R v SAUNDERS [2017] SASCFC 21 (22 March 2017)

Last Updated: 28 March 2017

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

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R v SAUNDERS

[2017] SASCFC 21

Reasons for Decision of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)

22 March 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH

Appeal against sentence. In 2015, the appellant was dealt with for the offences of criminal trespass in a place of residence and damage property committed on 29 July 2013 by way of entry into a bond to be of good behaviour. One of the conditions of that bond was that the appellant would be called up for sentence for the offences in the event he were to breach the bond. The appellant subsequently committed a number of breaches which were admitted. The appellant was sentenced to a term of imprisonment of 16 months for the offence of criminal trespass in a place of residence and six weeks for the offence of damage property, which was to be served wholly concurrently with the sentence for the criminal trespass offence. The Judge imposed a non-parole period of 10 months backdated to commence on 7 September 2016.

Following the close of submissions on sentence, but prior to date listed for the sentencing of the appellant, the appellant’s counsel contacted the Judge’s Chambers and requested the opportunity to make further submissions on the appropriateness of a home detention order as the appellant’s circumstances had changed. It was communicated to the appellant’s counsel that, while the Judge was not presently minded that it would be an appropriate option in the circumstances, submissions with respect to home detention could be made on the date listed for sentencing. On the date of sentencing, the Judge proceeded to sentence without hearing further submissions from the parties.

Whether the Judge erred in failing to afford the appellant the opportunity to make submissions on the issue of whether a home detention order report should be ordered when the Judge considered immediate imprisonment was the appropriate penalty; whether the Judge erred in failing to give reasons for not ordering a home detention order report; whether the Judge failed to adequately consider that the term of imprisonment should have been suspended; whether the Judge failed to provide reasons in failing to suspend the sentence.

Held per Nicholson J (Kourakis CJ and Parker J agreeing):

1. Appeal allowed; the Judge erred by proceeding to sentence without hearing from the parties on the issue of home detention.

2. District Court sentence set aside.

3. The appellant to be resentenced for the criminal trespass offence to imprisonment for a period of 11 months and one week, backdated to commence on 7 September 2016.

4. The appellant is to serve six months of the sentence in order 3 with the balance of five months and one week to be suspended upon his entering into a bond to be of good behaviour with conditions to take effect upon his release from custody:

5. For the offence of damage property, the appellant is to be resentenced to four weeks imprisonment to be served wholly concurrently with the sentence for the criminal trespass.

Criminal Law (Sentencing) Act 1988 (SA) s10C, s 33BB, s 32, s 38, referred to.

R v Wheeler [2015] SASCFC 83; House v The King [1936] HCA 40; (1936) 55 CLR 499; Allesch v Maunz [2001] HCA 40, considered.

R v SAUNDERS

[2017] SASCFC 21

Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ

KOURAKIS CJ.

This is an appeal against sentence imposed in the District Court. On 2 March 2017 the Court made the orders appearing in [4] of the judgment of Nicholson J.
I joined in those orders for the reasons given by Nicholson J.

NICHOLSON J.

Introduction

On 8 November 2016, Jason Edward Saunders (the appellant) was sentenced in the District Court to a term of imprisonment for 16 months with a non-parole period of ten months backdated to commence 7 September 2016, as a consequence of having admitted breaching a bond to be of good behaviour. A single Judge of this Court granted the appellant permission to appeal on four grounds. On 2 March 2017, at the conclusion of the appeal hearing, the Court made orders allowing the appeal, setting aside the District Court sentence and by way of resentencing the appellant.
The orders made were to the following effect.
1. Appeal allowed.
2. District Court sentence set aside.
3. The appellant to be resentenced for the criminal trespass offence to imprisonment for a period of 11 months and one week, backdated to commence on 7 September 2016.
4. The appellant is to serve six months of the sentence in order 3 with the balance of five months and one week to be suspended upon his entering into a bond to be of good behaviour on the following terms and conditions to take effect upon his release from custody:

(i) that the bond will be for a period of 18 months;

(ii) that the appellant be of good behaviour and comply with all the conditions of the bond and not commit any offence during the period of the bond;

(iii) that the appellant not possess a firearm or ammunition or any part of a firearm;

(iv) that the appellant submit to tests including tests without notice for gunshot residue as may be reasonably required;

(v) that the appellant be under the supervision of a community corrections officer and obey the lawful directions given by that community corrections officer for the period of the bond;

(vi) that the appellant supply a guarantor, namely [his Aunt] to guarantee the bond; the guarantee to be in the amount of $100;

(vii) that within seven days of the appellant’s release he attend at the Port Lincoln Aboriginal Health Service at 19A Oxford Terrace, Port Lincoln and participate in the Social and Emotional Wellbeing Program at that service and any other projects or programs recommended for his wellbeing and rehabilitation by that service during the term of his bond;

(viii) that the appellant report within two working days of having signed the bond at the offices of the Department of Correctional Services at 85 Tasman Terrace, Port Lincoln, phone: 8683 0266;

(ix) that the appellant reside at [the nominated address] during the period of the bond or at such other address as may be approved by his guarantor and the community corrections officer assigned to him; and

(x) that the bond will be in the sum of $100.

For the offence of damage property, the appellant is to be resentenced to four weeks imprisonment to be served wholly concurrently with the sentence for the criminal trespass.
These are my reasons for joining in the orders of the Court.

Background

The appellant initially came up for sentence before a different Judge of the District Court on 11 August 2015 for the offences of criminal trespass in a place of residence^[1] and damage property,^[2] both of which were committed on 29 July 2013. On that occasion, the Judge placed the appellant on a bond to be of good behaviour, a condition of which was that he would be called up for sentence if he breached the bond.
The appellant admitted a number of breaches of the bond. The breaches comprised five breaches of a bail agreement, involving failures to report to Community Corrections, to comply with a curfew condition as required by the terms of the bail agreement and to attend for supervision. He also tested positively for the presence of cannabis.
On 20 May 2016, the appellant failed to attend court in order to respond to the breach proceedings and a warrant for his arrest was issued. The appellant appeared ex-custody on 23 May 2016. The appellant was remanded for a bail hearing the following day, on 24 May 2016. At the bail hearing, the appellant admitted to the breaches of the bond, was granted bail and a date was fixed for submissions. Reports were ordered to assist with sentencing. However, the appellant again failed to attend court on the day listed for sentencing submissions, 24 June 2016. Bail was revoked and another warrant issued.
On 29 July 2016, the appellant appeared on a bench warrant before the sentencing Judge. No application for bail was made and the breach proceedings were adjourned for submissions. On 8 September 2016, an amended application for enforcement of a breach of bond was filed by the prosecution which embraced the breaches earlier identified. On 15 September 2016, sentencing submissions proceeded and the matter was adjourned to 8 November 2016 for sentence.
On 8 November 2016, the sentencing Judge revoked the bond and imposed sentences for the underlying offences. For the offence of criminal trespass in a place of residence, the maximum penalty for which is three years imprisonment, the Judge imposed a sentence of imprisonment for 16 months, reduced from a starting point of 20 months on account of the plea of guilty.^[3] For the offence of property damage, his Honour imposed a term of imprisonment of six weeks reduced from a starting point of eight weeks on account of the plea of guilty.^[4] His Honour ordered that the sentence for the property damage offence be served wholly concurrently with the sentence for the criminal trespass offence, resulting in a total term of imprisonment of 16 months. His Honour imposed a non-parole period of ten months and backdated the sentence to commence on 7 September 2016 in order to take account of time served in custody. There has been no challenge to the Judge having allowed for time served in this way.

The grounds of appeal

The appellant by his four grounds of appeal complains: that the Judge, having imposed a term of imprisonment for the original offending, “did not adequately consider” suspension of that term of imprisonment pursuant to section 38 of the Criminal Law (Sentencing) Act 1988 (ground 1); that the Judge erred in failing to give reasons for declining to suspend the term of imprisonment imposed (ground 4); that the Judge erred in not affording an opportunity for the appellant’s legal advisers to make submissions on the issue of whether a home detention order report pursuant to section 33BB of the Criminal Law (Sentencing) Act should be ordered in the event that (as was the case) the Judge considered immediate imprisonment to be the appropriate penalty (ground 2); and that the Judge erred in failing to give reasons for not ordering a home detention order report pursuant to section 33BB (ground 3).
For reasons that will become apparent, it is not necessary to decide whether or not his Honour erred either in failing to suspend the prison term imposed or in failing to provide reasons in support of his decision to impose an immediate term of imprisonment. Nevertheless, and assuming for the present that an immediate term of imprisonment was within the discretion available to the Judge in all of the circumstances, it should be recognised that suspension of the prison term imposed was also within the discretion available. Furthermore, given the nature of the offending, the nature of the breaches of bond and the personal circumstances of the appellant (to be discussed below) a suspension of any prison term to be imposed was a live issue. It was at the forefront of the appellant’s submissions before the Judge. As such, reasons by way of an explanation to the appellant for why, after having given consideration to all relevant factors, the Judge formed a view that good reason to suspend did not exist in this case ought to have been given.

Circumstances giving rise to appeal ground 2

It is unnecessary to consider further the complaints about the failure to suspend and the lack of reasons for arriving at that decision because the respondent has conceded that the Judge erred in failing to provide the appellant’s counsel with an opportunity to make further submissions specifically directed to the issue of whether a home detention order might be made. In my view, this concession by the respondent was rightly made. Further, the error is such as to require this Court to set aside the sentence and exercise the sentencing discretion afresh.
The role of this Court on appeal from a sentencing determination has been helpfully summarised by Stanley J in R v Wheeler (with whose reasons Gray and Peek JJ agreed).^[5]

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^[6] does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ,^[7] 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.

Section 33BB of the Criminal Law (Sentencing) Act provides a sentencing court with a discretion, in prescribed circumstances, to make an order to the effect that a sentence of imprisonment imposed be served by way of home detention. It is a sentencing option available in circumstances where a sentencing Judge is unable to find good reason to suspend the sentence in accordance with Part 5 of the Criminal Law (Sentencing) Act. In the present circumstances where suspension of the sentence was a live issue, any refusal to suspend would raise for consideration the possibility of a home detention order pursuant to section 33BB, provided the requirements under that section for the making of such an order could be met.
As it transpired, on 15 September 2016 when sentencing submissions were heard following which the appellant was remanded for sentence, not all of the prerequisites as set out in section 33BB could be established. In particular, counsel for the appellant had no instructions at that time as to a suitable home detention address. As a consequence, counsel was in no position to make submissions with respect to the obtaining of a home detention order. Section 33BB(2)(a)(i) provides as follows.

(2) A home detention order—

(a) must not be made—

(i) unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place; ...

Given the unavailability of a suitable home detention address, counsel’s submissions were directed at persuading the Judge to wholly suspend any term of imprisonment to be imposed. However, between the completion of the sentencing submissions on 15 September 2016 and the delivery of sentence on 8 November 2016, circumstances changed. Counsel for the appellant who made submissions before the Judge has deposed to the following in an affidavit sworn 29 November 2016 and read on the appeal without objection from the respondent.
1. Subsequent to making submissions on this day I was instructed by Mr Saunders to make submissions in regard to a Home Detention Order as an address had become available that was potentially suitable for serving a sentence under a Home Detention Order.
2. On 1 November 2016 I wrote an email to [the Judge’s] chambers informing His Honour’s chambers that no submissions had been made in regard to a Home Detention Order as no address was available at the time of submissions, but now an address had become available and submissions would be made.
3. I sought direction from His Honour’s chambers as to whether submissions on this point should be made orally or in writing prior to the date of sentencing, which was listed for 8 November 2016. I identified my concern as to a possible delay of approximately 4 to 6 weeks between ordering reports and the reports becoming available. I copied Tegan Mullan from the ODPP in that email.
4. I received a reply to my email on 2 November 2016 from [the Judge’s] Judicial Assistant, to which email Tegan Mullan of the ODPP was provided a copy. The email stated that His Honour would prefer to hear submissions on 8 November 2016 as he was not of the view, at that moment, that home detention was an appropriate option, going on to say that submissions regarding this topic could be made on the next occasion. Annexed hereto and marked MM1 is a true copy of the email sent by me to [the Judge’s] chambers and the reply received from chambers dated 1 and 2 November 2016 respectively.
5. On 8 November 2016, both Tegan Mullan from the ODPP and I announced our appearances before [the Judge]. I expected at this time for His Honour to ask for oral submissions to be made on the point of a Home Detention Order as a sentencing option.
6. After I had announced my appearance, His Honour proceeded to give sentence in matter DCCRM-16-371 without giving me an opportunity to make further submissions.
7. At that time I did not raise any objection to that course of action, or formally seek to be heard in the proceedings.
After the delivery of sentence, counsel for the appellant arranged for a home detention bail report to be obtained which provides, inter alia, that a proposed residence, being that in which the appellant lives with his partner, was deemed suitable for home detention purposes. The existence of the report goes no further for present purposes than demonstrating that, had submissions on the question of a home detention order been received and a report ordered, it would have been open to the appellant to argue that a suitable address had been identified such that the discretion to grant a home detention order was enlivened, at least to that extent.

Consideration

Counsel for the appellant might be criticised for not having risen to his feet with a request to be heard prior to the Judge delivering or continuing to deliver the sentencing remarks. It would appear that the Judge had overlooked the agreement reached in correspondence to the effect that further submissions could be put which, by implication, would be considered prior to sentence.
The appellant’s counsel at the appeal (who was not counsel at the sentencing stage) has submitted that the appellant was denied a hearing on this issue which constituted a denial of procedural fairness such as to comprise a process error, in the House v The King^[8] sense, which of itself justifies intervention.^[9] Counsel also submitted that the appellant should not be prejudiced by the failure of counsel below to remind the Judge of the need for further submissions whatever the reason for that failure may have been and I interpolate, including misplaced courtesy to the bench, inadvertence or carelessness. I agree with both those submissions. Further, as I have indicated, the respondent has conceded error in this respect. As such, this Court should intervene to consider whether or not the same or a different sentence ought to be imposed.
Section 353(4) and (5) of the Criminal Law Consolidation Act 1935 provides as follows.

(4) Subject to subsection (5), on an appeal against sentence, the Full Court must—

(a) if it thinks that the sentence is affected by error such that the defendant should be re-sentenced—

(i) quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or

(ii) quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or

(b) in any other case—dismiss the appeal.

(5) The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.

In my view, a lesser sentence is warranted in this case and the appellant should be resentenced accordingly. As such, and for the reasons given, I would set aside the District Court sentence and proceed to resentence the appellant.

Resentence

The written submissions of both the appellant and the respondent on the topic of any resentencing, should it occur, focussed on whether or not the required procedures should be undertaken^[10] in order to determine whether any sentence imposed should be ordered to be served by way of home detention. However, the appellant has already served more than five months in custody. In order for a home detention order to be imposed, it first would be necessary upon resentencing to give credit for this time in custody. If, for present purposes, one were to assume as a starting point the Judge’s head sentence of 16 months or something less than that, the allowing of credit of more than five months would result in a head sentence of something less than one year. As such, it would not be possible to set a non-parole period^[11] and therefore any home detention order would need to apply to the whole of the head sentence. In any event, in my view and after hearing the parties’ respective oral submissions as to resentencing generally, the sentence originally imposed was more severe than I would impose for the offending in question. However, before proceeding to indicate the way in which I would resentence, I need to say something about the factual basis of the original offending and the appellant’s personal circumstances.
By pleading guilty to the offence of criminal trespass in a place of residence, the appellant admitted trespassing in a place of residence where another person was lawfully present and knowing of that other person’s presence or being reckless as to their possible presence. The circumstances of the appellant’s offending were described by the sentencing Judge in the following terms.

[O]n 29 July 2013 the [appellant]^[12] broke into a house. Two young girls aged 10 and 11 were home alone at the time. Their parents were out. The [appellant] attended at the front of the house demanding to be let in. The girls did not open the door, so he bashed on it, eventually kicking it down. The [appellant] then entered the house.

[The appellant] was behaving in a paranoid manner and talking as if someone was after him. He took two cups from the cupboard and smashed them. He eventually left and ran away. It must have been a frightening experience for those two young girls to see the [appellant] enter their house at night. It must also have been frightening for them to see the [appellant] behaving in such a bizarre manner.

The Judge who imposed the bond to be of good behaviour in 2015 described the circumstances of the offending as “unusual” and provided a more detailed description of the appellant’s conduct on the night.

On the night of the offence you were using methamphetamines because you were associating with your family who, as I have already observed, are substance abusers. You have no memory of the night in question but you have been told by others that you were heavily under the influence of methylamphetamine and acting in a confused and paranoid manner. An uncle of yours arrived at your mother’s house and noticed you in that condition. He was extremely disappointed with you and allowed his feelings to overcome him and so he chased after you intending to physically discipline you for having abused drugs. Before he did that however, your family was so concerned about your condition that an ambulance was actually called. You took off from your mother’s house. Somehow you ended up at the front of the residence where the victims were that night. You were repeatedly calling out to be let into the house. The girls were obviously frightened and were not going to open the front door for you, so you kicked the door down. Once inside their home you were behaving in a very paranoid way. You were talking as if somebody was after you. The girls, who by this stage were hiding from you, noticed that you took two cups from the kitchen cupboard which you appeared to then use to defend yourself from those that you delusionary (sic) believed were chasing you. One of the girls, I think, screamed and eventually you ran away from their home. They then called the police.

There was no suggestion that the appellant broke into the house intending to steal or to harm its occupants. Presumably, it was for this reason that the more serious offence of aggravated serious criminal trespass in a place of residence pursuant to section 170 of the Criminal Law Consolidation Act, the maximum penalty for which is life imprisonment, was not charged. The Judge who originally heard the matter described the appellant in his sentencing remarks as being extremely remorseful and ashamed at what he had done and that he fully recognised the fear that he had caused the two children by his erratic and frightening behaviour.
The appellant was 18 years old at the time he committed the offences in July 2013 which offences were the first committed by the appellant as an adult. Prior thereto, the appellant had been dealt with in the Youth Court for two failures to comply with a bail agreement, both of which were dismissed without penalty and without conviction, and for a series of offences including a number of serious criminal trespasses in unoccupied residences, thefts, damage property, unlawfully on premises and serious criminal trespasses in non-residential premises. All of these were dealt with without entering convictions and by the imposition of a bond to be of good behaviour for nine months. The appellant also had committed the offence of hinder police for which he was convicted in the Youth Court but discharged without penalty. After committing the subject offences in 2013, the appellant continued to offend in relatively minor respects and mainly by way of various breaches of bail.
There is no doubt that the appellant’s history of interactions with the criminal justice system discloses an established resistance to observing court orders and an established propensity to offend albeit to this point at a relatively low level of seriousness. There is a sound basis for the comment made in a progress report from Correctional Services dated 8 June 2016 and quoted in the sentencing Judge’s remarks.

[The appellant] has displayed a complete disregard for all community-based orders he has received. At this time, the writer considers [the appellant] will not benefit from being placed under the supervision of the department as he does not attend. Attempts were made to engage him by conducting home visits, making phone calls, attending court appearances and visiting him in prison. [The appellant] has failed to attend appointments as directed, failed to begin community service, failed to attend TAFE, failed to attend drug and alcohol counselling and as far as complying with any bail agreement. Furthermore, when granted bail, he does not attend his court appearances. The only time [the appellant] has attended court following his District Court sentence has been when he has appeared whilst in custody.

The appellant’s personal circumstances were summarised by the sentencing Judge in the following terms.

The [appellant] is now 22 years of age. His family hails from the west coast of South Australia and he is one of nine children. His siblings live throughout Australia, having been parted during their youth, due to being placed under foster care.

The [appellant’s] mother has been serving a time in prison for offending relating to her ongoing addiction to illegal drugs. She suffers from ill health. The [appellant’s] once strong relationship with his mother has suffered in recent years due to her drug problem. The [appellant’s] father has also been in prison. Although their relationship was distant during the [appellant’s] youth, they have spent some time together recently and have grown closer once again.

Whilst the [appellant] was growing up, between the ages of five and 10, both of his parents were regular users of heroin. He was regularly exposed to the use of drugs. This must have had a significant impact on his childhood development. As a young boy he was harassed and teased, partly due to his deafness and partly due to his desire to speak Pitjantjatjara, the local indigenous language.

He witnessed and suffered a lot of violence as a young boy. When he was nine he went to live with his maternal grandparents in Canberra. His grandfather drank heavily, as did his uncle who also lived there. He was there until the age of 16 whereupon he moved out. He has been living independently since then, including some periods of homelessness.

After leaving home, he was reunited with his father's side of the family and was able to recommence schooling. For one reason or another, he did not continue at school, leaving after year nine. He then went to TAFE with the support of his family. Over recent years he has taught himself a basic level of reading and writing. He has also gone to TAFE where he earned a certificate in welding and a certificate in hospitality.

Last year, the [appellant’s] younger brother was placed into foster care at 13. The two have not been able to make contact since then. The [appellant’s] younger sister is also in foster care, albeit with the family. He has a close relationship with both of those two siblings.

He has a sparse work history. He was briefly employed as a furniture removalist but was injured at age 19 and was unable to re-enter the work force since then. He has attempted to find work, however, has had difficulty due to his criminal record.

Drugs and alcohol played a significant part in his life. From the age of 14 to 19 he drank heavily, although was able to stop drinking after his 21st birthday. He started using cannabis at age 12 and quit late last year. When his usage was at its worst, he was smoking two bags a day. After quitting cannabis, he began using methamphetamine more seriously. He had started using methamphetamine at age 15, both by smoking and taking it intravenously.

He reports being confused as to his obligations while on the bond. He was also grappling with a serious methylamphetamine addiction. After being put on the bond, he went to Adelaide to stay in his grandfather's flat. Whilst there, he began to associate with old friends and fell back in his drug using ways. The subsequent breaches of bond caused him to panic, whereupon he fled to Port Lincoln.

Sentencing the appellant presents difficulty. He is still quite young and was only 18 at the time (some three and a half years ago) he committed the offences for which he is now to be sentenced. He has had a very troubled and deprived upbringing and background generally. However, the appellant’s history to this point demonstrates poor prospects of his benefiting from community based orders, particularly those entailing supervision, attendance at counselling and other rehabilitation based courses and reporting obligations such as would be required should he be released on parole, released on a suspended sentence bond under Part 5 of the Criminal Law (Sentencing) Act or ordered to serve a term of imprisonment by way of a home detention order pursuant to section 33BB of the Criminal Law (Sentencing) Act. Nevertheless, given his youth and the nature of his substantive offending to date, it is simply not acceptable to cease providing to the appellant such community based assistance.
Furthermore, the Court received during submissions, relevant to any resentencing were it to occur, lengthy letters from the appellant, the appellant’s aunt (and proposed guarantor) and the mother of the appellant’s partner with whom the appellant has been in a relationship for about five years. The letter from the appellant strongly suggests that he has developed some insight into the many problems he faces and their relationship with his drug abuse and related criminal behaviour. The appellant appears to recognise that he needs assistance and wants to obtain it. The letters from the appellant’s aunt and his partner’s mother demonstrate that they are aware of the appellant’s problems and that they will offer significant support to assist him generally and, insofar as they can, to ensure his living arrangements are drug free.
The criminal trespass was serious. The young children must have been extremely frightened and will have suffered ongoing trauma and anxiety. Nevertheless, there was never an intention or attempt to harm the children. It would seem that the appellant had little understanding of what he was doing at the time. Further, the criminal trespass offence carries a maximum penalty of three years imprisonment. Having regard to the appellant’s personal circumstances and the circumstances of the offending, a starting point of 14 months imprisonment, being well less than the starting point of 20 months imposed by the Judge, is warranted. That starting point is to be reduced by 20 per cent on account of the plea of guilty to 11 months and one week. Being a head sentence of less than one year, a non-parole period cannot be fixed.^[13]
As at the time of the resentencing, the appellant had spent approximately five months in custody. This has been his first custodial sentence. In my view, both the appellant and the community would be best served by the appellant serving a period of supervision under strict conditions. The head sentence should be backdated to commence 7 September 2016 for the reasons given by the Judge. However, I would exercise the discretion available pursuant to section 38(2a) of the Criminal Law (Sentencing) Act and direct that six months be served with the balance of five months and one week to be suspended upon the appellant entering into a bond to be of good behaviour to take effect on his release from prison and containing the conditions as earlier set out in these reasons.
As far as the damage property offence is concerned, I would start with a term of imprisonment for five weeks but reduce that to four weeks on account of the plea of guilty. Like the Judge, I would order that term of imprisonment to be served wholly concurrently with the sentence imposed for the criminal trespass.
For the foregoing reasons I joined in the orders of the Court made on 2 March 2017.

PARKER J.

I agree with the reasons of Nicholson J.

^[1] Contrary to section 170A of the Criminal Law Consolidation Act 1935 (SA).

^[2] Contrary to section 85(3) of the Criminal Law Consolidation Act 1935 (SA).

^[3] It is common ground that the timing of the appellant’s pleas was such as to give rise, pursuant to section 10C of the Criminal Law (Sentencing) Act 1988, to an entitlement of up to 20 per cent discount for both offences.

^[4] This reduction amounts to a reduction of 25 per cent notwithstanding that the maximum discount permitted by statute appears to have been 20 per cent. However, in the circumstances of this matter, nothing turns on this.

^[5] R v Wheeler [2015] SASCFC 83 at [20].

^[6] [1936] HCA 40; (1936) 55 CLR 499.

^[7] [2013] SASCFC 130 at [10], (2013) 118 SASR 211 at 214-215.

^[8] [1936] HCA 40; (1936) 55 CLR 499.

^[9] See, for example, Allesch v Maunz [2001] HCA 40 at [35]- [36] (Kirby J).

^[10] Either by this Court or following a remittal of the matter to the District Court.

^[11] See section 32(5)(a) of the Criminal Law (Sentencing) Act 1988. A non-parole period may not be fixed in respect of a person who is liable to serve a total period of imprisonment of less than one year.

^[12] Unusually, the sentencing remarks were recorded and, it would seem, delivered with the offender being referred to in the third person rather than the second person. As a general rule, delivery of sentencing remarks in the second person and directed to the offender is more likely to assist an offender to understand the reasons for the sentence imposed.

^[13] Criminal Law (Sentencing) Act 1988 (SA) s 32(5)(a).

Subsequent Judicial Consideration0