R v Smith - [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

KOURAKIS CJ: This is an appeal against sentence.
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).
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 days imprisonment and 24 days imprisonment respectively. In committing those offences, the appellant breached the bond. On an application to enforce the bond brought pursuant to s 57 of the Criminal Law (Sentencing) Act 1988 (SA) (the CLSA) by the Director of Public Prosecutions, a Judge of the District Court ordered that the term of imprisonment of 19 months be carried into effect.
The appellant appeals against that order on the ground that the Judge should have excused the breaches of bond.
The appellant has failed to demonstrate any sentencing error. I would dismiss the appeal. My reasons follow.
The circumstances of the assault
The victim, V, had agreed to babysit for the jointly accused Ms G on 15 April 2011. When Ms G left home with the appellant, her children were in bed asleep and V was watching television. Later that night, Ms G returned home with the appellant and another man. Upon her return, Ms G accused V of sexually interfering with her children and going into her bedroom. Ms G subsequently began punching V. The appellant and the other man joined in the assault and took turns punching V.
The assault on V continued for about half an hour. During this time, V was continually picked up off the ground and told to stand up. When V fell to the ground, he was pushed against the wall and repeatedly punched in the face. V was then told to sit in the laundry. Eventually the appellant and Ms G drove V to Norton Summit where he was told to get out and walk. V ran to the nearest house and sought assistance. V suffered injuries including a black eye, swelling and bruising to the lips and face, minor cuts and a sore nose.
The commission of the assault breached an earlier 18 month good behaviour bond into which the appellant had entered in January 2011 on the suspension of a five month sentence for being unlawfully on premises and possessing an article to commit offence. The breach was excused by the sentencing Judge.
The Judge was provided with a report of the psychologist, Dr Cayley. Dr Cayley’s diagnosis was of an adjustment disorder with mixed anxiety and depressed mood, borderline personality disorder, and amphetamine and cannabis dependence. The appellant told Dr Cayley that he was sexually assaulted by his father and step-father when he was a child.
The appellant’s explanation for the offence was that he became angry and upset with V because of his own personal experience of sexual abuse. He also put in mitigation that he was seriously affected by amphetamine use at the time of the assault.
The sentencing Judge gave the following reasons for the sentence she imposed:
Your offending is very serious. You assaulted a defenceless man. Your attack was unprovoked, violent and cowardly. One can only imagine the terror the young man would have endured facing the collective force of you during an assault and being taken in a car and dumped at Norton Summit. I must impose a sentence that will prevent you from reoffending; a sentence that will convey a message to others in the community that this sort of offending will be severely punished. You and others must understand that even in the circumstances that may amount to provocation, matters must not be taken into one’s own hands. Such matters must be dealt with by the police.
You all have a history of criminal offending.
You have all received leniency from the courts in the past and each of you have demonstrated there is a concern about your ability to comply with court orders and obligations...
The seriousness of your offending and your history of breaching court orders militate against suspension. However, given you have no history of violent offending of this nature, and having regard to your expressed desire to change your life and the steps you have taken towards rehabilitation, I am satisfied that good reasons exists to suspend your sentence to give you one last chance...
It can be seen that the favourable exercise of the discretion to suspend the term of imprisonment was a merciful one.
The drive disqualified offences
The reason given by the appellant for the offences of drive disqualified were that, on the first occasion, he drove to get food for his partner’s son who would not settle and on the subsequent occasion he drove to an all-night pharmacy, in Hindley Street, to obtain medication for the same child who again would not settle. The offending was described by the Magistrate as contumacious.
The personal circumstances
The appellant completed his education to Year 9 level. The appellant began using cannabis at the age of 12 and amphetamines at the age of 13. He was a daily user of these drugs until he was prescribed medication to assist him with his amphetamine cravings, with some beneficial effect.
The appellant worked at Coles supermarkets from the age of 16 to 23 years and then as a driller with an oil company until he was 33 years of age. At this point, the appellant’s life became significantly affected by drugs. The appellant attempted to run his own business installing insulation and also worked as an interstate truck driver for one year.
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
The appellant argues that the breaches of the suspended sentence bond should be excused pursuant to s 58(3) of the CLSA on the basis that the term of imprisonment required to be served if the bond were breached was disproportionate to the offending comprising the breaches of the bond. The appellant contends that the breaches should be excused because the drive disqualified offences are of a different nature to the aggravated assault cause harm offence, and even though the breaches are not trivial it would be disproportionate and, therefore, inappropriate to revoke the suspensions.
Legislation
The maximum penalty for aggravated assault causing harm, pursuant to s 20(4) of the CLCA, is imprisonment for four years, when the circumstance of aggravation is other than use of a weapon. The maximum penalty for driving under disqualification, pursuant to s 91 of the Motor Vehicles Act 1959 (SA), is two years imprisonment when the offence is a subsequent offence.
Section 58(3) and (4) of the CLSA provides:
(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 the period within which any uncompleted hours of community service must be performed by not more than 6 months; or
•if the period within which the community service must be performed has expired, impose a period of not more than 6 months within which any uncompleted 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.
The relationship between the predecessors to those subsections was described by King CJ in R v Buckman in the following terms:[3]
I have read the reasons for judgment of Jacobs J and am in agreement with them. I wish merely to emphasise one or two aspects.
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.
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.
[3] R v Buckman (1988) 47 SASR 303 at 304.
In R v Marston[4] King CJ, after referring to his observations in Buckman, emphasised the importance of strictly enforcing suspended sentence bonds:
It is of great importance that the courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.
[4] (1993) 60 SASR 320 at 322.
Analysis
Section 58(3) of the CLSA confers a discretion. This Court cannot interfere with the exercise of a sentencing discretion unless it is vitiated by an error of the kind described in House v The King.[5] Neither in the notice of appeal nor in his submissions did the appellant identify an error of that kind. Sentence appeals are not a de novo sentencing hearing. The District Court is a court of record. Its sentences are final orders and not provisional dispositions subject to the approval or otherwise of this Court. I set out the reasons of the Judge at some length because it is plain that they manifest no error of law, have proper regard to, and only to, relevant considerations, and demonstrate that his refusal to excuse the breach was plainly open on the material before him. The appeal must be dismissed for failing to demonstrate any error.
[5] (1936) 55 CLR 499.
However, it is as well to make some additional comments on the appellant’s submissions to the effect that the breach should have been excused because the crime of drive disqualified is not of the “same ilk” or at the same “level of seriousness” as a serious assault. There is no express or implied requirement in s 58(3) of the CLSA that the breaching offence be similar in kind to the offence for which the probationer was placed on a bond. The Judge correctly observed that a suspended sentence bond requires the probationer to be of good behaviour generally, and not merely to refrain from committing offences of a similar kind to that for which the suspended sentence was imposed.

Both the “trivial” and “proper grounds” limbs of s 58(3) of the CLSA invite attention to the nature, extent and circumstances of the breach of the condition to be of good behaviour. The word “proper” is a protean expression which takes its meaning from its context. In the context of s 58(3) of the CLSA, the word takes its meaning both from the other ground, the triviality of the breach, and the condition that the circumstances must be such as to “excuse” the breach. For that reason, the disproportion of which King CJ spoke in Buckman is between the extent of the departure from the obligation to be of good behaviour and the severity of the penalty resulting from revocation of the suspension. As King CJ observed, differences between the original offence and the breaching offence are not irrelevant but their relevance is limited. The question is whether the circumstances in which the breach was committed are of a nature which excuses the failure to abide the condition of the bond having regard to the purpose for which it was imposed.
Even though different in kind to the offence of aggravated assault, the offences of drive disqualified were serious breaches of the obligation to be of good behaviour and were committed soon after entering into the bond which was calculated to give the appellant an opportunity to return to law abiding ways. There were no circumstances which called for the breach to be excused. Far from being disproportionate, the revocation was the condign consequence of the breach. It was a consequence demanded by the policy of the section articulated by King CJ in Marston.
Conclusion
I would dismiss the appeal.
VANSTONE J: I agree that the appeal should be dismissed and with the reasons of the Chief Justice.
BLUE J: I agree.