ABDULLA v Police

[2025] SASC 166

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal)

ABDULLA v POLICE

[2025] SASC 166

Judgment of the Honourable Justice Gray 

2 October 2025

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM

This is an appeal against a sentence imposed by a magistrate on 26 February 2025 for an offence of aggravated assault.

The appellant complains that the learned sentencing Magistrate failed to apply the correct sentencing discount pursuant to s 39(2)(b)(ii) of the Sentencing Act 2017 (SA).

Two further complaints are advanced in relation to manifest excess concerning the head sentence of 7 months imprisonment, and the extension of an existing non-parole period from 11 months to 18 months. A complaint is also made that the reasons for extending the non-parole period are inadequate.

The respondent submits that the appropriate sentencing discount was applied, that neither the head sentence nor the extended non-parole period are manifestly excessive, and that sufficient reasons for extending the non-parole period were provided.

Held, dismissing the appeal:

1.The amended information, having been filed in accordance with the relevant statutory provisions and rules, was before the Court on 15 November 2024. The appellant appeared on 21 November 2024 in respect of that information and pleaded guilty in February 2025. While a complaint was made by defence counsel as to the late filing of the amended information, no application for its disallowance was made pursuant to r 63.1(4) of the Joint Criminal Rules 2022 (SA). The discount applied by the learned sentencing Magistrate of 30 per cent, pursuant to s 39(2)(b)(ii) of the Sentencing Act 2017 (SA), does not reveal error: at [23]-[26];

2.The sentence of 7 months imprisonment, having regard to the maximum penalty, the seriousness of the offence, and the circumstances of the appellant, was not manifestly excessive: at [38];

3.The review and extension of the non-parole period did not result in a manifestly excessive sentence and the learned sentencing Magistrate had regard to relevant matters. The learned sentencing Magistrate’s reasons for review and extension, whilst brief, were not insufficient: at [45]-[46], [51]-[52].

Criminal Law Consolidation Act 1935 (SA) s 5AA, s 20 and s 56; Sentencing Act 2017 (SA) s 39 and s 47; Joint Criminal Rules 2022 (SA) r 63.1; Magistrates Court Act 1991 (SA) s 42, referred to.

Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; Buzzacott v Police [2017] SASC 64; Edwards v Police; Weber v Police; Homewood v Police [2023] SASC 170; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; R v Horstmann [2010] SASC 103; (2010) 269 LSJS 42; House v The King [1936] HCA 40; (1936) 55 CLR 499; Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601; R v Mark [2019] SASCFC 48; R v McFarlane [1999] SASC 129; (1999) 105 A Crim R 12; R v Morse (1979) 23 SASR 98; Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600; Police (SA) v Chilton [2014] SASCFC 76; (2014) 120 SASR 32; Trott-Dan v The King [2023] SASCA 2; Warren v Police (SA) [2020] SASC 145; R v Williams [2013] SASCFC 26; Wittwer v Police [2004] SASC 226; Yardley v Betts (1979) 22 SASR 108, considered.

ABDULLA v POLICE
[2025] SASC 166

Criminal:   Magistrates Appeal

GRAY J:

1. This matter concerns an appeal against sentence imposed in the Magistrates Court on 26 February 2025, in relation to a single count of aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation was that the appellant was the brother of the victim.[1]  The maximum penalty for the offence is imprisonment for 3 years.[2]  The learned sentencing Magistrate imposed a sentence of 7 months imprisonment, taking into consideration the reduction on account of the guilty plea.  The learned sentencing Magistrate imposed the sentence to be cumulative on the current sentence that the appellant was serving, increasing the head sentence to 20 months and 5 days commencing from 18 April 2024.  The non-parole period was reviewed by the learned sentencing Magistrate and also increased by 7 months to commence from 18 April 2024.

   [1]     Criminal Law Consolidation Act 1935 (SA) s 5AA(1)(g).

   [2]     Criminal Law Consolidation Act 1935 (SA) s 20(3)(b).

2. There are four grounds of appeal:[3]

   1.   The Magistrate failed to nominate that the maximum reduction on sentence to which the Appellant was entitled for the guilty plea for the offence of aggravated assault was up to 40%.

   2.   The sentence imposed in relation to the offence of aggravated assault was manifestly excessive.

   3.   The decision to extend the existing non-parole period to imprisonment for 18 months resulted in a sentence which was manifestly excessive.

   4.   The reasons for sentence provided by the Magistrate were inadequate in relation to [the] decision to extend the existing non-parole period.

   [3]     Notice of Appeal (FDN 1).

3. The respondent submits that the learned sentencing Magistrate did not err in the imposition of the sentence imposed, the resultant non-parole period after accumulation was not manifestly excessive, and sufficient reasons for extending the non-parole period were provided.

   Background

4. The remarks on penalty record that, on 29 April 2023 at Renmark, the appellant went to his sister’s house whilst he was heavily intoxicated.[4]  She was home with some friends. The appellant, by his plea, admitted he grabbed his sister from behind and touched her breast over the top of her clothing. The appellant’s sister had indicated to him not to do that.  Following this assault the appellant followed his sister outside and said, “if you weren’t my sister, I’d have you”.

   [4]     Appeal Book (FDN 11) (‘AB’) at 18-21 (Ex tempore Remarks on Penalty of Magistrate Burton dated 26 February 2025 (‘Remarks on Penalty’)).

5. The learned sentencing Magistrate noted that the appellant was on a suspended sentence bond at the time of the offending and that the bond was entered into in November 2022 for a period of 2 years.  The appellant had breached that bond by unrelated offending and was serving a sentence which included the revoked suspended sentence such that the learned sentencing Magistrate did not need to take any further action in relation to the breach of bond.

6. The sentence the appellant was serving at the time of the imposition of sentence was a period of 13 months and 5 days which commenced on 18 April 2024, with a non-parole period of 11 months starting on that date.

7. The appellant was initially charged by information dated 5 June 2023, with a single count of aggravated indecent assault.[5]  On 11 July 2024, the learned sentencing Magistrate made orders for the prosecution to file and serve any application to amend the information “to add count 2” within 7 days.[6]  The matter was then remanded for trial on 21 November 2024. 

   [5] Contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA).

   [6]     AB at 56-8 (Affidavit of Ryszard Michal Duluk sworn 2 April 2025, Annexure RMD-2 (Record of Outcome dated 11 July 2024 (FDN 3))).

8. On 15 November 2024, a revised information was filed alleging two further counts of aggravated indecent assault and two counts of aggravated assault. An application to vacate the trial due to counsel unavailability was heard on 21 November 2024.  That application was not opposed, and the trial did not proceed.  On 21 November 2024, defence objected to the revised information being filed.  The parties were advised to confer and discuss the scope of the issues at trial, agree matters capable of agreement, to continue negotiations and to bring any pre-trial applications.[7]  The matter was remanded to 24 February 2025 for pre‑trial conference.  No application objecting to the amended information was brought.

   [7]     AB at 39-40 (Record of Outcome dated 21 November 2024 (FDN 42)).

9. On 24 February 2025, at the pre-trial conference, the appellant entered a guilty plea to count 5 on the revised information with the remaining charges being withdrawn. 

10. This factual and procedural background of the matter in the Magistrates Court is relevant to the issue joined between the parties in respect of ground 1. Ground 1 concerns whether, in circumstances where the guilty plea was entered more than 3 months after the revised information was filed, the appellant was entitled to be afforded a reduction in his sentence by up to 30 per cent pursuant to s 39(2)(b)(ii) of the Sentencing Act 2017 (SA) (‘the Act’), or whether, as the appellant contends, a greater discount should have been applied.

11. The remaining issues in dispute between the parties concern the question of whether the sentence and the decision extending the non-parole period were manifestly excessive and whether or not adequate reasons were provided for extending the non-parole period.

    Statutory basis of the appeal and relevant principles

    Principles on appeal

12. This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and is by way of rehearing.[8]  To interfere with the exercise of a sentencing discretion, there must be demonstrated error of the kind described in House v The King.[9]The approach to be adopted was explained in Wittwer v Police.[10]In that case, White J held:[11]

    The imposition of a sentence involves an exercise of judicial discretion.  This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or [if it] has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly.

    [8]     Joint Criminal Rules 2022 (SA) r 191.1.

    [9]     House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5 (Dixon, Evatt and McTiernan JJ).

    [10]   Wittwer v Police [2004] SASC 226 (White J).

    [11]   Wittwer v Police [2004] SASC 226 at [16] (White J).

13. In Police (SA) v Chilton,[12] Kourakis CJ observed that the sentence imposed by a magistrate can only be set aside for error in accordance with House v The King.  Kourakis CJ held:[13]

    The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy Magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King.

    [12]   Police (SA) v Chilton [2014] SASCFC 76; (2014) 120 SASR 32 (Kourakis CJ, David J agreeing).

    [13]   Police (SA) v Chilton [2014] SASCFC 76; (2014) 120 SASR 32 at 38, [19] (Kourakis CJ, David J agreeing)

14. In House v The King it was held:[14]

    It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

    [14]   House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ).

15. To establish that a sentence imposed was manifestly excessive, the appellant may establish that the sentence was unreasonable or plainly unjust such that it can be inferred that the outcome has been attended by error.[15]  It is insufficient to find on appeal that the appellate court would have imposed a different sentence.  Rather, the sentence must be outside the permissible range of sentences for the offender and the offence.[16] 

    [15]   Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at 615, [35] (French CJ, Hayne, Bell and Keane JJ).

    [16]   Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at 615, [35] (French CJ, Hayne, Bell and Keane JJ).

16. In considering whether the sentence was manifestly excessive, regard will be had to the following:[17]

    1.The maximum sentence prescribed by law for the offence.

    2.The standards of sentence customarily observed for offences of the kind in question.

    3.The place which the criminal conduct occupies in the scale of seriousness of crimes of that type.

    4.The personal circumstances of the offender.

    [17]   R v Morse (1979) 23 SASR 98 at 99 (King CJ, White and Mohr JJ agreeing); see further Mahon v Commissioner of Police (SA) [2024] SASC 147 at [12] (Stanley J).

17. If an outcome error is established, the appellate court will resentence, or remit the matter for resentence, having formed the view that the sentence imposed at first instance was either manifestly excessive or inadequate.  Where a process error is established, the appellate court ought to resentence unless it is considered the sentence imposed in the court below was appropriate, notwithstanding the error.[18]

    [18]   R v Horstmann [2010] SASC 103; (2010) 269 LSJS 42 at 50, [37]-[38] (Kourakis J).

18. The appellant complains, as to grounds 1 and 4, that the learned sentencing Magistrate’s decision was attended by a process error, whereas grounds 2 and 3 complain of outcome errors of manifest excess. The respondent’s position is that there are neither process errors nor outcome errors in this matter.  Alternatively, the respondent submits, if this Court was to find a process error, then the sentence imposed was appropriate in all the circumstances and this Court ought not interfere.

    Consideration of grounds of appeal

    Ground 1 – sentencing discount

19. The appellant contends that the learned sentencing Magistrate incorrectly nominated a maximum sentencing discount of 30 per cent when the appellant was entitled to a maximum reduction of up to 40 per cent. The relevant legislative provision concerning this ground of appeal is s 39 of the Act. Section 39, in part, provides as follows:

    39—Reduction of sentences for guilty plea in Magistrates Court etc

    …

    (2)Subject to this section, if a defendant has pleaded guilty to an offence or offences—

    (a)     not more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;

    (b)     more than 4 weeks after the defendant's first court appearance in relation to the relevant offence or offences but—

    (i)if a date has been set for a trial for the offence or offences—not less than 4 weeks before that day; or

    (ii)in any other case—before the commencement of the trial for the offence or offences, the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;

20. The appellant contends that the maximum discount of 40 per cent should have been applied by application of s 39(2)(a) of the Act, whereas the respondent contends that the learned sentencing Magistrate correctly applied the discount of 30 per cent pursuant to s 39(2)(b).

21. The appellant contends, inter alia, that, in circumstances where the prosecution, being the respondent on this appeal, was initially given leave to file an amended information by 18 July 2024, but did not do so within that timeframe, then the subsequent lodgement on 15 November 2024 did not have the effect of amending the original information.  This contention is advanced on the basis that objection had been taken to that information being lodged at the hearing on 21 November 2024.  Further, the appellant contends that the prosecution had not obtained leave of the Court to amend the information as provided for in r 63.1(6) of the Joint Criminal Rules 2022 (SA) (‘the Rules’).  As such, the appellant contends that, prior to the hearing on 24 February 2025, the appellant was never before the Court for the charge of the offence of aggravated assault to which the appellant ultimately pleaded guilty.  The appellant contends that the appellant’s first court appearance in relation to the charge for the offence only arose during the course of the hearing on 24 February 2025, when the appellant indicated to the Court that he intended to plead guilty to that charge.

22. The respondent contends that on 21 November 2024, when the matter was before the learned sentencing Magistrate, the record of outcome shows that the revised information was before her Honour.  The respondent submits that defence counsel applied to vacate the trial date, which was not opposed, and that notwithstanding that defence counsel objected to the late filing of the revised information, no application for an order disallowing the revised information was advanced by defence counsel.  The learned sentencing Magistrate in remanding the matter for a pre-trial conference on 24 February 2025 made the following orders: “any pre-trial applications requiring argument and determination to be filed and served no later than 21 days prior to next status hearing”.[19]  The respondent further contends that the revised information complied with r 63.1(2)(a) of the Rules and, as a consequence, leave was not required for the filing of the revised information.

    [19]   AB at 39-40 (Record of Outcome dated 21 November 2024 (FDN 42)).

23. I am unable to accept the contention put forward by the appellant that the revised information was not before the Court on 21 November 2024.  The information dated 15 November 2024 was before the Magistrates Court on the date that it was validly presented and filed in that Court by the informant.[20] The Commissioner of Police was the informant in this matter and had filed the information in accordance with the Rules and relevant statutory provisions.[21]  I have considered the record of outcome and listened to the audio recordings of the hearings before the learned sentencing Magistrate on 21 November 2024, 24 February 2025 and 26 February 2025.  I find that the appellant did not apply for an order disallowing the amendment in whole or in part, or in any way after 21 November 2024 advance that complaint before the Court.

    [20]   Jago v District Court (NSW) [1989] HCA 46;(1989) 168 CLR 23 at 36 (Brennan J).

    [21]   See Criminal Procedure Act 1921 (SA) s 49; Joint Criminal Rules 2022 (SA) rr 23.2(5) and 63.1.

24. The audio recording of the hearing on 21 November 2024 indicates that the prosecution raised before the Court that the defence had made a complaint concerning the amended information.  The prosecution acknowledged that the amended complaint was filed after the time provided for in a previous order.  The learned sentencing Magistrate clearly indicated that any complaint about the amended information needed to be made in writing by application, filed and served 21 days prior to the next status hearing.  Whilst the appellant made complaint as to the late filing of the amended information, on 21 November 2024, that complaint was not formalised in an application that the amendment be disallowed, nor did the appellant take any step to seek such an order at any time prior to sentence.  In addition to not applying for an order disallowing the amendment in whole or in part, defence counsel appearing on 26 February 2025 accepted that the discount to be applied was 30 per cent.

1. I find that the appellant has not made out the factual basis to substantiate the claim made in this ground of appeal that the amended information was not before the learned sentencing Magistrate on 21 November 2024.

2. I find that there was no error in the learned sentencing Magistrate applying a maximum reduction on account of the guilty plea of 30 per cent pursuant to s 39(2)(b)(ii) of the Act.

3. I dismiss ground 1 of the appeal.

   Ground 2 – whether the sentence imposed in relation to the offence of aggravated assault was manifestly excessive

4. The appellant submits that the sentence of imprisonment of 7 months imposed in relation to the offence of aggravated assault was manifestly excessive.  The appellant contends that the sentence resulted in an outcome which was unjust or unreasonable. [22] 

   [22]   R v Morse (1979) 23 SASR 98 at 99 (King CJ, White and Mohr JJ agreeing).

5. The appellant noted that the maximum penalty for the offence of aggravated assault is imprisonment for 3 years.[23]  The appellant also referred to the decision of Yardley v Betts[24] in which the Court declined to set any standard regarding the offence of assault in relation to a previous legislative scheme and observed that “[an assault varies] very greatly in seriousness.  Some result in injury to the victim and some do not”.[25]  The Court held that:[26]

   A consideration of these factors leads to the conclusion that cases of assault require individual assessment and treatment. In my opinion there can be no presumption one way or the other as to whether imprisonment is the appropriate way of dealing with any particular case. A judicial policy which were to embody such a presumption in respect of assaults generally, or assaults which could be characterized as "serious", or assaults where "some injury is caused to the victim", would not, in my view, be justified. It is worth pointing out that the degree of injury suffered by the victim is not in every case a satisfactory measure of the gravity of the offence or the culpability of the offender.

   [23]   Criminal Law Consolidation Act 1935 (SA) s 20(3)(b).

   [24]   Yardley v Betts (1979) 22 SASR 108.

   [25]   Yardley v Betts (1979) 22 SASR 108 at 113 (King CJ, Mitchell and Legoe JJ agreeing).

   [26]   Yardley v Betts (1979) 22 SASR 108 at 113 (King CJ, Mitchell and Legoe JJ agreeing).

6. The appellant submitted that the offence was at the lower end of the scale of objective seriousness for offences of this kind for the following reasons:

   1.While the offence was “aggravated”, the aggravating feature was that the victim was the adult sister of the appellant. Despite that aggravating feature, there was no suggestion that the appellant somehow sought to use, rely upon, or take advantage of, that relationship, to commit the offence. The aggravating feature reflects nothing more than the status of the relationship between the victim and the appellant;

   2.There was not any suggestion that the offending conduct was premeditated or planned. Rather, the offending appeared to be spontaneous and opportunistic;

   3.The appellant was highly intoxicated. Whilst not an excuse, his intoxication would have obviously lowered his inhibitions;

   4.The offending involved the appellant touching the breast of the victim over the top of the victim’s clothing. The offending did not involve the appellant attempting in any way to place his hand under the victim’s clothing so as to touch her breast;

   5.The appellant immediately removed his hand from the victim’s breast upon the victim protesting against the appellant’s conduct; and,

   6.The offending conduct only lasted a short moment.

7. The appellant also made extensive and detailed submissions as to the personal circumstances of the appellant.

8. The appellant in submissions refers to the personal circumstances of the appellant, especially as a child, and to their relevance in the exercise of the sentencing discretion.[27]  The appellant referred to the principles in Bugmy v The Queen in which it was held: [28]

   The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

   Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

   (citations omitted)

   [27]   Warren v Police (SA) [2020] SASC 145 at [35]-[36] (Bleby J); Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at 618-21, [50]-[60] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ); Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at 594-5, [43]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

   [28]   Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at 594-5, [43]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).

9. The appellant also submits that the starting point of imprisonment for 10 months nominated by the learned sentencing Magistrate for the offence of aggravated assault, being almost one-third of the maximum penalty of imprisonment for 3 years, provides insight into the risk of excess.[29]  The appellant submitted that the offending in this matter did not involve the level of violence committed in, for example, Trott-Dan v The King (‘Trott-Dan’)[30] or Buzzacott v Police (SA).[31]

   [29]   Appellant’s Written Submissions (FDN 6) (‘AWS’) at [42].

   [30]   Trott-Dan v The King [2023] SASCA 2 at [41] (Lovell, Doyle and David JJA).

   [31]   Buzzacott v Police (SA) [2017] SASC 64 at [12] (Kourakis CJ).

10. The respondent contends that it is not sufficient for an appellate court to merely conclude that it would have come to a different decision to that ultimately reached by a sentencing court, or that the sentence imposed is markedly different from that imposed in other cases.[32]  The respondent submits that the offending is plainly serious for a number of reasons, including, inter alia, the relationship between the appellant and the victim and that the offence occurred in the victim’s own home, a place where she should have been entitled to feel safe.  The respondent also refers to the unprovoked nature of the assault. 

    [32]   Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 538-9, [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); R v Mark [2019] SASCFC 48 at [18] (Stanley J, Peek and S Doyle JJ agreeing). See also, Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at 615, [35] (French CJ, Hayne, Bell and Keane JJ).

11. The respondent also referred to the regard that the learned sentencing Magistrate had for the appellant’s relevant criminal history which was recorded in her Honour’s remarks:[33]

    On 22 November 2022, you were convicted of breaching an intervention order, two counts of aggravated assault and you were given a term of imprisonment of nine months which was suspended on that bond I just referred to for a period of two years.  You received a further sentence, which is not a prior offence, the reason you are now in custody, of four months and five days so the total sentence was 13 months and five days with a non-parole period of 11 months.

    You do have a long history of prior offending.  In May 2020, you were convicted for breaching an intervention order on a second or subsequent time and no penalty was imposed.

    On 31 December 2019, it was the same offence for a first time and no penalty was imposed.

    On October 2016, you were convicted while driving disqualified, aggravated assault against a child or spouse, fighting and breach of intervention order.  At that time, you were sentenced to a period of imprisonment of six months which was suspended on a 12-month good behaviour bond with supervision. 

    In 2012, you pleaded guilty to a charge of basic assault and no conviction was recorded.  I need not go back any further.

    [33]   AB at 18-21 (Remarks on Penalty).

12. The respondent also notes that the learned sentencing Magistrate in the course of her Honour’s sentencing remarks stated as follows:

    I take into account your history of criminal offending.  You are not punished again for that, but it is relevant to your risk of reoffending and speaks against any leniency that I might otherwise have been able to apply.

13. Whilst consideration of other sentences imposed in other cases is relevant, the primary question is whether this particular sentence imposed was within the permissible discretion of the learned sentencing Magistrate.  The question in this matter is whether or not there is an outcome error, that is, the result embodied an order that was unreasonable or plainly unjust.

14. I am unable to conclude that the sentence imposed was manifestly excessive.  Having regard to the maximum penalty for the offence and considering both the worst possible case and the case before the Court, balancing these matters with other relevant factors including the range of sentences customarily observed for the type of offending,[34] the seriousness of the offending, and the personal circumstances of the appellant, there is no error in the sentence, either express or implied, that can be demonstrated.  The imposition of sentence involves an individualised form of justice, and the learned sentencing Magistrate was faced with an offender who could be afforded little leniency.  It is not enough that this Court may be of the view that it would exercise the sentencing discretion differently. Therefore, in my view, having regard to all these matters, it is not appropriate to intervene. 

    [34]   Hird v The King [2025] SASCA 104 (Livesey P, David J and Mullins AJA).

15. I dismiss ground 2 of the appeal.

    Ground 3 – whether the decision to extend the existing non-parole period resulted in a sentence which was manifestly excessive

16. The appellant submits that, having determined the sentence to impose in relation to the offence of aggravated assault, the learned sentencing Magistrate then had to review the existing non-parole period to which the appellant was subject.  The learned sentencing Magistrate determined to extend the existing non‑parole period by 7 months – an amount equal to the sentence imposed for the offence of aggravated assault – resulting in a non-parole period of 18 months.  The appellant submits that the non-parole period imposed was manifestly excessive or otherwise resulted in an unjust or unreasonable outcome.

17. The appellant also submits that the learned sentencing Magistrate was, whilst still bearing in mind all the factors relevant to the determination of the head sentence, required to afford greater weight to the sentencing objective of rehabilitation in fixing the non-parole period.  Her Honour was also required to conduct a “final check” to ensure that the non-parole period was not crushing and would not leave the appellant with “little cause for hope”.[35]  The appellant also complains, both in relation to this ground and ground 4, that the remarks on penalty as they related to the decision to extend the existing non-parole period were inadequate.  These remarks provide as follows:[36]

    There will be a conviction, and I would have imposed a sentence of 10 months imprisonment but will reduce this on account of your plea to seven months.  That sentence will be cumulative on the current sentence you are serving so the head sentence is therefore increased to 20 months and five days commencing from 18 April 2024.  I am required to review the non-parole period for the same reasons that I have set out in relation to the sentencing [principles] and their application, I will increase the non-parole period from 11 months to 18 months again to commence from 18 April 2024.  It is entirely a matter for you as to whether you apply to be released on parole in due course or not.

    [35]   R v McFarlane [1999] SASC 129; (1999) 105 A Crim R 121 at 124, [19]-[22] (Doyle CJ, Martin J agreeing); R v Williams [2013] SASCFC 26 at [27]-[29] (Gray J).

    [36]   AB at 21 (Remarks on Penalty).

18. The appellant complains that, bearing in mind the need for punishment and deterrence, the personal circumstances of the appellant and the need for greater weight to be afforded to promoting rehabilitation, the learned sentencing Magistrate should have fixed a non-parole period which afforded the appellant greater “scope for a better chance to prove himself”.[37] 

    [37]   R v McFarlane [1999] SASC 129; (1999) 105 A Crim R 121 at 124, [19]-[22] (Doyle CJ, Martin J agreeing); R v Williams [2013] SASCFC 26 at [27]-[29] (Gray J).

19. The respondent submits that as the sentence imposed was less than 12 months, there was no error in the learned sentencing Magistrate not fixing an initial non-parole period for the charged offence.  However, as the appellant was already serving a sentence of imprisonment and was subject to an existing non‑parole period, the learned sentencing Magistrate was required to review and extend the existing non-parole period.[38]  As the respondent noted, in Trott-Dan:[39]

    In determining whether a non-parole period is manifestly excessive, it is necessary to recognise that the function of a non-parole period is different to that of a head-sentence; a defendant’s rehabilitative prospects should be given greater emphasis when fixing a non-parole period than when imposing a head sentence. While a non-parole period should operate as a personal deterrent and be properly proportionate to the gravity of the offending, it is appropriate to give greater weight to a defendant’s rehabilitative prospects at that point of the sentence.

    [38]   Sentencing Act 2017 (SA) ss 47(1)(b) and (5)(a)(i).

    [39]   Trott-Dan v The King [2023] SASCA 2 at [73]-[74] (Lovell, Doyle and David JJA).

20. As the respondent submits on this appeal, there are difficulties with the suggestion that the learned sentencing Magistrate erred, by having inadequate regard to the appellant’s prospects of rehabilitation and failing to consider the principles of totality. The difficulties are twofold.  Firstly, no process error is alleged, rather the allegation of manifest excess concerns an outcome error.  Secondly, and in any event, it is difficult to see how the complaint of insufficient regard to rehabilitation can be made out where, on the material before the learned sentencing Magistrate, the appellant’s prospects of rehabilitation were regrettably limited. 

21. I find that the offending was committed against a background of convictions and terms of imprisonment, albeit suspended, for offences of the same type, with previous offending being committed against other members of the community, as well as against persons with whom the appellant was in a relationship.  The sentencing remarks of the learned sentencing Magistrate make plain that the review and extension of the non-parole period was a separate and considered assessment having regard to all of the matters before the Court, which the Court considered when arriving at an appropriate sentence for the aggravated assault charge.  I reject the suggestion of manifest excess advanced in oral submissions based upon the suggestion that the learned sentencing Magistrate engaged in a ‘rather mechanical’ process.[40]

    [40]   Appeal Transcript at T19.15-20 and T20.9-11.

22. In my view, neither regard to the prospects of rehabilitation or the principle of totality indicate that there was manifest excess in the outcome of the sentencing process, and the extension of the non-parole period was neither unreasonable or unjust.

23. I dismiss ground 3 of the appeal.

    Ground 4 – inadequate reasons

24. The appellant submits that the learned sentencing Magistrate did not give adequate reasons in relation to the decision to extend the existing non-parole period to imprisonment for 18 months, and that, in doing so, committed a process error.[41]  The appellant submits that a failure to provide adequate reasons for imposing sentence is an error of law.  The appellant refers to Edwards v Police; Weber v Police; Homewood v Police in which McIntyre J held:[42]

    Sentencing remarks must contain sufficient detail to allow an appellate court to adequately discharge its function. A failure to give adequate reasons for imposing a sentence can amount to an error justifying the sentence being set aside.  However, sentencing remarks are not to be read and deconstructed with the same scrutiny as might apply to written reasons for judgment.  Sentencing remarks are not required to deal with every matter that may be relevant to the sentence ultimately imposed.  This is particularly the case when considering the remarks of a Magistrate conducting a busy list.  It is not necessary for any more than brief reasons, identifying for the benefit of the appellants, what are the critical factors that weighed in reaching the decision on penalty.  It is not a check list.

    (citations omitted)

    [41] AWS at [54].

    [42]   Edwards v Police; Weber v Police; Homewood v Police [2023] SASC 170 at [22] (McIntyre J).

25. The appellant submits that the review of the non-parole period required the learned sentencing Magistrate to consider and determine the minimum period necessary to meet the punitive and protective purposes of the sentence, whilst, at the same time, in exercising that discretion, to give relatively more weight to the sentencing objective of rehabilitation.  Further, the appellant submits that, whilst there was not a mandated or standard non‑parole period, a non-parole period of between 50 and 75 per cent of the head sentence might have been expected, and the learned sentencing Magistrate is said to have been required to provide some explanation for fixing a non-parole period beyond that general range.[43]

    [43]   Trott-Dan v The King [2023] SASCA 2 at [75] (Lovell, Doyle and David JJA).

26. The respondent submits that the learned sentencing Magistrate, throughout the course of the sentencing remarks, highlighted the relevant critical factors and sentencing principles.  The respondent submits that it is plain from the sentencing remarks that the learned sentencing Magistrate separately considered and approached the review and extension of the non-parole period.  The learned sentencing Magistrate referred to, in a shorthand way, the relevant principles governing sentence and the respondent submits that the reasons for the extension, whilst brief, were sufficiently exposed.

27. In my view, reading the sentencing remarks as a whole, it is clear that the learned sentencing Magistrate recognised that there was separate discretion to be exercised in considering the extension of the non-parole period.  Whilst the remarks in respect of the decision to extend the non-parole period by 7 months are brief, the learned sentencing Magistrate specifically makes reference to the previous consideration that had been made during the course of her Honour’s sentencing remarks to relevant critical factors and sentencing principles.  In my view, it would be reading error into the learned sentencing Magistrate’s reasons to find that her Honour gave inadequate weight to the questions of rehabilitation and totality.  I find that the sentencing remarks were adequate.  I find that a separate explanation was not required because the non-parole period fell outside of the range of 50 to 75 per cent. 

1. In my view, it was sufficient that the learned sentencing Magistrate recognised that there was a separate discretion to be exercised and it was sufficient for the learned sentencing Magistrate to refer to the factors her Honour had previously considered. It cannot be said on a fair reading of the learned sentencing Magistrate’s reasons as a whole that her Honour did not provide an explanation for the extension of the non-parole period.[44]

   [44]   Trott-Dan v The King [2023] SASCA 2 at [75] (Lovell, Doyle and David JJA).

2. I dismiss ground 4 of the appeal.

   Conclusion and orders

3. I dismiss the appeal.

4. I will hear from the parties as to any other orders.