet you at your house, see you in 15’.
The following day the victim provided a statement to police, and the respondent was subsequently charged with assault.
At about 10.00 am on 20 November 2023, the respondent attended the victim’s home in Grange. He repeatedly knocked on the front door for about two to three minutes until the victim opened the door.
The respondent said words to the effect of ‘what is this about the assault charge and going to court? If you know what is good for you, you will drop the charges’. The victim asked the respondent to leave his property, but the respondent ignored this request.
When the victim asked the respondent whether he was threatening him, the respondent answered by threatening him again, saying words to the effect of ‘drop the charges or else. I haven’t even touched you yet’.
The victim again asked the respondent to leave his property. The respondent complied with this request, but as he left the property the respondent said, at least three further times, words to the effect of ‘drop the charges or else’.
On 22 February 2024, the respondent was arrested and charged with attempting to prevent or dissuade a person from giving evidence.
The respondent ultimately pleaded guilty to both the assault and the offence of attempting to prevent or dissuade a person from giving evidence. He was sentenced by two different magistrates. For the assault, the appellant was released on a bond to be of good behaviour. For the second offence, he was sentenced to a partially suspended sentence of imprisonment, as elaborated upon below.
Respondent’s personal circumstances
The respondent is 55 years of age. He is a self-employed roofer and has worked his entire adult life.
The respondent’s marriage broke down about a year ago, but he continues to support, and have access to, his two children. In addition to this, the respondent’s mother, who had been suffering from dementia, died at the start of the year.
Since his offending, the respondent has engaged with a psychologist for counselling to assist him in relation to the loss of his marriage and his mother. He has also taken steps to reduce his alcohol consumption.
The respondent has only a limited criminal history. In addition to the assault which formed part of the background to the present offending, the respondent has convictions for disorderly conduct back in the 1980s and 1990s and some driving offences.
The respondent’s counsel told the Magistrates Court that the respondent did not appreciate the seriousness of his offending until he was spoken to by police.
The sentence imposed
As mentioned, the maximum penalty for the offence of attempting to prevent or dissuade a person from giving evidence in a judicial proceeding in contravention of s 244(3)(b) of the Criminal Law Consolidation Act is imprisonment for 10 years.
Although a major indictable offence, the prosecution consented to the matter being dealt with in the Magistrates Court. As a result, the magistrate could not impose a term exceeding imprisonment for five years.[1]
[1] But without altering the significance of the maximum penalty as a yardstick informing the appropriate sentence, or the applicability of the usual principles relevant to sentencing the respondent: R v Wilson [2024] SASCA 20 at [24]-[27] (Kourakis CJ, Bleby and David JJA).
After summarising the offending, and the respondent’s personal circumstances, the magistrate noted that the primary sentencing consideration was the protection of the community, with other sentencing considerations including denunciation of the offending, punishment of the respondent, personal and general deterrence, and rehabilitation.
The magistrate described the offending as serious, observing that attempts to prevent a witness from attending at proceedings interferes with the court process and threatens the integrity of the judicial system. He added that Parliament had fixed a maximum penalty that reflects the importance that the community places upon maintaining the integrity of the judicial system; and that those who seek to influence the system unlawfully can expect condign punishment.
The magistrate concluded that, taking all of the relevant sentencing factors into account, a sentence of imprisonment was the only appropriate option. Having commenced with a sentence of imprisonment for four months and two weeks, his Honour reduced this by about 25 per cent for the respondent’s plea of guilty which, after a further reduction for time served, resulted in a sentence of imprisonment for three months and 10 days.
Turning to the potential for this sentence to be suspended, the magistrate acknowledged that the offence was a ‘serious and organised crime offence’ within the meaning of s 96(9) of the Sentencing Act. He described the effect of this upon his power to suspend the respondent’s sentence of imprisonment in the following terms:
The effect of this is that the court is precluded from suspending the entirety of any sentence of imprisonment imposed unless exceptional circumstances are found to do so. The court may, if the sentence of imprisonment given is more than 3 months and less than 12 months, suspend the remainder of the sentence after the defendant has served a minimum of 1 month imprisonment. The sentence for this offence may not be served on home detention imprisonment. Exceptional circumstances relate to the offender in the sentencing process.
The magistrate then concluded that, although there were not exceptional circumstances justifying suspending the entirety of the sentence to be imposed, it was nevertheless appropriate to partially suspend the sentence:
In consideration of the factors personal to you as outlined by your counsel I do not find that there are exceptional circumstances in existence to justify the suspension of the sentence in full. Part suspension is however appropriate in all of the circumstances. I direct that you be released after serving 1 month imprisonment. The condition of your release will be that you enter into a $500 bond to be of good behaviour for 12 months.
The application for permission to appeal
The Director’s appeal against sentence is under s 42(2)(ab) of the Magistrates Court Act 1991 (SA), and requires permission. The principles governing the grant of permission on a prosecution appeal are well known, and not in dispute. They were recently summarised by this Court in R v Singh:[2]
The principles governing an application for permission to appeal against sentence by the Director are well established. Where the Director’s complaint involves one of manifest inadequacy, there will only be a grant of permission in the ‘rare and exceptional case’ where principles of double jeopardy are outweighed by the need to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or to correct a sentence which is so manifestly inadequate that it amounts to an error of principle.[3]
If a sentence falls so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice, or so low that the magnitude of the disparity itself reveals a misapplication of principle, it may also be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[4]
[2]     R v Singh [2024] SASCA 81 at [30]-[31] (Livesey ACJ, Doyle and David JJA).
[3]     R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
[4]     R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; R v Nemer (2003) 87 SASR 168 at [24] per Doyle CJ.
The Director seeks permission to appeal on the two grounds identified at the outset of these reasons. The first involves a complaint that the sentence was manifestly inadequate, by reason of both the inadequate length of the sentence of imprisonment, and the decision to partially suspend that sentence. The second involves a complaint that, in deciding to partially suspend the respondent’s sentence of imprisonment, the magistrate erred in failing to consider whether there were ‘exceptional circumstances’ justifying partial suspension of the sentence imposed.
It is appropriate to address the merits of these grounds before returning to the issue of whether this is an appropriate case in which to grant permission to appeal.
Manifest inadequacy
The principles governing manifest inadequacy are also well known, and not in dispute. As Lovell JA explained in R v Kelly:[5]
Manifest inadequacy is a conclusion. In determining whether a sentence is or is not plainly inadequate, an appellate court must essentially repeat the sentencing task undertaken by the sentencing judge and in doing so, determine whether the sentence imposed fell outside the permissible range such that it must be plainly inadequate. A sentence will not be disturbed on appeal merely because the appellate court would itself have reached a different result. To succeed on this ground, absent identifying a process error, the appellant must establish that the sentence imposed was unreasonable or unjust.[6]
[5] R v Kelly [2023] SASCA 22 at [36] (Lovell JA).
[6] R v Buttigieg [2020] SASCFC 38; R v McIntyre (2020) 138 SASR 17; R v Yaroslavceff [2022] SASCA 123.
The offence of attempting to prevent or dissuade a person from giving evidence is an inherently serious offence. In R v Jenner,[7] Doyle CJ identified the features of the offence which make that so:
The offence of attempting to dissuade a witness is a serious one. As the sentencing judge said, attempting to dissuade a witness from giving evidence strikes at the heart of the judicial system, by attempting to deprive a court of probative evidence. If a court is deprived of relevant probative evidence, the risk of a wrong decision clearly arises. The offence is serious not only because it involves the making of a threat to another person. It has the added seriousness that the purpose of the threat, and its possible consequence, is the making of a decision by a court which will be made on an incomplete appreciation of the relevant facts, and will possibly be erroneous for that reason. Such a decision can, in turn, weaken confidence in the system of justice. At the very least, some of the persons involved in the matter before the court are likely to know that a threatened witness has not given evidence and thus are likely to know that an unreliable decision has been made.
For those reasons, it is appropriate for the court to punish severely persons who commit this offence. In the end, the court must do so to protect the integrity of the system of justice.
[7] R v Jenner (2000) 110 A Crim R 512 at [72]-[73] (Doyle CJ, Bleby and Martin JJ agreeing).
The seriousness of the offence is reflected in the maximum penalty of imprisonment for 10 years. It is also reflected in Parliament’s decision to include it within the range of offences falling within the definition of a ‘serious and organised crime offence’ in s 96(9) of the Sentencing Act. The offence will generally call for a strong sentencing response, with a focus upon not only general and personal deterrence, but also denunciation of the offender’s conduct.
That said, the circumstances in which the offence may be committed differ widely, including by reference to the nature and circumstances of the threats made, and the extent of any premeditation involved in the offending. As such, it is difficult to generalise as to the range of penalty which might be appropriate in a given case.
In R v Jenner,[8] one of the defendants (Mr Masters), who was charged with attempted burglary and attempted murder, twice approached a potential witness in a shopping centre, threatening to kill her if she went to court and gave evidence. The Court of Criminal Appeal accepted that the offending was relatively spur of the moment, and motivated by a sense of outrage on the part of Mr Masters at being charged with a crime he did not commit. However, Doyle CJ (with whom Bleby and Martin JJ agreed) described the offending as a serious example of the offence given that the offending both involved a threat to kill made on two occasions, albeit close in time; and had a significant effect upon the potential witness given that she was known to Mr Masters and had every reason to think he would be able to find her should he wish to carry out his threat. It was also relevant that Mr Masters had a history of offending, including previous offences of violence, and was on parole and home detention bail when he committed the offence. In the circumstances, the Court accepted that a starting point of two years imprisonment was appropriate, with the balance of the sentence (after a reduction for time already spent in custody) to be served after the expiration of another sentence that Mr Masters was required to serve.
[8] R v Jenner (2000) 110 A Crim R 512 [76]-[80] (Doyle CJ, Bleby and Martin JJ agreeing).
In R v White,[9] the defendant was charged with attempting to dissuade a witness from giving evidence against a person charged with making a false report to police and attempted false pretences. The defendant was a friend of the person charged, and upon learning the identity of the potential witness who had given a statement to police about the matter, immediately visited her. The defendant not only berated the potential witness for giving a statement to police, but also threatened to assault her and to report her for neglecting the care of her children. The incident lasted only a few minutes. At first instance, the defendant had been sentenced to a period of 20 months imprisonment (after a 25 per cent reduction for a plea of guilty), but suspended upon the entry into a recognisance to be of good behaviour for a period of two years.
[9] R v White [1999] SASC 43 (Millhouse, Prior and Duggan JJ).

On appeal, the Court of Criminal Appeal allowed the defendant’s appeal.[10] Their Honours considered it significant that the defendant had no previous convictions and personal circumstances deserving of sympathy; and that the offending was spur of the moment and motivated by anger rather than any premeditated attempt to dissuade the witness from giving evidence. Their Honours resentenced the defendant to a sentence of 12 months imprisonment (after a reduction for the defendant’s plea of guilty), but suspended on the same terms and conditions.
[10] R v White [1999] SASC 43 at [10]-[12] (Duggan J, Millhouse and Prior JJ agreeing).
This Court was also given references to the sentencing remarks for several more recent instances of offending involving attempting to prevent or dissuade a witness from giving evidence. Whilst these provided some indication of the range of penalties being imposed in such cases, we are mindful of the limited assistance that can be gained from comparisons with other cases, particularly first instance sentencing decisions.
Returning to the present case, there were features of the offending which made it a serious example of the offence of attempting to prevent or dissuade a witness from giving evidence:
·The threats comprising the offence involved the respondent attending personally on the victim at his home, making the offending particularly frightening for the victim. The threats were also made in circumstances which would have made them seem realistic and intended to be taken seriously.
·The offending involved a series of repeated threats, which continued after the victim had asked the respondent to leave his property. That said, the threats were made in close succession, during a relatively short period of time.
·There was a degree of premeditation to the offending. Whilst motivated by anger, the threats were not made on the spur of the moment but rather formed part of a concerted effort on the part of the respondent to confront and dissuade the victim.
·The threats were made in connection with other allegations of violence perpetrated by the respondent against the victim. At the time of making the threats, the respondent knew the veracity of the earlier allegations of assault to which they related. Despite this, the respondent proceeded to attempt to dissuade the victim from giving evidence, acting out of self-interest and with full knowledge that the administration of justice would be undermined if the victim were to comply.
Against the above, it is appropriate to acknowledge that there were aspects of the respondent’s personal circumstances that were deserving of sympathy. These included his personal difficulties associated with the breakdown of his marriage and the death of his mother, and his limited criminal history.
However, even having regard to these personal circumstances, the sentence imposed by the magistrate was too low, and indeed manifestly inadequate. The offending was a serious instance of the offence of attempting to dissuade a witness from giving evidence. Given the matters identified above – both as to the inherent seriousness of the offence, and the circumstances of the respondent’s offending – a significantly longer term of imprisonment was required in order to achieve the sentencing objectives, and in particular an adequate level of general deterrence and denunciation.
Whether it would have been appropriate to suspend, or partially suspend, the sentence to be imposed, is a matter addressed below.
Suspension of the respondent’s sentence
In his second ground of appeal, the Director contends that the respondent’s sentence was infected by a process error. In particular, he contends that the magistrate was not empowered to partially suspend the respondent’s sentence under s 96(6) without finding that there existed ‘exceptional circumstances’ justifying this course, and that the magistrate failed to consider this issue.
In addressing this ground of appeal, it is appropriate to commence with the terms of s 96 of the Sentencing Act. It relevantly provides:
96—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 conditions of the bond referred to in subsection (2); and
(c)     to comply with any other conditions of the bond as the court thinks appropriate and specifies in the bond.
(2)     …
(3)A sentence of imprisonment may not be suspended under this section if the defendant is being sentenced—
(a)     to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; or
(b)     as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence; or
(ba)   as an adult for a serious sexual offence; or
(c)     as an adult for a serious and organised crime offence or specified offence against police; or
(d)     as an adult for a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence.
(4)Despite subsection (3)(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 12 months, 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.
(5)Despite subsection (3)(b), if a defendant is being sentenced as an adult to a period of imprisonment of 2 years or more for a prescribed designated offence, the sentencing court may, by order—
(a)     direct that the defendant serve a specified period of the imprisonment in prison (which, if a non‑parole period has been fixed in respect of the defendant, must be a period that is one‑fifth of the non‑parole period fixed); and
(b)     suspend the remainder of the sentence on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.
(6)Despite subsection (3)(c) and (d), the court may, if satisfied that exceptional circumstances exist for doing so—
(a)     suspend a sentence of imprisonment imposed on a defendant for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (3)(d), on condition that the defendant enter into a bond of a kind described in subsection (1); or
(b)     make an order under subsection (4) in respect of a defendant being sentenced for a serious and organised crime offence or specified offence against police, or for a designated offence in the circumstances described in subsection (3)(d), if the period of imprisonment to which the defendant is liable under 1 or more sentences is more than 3 months but less than 12 months.
(8)     …
(9)     In this section—
…
serious and organised crime offence means—
(a)     any of the following offences under the Criminal Law Consolidation Act 1935:
(i)    an offence under section 83E;
(ii)an aggravated offence under section 172 or 251, where the aggravating circumstances of the offence are the circumstances referred to in section 5AA(1)(ga)(i) or (ii) of that Act;
(iii)    an offence under section 244 or 245; or
(b)     any of the following offences under the Controlled Substances Act 1984:
(i)    an offence under section 32(1);
(ii)     an aggravated offence under section 32(2), 32(2a) or 32(3);
(iii)    an offence under section 33(1);
(iv)    an aggravated offence under section 33(2) or 33(3);
(v)an aggravated offence under section 33A(1), 33A(2), 33A(3), 33A(4) or 33A(5);
(vi)    an offence under section 33F, 33G or 33H;
…
Ordinarily, a sentencing court has a discretion to wholly suspend a sentence of imprisonment under s 96(1) in the event that it thinks that ‘good reason’ exists for doing so. Alternatively, in the case of a sentence of imprisonment for a period of more than three months, but less than 12 months, the court has a discretion to partially suspend the sentence under s 96(4).
In the present case, the respondent’s offending in contravention of s 244(3)(b) of the Criminal Law Consolidation Act was a ‘serious and organised crime offence’, or SOC offence, within the meaning of s 96(9) of the Sentencing Act.
It follows that, by reason of s 96(3)(c) of the Sentencing Act, the magistrate was prohibited from suspending the respondent’s sentence, whether wholly under s 96(1) or partially under s 96(4).
However, there is an exception to this prohibition under s 96(6). Under that subsection, the magistrate had a discretion, conditioned upon satisfaction that ‘exceptional circumstances’ exist for doing so, to either wholly suspend (s 96(6)(a)) or partially suspend (s 96(6)(b)) the respondent’s sentence of imprisonment.
On a plain reading of the legislation, in the case of an SOC offence, both the discretion to wholly suspend, and the discretion to partially suspend, were conditioned upon satisfaction that exceptional circumstances exist for doing so. The respondent does not suggest otherwise.
Whether there exist exceptional circumstances justifying suspension requires consideration of not only the circumstances personal to the defendant, but also the full range of circumstances relevant to the sentencing exercise, including not only the nature and seriousness of the offending but also the objectives of the sentencing exercise.[11] As such, the exceptional circumstances which justify wholly suspending a sentence of imprisonment may differ from the exceptional circumstances which justify partially suspending that sentence.
[11] R v Jones [2022] SASCA 105 at [39]-[45] (Lovell and David JJA and Mazza AJA).
In the present case, the magistrate said that he was not satisfied that there were exceptional circumstances justifying wholly suspending the respondent’s sentence of imprisonment. However, it is not entirely clear from his Honour’s sentencing remarks whether, in deciding that partial suspension was appropriate, he was satisfied that there were exceptional circumstances justifying that course.
The two relevant paragraphs from the magistrate’s remarks have been set out earlier in these reasons. In expressly referring to the need for exceptional circumstances when considering wholly suspending the respondent’s sentence, but not doing so when considering partially suspending that sentence, these paragraphs suggest that the magistrate overlooked the need for exceptional circumstances before ordering partial suspension.
Against this, it might be said that the magistrate’s reference to exceptional circumstances at the end of the first of these paragraphs reflects an appreciation that exceptional circumstances were required before wholly or partially suspending the respondent’s sentence. However, we consider this reading of his Honour’s remarks difficult to sustain. The reference in question was directed to the nature of the circumstances which might constitute exceptional circumstances, rather than the necessity for satisfaction that these circumstances exist before partially suspending a sentence.
We are conscious of the need to encourage brevity in sentencing remarks, and the consequential need to avoid reading them in an overly critical manner or with too fine an eye for error. However, we are satisfied that the magistrate has fallen into error. It appears that he overlooked the requirement that he be satisfied that there were exceptional circumstances justifying partial suspension before deciding to make an order to that effect. Alternatively, even if he was aware of this requirement, he did not identify or explain what those circumstances were. Whilst exceptional circumstances justifying a partially suspended sentence may have existed, that was not obviously so, particularly in circumstances where the magistrate had already concluded that there were not exceptional circumstances justifying a wholly suspended sentence.
Permission to appeal
Having concluded that there is merit in the Director’s submissions in support of both grounds of appeal, it is necessary to return to the issue of whether it is appropriate to grant permission to appeal.
The summary of the guiding principles from this Court’s reasons in R v Singh[12] has been set out earlier. Whilst the identification of error in the sentence imposed may provide a basis for granting permission to appeal, it is not usually sufficient. The nature and significance of the error(s), and the consequential public interest in this Court intervening, needs to be balanced against the concern to avoid double jeopardy, and the hardship associated with exposing the respondent to the risk of being resentenced.
[12] R v Singh [2024] SASCA 81 at [30]-[31] (Livesey ACJ, Doyle and David JJA).
In contending that the circumstances of the present case justified a grant of permission to appeal, the Director relied upon submissions to the following effect:
·The length of the sentence, combined with the decision to order that it be partially suspended, resulted in a sentence which was not only manifestly inadequate, but so low or lenient as to undermine public confidence in the administration of justice.
·The magistrate committed a process error in overlooking the requirement that he be satisfied that there were exceptional circumstances justifying partial suspension, resulting in a sentence which was not authorised by law.[13]
·Sentencing for the offence of preventing or dissuading, or attempting to prevent or dissuade, a witness from giving evidence in a judicial proceeding is a matter of high public concern. The respondent’s offending was a serious instance of this offence, being offending which struck at the very heart of the administration of justice.
·Not only is the offence a serious one, with serious implications for the administration of justice, but it has also not been the subject of any recent appellate guidance. A grant of permission would thus be consistent with this Court’s role in establishing and maintaining appropriate sentencing standards.
[13] Referring to R v Ossitt [2011] SASCFC 23 at [23] (White J, Kelly and Peek JJ agreeing).
There is some force in these submissions. The sentence imposed was manifestly inadequate, and infected by process error. That said, it is not clear to us that the sentence imposed was so low that allowing it to stand would undermine public confidence in the administration of justice. And whilst the magistrate erred in exercising his discretion to partially suspend, it was not a case in which the sentence was not authorised by law, or could not lawfully have been imposed.[14]
[14] Cf R v Ossitt [2011] SASCFC 23 at [18] (White J, Kelly and Peek JJ agreeing).
It may be accepted that by allowing the appeal, and proceeding to resentence the respondent, this Court might provide some additional guidance in relation to sentencing for the offence of attempting to prevent or dissuade a witness from giving evidence. However, these reasons will provide significant assistance and guidance even if permission were to be refused. They will serve as an indication of the seriousness of offending of this type, and will confirm the need to ensure that there are exceptional circumstances before proceeding to partially suspend a sentence of imprisonment for an SOC offence under s 96(6)(b) of the Sentencing Act.
Further, granting permission to appeal would cause the respondent significant hardship. It would be to twice vex the respondent, and to expose him to the potential, on resentencing, of not only a longer head sentence, but also the potential of being required to serve the entirety of his sentence in custody. In circumstances where, at the time of the oral hearing of the Director’s application, the respondent was due to be released within a few days, the concern to avoid exposing the respondent to double jeopardy is a significant consideration.
Having given careful consideration to all of the above, we are not ultimately satisfied that it is appropriate to grant permission to appeal.
Conclusion
For the reasons set out, whilst there is merit in the Director’s submissions in support of his two proposed grounds of appeal, we refuse permission to appeal.