R v Smith No. DCCRM-03-1236, DCCRM-03-1237

[2004] SADC 57

R v Malcolm Todd SMITH
[2004] SADC 57

Judge Clayton
Criminal

1. Malcolm Todd Smith has pleaded guilty to two offences.  The first is simple possession of methylamphetamine at Plympton Park on 24 September 2001.  The second is possessing methylamphetamine for sale at Prospect on 2 April 2002.

2. At the time of both offences Mr Smith was subject to two separate good behaviour bonds entered into in the Christies Beach Magistrates Court on 9 July 2001, that is, about two months prior to the first of the offences to which he has pleaded guilty.  The Crown has applied for the enforcement of the breached bonds. 

3. The two bonds were entered into at a time when Mr Smith was sentenced by Mr D. Sprod SM for a miscellany of offences.  One bond related to receiving offences committed on 6 April 2001, for which His Honour imposed a sentence of imprisonment of nine months.  The other related to firearms offences committed on 10 May 2001.  For those offences His Honour imposed a period of imprisonment of six months.  In imposing penalty His Honour took into account the fact that Mr Smith had already spent two and a half months in custody.  He came to the view that it was appropriate to suspend both sentences on bonds which inter alia required Mr Smith to be of good behaviour for two years.  His Honour concluded his sentencing remarks with the statement, “If the defendant comes back he will go to jail for a very long time”.  His Honour did not say whether the sentences of six months and nine months respectively were concurrent or cumulative, but in view of the fact those sentences were suspended it was unnecessary and inappropriate for His Honour to fix a commencement date.

4. Counsel has submitted that the two sentences, which must now be served by reason of the breach of the bonds, should be concurrent.  I do not agree.  The offences were unconnected both in their nature and in time.  There were two separate incursions into criminal conduct.  I am guided by the remarks of Wells J in The Attorney-General v Tichy (1982) 30 SASR 84 at 93. There is no reason why the sentences should be served concurrently. In fact, because the offences were separate incursions into criminal conduct, there is good reason why the sentences should be cumulative.

5. Counsel argued the sentences should be concurrent because the learned Magistrate failed to specify that they should be cumulative.  All that His Honour said was that in his view it was appropriate to suspend both sentences.  Mr Smith entered into two separate suspended sentence bonds.  In each case the term of the bond was 2 years and the amount of the bond was $300. 

6. Mr Smith has admitted the breach of the bonds and I am therefore satisfied that he failed to comply with the condition of the bond. I am required by section 58(1)(d) of the Criminal Law (Sentencing) Act to revoke the learned Magistrates’ suspension of the original sentences and order that the sentences be carried into effect.

7. I have considered the submission of counsel that the sentences be served concurrently.  I do not accept that the submission that in the absence of any order of the Magistrate that the sentences must be served concurrently.  Section 31 enabled the Magistrate to direct that any sentence imposed by him be cumulative upon any other sentence to be served.  He did not do that.  Because the sentences were suspended it was unnecessary and inappropriate for the learned Magistrate to fix a commencement date.  In the absence of an order of the Magistrate I have taken the view that the question of how the sentences should be served falls to be determined by the court which is required to revoke the suspension. 

8. Counsel also argued that by looking at the overall criminality I could find that there are special reasons to reduce the total of the two suspended sentences of 15 months to a sentence of 9 months.  There is no material before me which provides any reason to reduce the penalty.

9. The sentence which I propose will require the respective terms of six months and nine months to be served cumulatively.