R v Smith - [2014] SASCFC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SMITH
[2014] SASCFC 6
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Blue and The Honourable Justice Nicholson)
3 February 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES RELATING TO THE ADMINISTRATION OF JUSTICE - OTHER OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
Appeal against sentence. Defendant charged with one count of fabricating evidence and one count of using evidence knowing it to have been fabricated in each case with the intention of influencing the outcome of judicial proceedings pursuant to ss 243(a) and (b) of the Criminal Law Consolidation Act 1936 (SA) respectively. She pleaded guilty to the offences and was committed to the District Court for sentence. There were also two applications for enforcement of a previously suspended sentence bond.
The defendant was sentenced to nine months imprisonment in respect of the fabricated evidence offences. The Judge revoked the suspension of the previously suspended sentence of two years and four months imprisonment with a non-parole period of 18 months imprisonment and ordered that it be served concurrently with the nine months imprisonment. The total sentence imposed was two years and four months imprisonment with a non-parole period of 18 months imprisonment.
Whether the sentence imposed was authorised by law on the basis that the Judge failed to review and extend the existing non-parole period. Whether the Judge was required to to exercise the discretion under s 58(3) and (4) before determining whether to make the new sentence cumulative or concurrent. Whether the Judge erred in failing to exercise the discretion not to excuse the failure to comply with the suspended sentence bond and by not reducing the term of the suspended sentence.
Held (dismissing the appeal):
1. The sentence was authorised by law. Where a person is subject to an existing non-parole period and the person is sentenced to a further term of imprisonment which is ordered to be served concurrently with the existing sentence such that the total head sentence is not increased, s 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) does not require a court to increase the non-parole period (per Sulan J [22]-[26] and per Blue J [58]-[60] and [68], Nicholson J agreeing).
2. The Judge did not err in his consideration of the sentencing package. The Judge ought to have dealt with the application for enforcement of the bond before sentencing the defendant for the fabricating evidence offences. However, there was no error as a result of the approach that was taken by the Judge (per Sulan J [31]-[34] and per Blue J [81]-[83], Nicholson J agreeing).
3. The sentencing Judge properly exercised the discretion pursuant to s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) (per Sulan J [39] and per Blue J [71], Nicholson J agreeing).
4. The sentencing Judge properly exercised the discretion pursuant to s 58(4)(a) (per Sulan J [41]-[42] and per Blue J [76]-[78], Nicholson J agreeing).
5. The sentence in respect of the fabricating evidence offences was not manifestly excessive (per Sulan J [44]-[45] and per Blue J [78], Nicholson J agreeing).
Criminal Law Consolidation Act 1936 (SA) s 243(a), s 243(b), s 353(5); Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 32, s 58(3), s 58(4)(a), referred to.
R v Shepperbottom (2001) 121 A Crim R 69; M v McKay [2012] SASCFC 59; Holland v SA Police (994) 178 LSJS 310; Head v Police (1999) 75 SASR 331; Davis v Police [2004] SASC 318; Police v Smith [2004] SASC 38; Police v Morzanj [2005] SASC 263; Police v Van Boxtel [2013] SASC 82; Hocking v Police (2009) 105 SASR 79; Veen v The Queen (No. 2) (1988) 164 CLR 465; House v King (1936) 55 CLR 499; R v Buckman (1988) 47 SASR 303; R v Gannon (2009) 103 SASR 398, considered.

R v SMITH
[2014] SASCFC 6
Court of Criminal Appeal: Sulan, Blue and Nicholson JJ
SULAN J

This is an appeal against sentence. The defendant and appellant, Karen Lee Smith, was charged with one count of fabricating evidence with the intention of influencing the outcome of judicial proceedings and one count of using evidence knowing it to have been fabricated with the intention of influencing the outcome of judicial proceedings pursuant to ss 243(a) and (b) of the Criminal Law Consolidation Act 1936, respectively. The defendant pleaded guilty to the offences and was committed to the District Court for sentence. The sentencing Judge also dealt with two applications for enforcement of a previously suspended sentence bond. The defendant was given one sentence of nine months’ imprisonment in respect of the fabricating evidence offences. The Judge revoked the suspension of the previously suspended sentence of two years and four months’ imprisonment with a non-parole period of 18 months and ordered that it be served concurrently with the nine months’ imprisonment. The total sentence imposed was two years and four months’ imprisonment with a non-parole period of 18 months.
The defendant appeals on the ground that the sentence imposed was not authorised by law and that the Judge erred in declining to exercise the discretion to excuse the failure to comply with the suspended sentence bond and reduce the term of the suspended sentence.
Background
On 10 December 2010, the appellant was sentenced for two offences of trafficking in a controlled drug. She pleaded guilty to the offences and was sentenced to two years and four months’ imprisonment with a non-parole period of 18 months. The sentence was suspended upon the defendant entering into a bond to be of good behaviour for two years and included a condition that she be under the supervision of a community corrections officer and undergo testing for the presence of illegal drugs.
The defendant breached a condition of the bond when, on 11 February 2011 and 13 October 2011, she returned positive results for the presence of amphetamine and methylamphetamine in her urine. On 8 March 2012, the Director of Public Prosecutions applied for enforcement of the breached bond based on the positive results to the drug testing. The application was heard by a District Court Judge. At the hearing, the defendant, through her counsel, tendered a letter which purported to be from Drug and Alcohol Services SA and signed by the Head Rehabilitation Officer, Maria Shephard, in support of a submission that the Judge should excuse the breach. The letter stated that the defendant had voluntarily enrolled herself in, and successfully completed, a seven day drug and alcohol detoxification program which included a number of counselling sessions. It further stated that there was a very low level of the defendant reoffending.
Prior to the Judge ruling, it was discovered that the letter from Drug and Alcohol Services SA was a forgery. The defendant sent a letter to the Judge’s chambers explaining her reasons for fabricating the letter, citing panic at the prospect of losing her job and her home if the suspension was revoked.
On 20 November 2012, the defendant was charged with two offences arising out of the fabricated letter (the “fabricating evidence offences”). The Judge disqualified himself from hearing the Director’s application for the enforcement of the bond.
On 17 May 2013, the defendant pleaded guilty to the fabricating evidence offences in the Magistrates Court and was committed to the District Court for sentence. By further application dated 6 June 2013, the Director sought to enforce the 10 December 2010 suspended sentence bond based on the fabricating evidence offences. The defendant admitted that breach before a different Judge of the District Court (“the sentencing Judge”).
On 17 June 2013, the defendant was sentenced for the two offences relating to the fabricated letter and for the two breaches of bond. The sentencing Judge imposed one sentence pursuant to s 18A of the Criminal Law (Sentencing Act) 1988 (“the Sentencing Act”) of nine months’ imprisonment in respect of the fabricating evidence offences. The Judge found that there was good reason to excuse the defendant’s breaches of bond relating to the positive drug test results. The Judge granted the Director’s application for enforcement relating to the fabricating evidence offences and cancelled the order suspending the original sentence of imprisonment imposed on 10 December 2010. The Judge ordered that the sentence of two years and four months’ imprisonment be served concurrently with the nine months’ imprisonment. A non-parole period of 18 months’ imprisonment was fixed.
Sentencing remarks
The sentencing Judge considered the personal circumstances of the defendant and a number of psychological reports. The Judge also noted a recent report prepared by the defendant’s community corrections officer which demonstrated that she had been making consistent and successful attempts to overcome her drug addiction. The Judge then turned to consider the circumstances of the offending and the breaches of bond. He said:
I have taken all that into account but I cannot overlook the seriousness of the two offences of fabricating and using fabricated evidence. They are very serious because they strike at the heart of the administration of criminal justice. Judges and magistrates every day act upon reports prepared by all sorts of professionals and others. The integrity of that system of acting upon such reports must be protected.
In respect of the original breach of bond application dated 8 March 2012 I do not think that your returning two positive samples is trivial but acknowledging that drug addicts will have some relapses in their attempts to overcome their drug addiction and the fact that at times you have tried to overcome it, I am satisfied there are good grounds to excuse those breaches and I do so, and I dismiss that application but I must then come to the sentences for the offences of fabricating and using fabricated evidence.
In respect of those I shall fix one sentence pursuant to s.18A of the Sentencing Act. Had I fixed separate sentences I would have ordered that they be served concurrently and but for your pleas of guilty, I would have sentenced you to imprisonment in respect of those offences for 12 months. The sentence of the court for them is that you be imprisoned for nine months.
I turn then to the second application in respect of the breached bond. As I have said, the offences for which I have just sentenced you are very serious ones. In my view there are no good grounds to excuse the breach of the bond. The offences of fabricating and using fabricated material were premeditated and took some skills and, as I have said a couple of times now, are serious. Accordingly, I cancel Judge Brebner’s order suspending the original sentence of imprisonment.
Owing to the efforts you have made in rehabilitating yourself in more recent times I think it would have been appropriate to have reduced that sentence somewhat. In the circumstances, though, and bearing that in mind, I think this is a case where it is appropriate to make the sentence for the two offences of fabricating evidence concurrent with the sentence imposed by Judge Brebner being two years and four months, with a non-parole period of 18 months, and I do so. The head sentence and the non-parole period are to begin today.
The appeal
The defendant’s first ground of appeal is that the sentence was not authorised by law. It is contended that the Judge erred by failing to review and extend the existing non-parole period of the sentence imposed on 10 December 2010, when he proceeded to cancel the suspension of that sentence and impose the further sentence of nine months’ imprisonment in respect of the fabricating evidence offences. This complaint is supported by the defendant’s further grounds of appeal that the Judge erred in the order in which he dealt with the matters before him and in the exercise of his discretion by failing to revoke the suspension or, having revoked the suspension, failing to reduce the term of the suspended sentence pursuant to ss 58(3) and 58(4)(a) of the Sentencing Act, respectively.
Counsel for the defendant accepts that, if the appeal is allowed on the basis that the sentencing Judge erred in law by failing to review and extend the existing non-parole period, but that there was no other error, then pursuant to s 353(5) of the Criminal Law Consolidation Act 1935 (SA), this Court can not increase the non-parole period and the matter would be remitted to the District Court for re-sentencing. However, for the reasons that follow, I am of the view that there was no error of law.
Extending the non-parole period
The defendant’s first ground of appeal involves determining the proper construction of s 32(1)(b) of the Sentencing Act. Section 32(1) provides as follows:
32 – Duty of court to fix or extend non-parole periods
(1) Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must –
(a)if the person is not subject to an existing non-parole period – fix a non-parole period; or
(b)if the person is subject to an existing non-parole period – review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
(c)if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period – fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.
The defendant submits that s 32(1)(b) of the Sentencing Act requires a court, in every case where a person subject to an existing non-parole period is sentenced to a further or additional term of imprisonment, to review and extend the existing non-parole period. This Court has considered the obligation imposed by s 32(1)(b) of the Sentencing Act in circumstances where a further sentence has been ordered to be served cumulatively with an existing sentence, such that the length of the total head sentence has been increased.
In R v Shepperbottom,[1] the Director of Public Prosecutions sought leave to appeal against sentence on the ground that it was manifestly inadequate. The respondent was serving a term of 46 months’ imprisonment with a non-parole period of nine months, of which six weeks had expired. He was sentenced to a further term of seven months’ imprisonment for the offence of escaping lawful custody. The sentencing Judge ordered that the seven month term of imprisonment be served cumulatively with the existing 46 month term of imprisonment. The non-parole period of nine months was not extended. The Court of Appeal held that the sentencing Judge erred in law by failing to extend the non-parole period. The fact that the sentence was not one authorised by law was sufficient to grant leave to appeal and vary the sentence.
[1] (2001) 121 A Crim R 69.
Doyle CJ, with whom Duggan (in a separate judgment) and Williams JJ agreed, considered that s 32(1)(b) did not permit a court to decline to extend an existing non-parole period. He acknowledged, however, that there may be cases in which the interests of justice may require that to occur. He observed:[2]
The language used in s 32(1)(b) does suggest that the court must extend an existing non-parole period. Had Parliament intended otherwise, it could have provided that the court should review the non-parole period and extend it, if it sees fit, by such a period as the court thinks fit. But I do not consider that the terms used exclude that meaning. A power to extend a non-parole period by such a period as the court thinks fit could cover a situation in which the court thinks that no period of extension is appropriate. As well, one might have expected Parliament to intend the court to be able to do whatever the interests of justice and general sentencing principles might require in the particular case. If Parliament so intended it would empower the court to decide, in a particular case, that the non-parole period should not be extended. I do not find it difficult to envisage cases in which that might be an appropriate decision.
Although I can see arguments either way, the arguments in favour of treating s 32(1)(b) as permitting the court to decline to extend a non-parole period are not sufficiently strong to persuade me that the court should depart from previously expressed views to the contrary. Accordingly, I would follow those views. It follows that I do not accept the view expressed by Lander J in Bromley.
It follows from this that the sentencing judge erred in failing to extend the non-parole period. His error is an error of law. He failed to impose the sentence required by law, in failing to extend the non-parole period.
[2] R v Shepperbottom (2001) 121 A Crim R 69, [30]-[32].
Duggan J, with whom Williams J also agreed, added:[3]
When a person is sentenced to a period of imprisonment to be served cumulatively upon an existing sentence, a non-parole period is not imposed in respect of the individual sentences. At the end of the day only one non-parole period can be imposed. Accordingly, in the present case it was not a matter of deciding whether to impose a non-parole period in respect of the additional sentence of imprisonment for seven months. As I have pointed out, the existing non-parole period, until altered, was the non-parole period for whatever head sentence the appellant was currently serving.
Section 32(1)(c) [sic: b] was included in the legislation to address the situation where, as here, the prisoner is subject to an existing non-parole period. There is no power given to the court to cancel an existing non-parole period and commence afresh. The legislation has chosen to deal with cases in which a person is sentenced to a term of imprisonment in addition to an existing term and an existing non-parole period by requiring the court to extend the existing non-parole period. In such cases, it cannot be said in any relevant sense that the court can decline to fix a non-parole period. A non-parole period is already in existence and the Act requires that it be extended.
[3] R v Shepperbottom (2001) 121 A Crim R 69, [49]-[50].
The more recent decision of this Court in R v McKay[4] is more analogous to the present case in that the existing non-parole period to which the defendant was subject had, prior to its cancellation, been suspended. Accordingly, unlike the situation described by Duggan J in Shepperbottom where the court has no power to interfere with the existing non-parole period, the discretions contained in s 58 of the Sentencing Act allow the court to either refrain from revoking the suspension or, having revoked the suspension, reducing the term of the suspended sentence.
[4] [2012] SASCFC 59.
It is instructive at this point to set out the relevant provisions of s 58 of the Sentencing Act:
58—Orders that court may make on breach of bond
(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
…
(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;

McKay concerned an application by the Director of Public Prosecutions for leave to appeal against sentence. The defendant was convicted of one count of trafficking in methylamphetamine. At the time of the commission of the offence he was subject to a suspended sentence bond of three years and six months’ imprisonment and a non-parole period of two years. The sentencing Judge revoked the suspended sentence and imposed a further sentence of two years’ imprisonment to be served cumulatively on the earlier sentence. The total head sentence was five years’ imprisonment. The Judge then fixed a non-parole period of 18 months. Applying Shepperbottom, the Court granted leave to appeal on the basis that, pursuant to s 32(1)(b), it was not open to the Judge to reduce the non-parole period from two years to 18 months. The Court confirmed that, where a defendant is subject to an existing non-parole period by virtue of the revocation of a suspended sentence, a court can only reduce the existing sentence by exercising the powers contained in s 58 of the Sentencing Act.
Kelly J, with whom Gray and David agreed, said:[5]
The learned sentencing Judge first needed to consider whether the sentence imposed by another District Court Judge in respect of the earlier offending should be revoked. It was open to the sentencing Judge, if he considered the failure to comply with the bond was trivial or if there were proper grounds to refrain from revoking the suspended sentence.[6] His Honour did not consider that there were proper grounds and therefore revoked the suspended sentence of three years and six months. It was open to the sentencing Judge, if he considered that there were special circumstances justifying it, to reduce the term of the suspended sentence imposed by the earlier District Court Judge. However his Honour did not refer to s 58(4)(a) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). Nevertheless, he did in fact reduce the non-parole period in respect of the cumulative sentence of five years to 18 months
[5] R v McKay [2012] SASCFC 59, [13].
[6] Criminal Law (Sentencing) Act 1988 (SA) s 58(3).
These, and a number of other cases,[7] establish that, pursuant to s 32(1)(b) of the Sentencing Act, where a person is subject to an existing non-parole period and the person is sentenced to a further term of imprisonment such that the total head sentence is increased, then a court must extend the non-parole period. In the case where the existing sentence is brought into effect by the cancellation of its suspension of that sentence, a Court can only interfere with the existing non‑parole period by exercising the powers pursuant to s 58 of the Sentencing Act. The cases do not address the situation where, as is the case here, the further or additional sentence is ordered to be served concurrently with the existing sentence, such that the length of the head sentence referrable to the existing sentence is not increased.
[7] See for example: Holland v SA Police (1994) 178 LSJS 310; Heal v Police (1999) 75 SASR 331; Davis v Police [2004] SASC 318: Police v Smith [2004] SASC 38; Police v Morzanj [2005] SASC 263; Police v Van Boxtel [2013] SASC 82.
In Hocking v Police,[8] I considered that neither Shepperbottom nor the earlier decision of Heal v Police[9] were binding in circumstances such as the present. In Hocking, the appellant was sentenced in the Magistrates Court for the offences of interfering with a motor vehicle, theft, damaging property and attempted serious criminal trespass (the “Magistrates Court offending”). The Magistrate sentenced the appellant to 15 months’ imprisonment. The Magistrate ordered that the sentence be served cumulatively with a sentence of two years and eight months’ imprisonment with a non-parole period of 21 months which had been imposed by the District Court for earlier offending (the “District Court offending”). The appellant was serving the term of imprisonment for the District Court offending when he came to be sentenced in the Magistrates Court. A number of errors were identified in the Magistrate’s approach and the appellant fell to be re-sentenced for the Magistrates Court offending. Having regard to all of the circumstances, I imposed one sentence pursuant to s 18A of the Sentencing Act of nine months’ imprisonment. I considered that that term should be served concurrently with the sentence imposed by the District Court.
[8] (2009) 105 SASR 79.
[9] (1999) 75 SASR 331.
I considered that, because the sentences were ordered to be served concurrently and that the total head sentence had not been increased, the interests of justice required that the non-parole period of 21 months imposed for the District Court offending should not be increased by the further nine month term of imprisonment imposed for the Magistrates Court offending. In reference to s 32(1)(b) of the Sentencing Act, I observed:[10]
I consider that Parliament did not intend to mandate that in every case in which a sentence is imposed upon a person who is already serving a sentence of imprisonment for another offence and subject to an existing non-parole period that the Court must extend the non‑parole period. There are cases, such as the present case, where the interests of justice require that the Court not extend the non-parole period when imposing a sentence of imprisonment upon a person who is serving a sentence of imprisonment and subject to an existing non-parole period.
The Court has a wide discretion when considering non-parole periods. If circumstances arise in which the Court does not increase the overall head sentence when imposing a sentence for other offences, then it would defeat the purpose of the order if the Court was then required to extend the non-parole period.
[10] Hocking v Police (2009) 105 SASR 79, [42]-[43].
Later in those reasons, I said:[11]
As I have concluded that there are good reasons to make the sentence concurrent, with the result that the head sentence is not increased, it is contrary to the interests of justice to extend the non-parole period.
It could be argued that I could extend the non-parole period by a short period such as one day, but to adopt that course would be to create an artificial result. In my opinion, the better view is to have regard to the interests of justice, the purpose and intent of Parliament that the non-parole period is to be reviewed and extended by such period as the Court thinks fit. It does not follow that it must be extended in every case. If the interests of justice so require, the Court has a discretion not to increase the non-parole period.
[11] Hocking v Police (2009) 105 SASR 79, [46]-[47].
In my view, these observations hold true. Sentencing an offender often involves a complex balancing exercise. It generally requires consideration of the circumstances of the offence, the factors outlined in s 10 of the Sentencing Act and the penalty prescribed by Parliament for that offence. In Veen v The Queen (No.2) the majority of the High Court recognised the competing considerations at play when sentencing an offender:[12]
However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
[12] (1988) 164 CLR 465, 476.
In my view, it is important for a sentencing court to have adequate powers to tailor an appropriate sentence to a particular case which best balances these competing demands. In the present case, the sentencing Judge thought it appropriate that the sentence which he imposed for the fabricating evidence offences be served concurrently with the previously suspended sentence. He considered that to be the proper sentence in all of the circumstances. It would defeat the purpose of the concurrent sentence if s 32(1)(b) required that the non-parole period were increased in these circumstances. And, as I said in Hocking, it would serve no purpose for the Judge to have simply extended the non-parole period by a nominal amount of one day.
I would dismiss this ground of appeal.
Sentencing procedure
The defendant’s next complaint, which is linked to the first ground of appeal, is that the sentencing Judge erred in the procedure he adopted in dealing with the matters before him. It is contended that the correct approach when dealing with proceedings for the enforcement of a breached suspended sentence bond and sentencing for subsequent matters which are the basis for the enforcement proceedings, is that outlined in Heal v Police.[13] There, in line with subsequent authorities to which I have referred to earlier in these reasons, Duggan J said:[14]
It is appropriate to refer to the procedure which should have been followed by the learned magistrate. He was required to deal first with the breach of bond which was admitted. In the event that there were no grounds which would have enabled the Court to refrain from revoking the suspension of the sentence of imprisonment for 24 months pursuant to s 58(3), the Court was required to order such revocation. However, if the magistrate had been invited to act pursuant to s 58(4), he was then required to consider whether there were special circumstances justifying a reduction in the term of the suspended sentence. This would include consideration as to whether the non-parole period should be reduced.
After revoking the suspension of the earlier sentence and sentencing the appellant to further terms of imprisonment, the magistrate was then required to have regard to s 32 of the Sentencing Act. If the non-parole period of the revoked sentence had been reduced pursuant to s 58(4), the reduced non-parole period became the "existing non-parole period" for the purposes of s 32(1)(b). After sentencing the appellant to the further periods of imprisonment and arriving at the sentence of imprisonment for 30 months the magistrate was required by s 32(1)(b) to:
" ... review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court)."
The Court is required to extend the non-parole period under this provision. It is not permitted to allow the existing non-parole period to remain as it is; nor is it permitted to reduce the period. As I have pointed out, the only provision permitting reduction is s 58(4).
[13] (1999) 75 SASR 331
[14] Heal v Police (1999) 75 SASR 331, [9]-[11].
Similarly, Lander J observed:[15]
The convictions entered on 8 July 1998 gave rise to a breach of the bond entered into in May 1995 and the magistrate should first have had regard to that breach and the application of s 58 of the Act. Because the bond supported a suspended sentence of imprisonment the magistrate had to consider s 58(3) of the Act and determine whether the failure of the appellant to comply with the conditions of the bond was trivial or whether there were proper grounds upon which the failure could be excused. The breach was not trivial and there were no proper grounds upon which the failure could be excused.
Next the magistrate had to determine, in revoking the suspension of the sentence of imprisonment, whether he should exercise any of the powers contained in s 58(4) of the Act and in this case, in particular, whether he should reduce the term of the suspended sentence (s 58(4)(a)).
The magistrate could only have reduced the sentence imposed in July 1998 if he had been satisfied that there were special circumstances to reduce that sentence (s 58(4)). No such circumstances were apparent in this case.
Having concluded that the head sentence of two years in relation to that bond must stand the magistrate then had to consider whether the sentences of imprisonment that he imposed in relation to the matters before him should have been accumulated with the earlier two-year sentence of imprisonment.
This, I think, he did. In any event the exercise would have meant that the appellant was then liable to serve 30 months imprisonment.
Having arrived at that point the magistrate had to then proceed under s 32 of the Act and, because the appellant was subject to an existing non-parole period, review the non-parole period and extend it by such period as he saw fit (s 32(1)(b)), subject to the limitation in that subsection. The magistrate had no power to review the non-parole period and reduce it. The section does not allow for a reduction in the non-parole period and that is because it may be assumed that the further conviction or convictions, which have caused the need to reconsider the existing non-parole period, could only serve to increase the previous non-parole period set.
[15] Heal v Police (1999) 75 SASR 331, [9]-[11].
In the present case, the sentencing Judge dealt with the matters before him chronologically by reference to the dates of the enforcement applications and the dates of the offending. He first considered the Director’s application for enforcement in relation to the positive drug tests. He then dealt with the fabricating evidence offences and, finally, with the enforcement application in relation to those offences. It is contended that if the Judge dealt with the matters in the order discussed in Heal, then the Judge would have imposed a lower head sentence and lower non-parole period.
I do not accept this submission. While it is desirable to deal with such matters in the order enunciated in Heal, the sentencing Judge’s approach discloses no error. There is no principle of law or provision of the Sentencing Act that requires a court to approach these matters in a particular order, provided that all relevant considerations are taken into account. In my view, they were. While the Judge did not specifically refer to ss 58(3) or 58(4)(a) of the Sentencing Act, it is clear that he turned his mind to those considerations. In relation to whether the fabricating evidence offences breached the bond, the Judge remarked, “In my view there are no good grounds to excuse the breach of the bond.” He then considered reducing the term of the suspended sentence. He said, “Owing to the efforts you have made in rehabilitating yourself in more recent times I think it would have been appropriate to have reduced that sentence somewhat.”
The submission that, had the Judge reduced the term of the suspended sentence under s 58(4)(a) rather than ordering that the sentences be served concurrently, then the defendant would receive a lower head sentence and non‑parole period to that which was imposed is, in my view, merely speculative. There is nothing in the Judge’s remarks to suggest that a lower sentence would have resulted and, even if there were, the Judge’s approach would nonetheless not have been in error.
The present case can be distinguished from the error that was identified in McKay. In that case, the erroneous approach adopted by the Judge, which I discussed earlier in these reasons, was mooted to counsel during sentencing submissions. Counsel for the Crown mistakenly conceded that the Judge had the power to reduce the non-parole period. Kelly J identified the error that resulted:[16]
However, I accept the submission made by counsel for the respondent that had not the prosecution made the concession it did before the sentencing Judge, his Honour may have gone on to consider whether it was necessary to specifically refer to and deal with the issue of “special circumstances” in the context of s 58(4) of the Sentencing Act. It does not appear from the transcript of proceedings before his Honour, or from his Honour’s sentencing remarks, that that issue was properly canvassed. In those circumstances the respondent has been deprived of the ability to put matters to the sentencing Judge which might well be material to the determination of that question.
[16] R v McKay [2012] SASCFC 59, [22].
There was no such error in the present case. The Judge considered the question of reducing the term of the suspended sentence and the defendant had the opportunity to make submissions on that issue.
Exercise of discretions
The defendant’s further grounds of appeal are that the sentencing Judge erred in exercising the discretions pursuant to ss 58(3) and 58(4)(a) of the Sentencing Act, not to excuse the failure to comply with the suspended sentence bond and by not reducing the term of the suspended sentence, respectively.
The principles of law that govern the circumstances in which an appellate court will interfere with an exercise of judicial discretion are well established and it is not necessary to repeat them.[17] The proper exercise of the powers contained in s 58 of the Sentencing Act have also been the subject of judicial commentary. In R v Buckman,[18] Jacobs J, with whom King CJ agreed, discussed the relevant factors to be considered with respect to the equivalent to ss 58(3) and 58(4)(a) under what was then the Offenders Probation Act 1913. He observed:
Despite the width of both expressions the distinction, I think, is this: proper grounds for excusing the breach look to the nature of the breach and the circumstances in which it was committed; special circumstances for reducing the sentence, if the breach is not excused, look to some significant change of circumstances since the prisoner was sentenced, which had they existed at that time might have justified a reduced sentence. It seems to me that they will generally be personal factors, of the kind that may dispose a court to greater leniency, which have arisen subsequent to the sentence of imprisonment — ill health or acute domestic problems or obligations spring to mind as examples, but they are only examples, and it is impossible and unwise even to attempt to state exhaustive categories of such special circumstances.
…
…It holds that matters occurring subsequent to the commission of the breach have no relevance to the issue under subs (5), which is concerned only with the circumstances existing at the time of the breach, since it is concerned only to consider whether the breach should be excused. If it is, that is an end of the matter, and no question under subs (6) arises; if it is not, the court can look at any circumstances, whenever occurring, which may be relevant to a reduction of the original sentence, for the purposes of subs (6), but for reasons already stated the circumstances of the breach itself do not, and cannot, speak to the propriety of that sentence.
[17] House v King (1936) 55 CLR 499, 504-5.
[18] (1988) 47 SASR 303.
In R v Gannon,[19] I elaborated on the factors to be considered in relation to the question of excusing a breach of a suspended sentence bond. I observed:[20]
In considering whether the failure to comply with the conditions of the bond was trivial, or whether proper grounds exist to excuse the breach, the court considers the nature of the breach and the circumstances in which it was committed. One of the factors to which the court must have regard is whether the breaching offence is such that there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated. A further factor might be whether there is a difference in character between the offence for which the sentence was imposed and the nature of the breach.
In R v Buckman, when considering similar provisions under the Offenders Probation Act 1913 (SA), King CJ and Jacobs J decided that the question of whether the failure of a person to comply with the conditions of their bond is trivial, or whether there are proper grounds upon which the failure should be excused, is limited to a consideration of looking at the nature of the breach and the circumstances in which it was committed. If there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated, then this might amount to proper grounds upon which the failure should be excused. In considering that question, matters such as the relatively minor nature of the offence constituting the breach, the difference in character between it and the offence for which the original sentence was imposed, and the disproportion between the seriousness of the offence constituting the breach and the sentence which would be activated, are factors to which the court will have regard in considering whether proper grounds exist to excuse the failure to observe the conditions of bond.
[19] (2009) 103 SASR 398.
[20] R v Gannon (2009) 103 SASR 398, [31]-[32].

In relation to the discretion contained in s 58(3) of the Sentencing Act which gives a court power to refrain from revoking a suspended sentence, the defendant contends that the sentencing Judge failed to give any or adequate consideration to; the different character of the breaching offences compared to the original offending; the assertion that the breaching offences did not suggest the defendant had lapsed into a non law-abiding way of life; and the disproportion between the seriousness of the breaching offences and the sentence imposed for them compared to the seriousness of the original offending and the length of the sentence activated by the suspension being cancelled.
In my view, the sentencing Judge properly exercised the discretion pursuant to s 58(3) of the Sentencing Act. The fabricating evidence offences were serious and each carried a maximum penalty of seven years imprisonment. The sentence of nine months’ imprisonment was, in my view, merciful. It does not follow, however, that the seriousness of the offending was disproportionate to the sentence of imprisonment which was activated by the breach. Although the breaching offences were of a different character to the original offending, they arose out of an attempt by the defendant to escape the consequences of the positive drug tests, the use of which led to the original offending. In my view the breaching offences were inextricably linked to the original offending.
When the sentencing Judge came to consider the question of reducing the term of the suspended sentence pursuant to s 58(4)(a) of the Sentencing Act, he said that he would have thought it appropriate to reduce the term of the suspended sentence had he not decided that the sentences should be served concurrently. He remarked:
Owing to the efforts you have made in rehabilitating yourself in more recent times I think it would have been appropriate to have reduced that sentence somewhat. In the circumstances, though, and bearing that in mind, I think this is a case where it is appropriate to make the sentence for the two offences of fabricating evidence concurrent with the sentence imposed by Judge Brebner being two years and four months, with a non-parole period of 18 months, and I do so.
Counsel for the defendant contends that, if the Judge had realised the error in the way he sentenced the defendant, he would have reduced the term of the suspended sentence rather than order it be served concurrently with the further sentence. As I have found, there was no error in the Judge not extending the non-parole period in these circumstances. It is speculative to consider whether, had the Judge reduced the term of the suspended sentence and ordered it to be served cumulatively with the further term of imprisonment, the total sentence would have been less than it ultimately was. In any event, it was not an erroneous exercise of the Judge’s discretion to adopt the approach that he did. He considered that it was the appropriate sentence in the circumstances.
Further, the Judge properly weighted the relevant considerations in determining whether “special circumstances” existed to reduce the term of the suspended sentence. The Judge considered that these circumstances justified an order that the sentences be served concurrently. In my view, the discretion pursuant to s 58(4)(a) did not miscarry by virtue of the decision to instead order the sentences be served concurrently. This was a relevant consideration in determining not to exercise the power contained in s 58(4)(a).
Manifestly excessive
The final ground of appeal is that the non-parole period was manifestly excessive. This, rather paradoxical, complaint is that the sentencing Judge erred by imposing a non-parole period which was two-thirds of the head sentence in circumstances where the defendant had not previously served a sentence of imprisonment and had demonstrated a genuine commitment to, and excellent progress with, her rehabilitation.
In my view, this ground of appeal is misconceived. It is, in essence, an appeal against the sentence imposed on 10 December 2010 for the two original offences of trafficking in a controlled drug for which the defendant received two years and four months’ imprisonment with a non-parole period of 18 months. However, that sentence was never appealed and leave has not been sought to do so.
When the defendant came to be sentenced for the fabricating evidence offences on 17 June 2013, the only powers the sentencing Judge had to interfere with the original sentence, were those contained in s 58 of the Sentencing Act. For the reasons I have given earlier, I do not consider that the Judge erred in exercising those powers. There was no other power, in the circumstances, to reduce the non-parole period of 18 months’ imprisonment.
Conclusion
I would dismiss the appeal.
BLUE J
This is an appeal against sentence.
The defendant/appellant, Karen Lee Smith, pleaded guilty to fabricating evidence with the intention of influencing the outcome of judicial proceedings[21] and using evidence knowing it to have been fabricated with the intention of influencing the outcome of judicial proceedings.[22]
[21] Criminal Law Consolidation Act 1935 (SA) s 243(a).
[22] Criminal Law Consolidation Act 1935 (SA) s 243(b).
The defendant had previously, in relation to a prior offence, been sentenced to a term of imprisonment of 28 months with a non‑parole period of 18 months. This was suspended upon her entering into a bond to be of good behaviour for two years.
The sentencing Judge revoked the suspended sentence, declined to reduce the term of the original sentence and, in respect of the new offending, imposed a sentence of imprisonment for nine months to be served concurrently with the existing sentence of imprisonment for 28 months. The Judge fixed a non‑parole period for the combined offending of 18 months.
The defendant appeals on the grounds that the sentencing Judge erred by:
1.failing to find that there were proper grounds upon which her failure to comply with the conditions of the bond should be excused so as to refrain from revoking the suspension under section 58(3) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”); [23]
2.failing to exercise his discretion to reduce the term of the original sentence (head sentence and/or non‑parole) under section 58(4)(a) of the Sentencing Act; [24]
3.failing to increase the existing non‑parole period as required by section 32(1)(b) of the Sentencing Act.[25]
[23] Ground 3.
[24] Grounds 4 and 5.
[25] Ground 1.
The relevant facts, sentencing remarks and contentions on appeal are set out in the judgment of Sulan J.
On the hearing of the appeal, the ground summarised at 3 above was argued first on the assumption that the other grounds of appeal were to fail. It is convenient to deal with that ground first.
Duty to extend non‑parole period
The defendant contends that it was mandatory under section 32(1)(b) of the Sentencing Act for the Judge to increase the existing non‑parole period from 18 months to a period exceeding 18 months.
Section 32(1) of the Sentencing Act provides:
(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a)     if the person is not subject to an existing non-parole period—fix a non-parole period; or
(b)     if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
(c)     if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period—fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.
…
The circumstances specified by section 32(1) which enliven the obligation of a court to fix or extend a non‑parole period (as the case may be) are that the court convicts a person of an offence and that a court sentences the person to imprisonment. The defendant contends that those two events occurred, thereby enlivening the obligation of the Judge to act under paragraph (a) or (b) as appropriate. The defendant was already subject to an existing non‑parole period (18 months) and accordingly paragraph (b) required the sentencing Judge to review the non‑parole period and extend it by such period as he thought fit. The defendant contends that, on the proper construction of paragraph (b), the Judge was required to increase the non‑parole period by at least one day.
The defendant’s contentions may be accepted, with the exception of the final contention as to the proper construction of paragraph (b).
I deal with the construction of paragraph (b) from first principles before considering authorities. The words “extend it by such period as the court thinks fit”, on their plain and ordinary meaning, confer upon the court a discretion as to extension of the existing non‑parole period. Paragraph (b) plainly precludes a reduction in the non‑parole period. If the court considers that, in all of the circumstances, there should be no period of extension, the court could determine that is the period which is appropriate. This construction is supported by the fact that paragraph (b) imposes a maximum period of extension in the parentheses (being the length of the head sentence imposed for the new offending) but does not impose any minimum period of extension. If Parliament intended to permit an increase in the non-parole period by as little as one day, there is no logical reason why it would not have intended that no increase was permitted in appropriate circumstances.
This construction is in accordance with the evident purpose of section 32(1). In imposing a period of imprisonment for new offending, the sentencing court has a discretion to make the new head sentence cumulative or concurrent with the existing sentence of imprisonment. When the court exercises its discretion to make the term of imprisonment for the new offending concurrent with the existing term of imprisonment and the new term will expire before expiration of the existing term, so that there is no increase in the total head sentence, the very considerations which informed that conclusion might also indicate that no increase in the non-parole period is warranted.
On this construction, while the court would have the power not to increase the sentence, it would ordinarily not be a proper exercise of the discretion to fail to increase the sentence when the new head sentence is made cumulative upon the pre‑existing head sentence. In that event, so acting would be tantamount to fixing a non‑parole period of zero days in respect of a substantive term of imprisonment if the court were fixing a stand alone non‑parole period under paragraphs (a) or (c).
I turn to consider whether I am constrained by authority to adopt a different construction of section 32(1)(b).
In Heal v Police,[26] Heal had previously been sentenced to imprisonment for 24 months with a non‑parole period of 15 months, suspended upon entering into a bond to be of good behaviour. He committed further offences in breach of his bond. A Magistrate revoked the suspension and sentenced him to imprisonment for six months in respect of the new offending, cumulative upon the revoked suspended sentence of 24 months. The Magistrate fixed a new combined non‑parole period of eight months for the old and new offending, which was a reduction from the existing non‑parole period of 15 months. Heal appealed to a single judge of the Supreme Court who increased the non-parole period to the original 15 months notwithstanding that there was no cross appeal by the Police. This Court held that the Magistrate had no power under section 32(1) of the Sentencing Act to reduce the pre‑existing period of non‑parole. However, the Court nonetheless allowed the appeal from the Judge and restored the non-parole period to 8 months as fixed by the Magistrate because it held that the Judge did not have power to increase Heal’s sentence in the absence of a cross appeal by the Director.
[26] [1999] SASC 374; (1999) 75 SASR 331.
The question whether a court has power in appropriate circumstances not to extend the non-parole period did not arise. However, the members of the Court made observations by way of obiter dicta on that question. Duggan J expressed the view that a sentencing court is required to increase the existing non‑parole period. He said:
The Court is required to extend the non‑parole period under this provision. It is not permitted to allow the existing non‑parole period to remain as it is; nor is it permitted to reduce the period.[27]
Lander J held that the Magistrate had no power under section 32 of the Act to reduce the non-parole period, but did not conclude that section 32(1) invariably required the pre‑existing non‑parole period to be increased. Lander J said:
Having arrived at that point the magistrate had to then proceed under s 32 of the Act and, because the appellant was subject to an existing non-parole period, review the non-parole period and extend it by such period as he saw fit (s 32(1)(b)), subject to the limitation in that subsection. The magistrate had no power to review the non-parole period and reduce it. The section does not allow for a reduction in the non-parole period and that is because it may be assumed that the further conviction or convictions, which have caused the need to reconsider the existing non-parole period, could only serve to increase the previous non-parole period set.[28]
Lander J went on to conclude that the Magistrate was obliged to set a non‑parole period in excess of 15 months. This is explicable by the fact that the Magistrate was imposing a sentence of six months for the new offending cumulative upon the existing sentence. Millhouse J agreed with both Duggan J and Lander J.
[27] Ibid at [11].
[28] Ibid at [39].
In R v Shepperbottom,[29] Shepperbottom was serving a term of imprisonment of 46 months with a non‑parole period of six months. He escaped from custody and was sentenced to a further term of imprisonment for seven months cumulative upon the existing term of imprisonment for 46 months, but the sentencing Judge did not increase the combined non‑parole period above the existing six months. This Court held that the Judge erred and should have increased the existing non‑parole period by six months to a total of 12 months. That was the ratio decidendi of the case and is consistent with the construction of section 32(1) referred to at [58] above because Shepperbottom was sentenced to serve an additional period of imprisonment cumulative upon his existing term.
[29] [2001] SASC 31; (2001) 121 A Crim R 69.
Doyle CJ referred to the observations by Duggan J and Lander J in Heal v Police and concluded that they were not binding because the question in Heal v Police was whether the Magistrate had power to reduce the non-parole period.[30] He then considered the construction of section 32(1) from first principles. Having observed that the language might be regarded as suggestive that a court must increase an existing non‑parole period, he said:
A power to extend a non‑parole period by such a period as the court thinks fit could cover a situation in which the court thinks that no period of extension is appropriate. As well, one might have expected Parliament to intend the court to be able to do whatever the interests of justice and general sentencing principles might require in the particular case. If Parliament so intended it would empower the court to decide, in a particular case, that the non‑parole period should not be extended. I do not find it difficult to envisage cases in which that might be an appropriate decision.[31]
He observed that he could see arguments either way. He then concluded:
the arguments in favour of treating s 32(1)(b) as permitting the court to decline to extend a non‑parole period are not sufficiently strong to persuade me that the Court should depart from previously expressed views to the contrary. Accordingly, I would follow those views.[32]
[30] Ibid at [29].
[31] Ibid at [30].
[32] Ibid at [31].
The manner of expression adopted by Doyle CJ suggests that, but for the obiter dicta expressed in Heal v Police and of Perry J in Holland v SA Police, he would have been disposed to construe the subsection as permitting no period of extension in an appropriate case. Duggan J said that he was in substantial agreement with the reasons of the Chief Justice. Williams J agreed with both Doyle CJ and Duggan J.
The observations of Doyle CJ concerning power to make no increase in the non‑parole period in appropriate circumstances fall, for similar reasons, into the same category as the observations of Duggan J in Heal v Police which Doyle CJ regarded as not binding. Moreover, the Court in Shepperbottom did not have in contemplation the situation in which the new sentence is made concurrent with and will expire before the existing sentence. While there is good reason to adhere to views expressed by other members of the Court, I am satisfied that the proper construction of section 32(1) requires a departure from those views.
Section 32(1)(b) permits a sentencing court to make no increase in the non‑parole period in appropriate circumstances. Appropriate circumstances will ordinarily exist when the defendant is sentenced to a concurrent term of imprisonment for the new offending which sentence will expire before the expiration of the existing sentence. In contrast, when a defendant is sentenced to a cumulative sentence of imprisonment for the new offending, it ordinarily will be inappropriate not to extend the non-parole period.
Proper grounds to excuse failure
The defendant contends that the Judge erred in finding that there were not proper grounds upon which her failure to comply with the conditions of the bond should be excused under section 58(3) of the Sentencing Act.
Proper grounds within the meaning of section 58(3) are confined to consideration of the nature of the breach and the circumstances in which it was committed.[33] Typically, proper grounds might exist where there is a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment which would be activated, particularly where the offence constituting the breach is of a quite different character from that for which the sentence was imposed.[34]
[33] R v Buckman (1988) 47 SASR 303 at 307-8 per Jacobs J (King CJ agreeing) and 313-14 per Bollen J.
[34] Ibid at 304-5 per King J (see also at 308-9 per Jacobs J and 314 per Bollen J); R v Gannon [2009] SASC 73; (2009) 103 SASR 398 at [31]-[32] per Sulan J (Doyle CJ and Kelly J agreeing).
The defendant contends that in the present case there was a marked disproportion between the seriousness of the breaching offences and the original sentence and the two sets of offences were of a quite different character. This contention should be rejected. The breaching offences involving the fabrication and use of evidence were serious offences in their own right and could not be characterised as involving a marked disproportion in seriousness compared to the original sentence. Moreover, they were inherently linked to the original offences and the sentence imposed in respect of them because the fabricated evidence was deployed in an attempt to avoid revocation of the suspension of that very sentence.
Special circumstances to reduce the original term
The defendant contends that the Judge erred in not exercising his discretion under section 58(4)(a) to reduce the length of the head sentence (and consequentially the non‑parole period) of the revoked suspended sentence. Section 58(4) provides:
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.
…

Special circumstances within the meaning of section 58(4)(a) exist where the length of the sentence has been rendered oppressive or inappropriate by subsequent circumstances of a special nature, being a significant change of circumstances since the defendant was originally sentenced which, had they existed at that time, would have justified a reduced sentence.[35]
[35] R v Buckman (1988) 47 SASR 303 at 304 per King CJ and 307 per Jacobs J.
The defendant contends that, at the time when she was sentenced in June 2013, she had demonstrated insight into her offending and a commitment to rehabilitation demonstrated by clean urine tests since September 2012 and that these constituted special circumstances.
The Judge who sentenced the defendant in December 2010 for the original offences sentenced her on the premise that she had good prospects of rehabilitation. He said:
You are currently employed and you are valued by your employer.
Since your arrest in relation to these offences you have spent some five or six weeks in custody in relation to another matter which has since been discontinued and this has had a salutary effect upon you.
You have developed a degree of insight since your arrest. You have undertaken counselling and the psychologist who has examined you regards your prognosis as fair.
In the circumstances which now prevail, your record contains little by way of concern.
Have subsequent circumstances rendered oppressive or inappropriate the original sentence? The defendant’s urine tests were positive for amphetamine and methamphetamine in February and October 2011. She committed the serious offences of fabricating and using fabricated evidence in May 2012. She admitted to a psychologist in October 2012 that she had been taking drugs until August 2012 but had been clean for the past eight weeks. While the defendant remained clean from drugs for 10 months leading up to her sentencing in June 2013, an overall assessment of her conduct over the intervening period since December 2010 (when she was originally sentenced) does not result in a characterisation that, if the subsequent events had been known, the original sentence would have been regarded as oppressive or inappropriate.
Although the Judge observed that he thought it would have been appropriate to have reduced the sentence somewhat, he did not in fact make a reduction and, in so doing, there was no miscarriage of the exercise of his discretion.
The defendant makes an alternative contention that, if the original head sentence were not to be reduced, the Judge erred by not reducing the non‑parole period. She relies upon the same matters as in respect of the head sentence. That contention should be rejected for the same reasons.
Order of consideration
The defendant contends that, if the sentencing Judge was satisfied that special circumstances existed justifying a reduction under section 58(4), the Judge erred by making the new sentence for the new offending concurrent with the existing sentence rather than reducing the existing sentence under section 58(4) and making the sentence for the new offending cumulative.
Given my conclusion that special circumstances justifying a reduction in the original sentence did not exist, this contention does not arise. However, if special circumstances justifying a reduction in the original sentence had existed, the Judge ought to have made an appropriate reduction in the original sentence rather than making the new sentence concurrent.
Section 58(4) confers upon a court an explicit power to reduce the term of the suspended sentence if it considers that there are special circumstances justifying its so doing. If a court is satisfied that the term of the suspended sentence should be reduced, the court should proceed to make the reduction under section 58(4) rather than adopting a different sentencing technique of making the sentence for the new offending concurrent with the sentence for the original offending.
In Heal v Police[36] Duggan J said:
[36] (1999) 75 SASR 331.
It is appropriate to refer to the procedure which should have been followed by the learned magistrate. He was required to deal first with the breach of bond which was admitted. In the event that there were no grounds which would have enabled the Court to refrain from revoking the suspension of the sentence of imprisonment for 24 months pursuant to s 58(3), the Court was required to order such revocation. However, if the magistrate had been invited to act pursuant to s 58(4), he was then required to consider whether there were special circumstances justifying a reduction in the term of the suspended sentence. This would include consideration as to whether the non-parole period should be reduced.
After revoking the suspension of the earlier sentence and sentencing the appellant to further terms of imprisonment, the magistrate was then required to have regard to s 32 of the Sentencing Act. If the non-parole period of the revoked sentence had been reduced pursuant to s 58(4), the reduced non-parole period became the "existing non-parole period" for the purposes of s 32(1)(b).[37]
and Lander J said:
In my opinion the magistrate erred in adopting the sentencing process that he did.
The convictions entered on 8 July 1998 gave rise to a breach of the bond entered into in May 1995 and the magistrate should first have had regard to that breach and the application of s 58 of the Act. Because the bond supported a suspended sentence of imprisonment the magistrate had to consider s 58(3) of the Act and determine whether the failure of the appellant to comply with the conditions of the bond was trivial or whether there were proper grounds upon which the failure could be excused. The breach was not trivial and there were no proper grounds upon which the failure could be excused.
Next the magistrate had to determine, in revoking the suspension of the sentence of imprisonment, whether he should exercise any of the powers contained in s 58(4) of the Act and in this case, in particular, whether he should reduce the term of the suspended sentence (s 58(4)(a)).
The magistrate could only have reduced the sentence imposed in July 1998 if he had been satisfied that there were special circumstances to reduce that sentence (s 58(4)). No such circumstances were apparent in this case.
Having concluded that the head sentence of two years in relation to that bond must stand the magistrate then had to consider whether the sentences of imprisonment that he imposed in relation to the matters before him should have been accumulated with the earlier two-year sentence of imprisonment.[38]
Millhouse J agreed with both Duggan J and Lander J.
[37] Ibid at [9]-[10].
[38] Ibid at [33]-[37].
In the present case, if the Judge had made a reduction in the head sentence of 28 months, it is evident from his remarks and from the sentences which he in fact imposed that he would have reduced the original head sentence by not more than nine months and would have made the sentence imposed for the new offending cumulative upon the original sentence to the same extent. This is because he considered that the total head sentences for both the original and the new offending should be 28 months. It is also evident that, in that event, the Judge would have imposed an overall non‑parole period of 18 months because he considered that this was the appropriate non‑parole period in all of the circumstances.
Conclusion
I would dismiss the appeal.
NICHOLSON J
I would dismiss the appeal for the reasons given by both Sulan and Blue JJ.