R v Smith

[2014] SASCFC 6

South Australia Full Court

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For Australian Law.

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Interrogate

Catchwords

1. Criminal Law
2. › Sentence
3. › Sentencing orders
4. › Non-custodial orders
5. › Suspended sentence of imprisonment
6. › Breach of conditions of suspension and sentence following breach
7. › Whether proper grounds to excuse breach under s 58(3)
8. › Whether special circumstances to reduce suspended sentence under s 58(4)(a)
9. › Criminal Law (Sentencing) Act 1988 (SA), ss 58(3), 58(4)(a)
1. Criminal Law
2. › Sentence
3. › Non-parole period
4. › Duty of court to fix or extend non-parole periods
5. › Whether court required to extend existing non-parole period where concurrent sentence does not increase total head sentence
6. › Criminal Law (Sentencing) Act 1988 (SA), s 32(1)(b)
1. Statutes
2. › Acts of Parliament
3. › Interpretation
4. › General approaches to interpretation
5. › Construction of s 32(1)(b) of Criminal Law (Sentencing) Act 1988 (SA)
6. › Whether 'extend it by such period as the court thinks fit' permits extension of zero
1. Criminal Law
2. › Appeal and new trial
3. › Interference with discretion or finding of judge
4. › Sentencing discretion
5. › Whether sentencing judge erred in exercise of discretion under ss 58(3) and 58(4)(a)

Quick Take

Section 32(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA) permits a sentencing court to make no increase in the non-parole period where the defendant is sentenced to a concurrent term of imprisonment for new offending which will expire before the existing sentence, such that the total head sentence is not increased. This departs from obiter dicta in R v Shepperbottom and Heal v Police suggesting extension was mandatory in all cases. The proper procedure when dealing with a breached suspended sentence bond and new offending is to deal with the bond enforcement first, but failure to follow that order is not an error of law provided all relevant considerations are taken into account.