R v Hunter [2022] SASCA 136 (20 December 2022)
In sentencing an offender who is guilty of a crime, the courts have available to them the option of giving the offender a ‘last chance’ to avoid actually going to prison. Under that option, a term of imprisonment is imposed but will be suspended upon a defendant entering into a bond to be of good behaviour for a particular period of time, up to a period of 3 years. Should a defendant offend again during that period the suspension would normally be revoked and the defendant required to go to prison.
The Sentencing Act contains many provisions which prevent the use of some sentencing options dependent upon the type of offence or the type of offender. One of those provisions is that when someone is being sentenced for an organised crime offence, the sentence of imprisonment cannot be suspended unless there are ‘special circumstances’ which justify the suspension.
In this case, the defendant was a member of an outlaw motor cycle gang who had pleaded guilty to trafficking meth for the benefit of the Nomads OMCC, a criminal organisation. This was against a background of previous offending and a previous ‘last chance’ of being given a suspended sentence. The sentencing judge sentenced the defendant to imprisonment for 3 years and 5 months with a non-parole period of 1 year and 1 month. However the sentencing judge decided that there were ‘special circumstances’ which justified the suspension of the sentence of imprisonment imposed and released the defendant on a bond to be of good behaviour. The DPP brought an appeal to the Court of Appeal and argued, first, that the length of the term of imprisonment was inadequate and, second, that there were no special circumstances which would have justified suspending the sentence.
The Court of Appeal found that the fact that the defendant was a ‘patched’ member of the Nomads was a relevant factor to take into consideration when sentencing. The court decided that the sentence imposed was inadequate and in addition that there were no special circumstances to justify it being suspended. The court remarked that Parliament had intended to impose a general prohibition on suspending sentences for serious and organised crime offences to address the particular problem of organised criminal offending. Unless the circumstances fell outside of the problem that Parliament had intended to address, they will not qualify as special circumstances.
The court decided that the sentence should be increased to 5 years and 3 months with a non-parole period of 2 years and 7 months. The decision by the sentencing judge to suspend the sentence was set aside, and the court ordered that the defendant serve an immediate term of imprisonment.