R v SIEBEL

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SIEBEL
[2010] SASCFC 56
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice White and The Honourable Justice David)
18 November 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
Appeal against sentence - appellant was sentenced to imprisonment for 30 months with a non-parole period of 20 months' imprisonment for producing cannabis - Judge declined to suspend sentence - whether sentence and non-parole period manifestly excessive - whether Judge erred in concluding that good reason did not exist for suspending sentence - appeal allowed - appellant resentenced - sentence suspended upon appellant entering into good behaviour bond.
Controlled Substances Act 1984 (SA) s 32(1)(a); Criminal Law (Sentencing) Act 1988 (SA) s 38, referred to.
R v Mangelsdorf (1995) 66 SASR 60, applied.
R v McIntee (1985) 38 SASR 432; The Queen v Suckling (1983) 33 SASR 133; R v Todd (1982) 2 NSWLR 517; The Queen v Ogg (unreported, Court of Criminal Appeal, King CJ, 19 April 1988); Dinsdale v The Queen (2000) 175 ALR 315; R v Gjoka (unreported, Supreme Court of South Australia, 1 July 1997, Jdgt No S6211); R v Frantzis (1996) 66 SASR 558; R v Cristol [2002] SASC 288; R v Hill [2005] SASC 380; Miller v Police [2002] SASC 387, considered.

R v SIEBEL
[2010] SASCFC 56
Court of Criminal Appeal: Sulan, White and David JJ

SULAN J: The appellant pleaded guilty to producing cannabis, contrary to s 32(1)(a) of the Controlled Substances Act 1984 (SA). The particulars of the offence are that between 1 March 2006 and 30 March 2006 at Salisbury Plans he knowingly produced cannabis. It is alleged that 45 plants were produced. The maximum penalty for the offence is ten years’ imprisonment or $50,000.
On 29 September 2010, the appellant was sentenced to imprisonment for 30 months. The sentencing Judge fixed a non-parole period of 20 months’ imprisonment. The Judge declined to suspend the sentence. The appellant contends that the sentence of imprisonment and non-parole period are manifestly excessive. Further, that the Judge was in error in concluding that good reason did not exist to suspend the sentence.
Background
On 29 March 2006, police attended premises at Salisbury Park. They observed a number of rooms in which cannabis plants were growing under hydroponic lights. In total, police observed 45 plants at various stages of cultivation. There were also 130 clones in separate rock wool blocks. The appellant told the police that his reason for growing cannabis was that he owed somebody money. The appellant was charged with the offence of cultivating cannabis. He was released on bail. The appellant answered to his bail and attended a number of court hearings. However, in January 2007, he failed to appear in the District Court and a warrant was issued for his arrest.
In the period between January 2007 and December 2009, the appellant continued to live at his home and worked as a crash repairer. The warrant was not executed until December 2009 when the appellant voluntarily presented himself to the police. The appellant’s excuse for failing to answer to his bail was that he feared that he would receive a prison sentence, and that he did not want to be separated from his wife and son. In December 2009, after his son left home, he decided to surrender in order to bring the matter to a conclusion. Counsel for the DPP was unable to explain why the warrant for arrest had not been executed and that it was only after the appellant surrendered himself to the Court that the matter proceeded to finality.
At the time the appellant pleaded guilty, he contended that he was not growing the cannabis for profit. The DPP contested the appellant’s submission. At a contested disputed facts hearing, the appellant gave evidence that he had been involved in an altercation with a number of men at the Smithfield Hotel. He later discovered that the men were members of a motorcycle gang. They approached him and demanded that he grow marijuana for them. He said that the operation which the police observed had been set up on the appellant’s premises by members of this gang, and he was acting under their direction in cultivating the marijuana.
The Judge rejected that evidence and concluded that the appellant was selling cannabis to pay off his debts. The Judge found that there was a commercial aspect to the offending.
The appellant, who is 47 years of age, was sentenced as a first offender. In the course of sentencing submissions, the Court received a number of medical and psychological reports. The appellant had been working as a panel beater throughout the period of his bail and after he failed to appear in Court, until he sustained an injury to his right knee in October 2009. He was treated for the injury, which included surgery. He continues to have persistent discomfort in his knee. He also suffers back pain as a result of degenerative changes to his back, for which he requires treatment. He is taking a variety of medication for his disabilities.
The Judge received a report from the Department for Correctional Services in which it was noted that the appellant weighs 178 kilograms, that he requires treatment for his knee and back, and that he has been prescribed various medications. The Prison Health Service reported that the appellant will require a special bed to accommodate his size, and that he will have access to physiotherapy and non-opiate pain medication. However, he will not have access to massage, chiropractic services or hydrotherapy, which he was receiving prior to being taken into custody. The appellant has been recommended for lap-band surgery, which would be available when deemed necessary.
The sentence
The Judge accepted that the appellant suffers from poor health. He observed that the appellant has problems with kidney stones, gout, his right knee and back, and that these problems were exacerbated by the appellant’s excessive weight. The Judge also noted that the appellant had a good work record. The Judge gave credit to the appellant for his plea of guilty, but observed that he could not give him full credit for the plea because he had disputed the prosecution case. The Judge concluded that the reason for the offence was that the appellant was in debt and needed money to repay his debt. He observed that the appellant had not made any money from the enterprise, but that there was a potential for money to be made if the project had been completed. The Judge considered that the appropriate starting point was a sentence of 36 months’ imprisonment. He reduced that period to 30 months’ imprisonment on account of the plea of guilty, and fixed a non-parole period of 20 months. In considering whether the sentence should be suspended, the Judge stated:[1]
The prosecutor opposed the suspension of a sentence. He referred to the need for general deterrence. The Court of Criminal Appeal has often said that in cases such as this, where there is a commercial element, suspension of the sentence of imprisonment is inappropriate. The prosecutor referred to the scale of the enterprise. While there were 45 plants with root development at the time of the police search, there was the potential for some of the other plants to develop.
The Judge said that he was unable to suspend the sentence.
[1] AB 126.
The appeal
Counsel for the appellant submits that the sentence is manifestly excessive. He submits that the Judge was in error in observing that police found a total of 175 plants. Counsel submits that there were 45 cannabis plants and 130 cuttings which could not be classified as cannabis plants.
In my opinion, no error has been demonstrated. The Judge made it clear that he was sentencing the appellant for producing 45 plants. He observed that there were 38 clones with some root development, plus a further seven plants. The Judge did note that there were a further 130 clones which had not displayed root development and so were not alleged by the prosecution to be cannabis plants. That observation was accurate. The appellant’s complaint has no basis.
Counsel further submits that the Judge failed adequately to consider that various medical treatments which the appellant was undertaking would not be available to the appellant whilst in custody. It is correct that massage, chiropractic and hydrotherapy treatment are not available to persons in custody. Undoubtedly, the appellant suffers from discomfort which is alleviated by such treatment.
Counsel sought to adduce fresh evidence as to the effect that the lack of availability of such treatments would have on the appellant whilst he is in custody. Counsel produced a letter dated 27 October 2010 from the appellant’s instructing solicitor, Mr Christoforou, to Professor Krishan who had been treating the appellant for his knee problems. Mr Christoforou sought an indication from Professor Krishan as to the effect a lack of treatment would have on the appellant whilst in custody. Professor Krishan indicated that the unavailability of the specified treatments “may accelerate [the appellant’s] deterioration”.
An appellate court will only receive fresh evidence in circumstances in which it clearly can be shown that the failure to receive the evidence might result in an unjust sentence being permitted to stand.[2] The Judge was aware of the appellant’s medical condition and referred to it in some detail in his sentencing remarks. I am satisfied that the evidence sought to be relied on adds little or nothing to the material which was before the Judge, and I do not rely upon it. There is no error demonstrated in the Judge’s approach.
[2] R v McIntee (1985) 38 SASR 432, 435.
The appellant further complains that the Judge failed to give sufficient weight to the fact that the appellant had substantially rehabilitated himself, as he had not committed any further offences over a period in excess of four years. The likelihood of him reoffending is remote. The submission raises the difficult question when there has been a significant delay between the offending and the time of sentencing during which the offender has taken significant steps towards his rehabilitation and demonstrated that he is unlikely to offend again in the future.
The principle of how a court should approach sentencing in these circumstances was discussed by Legoe J, with whom Wells and White JJ agreed in The Queen v Suckling.[3] In Suckling, the appellant had been awaiting sentence for offences committed in South Australia when he escaped from prison and went to Victoria. He was apprehended for offences in that State and sentenced to eight years’ imprisonment. Upon release, after having served 5½ years’ imprisonment, he was brought to South Australia to be sentenced for the offences committed prior to him having escaped from custody. In discussing the extent to which the court in South Australia should have regard to the events which had intervened due to the defendant’s conduct of escaping from custody, Legoe J referred to the decision of the New South Wales Court of Appeal in R v Todd.[4]In that case, Street CJ said:[5]
Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for stale crime, long after the committing of the offences, calls for considerable measure of understanding and flexibility of approach – passage of time between offences and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.
[3] (1983) 33 SASR 133.
[4] (1982) 2 NSWLR 517.
[5] Ibid 519.
Applying that principle, Legoe J thought it appropriate in Suckling to take into account both the period which the defendant had spent in custody in Victoria and the progress towards rehabilitation which was relevant to his conduct and attitude.
In The Queen v Ogg,[6] King CJ observed that where a defendant absconds and deliberately and voluntarily absents himself to escape justice, it would be wrong for the court to accept that factor as operating in mitigation of penalty. The Chief Justice stated that, nevertheless, a sentencing court must look at the situation which exists at the time when the sentence is passed. What has occurred over the period when the defendant was absent cannot be ignored.
[6] R v Ogg (unreported, Court of Criminal Appeal, King CJ, 19 April 1988).
There is a tension between the court not being seen to be encouraging defendants not appearing by giving them the benefit of the lengthy delay between the offence and sentence, and the requirement to take into account a defendant’s rehabilitation demonstrated over a long period. Furthermore, there may be other factors which are relevant to the defendant’s current situation which have occurred in the intervening period. For example, a defendant having married, having dependents, obtaining employment or starting and conducting a successful business, and other factors relating to the defendant’s health which may impact on the court’s approach to the sentence.
In the present case, there are a number of factors which are relevant in addition to the appellant having demonstrated, by not offending again, that he has progressed significantly towards his rehabilitation. Those factors include the deterioration of his health, which includes the injuries sustained by him whilst working.
Was the sentence manifestly excessive?
The Judge commenced with a starting point of three years’ imprisonment. That starting point was within the range for offences of this type. The quantity of cannabis was significant. The appellant was cultivating the cannabis for commercial purposes. He intended to profit from the enterprise. In cases in which there is a commercial purpose and an intention to profit from such an enterprise, a sentence of three years’ imprisonment, even in the case of a first offender, cannot be said to be excessive. The reduction of six months for the plea of guilty was also appropriate.
The Judge determined that a non-parole period of 20 months’ imprisonment should be served. The non-parole period is two-thirds of the head sentence. The appellant submits that, having regard to his age, the fact that he is treated as a first offender, that up to the time of this offence he had been in employment, and the fact that this was an isolated offence, the non-parole period was manifestly excessive. The Judge had regard to those factors.
Although both the sentence and non-parole period are at the higher end of the scale for this offender, and that the factors relied upon by the appellant might justify a lower non-parole period than that set by the Judge, I am not satisfied that they are manifestly excessive.
Suspended sentence
The Judge declined to suspend the sentence. In so doing, he reasoned that, where there is a commercial element, suspension of a sentence of imprisonment is inappropriate. In my view, that approach demonstrates error. In Dinsdale v R,[7] Kirby J, with whom Gaudron and Gummow JJ agreed, observed that it is necessary to look at all matters relevant to the circumstances of the offence and to the personal circumstances of the offender when considering whether good reason exists to suspend a sentence.
[7] (2000) 175 ALR 315, or (2000) CLR 321, 348.
The Judge may have had regard to the statement of Doyle CJ in R v Mangelsdorf where the Chief Justice stated:[8]
As I have already remarked in these reasons, this Court has consistently said that suspension of a sentence of imprisonment is inappropriate in the case of the possession of cannabis for sale which that takes place against a background of substantial involvement in cannabis trading. In my opinion, that is the case here, in the sense that the quantity of cannabis indicated an intention to engage in substantial trading.
[8] (1995) 66 SASR 60, 75.
In that case, the appellant had in his possession significant amounts of cannabis and cannabis resin. The Court concluded that his involvement in cannabis trading was substantial. He had also had the benefit of four previous suspended sentences, two for drug offences. The general statement of Doyle CJ in Mangelsdorf is not to be taken as a statement that, in cases in which there is a commercial element to the possession of cannabis, a suspended sentence is never appropriate. The overriding principle which must be followed when deciding whether to suspend a sentence is that all factors, both personal and those relevant to the offending, must be reconsidered.
I accept that a sentencing judge is not required to mention every matter that has been put to him. It can be assumed that judges will have had regard to relevant factors when considering whether a sentence is to be suspended. Nevertheless, it is necessary for a judge to give sufficient reasons to enable a defendant and an appellate court to understand the basis upon which he has arrived at his decision not to suspend a sentence. The Judge, in this case, did not give sufficient reasons. He simply regarded the commercial nature of the offence as a good reason not to suspend.
The Judge was required to balance a number of interests. Those interests included the personal circumstances of the offender, the circumstances of the offending, personal and general deterrence, the fact that the appellant was a first offender, and his prospects of rehabilitation.
It seems that the Judge was under a misunderstanding that, because of the commercial nature of the enterprise, the sentence should not be suspended. That, in my view, is an error. Accordingly, the exercise of his discretion has miscarried.
It follows that this Court must reconsider the question of suspension.
Resentencing
This is a difficult case. Views may well differ about whether it is appropriate to suspend the sentence.
There are factors to support a conclusion that good reason exists to suspend the sentence. Those factors include the appellant’s ill health, and his necessity for treatment, some of which is not available whilst he is in custody. Second, I have regard to his age. He is 47 years of age and has no relevant criminal record. Third, he has demonstrated a desire to rehabilitate himself. Whilst he was on bail after the offence, he was in full-time employment until he was injured. He committed no further offences and he did not come to the notice of police.
This was an isolated offence. It was not part of an ongoing commercial enterprise. Although 45 plants is not an insignificant quantity, the number of plants did not demonstrate a thriving business. There was a commercial purpose in the offending, but there was no sophistication about it. I do not consider that this was a case of substantial involvement in cannabis trading. The personal circumstances of the appellant support a conclusion that good reason exists to suspend the sentence.

I would grant permission to appeal, allow the appeal and set aside the sentence. For the reasons I have given, I would not interfere with the head sentence and non-parole period, other than to reduce them for the period that the appellant has now been in custody. I impose a sentence of 28 months and two weeks’ imprisonment with a non-parole period of 18 months and two weeks’ imprisonment. I would suspend the sentence upon the appellant entering into a bond in the sum of $2000 to be of good behaviour for two years.
WHITE J. The circumstances of this application for permission to appeal are set out in the reasons of Sulan J.
I agree that it is not appropriate to interfere with the head sentence and the non-parole period, for the reasons given by Sulan J.
In what follows, I address the questions of whether the Judge’s decision concerning suspension was affected by error, and whether suspension should be ordered in this case.
The Judge’s Reasons Concerning Suspension
The Judge sentenced the appellant immediately after the conclusion of the sentencing submissions, and his ex tempore sentencing remarks were brief. On the topic of suspension the Judge said:
Your counsel asked me to suspend any sentence of imprisonment. He pointed out that you and your spouse are purchasing a home and there is a mortgage over the property which you pay. Sadly, as is often the case in matters like this, the penalty that the Court must impose affects the family of the defendant as much as the defendant himself.
…
The prosecutor opposed the suspension of a sentence. He referred to the need for general deterrence. The Court of Criminal Appeal has often said that in cases such as this, where there is a commercial element, suspension of the sentence of imprisonment is inappropriate. The prosecutor referred to the scale of the enterprise. While there were 45 plants with root development at the time of the police search, there was the potential for some of the other plants to develop.
… [Y]ou would have been sentenced for a period of three years. As a result of your plea of guilty I reduce that to imprisonment for 30 months. I fix a non-parole period of 20 months. I am afraid that I am unable to suspend the sentence.
(Emphasis added)
Counsel for the appellant emphasised the two italicised passages. He submitted that they indicated that the Judge had dealt with the issue of suspension on the basis of a misapprehension, namely, that decisions of this Court indicated that suspension of a prison sentence was inappropriate in all cases of the present kind. Counsel submitted in the alternative that the italicised passages indicated that the Judge had approached the exercise of the discretion concerning suspension too narrowly, because he had focussed inappropriately on the commercial element of the appellant’s offending, and insufficiently on the matters which were more personal to the appellant.
Section 38 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) empowers a sentencing court to suspend (on conditions) a sentence of imprisonment “if it thinks that good reason exists for doing so”.
The judgment of the Chief Justice (with whom Prior and Williams JJ agreed) in R v Mangelsdorf[9] is the starting point for the identification of appropriate principles concerning the application of s 38 in circumstances like the present. Doyle CJ said:
The Court has referred time and again to the severe penalties imposed by s 32 of the Controlled Substances Act, in particular, to the severe penalties imposed for commercial activity in relation to the drugs dealt with by s 32; and to the evident expectation of Parliament that the courts will impose penalties which will deter people from engaging in commercial activity with respect to these drugs. The Court has also made it clear that a suspended sentence will be justified only in truly exceptional circumstances when the offence is one involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32.[10]
(Emphasis added)
Later, with particular reference to the appeal against the sentence imposed for offences of possession of cannabis and cannabis resin for sale, Doyle CJ said:
In relation to the decision to suspend, one also needs to bear in mind the seriousness of the present offence. As I have already remarked in these reasons, this Court has consistently said that suspension of a sentence of imprisonment is inappropriate in the case of the possession of cannabis for sale when that takes place against a background of substantial involvement in cannabis trading. In my opinion, that is the case here, in the sense that the quantity of cannabis indicated an intention to engage in substantial trading. The Court has, on a number of occasions, revoked orders for suspension made in such cases, despite the considerations which tell against doing so on an appeal by the Director of Public Prosecutions against sentence.[11]
[9] (1995) 66 SASR 60.
[10] Ibid at 63.
[11] Ibid at 75.
In the later case of R v Gjoka,[12] Doyle CJ made it plain that the quoted passages from Mangelsdorf were not intended to modify the statutory criterion of “good reason” contained in s 38. The Chief Justice (with whom Olsson and Lander JJ agreed) said:
The question of suspension is more difficult. The remarks of the trial Judge suggest that he thought that it was not appropriate to suspend unless there were exceptional circumstances. In saying that he may have been echoing my remarks in Mangelsdorf (supra). As I have already indicated, those remarks were made with reference to a more serious category of offending.
The power to suspend the sentence is conferred by s 38 of the Sentencing Act. The Court may suspend the sentence “… if it thinks that good reason exists for doing so”. That is the statutory criterion and that is the test to be applied.
Nevertheless, it is appropriate for this Court in particular cases to determine, as it did in Mangelsdorf (supra), that the nature or gravity of an offence is such that suspension will not be appropriate unless exceptional circumstances are present. To do so is not to displace the statutory criterion. It is to do no more than to indicate that because the statutory criterion has to be applied in the light of the circumstances of the case, the seriousness of a certain type of offence and the appropriate approach to punishment for that offence may combine to mean that it will be very difficult to justify suspension.
[12] (Unreported, Supreme Court of South Australia, 1 July 1997, Jdgt No S6211).
The approach to suspension stated by Doyle CJ in Mangelsdorf and Gjoka has been referred to in a number of subsequent decisions. For example, R v Frantzis;[13] R v Cristol;[14] R v Hill;[15] and Miller v Police.[16] It is of course necessary to keep in mind the class of cases to which Doyle CJ was referring in Mangelsdorf, namely, those s 32 offences involving, or committed against, a background of involvement in commercial trading or dealing in the drugs dealt with by s 32.
[13] (1996) 66 SASR 558.
[14] [2002] SASC 288.
[15] [2005] SASC 380 (by Besanko J and Vanstone J).
[16] [2002] SASC 387.
Even when applying the Mangelsdorf approach, courts have found the existence of good reason to suspend the sentence.
It cannot be said therefore that as a matter of principle suspension may never be appropriate in a case like the present. Mangelsdorf itself does not stand for such proposition, and nor do the later cases which have applied it. What can be said is that, in relation to offences of the present kind, the very seriousness of the offending and the requirement for deterrence will usually mean that suspension is inappropriate, but that there may be circumstances in a particular case in which good reason to suspend may be found. It is also clear that the discretion must be exercised by reference to the statutory criterion, having regard to the circumstances of the particular case.
The passages in the Judge’s sentencing remarks to which I have referred indicate that the Judge may have approached the question of suspension too narrowly, and may indeed have thought that the discretion to suspend could not (as opposed to should not) be exercised in this case.
I accept that the sentencing remarks should not be read in a hyper-critical way. It is possible that the Judge may have adopted a brief, even terse, manner of expression with the intention of bringing home to the appellant the seriousness of his offending, and that his manner of expression may have led him to state the principle in more absolute terms than he intended. However, even taking account of this possibility, I am left with the impression that the Judge may have applied a rule of thumb to the question of suspension, rather than considering all the matters which bore on the appropriate exercise of the discretion.
I am also conscious that the sentencing remarks were given ex tempore, and that they could draw some context from the content of the sentencing submissions and the Judge’s discussions with counsel during those submissions. A reading of the sentencing submissions in this case indicates, however, that there was no discussion of the relevant principles in the sentencing submissions and that the Judge’s manner of expression cannot be explained in this way.
Accordingly, I am satisfied that the appellant has made good the contention that the Judge did err in his approach to the question of suspension. This makes it necessary for this Court to revisit that issue.
Re-sentence
The appellant’s conduct was serious. The appellant’s evidence at the disputed facts hearing indicated that his involvement in the production of cannabis commenced approximately three months before his arrest on 29 March 2006. Initially, the appellant cultivated three cannabis plants hydroponically for approximately four to five weeks and then used them to produce several clones. He said that none of those clones survived and the three original plants also died.
The appellant then obtained and cultivated three further plants and, in some way not satisfactorily explained in the evidence, obtained an additional four plants. After cultivating these seven plants hydroponically, a few days before 29 March 2006 the appellant cut 175 clones. These clones were placed in small rockwool blocks in trays and were being grown hydroponically. There was evidence that the appellant had used an Omega machine in his cultivation of the cannabis plants. This was an electric rotating device which allowed the cultivation of hundreds of plants in a confined area around one central light.
As at 29 March 2006, 38 of the clones had some root development. The Judge was satisfied that a further 130 clones had the potential to develop into cannabis plants.
The police found a message on the appellant’s mobile phone which was strongly suggestive of an arrangement for a sale of cannabis for cash.
The circumstances found by the police on 29 March 2006 indicated that the appellant was acting as a wholesale supplier of cannabis clones. He was producing cannabis in a sophisticated way, using specialised equipment. On his own admission, he had been engaged in attempts to produce cannabis for approximately three months.
The Judge rejected the appellant’s claim that he was not growing the cannabis for sale, but had instead grown it at the instigation of an outlaw motorcycle gang. The claim was that members of the gang had intimidated the appellant into growing the cannabis as an act of appeasement for some wrong he was said to have done to other members of the gang. The Judge sentenced the appellant on the basis that he was producing cannabis clones for sale, with the intention to use the proceeds to pay off his own debts.
In my opinion, this is the kind of offending to which Doyle CJ referred in Mangelsdorf in the passages referred to above. The circumstances of the appellant’s offending, considered by themselves, suggest that this is a case in which it would be difficult to justify a favourable exercise of the discretion to suspend.
The appellant was 42 years of age at the time of the offending and is now 47. He had prior court appearances when he was 19 and 20 years of age but, like the Judge, I consider that that offending can be ignored for present purposes. There has been no further offending since 2006. The appellant has accordingly shown himself to be of good character for most of his adult life.
The appellant has some problems with his health, but the evidence does not indicate that these problems will make his time in custody more difficult than would otherwise be the case, or that treatment recommended to him by his medical advisors will not be available. I agree with the reasons of Sulan J regarding the fresh evidence which the appellant sought to adduce on the appeal on this topic.
The appellant originally appeared in the District Court in October 2006 and entered a plea of not guilty. Shortly afterwards, however, he failed to answer his bail and a bench warrant was issued. For reasons not explained in the papers before this Court, that bench warrant was never executed, despite the appellant continuing to live at his usual address. It is to the appellant’s credit that he eventually voluntarily presented himself to the police in late 2009. Had he not presented himself, the further prosecution of the charge may have been overlooked. However, the weight which can be given to this consideration is limited as it would be inappropriate for the courts to condone in any way a practice of offenders absconding or breaching bail in order to avoid facing in court the consequences of their actions. This does not mean that circumstances occurring in the intervening period are not to be considered in the sentencing.
The appellant’s incarceration is likely to cause difficulties for his family. That is a not uncommon consequence of imprisonment. The appellant must have known when he chose to engage in this serious criminal activity that it could have adverse consequences for his family. The knowledge that a sentence of imprisonment may have this consequence is part of the deterrent effect of a prison sentence.
The fact that the appellant has not offended again in the period of four and a half years since his offending is a positive indication of his rehabilitation. On the other hand, at the disputed facts hearing, the appellant did attempt to minimise the culpability of his conduct by attributing it to the alleged intimidatory conduct of others. The appellant’s failure, as recently as at the time of sentencing before the Judge, to accept full responsibility for his own conduct tends to undermine his claim of progress towards rehabilitation.
When regard is had to all of these matters, I do not consider that this is one of those cases in which good reason to suspend does exist.
It follows that I would grant permission to the appellant to appeal against the sentence, but would dismiss the appeal.
DAVID J: I agree that the appeal should be allowed for the reasons given by Sulan J. I agree with the order he proposes.

[2010] SASCFC 56

18 November 2010

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Evidence

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Sentencing

Appeal

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