Teasdale v Police
[2022] SASC 64
•30 June 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
TEASDALE v POLICE
[2022] SASC 64
Judgment of the Honourable Justice Blue
30 June 2022
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY
The appellant was sentenced by a Magistrate to imprisonment:
(a)for a total of seven months for offences committed on 29 December 2020 (the most serious being illegal use); and
(b)for a further total of seven months for offences committed on 2 January 2021 (the most serious being drive in a manner dangerous).
The Magistrate fixed a non-parole period of six months and declined to suspend the sentences or order that it be served on home detention.
The appellant appeals against the sentences on five grounds:
1Failing to give credit for 11 days spent in custody.
2Failing to give credit for over nine months spent on home detention bail.
3Failing to suspend the terms of imprisonment, there existing good reason to do so.
4Failing to order that the period of imprisonment be served on home detention.
5Imposing sentences that were manifestly excessive.
Held:
1The Magistrate erred by overlooking 11 days spent by the appellant in custody after his arrest (at 39).
2The Magistrate erred by overlooking over nine months spent on home detention bail (at 52).
3The Magistrate erred in imposing a sentence of imprisonment for 3 months and 2 weeks for making off without payment, which was manifestly excessive, but otherwise the sentences were not manifestly excessive and the total of the sentences was not manifestly excessive (at 61).
4The Magistrate did not err in declining to suspend the terms of imprisonment (at 74).
5The Magistrate did not err in declining to order that the terms of imprisonment be served on home detention (at 87).
6On resentencing, taking into account the time spent in custody and on home detention bail (including pending the appeal), the appellant is sentenced to imprisonment for 5 months and 13 days for the 29 December 2020 offending and imprisonment for 3 months and 19 days to be served cumulatively on counts 2 and 3 of the information in respect of the 2 January 2021 offending. Taking into account that the total imprisonment is now less than 12 months precluding setting a non-parole period, the terms of imprisonment are suspended on the appellant entering into a suspended sentence bond for 18 months (at 101).
Controlled Substances Act 1984 (SA) s 33L(1)(a); Criminal Law Consolidation Act 1935 (SA) s 86(1), s 144(1); Motor Vehicles Act 1959 (SA) s 91(5), s 74(2), s 47(1)(b); Road Traffic Act 1961 (SA) s 46(1); Sentencing Act 2017 (SA) s 30, s 47(5)(a)(i), s 71, s 96(1), s 96(3), s 96(4); Summary Offences Act 1953 (SA) s 74AB(2)(a), referred to.
R v Baldetti [2008] SASC 232; R v Francheschini [2015] SASCFC 116, (2015) 123 SASR 396; R v Hosking [2017] SASCFC 50; R v Hudson [2016] SASCFC 60, (2016) 125 SASR 171; R v Hussey [2013] SASCFC 41; R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144; R v Sansone [2015] SASCFC 168; R v Taylor [2016] SASCFC 54; R v Tsonis [2018] SASCFC 86, (2018) 131 SASR 416, considered.
TEASDALE v POLICE
[2022] SASC 64
BLUE J: The appellant Thomas Teasdale was sentenced by a Magistrate to imprisonment for a total of seven months for a series of offences committed on 29 December 2020 (use motor vehicle without consent,[1] make off without payment,[2] fail to provide name, [3] possess controlled drug[4] and drive disqualified[5]) and for a further total of seven months for a series of offences committed on 2 January 2021 (drive in a manner dangerous,[6] drive unauthorised[7] and drive a vehicle not bearing the allotted number plates[8]). The Magistrate fixed a non-parole period of six months and declined to suspend the sentence or order that it be served on home detention.
[1] Criminal Law Consolidation Act1935 (SA) section 86A(1).
[2] Criminal Law Consolidation Act 1935 (SA) section 144(1).
[3] Summary Offences Act1953 (SA) section 74AB(2)(a).
[4] Controlled Substances Act1984 (SA) section 33L(1)(a).
[5] Motor Vehicles Act1959 (SA) section 91(5).
[6] Road Traffic Act1961 (SA) section 46(1).
[7] Motor Vehicles Act1959 (SA) section 74(2).
[8] Motor Vehicles Act1959 (SA) section 47(1)(b).
The appellant appeals against the sentences on five grounds:
1Failing to give credit for 11 days spent in custody.
2Failing to give credit for over nine months spent on home detention bail.
3Failing to suspend the terms of imprisonment, there existing good reason to do so.
4Failing to order that the period of imprisonment be served on home detention.
5Imposing sentences that were manifestly excessive.
Background
On the morning of 29 December 2020 a Toyota Corolla was taken from outside its owner’s house without the owner’s permission. Later that day, a police patrol observed the vehicle at Gilberton and it took off at speed. Subsequently, the vehicle was driven by the appellant into and out of a service station at Trinity Gardens (count 1). The appellant filled the vehicle with 20 litres[9] of petrol valued at $30[10] and drove off without paying (count 2). The vehicle was abandoned at Kent Town.
[9] Rounded to the nearest litre.
[10] Rounded to the nearest dollar.
The appellant did not hold a driver’s licence and was disqualified from obtaining or holding a driver’s licence for two years from October 2019 (count 5). The police located the appellant and asked him the name of the driver of the vehicle and he declined to answer (count 3). The police arrested him and found in his possession a small bag of methylamphetamine (count 4).
The appellant was granted police bail and was subsequently charged on information filed on 31 March 2021 with the five counts.[11]
[11] The appellant was also charged with driving unauthorised (count 2) but that count was ultimately withdrawn and I have renumbered the subsequent counts accordingly for ease of reference.
On the evening of 2 January 2021 a police patrol observed the appellant riding a Honda motorcycle with a pillion passenger. The appellant drove through a stale red light at an intersection at Port Adelaide. The motorcycle was followed at a distance by the police officer and was observed to travel in excess of the 50 kilometres per hour speed limit, travel on the wrong side of the road, fail to give way at roundabouts and drive in a reckless manner (count 1).
The appellant was then tracked by a police helicopter. He travelled through Rosewater and Athol Park to Mansfield Park. The appellant travelled at speeds up to 100 kilometres per hour in 50 kilometres per hour zones, travelled on the wrong side of the road on many occasions, cut in front of other road users and rode the bike in a reckless way that placed other road users’ and members of the public’s lives and safety in jeopardy (count 1).
The appellant parked the motorbike at Mansfield Park and was apprehended on foot by the police. The motorbike was bearing plates that belonged to a 1990 Toyota Land Cruiser registered in the name of the appellant’s deceased grandfather (count 3). The appellant did not hold a driver’s licence (count 2).
The appellant was arrested and police bail was refused. He was subsequently charged on information filed on 4 January 2021 with the three counts.[12]
[12] The appellant was also charged with using a motor vehicle without consent (count 1) but that count was ultimately withdrawn and I have renumbered the subsequent counts accordingly for ease of reference.
On 13 January 2021, at his second appearance before the Magistrates Court, the appellant was released on home detention bail.
In August 2021 the appellant pleaded guilty to all but count 5 of the first information (due to a duplicity issue) and all three counts in the second information.
On 2 November 2021 a Community Corrections Officer from the Department for Correctional Services provided to the Court a home detention suitability report.
On 3 November 2021 the appellant pleaded guilty to count 5 of the first information and the Police withdrew a drive disqualified charge. The Magistrate heard sentencing submissions. Counsel for the appellant invited the Magistrate to suspend a sentence of imprisonment or alternatively order that it be served on home detention. The Magistrate revoked the appellant’s bail and he was remanded in custody to 9 November 2021 for sentencing.
On 9 November 2021 the appellant was sentenced.
On 20 December 2021 the appellant was released on bail pending the appeal. On 7 April 2022 the appellant’s bail conditions were varied to include home detention conditions. He has remained on home detention bail pending the appeal since then.
The appellant was born in April 2000. He was raised by his mother, who was a drug addict. At the age of 13, he moved to live with his aunt and her children in the country, before returning to Adelaide at the age of 16. At school, he obtained a Certificate in Construction and a White Card.
In September 2016 the appellant pleaded guilty in the Youth Court to several offences, including using a motor vehicle without consent, two counts of theft and two counts of unlawful possession, committed primarily in June 2016. He was placed under an obligation to be of good behaviour for six months.
In December 2016 the appellant pleaded guilty in the Youth Court to serious criminal trespass and theft committed in April 2016. He was placed under an obligation to be of good behaviour for nine months and to perform community service.
In April 2017 the appellant pleaded guilty in the Youth Court to serious criminal trespass and theft committed in April 2016 and breach in March 2017 of the obligation imposed in December 2016. The obligation was varied in respect of community service.
In July 2017 the appellant pleaded guilty in the Youth Court to several offences, including one count of serious criminal trespass, four counts of theft, one count of unlawful possession, two counts of interference with a motor vehicle and two counts of failing to comply with the obligation. He was sentenced to detention for two months, which was suspended on his entering into an obligation to be of good behaviour for eight months.
In October 2017 the appellant pleaded guilty in the Youth Court to one count of serious criminal trespass and one count of theft committed in April 2016 and one count of breaching the obligation committed in September 2017. He was ordered to perform community service.
In November 2017 the appellant pleaded guilty in the Youth Court to using a motor vehicle without consent committed in August 2017 and breaching the obligation committed in September 2017. He was sentenced to detention for 76 days to be served by way of home detention.
In August 2018 the appellant pleaded guilty in the Youth Court to several offences, including one count of theft committed in April 2018, one count of interfering with a motor vehicle committed in February 2018 and one count of breach of a community service order committed in February 2018. He was sentenced to detention for three months, two weeks and eight days.
Later in August 2018 the appellant pleaded guilty in the Magistrates Court to several offences, including three counts of theft, one count of unlawful possession and one count of stating a false personal detail. He was sentenced to imprisonment for two months, which was suspended on his entering into a bond to be of good behaviour for 12 months.
In June 2019 the appellant pleaded guilty in the Magistrates Court to several offences, including one count of driving dangerously to escape police pursuit, one count of theft, two counts of unlawful possession, one count of using a motor vehicle without consent and two counts of making off without payment. He was sentenced to imprisonment totalling 18 months and the suspension of the previous sentence of imprisonment for two months was revoked, with a non-parole period of six months, backdated to commence in February 2019 when he had been taken into custody.
In August 2019 the appellant was released on parole. He was accepted into the Integrated Housing Exit Program facilitated through the Department for Correctional Services but he moved out of that accommodation, breached his parole conditions and served the balance of his parole in custody. He was released in October 2020.
In December 2020 the appellant commenced a relationship with his current partner. At the time of the offending in late December 2020/early January 2021, he was using drugs and did not have stable accommodation.
In January 2021 the appellant commenced to live at his partner‘s address on home detention bail. In February 2021 he obtained seasonal employment packing almonds into shipping containers, which ceased temporarily after that season’s almond crop had been packed. During home detention, he returned negative tests for illicit drugs.
In March 2021 the appellant pleaded guilty in the Magistrates Court to one count of fail to provide name committed in November 2020. He was discharged without penalty.
Sentencing remarks
The Magistrate summarised the facts of the offending and the appellant’s personal circumstances.
The Magistrate identified the starting point and sentence imposed and generally the maximum penalty in respect of each offence:
Date
Offence
Max penalty
Starting point
Discount
Sentence
29.12.20
1. Use motor vehicle without consent
4 years (3 months minimum)
10 months
30%
7 months
2. Make off without payment
2 years
5 months
30%
3 months 2 weeks concurrent
3. Fail to answer
3 months or $1,250
1 week
30%
5 days concurrent
4. Possess controlled drug
2 years or $2,000
30%
CWOP
5. Drive disqualified
6 months
1 week
30%
5 days concurrent
02/01/21
1. Drive in manner dangerous
2 years
10 months
30%
7 months cumulative
2. Drive unauthorised
1 year or $5,000
30%
CWOP
3. Drive vehicle not bearing allotted plates
$5,000 fine
30%
CWOP
Total
14 months
During submissions on sentence, the Magistrate was informed that the appellant had spent 10 days in custody (actually 11 days) and then was on home detention bail from 13 January 2021. The Magistrate in her remarks did not refer to these matters or make any explicit deduction from the sentence otherwise to be imposed by reason of them.
The Magistrate identified the total of the head sentences as comprising imprisonment for 14 months. The Magistrate fixed a non-parole period of six months.
In relation to the questions of suspension and service of imprisonment on home detention, the Magistrate said:
I have considered your matters, focused on the personal circumstances, including the capacity to support yourself in private accommodation supported by others. Whether you are likely to comply with the conditions of home detention. I have also considered your rehabilitation and the extent to which your prospects of rehabilitation through home detention sentence will be enhanced or at least compatible with an order that you serve your sentence on home detention. Further, I have considered the ordinary sentencing conditions, including, the need to ensure the sentence ultimately imposed adequately has regard to the objects of sentencing, the objects of punishment, denunciation and general deterrence.
I do not find that there are any good reasons to suspend the whole term of imprisonment. I have carefully considered whether I am satisfied that you are a suitable person to serve your sentence on home detention. By reason of section 33BB(3) of the Sentencing Act 2017, the safety of the community is the paramount consideration.
Ultimately, I cannot be satisfied that serving the period of home detention is appropriate. I have, as you have seen, been, however, lenient in the length of the non-parole I have set to reflect the steps you made to overcome your difficult childhood and make progress.
Head sentences
Grounds 1, 2 and 5 each relate to the length of the head sentences.
Credit for time in custody
Ground 1 is that the Magistrate failed to give credit for time spent in custody.
During sentencing submissions, reference was made by the appellant’s counsel to the fact that the appellant spent 10 days in custody (actually 11 days) after he was arrested on 2 January 2021 until he was released on home detention bail on 13 January 2021. There was no submission by the police prosecutor that credit should not be given for the time in custody, nor was the topic raised by the Magistrate during sentencing submissions.
In R v Tsonis[13] the Full Court said in relation to giving credit for time spent in custody:
[I]n light of the usual practice of giving full credit, it would seem that there must be some good reason – that is, some reason or circumstance that reflects sound sentencing principles – before it is appropriate to give less than full credit. Further, where a sentencing judge does decide to give less than full credit, it is incumbent upon that judge to disclose both the extent of the credit given for the time spent in custody (and hence the extent of the shortfall), and the reason or reasons for giving less than full credit.[14]
[13] [2018] SASCFC 86, (2018) 131 SASR 416.
[14] At [75] per Lovell, Doyle and Hinton JJ.
In the circumstances, the Police rightly concede that the Magistrate made a process error by overlooking the time spent in custody and not addressing the credit to be given in respect of that time. The Police concede that, ordinarily where such a process error has been demonstrated, the appellate court must resentence unless it concludes that no different sentence should be passed.
This ground of appeal is established.
The Police contend that the total of the sentences imposed was merciful and invite me to conclude that the sentence that would be imposed on resentencing would be at least the same as that actually imposed and hence the appeal should be dismissed despite the error.
The Police contend in the alternative that the error by the Magistrate was “an error of a technical nature” within the meaning of section 20 of the Sentencing Act 2017 (SA) (the Sentencing Act) and should be corrected pursuant to that section on appeal.
I defer consideration of the first contention by the Police until after consideration of the other grounds of appeal.
In relation to the second contention by the Police, if this transpires to be the only error made by the Magistrate, it would be appropriate to exercise the discretion conferred by section 20 of the Sentencing Act and reduce the period of imprisonment by 11 days on account of time served.[15]
[15] R v Baldetti [2008] SASC 232 at [10]-[11] per David J (with whom Duggan and Vanstone JJ agreed); R v Hussey [2013] SASCFC 41 at [8] per Sulan J (with whom Peek and Nicholson JJ agreed); R v Sansone [2015] SASCFC 168 at [8]-[9] per Sulan, Peek and Nicholson JJ; R v Hudson [2016] SASCFC 60, (2016) 125 SASR 171 at [24]-[25] per Nicholson J (with whom Parker and Lovell JJ agreed).
Credit for time on home detention bail
Ground 2 is that the Magistrate failed to give credit for time spent on home detention bail.
The appellant contends that the Magistrate overlooked considering the question of credit for time spent on home detention bail. The Police contend that the Magistrate implicitly took into account the time spent on home detention bail as a personal circumstance, particularly in making many of the terms of imprisonment concurrent and fixing a lenient non-parole period.
It is common practice in sentencing to take into account in one manner or another the fact that the defendant has spent a substantial period on home detention bail.[16] The most common way in which it is taken into account is to reduce the sentence of imprisonment (head sentence and non-parole period) that would otherwise be imposed (in the same manner as reduction on account of time spent in custody but obviously at a lower rate).[17] However, it may also be taken into account as a personal circumstance in determining the starting point for a sentence (head sentence and non-parole period).[18]
[16] R v Francheschini [2015] SASCFC 116, (2015) 123 SASR 396 at [42] per Nicholson J (with whom Bampton and Lovell JJ agreed).
[17] R v Francheschini (2015) 123 SASR 396 at [42] per Nicholson J (with whom Bampton and Lovell JJ agreed); R v Tsonis (2018) 131 SASR 416 at [86] per Lovell, Doyle and Hinton JJ.
[18] R v Francheschini (2015) 123 SASR 396 at [42] per Nicholson J (with whom Bampton and Lovell JJ agreed)
It is not mandatory to give credit for time spent on home detention bail[19] and it might for example be appropriate not to give credit when the time spent on home detention bail is short and the inconvenience to the defendant of being on home detention bail is relatively minor. However, depending on the circumstances, it may be erroneous not to give credit, or to give inadequate credit, for time spent on home detention bail.[20]
[19] R v Tsonis (2018) 131 SASR 416 at [86] per Lovell, Doyle and Hinton JJ.
[20] R v Taylor [2016] SASCFC 54 at [35] per Lovell J (with whom Nicholson and Parker JJ agreed); R v Tsonis (2018) 131 SASR 416 at [86] per Lovell, Doyle and Hinton JJ.
The only reference by the Magistrate in her remarks on penalty to home detention bail was a statement near the beginning of her remarks that she had considered (amongst other things) the “home detention compliance report”. The home detention report was a home detention suitability report and was relevant to the question whether the sentences to be imposed by the Magistrate should be served on home detention. The reference by the Magistrate to the home detention report does not indicate that the Magistrate took into account the time spent on home detention bail in fixing either the head sentences or the non-parole period.
It is true (as the Police submit) that the Magistrate fixed a lower than usual non-parole period but there was no suggestion by the Magistrate that this was fixed because of the time spent on home detention bail. On the contrary, the Magistrate said that she fixed a lenient non-parole period to reflect the steps that the appellant had made to overcome his difficult childhood and make progress. Moreover, if the Magistrate had reduced the non-parole period on account of time spent on home detention bail, it may be expected that the Magistrate would have reduced the head sentences on account of home detention bail.
It is true (as the Police submit) that the Magistrate ordered that the sentences imposed in respect of counts 2, 3 and 5 with respect to the 29 December 2020 offending be served concurrently with the head sentence of seven months imprisonment imposed on count 1, and imposed no further penalty in respect of counts 2 and 3 after imposing seven months imprisonment on count 1 with respect to the 2 January 2021 offending. However, there was no suggestion by the Magistrate that this was done to reflect time spent on home detention bail.
The appellant spent more than nine months and three weeks on home detention bail, which was approximately 70 per cent of the total of the head sentences imposed by the Magistrate. The Magistrate made no explicit deduction from the head sentences on account of time spent on home detention bail. Nor did the Magistrate refer to it when addressing the appellant’s personal circumstances (under the heading General Matters). The Magistrate made no reference at all to taking into account the period spent on home detention bail in fixing the head sentences, the non-parole period or as a personal circumstance. The Magistrate overlooked taking into account time spent in custody (the subject of ground 1). In all the circumstances, it is evident that the Magistrate also overlooked taking into account time spent on home detention bail.
This ground of appeal is established.
The Police contend (as they contend in respect of ground 1) that the total of the sentences imposed was merciful and invite me to conclude that the sentence that would be imposed on resentencing would be at least the same as that actually imposed. I defer consideration of this contention until after consideration of other grounds of appeal.
Manifestly excessive
Ground 5 is that the Magistrate imposed a sentence that was manifestly excessive.
The Judge imposed eight individual sentences, of which the appellant contends that three were manifestly excessive. It is necessary to consider these three sentences individually in considering whether each was manifestly excessive but it is also necessary to consider whether, as a matter of totality, the sentences totalling imprisonment for 14 months were manifestly excessive. The appellant does not contend that the non-parole period of six months was manifestly excessive.
The appellant contends that the starting point of imprisonment for five months in respect of count 2 (make off without payment) and the starting point of imprisonment for one week in respect of count 3 (fail to answer question) on the first information (the 29 December 2020 offending) and the starting point of imprisonment for 10 months in respect of count 1 on the second information (the 2 January 2021 offending) are manifestly excessive.
In respect of count 2 on the first information, the gravamen of the appellant’s conduct was the theft of petrol to the value of $30. Although the appellant had previous convictions for making off without payment and for dishonesty, a starting point of imprisonment for five months (and a term of imprisonment for three months and three weeks) was manifestly excessive.
In respect of count 3 on the first information, the starting point of imprisonment for one week (and sentence imposed of imprisonment for five days) was not manifestly excessive. The appellant had previously committed the offence of failing to answer question, albeit he had not yet been sentenced for that offence.
In respect of count 1 on the second information, the circumstances in which the appellant committed the offence of driving in a manner dangerous to the public were serious. The appellant had a pillion passenger on the motorbike. The appellant drove through a red light, failed to give way at roundabouts, travelled at speeds of up to 100 kilometres per hour in 50 kilometre per hour zones, travelled on the wrong side of the road on many occasions, cut in front of other road users and rode the bike in a reckless way that placed the lives and safety of other road users in jeopardy. He had a prior conviction for driving dangerously to escape police pursuit. The starting point of imprisonment for 10 months (and sentence imposed of imprisonment for seven months) was not manifestly excessive.
Having regard to the entirety of the appellant’s course of criminal conduct on 29 December 2020 and 2 January 2021, the total of the head sentences of 14 months was not manifestly excessive. As observed above, the appellant does not contend that the non-parole period was manifestly excessive and in fact it was lenient.
This ground of appeal is established but only in respect of count 2 on the first information. Although the sentence of imprisonment imposed on that count was manifestly excessive, it did not affect the total period of imprisonment to be served by the appellant because that sentence was made fully concurrent with the sentence imposed on count 1.
Suspension
Ground 3 is that the Magistrate erred in failing to suspend the terms of imprisonment, there existing good reason to do so.
Subsection 96(1) of the Sentencing Act provides:
96—Suspension of imprisonment on defendant entering into bond
(1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the conditions of the bond referred to in subsection (2); and
(c) to comply with any other conditions of the bond as the court thinks appropriate and specifies in the bond.
The Magistrate expressed her conclusion in relation to suspension in the following terms:
I do not find that there are any good reasons to suspend the whole term of imprisonment.
The appellant contends that the Magistrate made two process errors in formulating the question. First, by referring to “good reasons”, the Magistrate erroneously proceeded on the basis that there must be multiple reasons in order to suspend whereas the section only requires a singular good reason. Secondly, by referring to suspending the “whole” term of imprisonment, the Magistrate erroneously proceeded under subsection 96(4) (which empowers a court to partially suspend a sentence of imprisonment if the total period of imprisonment is between three and 12 months), which was inapplicable because the total period of imprisonment was 14 months.
I reject the appellant’s first contention. The sentencing remarks were prepared by a Magistrate in a busy court and in any event sentencing remarks are not to be construed in the same manner as reasons for judgment. The test for suspension is long established and well known. It would be a logical absurdity to require two or more reasons to suspend and not a single reason when a single reason might have more force than two reasons. In any event, if there are no good reasons, it logically follows that there is not a good reason. Considering the sentencing remarks as a whole, it is evident that the Magistrate was merely using loose language and was applying the correct test.
I reject the appellant’s second contention. There was no ostensible reason for the Magistrate to apply subsection 96(4) rather than subsection 96(1) when plainly the total period of imprisonment exceeded the 12 month threshold applying to subsection 96(4). Under subsection 96(1), when (as in the present case) a court imposes multiple periods of imprisonment, it must either suspend the whole of the terms of imprisonment or none: this is expressly required by section 96(3)(a). Considering the sentencing remarks as a whole, it is evident that the Magistrate, by referring to the whole term of imprisonment, was referring to this all or nothing question.
The appellant contends that the Magistrate made a process error by failing to properly consider the appellant’s prospects of rehabilitation. I reject that contention.
Under the heading General Matters, in which the Magistrate considered the appellant’s personal circumstances, the Magistrate said amongst other things:
… I am told by police there is no like offending in the last 10 months…
You have taken responsibility and much has been put on your behalf by your Counsel. It is submitted by your counsel that your prospects of rehabilitation have improved…
It is encouraging for me to have an understanding of the progress and stability that now appears to be evident namely, your new accommodation, your relationship and employment.
It is clear that the Magistrate did consider the appellant’s prospects of rehabilitation.
The appellant contends that the Magistrate made an outcome error by failing to suspend the sentences when there was good reason to do so.
On appeal, an outcome error in respect of a decision not to suspend a sentence will only be demonstrated if the appellate court is persuaded that it was not open to the sentencing judge or magistrate to decline to suspend the sentence.[21]
[21] R v Lutze [2014] SASCFC 134, (2014) 121 SASR 144 at [49] per Vanstone and Parker JJ.
Although the appellant’s conduct after January 2021 gave some cause for optimism as to his prospects of rehabilitation (as observed by the Magistrate), the offending was serious and the appellant had previously been the subject of a suspended sentence obligation in the Youth Court and a suspended sentence in the Magistrates Court, each of which he breached. He had previously been sentenced to home detention and custodial terms of detention and imprisonment. Weighing all relevant factors, it was open to the Magistrate to find that there was not good reason to suspend the sentences of imprisonment.
This ground is not established.
Service of sentence on home detention
Ground 4 is that the Magistrate erred in failing to order that the term of imprisonment be served on home detention.
Subsection 71(1) of the Sentencing Act provides:
71—Home detention orders
(1)Subject to this section, if—
(a) a court has imposed a sentence of imprisonment on a defendant; and
(b) the court considers that the sentence should not be suspended under Part 4 Division 2; and
(c) the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may order that the defendant serve the sentence on home detention (a "home detention order").
The Magistrate addressed home detention in the passage extracted at [34] above.
The appellant contends that the Magistrate made three process errors in considering home detention. First, the appellant contends that the Magistrate conflated the question whether to suspend the sentences with the question whether the sentences should be served on home detention, that is the Magistrate did not give “separate and independent consideration to the question whether to exercise the discretion to order that the appellant serve the sentence on home detention as distinct from the question whether there was good reason to suspend the sentence of imprisonment”.[22]
[22] R v Hosking [2017] SASCFC 50 at [80] per Blue J.
I reject that contention. The Magistrate, in the first sentence of the second paragraph extracted at [34] above, first concluded that there was not good reason to suspend. It was only after reaching that conclusion that the Magistrate turned to the question of serving the sentence on home detention. In contrast to the Magistrate’s dismissal of the submission in relation to suspension, the Magistrate devoted the balance of the second paragraph and the entirety of the third paragraph to the submission in relation to serving the sentence on home detention. It is clear that the Magistrate approached these two matters as raising different questions and different considerations.
The appellant’s second contention is that the Magistrate, by referring to subsection 33BB(3) of the Sentencing Act giving paramountcy to the safety of the community, erroneously applied the test in respect of home detention under the repealed Criminal Law (Sentencing) Act 1988 (SA) (the Repealed Act) rather than the test under the current Sentencing Act. I reject that contention.
Subsection 33BB(1) of the Repealed Act was the predecessor of section 71(1) of the Sentencing Act. It was in the same terms, including providing for the same three preconditions, except that the words “suspend the sentence under this Division and” appeared before the words “order that the defendant serve the sentence on home detention” at the end of the subsection.
The appellant contends that the concept of a sentence being suspended and served on home detention under the Repealed Act is different to the concept of serving a sentence on home detention under the Sentencing Act. It may be doubted that there is any significant difference between these concepts and, if there is any difference, the concept under the Sentencing Act would appear to be more serious than under the Repealed Act, which would be to the advantage of a defendant when submitting that it is appropriate to order that a sentence be served on home detention. However this may be, the Magistrate did not refer to section 33BB(1) of the Repealed Act: the Magistrate referred to section 33BB(3) of the Sentencing Act. It is evident that the Magistrate intended to refer to the Sentencing Act (as she did) and merely used the section number of the Repealed Act out of habit (which is unsurprising) and by mistake but intending to refer to the relevant section of the Sentencing Act.
The appellant’s third contention is that the Magistrate conflated the question whether the appellant was a suitable person to serve the sentence on home detention, being the third prerequisite contained in section 71(1)(c), with the question whether the Court should exercise the discretion to order that the sentence be served on home detention.
I reject that contention. It was clear from the home detention suitability report that the appellant was a suitable person to serve the sentence on home detention. The police prosecutor did not submit otherwise. Although the language used by the Magistrate in the second paragraph of the passage extracted at [34] above was poorly expressed, it is evident that the Magistrate was satisfied that the appellant was a suitable person to serve the sentences on home detention. It is evident that, in the third paragraph of the passage extracted at [34] above, the Magistrate had moved on to the question whether she should order that the appellant serve the sentence on home detention and expressed a conclusion that she was not satisfied that serving the period on home detention was appropriate.
The appellant contends that the Magistrate made an outcome error by failing to order that the period of imprisonment be served on home detention.
Although greater weight may be given to personal circumstances when considering service of a sentence on home detention as compared to suspending a sentence, it is still necessary to undertake a balancing exercise. The offending committed by the appellant was serious and, as observed above, he had previously had the benefit of serving a sentence of detention on home detention. It was open to the Magistrate not to order that the appellant serve the period of imprisonment on home detention.
This ground of appeal is not established.
Re-exercise of sentencing discretion
The appellant has established grounds 1 and 2, in that the Magistrate overlooked the questions of giving credit for time in custody and time spent on home detention bail, and ground 5, in that the sentence imposed for making off without payment was manifestly excessive. It is therefore necessary to consider the re-exercise of the sentencing discretion.
Starting with the offending committed on 29 December 2020, the preferable approach is to impose a single sentence in respect of the five counts pursuant to section 26 of the Sentencing Act rather than imposing one sentence on the most serious count and making the sentences on the other counts concurrent or imposing no penalty on the other counts as the Magistrate did. This has the advantage of reflecting in the sentence imposed the criminality of all of the counts rather than potentially giving the impression that the commission of the additional four offences made no difference to the total period to be served.
I identify notional sentences of imprisonment for five months and three weeks for count 1 illegal use (starting point eight months discounted by 30 per cent); six weeks for count 2 make off without payment (starting point two months discounted by 30 per cent); five days for count 3 fail to provide name (starting point seven days discounted by 30 per cent); ten days for count 4 possess controlled drug (starting point 14 days discounted by 30 per cent); and ten days for count 5 drive disqualified (starting point 14 days discounted by 30 per cent). I allow a degree of partial concurrency to impose a single sentence of imprisonment for seven months to reflect the combined offending.
The appellant spent one month and 17 days in custody between 3 November 2021, when he was taken into custody in advance of sentencing, and 20 December 2021, when he was released on bail pending the appeal. He has spent two months and three weeks on home detention bail pending the appeal. I reduce the sentence by one month and 17 days for the time spent in custody and 25 days for the time spent on home detention bail. This results in an adjusted head sentence for the 29 December 2020 offending of imprisonment for four months and 18 days.
In respect of the offending committed on 2 January 2021, I also utilise section 26 to impose a single sentence on counts 1 and 2 and impose no further penalty in respect of count 3 given that the maximum penalty is a fine and the appellant commenced to serve a period of imprisonment on the other counts. I identify notional sentences of imprisonment for six months and two weeks for count 1 dangerous driving (starting point nine months discounted by 30 per cent); and three weeks for count 2 drive unauthorised (starting point one month discounted by 30 per cent). I allow a degree of partial concurrency to impose a single sentence of imprisonment for seven months to reflect the combined offending.
I reduce the sentence by 11 days for time spent in custody in January 2021 and three months for time spent on home detention bail between January and November 2021. This results in a head sentence for the 2 January 2021 offending of imprisonment for three months and 19 days. I make this sentence cumulative on the sentence imposed in respect of the 29 December 2020 offending because it was a separate and independent incursion into criminality.
The total period of imprisonment is eight months and seven days.
The circumstances in which the appellant falls to be resentenced are now quite different to those in which he was sentenced by the Magistrate in November 2021. First, he has now served one month and 17 days of the sentence of imprisonment imposed by the Magistrate before he was released on bail pending the appeal and has spent a further two months and three weeks on home detention bail pending the appeal.
Secondly, section 47(5)(a)(i) of the Sentencing Act precludes the fixing of a non-parole period when the total sentences of imprisonment imposed are less than 12 months. The sentences imposed by the Magistrate totalled 14 months and hence the Magistrate was empowered and required to fix a non-parole period, which the Magistrate fixed at six months. However, due to the time served by the appellant after he was sentenced and the credit to be given for time spent in custody before he was sentenced and for time on home detention bail before and after he was sentenced, the total of the head sentences is now eight months and seven days. This precludes the fixing of a non-parole period.
The only analogue of a non-parole period that is available when the total period of imprisonment is less than 12 months is partial suspension of the period of imprisonment pursuant to subsection 96(4) of the Sentencing Act. The power to partially suspend a sentence under subsection 96(4) is complementary to the fixing of a non-parole period in that a sentence can only be partially suspended under subsection 96(4) when the period of imprisonment is less than 12 months whereas a non-parole period can only be fixed if the period of imprisonment is at least 12 months. Although there are significant differences between partially suspending a sentence and fixing a non-parole period,[23] there is no other analogue to a non-parole period when the period of imprisonment is less than 12 months.
[23] The period of parole (or more accurately parole eligibility) ends on the expiration of the head sentence; whereas a suspended sentence bond is not so limited. Release at the end of a period of imprisonment after which partial suspension is ordered to operate is automatic; whereas release at the end of a non-parole period is usually in the discretion of the Parole Board. Overall supervision of a person on a suspended sentence bond is undertaken solely by the Department for Correctional Services or, in the case of a youth, by the Department of Human Services; whereas overall supervision of a person on parole is undertaken by the Parole Board.
The Magistrate imposed a non-parole period of six months. If the total credits for time in custody and on home detention bail of five months and 23 days are deducted from the Magistrate’s non-parole period, this would leave only a further seven days for the appellant to serve of his custodial sentence. Unless the sentences of imprisonment are suspended or partially suspended, the result of his successful appeal would be that he would be required to spend a further eight months and seven days in prison (or at least on home detention).
Given the change of circumstances since the appellant was sentenced, it is now appropriate to suspend the sentences of imprisonment upon the appellant entering into a bond to be of good behaviour for a period of 18 months.
Conclusion
I will make the following orders:
1Appeal allowed.
2Sentences imposed by the Magistrate set aside.
3On the information in file number AMC-21-3023, utilising section 26 of the Sentencing Act, the defendant is sentenced to imprisonment for five months and 13 days.
4On counts 2 and 3 on the information in file number MCPAD-21-12, utilising section 26 of the Sentencing Act, the defendant is sentenced to imprisonment for three months and 19 days to be served cumulatively on the sentence imposed on file number AMC-21-3023 and on count 4 the defendant is convicted without further penalty.
5The terms of imprisonment are suspended upon the appellant entering into a bond to be of good behaviour for 18 months. I will hear the parties concerning the other terms of the suspended sentence bond.
I will hear the parties concerning any other orders sought.
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