R v Smith

Case [2014] SASCFC 98

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v SMITH

[2014] SASCFC 98

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Blue)

10 September 2014

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM

The appellant pleaded guilty to one count of aggravated assault causing harm and was sentenced to 19 months imprisonment with a non-parole period of nine months. The sentence was suspended on the appellant entering into a two year bond to be of good behaviour.  The appellant breached the bond on two separate occasions, driving whilst disqualified, and a Judge of the District Court ordered that the term of imprisonment of 19 months be served. The appellant appeals against that order on the ground that the Judge should have excused the breaches of bond.

Held by Kourakis CJ (Vanstone and Blue JJ agreeing) dismissing the appeal:

1. There is no express or implied requirement in s 58(3) of the Criminal Law (Sentencing Act) 1988 (SA) that the breaching offence be of a similar kind to the offence for which the probationer was placed on a bond (Kourakis CJ at [24]).

2.  There were no circumstances which called for the breaches of bond to be excused (Kourakis CJ at [26]).

The appellant failed to demonstrate any sentencing error (Kourakis CJ at [23].

Criminal Law (Sentencing Act) 1988 (SA) s 38, s 57, s 58; Criminal Law Consolidation Act 1935 (SA) s 20; Motor Vehicles Act 1959 (SA) s 91, referred to.
R v Buckman (1988) 47 SASR 303, applied.
R v Marston (1993) 60 SASR 320; House v The King (1936) 55 CLR 499, discussed.

R v SMITH
[2014] SASCFC 98

Court of Criminal Appeal:  Kourakis CJ, Vanstone and Blue JJ

  1. KOURAKIS CJ:         This is an appeal against sentence.

  2. On 21 May 2012 the appellant, Trevor William Smith, was convicted in the District Court on his plea of guilty of one count of aggravated assault causing harm pursuant to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).[1]On 18 October 2012 the appellant was sentenced to a term of imprisonment of 19 months with a non-parole period of nine months.  The sentence was suspended on his entering into a two year bond to be of good behaviour (the bond).[2]

    [1]    The assault was aggravated because it was committed in the company of the other accused.

    [2]    Criminal Law (Sentencing) Act 1988 (SA), s 38(1).

  3. On 1 June 2013 and on 13 September 2013, the appellant committed offences of driving whilst disqualified. He pleaded guilty to both offences in the Magistrates Court and was sentenced to 14…

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R v Smith [2014] SASCFC 98
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[2014] SASCFC 98
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CaseChat Overview and Summary

The appeal concerned the appellant, who had an extensive criminal history, and the decision of a sentencing judge to revoke a suspended sentence of imprisonment. The dispute arose when the appellant breached the conditions of his suspended sentence by committing two further offences on separate occasions.

The central legal issue before the court was whether the sentencing judge erred in revoking the appellant's suspended sentence and ordering that the original sentence be carried into effect. This required the court to consider the statutory provisions governing the breach of suspended sentences, specifically the mandatory nature of revocation unless certain exceptions apply, and the grounds upon which a breach might be excused.

The court reasoned that under section 58(1)(d) of the Criminal Law (Sentencing) Act, revocation of a suspended sentence upon breach is mandatory unless the failure to comply with the conditions of the bond is trivial or there are proper grounds for excusing the failure. The judge found that the appellant's offending was not trivial, and that any grounds for excusing the breach must relate to the nature of the breaching offences, not the personal circumstances of the offender. The court distinguished the present case from *The Queen v Buckman*, where a breach of shoplifting was excused due to the offender's rehabilitation efforts and the disproportion between the original offence and the subsequent one. In this instance, the appellant committed two separate offences of driving under disqualification shortly after the suspended sentence was imposed, which the court considered to be serious and not disproportionate to the original offence. The court affirmed the legislative policy that a breach of a suspended sentence generally results in the offender serving the suspended sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant has an extensive criminal history. He was first convicted of a criminal offence when he was 21 years of age. He has numerous convictions for dishonesty, drug and vehicle offences, and failure to comply with bail agreements.The enforcement decision The Judge explained his decision not to excuse the breach as follows:When a person is placed on a suspended sentence bond to be of good behaviour for a certain period of time, he ought to obey all the conditions of the bond imposed and be of good behaviour for the entire period of the bond. Good behaviour means not committing any further offences, regardless of whether they are summary offences or major indictable offences.You knew that any further offending of any nature could result in the previous suspension being revoked and yet you committed not one but two offences on separate occasions.…S.58(1)(d) of the Criminal Law (Sentencing) Act makes it clear that the court ‘must’, not ‘may’, revoke a suspension and order that the sentence be carried into effect unless the requirements of sub-s.(3) of s.58 are made out, namely, that the failure to comply with the conditions of the bond was trivial or that there are ‘Proper grounds upon which the failure should be excused’. In other words, the usual course is for a suspended sentence to be brought into effect upon breach.This offending was certainly not trivial. In considering whether there are proper grounds, I note that they must relate to the nature of the breaching offence and not to the personal circumstances of the offender, see Marshall v The Police (1999) SASC 397. In your case, the breaching offences occurred a short while after the initial suspended sentence, and there were two of them. They are serious offences in themselves such that you received sentences of imprisonment.They must have been committed after some thought as to whether or not to breach your bond. Your counsel has referred to the case of Buckman in the Full Court as being an authority pointing in favour of not revoking your suspended sentence. See The Queen v Buckman (1988) 47 SASR 303. In that case, the appellant had received a suspended sentence for unlawful wounding and the breaching offence was one of shoplifting.The majority of the Full Court, under the previous legislation, held that the breach was excusable by virtue of the efforts of the probationer to rehabilitate herself and the disproportion between the initial offence and the later offence of shoplifting.There is no material before me upon which I could rely on your efforts to rehabilitate yourself as being proper grounds to excuse your failure to comply nor do I think the disproportion between the original offence and the two later offences is significant. Two offences, separate offences, of Driving under Disqualification are far more serious than one offence of shoplifting.Further, the court in Buckman recognised: ‘A clear legislative policy that, in general, a breach of a condition of a recognisance in which a sentence has been suspended should result in the offender serving the sentence which was suspended.’ (At p.304 of the State Reports.)The complaint on appeal

Ratio Decidendi

Legal Principle Established

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