R v Wilson - [2010] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v WILSON
[2010] SASC 89
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice Vanstone)
7 April 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - IRREGULARITIES - GENERALLY
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - COMMENCEMENT
Application for permission to appeal against sentence - defendant and applicant pleaded guilty to two counts of committing serious criminal trespass in place of residence, two counts of theft and one count of damaging property with intent - Judge imposed separate sentences and made separate reductions for pleas of guilty for each offence - offending breached bond with respect to suspended sentence of imprisonment of four years six months, which sentence was revoked and ordered to be served cumulatively - total effective head sentence of 74 months imprisonment imposed - whether defendant's withdrawal from methadone program precipitated offending and relevant to sentencing - effect of inconsistent approach taken by Judge in approach to reductions for pleas of guilty - whether sentence should have been backdated in lieu of a reduction to proposed head sentence and non-parole period - whether sentence imposed inappropriate in circumstances.
Held (Doyle CJ & Vanstone J): permission to appeal refused.
(Gray J): permission to appeal granted - appeal dismissed.
The Court: withdrawal from methadone program not relevantly related to defendant's offending - errors in Judge's approach to sentencing established - Judge's approach to reductions for pleas inconsistent - reduction of two years from head sentence in respect of 18 months spent in custody, artificial - Judge ought to have backdated sentence to date when defendant taken into custody - approach taken resulted in lack of clarity in sentencing process - although errors in sentencing approach established, different sentence should not be imposed - overall sentence imposed by Judge was appropriate in circumstances.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 30 and s 58; Criminal Law Consolidation Act 1935 (SA) s 353; Correctional Services Act 1982 (SA) s 75, referred to.
R v Colson (1999) 73 SASR 407; PNJ v R (No 4) (2008) 254 LSJS 302; PNJ v R (2009) 83 ALJR 384; R v Pahuja (No 2) (1989) 50 SASR 551; R v McLaren (2009) 105 SASR 29; Frank v Police (2000) 77 SASR 273; R v McHugh (1985) 1 NSWLR 588; AB v The Queen (1999) 198 CLR 111; Cameron v The Queen (2002) 209 CLR 339; Queen v Buckman (1988) 47 SASR 303; R v Hughey (2007) 252 LSJS 316; R v Al-Zuain (2009) 103 SASR 567; R v Slater (1984) 36 SASR 524, considered.

R v WILSON
[2010] SASC 89
Court of Criminal Appeal: Doyle CJ, Gray and Vanstone JJ

DOYLE CJ: I would refuse permission to appeal. In my opinion the appeal has no reasonable prospect of success. I agree with the reasons given by Vanstone J. I agree as well with the comments made by Gray J about the ability of a sentencing judge to backdate a sentence, and about the advantages of doing so.
GRAY J:
This is an application for permission to appeal against sentence.
Introduction
Andrew Hugh Wilson, the defendant and applicant, pleaded guilty to two counts of committing a serious criminal trespass in a place of residence, two counts of theft and one count of damaging property with intent. The offending was committed on two separate occasions, namely on 24 September 2007 and 2 January 2008.
On 24 September 2007 the defendant entered a place of residence at Clarence Gardens. He did so by forcing open a bedroom window. He then stole jewellery and electrical items to a value of about $2,000.00, and damaged property of the household to the value of about $800.00. In respect of this offending, the defendant was sentenced to a term of imprisonment of 8 months in relation to the charge of committing a serious criminal trespass in a place of residence, and a concurrent sentence of six months imprisonment with respect to the charge of theft. No further penalty was imposed with respect to the charge of damaging property.
On 2 January 2008 at Magill, the defendant entered the premises of an elderly widower. In gaining entry he smashed a laundry window and jemmied open a kitchen window. He then stole jewellery and money including keepsakes and items of sentimental value to the monetary value of about $29,000.00. Part of the property that was stolen was property of the widower’s recently deceased wife. The victim impact statement before the Court evidenced the distress caused to the widower by this offending. In relation to this group of offending, the defendant was sentenced to a term of imprisonment of 12 months with respect to the offence of serious criminal trespass in a place of residence, and a concurrent sentence of 12 months with respect to the offence of theft.
The commission of the above offending breached a bond with respect to a suspended sentence of imprisonment of four years and six months. The bond had been entered into following a number of offences including the offences of serious criminal trespass, theft and larceny. The Judge revoked the suspended sentence and directed that the sentences to be imposed for the present offending would be cumulative on the revoked suspended sentence.
The defendant had been taken into custody on 8 May 2008, and had spent about 18 months in custody prior to being sentenced on 3 November 2009 in respect of the present offending. The sentencing Judge said he would give credit to the defendant in respect of the 18 months spent in custody. The Judge in this respect observed:
…You have spent 18 months in custody. I will reflect this time by giving you credit for two years off the head sentences I impose and 18 months off the non-parole periods I impose. The two years represents about the sort of head sentence which would reflect ordinarily a non-parole period of 18 months, the amount of time you have been in custody and for which you are to be given credit.
The sentencing Judge proceeded to impose head sentences and did so in the following terms:
On the charge of Committing a Serious Criminal Trespass in a Place of Residence, I would have imposed a sentence of 20 months imprisonment. Had it not been for your plea of guilty, this sentence would have been 24 months. I will reduce this by 12 months giving you credit for one half of the 24 months I have spoken of, making the sentence eight months. It is to be cumulative on the four years and six months.
On the charge of theft, I would impose a penalty of imprisonment for six months. Had it not been for your plea of guilty, this would have been a sentence of eight months. It is to be served concurrently with the sentence imposed of eight months. On the charge of Damaging Property, I will impose no further penalty.
In relation to the offences of 2 January 2008, in relation to the charge of Committing a Serious Criminal Trespass in a Place of Residence, I would have imposed a sentence of imprisonment of 24 months. But for your plea of guilty, this sentence would have been 28 months and I will allow credit of the other 12 months of the 24 months, reducing the sentence to 12 months. This sentence is to be served cumulatively upon the sentence of four years, six months imposed by the estreatment of the suspended sentence and cumulatively upon the sentence of eight months in relation to the offence of Committing a Serious Criminal Trespass in a Place of Residence on 24 September 2007.
In relation to the offence of Theft on 2 January 2008, I would impose a sentence of imprisonment of 12 months. But for your plea of guilty, this sentence would have been a sentence of imprisonment of 15 months. It is to be served concurrently with the sentence of 12 months for Committing a Serious Criminal Trespass in a Place of Residence in January 2008 but cumulatively upon the suspended sentence of four years, six months and the sentences, effectively of eight months, for the offences of 24 September 2007.
Thus you are sentenced effectively to four years, six months, plus eight months, plus 12 months, giving a total of 74 months imprisonment.
The Judge then ordered the fixing and extending of a non-parole period:
I fix a non-parole period of 36 months, which includes a reduction of 18 months, allowing for your time in custody. All sentences are to commence from today.
The Application
The defendant on the hearing of the appeal complained that his offending conduct had been precipitated by being withdrawn from a methadone program. It was said that the defendant had been an opiate addict for more than 20 years and had been on a methadone program for most of that time. He asserted that because of other prescribed drugs he was having trouble sleeping and, as a result, was not consuming his methadone dose in its entirety at the pharmacy in accordance with his treatment plan. Instead he said that he was secretly consuming only part of the dose and taking the balance for use at home to help him sleep. A similar submission was made to the sentencing Judge who observed:
I am told that you and your partner have conducted a long-term fight against the use of drugs. Your partner, Suzanne, has cleared her life of heroin and you are confident of your progress in avoiding the use of drugs. You consulted a Dr Jennings as part of a supervision order on your bond and you were rediagnosed as having ADHD and returned to the use of Ritalin. This had a calming and levelling effect on you but put you on edge at night and you had great difficulty in sleeping. You also received methadone at a pharmacist where you were required to consume the entire dose. You took to smuggling some of the methadone home to split your dose and to enable you to take some at night as this would allow you to sleep. When this was discovered, you were cut off from the use of methadone and subsequently Ritalin as well. The effect was that your partner was also cut off from her methadone and massive upheaval was caused within the family.
At the time of the hearing of the defendant’s initial application for permission to appeal, it was asserted that a pharmacist had unilaterally stopped the supply of methadone to the defendant. This formed part of the reason for referring the application to the Court of Criminal Appeal. However, on the hearing before this Court, documents were tendered which established that the pharmacist, on becoming aware that the defendant was not following his treatment plan, referred the matter to the appropriate regulatory body. It was that body which, in accordance with its powers and duties, directed that the provision to the defendant of methadone cease. There were several ways in which this problem could have been addressed by the defendant. An obvious example was to immediately approach his general practitioner, explain his circumstances and arrange for the methadone program to be reinstated. He did not do so. Instead he asserted that he was driven to conduct his present offending to enable the purchase of drugs to “beat his craving for opiates”.
There are several difficulties that confront this assertion. Over the 20 years that the defendant had been on the methadone program he had committed dishonesty offending leading to imprisonment. Further, he had been returned to the methadone program prior to his offending of 2 January 2008. In my view there is no substance to the defendant’s assertion.
Before this Court, two further matters were addressed: a demonstrable inconsistency in the approach to the reductions for the pleas of guilty; and the Judge’s decision not to backdate the sentence leading to an artificial reduction to the proposed head sentence and non-parole period.
The Judge adopted an inconsistent approach to the reductions for contrition or remorse, as evidenced by the pleas of guilty. In respect to the first of the theft charges, a reduction a 25 per cent was made. In respect of the other offending various reductions of lesser amounts were made, one being almost as low as 14 per cent. Counsel for the Director of Public Prosecutions accepted that there should have been a consistent approach. Had a consistent reduction of 25 per cent been adopted throughout, an overall reduction of some months in the total head sentence would have resulted.
Both counsel agreed that the Judge could and should have backdated the sentence to the date on which the defendant was taken into custody, 8 May 2008. The Judge appears to have overlooked the authority of this Court in Colson[1] and the recent approval of that authority by this Court[2] and by the High Court in PNJ.[3]
[1]    R v Colson (1999) 73 SASR 407.
[2]    PNJ v R (No 4) (2008) 254 LSJS 302.
[3]    PNJ v R (2009) 83 ALJR 384.
Section 30 of the Criminal Law (Sentencing) Act 1988 (SA) provides:
(1)Where a court imposes a sentence of imprisonment and does not suspend the sentence, the court must specify the date on which, or the time at which, the sentence is to commence or is to be taken to have commenced.
(2)If a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment, the court may, when sentencing the defendant, take into account the time already spent in custody and —
(a) make an appropriate reduction in the term of the sentence; or
(b) direct that the sentence will be taken to have commenced —
(i) on the day on which the defendant was taken into custody; or
(ii) on a date specified by the court that occurs after the day on which the defendant was taken into custody but before the day on which the defendant is sentenced.
…
(4)Where a court fixes a non-parole period, the court must specify the date on which the non-parole period is to commence or is to be taken to have commenced.
(5)Where a court directs that a sentence of imprisonment is to be taken to have commenced on the day on which the defendant was taken into custody, any non-parole period fixed by the court in respect of that sentence will be taken to have commenced on that day.
In PNJ the High Court discussed this provision and observed:[4]
All members of the Full Court held that a judge passing sentence on the applicant has power under s 30 of the Sentencing Act to fix the commencement date of both the head sentence (life imprisonment) and the non-parole period (20 years, unless “special reasons” were established) as the date upon which he was first taken into custody following his assault on the victim.
There is no reason to doubt the Full Court’s conclusion that the sentencing judge has power to fix the date on which both the head sentence of life imprisonment and the non-parole period should be taken to have begun in this way.
Principal emphasis was given by the majority in the Full Court to the operation of s 30(1). That provision had been held in R v Colson to provide what, in the present case, Duggan J described as “a general power to backdate a sentence or to order that a sentence commence at a future date”. And in Colson, Doyle CJ, speaking for the Full Court, had concluded that earlier decisions of the Full Court had treated s 30(1) or its legislative predecessor as conferring “a general power to direct that a sentence is to commence at an earlier date or time than the time at which it is imposed”.
In the particular circumstances of this case, however, it may be that the power to backdate any sentence passed on the applicant (and to backdate the commencement of a non-parole period) is to be found in s 30(2)(b) rather than the general powers conferred by s 30(1). The expression used in s 30(2), about which the relevant operation of para (b) would hinge, is “[i]f a defendant has spent time in custody in respect of an offence for which the defendant is subsequently sentenced to imprisonment”. No narrow construction should be given to the words “time in custody in respect of an offence”. The better view may be that they are words that in this case would encompass the time the applicant has spent in custody following his arrest for and awaiting trial for the wounding, and the time he has spent in custody serving the sentence imposed on him for the wounding.
If a person is charged with an offence, taken into custody, and later convicted of that offence, there is no doubt that s 30(2) would apply. But if, as is often the case, the charge that is laid at the time of an offender’s arrest is not the charge of which the offender is later convicted, it does not follow that the time served cannot be described as “time in custody in respect of an offence” of which the offender is later convicted. The question is whether the time in custody is “in respect of” (which is to say, is referable to) the offence in question. And where, as here, the applicant’s conduct was complete when he was taken into custody but the offence of murder was not complete until the victim died, the expression “time in custody in respect of an offence” may be given the application that has been described.
It is not necessary to decide whether this construction of s 30(2) is right. If s 30(2) is not to be read in the way described, the Full Court was right to hold that s 30(1) would supply the power to backdate the sentence and the commencement of the non-parole period to the date the applicant was taken into custody. It is enough to make only two points. First, “[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”. Secondly, as noted earlier, the construction of s 30(1), adopted by the majority in the Full Court, applied that Court’s earlier decision in Colson and reflected well-established sentencing practice under the Sentencing Act not inconsistent with the practice adopted under earlier legislation. This understanding of the powers of courts sentencing under the applicable South Australian legislation having stood unchallenged for as long as it has, there should be no departure from, or qualification to, the underlying question of construction of the relevant statute unless it is shown to be wrong, and it is not. Section 18 of the Acts Interpretation Act 1915 (SA) abrogates any presumption that re-enactment of a statutory provision constitutes parliamentary approval of the particular construction given to those words. The abrogation of that presumption is not relevant in this case. What matters here is the absence of demonstrated error in the construction given to s 30(1).
[4] PNJ v R (2009) 83 ALJR 384 at [14]-[19].
It has been observed in a number of authorities that it is desirable whenever possible to backdate a sentence to the time at which a defendant is taken into custody. In Pahuja (No 2)[5] White J discussed the alternative means of either backdating the sentence or reducing the head sentence in order to take into account time spent in custody. White J considered that the preferable course was to backdate the sentence rather than artificiality reduce the head sentence. In this manner, the record will show the correct length of head sentence and non-parole period imposed, and the risk of false impressions created in the minds of the prisoner and the public about the length of the sentence and its appropriateness, will be minimised. The difficulty with an artificial reduction of a sentence imposed in order to take account of time spent in custody, is that such a sentence does not, on the face of it, match the seriousness of the conduct the subject of the sentence.[6] Such approach may also distort the statistical record of sentences imposed for like offences.
[5] R v Pahuja (No 2) (1989) 50 SASR 551 at 563.
[6] R v McLaren (2009) 105 SASR 29 at [28] (Nyland and Gray JJ).

The observations of White J in Pahuja (No 2) were adopted by Lander J in Frank.[7] Lander J also observed that by backdating a sentence rather than artificially reducing that sentence, the prisoner and all other interested persons are informed as to the real sentence which has been imposed. This approach further makes it obvious to the prisoner that any time spent in custody has in fact been taken into account. Backdating also avoids the risk that when imposing a non-parole period, the court may overlook that the person being sentenced has actually served the whole of the time for which account has been given. Lander J also outlined the implications that artificially reducing a sentence may have on the availability of home detention. As home detention is generally not available unless a prisoner has served at least one half of their non-parole period, if a person spends a significant period in prison prior to sentence and an appropriate adjustment is not made to the non-parole period accordingly, that person may lose the prospect of being released on home detention for the period for which account has not been given in the non-parole period.
[7] Frank v Police (2000) 77 SASR 273 at [49]-[53] adopting R v Pahuja (No 2) (1989) 50 SASR 551 at 563; R v McHugh (1985) 1 NSWLR 588 at 590.
The above observations clearly highlight the many dangers associated with artificially reducing a sentence to take account of time spent in custody. As outlined, the preferable course is to backdate the sentence accordingly.
Both counsel agreed that, in proceeding as he did, the Judge erred in favour of the defendant by allowing a two year reduction from the head sentence in respect of the 18 months spent in custody. Earlier in these reasons, the relevant remarks of the Judge are set out. This was an artificial contrivance adopted by the Judge to avoid the consequences of not backdating the sentence. The same artificiality also occurred with the reduction of 18 months to the non-parole period. The difficulties with this approach are self-evident.
The Judge having made all the adjustments referred to earlier, imposed a head sentence of 74 months imprisonment, and fixed a non‑parole period of 36 months. The sentence and non‑parole period commenced from the day of sentencing, 3 November 2009. It would appear from the sentence imposed, the Judge considered that a non-parole period of about one half was appropriate.
The Judge’s approach involved an engagement in a mathematical exercise that is demonstrably flawed. The observations of McHugh J, although in a different context, are reminders of the dangers of a mathematical approach to sentencing. McHugh J observed:[8]
… Statutory exceptions aside, the task of the judge "is to pass such sentence as in all the circumstances relating to the offence and to the offender is that which he regards as the appropriate sentence." If the judge first formulates an objectively determined sentence, he or she has only relied on part of the relevant circumstances and has effectively allowed that part of the circumstances to dominate the sentencing process. Worse still, there is a danger that the objectively determined sentence will be formulated by reference to abstractions derived from the circumstances, rather than by reference to the concrete facts of the case….. Abstraction replaces the convicted person's circumstances in determining the appropriate sentence.
…
The factors bearing on a sentence will vary from case to case. Frequently, they will point in different directions. The task of the sentencing judge or magistrate is not to add and subtract from an objectively determined sentence but to balance the various factors and make a value judgment as to what is the appropriate sentence in all the circumstances of the case. In R v Rushby, Street CJ said, correctly in my opinion, that the "determination in any given case of the appropriate sentence involves an adjudicative balancing of a number of differing and not entirely consistent elements." No doubt at the conclusion of the process, the judge will check the sentence against other comparable sentences and may feel compelled to adjust the sentence up or down. But that is quite different from beginning with an "objectively" determined sentence.
[8] AB v The Queen (1999) 198 CLR 111 at [16], [18]; see also Cameron v The Queen (2002) 209 CLR 339 at [41].
There are difficulties in seeking to ascertain what sentence the Judge would have arrived at had he backdated the sentence and applied a consistent reduction for the pleas of guilty. Is one to assume that the Judge would have made a 25 per cent reduction on account of all pleas, or a lesser reduction? Is it to be assumed that the Judge would have settled on about one half of the head sentence as an appropriate non-parole period? Backdating would have eliminated entirely the need for any artificial adjustment in respect of time spent in custody and avoided the problem with the total 24 month reduction made by the Judge in relation to the two proposed head sentences.
If the sentencing Judge had backdated the sentence and had made a consistent reduction of one quarter on account of the pleas, and had adhered to his view that a non-parole period of about one half of the head sentence should be fixed, the defendant would have been eligible for parole some six months earlier than under the sentence that was in fact imposed. However, it is to be noted that one cannot confidently assess that this was what the Judge would have done.
It is of importance that there be clarity in the sentencing process. Mathematical mistakes may occur in the best of circumstances, but regrettably, however occurring, they have the consequence of undermining confidence in the criminal processes of the Court.
Errors having been established in the approach of the sentencing Judge, it is necessary for this Court to give consideration to the appropriate sentence to be imposed. In particular, section 353 of the Criminal Law Consolidation Act 1935 (SA) relevantly provides:
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)    quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)     quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
(5)     The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
In my view, the offending conduct was serious, the suggested excuse should be rejected and having regard to the defendant’s criminal antecedents, there was little scope for leniency. I consider that the sentence imposed was merciful in the circumstances.
Conclusion
I have reached the conclusion that the overall sentence imposed was an appropriate sentence. Although there were errors in the sentencing approach, I do not consider that a different overall sentence “ought to have been passed”.
I would have acted under section 18A of the Criminal Law (Sentencing) Act and imposed the one sentence in respect of all the offending. I would have revoked the suspended sentence. I would have backdated the sentence and the non-parole period to commence on 8 May 2008, the date on which the defendant was taken into custody. This would have resulted in the head sentence being served by February 2016 and the defendant being eligible for parole in December 2012.
Having regard to the foregoing, I consider that permission to appeal should be granted, but the appeal dismissed.
VANSTONE J: This is an application for permission to appeal against a sentence imposed in the District Court. A judge of this Court referred the application to the Court of Criminal Appeal for consideration. The only matter agitated upon the appeal was that the sentence was manifestly excessive because the judge gave insufficient weight to the fact that just prior to the first offences the applicant had been expelled suddenly from the methadone program. It was said that the explanation that this provided for the offending should have led, in the first instance, to reduction of the term of a previously suspended sentence which the applicant became liable to serve and, in any event, to a more merciful approach to the sentences imposed by the judge.
The applicant pleaded guilty to five offences of dishonesty in the Magistrates Court and was committed for sentence. The offending occurred on two occasions separated by several months, at two residential premises. The first group of offences, in September 2007, were serious criminal trespass in a place of residence, theft and damaging property. The second, in January 2008, consisted of serious criminal trespass in a place of residence and theft. During this period the applicant was subject to a 2 year bond to be of good behaviour, associated with a suspended sentence of four and a half years imprisonment, with a non-parole period of 2 years. That had been imposed in the Magistrates Court on 15 February 2006. Prior to being sentenced in the District Court the applicant spent about 18 months in custody on remand for the two groups of offences.
In sentencing, the judge revoked the suspension of the previous sentence and ordered that it be carried into effect. He declined to reduce the term of the sentence, finding no special circumstances justifying that course.
The approach taken by the judge to the sentences for the new offences was as follows. Dealing with the first group, he indicated a starting point of 24 months for the serious criminal trespass and a reduction of four months (16.6 per cent) for the plea. That left a period of 20 months. He then subtracted a period of 12 months to reflect half of the 18 months which had been spent on remand. The judge explained that two years represented “about the sort of head sentence which would reflect ordinarily a non-parole period of 18 months …”. That left a head sentence of eight months. On the theft offence, the judge started with eight months and reduced that term to six months (25 per cent) in recognition of the plea. He ordered that it be served concurrently with the eight months. No further penalty was imposed for the damaging property offence.
The judge then turned to the second group of offences. For the serious criminal trespass a discount of 14 per cent was given for the plea, bringing the head sentence down to 24 months. Again, an allowance of 12 months for time in custody was deducted from that notional head sentence. That left a sentence of 12 months. For the theft, a 20 per cent reduction for the plea was given, bringing the sentence down to 12 months. Again, those terms were ordered to be served concurrently, but were to be cumulative upon the eight months for the first group; giving an effective sentence of 20 months. The judge then ordered that this period be served cumulatively upon the previously suspended sentence of four years and six months. In relation to the total arrived at, of six years and two months, or 74 months, the judge fixed a non-parole period of 36 months. The sentence was ordered to commence on the day of sentence.
As I mentioned, the applicant’s complaint arises from the events which are said to have led to his relapse into offending. It appears that at the time of being sentenced in the Magistrates Court, in February 2006, and indeed for some years leading up to that time, the applicant was on what is colloquially referred to as “the methadone program”. The program is administered by staff of a Drugs of Dependence Unit within the Drug and Alcohol Services. Methadone is supplied to clients under the terms of a contract struck with the client. If the client fails to consume the drug in accordance with the terms of the contract, then the contract may be cancelled. It appears that in the case of the applicant, the pharmacist who was supervising his program became aware that the applicant was “diverting” some of his methadone and was therefore obliged to report the matter to staff of the relevant Drugs of Dependence Unit. Access to methadone was then ordered to be rapidly reduced over three days, and then withdrawn for a period of three months. However, a further incident with the pharmacist, precipitated by the applicant, led to the immediate termination from the program without any dose reduction.
Before the sentencing judge it was put by the applicant’s counsel (who was not counsel before this Court) that the sudden unavailability of methadone caused the applicant to experience withdrawal symptoms and led to the use of illicit substances and ultimately to offending designed to yield money to purchase drugs. It was put to the judge that until this event, the applicant’s rehabilitation had been proceeding smoothly. The account of these events were referred to and accepted by the judge in his remarks upon sentence.
What was not put to the judge, but has been disclosed to this Court and supported by a letter from the applicant’s general practitioner, is that in December 2007, prior to the second group of offences, the applicant had been placed back on what the doctor called “a regular dose” of the methadone, with the agreement of the Drugs of Dependence Unit. On the face of it, that would undermine the suggestion that withdrawal of methadone had precipitated all the offending. However, counsel for the applicant told this Court that the second offending still stemmed from deprivation of methadone and that upon being placed back on methadone the dose was initially very low. He said that at the time of the second pair of offences in early January 2008 the applicant was still suffering from withdrawal symptoms. Of course as none of this new material was before the judge, it remains untested.
It was put to this Court that these circumstances should have led to a reduction of the term of the previous sentence because it amounted to “special circumstances”, as referred to in s 58(4)(a) of the Criminal Law (Sentencing) Act 1988. Then it was argued that, in any event, the circumstances that led to the new offending should have resulted in a more merciful head sentence and non-parole period.
Section 58(4) provides as follows:
(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.
In Queen v Buckman (1988) 47 SASR 303 at 307 this Court made clear that special circumstances for reducing a previously suspended sentence “looked 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 in order to make out special circumstances in the context of the facts now put forward, the applicant would need to show that a lesser sentence would have been imposed had the sentencing magistrate known, in February 2006, that during the term of the bond he was imposing, the applicant would breach the terms of his contract with the Drug and Alcohol Services, which would precipitate his expulsion from the methadone program, that triggering further offending. Stating the proposition in such terms is enough to demonstrate its falsity. On the contrary, had the magistrate foreseen the ensuing course of events, it is likely that he or she would not have found good reason to suspend the sentence.
I turn then to the question of manifest excess and, in particular, to whether the background to the offending was given sufficient weight. The assessment of the proffered explanation and the role it would play in the setting of the new sentences was very much a matter for the sentencing judge. I am unable to say that the sentences imposed should have been lower. In my view they can properly be described as towards the lower end of the available range. No doubt the judge imposed sentences as moderate as these only because of his recognition of the substantial existing sentence, which the applicant was about to be required to serve. There was nothing about the offending itself to otherwise justify terms of imprisonment within the lower range for offences of this type. Moreover, the very fact that the applicant was enjoying the benefits of a suspended sentence and therefore subject to the associated bond at the time of this offending was itself an aggravating factor. I consider that neither the considerations of the applicant’s addiction to illicit drugs or the commendable attempt at rehabilitation which he apparently made prior to being removed from the methadone program, nor any other factor tends against a conclusion that the sentence imposed was other than merciful. The applicant has argued that the judge should have considered the totality principle in imposing the sentences. I do not think that this principle had any role to play in the circumstances of this case, where the sentence to be served is not particularly lengthy.
Before leaving this matter I would make two further observations. The first relates to the manner in which the 18 months on remand prior to sentence was reflected in the sentences ultimately imposed. Apart from the brief explanation which I earlier quoted, it is not apparent why the judge created the fiction of a two year head sentence to correspond with the 18 months spent on remand, and then deducted one half of that head sentence from each new head sentence. The effect of that seems to me to be that the applicant will, ultimately, spend six months less time on parole than he otherwise would have. Had the sentence been ordered to run from the day on which the appellant was taken into custody on these offences, the perceived need for any such fiction would not have arisen.
In that regard the judge might have taken the view that it was not open to him, or alternatively, not desirable, to “backdate” the previously suspended term, since the time on remand related not to the suspended sentence, but to the breaching offences. The preponderance of authority in this Court is to the effect that s 30(1) Sentencing Act does allow this; as to which see R v Colson (1999) 73 SASR 407; PNJ (No 4) (2008) 254 LSJS 302; PNJ v The Queen (2009) 83 ALJR 384; R v Hughey (2007) SASC 452; R v Al-Zuain (2009) 103 SASR 567.
An alternative approach would have been to order that the new sentences date from the date of arrest and the previously suspended sentence follow consecutively. In that way, no question of crediting time spent on remand for the new offences against the quite separate previous sentence would arise. That would mean that the sentences would be served in reverse chronological order, but I do not see any difficulty in that.
There is nothing in s 58(1)(d) Sentencing Act – which requires the judge to “revoke the suspension and order that the sentence be carried into effect” – to prevent such a course. Indeed s 58(4)(c) specifically contemplates it. This situation is to be contrasted to that which applies where fresh offences are committed during a period on parole. (See s 75 Correctional Services Act 1982 and R v Slater (1984) 36 SASR 524 at 527-529 and the subsequent cases concerned with the interpretation of s 75(1)). I take the relevant distinction between these two provisions, in terms of the ability of the judge to order “backdating” of the previously suspended sentence on the one hand, and the inability to “backdate” service of the unexpired portion of a head sentence on the other, to be as follows. Whereas s 58(1)(d) Criminal Law (Sentencing) Act leaves it to the sentencing judge to order that the previously suspended sentence be carried into effect, s 75 Correctional Services Act as interpreted by King CJ in Slater’s case, and subsequently, has the effect that imposition of a non-suspended sentence for an offence committed during a period on parole automatically causes the prisoner to resume serving the original unexpired term of imprisonment. (Whether this construction of s 75 Correctional Services Act is stark enough to justify the inconvenience, difficulty and sophisticated calculations to which it leads may be doubted. Perhaps a court of five should examine the question again.)

Anyway, as I have said, I do not see that there was any impediment to ordering the new sentences to be taken to have commenced on the day the applicant went into custody, to be followed by the previously suspended sentence.
The other matter I would mention is that it is not immediately apparent why the discount or credit afforded the applicant for the pleas of guilty was, in each instance, a different proportion of the notional head sentence. Unless there is a good reason to discriminate in this way, then in my view it should not be done. In the absence of an adequate explanation, it suggests a certain arbitrariness about the process, which would tend to undermine the sound policy reasons behind giving credit for a willingness to co-operate in the course of justice.
I would refuse permission to appeal.