TURNER-LINDSAY v Commissioner of Police
[2024] SASC 69
•24 May 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
TURNER-LINDSAY v COMMISSIONER OF POLICE
[2024] SASC 69
Judgment of the Honourable Justice Stanley
24 May 2024
CRIMINAL LAW - APPEAL AGAINST SENTENCE
CRIMINAL LAW – APPEAL AGAINST SENTENCE – ADEQUACY OF REASONS
CRIMINAL LAW – APPEAL AGAINST SENTENCE – MANIFESTLY EXCESSIVE
CRIMINAL LAW – SENTENCING – SINGLE PENALTY IMPOSED - SETTING OUT OF NOTIONAL SENTENCES
CRIMINAL LAW – SENTENCING – SINGLE PENALTY IMPOSED – DIFFERENTIAL DISCOUNTS FOR GUILTY PLEAS
Appeal against sentence. The appellant pleaded guilty in the Magistrates Court to 11 counts of theft, seven counts of aggravated theft, one count of aggravated assault, one count of possess a knife in a public place, one count of possessing a controlled drug not cannabis and two counts of breaching bail. The appellant also admitted to breaching a good behaviour bond.
On 1 February 2024 the appellant was sentenced for counts 2 to 16 and 18 to 22 to a term of imprisonment of five months pursuant to s26 of the Sentencing Act 2017 (SA). The magistrate did not find that good reason existed to suspend the sentence. The appellant had not had the benefit of a suspended sentence.
Whether the reasons for sentence provided by the Magistrate were inadequate, whether the sentence was manifestly excessive and whether the Magistrate failed to have regard a relevant sentencing consideration, namely the discount applicable to the offence of theft for which the appellant was to be resentenced.
Held:
1. the appeal is allowed;
2. the sentence imposed by the magistrate on 1 February 2024 is set aside;
3. the appellant is resentenced; and
4. the appellant is sentenced to a term of imprisonment of five months from 1 February 2024 which is suspended on her entering into a bond in the sum of $100 to be of good behaviour for a period of 12 months.
Sentencing Act 2017 (SA) ss 26, 39 and 96; Criminal Law (Sentencing Act) 1988 (SA) ss 10C and 18A; Magistrates Court Act 1991 (SA) s 42, referred to.
House v The King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; R v Mark [2019] SASCFC 48; Lowndes v The Queen (1999) 195 CLR 665; Edwards v Police; Weber v Police; Homewood v Police [2023] SASC 170; Police v Chilton [2014] SASCFC 76; Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108; Grinstead v Police [2004] SASC 246; Playford v Police [2017] SASC 26; R v O’Toole [2013] SASCFC 18; R v Grose (2014) 119 SASR 92; Bugmy v The Queen (2013) 249 CLR 571; Pointon v Police [2004] SASC 4; Pointon v Police [2004] SASC 4; R v Wakefield (2015) 121 SASR 569; Virgin v Police [2018] SASC 194; Mead v Police (2014) 119 SASR 223; R v Bagnato (2011) 112 SASR 39, applied.
R v Clancy [2016] SASCFC 4; The Queen v Morse (1979) 23 SASR 98; Wong v The Queen (2001) 207 CLR 584 ; Hili v The Queen (2010) 242 CLR 520; Hubbard v Police [2023] SASC 182; R v Webb [2019] SASC 8; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; R v Donald; R v Pitt; R v Whitaker [2016] SASCFC 117; R v Horstmann [2010] SASC 103; Stenecker v Police [2014] SASC 68, considered.
TURNER-LINDSAY v COMMISSIONER OF POLICE
[2024] SASC 69
Single Judge appeal – criminal
STANLEY J:
Introduction
This is an appeal against sentence.
On 1 February 2024 the appellant was sentenced by a magistrate for 11 counts of theft, seven counts of aggravated theft, one count of aggravated assault, one count of possess a knife in a public place, one count of possessing a controlled drug not cannabis, and two counts of breaching bail. The offending occurred over the period from 12 January 2021 to 23 October 2023. The offences of aggravated theft all arose from the offence being committed in company. The offence of aggravated assault occurred in company and in conjunction with the use or threatened use of an offensive weapon, namely, a bottle. The magistrate treated all offences which occurred after 3 May 2023 as aggravated because they were in breach of a good behaviour bond.[1]
[1] Remarks on Penalty page 10.
I set out the details of the offending in the following table, in chronological order as to their occurrence:
| File No. | Count No. | Date of offence | Offence | Max Penalty | Penalty Imposed | Date of GP (Discount) |
| AMC-21-8524 | 3 | 12 Jan 21 | Theft (<$2500) | 10 years imprisonment | 7 days imprisonment (reduced from 10 days) | 28 June 2022 (30%) |
| AMC-22-3787 | 4 | 13 Mar 22 | Theft (<$2500) | 10 years imprisonment | 18 days imprisonment (reduced from 30 days) | 28 June 2022 (40%) |
| 5 | 13 Mar 22 | Agg assault in company / used or threatened to use offensive weapon | 4 years imprisonment | 28 June 2022 (40%) | ||
| MCCRM-23-045631 | 2 | 9 Jul 22 | Theft (<$2500) | 10 years imprisonment | Good Behaviour Bond imposed 3 May 2023. | 3/5/2023 (discount n/a) |
| NA | NA | Breach bond | NA | Breach proven. Resentenced for original offence. 7 days imprisonment. | Admitted 1 February 2024 | |
| MCCRM-23-018775 | 6 | 9 Aug 22 | Theft (Agg in comp) (<$2500) | 15 years imprisonment | 18 days imprisonment (reduced from 30 days) | 5 Oct 2023 (40%) |
| MCCRM-22-007943 | 7 | 16 Aug 22 | Theft (Agg in comp) (<$2500) | 15 years imprisonment | 21 days imprisonment (reduced from 30 days) | 13 Apr 23 (30%) |
| MCCRM-23-011810 | 8 | 20 Aug 22 | Theft (<$2500) | 10 years imprisonment | 6 days imprisonment (reduced from 10 days) | 13 Apr 23 (40%) |
| MCCRM-23-002635 | 9 | 31 Aug 22 | Theft (<$2500) | 10 years imprisonment | 6 days imprisonment (reduced from 10 days) | 27 Feb 23 (40%) |
| MCCRM-23-020954 | 10 | 9 Dec 22 | Theft (Agg in comp) (<$2500) | 15 years imprisonment | 10 days imprisonment (reduced from 40 days) | 18 Jan 24 (30%) |
| MCCCRM-23-012315 | 23 | 23 Dec 22 | Possess Controlled Drug | $2000 and/or 2 years imprisonment | Fine $6 (reduced from $10) | 13 Apr 23 (40%) |
| MCCRM-23-005702 | 11 | 23 Dec 22 | Theft (Agg in comp) (<$2500) | 15 years imprisonment | 18 days imprisonment (reduced from 30 days) | 27 Feb 23 (40%) |
| MCCRM-23-028132 | 12 | 22 Jan 23 | Theft (<$2500) | 10 years imprisonment | 6 days imprisonment (reduced from 10 days) | 22 Sep 23 (40%) |
| MCCRM-23-028130 | 13 | 26 Jan 23 | Theft (<$2500) | 10 years imprisonment | 12 days imprisonment (reduced from 20 days) | 22 Sept 23 (40%) |
| MCCRM-23-003976 | 14 | 31 Jan 23 | Theft (Agg in comp) (<$2500) | 15 years imprisonment | 6 days imprisonment (reduced from 10 days) | 27 Feb 23 (40%) |
| 15 | 31 Jan 23 | Breach Bail | $10k or 2 years imprisonment | 12 days imprisonment (reduced from 20 days) | 27 Feb 23 (40%) | |
| 16 | 31 Jan 23 | Theft (<$2500) | 10 years imprisonment | 27 Feb 23 (40%) | ||
| 17 | 31 Jan 23 | Possess Knife in public place | 1st off: $2500 or 6 months imprisonment (2nd offence: $5000 or 12 months imprisonment) | Fine $6 (reduced from $10) | 27 Feb 23 (40%) | |
| MCCRM-23-028127 | 24 | 26 Apr 23 | Breach Bail | $10k or 2 years imprisonment | Fine $7 (reduced from $10) | 18 Jan 24 (30%) |
| Offences which occurred after 3 May 2023 | ||||||
| MCCRM-23-028124 | 18 | 19 May 23 | Theft (<$2500) | 10 years imprisonment | 30 days imprisonment (reduced from 50 days) | 22 Sept 23 (40%) |
| MCCRM-23-028118 | 19 | 19 June 23 | Theft (<$2500) | 10 years imprisonment | 12 days imprisonment (reduced from 20 days) | 22 Sept 23 (40%) |
| MCCRM-23-028113 | 20 | 25 June 23 | Theft (Agg in comp) (<$2500) | 15 years imprisonment | 12 days imprisonment (reduced from 20 days) | 22 Sept 23 (40%) |
| MCCRM-23-028105 | 21 | 4 Jul 23 | Theft (<$2500) | 10 years imprisonment | 18 days imprisonment (reduced from 30 days) | 22 Sept 23 (40%) |
| MCCRM-23-045274 | 22 | 23 Oct 23 | Theft (Agg in comp) (<$2500) | 15 years imprisonment | 28 days imprisonment (reduced from 40 days) | 18 Jan 24 (30%) |
The appellant pleaded guilty to all these offences.
In addition, the appellant also admitted breaching a good behaviour bond entered into on 3 May 2023. The bond related to a charge of theft, contrary to s 134 of the Criminal Law Consolidation Act (1935) SA (CLCA) on 9 July 2022. The appellant had been discharged by the Magistrates Court with a conviction but without penalty being imposed. The bond was for a period of six months in the amount of $100. The terms of the bond required the appellant to appear before the Court for sentence if she failed to comply with its terms. The bond also required the appellant to complete 50 hours of community service. The offence of theft the subject of the bond is count 2 in the table.
In relation to counts 2 to 16 and 18 to 22, pursuant to s 26 of the Sentencing Act 2017 (SA) (Sentencing Act), the magistrate sentenced the appellant to a term of imprisonment of five months, to commence immediately.
Grounds of appeal
The appellant in her Amended Notice of Appeal submitted four grounds of appeal.
Before the hearing of the appeal the appellant abandoned ground 3, that pecuniary fines imposed on counts 17, 23 and 24 were contrary to s 120 of the Sentencing Act.
Three grounds were argued on the hearing of the appeal.
First, that the reasons for sentence were inadequate. Second, that the sentence was manifestly excessive. Third, that the magistrate failed to have regard to a relevant sentencing consideration, namely, the discount applicable to the offence of theft for which the appellant was to be resentenced.[2]
[2] The third ground of appeal was added by permission on the hearing of the appeal without opposition by the Commissioner of Police.
Principles on appeal
This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA). Rule 191.1 of the Joint Criminal Rules 2022 provides that such an appeal from a magistrate to a Judge of the Supreme Court is to be by way of rehearing.
For an appellate court to interfere with the exercise of a sentencing discretion there must be a demonstrated error of the kind described in House v The King.[3] In Wittwer v Police[4] White J said:[5]
The approach of this Court on an appeal against a sentence imposed by a magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing magistrate has acted upon some wrong principle, or if it has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly.
(footnotes omitted).
[3] (1936) 55 CLR 499.
[4] [2004] SASC 226.
[5] [2004] SASC 226 at [16].
The types of error that would justify interference by an appellate court have been described as ‘a process error’, and ‘an outcome error’. In R v Mark[6] the Full Court said:[7]
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ, if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
(footnotes omitted).
[6] [2019] SASCFC 48.
[7] [2019] SASCFC 48 at [18].
As the High Court observed in Lowndes v The Queen:[8]
... a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
[8] [1999] HCA 29 at [15], (1999) 195 CLR 665 at 671-672.
Ground 1: Adequacy of reasons
A failure to provide adequate reasons for imposing sentence is an error of law which justifies the sentence imposed being set aside. As McIntyre J observed in Edwards v Police; Weber v Police; Homewood v Police:[9]
Sentencing remarks must contain sufficient detail to allow an appellate court to adequately discharge its function. A failure to give adequate reasons for imposing a sentence can amount to an error justifying the sentence being set aside. However, sentencing remarks are not to be read and deconstructed with the same scrutiny as might apply to written reasons for judgment. Sentencing remarks are not required to deal with every matter that may be relevant to the sentence ultimately imposed. This is particularly the case when considering the remarks of a Magistrate conducting a busy list. It is not necessary for any more than brief reasons, identifying for the benefit of the appellants, what are the critical factors that weighed in reaching the decision on penalty. It is not a check list.
(footnotes omitted).
[9] [2023] SASC 170 at [22]
In Police v Chilton[10] Kourakis CJ, with whom David J agreed, said:[11]
The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King.
… It is an error not to consider all of the properly available sentencing options but it must be remembered that a judicial officer’s failure to mention them all does not, of itself, make out that error.
(footnotes omitted).
[10] [2014] SASCFC 76.
[11] [2014] SASCFC 76 at [19]-[20].
In Oatley v The Commonwealth Director of Public Prosecutions[12] the Court explained:
Whilst the failure to provide adequate reasons for sentence is an error of law, it has also been recognised that when a court is imposing an immediate sentence of imprisonment, the requirement to provide adequate reasons becomes more important. In addition, exchanges with counsel during submissions provides no substitute for giving adequate reasons.
As has often been emphasised, reasons will be inadequate if an appeal court is unable to ascertain the reasoning upon which the decision is based and if the appeal court is unable to carry out the appellate function of review when determining whether the exercise of discretion miscarried or, was in fact, exercised. Where a particular sentencing option is relevant, open and urged on the Court but rejected, it is usually necessary for the sentencing court to say why it was rejected. Nonetheless, it has also been recognised that:
... sentencing remarks are not reasons for judgment and are not to be read with a hyper‑critical eye but on the presumption that the sentencing judge knows sentencing law. The respondent also submitted, correctly, that there is no verbal formula for making findings or rejecting arguments.
[12] [2021] SASCA 108 at [28]-[30].
In this matter, the remarks of the magistrate were not delivered ex tempore. The magistrate heard submissions on sentence on 18 January 2024, reserved his decision, and then proceeded to deliver his remarks on penalty on 1 February 2024.
The magistrate was urged by the appellant’s counsel to wholly or partially suspend any sentence of imprisonment, pursuant to s 96 of the Sentencing Act. The appellant submits she is a young Aboriginal woman with a relatively minor criminal history, a mental health condition and had engaged in the offending behaviour to finance her drug addiction. The prosecution was not opposed to the imposition of a suspended sentence. The option to either wholly or partially suspend the sentence of imprisonment was a relevant and available sentencing option for the Court. The appellant submits that the magistrate erred in failing to explain why he chose not to suspend the sentence he imposed and that with consideration of the particular circumstances of this case, it was incumbent upon the magistrate to do so. The appellant also submits that the magistrate erred in failing to explain why, in the circumstances of this case, he rejected the appellant’s submission that an appropriate alternative sentence was a community based custodial sentence, such as an intensive correction order or a home detention order.
In his reasons, the magistrate set out the factual basis of the offending and the personal circumstances of the appellant. He then proceeded to identify notional sentences for each offence, before aggregating those sentences, and imposing a single penalty of imprisonment for five months utilising s 26 of the Sentencing Act. The magistrate explained his reasons for the decision not to wholly or partially suspend the sentence of imprisonment, or impose some other community based custodial sentence, as follows:[13]
I have considered whether good reason exists to suspend part, or all, of your 5-month sentence of imprisonment.
Your relatively brief criminal history prior to this point is vastly overshadowed by the full nature and extent of the offending before me; a great deal of that offending took place in breach of a bond to be of good behaviour. I do not consider that good reason exists to suspend your sentence of imprisonment in part or in whole. I do not consider you to be a suitable person to serve your sentence on a home detention order and decline to make one. Your 5-month sentence of imprisonment, commencing today, will be served in a prison.
[13] Remarks on Penalty page 13.
Those reasons must be understood in the context of the magistrate’s observation that the appellant had not had the benefit of a suspended sentence.[14] The magistrate noted that the appellant had breached a good behaviour bond imposed on 3 May 2023 on multiple occasions. He said that this was a matter he had to consider in deciding whether it was appropriate that she be released on a suspended sentence bond.[15]
[14] Remarks on Penalty page 10.
[15] Remarks on Penalty page 13.
The magistrate also explained that while he accepted the appellant’s mental health had been poor and that the driving motive for her offending had been to feed her drug addiction, the nature, and the extent, of the offending called for a sentence with a significant deterrent aspect.[16]
[16] Remarks on Penalty page 9.
The appellant submits that more was required from the magistrate’s reasons. The appellant notes various matters were put to the magistrate in support of a suspended sentence of imprisonment which were relevant to consideration of the option of a community based custodial sentence, including:
the appellant’s childhood deprivation;
the appellant’s mental impairment;
the appellant’s relatively young age;
the appellant’s lack of prior serious criminal offending;
the appellant’s participation in the Aboriginal Community Court Adelaide (ACCA);
the appellant’s time spent in custody;
the attitude of the prosecution to penalty;
the appellant never having had the benefit of a suspended sentence; and
the appellant’s previous compliance while on home detention bail.
The appellant submits the magistrate was required to identify the various matters put on her behalf that he considered were so outweighed by the need for general and specific deterrence that good reason to suspend did not exist.[17] The appellant submits the magistrate did not do this and simply considered the factors which militated against suspending any sentence of imprisonment, or imposing a community based custodial sentence.
[17] R v Clancy [2016] SASCFC 4 at [19].
The appellant submits that without adequate reasons dealing with these others matters put on behalf of the appellant, the appellate court is unable to determine whether the magistrate properly considered the question of suspending the sentence of imprisonment, or imposing a community based custodial sentence. It is for these reasons that the appellant submits the remarks on penalty of the magistrate were inadequate.
Consideration
I do not accept the submission that the magistrate’s reasons were inadequate.
Even though the sentencing remarks were not delivered ex tempore, the various injunctions found in the authorities on the proper approach to considering whether a magistrate’s sentencing remarks are adequate still apply. When a magistrate takes time to deliver considered remarks those remarks are mostly prepared in the limited time available to a magistrate managing a busy list. In this case it was relevant that the appellant was in custody. The magistrate was operating under some time pressure. Even where the magistrate does not give reasons ex tempore, the magistrate is not required to address every submission put on behalf of a defendant. Rather, it is necessary that the magistrate’s reasons explain the basis of the sentencing and demonstrate that he considered and engaged with the primary submissions of the defendant.[18]
[18] Grinstead v Police [2004] SASC 246 at [34] – [35].
In my view, this is what the magistrate did. The task confronting the magistrate in sentencing the appellant for so many offences was complex and difficult. He had to weigh the circumstances of the offending with the personal circumstances of the appellant in arriving at a just sentence. His reasons are extensive and comprehensive. The reasons disclose the basis upon which the appellant was sentenced and why. Critically, those reasons explain why the magistrate was not prepared to suspend the sentence of imprisonment he imposed. The remarks make clear the magistrate considered the fact the appellant had not had the benefit of a suspended sentence. The remarks identify the fact the appellant had suffered from mental ill health and that her offending was caused by the need to feed her drug addiction. He noted the appellant’s age, poor childhood, lack of prior offending and time spent in custody. The reasons when read as a whole are adequate. The failure to refer to every submission relevant to whether a good reason existed to suspend does not make them inadequate.[19] It is apparent why the magistrate concluded good reason did not exist to suspend the sentence of imprisonment. Whether the magistrate erred in not suspending the sentence of imprisonment is a different question.
[19] Playford v Police [2017] SASC 26 at [23] – [24].
I would dismiss ground 1.
Ground 2: The sentence was manifestly excessive
The appellant concedes that a sentence of imprisonment was warranted for her offending.[20] However, she submits that any sentence of imprisonment should have been wholly or partially suspended upon the appellant entering into a good behaviour bond, pursuant to s 96 of the Sentencing Act, or the magistrate should have imposed a community based custodial sentence, such as an intensive correction order or home detention order. The appellant submits the failure by the magistrate to impose a suspended sentence in some form, or impose a community based custodial sentence, renders the sentence manifestly excessive.
[20] Written Submissions of the Appellant (FDN 7) at [24].
In The Queen v Morse[21]King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared with other offences of its kind, and the personal circumstances of the offender.[22]
[21] (1979) 23 SASR 98.
[22] (1979) 23 SASR 98 at 99.
Manifest excess is a conclusion. Appellate intervention on the ground that a sentence is manifestly excessive is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Rather, as the plurality said in Wong v The Queen:[23]
…intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.
[23] [2001] HCA 64 at [58], (2001) 207 CLR 584 at 605.
However, as the High Court said in Hili v The Queen[24]“that is a conclusion that does not admit of lengthy exposition”.
[24] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 539.
As explained by Kimber J in Hubbard v Police:[25]
A failure to suspend is a species of manifest excess and should be subjected to the same process applicable to where the length of a sentence is in issue. It is only open to the appellate Court to intervene where, having regard to the nature of the offending and the characteristics of the offender, the failure to suspend fell outside the range of permissible dispositions.
(footnote omitted).
[25] [2023] SASC 182 at [42].
The question of whether good reason exists to suspend a sentence requires the sentencing court to consider whether, having regard to all the relevant sentencing considerations in the circumstances of the particular case, good reason exists to suspend the sentence, or to impose a community based custodial sentence. That inquiry is not capable of being reduced to a set of comprehensive criteria, nor is there a precise formula to be applied in every case.[26]
[26] R v O’Toole [2013] SASCFC 18 at [50].
In this case, the relevant matters of the appellant to be taken into account when considering whether the sentence imposed was manifestly excessive are the same matters referred to earlier in these reasons.
The appellant is a Ngarrindjeri Aboriginal woman. The appellant submits the magistrate was entitled, as a criminal court, to have regard to Australian Law Reform Commission report Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander People.[27] The report observes that, Aboriginal and Torres Strait Islander defendants were convicted in the same proportion as non-indigenous defendants, but were more likely to receive a sentence of imprisonment.[28] Further, for all offence categories except unlawful entry with intent, Aboriginal and Torres Strait Islander defendants were more likely to be handed a custodial sentence by the courts than their non-indigenous counterparts.[29] The fact that the appellant is an Aboriginal person does not of itself entitle her to any more favourable treatment than a non‑Aboriginal person. The courts are not permitted to sentence indigenous offenders on some different basis from non-indigenous offenders. Such an approach would offend the principle that all persons are equal before the law.
[27] R v Webb [2019] SASC 8 at [28].
[28] Paragraph [3.44].
[29] Paragraph [3.51].
While the rates of incarceration of First Nations people is a matter of great and enduring concern, the relevant principles of sentencing of First Nations offenders are explained by the Full Court in R v Grose[30] where Gray J, with whom Sulan and Nicholson JJ agreed, said:[31]
[30] [2014] SASCFC 42, (2014) 119 SASR 92.
[31] [2014] SASCFC 42 at [28]-[43], (2014) 119 SASR 92 at 99 – 104.
In Munda, the High Court recently emphasised that Aboriginal offending is not to be viewed systematically as less serious than offending by persons of other ethnicities and Aboriginal defendants are not to be consigned, by reason of their ethnicity and place of residence, to a category of persons who are less capable than others of law abiding behaviour. Aboriginality is not, in and of itself, a factor relevant to the determination of sentence for an offence. Nor is it relevant to consider the high rate of incarceration of Aboriginal offenders in and of itself.
In Bugmy, the High Court considered the common law principles concerning the sentencing of Indigenous defendants. The defendant pleaded guilty to two offences of assaulting a correctional officer while the officer was acting in the execution of his duty, and one offence of causing grievous bodily harm with intent to cause harm of that kind. Mr Bugmy was sentenced to a head sentence of six years and three months with a non-parole period of four years and three months. The judge recommended release at the expiration of the non-parole period, subject to the parole order being conditioned on supervision that may require treatment for alcohol and substance abuse in a residential programme. The Director of Public Prosecutions appealed to the Court of Criminal Appeal on the ground that the sentences were manifestly inadequate.
The Director contended that the sentencing judge had failed to properly assess the objective seriousness of the offence and had given too much weight to Mr Bugmy’s subjective circumstances. The Court of Criminal Appeal upheld the appeal. The court found it unnecessary to decide whether the sentence was manifestly inadequate. The court resentenced Mr Bugmy.
Three issues were raised by Mr Bugmy on appeal to the High Court. The determinative issue concerned the decision to allow the Director’s appeal and to resentence without determining whether the sentence imposed was manifestly inadequate. The appeal was allowed on this ground and the proceeding remitted to the Court of Criminal Appeal. The two remaining issues, and those which are relevant to this appeal, concerned the relevance of Mr Bugmy’s deprived background and mental illness to his sentencing.
In the Court of Criminal Appeal, the Director argued that given Mr Bugmy’s age and record of serious criminal offending, it had been an error for the sentencing judge to give weight to the propositions set out in Fernando. Hoeben JA observed in relation to this submission:
I agree that with the passage of time, the extent to which social deprivation in a person’s youth and background can be taken into account, must diminish. This is particularly so when the passage of time has included substantial offending. Nevertheless, it is still a matter of relevance which can properly be taken into account in the sentencing process. Here, for the reasons set out in Ah-See, the extent to which his Honour could take those matters into account was limited. They were, however, matters which were relevant to sentencing and it was not an error on his Honour’s part to have regard to them.
Hoeben JA concluded on this point:
I am not persuaded that his Honour erred in taking into account what he described as “Fernando considerations” and reducing the weight to be given to general deterrence for that reason. For the reasons already given, however, such a reduction would be modest.
Mr Bugmy challenged Hoeben JA’s statement of the principle before the High Court. It was submitted that the effects of childhood deprivation do not diminish with time and with repeated incarceration. Mr Bugmy contended that despite his age and his long criminal record, it was open to the sentencing judge to impose a lenient sentence reflecting his reduced moral culpability for his offence.
The defendant relied on two decisions of the Supreme Court of Canada, Gladue and Ipeelee, as persuasive authority for two propositions. The first that sentencing courts should take into account the “unique circumstances of all Aboriginal offenders” as relevant to the moral culpability of an individual Aboriginal offender. The second was that courts should take into account the high rate of incarceration of Aboriginal Australians when sentencing an Aboriginal offender. That rate was said to reflect a history of dispossession and associated social and economic disadvantage.
The defendant argued that the statements in Gladue and Ipeelee concerning the unique systemic factors applying to the sentencing of Aboriginal offenders have equal application to the sentencing of Aboriginal offenders in New South Wales. The defendant likened s 718.2(e) to s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides:
A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.
In the High Court, the plurality, dismissing Mr Bugmy’s contentions, distinguished Gladue and Ipeelee. The plurality observed:
One evident point of distinction between the legislative principles governing the sentencing of offenders in Canada and those that apply in New South Wales is that s 5(1) of the Sentencing Act does not direct courts to give particular attention to the circumstances of Aboriginal offenders. The power of the Parliament of New South Wales to enact a direction of that kind does not arise for consideration in this appeal. Another point of distinction is the differing statements of the purposes of punishment under the Canadian and New South Wales statutes. There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice. (Footnotes omitted.)
The court reaffirmed the approach taken by Brennan J in Neal as adopted in Fernando. The plurality observed:
An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence. In this respect, Simpson J has correctly explained the significance of the statements in Fernando (at [53]):
Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime.
The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender’s conduct. However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. His Honour considered that where an offender’s abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. To do so, he said, is to acknowledge the endemic presence of alcohol in Aboriginal communities and:
… the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
The other respect in which Wood J proposed that an offender’s Aboriginality may be relevant to the sentencing determination is in a case in which because of the offender’s background or lack of experience of European ways a lengthy term of imprisonment might be particularly burdensome. In each of these respects, the propositions enunciated in Fernando conform with the statement of sentencing principle by Brennan J in Neal:
The same sentencing principles are to be applied, of course, in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal.
Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
(Footnotes omitted.)
The basic principle underlying the excerpted passage from Neal as accepted by the plurality in Bugmy is one of individualised justice. While membership of a particular ethnic or other group is, without more, irrelevant, membership of a particular ethnic or other group becomes relevant when it tells the court something about the offence or the offender relevant to the determination of the appropriate penalty.
The High Court has made clear that Aboriginality is not a factor in mitigation and that a background of deprivation will not necessarily lead to a reduced sentence. As was observed by the plurality in Bugmy:
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
(Footnote omitted.)
While in Bugmy the court’s focus was upon factors of social and economic disadvantage and their relevance to sentence, those aspects are not exhaustive of matters to which a court sentencing an Aboriginal person may need to be alive. Underlying the decisions of Fernando, Bugmy and Munda is the fundamental principle of individualised justice and the relevance of personal factors to the sentencing exercise. In addition to factors of social and economic disadvantage that may be present, the court may need to consider cultural factors or the unique history and treatment of a particular ethnic group. Such factors may be relevant to the court’s assessment of the gravity of the offending and the defendant’s blameworthiness. This may impact the choice of penalty and purposes of punishment.
Statistically, Aboriginal people are grossly overrepresented in the criminal justice system. Further, risk factors associated with criminal offending such as unemployment, lack of education and poor health, which inhibit full participation in community life, are far more prevalent in relation to Aboriginal people. While these statistical facts say nothing about an individual before a sentencing court, the fact that they are a relatively common experience of Aboriginal defendants suggests a need for a sentencing court to be alive to the likelihood of their existence, to explore whether they are present, and, if they are, to explore their relevance to the offence and offender. The need to achieve individualised justice requires as much. Doing so may require that the court adopt a proactive approach. Again, that is not to single out Aboriginal defendants for special treatment. The same sort of approach could be required in myriad circumstances involving defendants of different ethnicities and backgrounds.
In being alive to cultural, social and economic factors, it is unhelpful to resort to classifications such as “tribal”, “semi-tribal” or “urban”. Resort to such classifications creates a risk of applying those categories mechanically and failing to unpack the characteristics that the classification is intended to convey. Factors relevant to sentencing Aboriginal defendants do not become irrelevant because a defendant lives in an urban environment. As was observed by the plurality in Bugmy:
Mr Fernando was a resident of an Aboriginal community located near Walgett in far-western New South Wales. The propositions stated in his case are particularly directed to the circumstances of offenders living in Aboriginal communities. Aboriginal Australians who live in an urban environment do not lose their Aboriginal identity and they, too, may be subject to the grave social difficulties discussed in Fernando. Nonetheless, the appellant’s submission that courts should take judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted. It, too, is antithetical to individualised justice. Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender. In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.
(Footnote omitted; emphasis added.)
While that statement was focused on economic and social aspects, the notion applies likewise to cultural factors that may impact upon an Aboriginal defendant. Such factors may be present to a greater or lesser extent in the personal history of an Aboriginal person wherever they reside and whatever their circumstances. In all cases, the court is obliged to consider the extent to which, and the manner in which, those cultural factors impact upon the particular defendant.
[citations omitted].
The sentencing of the appellant had to pay proper regard to the disadvantage she has experienced and the hardship she has endured. This included not only giving proper weight to her deprived background, which the High Court recognises does not diminish with time,[32] her mental illness, and the other factors identified above.
[32] Bugamy v The Queen (2013) 249 CLR 571 at 595.
Both parents of the appellant were alcoholics and unable properly to care for her. She was neglected by her parents until the age of four when her grandparents assumed responsibility for her care and upbringing.[33] I accept the appellant’s submission that this deprived her of a stable family home during her formative years thereby reducing her moral culpability and this should have informed any consideration of the decision of whether to suspend the sentence of imprisonment.
[33] DCS Pre-Sentence Report page 2, Appeal Book page 171.
The appellant suffers from a mental impairment. The relevance of a person’s mental impairment when determining sentence is explained by the Supreme Court of Victoria in R v Verdins; R v Buckley; R v Vo as follows:[34]
[34] [2007] VSCA 102 at [32] and endorsed by the High Court in The Queen v Guode [2020] HCA 8 at [8].
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
(footnote omitted).
Contrary to the submission of the respondent, I accept that the appellant’s mental impairment called for some form of moderation when considering the relevance of general and personal deterrence as a sentencing purpose. There was evidence before the magistrate[35] that the appellant’s poor mental health contributed to poor decision making and this lay behind the offending conduct. The magistrate placed particular emphasis on finding good reason did not exist to suspend the term of imprisonment due to the need for personal deterrence. However, the effect of mental illness diminishes the purpose of a sentence based on the need for personal deterrence.
[35] DCS Pre-Sentence report page 4, Appeal Book page 173.
The appellant submits that there was an obvious connection between the appellant’s poor mental health, her drug misuse and her offending conduct.[36] The magistrate was therefore required to grapple with how the appellant’s various conditions may have reduced the importance of personal and general deterrence, and how any sentence of imprisonment to serve in custody might weigh more heavily on the appellant than another person not suffering a mental impairment.[37] The appellant submits these circumstances required the imposition of a sentence which would properly allow the appellant’s mental health and her drug misuse to be addressed.
[36] Eligibility Assessment Report, page 4, Appeal Book page 193.
[37] Nguyen v The Queen [2022] SASCA 23 at [25].
The appellant is, and was at the time of the offending, relatively young. She had a history of minor offending. Other than the theft the subject of the good behaviour bond in count 2, her prior offences had only ever been dealt with by way of a fine, some with conviction, others without conviction.
The appellant submits that the magistrate appeared to accept[38] the appellant’s offending conduct was motivated by a desire to finance her purchase of methamphetamine and grocery items. The appellant submits the fact the offending was not motivated by greed is a factor which should have been reflected in the sentence imposed and informed the question of whether good reason existed to suspend the sentence of imprisonment.
[38] Remarks on Penalty page 9.
Most of the offences related to the theft of grocery items or clothing. The aggravating feature was being in the company of another or having been committed after the imposition of the good behaviour bond. The single offence of aggravated assault involved the appellant threatening a staff member with a bottle she was attempting to steal. I accept the appellant’s submission that the magistrate’s observation that a great deal of that offending took place in breach of a bond to be of good behaviour,[39] is wrong. Most of the offending for which the appellant was to be sentenced occurred prior to 3 May 2023 when she was placed on the bond.
[39] Remarks on Penalty page 13.
The appellant was a participant in the ACCA for the period of May 2023 to August 2023. She was ultimately removed from the program when charged with new offending, the subject of the sentence under appeal. I reject the submission of the respondent that the failure to complete the ACCA precluded the magistrate from extending her any further leniency. On the contrary, I accept the appellant’s submission that despite not completing that program, her participation indicated a willingness to rehabilitate. During the program, she engaged with service providers and abstained from the consumption of drugs. That her participation in that one program was not ultimately successful, does not provide a basis to find that a good reason does not exist to suspend the sentence of imprisonment. Rather, I accept the submission that this demonstrated that a suspended sentence of imprisonment with conditions that the appellant engage with relevant treatment offered the chance of effective rehabilitation notwithstanding that the appellant had not managed to complete successfully the one program she had undertaken.
The appellant entered her guilty pleas at a very early stage for many offences, as indicated by the applicable discounts. The entering of guilty pleas is more than simply of ‘utilitarian’ benefit to the court, as the magistrate observed.[40] I accept the appellant’s submission that an early guilty plea demonstrates remorse, contrition and acceptance of responsibility by the appellant and that these are matters which bode well as to prospects of rehabilitation.
[40] Remarks on Penalty page 10.
As at the time of sentence, the appellant had been in custody since 6 December 2023 in relation to these matters. This was the longest period for which she had been in custody. The appellant submits this time in custody had a sobering effect upon her and ought to have weighed upon whether further imprisonment to be served in custody was required to achieve the sentencing objectives of personal and general deterrence. Courts are reluctant to impose lengthy sentences of imprisonment on persons who have not served a term of imprisonment.[41] I accept the submission that as the appellant had already been in custody for approximately eight weeks, a sentence of a further five months constituted a lengthy sentence of imprisonment with respect to this appellant and this offending. While the term of the sentence of imprisonment was not manifestly excessive, I consider the failure to suspend in all the circumstances was an error that made the sentence manifestly excessive.
[41] Pointon v Police [2004] SASC 4 at [44].
The appellant relies upon the fact the prosecution was not opposed to a suspended sentence in some form. While I accept the magistrate was not bound to suspend the sentence of imprisonment because the prosecution accepted he could, it was a factor that should have weighed strongly in favour of suspension.[42]
[42] R v A [2003] SASC 121.
The appellant had never had the benefit of a suspended sentence. A suspended sentence is a significant penalty notwithstanding that the immediate sentence of imprisonment is suspended upon a person entering a good behaviour bond.[43]
[43] Ware v Betts (1987) 134 LSJS 212.
Similarly, as was observed in Stenecker v Police:[44]
[t]he option of partially suspending a sentence of imprisonment is a very useful sentencing option in that it combines the specific and general deterrent effects of a period of imprisonment with a subsequent period of rehabilitation under supervision in the community.
[44] [2014] SASC 68 at [14].
The appellant submits that a suspended sentence, or some form of community based custodial sentence could have adequately dealt with the diminished need for personal and general deterrence in this matter.
Finally, submissions were made on behalf of the appellant regarding her compliance while on home detention bail. The appellant’s compliance with the conditions of her home detention bail was evidence that she was willing and capable of complying with the terms of a suspended sentence of imprisonment. It was also relevant to her prospects of rehabilitation. The appellant submits this was another matter that the magistrate was required to take into account when determining whether to suspend the sentence of imprisonment.
Consideration
I accept the appellant’s submission that taking into account the above matters, the magistrate should have found that good reason existed to suspend the sentence of imprisonment, or impose a community based custodial sentence with conditions requiring participation in treatment.[45] The decision not to either wholly or partially suspend the sentence of imprisonment, or impose a community based custodial order, was manifestly excessive. The sentencing discretion miscarried in this case because the magistrate’s approach to sentencing was that the extent of the appellant’s offending outweighed any good reason to suspend. The magistrate fell into error by giving excessive emphasis to the perceived need for deterrence, both specific and general. The requirement for deterrence in this matter was significantly diminished, notwithstanding the number of offences that had been committed, by reason of her childhood deprivation, mental ill health, and other extenuating personal circumstances. Where the appellant had not had the benefit of a suspended sentence, the magistrate erred in not affording her the opportunity to avoid serving a sentence of imprisonment where she would know that any lapse into further offending would almost certainly result in her immediate incarceration. This was a cogent incentive to rehabilitate and abstain from further criminal conduct.
[45] Pointon v Police [2004] SASC 4 at [46].
I have not overlooked the appellant’s submission that the individual starting points the magistrate adopted in structuring the single sentence pursuant to s 26 of the Sentencing Act reflected an erroneous view of the seriousness of the offending. The appellant submits that it can be inferred from the sentencing remarks that this erroneous view infected the magistrate’s ultimate decision to decline to suspend the sentence. I do not accept this submission. While I consider the magistrate erred in failing to suspend the sentence of imprisonment, the failure to suspend is not established by a consideration of the notional sentences adopted by the magistrate in utilising s 26.
I would allow the appeal on ground 2.
Ground of appeal 3 – The pecuniary fines imposed on counts 17, 23 and 24 were contrary to section 120 of the Sentencing Act
The appellant did not pursue this ground of appeal.
Ground of appeal 4 – The magistrate failed to have regard to a relevant sentencing consideration, namely the discount applicable to the offence of theft for which the appellant was to be resentenced.
The appellant seeks leave to amend her notice of appeal to include this additional ground of appeal. The Commissioner of Police did not oppose this. I granted leave to include this ground of appeal at the hearing of the appeal.
Section 39 of the Sentencing Act empowers a sentencing magistrate to reduce a sentence by up to 40 per cent if a defendant enters a guilty plea not more than four weeks after the defendant’s first appearance in relation to the particular offence.[46]
[46] Sentencing Act 2017 s 39(2)(a).
The appellant admitted breach of the good behaviour bond entered into in relation to a charge of theft contrary to s 134 of the CLCA (count 2) on 9 July 2022. The magistrate imposed a total of seven days imprisonment for this offence. The magistrate did not expressly state that he was applying any discount for the appellant’s plea of guilty.
The appellant had entered a guilty plea in relation to this offence on the first occasion that the matter was before the Court, namely, 3 May 2023. The appellant was therefore entitled to a discount of up to 40 per cent in relation to any penalty imposed by the magistrate pursuant to s 39 of the Sentencing Act. The availability of a discount was not brought to the attention of the magistrate. The magistrate did not consider applying the discount available to the appellant for this offence.
However, a bond does not fall within the meaning of the word “sentence” as it appears in s 39(2)(a).[47] The sentence that qualifies for a reduction is the penalty to be imposed upon resentence for the original offence following the breach of bond.
[47] Virgin v Police [2018] SASC 194 at [28].
The appellant submits that as the magistrate utilised s 26 of the Sentencing Act to impose a single sentence in relation to all offences, and the application of s 39 of the Sentencing Act entitled the appellant to differential discounts in respect of the various individual offences, the magistrate was required to identify the notional starting sentences for each offence and the notional discounts applied to each offence. The appellant relies on the reasons of the Full Court in R v Wakefield[48] in relation to the interaction between ss 10C and 18A of the Criminal Law (Sentencing Act) 1988 (SA); the predecessor provisions to the current ss 39 and 26 of the Sentencing Act, respectively.
[48] [2015] SASCFC 10, (2015) 121 SASR 569.
In R v Wakefield[49] the Court said:
When there are different maxima applicable or the prescribed criteria have a differential operation in respect of individual offences, such that the application of s 10C would result in different discounts for the individual offences, the sentencing court is required to apply the prescribed criteria by reference to the respective maximum discounts and arrive at individual discounts for those individual offences. There is no reason why the sentencing court cannot impose a single penalty utilising s 18A, but it must do so by proceeding in the manner prescribed by section 10C.
When a sentencing court utilises section 18A to impose a single penalty and application of section 10C requires differential discounts in respect of the individual offences, the sentencing court is obliged to explain how it has arrived at the single sentence imposed after application of the differential discounts. This, in turn, requires identification of the notional starting head sentences for the individual offences and the notional discounts applied.
[49] [2015] SASCFC 10 at [38]-[39], (2015) 121 SASR 569 at 579-580.
The appellant submits the magistrate was permitted to utilise s 26 of the Sentencing Act to impose a single penalty in relation to all offences, but had to do so by proceeding in the manner prescribed by s 39 of the Sentencing Act. The magistrate did not consider the applicable discount for the offence of theft (count 2). I accept the appellant’s submission that this amounts to a failure to proceed in the manner prescribed by s 39 of the Sentencing Act. The respondent concedes that the magistrate erred in failing to do so. This is a process error.
However, as the Court found in R v Donald; R v Pitt; R v Whitaker,[50] the remarks made in Wakefield were in the context of the court considering only two charges. The purpose of the requirement of notional sentences is to explain how the Court has come to that final figure,[51] so an assessment as to that outcome can be made.
[50] [2016] SASCFC 117 at [28].
[51] R v Donald; R v Pitt; R v Whitaker [2016] SASCFC 117 at [28].
In Donald[52] the Court said, in respect of the application of s 18A, as it then was:
[52] R v Donald; R v Pitt; R v Whitaker [2016] SASCFC 117 at [30] – [31].
It must be remembered that the process of sentencing is ultimately a matter of discretion and judgment. It is a matter of “instinctive synthesis” and not simply a mathematical exercise. The Act requires that the defendant is adequately punished and that the sentencing Court has regard to, if it is alleged, the course of conduct.
Against that background the approach to sentencing a prisoner for multiple offending appears to be governed by the following principles:
1.It is always necessary to identify the applicable sentencing principles and standards for the particular offences charged.
2.In applying s 18A of the Act, the sentencing judge should, as a general rule, first determine what sentence each separate offence would attract and then consider whether the sentences should be served concurrently or cumulatively. In considering the question of whether a sentence should be served concurrently or cumulatively the general criminal law sentencing principles apply. This approach has the benefit of transparency.
3.In some cases the matter may be so straightforward that the separate consideration of the individual sentences is unnecessary.
4.In some cases the approach in paragraph two may be unnecessary because the totality principle will so obviously operate that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. In such cases to accumulate the sentences will lead to an “air of unreality” in the sentencing process.
5.If a sentencing court wishes only to use s 18A once for multiple offences, and differing statutory discounts apply, the Court must explain how it has arrived at the single sentence imposed after application of the differential discounts. This requires identification of the notional starting head sentences for the individual offences and the notional discounts applied. If the offending can be grouped, such that a common discount applies across particular offences, and s 18A applied to the various groupings independently, then notional sentences will not be necessary.
6.As to when such an “air of unreality” arises in any particular case will depend on the facts and circumstances of each case.
7.Failure to adopt any particular approach will of itself no amount to an error of law.
8.The sentencing judge should provide sufficient reasons for the approach adopted.
I accept the submission of the respondent that while it is desirable that a court expressly identifies the specific reduction for a plea of guilty, there is no mandatory requirement that a court does so.[53]
[53] Mead v Police (2014) 119 SASR 223 at 30.
In Donald[54] the Court explained that the process of sentencing is a matter of discretion and judgment. The appellant submits that the principle established by Donald is that a sentencing judge or magistrate is not strictly required to identify the starting point for the sentence to be imposed pursuant to s 26. The sentencing discretion is not a mathematical exercise, but an exercise in ensuring that an appropriate and transparent sentence is imposed, having regard to all of the relevant considerations, facts and circumstances. The risk in not identifying the starting point for every offence for which s 26 is being used is that an appeal court might infer that the sentencing discretion has miscarried because the sentencing judge or magistrate has overlooked the defendant’s entitlement to be given credit for an early plea of guilty.
[54] [2016] SASCFC 117 at [30].
The magistrate imposed a total of seven days imprisonment for the July 2022 offence.[55] No discount was expressly identified by the magistrate for the appellant’s plea of guilty to that offence. The appellant submits she was entitled to a 40 per cent reduction on the period of imprisonment, leading to a period of four days, assuming that a discount was not applied. The respondent conceded that this amounted to a process error.[56]
[55] Remarks on Penalty page 12.
[56] T 25.14.
However, had a 40 per cent discount been applied to seven days imprisonment, the reduction would only have been 2.8 days, leading to a final figure of four days, rounded down from 4.2. The respondent submits this is a minor error considering the ultimate sentence of five months, after reduction for time in custody. While an error was made in stating the notional penalty for the July 2022 offence, when consideration is given to the imprisonment as a whole, it is relevant that the magistrate made a substantial final reduction of the entire period of four weeks.[57]
[57] Remarks on Penalty page 13.
The sentence of seven days for the July 2022 offence was included within that entire period of imprisonment, and therefore was affected by the overall reduction that was exercised within the magistrate’s discretion. The reduction granted far outweighed any possible error of not reducing a period of seven days imprisonment by 2.8 days.
However, as Kourakis J, as he then was, pointed out in R v Horstmann[58] in the case of a process error, a Criminal Court of Appeal may refrain from interfering with a sentence if it thinks that the resulting penalty was appropriate notwithstanding the demonstrated error. The appeal court will not vary the sentence if it thinks the same or a higher sentence would be passed if it were to exercise the discretion itself.
[58] [2010] SASC 103 at [38].
Consideration
In this case, notwithstanding the error, I would not interfere with the length of the sentence of imprisonment. The term of imprisonment imposed by the magistrate must be considered as an overall sentence,[59] with the notional sentences to be regarded merely as an explanation for how the ultimate sentence of imprisonment was reached. The application of notional sentences is merely to provide a degree of transparency in arriving at the ultimate outcome. Nonetheless, the failure to identify an appropriate discount for the early guilty plea, in sentencing for the breach of bond, is a process error that does not warrant the Court’s interference for the reasons set out earlier. However, as already explained, I am satisfied that the failure to suspend that sentence of imprisonment is an error that warrants the Court setting aside the sentence imposed and resentencing the appellant.
[59] R v Bagnato (2011) 112 SASR 39 at 54.
I would dismiss ground 4.
Resentencing
I would allow the appeal to the extent of suspending the term of imprisonment of five months upon the appellant entering into a good behaviour bond.
Conclusion
I would make the following orders:
1.the appeal is allowed;
2.the sentence imposed by the magistrate on 1 February 2024 is set aside;
3.the appellant is resentenced; and
4.the appellant is sentenced to a term of imprisonment of five months from 1 February 2024[60] which is suspended on her entering into a bond in the sum of $100 to be of good behaviour for a period of 12 months.
[60] Being the date upon which the magistrate imposed sentence.
33
0