Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Whether suspended term of imprisonment manifestly inadequate - Common assault and assault a police officer - Prior convictions for violence.

DPP v Broadby, Cockshutt and Woolley [2010] TASCCA 13, referred to.

Criminal Law - Sentence - Sentencing orders - Custodial orders - Other matters - Applications that offender be ordered to serve suspended sentences of imprisonment - Whether "unjust" to activate suspended sentences.

Sentencing Act 1997 (Tas), s27.

Greaves v Smith [1986] Tas R 120; R v Buckman (1988) 47 SASR 303; R v Marston (1993) 60 SASR 320; R v Anderson (1987) 32 A Crim R 146, referred to.

First and Second Applicant: Director of Public Prosecutions

Judgment Number: [2011] TASSC 59

1 A notice to review has been heard regarding three separate sentencing orders made by Magistrate McTaggart in relation to the respondent, Mr Johnny Brown.

2 The learned magistrate imposed a term of imprisonment of four months which was wholly suspended with respect to various charges including common assault, involving a security officer, and two offences of assault a police officer arising from an incident that occurred at the Syrup Nightclub in Hobart in July 2010. Additionally, the magistrate imposed a community service order and probation order. There is one ground of appeal relating to this sentence and it is that it was manifestly inadequate. The State's contention is that an actual term of imprisonment was required noting that Mr Brown has prior convictions for offences involving violence.

3 At the time the respondent committed the offences at the Syrup Nightclub in July 2010, he was subject to conditions of two suspended sentences. By committing the Syrup Nightclub offences he breached those conditions. Applications were made pursuant to the Sentencing Act 1997, s27(1), for the magistrate to activate those two suspended sentences. After hearing those applications, the learned magistrate determined that it would be "unjust" to do so and instead, made orders in effect re-suspending the terms of imprisonment. Those two sentencing orders are also subject to review. The State's contention is that these sentences of imprisonment should have been activated and the respondent be required to serve the periods of imprisonment, and that not to do so amounted to an error.

4 The grounds of appeal are that by re-suspending the terms of imprisonment, sentences were imposed that were manifestly inadequate; that the learned magistrate failed to apply the governing provision of the Sentencing Act; that she failed to recognise that the terms of suspended imprisonment would be served concurrently rather than cumulatively, and finally that she erred in concluding that it would be "unjust" to activate the terms of suspended imprisonment.

5 The grounds of appeal give rise to a significant number of issues to consider in relation to the sentencing orders but in essence, the notice to review concerns whether in each case the sentencing discretion miscarried.

6 The sentencing proceedings spanned three dates subsequent to a hearing relating to the Syrup Nightclub incident. It is worth setting out the course of those proceedings in a little detail. The respondent was charged with seven offences arising from the Syrup Nightclub incident occurring on 11 July 2010. The respondent had pleaded guilty to use abusive language to a police officer, resist a police officer, state false name and breach of an area restriction order contrary to the Sentencing Act, s71(1). He had pleaded not guilty to three charges: two charges of assault a police officer and one charge of common assault. After a hearing the magistrate delivered a decision on 11 February 2011 finding the respondent guilty of those three charges.

7 On the date the hearing was resolved, 11 February 2011, the magistrate commenced hearing submissions regarding sentence. During these proceedings the prosecutor made an oral application that the respondent had breached two suspended sentences. The application was brought once the respondent's guilt in relation to the Syrup Nightclub offences had been determined, on the basis that by committing these offences in July 2010 the respondent had breached a condition of the suspended sentences that he be of good behaviour. One of the suspended sentences was a period of three months and had been imposed by Magistrate Hay on 26 October 2009 for three charges of common assault. Another suspended sentence was a period of 28 days' imprisonment wholly suspended imposed by Magistrate Daly on 11 January 2010 for one charge of common assault. The prosecutor informed Magistrate McTaggart that she was not in a position to state the facts for those original matters. Her Honour indicated the facts were required. The magistrate was informed that pre-sentence reports had been prepared for both of those prior matters and she considered that a new report from Community Corrections up-dating the information previously provided by that service was warranted. An adjournment was needed for that purpose and also for the purpose of providing the prosecution time to file and serve applications for the breach proceedings. The magistrate adjourned the matters, bailing the respondent to appear on 22 March 2011, to be assessed for suitability for a community service order and probation. She explained to him that that order was not an indication of the sentence that would be imposed.

8 As expected, two written applications were filed regarding the suspended sentences and containing an assertion that they had been breached by the respondent committing the offence of common assault on 11 July 2010. These were listed before the magistrate on 22 February 2011, together with the Syrup Nightclub offences. The respondent did not show cause. The application for breach of the suspended sentence imposed by Magistrate Daly was adjourned to 24 March before his Honour. Magistrate McTaggart proceeded to deal with the sentencing of the offences arising from the Syrup Nightclub offences and the breach of the suspended sentence imposed by Magistrate Hay. Her Honour heard the facts of the offending which gave rise to that suspended sentence. The facts are set out below and relate to assaults upon members of the Kitto family.

9 Defence counsel, Mr Stevens, advanced a plea in mitigation in relation to the application for breach of the suspended sentence and the matters for sentence. Matters in mitigation are set out below and matters specific to the Syrup Nightclub offences are set out under the heading regarding Ground 1. The magistrate sentenced the respondent with regard to the Syrup Nightclub offences and made an order with regard to the breach proceedings for the sentence imposed by Magistrate Hay. The prosecutor sought reasons for the re-suspension of the sentence imposed by Magistrate Hay and her Honour gave reasons as requested.

10 On 24 March 2011, the application for breach of Magistrate Daly's sentence was transferred from Magistrate Daly's list to Magistrate McTaggart (on the basis that her Honour was best placed to deal with it). The respondent admitted the contents of the application. The facts of the offending giving rise to the suspended sentence were stated by the prosecutor. The suspended sentence related to a charge of common assault committed by the respondent in June 2008 upon a male known to him in the car park at Wrest Point Casino in Hobart. The details of the facts are set out below. Matters in mitigation were drawn to the attention of the magistrate. A pre-sentence report had been prepared for those proceedings and was taken into account by the magistrate. The magistrate then made a sentencing order regarding the breach and as noted did not activate the suspended sentence.

11 A summary of the findings of the magistrate regarding the offences committed by the respondent at the Syrup Nightclub and information relating to the offences presented during the plea in mitigation is as follows.

12 The offences were committed during the early hours of 11 July 2010. The complainant, Mr Paulo Saisoaa, a security officer, was on duty at the Syrup Nightclub, and the respondent was a patron. The respondent was leaving the nightclub with his girlfriend. He was walking down the stairs with his girlfriend holding her around her chest; she was unwilling and did not want to leave with him. The respondent was in fact trying to help her but persisted in holding her when she did not want to be held. There was a confrontation between the respondent and Mr Saisoaa.

13 The confrontation was captured on CCTV footage, which was tendered in evidence and viewed by the magistrate. Her Honour found the footage showed the respondent was insistent and agitated. The female at times reached out to security as to ask them for assistance to be released. The respondent persisted with arguing with the security officers. The respondent and the complainant gesticulated. The respondent pushed the complainant and then punched him to the face once with a direct and forceful blow. The complainant reeled backwards but recovered to an upright position fairly quickly. Another punch was delivered but it did not make contact. The respondent was restrained and taken to the ground. He was held on the ground until police attended.

14 While on the ground the respondent was subjected to some physical retaliation from the complainant and received an injury to his eye.

15 The respondent ran away towards the grounds of Parliament House. He was chased by police officers and surrendered himself. The respondent used indecent language to Constable Ellston. He was arrested for abusive language. As the officers attempted to place handcuffs on him he resisted arrest. It required three officers to restrain him. After he had been handcuffed he was placed in the back of the divisional van. When on his back in the van he deliberately kicked out at the two police officers. He was not wearing shoes at the time. He struck Constable Boucher's little finger and he suffered a hairline fracture to one of the bones in his finger. The second kick struck Constable Moore to the throat. Constable Moore suffered a small bruise and at the time of the kick had difficulty breathing for about 15 to 20 seconds. The respondent had breached an area restriction order by being at the Nightclub in Salamanca Place. Later, at the police station the respondent threatened to spit blood at Constable Ellston, although it is to be noted that this conduct was not the subject of a charge.

16 The complainant suffered an injury to his right eye involving some redness, bleeding in the white area of the eye.

17 On 22 March 2011, the magistrate sentenced the respondent in relation to the offences on a global basis to:

• Four months' imprisonment wholly suspended for a period of 18 months on condition that he be of good behaviour and commit no offences of violence and that he comply with any existing probation order.
• 98 hours community service order.
• 12 months probation order with a special condition that he was to attend educational and other programs including anger management programs as directed by his probation officer.

Proceedings for breach of suspended sentence: the Casino assault

18 On 24 June 2008, the respondent committed an offence of common assault. The respondent and his brother had been at the Casino watching a televised boxing match. They left the Casino building with their friends. A verbal argument developed with the complainant who was known to the respondent and his brother. The respondent and the complainant engaged in a wrestling match which resulted in both parties falling down stairs in the car park. Then, while the complainant was on the ground both the respondent and his brother kicked and punched the complainant to the head and face areas numerous times. Security officers broke up the attack. The victim was conveyed by ambulance to hospital. He sustained bruising to both eyes and to the back of his head.

19 On 11 January 2010, Magistrate Daly imposed a term of imprisonment of 28 days which was wholly suspended on condition that the respondent be of good behaviour and commit no offence involving an element of violence for three years. He was further ordered to complete 56 hours of community service.

Proceedings for breach of suspended sentence: the charges regarding the Kitto family

20 In the early hours of 19 July 2008, three members of the Kitto family, the youngest Carl Kitto aged in his 30s, and his parents, were at Irish Murphy's Hotel in Salamanca Place in Hobart. Mr Carl Kitto walked outside. The respondent approached Mr Carl Kitto and asked him why he would not shake his hand. Mr Kitto responded saying he did not know he had to. The respondent lunged at Mr Kitto and threw a left-right punch combination connecting with his face. While people were restraining the respondent he threw two more punches, both connecting with Mr Kitto's face.

21 The complainant's parents came to their son's aid. When his mother approached the respondent and asked him to calm down and go away he punched her once to the face causing her to fall to the ground. Mr Graeme Kitto pursued the respondent and confronted him, and the respondent then punched him twice to the head. All complainants were taken to hospital for treatment. The injuries suffered by the complainants included cuts and bruises and abrasions. One of the complainants required stitches to a cut lip.

22 On 26 October 2009, Magistrate Hay imposed a sentence of three months' imprisonment suspended on conditions that the respondent be of good behaviour for three years and commit no crimes involving violence. This sentence was imposed on the charge of common assault regarding Carl Kitto. The other two charges of common assault attracted an order of 93 hours of community service. In addition, an area restriction order was made pursuant to the Sentencing Act, s70.

23 The respondent was aged 24 years at the time he committed the assaults in 2008, and 26 years of age at the time he committed the Syrup Nightclub offences.

24 At the time of sentencing Magistrate McTaggart had the benefit of three pre-sentence reports. She had the report of 23 October 2009, prepared for Magistrate Hay, the report of 21 December 2009 prepared for Magistrate Daly, and an up-dated report prepared for the recent matters dated 17 March 2011. Matters in the reports included:

• The respondent belongs to a very close-knit and supportive family. He was living at home with his parents and sister.
• He had a happy childhood with no history of family violence or drug or alcohol abuse.
• At the time of offending in 2008 he was drinking alcohol most week days and excessively on weekends. He was getting into fights and becoming aggressive after drinking. He was drinking to keep up with his peers and due to his "reputation as a fighter" he became embroiled in the need to maintain his image.
• He was in a steady relationship with a young woman studying teaching at University. She has been a stabilising influence and a "major factor in his maturing". At the time of the report, October 2009, he had restricted his drinking for a period of 12 months.
• He was training with the Clarence Plains Boxing Club with the aim of selection into the National Boxing titles. His trainer described him as polite and well behaved.
• The respondent had completed year 12 at Rosny College. Since school he had obtained his Bar and Gaming Licence, Responsible Serving of Alcohol Certificate, Senior Writer Gaming Machine Supervisor and First Aid Certificates.
• He had been in steady employment since leaving school. He was working six days a week at the Willows Tavern as Duty Bar Manager.
• The report quoted him as very sorry and remorseful.
• The first report described him as requiring a low level of intervention and probation was not recommended.

25 Two months later at the time of the second report:

• There had been no re-offending since the 2008 offences.
• The respondent had abided by bail conditions of not drinking in the central business district.
• The community service order scheme had received good reports of his work.

26 Additional information in the report for 17 March 2011 was as follows:

• The respondent's relationship with his girlfriend was stable.
• He was living with his grandmother.
• His time was spent with his girlfriend or working.
• Since previous court matters the respondent's senior and supervisor licences had been revoked. His responsibilities had been withdrawn and his work hours reduced. He was undertaking lower level tasks until his licenses could be reinstated.
• He had restricted his drinking and was only drinking alcohol socially.
• His father described his son's temper as getting better and that there was improved trust.
• The respondent was concerned about his reputation and that was a highly motivating factor.
• His response to community service was good and he was suitable for further orders.
• Due to an administrative error an order of 56 hours was outstanding.
• A supervised probation order was recommended to oversee completion of an anger management program, warranted due to his history of offending.

27 He had relevant prior convictions. Aside from traffic offences his history of offending is as follows:

• Common assault (27/7/05) court date 1/05/07: no conviction, undertaking to be of good behaviour and not commit any offences of violence including assault.
• Common assault (20/08/06) court 24/09/07: conviction recorded, fine of $400 and costs.

28 At the time he was sentenced by Magistrate Hay and Magistrate Daly there was a conviction on his record for assault committed on 18 May 2008. This charge was subsequently reheard and dismissed.

29 The offending, giving rise to the breach proceedings before the court, appears on his record of prior convictions as:

• 3 x common assault (19/07/08) court 26/10/09: conviction recorded.

30 As can be seen from the details of the sentence imposed by Magistrate Hay that is an incomplete record of the sentence and omits any reference to the suspended term of imprisonment.

• Common assault (24/06/08) court 11/01/10: conviction recorded.

31 This is an inaccurate record of the sentence imposed by Magistrate Daly and omits reference to the suspended term of imprisonment. The errors did not give rise to any confusion before Magistrate McTaggart.

Ground 1 - sentence for Syrup Nightclub offending - manifestly inadequate?

32 Ground 1 of the notice to review relates to the sentence imposed regarding the Syrup Nightclub offences and asserts that the "sentence was manifestly inadequate in all the circumstances of the case".

33 It was submitted for the Crown that the sentence of four months' imprisonment wholly suspended, together with community service and a probation order, was manifestly inadequate. The Crown relied on the serious nature of the offences, the respondent's prior record for similar offending and that at the time he offended he was in breach of court orders (ie the two suspended terms of imprisonment and breach of area restriction order). It is also emphasised that the acts of violence were against persons in authority. It was submitted the need for strong personal deterrence was paramount and the need for general deterrence was important.

34 The Crown relied on comments made by Evans J in DPP v Broadby, Cockshutt and Woolley [2010] TASCCA 13, agreed with by Porter J and myself, regarding circumstances in which the utility of suspended sentences is constrained and concerns expressed in that case that the offenders had taken the court's leniency for granted.

35 It was argued for the respondent that the sentence did not warrant interference on appeal. The conduct was not so serious in nature that a term of actual imprisonment was required; the magistrate quite properly treated rehabilitation as a factor that loomed large and that the applicant had "not developed settled criminal habits" (a reference to Tracey v R [1987] TASRp 15; [1987] Tas R 108, per Nettlefold J at 116, quoting from Yardley v Betts (1979) 1 A Crim R, at 333).

36 I note the following matters in mitigation specific to this offence:

• The respondent had met his girlfriend at the Syrup Nightclub by chance. She was involved in an altercation and he was attempting to remove her from that altercation. He was looking after her best interests at the time.
• The injury suffered by the security officer was not lasting.
• The injury caused to the police officer's little finger was unintended.
• The assaults upon the police officers did not carry a strong prospect of serious injury, given it was a kicking out when the applicant was prone, handcuffed, in the divisional van and not wearing shoes. The acts of violence could properly be regarded as an aspect of his conduct in aggressively resisting his arrest.
• The respondent suffered a measure of retaliation from the security officer and an injury to his eye involving a "subconjunctival haemorrhage".
• The respondent's conduct was not the product of a poor attitude to police or authority. He has no prior convictions for assaulting police or undermining their authority.
• He apologised during his evidence when the police officer was sitting in the back of the court.
• There had been a period of almost two years since the respondent had last offended.
• In 2010, and at the time of offending, the respondent was experiencing a period of disruption and atypical family upheaval.
• The respondent had separated from his girlfriend a few weeks before the offence and he had taken that badly.
• The respondent and his girlfriend had reconciled by the time of sentencing, and his girlfriend was working as a teacher. The respondent intends that the relationship be a lifelong one and that they will purchase a home and start a family.
• The respondent spent at least one night in custody which was a salutary lesson. That was his first experience of custody.
• The respondent was employed. His gaming licences had been revoked as a result of his court matters. He continued to be employed at the Willows Tavern but at a significantly reduced income for less significant duties.
• He had completed a community service order of 93 hours in a very short period of time in an exemplary fashion.
• He had tempered his alcohol consumption considerably since offending. His girlfriend was standing by him but had said she would not support him should he offend in this way again.
• The respondent had been on very strict bail conditions since July 2010. There was a curfew condition for seven months and an area restriction order.

37 There is a reference above to the respondent experiencing a period of disruption and family upheaval at the time of offending. The specific details of those circumstances were before the magistrate and a summary is as follows. The respondent's' parents had been experiencing difficulties in their marriage. They separated in "quite disturbing and vitriolic circumstances". A family violence order was imposed on the respondent's father. The respondent was living with his maternal grandmother and sleeping on the floor. The respondent's mother suffers from depression. There were three admissions to the Royal Hobart Hospital as a "result of the most dire consequences of that type of illness" that could be imagined. She was over-consuming alcohol and in poor health. The respondent was torn between respect for and loyalty to his father and the concern and care he had for his mother. This upsetting period commenced in early 2010, and continued until his parents reconciled towards the end of 2010. His mother's health was deteriorating over May - July in that year during which time she was first admitted to hospital. By the time of sentencing these circumstances had stabilised.

38 Having mentioned the breach of the suspended sentence imposed by Magistrate Hay and noting that the respondent appeared for sentence on two matters of "real seriousness", her Honour continued and made remarks relevant to ground 1:

" ... it was a situation where the same pattern's replaying itself, you had too much to drink. Probably through you having your girlfriend's best interests at heart you were trying to get her out, but then due to very poor judgement because you'd been drinking too much you then persisted to hold her, you caused a confrontation between the security officers and ended up, again making a bad decision, to hit one of them. It was clearly seen on the video tape, it was something that ... that officer shouldn't have been subject to. I accept on your behalf that in the subsequent skirmish you were subject to some retaliation, I accept that for the purpose of this sentence, but that incident really again was initiated by you, as I imagine that several of the other matters on your record are.

Now you've really come to crunch time, I think, in terms of where your life goes now ... if you don't stop this pattern you will end up spending long periods of time in custody. Now you haven't yet, you might have been a bit lucky in the past, but there is so much going for you in your life that it would be a shame if you didn't make really substantial efforts to try to overcome that one weakness. Now it could ruin your life, you could lose your girlfriend, you could - you've already lost a fair proportion of your work through these incidents and one day you could end up killing someone, one punch is all it takes and you know that. So there are things in your makeup obviously which means that alcohol in large quantities doesn't agree with you, so just don't go there again, have a drink but just control it.

... all the material in the report I must say is very positive in terms - and the material that your counsel has put to the Court, it shows that in situations that don't involve you being out and seemingly having to impress people or be aggressive towards them you are a responsible, intelligent person who people respect and you function pretty well. It would be a shame I think not just for you but for the community not - for you to have to spend large periods of time locked up, and you're not going to today. Probably your last chance, I would have thought ..."

The magistrate then went on to make the sentencing orders, including a suspended term of imprisonment, set out above.

39 It is apparent from the magistrate's remarks upon passing sentence for the Syrup Nightclub offences that she regarded the respondent's conduct in a serious light. She conveyed that in clear and unambiguous terms to the respondent. Her Honour also made it plain that the respondent was on the brink of an actual gaol sentence, describing the sentence as his "last chance". Reinforcing that message was the nature of the sentence. The sentence revealed that the magistrate considered the conduct warranted a custodial sentence of some length. The other components of the sentence, a community service order of 98 hours and a probation order, further reinforced the seriousness of the respondent's position.

40 I note the submissions on behalf of the Crown with regard to the importance of general deterrence in relation to assaults upon police officers (Attorney-General (Tas) v Knight [2003] TASSC 77, at par[13]). It does not appear from the sentence that this consideration was overlooked.

41 It is also clear from the sentencing remarks that the magistrate was conscious that although the assault of the security officer did not result in a lasting injury, there was the potential for significant injury. It was pointed out by the magistrate that conduct involving punches to the head must be treated seriously. Her Honour stated "one day you could end up killing someone, one punch is all it takes and you know that".

42 While the magistrate described the incident as of "real seriousness", I accept Mr Stevens' submission that it was the situation that the respondent was in, having had previous opportunities extended to him by the courts, more so than the nature of the offences themselves that gave rise to the description of "seriousness". The Syrup Nightclub offences and the offences of assault in particular, when compared with other cases, did not fall into the inherently serious category. Further, they were not attendant with factors that would aggravate the seriousness of the offending such that of its nature the offending demanded an actual term of imprisonment.

43 This was not a case of a defendant out looking for trouble or spoiling for a fight. I have had the benefit of watching the CCTV footage and it is apparent that the respondent did not readily resort to violence. The assault of the security officer occurred after a prolonged altercation between the respondent and the complainant and after the situation had been heated for some time. The magistrate found that only one punch made contact.

44 The factual circumstances in Broadby (supra) are quite different and it is not necessary or helpful to point out the material differences in detail. The nature of the offending is entirely different and not of the same degree of seriousness as the acts of violence in Broadby. It is acknowledged that like two of the offenders in Broadby, the respondent had prior convictions for violence and had been extended leniency in the past by the courts.

45 The respondent's prior offences of violence, which gave rise to the suspended sentences, were not committed close in time to the offending in July 2010. The offences were committed in June and July 2008, approximately two years beforehand, and there had been no offending in the interim. Borrowing words from Evans J in Broadby, the respondent's conduct does not indicate that he had taken the court's leniency for granted.

46 The magistrate regarded the respondent as having prospects of reform, notwithstanding his prior history and considered him worthy of a sentence that would avoid the punitive effects of an immediately effective gaol sentence. Her Honour had quite a deal of material before her to support a view that he had sound prospects of reform. Indeed, that view is not challenged. There is considerable support for it in the pre-sentence reports noting factors such as that the respondent was maturing, was motivated not to re-offend and had good supports in place to assist in his reform.

47 While the sentence was merciful it was also a stern and comprehensive sanction. The period of four months' imprisonment was a substantive length. The suspended gaol term was combined with a community service order and a probation order. The community service order of 98 hours had to be undertaken in addition to another community service order that was outstanding of 56 hours. Under the sentencing order the respondent would experience regular and tangible reminders of his wrong-doing and the jeopardy he was in.

48 Furthermore, the respondent could have been in no doubt from the nature of the sentence and the comments made to him that he was on the brink of an actual gaol sentence and he was being given a critical opportunity, contingent on his good behaviour. The court clearly expressed an intolerance for any further offending and also any failure on his part in terms of his obligations under the order. There is no reason to doubt the learned magistrate's assessment that for the respondent this sentence ought to have a deterrent effect. I am satisfied that the learned magistrate did not err in the exercise of her sentencing discretion.

49 A sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility for sentencing belonged to it (Kirby J in Dinsdale v R [2000] HCA 54; [2000] 202 CLR 321, at 339). The application ought only succeed if the prosecution has demonstrated clear error: Whittle v McIntyre [1967] Tas SR (NC 6) 263, Visser v Smart [1998] TASSC 151 at 5.

50 It is to be noted that as a Crown appeal special considerations apply. It is well settled that Crown appeals are less readily allowed than defence appeals against sentence. The principles apply to prosecution appeals against sentences imposed by magistrates (Hrasky v Boyd [2000] TASSC 39 at 27 and Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150, Visser v Smart (supra).

51 There have been recent substantive legislative inroads made to these principles, Criminal Code, s402(4A), affecting appeals to the Court of Criminal Appeal against sentences imposed by judges of this Court at first instance. For a summary of the principles as they applied before the amendment and an analysis of the effect of the amendments see DPP v Chatters (2011) TASCCA 8.

52 There has been no like amendment to the Justices Act 1959 affecting motions to review.

53 As previously held by this Court, the principles regarding Crown appeals apply to motions to review. As a consequence, such appeals are only to succeed in rare circumstances and there is a higher threshold test for error. Further, it is established that in the event of a successful appeal, lenient substituted sentences are imposed towards the lower end of the range of available sentences reflecting the situation of double jeopardy that the offender has been placed in by virtue of the appeal (Dinsdale v R (supra) at 62). Having noted these principles and that they have general application to motions to review, it has not been necessary to resort to them in this case. The sentence was within the exercise of the magistrate's sentencing discretion.

54 I am not persuaded that the magistrate's sentence was manifestly inadequate. Error has not been demonstrated and ground 1 of the notice to review fails.

"In respect of applications brought regarding complaints 11580/08 and 12744/08 the learned magistrate erred in law in that she

b failed to apply s27(4b) of the Sentencing Act 1997; ..."

56 The complaints mentioned are the two applications for breach proceedings. It is evident from the submissions that the particular section relied on is s27(4B) and not s27(4b). Section 27(4B) provides:

"(4B) If, on the hearing of an application under this section, the court is satisfied that the offender has been found guilty of a new offence, the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it."

It was submitted for the Crown that the section applied contrary to the learned magistrate's view. The judgment of Evans J in State of Tasmania v Thorpe [2011] TASSC 18 was relied upon.

57 The judgment in State of Tasmania v Thorpe (supra) considered whether the amendments to the Sentencing Act which came into force on 1 January 2011 applied to suspended sentences imposed prior to that date. The judgment of Evans J held that the proceedings for breach are to be conducted in accordance with the practice and procedure prevailing at the time of the hearing. Accordingly, in this case the application to activate the suspended terms of imprisonment imposed on the respondent is to be dealt with in accordance with the provisions of the Sentencing Act, s27, as currently in force.

58 The decision of Thorpe was delivered a few weeks after the sentencing orders under review. The magistrate did not have the benefit of the judgment in Thorpe at the time she heard the applications under s27. The new section was drawn to her attention after she had re-suspended the sentence regarding Magistrate Hay's sentence on 22 March 2011, and the prosecutor requested that the magistrate provide reasons in accordance with s27(4D) which provides:

"(4D) If the court decides not to exercise the power referred to in subsection (4B) it must state the reasons for so deciding."

59 It is evident from the magistrate's remarks, that while she held "some doubt" about whether the new section applied, and thus, whether she was bound to provide reasons as requested, she proceeded on the basis that it did apply. Indeed, her Honour gave reasons as requested. The magistrate noted that even if the amendments did not apply, an application regarding breach of a suspended sentence involved a presumption that it "should be served as a prima facie starting point".

60 On 24 March 2011, when the magistrate considered the application regarding breach of the suspended sentence imposed by Magistrate Daly, the magistrate made remarks regarding her approach to the application and stated that she was conscious that the "presumption should be that a sentence is to be served upon breach". She went on to express the view that the "presumption can be displaced by judicial discretion".

61 It appears that the approach taken by the magistrate with respect to both applications conforms, in a practical sense, with the approach stipulated in s27.

62 For the sake of completeness, it is noted that the magistrate made remarks on 24 March 2011, regarding the amendments and the effect of them in the event that the respondent breached his suspended sentence in the future. She noted that "any unrelated offence ... committed within the period of suspension will, on the terms of the new legislation, activate the sentence". In fact, these comments overstate the situation and suggest that in the event of a breach of the suspended sentence the sentences are activated and there is no residual discretion. These remarks may have been made as emphasis, supplementing other comments regarding the importance of the respondent abiding by his conditions. These remarks are not to be attributed to the approach taken by the magistrate with regard to the applications before her Honour and she considered she had more latitude than revealed by those remarks. Reference to these remarks does not assist in understanding the magistrate's approach to the applications before her Honour.

63 It has not been shown by the Crown that the approach taken by the magistrate did not conform with the approach in s27 and this ground of appeal fails.

64 Ground 3 is couched in alternative terms, as follows:

"3 The learned Magistrate erred in law in concluding that the effect of the orders she made in respect of the respondent was that he would be subject to a term of suspended imprisonment for seven months;

IN THE ALTERNATIVE TO GROUND 3: The learned Magistrate erred in law in failing to recognise that the terms of suspended imprisonment she imposed would be served concurrently rather than cumulatively."

65 It was submitted that the practical effect of the magistrate's sentencing orders for the Syrup Nightclub assaults and the sentencing order she made with regard to Magistrate Hay's sentence, was that they would apply concurrently. This meant that in the event of the two sentences being activated by a future court order the respondent would serve four months instead of seven months.

66 The Sentencing Act, s15, provides:

"15 Custodial sentence: whether concurrent or cumulative

(1) Except as provided in this section, an offender who is sentenced to a term of imprisonment must serve the sentence concurrently with any uncompleted sentence of imprisonment or detention period that the offender is then serving or liable to serve unless the court imposing the sentence directs otherwise."

67 Section 15 applies "unless the court imposing the sentence directs otherwise". It is evident that the magistrate did direct otherwise. As soon as she pronounced the sentence of four months suspended imprisonment for the Syrup Nightclub assaults she stated, "That means there's seven months imprisonment hanging over your head for eighteen months on those conditions". In reiterating the orders the magistrate stated again "that's the orders, Mr Brown. There's seven months in total prison sentence suspended for eighteen months ...". Clearly, the magistrate was directing that the sentences were to be cumulative in effect. If there was any question about the effect of the orders it was then put beyond doubt. There is no merit in this ground of appeal and it fails.

Ground 2(a) manifest inadequacy and Ground 4 "unjust" to activate the terms of suspended imprisonment

68 It is convenient to consider ground 2(a) and ground 4 together:

"2 In respect of applications brought regarding complaints 11580/08 and 12744/08 the learned Magistrate erred in law in that she

1. imposed sentences which were manifestly inadequate in all the circumstances; and

1. The learned Magistrate erred in fact and or in law in concluding it would be unjust within the meaning of section 27(4B) of the Sentencing Act 1997 to activate the terms of suspended imprisonment in respect of complaints 11580/08 and 12744/08."

69 Both grounds relate to the applications for breach of the suspended sentences and the course taken by the magistrate in not activating the sentences.

70 The magistrate concluded that within the terms of the Sentencing Act, s27(4C), it would be unjust to activate the suspended terms of imprisonment and order the respondent to serve them. The terms of s27(4C) need to be read with s27(4B). Section 27(4B) is set out at par[56]. Section 27(4C) provides:

"(4C) If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead -

(a) activate part of the sentence that is held in suspense and order the offender to serve it; or

(b) order that a sentence (in this section called the 'substituted sentence') take effect in place of the suspended sentence; or

(c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or

(d) make no order in respect of the suspended sentence."

71 The submissions for the Crown were that it was not established before the magistrate that it was "unjust" to activate the periods of imprisonment.

The magistrate's reasons for not activating the suspended sentence, charges relating to the Kitto family

72 The learned magistrate gave reasons for not activating the suspended sentence imposed by Magistrate Hay. She commenced by referring to the fact that at the time that Magistrate Hay sentenced the respondent, his record showed a prior conviction for assault and the imposition of a suspended sentence. This may have led to a longer head sentence being imposed by Magistrate Hay than would otherwise have been the case noting that that conviction and sentence was later set aside.

73 The magistrate went on to refer to various circumstances, including that the respondent had not re-offended since the Syrup Nightclub offences, a period from July 2010 to March 2011; he had complied with strict bail conductions; he was willing to deal with issues leading to past behaviour; his devotion to his girlfriend and her positive influence, and that his parents were now in a stable situation, which was not the case through out a lengthy period in 2010.

74 The magistrate made comments which are of key importance in understanding the conclusion she reached. Her Honour stated:

"Rehabilitation is not the only factor in sentencing but it is a very important factor and I am strongly of the view, perhaps - and I wouldn't have been of this view a year ago, but I am now of the view that you are well on your way to rehabilitation and you have shown some very good motivation towards that and towards the aim of never coming back to court on this type of serious offending."

"So taking into account the circumstances of the offending and all of those matters relating to your rehabilitation and considering the sentence as a whole, being the fact that I've imposed another four months suspended sentence together with a probation order which promotes your rehabilitation together with ninety eight hours of community service orders in my view it is not only in your interests to not serve an immediate term, but it serves the interests of the community in terms of having you functioning as a law abiding citizen. In my view also the lengthy nature of the total of the suspended sentence, being seven months, plus the active components of the sentence, being the probation order and the community service order which will reinforce to you as you are doing them, the fact that - the reasons why you're doing them are also orders which serve the purposes of general deterrence. They're the reasons why in my view, despite the presumption that the three months in ordinary circumstances should be served, why it is in my view not just to activate that sentence."

75 The order made by the magistrate was to re-suspend the period of three months' imprisonment for a period of eighteen months, firstly, on the condition that he be of good behaviour and commit no offences involving violence, and secondly, that he obey the conditions of any current probation order.

The magistrate's reasons for not activating the suspended sentence for the Casino assault

76 The magistrate gave reasons for not activating the suspended sentence imposed by Magistrate Daly. Her Honour commenced those reasons again, by noting that the respondent's antecedents were less serious than they appeared to Magistrate Daly, in that one of the matters on his record was subsequently overturned on appeal.

77 The magistrate then made reference to the detailed reasons she had given for the offences arising from the Syrup Nightclub incident, and also reference to the way she had structured the sentence for those offences and her expectations about enforcement of the conditions and the reasons she had given for not sending the respondent to prison:

"I've already given detailed reasons for imposing the sentencing regime upon the defendant, the suspended sentence, combined with a large amount of community service orders and a period of intensely monitored probation. I've taken the view that principles of general deterrence, punishment, denunciation are served and will be served by a seven month suspended gaol sentence that will not only be activated upon the slightest breach, but also in the event that the defendant does not perform any single condition of his community service work or any single condition of his probation order. Indeed, the Court would expect any such breach to be lodged and the sentence activated in that circumstances. The amendments to the Sentencing Act since January this year in my view are far stricter and allow far less latitude for defendants, the subject of the suspended sentence, than they did before. Any unrelated offence committed within the period of suspension will, on the terms of the new legislation, activate the sentence. The Court continues to be conscious of the need for strong sentences for persons committing violent offences. There's always a point where such offences will demand immediate incarceration. In the Court's view given the comments I have made about the defendant's rehabilitation and continued prospects for rehabilitation into a completely law-abiding citizen, a sentence that will see him actually in gaol or will see him in gaol for seven months upon any breach, that will see him putting his considerable work skills into the community for many months, and that will force him to work intensively with a probation officer in relation to Anger Management courses for twelve months, will serve all relevant sentencing principles including the principle of general deterrence. It's realized or yes, I think it is realized by the judiciary that there is a discrepancy between the judiciary's view of a suspended sentence and in some circles the community's view of a suspended sentence."

78 Her Honour then went on to refer to the judgment of Evans J in Broadby and community perceptions about suspended sentences. Having referred to that judgment in some detail her Honour noted that the Casino assault occurred in a similar period of time as the offences involving members of the Kitto family. Her Honour then commented:

"I've made comments that the sentence I have imposed will allow very little latitude for Mr Brown to behave that way before being incarcerated for a significant period of time, and it will allow him to put a large amount of effort into his own rehabilitation and into work for the community. I am conscious that this sentence, that the presumption should be that a sentence is to be served upon a breach. In my view the - that presumption can be displaced by judicial discretion and that discretion should, in my view, be exercised given the approach that the Court was - is taking in respect of the sentencing regime applicable to Mr Brown. The Court has formed the view overall that it would not serve Mr Brown or the community to have him at this stage although - at this stage being incarcerated when he should have, I think, one last chance to rehabilitate and to show the community, and his victims of course, that he can become a valuable citizen. There are very good prospects that he will. In my view, the fact that a very short period of incarceration will do very little to achieve aims of general deterrence or punishment and yet may do a lot in my view to hinder the effects of the sentence that the Court is trying to achieve."

79 The magistrate concluded that an appropriate outcome was to re-suspend the sentence but to require the respondent to perform more hours of community service to "reinforce appropriate sentencing principles". The sentence of 28 days was re-suspended for a period of 18 months. The conditions of suspension were altered: the respondent was subject to a condition that he perform all outstanding community service orders that he is required to perform, he abide by the conditions of any current probation order, and that he commit no offences of violence within the period of suspension. Further, the magistrate imposed 49 hours of community service. That number of hours was additional to 98 hours (imposed for the Syrup Nightclub offences) and it was noted that, through an administrative error, there was also an order of 56 hours outstanding.

80 A preliminary point has arisen as to whether the learned magistrate made an order varying the conditions on which the execution of the sentence was suspended, or whether the order amounted to a substituted sentence. The distinction is drawn in the Sentencing Act, s27(4C)(b) and (c):

"(4C) If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead -

(b) order that a sentence (in this section called the 'substituted sentence') take effect in place of the suspended sentence; or

(c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or ... "

81 If the order merely varies conditions then the execution of the sentence may only be suspended for 12 months from the date of the new offence. If the sentence is a substituted sentence then the Court's discretion is not confined.

82 Written submissions were received on this point. I consider that the order made regarding Magistrate Hay's sentence is a variation of conditions. The variation is the new period of suspension commencing on 22 February 2011, and a new condition regarding compliance with any probation orders in place. By extending the period of suspension for 18 months the magistrate exceeded the period limited by the section. This order requires amendment to so that it conforms with s27(4C)(c).

83 In relation to the order made regarding Magistrate Daly's sentence, the order was to re-suspend the sentence of 28 days' imprisonment for 18 months, with new conditions that the respondent is to perform all community service orders he is required to perform, and that he abides by the conditions of any current probation order. Additionally, the respondent was ordered to perform 49 hours of community service. It is not immediately clear from the sentencing comments whether the new community service order of 49 hours is a condition of suspension, or a separate sentencing order. Potentially that issue has relevance to the question of whether Magistrate McTaggart's order is to be regarded as a substituted sentence or an order re-suspending the former order on new conditions. However, the issue does not need to be resolved. It is submitted for the Crown that the magistrate's order should be regarded as a substituted sentence. The order may be reasonably interpreted in that way. I proceed on that basis noting that this is an application for review brought by the Crown and there is no error alleged or demonstrated in this regard.

84 The applications for the sentences to be activated are made under the Sentencing Act, s27. The section is invoked if the court is satisfied that the offender has been found guilty of an offence committed during the period an order suspending a sentence of imprisonment is in force. Sections 27(4B) and 27(4C) govern the consequences of such applications. Section 27(4B) is expressed in mandatory terms that the court "must" activate the sentence of imprisonment that is held in suspense and order the offender to serve it. The only exception to that requirement is if s(4C) applies and the order would be "unjust".

85 Sub-section (4C) sets out the options that the court has if an order under s(4B) would be unjust:

"(4C) If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead -

(a) activate part of the sentence that is held in suspense and order the offender to serve it; or

(b) order that a sentence (in this section called the 'substituted sentence') take effect in place of the suspended sentence; or

(c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or

(d) make no order in respect of the suspended sentence."

86 This provision was inserted by amendment (number 76 of 2009) commencing on 1 January 2011. Other amendments facilitated breach proceedings, allowed for the inclusion of community service and supervision as conditions of suspended sentences, and introduced a mandatory set of conditions for all suspended sentences. The overall effect of the amendments was to make suspended sentences a heavier sanction than they had been before the changes were introduced.

87 The new provisions mean that there is a presumption that the suspended sentence will be activated. Moreover, if the court is not of the opinion that an order would be unjust then there is no discretion to be exercised and the sentence must be imposed.

88 The question for the sentencing magistrate was whether an order requiring the sentence to be served would be "unjust". As to what is unjust and what factors might give rise to such an opinion is left to the court to determine. Parliament has not sought to constrain the court's consideration of this question by reference to a list of criteria or by confining, in any way, the category of cases that may qualify as unjust. There are no words of limitation upon the exception of unjust (cf Sentencing Act 1991 (Vic), s31(5A), which has the same exception of unjust but with the qualification of "exceptional circumstances"). The question is to be answered by reference to the circumstances of each case and the court's assessment of the weight to be given to those circumstances.

89 The Second Reading Speech supports what is clear from the ordinary meaning of the provision (Acts Interpretation Ac 1931, s8B) that the use of the word "unjust" is deliberately non-prescriptive. Parliament has eschewed any words that would have the effect of requiring the courts to impose suspended sentences when it was unjust to do so.

90 Before the amendment to the Sentencing Act, s27 came into effect, the section provided simply that the court "may" impose one of the following orders: that the sentence take effect; a substituted sentence; or a variation of the conditions of the suspended sentence. The approach of the Tasmanian courts before the recent amendment was that offenders faced the prospect of serving their sentences in the event that they re-offended during the period of suspension: Attorney-General (Tas) v Blackler (2001) 121 A Crim R 465 at 470 par[15] per Crawford J (as he then was) and Slicer J. This has been the situation for a long time: see Greaves v Smith [1986] Tas R 120 regarding an earlier provision relating to breach proceedings. The approach has been that generally speaking if an offender has been given a chance in the form of a suspended sentence and he or she re-offends and wastes that opportunity, then the suspended sentence should be activated. No doubt there always has been a consciousness that if the court's response is not reasonably predictable the sanction of suspended sentences is undermined. The magistrate in this case, commenting upon a presumption in favour of serving the sentence, was alert to this mind-set.

91 By the amendment to the Sentencing Act, s27, Parliament has sought to harden the court's approach by enshrining in statute a policy that generally, suspended sentences are to be served in the event of a breach by an offender. The only exception is if it would be unjust to activate the sentence. The reasons driving the amendment are undoubtedly those imperatives that have been recognised by courts in Tasmania and other jurisdictions. In R v Buckman (1988) 47 SASR 303, King CJ spoke about the legislative policy in the South Australian legislation. Even though the legislation in South Australia was in different terms the discussion about the legislative policy identifies the considerations underpinning our new provisions:

"There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance.

Parliament has recognised, however, that in some cases the rigorous application of the ordinary consequences of breach can be oppressive and even unjust."

92 In R v Marston (1993) 60 SASR 320, King CJ referred to what he had said in Buckman, quoted above, and went on to note:

"It is of great importance that the courts adhere to that principle. Departure from it by the non-revocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.

Nevertheless, as Buckman's case (supra) clearly recognises, and as, indeed, the section recognises, there are circumstances in which it is proper to refrain from revoking the suspension of the sentence."

See also R v Moylan [1970] 1 QB 143 at 146 - 147.

93 In considering whether an order would be unjust, and whether an individual case should be regarded as an exception to the general approach, it is helpful to bear in mind remarks made by Neasey J in Greaves v Smith (supra) at 7, when considering an earlier provision regarding breaches of suspended sentences under the Justices Act 1959, s74C. These general remarks about the approach to be taken still hold true under the new regime:

"The powers which thereupon arise in the court relate to the subject of punishment for the original offence. The scheme set up under s.74C requires the court when the breach has been proved to consider the question of penalty for the original offence, in the light of the circumstances of that offence and of the offender, of the sentence then imposed, and in the light of all relevant matters which have occurred since. Such relevant matters usually include the nature of the breach and the gravity of it, but only as matters incidental to the overall question of penalty for the original offence. The objective of the suspended sentence option is reformative as well as penal, and the matters which need to be weighed when breach of suspended sentence has been proved require a careful exercise of judgment."

94 Ultimately, the question of whether it would be unjust to activate a suspended sentence will depend on an evaluation of the individual circumstances of each case. In assessing this question of whether it would be unjust to activate the sentence "the objective of the suspended sentence option as reformative as well as penal" is to be borne in mind. Thus, relevant factors may include those that indicate the progress made by an offender in relation to his rehabilitation. Some of the factors mentioned in the judgments in Buckman and Marston are indicative of this consideration: disproportion between the original offence and the breaching offence or offences; whether the nature of the offence suggested that the offender has lapsed into a non-law-abiding way of life; and the question of whether the offender had reverted to criminal conduct comparable to the offence for which the suspended sentence was imposed. Allied to this consideration were matters referred to in Buckman that the offender was making a genuine attempt at rehabilitation and that there had been an observance of the conditions of the suspended sentence for 18 months. In summary, relevant to the reformative aspect of the suspended sentence option is whether the suspended sentence is having its desired effect in terms of rehabilitation of the offender. See also Stanitzki v Higgins [1994] SASC 4600; (1994) 63 SASR 309.

95 I have considered cases from other jurisdictions with similar legislative provisions incorporating a test of "unjust". There has been judicial consideration of provisions in Queensland and Victoria that used the terms "unjust to do so in view of all the circumstances that have arisen since the suspended imprisonment was imposed". Relevant considerations that were canvassed included the offender's attempts at rehabilitation, the seriousness of the offences giving rise to the breach, whether those offences are similar in character to that which gave rise to the suspended sentence, and the time lapse from the imposition of the suspended sentence to when the offences were committed: R v Bowen [1996] QCA 479; [1997] 2 Qd R 379, R v Holcroft [1996] QCA 478; [1997] 2 Qd R 392, R v Holley, ex parte Attorney-General [1996] QCA 480; [1997] 2 Qd R 407, DPP v Newman [1998] 1 VR 715.

96 It must be emphasised that the weight to be given to factors that weigh in an offender's favour such as considerations indicative of an individual's reform will vary from case to case depending upon the circumstances. As noted by Neasey J in Greaves v Smith the "matters that need to be weighed when breach of suspended sentence has been proved require a careful exercise of judgment". Even if a consideration is deserving of significant weight does not mean that it will be determinative. The penal nature of the suspended sentence must be given weight, ordinarily a suspended sentence is meant to operate as a last chance and there are sound reasons in principle for activating the sanction in the event the person breaches it. See R v Moylan (supra) at 146 - 147. As stated by Callaway JA in DPP v Newman, at 718, it is a case of balancing the factors to which King CJ referred (which are set out in the passages quoted above) against the circumstances of the individual offender and the court's desire, as in all cases, not to take a more severe course than is warranted by all the relevant considerations, including the public interest. It is necessary to keep foremost in mind the statutory imperative that the sentence be activated unless that consequence would be unjust.

97 The learned magistrate correctly approached the matter on the basis that the starting point was that the sentence ought to be activated. The determination that the sentences should be re-suspended was based on the view that to do otherwise would be unjust. The questions arising from this notice to review and canvassed in the submissions are not about the approach taken by the magistrate, but the outcome reached and whether it was open to the magistrate to conclude that it would be "unjust" to activate the sentences.

98 The submissions for the Crown were that it was not established before the learned magistrate that it was "unjust" to activate the periods of suspended imprisonment including:

"a The need for deterrence, denunciation and an acknowledgement of the seriousness of both the breaches;

b The offences giving rise to breaches were not trivial[1];

1. the learned Magistrate, respectfully, placed too much emphasis on the respondent's prospects of rehabilitation."

99 The submissions for the defence referred to the conclusion reached by the magistrate that a proper sentence for the Syrup Nightclub offences was a sentence which denounced the conduct, yet promoted rehabilitation, and that a suspended sentence combined with the other orders that were made achieved that purpose. It was submitted that a factor properly affecting the magistrate's evaluation of whether it would be unjust to activate the suspended terms of imprisonment was that if that order were to be made it would have the effect of defeating the purpose of the sentence for the Syrup Nightclub offences. It was submitted that there was a link between the two sentencing orders.

100 The defence also submitted that in light of the principles regarding Crown appeals and double jeopardy considerations mitigating against appellate intervention, there must be a very clear error to warrant such intervention. The defence relied upon the category of sentences which have been less readily overturned where the sentencing court has reached a conclusion that a merciful sentence was warranted: R v Osenkowski (1982) 30 SASR 212.

101 The submissions advanced by the Crown acknowledged the application of the principles regarding Crown appeals.

102 It is convenient to deal with ground 2(a) and the claim that the sentencing orders were manifestly inadequate in the context of the question of whether the magistrate erred in concluding that it would be unjust to require the sentences to be served. Arguably, this is the only way that manifest inadequacy could amount to error.

Crown appeals and s27(4)

103 Counsel have referred to the principles regarding Crown appeals and in their submissions have presupposed that they apply to reviews from orders made by magistrates under s27(4). These principles are referred to in the context of ground 1 and include the exceptional nature of Crown appeals such that very clear error must be shown and the court's reluctance to intervene. Crown counsel argued very clear error had been demonstrated. I have given consideration to the application of these principles particularly in light of the fact that the magistrate's sentencing role under s27(4) of the Sentencing Act is not at large, and is limited to an evaluation of whether it would be unjust to activate the sentence.

104 First, it is observed that regardless of the application of the principles regarding Crown appeals the power of this Court to intervene will only be engaged if there is clear error (see par[49] above). This is a general principle which applies to all appeals by the Crown or defendants from sentencing decisions. The principle of non-interference rests on the proposition that the imposition of a sentence involves the "exercise of judgment and evaluation upon which minds can differ" (see Kirby J in Dinsdale v R (supra) at 339). The role of deciding whether it would be "unjust" to activate a suspended sentence is a sentencing exercise upon which minds can differ involving judgment and evaluation. It is acknowledged and must be borne in mind that the judgment and evaluation to be exercised under s27(4) is confined and concerns the question of whether a sentencing outcome would be "unjust". On appeal the question is whether there was error in that evaluation. For an appeal to succeed it is necessary to identify an error that "justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts" (Kirby J in Dinsdale at 339 - 340, referring to the joint judgment of Dixon, Evatt and McTiernan JJ in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505). An inference that there has been a failure to exercise the power properly may be inferred if the result is manifestly unreasonable or plainly wrong: House v R (supra) at 505.

105 There is arguably logic in applying principles regarding Crown appeals to motions to review brought by the State relating to sentencing determinations made as a consequence of breach proceedings under s27(4). This kind of Crown appeal exposes respondents to a form of double jeopardy by reason of having "twice to face the prospect of sentencing and possible loss of liberty" (Hayes (1987) 29 A Crim R 452, per Kirby P at 469).

106 As it transpires, I have not needed to fully consider the question about the application of the principles regarding Crown appeals to breach proceedings under s27(4). It has not been necessary to determine whether the Crown is obliged to demonstrate "very clearly" an error by the magistrate. That is because even if the bar is lower, the same as for appeals by defendants, the Crown has not succeeded in this case. While a full consideration of the question has not proved necessary, there is one aspect of the principles spoken about in the context of Crown appeals which has application to this motion to review.

107 A matter that has a bearing on the preparedness of the appeal court to intervene is where a sentencing judge or magistrate has formed the reasonable view that a merciful sentence is warranted. In Osenkowski (supra) King CJ referred to the importance of not allowing prosecution appeals to circumscribe the sentencing discretion of judges.

"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

108 It follows inevitably from the very nature of the discretion enshrined in s27(4) that this Court would be reluctant to intervene in such cases. In R v Anderson (1987) 32 A Crim R 146, Kirby P at 151 stated:

"Above all, it should not ignore the legitimate scope of mercy where the sentencing judge's sympathies have been reasonably attracted by the particular circumstances involving the prisoner and his offence."

109 By the very terms of s27(4) and the exception of "unjust", Parliament has acknowledged the "legitimate scope of mercy". This does not detract from the statutory imperative that it is mandatory to activate the sentence, unless to do so would be unjust.

Was there error in concluding that it would be "unjust" to activate the sentences?

110 In this case, the magistrate took a merciful approach. I note that the respondent is a relatively young man and it has not been shown that the respondent's offending was entrenched or that he was not a suitable candidate for leniency. As part of the foundation for that approach was the magistrate's view that at the relevant time (March 2011) the respondent was "well on the way to rehabilitation". That assessment is not impugned and it is not suggested that such a conclusion was not reasonably open to the magistrate. The submission for the Crown is rather that too much emphasis was given to his rehabilitation. However, it has not been shown that the magistrate erred in giving prominence to this factor. There were positive signs for reform such as constructive family support, positive engagement with services such as community corrections, and motivation not to re-offend. The magistrate's assessment of the respondent's prospects was circumspect and not naively hopeful, and she noted that she may well have taken a different view if she had been sentencing him at an earlier time. There was a reasonable time gap from the date of the serious offending in 2008 and the Syrup Nightclub offences in 2010.

111 It can also be accurately observed that the prominence given to reform by Magistrate Hay and Magistrate Daly and their view that "leniency at that stage might lead to reform" (Osenkowski at 213) in the original sentences had not been shown to be misconceived.

112 It is also to be noted that the new offending in the form of the Syrup Nightclub offences was not of the same type of offending that had attracted the original suspended sentences. The original offending involved savage and unacceptable acts of gratuitous violence in two separate incidents. The new offending, some two years later, while unacceptable, and which showed a degree of lack of control, was not an instance of resorting to that same kind or level of violence.

113 A related matter not to be overlooked is "the particular advantages which the trial judge has" (per Kirby P in Anderson at 151). The magistrate had had the opportunity to gain some insight regarding the respondent as he had given evidence in the hearing involving the Syrup Nightclub offences. Defence counsel pointed out that at one stage during his evidence the respondent volunteered an apology for his abusive language to the female police officer. The magistrate was in a position to form a view about whether that appeared to be a genuine expression of remorse and, at least to some extent, in a position to form a view about matters such as his maturity and level of social responsibility.

114 Another significant factor in the magistrate's conclusion that it would be unjust to activate the suspended sentences of imprisonment was that it would have the consequence of undermining the effect of and purpose behind the sentence her Honour had imposed for the Syrup Nightclub offending. The conclusion reached by the magistrate that it was not in Mr Brown's interests or the community's interests to have him "incarcerated when he should have, ... one last chance to rehabilitate and to show the community ... that he can become a valuable citizen. There are very good prospects that he will.", and that a period of incarceration may "do a lot in my view to hinder the effects of the sentence that the Court is trying to achieve". The magistrate saw an immediate custodial sentence as threatening the respondent's rehabilitation. That view was open to the magistrate. I observe that it would not be in the community's interests that his progress in this regard be undermined or worse, that after exposure to corrupting influences in a prison environment he be set on a path of criminal behaviour.

115 If an order activating a suspended sentence would have the effect of counteracting a sentence that was imposed after careful consideration and which, in the judicial officer's view, met the justice of the case, that consequence is a relevant factor in determining whether the order would be unjust.

116 A related consideration is the structure of the sentencing orders made by the magistrate with regard to the Syrup Nightclub offences. Conditions of the suspension of the sentence of imprisonment were that the respondent was to comply with supervised probation and undertake community service. Structuring the sentence in this way meant that a failure to co-operate with the community service order or any direction made by his probation officer under the probation order would amount to a breach of a condition of his suspended sentence. The magistrate made it clear in her remarks that her expectation was that these conditions would be strictly enforced. She referred to the fact that she had imposed a "seven month suspended gaol sentence that would be activated upon the slightest breach, but also in the event that the defendant does not perform any single condition of his community service work or any single condition of his probation order. Indeed, the Court would expect any such breach to be lodged and the sentence activated in that circumstances." The structure of the sentencing order with the potential consequences identified by the magistrate was also a relevant consideration that the magistrate was permitted to take into account.

Conclusion regarding ground 2(a) and ground 4, "unjust"

117 In the circumstances of this case, bearing in mind all of the considerations that I have referred to, such as the magistrate's conclusion that the respondent was "well on the way to rehabilitation", the nature of the sentence imposed for the Syrup Nightclub offences, including the structure of the sentence and the onerous nature of the orders promoting the respondent's rehabilitation, and that the rationale for that sentence would be thwarted by an order activating the suspended sentences, it was reasonably open for the magistrate to conclude that to activate the original suspended sentences was unjust. By declining to activate the sentences, her Honour adopted a merciful approach seemingly well aware that the approach she was taking was exceptional.

118 Having reached this conclusion, and in light of the reasons set out above, there is no room in this case for any argument about manifest inadequacy of the sentencing orders. Ground 2 fails.

119 I am not persuaded that it has been shown that the magistrate erred in her conclusion that it would be "unjust" to activate the two suspended sentences. Aside from the correction referred to above at par[82], I will not interfere with the sentencing orders.

120 In closing, I wish to emphasise that the conclusion reached by the magistrate was not the only legitimate view available. Other judicial officers may have given less weight to the respondent's prospects of rehabilitation and concluded that it was not unjust to activate the suspended sentences. It is hoped that the respondent is fully aware that he has received the benefit of a carefully considered and compassionate sentence which has provided him with a critical opportunity to reform.

121 As can be seen from the above reasons, the motion to review has been largely unsuccessful and the substantive issues raised by the motion have been decided against the applicants. As noted at par[82], a correction is required to the sentencing order which varied the conditions of the suspended sentence of imprisonment imposed by Magistrate Hay. By extending the period of suspension for 18 months, the magistrate exceeded the period of 12 months stipulated in the Sentencing Act, s27(4C)(c). Consequently, it is ordered that in relation to the sentencing order made on 22 March 2011, pursuant to s27(4C), on complaint 11580/08, the conditions on which the execution of the sentence of imprisonment were suspended are varied by deleting the reference to 18 months as the period of good behaviour, and substituting "until 11 February 2012", being 12 months after the day the respondent was found guilty of the new offences. The motion to review is allowed in this limited regard. To the extent that the motion has not been finalised by this order, it is dismissed.

[1] R v Buckman (1988) 47 SASR 303; R v Marston (1993) 60 SASR 320.