ABDULLA v Police

Case [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)…

Continue reading ABDULLA v Police

Sign in free to access the full text

Details
AGLC
ABDULLA v Police [2025] SASC 166
Case
[2025] SASC 166
Decision Date

CaseChat Overview and Summary

In the Supreme Court of South Australia, the appellant, Abdulla, appeals against his sentence imposed by the Magistrates Court. Abdulla had pleaded guilty to aggravated assault. The primary issue before the court was whether the non-parole period of 18 months imposed by the sentencing Magistrate was manifestly excessive or inadequate, considering the appellant's rehabilitative prospects and the need for punishment and deterrence. The court also considered whether the Magistrate's remarks on penalty adequately addressed the decision to extend the non-parole period.

The court found that the sentencing Magistrate did not err in extending the non-parole period by 7 months, as this was equal to the sentence imposed for the offence of aggravated assault. The court held that the Magistrate appropriately balanced the sentencing objectives of punishment, deterrence, and rehabilitation in determining the non-parole period. The court further found that the Magistrate's remarks on penalty sufficiently addressed the decision to extend the non-parole period, noting that the appellant's rehabilitative prospects were given due consideration. The court concluded that the non-parole period imposed was not manifestly excessive and that the sentencing Magistrate's decision was correct.

The appeal was dismissed, and the sentence imposed by the Magistrates Court was affirmed. The court did not find any process or outcome errors in the sentencing Magistrate's decision, and the sentence was deemed appropriate in all circumstances. The court upheld the imposition of a non-parole period of 18 months, starting from 18 April 2024.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 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’)). 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. 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. 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))). 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)). 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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. 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). 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). 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).

Ratio Decidendi

Legal Principle Established

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 appealGround 1 – sentencing discount 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%; 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). 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.