Schulz v Commissioner of Police
[2025] SASC 94
•11 June 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
SCHULZ v COMMISSIONER OF POLICE
[2025] SASC 94
Judgment of the Honourable Justice B Doyle
11 June 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH
The appellant is a 20 year old Aboriginal woman. Her upbringing was plagued by instability, substance abuse and mental health difficulties. In early 2024, she was convicted of offences that resulted in the imposition of a term of imprisonment that was partially suspended upon her entering into a bond to be of good behaviour. At the relevant time, the remaining term of the suspended sentence was six months and two weeks. During the term of the bond, the appellant committed 11 offences of a low to mid-level of seriousness. A magistrate revoked the suspension and ordered that the earlier sentence be carried into effect. In respect of the offences, the magistrate imposed penalties which included a small fine and a combined term of imprisonment of 25 days, to be served cumulatively upon the reactivated sentence (but which term of imprisonment was itself to be suspended on condition that the appellant enter into a bond to be of good behaviour).
The appellant appeals against sentence, contending that:
1.the magistrate’s reasons for not being satisfied that there were proper grounds on which the appellant’s failure to comply with the conditions of her bond should be excused were inadequate;
2.the magistrate’s decision not to refrain from revoking the suspension, and not to reduce the term of the reactivated sentence, was unreasonable or plainly unjust.
Held, dismissing the appeal:
1. the magistrate’s reasons were adequate;
2.the decision to revoke and not reduce the term of the suspended sentence was not shown to be erroneous.
Bail Act 1985 (SA) s 17(1); Controlled Substances Act 1984 (SA) s 33L(1)(c); Criminal Law Consolidation Act 1935 (SA) ss 20(3), 20AA(3), 134; Sentencing Act 2017 (SA) s 114; Summary Offences Act 1953 (SA) ss 7(1)(a), 21E(1), 41(1), referred to.
Bugmy v The Queen (2013) 249 CLR 571; Hann v Police [2019] SASC 213; Ludgate v Police [2018] SASC 175 ; McKenna v The Queen [2022] SASCA 10; Police v Heritage (2019) 135 SASR 1; Police v Peel (2021) 137 SASR 584 ; Police v Taleporos (2022) 301 A Crim R 348; R v Buckman (1988) 47 SASR 303; R v Chandra (unreported, Court of Criminal Appeal, SA, No S56554, 17 February 1998); R v Smith [2014] SASCFC 98, discussed.
SCHULZ v COMMISSIONER OF POLICE
[2025] SASC 94Magistrates Appeal—Criminal
B DOYLE J: The appellant appeals against a sentencing decision made by a magistrate on 30 January 2025. The appellant had pleaded guilty to a series of offences and admitted that by doing so she had breached the terms of a suspended sentence bond that had been imposed on 5 January 2024. At the time of the magistrate’s decision, the remaining term of that suspended sentence was six months and two weeks.
In sentencing the appellant, the magistrate was not satisfied that the breaches of that bond were ‘trivial’, nor that there were ‘proper grounds’ not to revoke the suspended sentence, and was also not satisfied that there were ‘special circumstances’ justifying a reduction of that suspended term. The result was that the suspended sentence was reactivated by reason of s 114 of the Sentencing Act 2017 (SA) (‘Sentencing Act’).
In respect of the 11 offences for which the appellant was separately convicted, the magistrate imposed sentences totalling 25 days imprisonment together with modest fines. That term of imprisonment was ordered to be served cumulatively upon the revoked suspended sentence, resulting in a total effective sentence of imprisonment of seven months, one week and two days. However, the magistrate ordered that the applicant serve six months and two weeks of that term in prison and suspended the remaining 25 days on condition that she enter into a bond to be of good behaviour for a period of 12 months in the amount of $500 and to comply with various other conditions.
In summary, the appellant contends that:
(1)the reasons of the magistrate for concluding that there were not proper grounds not to revoke the suspended sentence were inadequate;
(2)the decision to revoke the suspended sentence bond, and not to reduce the sentence the subject of the suspended sentence bond, was unjust or unreasonable.
For the reasons that follow, I conclude that the magistrate’s reasons were not inadequate and it has not been demonstrated that the decision to revoke the suspended bond, or to decline to reduce its term, was erroneous.
It is clear that the serious disadvantage that the appellant has encountered, coupled with substance abuse and related mental health issues, have made it difficult for the appellant to comply with the terms of her bond. However, the offending which involved a breach of good behaviour, whilst not involving offending of a high level, was of a persistent and concerning kind. Seen in the context of the appellant’s history, it showed that the bond was not achieving a deterrent or rehabilitative purpose. Regrettably, there was little if any alternative to the revocation of the suspended sentence, and no sufficient justification for a reduction in its term.
Background
The appellant is a 20 year old Aboriginal woman whose father was from Yuendumu. She lived with her parents until age 10 and then moved to live with her aunty until age 15, before moving back with her mother.
Tragically, she has had an ongoing amphetamine addiction since the age of 12. She has used intravenously since the age of 15. She is highly addicted and has had issues with drug-induced psychoses. The material before the sentencing magistrate suggested the appellant had multiple presentations at hospital emergency departments.
The magistrate summarised the appellant’s recent offending history in terms about which no complaint has been made. He said:
Putting to one side your Youth Court history, your adult criminal history commenced in 2022. You committed an aggravated assault and two aggravated breaches of intervention orders for which, in December 2022, the court, without convicting you, placed you on a $500 bond to be of good behaviour for 12 months.
You breached that bond. You were not of good behaviour, and on 19 June 2023 were dealt with for non-residential serious criminal trespass and theft, illegal use of a motor vehicle, driving while unauthorised, driving while under the influence, and four counts of breaching bail.
On this occasion your breach was excused, and you were placed on another $500 bond to be of good behaviour, this time for 18 months.
You breached that bond. You were not of good behaviour. On 4 January 2024 you were convicted of offences that included illegal interference with a motor vehicle, theft, bail breaches, unlawful possession offences, assault, and unlawfully on premises. This the matter in which the court sentenced you to 11 months imprisonment, but ordered that if you served 4 months 2 weeks the rest could be suspended upon you entering a $500 bond to be of good behaviour for 12 months, which you now admit you have breached.
It can be seen that you have breached every good behaviour bond the court has imposed upon you.
Circumstances of offending
The admitted offending in breach of the appellant’s good behaviour requirement was described in the following terms by the magistrate.
On MCCRM-24-035857 you have pleaded guilty to assaulting a prescribed worker, punishable by a maximum penalty of 5 years imprisonment. The timing of your guilty plea entitles you to a reduction of up to 40% upon the sentence that the court would otherwise impose, for instance if you had not pleaded guilty but were found guilty at trial.
On 3 April 2024 at about 12.20pm, Woolworths Tea Tree Plaza assistant manager Craig Paterson heard shouting at the front of the store and saw you and a man arguing. He approached and asked if you were all right. You said ‘fuck off you cunt.’ He asked you to leave the store. He called store security. You pushed a trolley away from you forcefully, and he had to grab it to ensure it did not hit another customer. You then started throwing items from your trolley into the mall area, and you threw a bottle at Mr Paterson; you hit him in the face. He tried to guide you out the store and you shoved him twice to the chest before leaving. The incident was caught on CCTV, and Mr Paterson independently identified you in an identification procedure.
When questioned about this matter you denied any knowledge of the incident, but you did say you were off your face when that happened.
This offence was aggravated by the fact that it was committed in breach of the 5 January 2024 suspended sentence bond.
On MCCRM-24-025829 you have pleaded guilty to an offence of disorderly behaviour and an offence of unlawful possession. The timing of your guilty pleas entitles you to a reduction of up to 30% upon the sentence that the court would otherwise impose.
On 23 April 2024 police were called to Elizabeth Street at Torrensville. They found you on a bike in a front yard. You had several bags and a package in your possession. In one of your bags they found a wallet with a card in the name of Taryn Palmer, which they suspected you had obtained by unlawful means. That became count 2.
You became heightened and began yelling at police ‘don't fucking touch my stuff.’ When they arrested you for disorderly behaviour, they found that you had a Toyota car key in your possession, which they also suspected you had obtained by unlawful means.
When you were arrested you began to hit your head on the ground and made comments about self-harm that caused police to take you for mental health assessment. They did not question you further due to your demeanour and their suspicion that you were suffering drug induced psychosis.
This offence was aggravated by the fact that it was committed in breach of the 5 January 2024 suspended sentence bond.
On MCCRM-24-018383 you have pleaded guilty to possessing a knife in a public place, which is punishable for a first offence by a $2,500 fine or 6 months and for a second offence, a $5,000 fine or up to 12 months.
The timing of your guilty plea entitles you to a reduction of up to 30% upon the sentence that the court would otherwise impose.
This offence was committed 5 days after the previous offence I have mentioned.
On 28/4/24, police responded to a duress alarm activated at the X Convenience Service Station on Henley Beach Road at Torrensville. They discovered that you had been with another man there, who had stolen some chips and left before the security doors closed and locked. That left you locked inside when police arrived. They searched you, and found you had a 15cm flip knife in your handbag. You said you knew this was an offence. You said you used it as a toothpick. By your plea, you admit that you had possession of a knife in a public place.
This offence was also aggravated by the fact that it was committed in breach of the 5 January 2024 suspended sentence bond.
On MCCRM-24-029732 you have pleaded guilty to an aggravated assault with a weapon, punishable by a maximum 4 years imprisonment. The timing of your guilty plea entitles you to a reduction of up to 30% upon the sentence that the court would otherwise impose.
This offence was committed just over two weeks after the last offence I have mentioned.
On 14 May 2024 a woman called Tanya Winter was sitting on Bank St in the city on her mobile phone. You sat next to her, yelling and swearing, and threw an empty coke bottle onto the foot path. She left and walked to a nearby hotel reception area, but when she could no longer hear you shouting she returned, intending to smoke a cigarette. You returned. You approached her. You shouted "you're going to have to learn the hard way". She told you to get out of her face. You swung your bag, hitting her in the head, and then hit her with an open right palm to the side of the face. You then walked off. She pointed you out to passing police and you were arrested.
You were granted bail that night, but it was a condition that you not enter the area bounded by East Terrace, North Terrace, West Terrace and Currie and Grenfell Streets. That becomes relevant later on.
This offence was aggravated by the fact that it was committed in breach of the 5 January 2024 suspended sentence bond.
On MCCRM-24-043174 you have pleaded guilty to possessing equipment to use with a controlled drug, punishable by a maximum $2,000 fine or up to 2 years imprisonment; an offence of theft punishable by up to 10 years imprisonment; and an offence of unlawful possession punishable by a maximum $10,000 fine or up to 2 years imprisonment. The timing of your guilty pleas entitles you to a reduction of up to 40% upon the sentence that the court would otherwise impose.
At about 1:30 in the morning of 2 June 2024 police found you on Travers Street at Sturt. You said you'd been using methamphetamine. You produced a glass ice pipe which became the subject of count 1. You said you had taken it from your partner and were going to smash it but decided to hold on to it.
The police found that you had a Westpac credit card in the name of Noel Holley. You said it belonged to a female friend from Victoria whose name you could not remember. Upon further investigation by police, they learned from 85 year old Mr Holley that in fact that card had been stolen from him. When they told you the card belonged to an 85-year-old man, you said it must be a set up to get you locked up. By your plea you admit that you dishonestly dealt with that card without Mr Holley's consent.
You also produced a mobile phone that police suspect had been obtained by unlawful means and that became the basis for count 3. You gave different versions about this phone, first saying you did not know whose it was, then saying it was yours although you didn't know its passcode or who bought it for you.
This offending was aggravated by the fact that it was committed in breach of the 5 January 2024 suspended sentence bond.
On MCCRM-24-032360 you have pleaded guilty to failing to comply with a bail agreement, punishable by a maximum $10,000 fine or up to 2 years imprisonment. The timing of your guilty plea entitles you to a reduction of up to 30% upon the sentence that the court would otherwise impose.
On 14 May 2024 you were granted bail but as I said before, it was a condition that you not enter the area bounded by East Terrace, North Terrace, West Terrace and Currie and Grenfell Streets.
On 9 June 2024 police found you inside that area at McDonald's Rundle Mall. You were asleep and apparently drug affected when woken by police.
You were arrested. While you were not formally interviewed because of your apparent drugged state, you did say that you thought you were only banned from Hindley Street.
This offence was aggravated by the fact that it was committed in breach of the 5 January 2024 suspended sentence bond.
On MCCRM-24-038339 you have pleaded guilty to an offence of failing to comply with a bail agreement punishable by a maximum $10,000 fine or 2 years imprisonment; and an offence of possessing equipment to use with a controlled drug punishable by a maximum fine of $2,000 or 2 years imprisonment. The timing of your guilty pleas entitles you to a reduction of up to 40% upon the sentence that the court would otherwise impose.
This offence involved another breach of that same bail agreement, because on this occasion police were called to Kmart Rundle Mall to remove you from the premises due to your behaviour. When they realised you were in breach of your bail agreement they arrested you, and at the time of your arrest they found you in possession of two ice pipes. You were not interviewed due to your erratic state and apparent drug affected state.
This offence was aggravated by the fact that it was committed in breach of the 5 January 2024 suspended sentence bond.
The appellant was arrested on a warrant on 5 December 2024. She had been in custody since 6 December 2024 when sentenced by the magistrate.
The sentencing decision
After canvassing the circumstances of the offending and the appellant’s history of offending, the magistrate turned to the appellant’s personal circumstances. In addition to those circumstances mentioned earlier in these reasons, the magistrate recorded that he had been informed that the appellant’s partner owns and works in a flooring business and that, for that reason, the appellant had entered the most stable time of her life. Her partner encouraged her to stop using drugs and the appellant had informed her lawyer she wanted to do a beauty course and had enrolled in a TAFE course to become a beautician.
As will be seen, the appellant submits that the prosocial circumstances surrounding the relationship that she had entered into prior to sentencing amounted to or resulted in a ‘special circumstance’ capable of justifying a reduction in the term of any revoked suspended sentence.
Before dealing with the sentences to be imposed for the admitted offending, the magistrate first addressed the application to enforce the suspended sentence bond imposed on 5 January 2024.
The magistrate observed:
I turn to the sentencing considerations that apply here.
High in the sentencing considerations is your youth. You are only 20 years old. This is far too young to be facing sentences of imprisonment. But it is not a special circumstance that would entitle the court to be justified in reducing the sentence of imprisonment. You were even younger when you received the partially suspended period of imprisonment and I have no doubt the court was painfully aware of your youth at that time.
Your pattern of offending since you were released into the community on the split suspended sentence bond appears to be a recommencement and continuation of low to mid-level offending united by the common theme of drug addiction. Those offences have extended to offences of violence and offences of dishonesty. It is not possible to describe your behaviour since that release as remaining of good behaviour. Your breach cannot be described as trivial. I am not persuaded that it would be a disproportionate result if, as a result of these multiple offences, the order of suspension was revoked and that you were ordered to serve the remaining period of the split sentence in a prison.
Initially I thought there might have been a change in your circumstances which, had it existed at the time of the imposition of the original bond, may have led that court to impose a lesser sentence. I had been told, when you were applying for bail, that you had become pregnant. At the time of sentencing submissions, no reference was made to this and accordingly I asked you directly whether you were pregnant and you indicated that you did not think you were. As a result, I do not have a factual basis to find that you have, since the original bond was imposed, fallen pregnant, a circumstance which, had it been in in existence at the time of the original sentence, might have led that court to impose a lower sentence. I accept that you have entered a new relationship since the original suspended sentence bond was imposed, but I do not consider that that would have led the earlier court to impose a lesser sentence and I think there is authority to the fact that a mere compliance with the terms of the bond in ceasing to offend is not, in itself, a special circumstance.
The order that suspended the remaining 6 month 2 week period of imprisonment must be revoked, and you must therefore serve that period.
The magistrate then turned to consider and impose individual sentences for the 11 counts comprising the breaches of good behaviour.
The sentences identified as appropriate by the magistrate are summarised in the table below.
Court File Number
Date of offence
Charge
Discount
Indicative Sentence
Sentence
MCCRM-24-029164
14 May 2024
Application to enforce suspended sentence bond[1]
Suspended sentence revoked and carried into effect
6 months, 2 weeks
MCCRM-24-035857
3 April 2024
Assault prescribed emergency worker[2]
40%
20 Days
12 Days
MCCRM-24-025829
23 April 2024
Disorderly Behaviour[3]
30%
$10
$7
23 April 2024
Unlawful possession[4]
30%
MCCRM-24-018383
28 April 2024
Possess knife in a public place[5]
30%
$10
$7
MCCRM-24-029732
14 May 2024
Aggravated assault[6]
30%
10 days
7 days
MCCRM-24-043174
2 June 2024
Possess equipment to use with controlled drug[7]
40%
3 days
2 days
2 June 2024
Theft[8]
40%
2 June 2024
Unlawful possession
40%
MCCRM-24-032360
9 June 2024
Breach bail[9]
30%
3 days
2 days
MCCRM-24-038339
19 July 2024
Breach bail
40%
3 days
2 days
19 July 2024
Possess equipment to use with controlled drug
40%
[1] Sentencing Act, s 114.
[2] Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), s 20AA(3). The maximum penalty is imprisonment for five years.
[3] Summary Offences Act 1953 (SA) (‘SOA’), s 7(1)(a). The maximum penalty is a fine of $1,250 or imprisonment for three months.
[4] SOA, s 41(1). The maximum penalty is a fine of $10,000 or imprisonment for two years.
[5] SOA, s 21E(1). The maximum penalties are: for a first offence: a fine of $2,500 or imprisonment for six months; for a subsequent offence: a fine of $5,000 or imprisonment for 12 months.
[6] CLCA, s 20(3). The maximum penalty is imprisonment for four years.
[7] Controlled Substances Act 1984 (SA), s 33L(1)(c). The maximum penalty is a fine of $2,000 or imprisonment for two years, or both.
[8] CLCA, s 134. The maximum penalty is imprisonment for 10 years.
[9] Bail Act 1985 (SA), s 17(1). The maximum penalty is a fine of $10,000 or imprisonment for two years.
Putting the fines to one side, the total period of imprisonment was 25 days. Noting that when the 25 days was combined with the revoked suspended sentence, the result was between three and 12 months imprisonment, the magistrate observed that it was open to him to partially suspend the sentence.
In that regard, he concluded:
Your compliance history with bonds is terrible, but your youth is a factor which I choose to rely upon in the knowledge that you still have time to learn and there is still time for you to show that you could live a law-abiding life in the community.
I consider that to order you to serve less than six months and two weeks would have the effect of undermining the intention between s 114 of the Sentencing Act, in circumstances where I found no special circumstances to reduce the period of imprisonment that the earlier court considered you should serve in the event of a breach.
However, I am prepared to suspend the remaining 25 days, not because of your history of compliance, but because of your youth.
The order of the court then is that you must serve 6 months, 2 weeks and 25 days imprisonment, commencing from 6 December 2024 - but you may be released after serving 6 months and 2 weeks - and the remaining 25 days may be suspended, if you enter into a bond in the sum of $500 to be of good behaviour for 12 months, which would take effect upon your release from custody.
The sentencing principles
The appeal grounds focus upon the decision by the magistrate to revoke the suspended sentence and not to order that the term of that sentence be reduced. Those matters are governed by s 114 of the Sentencing Act, which relevantly provides:
114—Orders that court may make on breach of bond
(1)If the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
(a) may, if the bond requires the probationer to pay a sum in the event of non‑compliance with a condition of the bond, order the probationer to pay the whole or a part of that sum; or
(b) may order a guarantor to pay the whole or a part of the amount due under the guarantee; or
(c) may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond—
(i)sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or
(ii)if 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 on which the failure should be excused, refrain from taking any action in respect of the failure; or
(d) if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
(2) …
(3)If 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 on which the failure should be excused, the court may refrain from revoking the suspension and—
(a) …
(b) in the case of any other bond—may—
(i) extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or
(ii)impose a condition on the bond requiring the probationer to perform a specified number of hours of community service; or
(iii) revoke or vary any other condition of the bond; and
(c) …
(4) …
(5)If a court revokes the suspension of a sentence of imprisonment, the court may make any of the following orders:
(a) if it considers that there are special circumstances justifying it in so doing—an order reducing the term of the suspended sentence;
(b) an order directing 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;
(c) in the case of a probationer whose sentence of imprisonment was partially suspended under section 96(5) and even if the term of the sentence now to be served in custody is less than 12 months—an order fixing or extending a non‑parole period taking into account the time spent in custody by the probationer before being released on the bond;
(e) an order directing that—
(i)in the case of a sentence partially suspended under section 96(4) or (5)—any part of the sentence that the probationer has not served in custody; or
(ii) in any other case—the suspended sentence,
be cumulative on another sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
(6) …
In the present case, s 114(1)(d) of the Sentencing Act required that the appellant’s suspended sentence be revoked and carried into effect subject only to satisfying the court that her failure to comply with the conditions of the bond was ‘trivial’ or that there were ‘proper grounds on which the failure could be excused’, within the meaning of s 114(3).
It was not contended the breaches were trivial.
With respect to the requirement of ‘proper grounds’, the approach required by s 114(3) was summarised by Doyle J, with whom Kourakis CJ and Kelly J agreed, in Police v Peel.[10] After referring to the analysis of Blue J in Police v Heritage,[11] he said:
[10] (2021) 137 SASR 584 at [38] – [44].
[11] (2019) 135 SASR 1.
… consideration of whether there are “proper grounds” for excusing a failure to comply with a suspended sentence bond involves consideration of the nature of the breach and the circumstances in which it was committed, and of any disproportionality between the nature and extent of the breach and the severity of the consequence of revoking the suspension and requiring the original sentence to be served.
As Blue J pointed out, this invites a focus upon the objective circumstances of the breach offending, as opposed to, for example, the personal circumstances of the defendant more generally. However, properly understood, his Honour did not suggest that there is clear or rigid line that excludes from consideration matters that might be said to be personal to the defendant, or that such matters cannot inform the Court’s consideration of whether proper grounds to excuse the breach exist. To the contrary, his Honour expressly contemplated that matters which “bear on the culpability of the offender in committing the [breach] offence” will be relevant. These may include not only the defendant’s state of mind, but also any history of similar offending (particularly where it constitutes the original offending giving rise to the suspended sentence bond). Such matters may be relevant not only to a full understanding of the nature and seriousness of the breach offending, but also whether it would be disproportionate to revoke the suspension of that sentence.
Certainly there is authority to the effect that the similarity or otherwise of the breach offending to the original offending is relevant to the existence of “proper grounds”. As explained, Blue J said as much in determining that the Magistrate in that case had erred in concluding that there were proper grounds for refraining from revoking the respondent’s suspended sentence.
In R v Buckman,[12] immediately following the passage from King CJ’s reasons extracted earlier in these reasons, and in concluding that there were proper grounds to refrain from revoking the suspension of the appellant’s sentence in that case, his Honour reasoned that it was “not irrelevant, moreover, that the offence constituting the breach is of a quite different character from that for which the sentence was imposed.”[13] Jacobs J reasoned similarly, noting that consideration of whether there were proper grounds for excusing a breach invited comparison between the breach offending and the original offending, and in particular whether the offender had reverted to criminal conduct that was comparable, even if not in kind, at least in its culpability and general criminal content.[14]
In R v Smith,[15] in a passage referred to by Blue J in Police v Heritage,[16] Kourakis CJ (with whom Vanstone and Blue JJ agreed) referred to the above observations of King CJ in R v Buckman,[17] stating that differences between the original offence and the breaching offence were not irrelevant, albeit adding that their relevance was nevertheless “limited”.[18]
Similarly, in R v Chandra,[19] in considering whether there were proper grounds for excusing a breach of a suspended sentence bond, Doyle CJ (with whom Cox and Williams JJ agreed) said:[20]
The one matter that gives me pause is the disproportion between the seriousness of the breaching offences and the length of the sentence which is to be activated. The sentences for the breaching offences are relatively minor, although their minor nature is, in the present case, to be weighed against the fact that they are offences that do bear similarities to, or have links to, the offence in respect of which the suspended sentence was imposed. In my opinion it cannot be said in this case that the breaching offences are, in the words of Jacobs J, offences of ‘a quite different character from that for which the [suspended] sentence was imposed’. I again refer to R v Buckman… There is a relevant relationship between the breaching offences and the original offence. Nevertheless, I am influenced by the disproportion.
It is true that these authorities have focused upon the relevance of the similarity or otherwise between the breach offending and the original offending giving rise to the suspended sentence bond. However, in my view, there is no reason why this relevance cannot extend to the similarity of previous offending more generally. That history of similar offending may be relevant on the basis that it informs a full understanding of both the seriousness of the breach offending, and of the circumstances in which, and reasons for which, the original suspended sentence was imposed and hence the proportionality or otherwise of revoking the suspension of that sentence.
[12] R v Buckman (1988) 47 SASR 303.
[13] R v Buckman (1988) 47 SASR 303 at 305.
[14] R v Buckman (1988) 47 SASR 303 at 309.
[15] R v Smith [2014] SASCFC 98.
[16] Police v Heritage (2019) 135 SASR 1 at [29].
[17] R v Buckman (1988) 47 SASR 303.
[18] R v Smith [2014] SASCFC 98 at [25].
[19] R v Chandra (unreported, Court of Criminal Appeal, SA, No S56554, 17 February 1998).
[20] R v Chandra (unreported, Court of Criminal Appeal, SA, No S56554, 17 February 1998) at 4-5.
It is accepted that personal circumstances of the offender and circumstances occurring after the breach are not capable of comprising proper grounds upon which the failure should be excused,[21] save perhaps in the rare cases where subsequent events paint a different picture of the offender’s culpability at the time of the offence.[22]
[21] Police v Heritage (2019) 135 SASR 1 at [22]-[23] (Blue J), referred to in Police v Peel (2021) 137 SASR 584 at [29] (Doyle J). See also the authorities collected by McDonald J in Police v Taleporos (2022) 301 A Crim R 348; [2022] SASC 92 at [32].
[22] Police v Peel (2021) 137 SASR 584 at [3] (Kourakis CJ, Kelly J agreeing).
More recently, the Court of Appeal summarised the required approach in these terms:[23]
It is sufficient to observe that the considerations relevant to the existence of proper grounds focus upon the nature of the breach and the circumstances in which it was committed, and any disproportionality between the nature and extent of the breach and the severity of the consequence of revoking the suspension and requiring the original sentence to be served.[24] While this invites a focus upon the objective circumstances of the breach offending, nevertheless a consideration of the seriousness of the breach, and any disproportionality inherent in a revocation of the suspended sentence, may in some cases also be informed by personal circumstances that bear upon the defendant’s culpability in committing the breach.[25]
[23] McKenna v The Queen [2022] SASCA 10 at [42] (Livesey P, Lovell and Doyle JJA).
[24] Police v Peel (2021) 137 SASR 584 at [35], [38] (Doyle J, Kourakis CJ and Kelly J agreeing).
[25] Police v Peel (2021) 137 SASR 584 at [2] (Kourakis CJ) and [39] (Doyle J, Kourakis CJ and Kelly J agreeing) and Police v Heritage (2019) 135 SASR 1 at [31] (Blue J, Stanley and Lovell JJ agreeing).
The question whether there are ‘special circumstances’ that might justify a court reducing the term of the suspended sentence under s 114(5)(a) will only arise where ‘proper grounds’ not to revoke the suspended sentence have not been found. ‘Special circumstances’ in this context comprise new or different circumstances (which will usually if not invariably will be personal circumstances) that have arisen or changed since the original sentence was imposed which, if they had existed at that time, would have justified a reduced sentence.[26]
[26] Police v Heritage (2019) 135 SASR 1 at [23] (Blue J).
Were the sentencing remarks inadequate?
The appellant submits that with respect to the question whether there were ‘proper grounds’ not to revoke the sentence, the magistrate’s sentencing remarks were not adequate.
In making that submission, the appellant’s counsel emphasised the matters which in the appellant’s submission ought to have been brought to bear on that question, namely:
·the undoubted difficulties that have plagued the appellant since her early childhood as a result of the instability in caring arrangements and exposure to harmful substances and behaviours during her formative years;
·the appellant’s history of drug use from her early teen years;
·the appellant’s history of self-harm and drug-induced psychosis;
·the appellant’s history of homelessness and ‘couch surfing’.
The appellant’s counsel emphasises that the ‘Facts of Charge’ relating to the appellant’s offending contained multiple references to the appellant having behaved erratically, appearing to be under the influence of illicit substances and engaging in self-harming behaviours such as hitting her head on the ground on arrest. These behaviours were at least in part a reflection of the ongoing effects of profound childhood deprivation to which full weight must be given in sentencing.[27] In the appellant’s submission, they bore on the circumstances and moral culpability of the conduct in breach of the bond.
[27] Bugmy v The Queen (2013) 249 CLR 571 at [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
The appellant’s counsel also emphasised what was submitted to be the stark numerical disparity between the term of imprisonment judged to be appropriate for the offending conduct (25 days) and the period of the revoked suspended sentence (six months and two weeks). The appellant submitted that, on the face of things, this disparity was such that, if it were to be concluded that revocation of the suspended sentence was not disproportionate, it was necessary to expose the reasons for that conclusion.
The appellant’s ultimate submission was that in view of the contentions just summarised, the magistrate’s reasons for concluding that proper grounds were not established, encapsulated in the third paragraph extracted earlier in these reasons at paragraph [15], were perfunctory and inadequate.
For the reasons that follow, I would not accept that submission.
As the appellant’s counsel accepted, sentencing remarks are not to be read and deconstructed with the same scrutiny as might apply to written reasons for judgment concerning guilt or innocence. The real question is whether the remarks, read as a whole, enable the reader to ascertain the reasoning upon which the sentencing decision is based. Whilst it is not necessary to recite in a formulaic or ritualistic way the common law principles or statutory provisions relevant to the sentencing exercise, the remarks should not leave the reader doubting that they were considered and applied. In some cases, the outcome of the sentencing decision might be such as to require more explicit reasons to be provided, so as to assuage any concern about whether the relevant principles were applied. In others, where the outcome is so obviously within the range of outcomes that might be reached in application of the relevant principles or provisions, a failure explicitly to recite relevant principles or provisions will not entail a failure to give adequate reasons.
To the extent that the appellant submitted that the numerical disparity between the sentence imposed for the offences comprising breaches of the bond and the term of the reactivated suspended sentence was such as to call for a more elaborate exposition of the relevant principles or their application, I disagree.
The concept of disproportion in this context is one which invites a comparison between the seriousness or gravity of the breaching offence and the sentence which would be activated if the suspension is revoked. Whilst a simple numerical comparison between any term of imprisonment imposed for the breaching offence and the period of the suspended sentence may inform that question, it will not always be a true, and it will rarely be a sole, measure of proportionality.
First, there may be mitigatory sentencing considerations relevant to the term of imprisonment imposed for the breaching offences that are not relevant, or are not weighty, in considering the existence of ‘proper grounds’ for the purposes of s 114(3).
Secondly, and relatedly, where the sentencing judge imposes a term of imprisonment having already concluded that the suspended sentence should be revoked, and directs that the term be served wholly cumulatively upon the reactivated (earlier imposed) sentence, the sentencing judge will have fixed that term with an eye towards ensuring that, in all the circumstances, the total sentencing outcome is appropriate. For that reason, the length of the term of imprisonment may not, viewed in isolation, constitute a measure of the objective seriousness of the offending. The sentence imposed may reflect a degree of leniency that might not have been afforded had the suspended sentence not been revoked.
Thirdly, and in any event, whilst there is self-evidently a material numerical difference between 25 days and six months and two weeks, I would not characterise it as one involving marked disparity or disproportion. A term of imprisonment of 25 days is itself a not insignificant penalty.
As the earlier survey of authority shows, in considering the question of ‘proper grounds’, the magistrate was required to consider the nature of the breach offences and the circumstances in which they were committed, any disproportionality between the nature and extent of those offences and the severity of the consequence of revoking the suspended sentence, the objective circumstances of the offences and the moral culpability of the person committing them. It may be accepted that in this case that entailed having regard, amongst other things, to the personal circumstances of the appellant that bore on the moral culpability of her offending. Important to that analysis was the obvious link between the appellant’s recent and disadvantaged upbringing and, relatedly, the criminogenic influence of her substance abuse and mental health issues.
It is, however, evident from the magistrate’s description of the circumstances of the offending (set out earlier in these reasons) that he was alive to the fact that illicit substances and behavioural issues, arising in the context of the appellant’s seriously disadvantaged upbringing, were an important feature of the offending.
It was not necessary to repeat the detail of those circumstances, in the context of addressing whether there were grounds not to revoke the suspended sentence. It is, in my respectful view, clear enough that the magistrate had regard to them, when he observed that the offending appeared to be a ‘recommencement and continuation of low to mid-level offending united by the common theme of drug addiction’. The magistrate had, shortly prior to that observation, referred to the appellant’s unstable upbringing, ongoing amphetamine addiction since age 12 and mental health difficulties. There is no reason to apprehend that the magistrate did not have regard to those matters as part of an assessment of the moral culpability of the breach offending when deciding whether to decline to revoke the suspended sentence.
After referring to the offending being ‘united by the common theme of drug addiction’, the magistrate observed that the offending included some offending of a violent or dishonest kind. That was relevant because it bore on the seriousness of the breach offending and the extent of similarity between the offending and the original offending giving rise to the suspended sentence bond.
In my view, the sentencing remarks canvass the relevant considerations and the essential reasoning of the magistrate is able to be discerned — namely, that although each offence might be described as low or mid-level offending, it was certainly not trivial (extending as it did to assault), and it was part of a worrisome and dangerous pattern that bore similarities with the conduct that had given rise to the suspended sentence.
In those circumstances, and bearing in mind the severity of the consequence of revoking the suspended sentence, the magistrate was not persuaded that the mitigatory considerations which went to the moral culpability of the offending warranted the conclusion that the suspended sentence should not be revoked. The magistrate plainly turned his mind to whether if the suspension were revoked, the result would be disproportionate, and decided that it would not. That was an evaluative and somewhat impressionistic assessment that did not admit of, or require, highly explicit reasoning.
In my view, the reasons of the magistrate for declining to revoke the suspended sentence were adequate.
Was the decision to revoke the suspended sentence unjust or unreasonable?
In the alternative to the submission that the reasons on this issue were inadequate, the appellant contended that the decision was wrong. Because this argument was not founded upon a specific process error, the appellant’s argument was framed by reference to the concept of ‘manifest excess’. That is to say, the appellant assumed the burden of establishing that the decision was unreasonable or plainly unjust, and outside the range of permissible outcomes.
As I have alluded to, there is no escaping the conclusion that serious disadvantage and related mental health and substance abuse issues have plagued the appellant. These considerations impact on, but do not eliminate, her moral culpability, particularly in view of her previous history of breaching bonds.
But that is only one part of the relevant inquiry. Another consideration of relevance is whether, if the suspended sentence were not revoked, that would unacceptably diminish the deterrent and rehabilitative purposes of the bond, or impair the authority of the sentencing court or the integrity of the suspended sentence as a real sentence.[28]
[28] Ludgate v Police [2018] SASC 175 at [46] (Hinton J), referred to in McKenna v The Queen [2022] SASCA 10 at [41] (Livesey P, Lovell and Doyle JJA).
In the present case, the repeated nature of the offending and its similarity with the offending that had given rise to the suspended sentence, suggests that the bond could not by the time of the magistrate’s decision be said to be effectively serving a deterrent or rehabilitative purpose. To fail to revoke the suspension of the sentence had the real capacity to undermine the integrity of the original sentence.
Whilst it was appropriate to characterise the breach offending as including low to mid-level offending, the offending included violent conduct of a kind that was dangerous to others (albeit that, in fact, serious harm was not caused). Further, given the criminogenic link between the appellant’s substance abuse and her offending, including violent offending, the offending comprised by the possession of ice pipes and a knife could not be regarded as insignificant.
In all the circumstances, and notwithstanding the sympathy which the appellant’s circumstances evoke, the conclusion that there were not proper grounds to refrain from revoking the suspended sentence was not unreasonable or plainly unjust. In my view, it was correct.
Was the decision not to reduce the term of the reactivated sentence unjust or unreasonable?
Before the magistrate, the appellant submitted that the appellant had entered into a new relationship with a man who had encouraged her to stop using drugs and who was employed. It was submitted that for the past five months or so prior to her incarceration, she began to show some sign of improvement.
The appellant contends that whilst the magistrate made reference to the appellant ‘entering a new relationship’, this was wrongly treated as amounting to no more than ‘mere compliance with the terms of the bond in ceasing to offend’. The appellant contends that that circumstance went further; it was reflective of the stability that had been brought about in the appellant’s life since commencing a supportive, prosocial relationship. This was in stark contrast to the instability that had previously plagued her relatively short life and which had contributed to her engaging in risky and criminal behaviours.
It was submitted that had such a relationship and stability existed at the time at which the appellant was first sentenced the magistrate may have differently assessed her prospects of rehabilitation, justifying a lesser penalty.
The magistrate had regard to the submission that the appellant’s new relationship might indicate that the appellant now enjoyed a more stable or supportive environment. He referred to that submission explicitly.[29]
[29] cf. Hann v Police [2019] SASC 213 at [17], [44] (Kourakis CJ).
Ultimately, the magistrate was not persuaded that this circumstance was of sufficient weight to have caused the earlier court to have imposed a lesser sentence. I am not persuaded that that conclusion was incorrect. The period during which there was no reoffending was not lengthy, and the fact that the appellant was in a relationship that might assist her to avoid a continuation of risky or criminal behaviour would have been one of many matters to be weighed in the earlier sentencing decision. In any event, I cannot conclude that the magistrate’s decision not to reduce the term of the reactivated sentence was unreasonable or plainly unjust.
In these circumstances, notwithstanding the sad circumstances which provide the context for the appellant’s pattern of offending, the appeal must be dismissed.