Ahmed v Commissioner of Police - [2025] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
AHMED v COMMISSIONER OF POLICE
[2025] SASC 180
Judgment of the Honourable Auxiliary Justice Bochner
4 November 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PROCEDURE
This is an appeal against a sentence imposed in the Magistrates Court. The appellant entered a plea of guilty to one count of aggravated indecent assault committed in February 2024. Following a discount for the plea, the appellant was sentenced to six months imprisonment. The sentence is appealed on the grounds that:
1. The sentence imposed by the Magistrate was manifestly excessive; and
2. In the alternative, the Magistrate erred in failing to impose a good behaviour bond.
The appellant contends that the Magistrate failed to consider the totality of his personal circumstances and the effect of imprisonment on his rehabilitation. The respondent contends that the Magistrate made no demonstrable error and that the circumstances of the offending warranted the sentence imposed.
Held: Application dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56(1)(c); Sentencing Act 2017 (SA) s 71(2)(b)(ii), s 96(3)(ba), s 97, referred to.
R v Morse (1979) 23 SASR 98; R v Hibeljic [2018] SASCFC 35; R v Butler (A Pseudonym) [2022] SASCA 112; R v Lomas & Symmons [2005] SASC 435; McManus v Police [2019] SASC 206; House v The King (1936) 55 CLR 499; Hackett v The Queen [2021] SASCA 32; Ndreka v The Queen [2021] SASCA 11; R v Yousef [2005] SASC 203, considered.

AHMED v COMMISSIONER OF POLICE
[2025] SASC 180

Musabbir Ahmed was sentenced in the Port Adelaide Magistrates Court on 2 May 2025, having pleaded guilty to one count of aggravated indecent assault contrary to s 56(1)(c) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced to a custodial sentence of ten months which was reduced to six months after a reduction of 40% because of his guilty plea. I note that the maximum penalty is 10 years’ imprisonment.
Grounds of appeal
Mr Ahmed says that the sentence imposed by the Magistrate was manifestly excessive. In the alternative, he says that the Magistrate erred in failing to impose a good behaviour bond pursuant to s 97 of the Sentencing Act 2017 (SA) (“the Sentencing Act”).
The circumstances of the offending
In early 2024, Mr Ahmed, who was 37 years old at the time, was working as an Uber driver. On 18 February 2024, at around 2 am, he picked up the 15-year-old victim; the booking had been made by another person. The victim sat in the back seat of the vehicle. According to Mr Ahmed, she was having a panic attack.
Part way through the journey, Mr Ahmed stopped the car. He asked the victim to get out while he smoked a cigarette. He then asked her to sit in the front seat, which she did. While he was driving, Mr Ahmed reached over and touched the victim’s breast under her top and asked her to have sex with him.
Mr Ahmed then drove to a nearby McDonald’s and purchased food for the victim. He then parked in a carpark and reached under the victim’s bra and touched her breast again. When she pushed his hand away and said, “no”, he stopped. He then drove her home.
Mr Ahmed said, and the Magistrate accepted that he believed the victim to be in her twenties, and he did not realise that the first act of touching was without consent.
The sentencing remarks
The Magistrate said:
[The victim] cannot consent to sexual conduct because of her age but I sentence you on the basis that you believed she was in her twenties. I also sentence you on the basis that you thought the first contact was consensual. The position has not been contested by the prosecution.[1]
[1] Sentencing remarks, 2.
After describing Mr Ahmed’s personal circumstances, he said:
I consider the offending to be opportunistic when your life was one of loneliness and emotional distress. I accept that you had difficult family circumstances at the time of the offence. You suffered greatly by your divorce and being isolated from your son. You turned to excessive alcohol use as a maladaptive coping mechanism with the stressors in your life. You have suffered from loneliness and struggled emotionally with your child access arrangements given that your son lives some distance away from you. None of that excuses your behaviour and nor have you sought to do so, but they are your personal circumstances at the time. Alcohol abuse was not a factor in this offending but was also a personal circumstance at the time.
...
You have apologised in writing to the victim via the court and I accept that you are remorseful and contrite.
Of sentence
I make it patently clear that I am sentencing on the factual basis that you did not realise the age of BT. I also make it patently clear, that I sentence you on the factual basis of the first act of touching, that you were not aware that touching was non-consensual.
However, you were an Uber driver. You were in a position of trust with a female passenger in the early hours of the morning and accepting your submissions, she was having a panic attack. Of the uncontested allegations of the police, you were the one who asked her to sit in the front seat of the vehicle.
Not only did you touch here (sic) non-consensually on the second occasion, but you propositioned her for sex and that should never have happened as an Uber driver, no matter what the circumstances.
If I find that a sentence of imprisonment is the only sentence that can be justified given the seriousness of the offence, I cannot suspend that term of imprisonment, make a home detention order, nor impose an intensive corrections order. That is what Parliament has dictated in such matters.
So, of the sentencing armoury available to me, I am left with the alternatives of community service, a fine or a good behaviour bond either individually or in any allowable combination. It is either that, or a term of imprisonment to be served immediately.
I am cognisant of the provisions of the Sentencing Act, and I publicly denounce your offending. The safety of the community is paramount and whilst you may be no threat to others in the future, general deterrence looms large for people in a position of trust such as Uber drivers and others with passengers in their care. General deterrence carries quite some weight as a message to others in the community in positions such as yours, that such behaviour is entirely unacceptable in the circumstances to which you have pleaded.[2]
[2] Sentencing remarks, 4 – 5.
The Magistrate rejected the submission by Mr Ahmed’s counsel that a bond was appropriate and said:
I say that a sentence of imprisonment is the only sentence that can be justified given the seriousness of the offence upon the facts I have heard and in all the circumstances.
The seriousness of this offending and the punitive and protective purposes of punishment in the circumstances of this matter are not adequately reflected by ordering a good behaviour bond in my discretion and in all the circumstances before me.[3]
[3] Sentencing remarks, 5.
Submissions made on behalf of Mr Ahmed
Counsel for Mr Ahmed, Mr Mickan, submitted that Mr Ahmed had no prior convictions, and that the offending occurred in the context of situational stressors, including loneliness, distress and alcoholism, following divorce from his wife and separation from his son. It was accepted by the Magistrate that he believed that the victim consented to the first act of touching. It appears, however, that the Magistrate found that, at the time of the second act, he was aware that the victim did not consent. Mr Mickan submitted that this finding was inconsistent with the objective and subjective circumstances found by the Magistrate. Mr Ahmed’s belief, which was accepted by the Magistrate, that the first act was consensual, informed his state of mind at the time of the second act; the victim only indicated her lack of consent after the second act occurred and so this could not inform his state of mind at the time it occurred. There is no suggestion that Mr Ahmed continued to try to touch the victim after she indicated her lack of consent. On the basis of the facts accepted by the Magistrate, he was in error to find that he knew that the victim did not consent at the time of the second act. To sentence on this basis demonstrates error.
Mr Mickan submitted that Mr Ahmed’s state of mind reduced his moral culpability and reduced the need for community protection, and personal and general deterrence. This latter consideration is further mitigated by his remorse and contrition, the support of his family, friends and community and the cognitive behavioural therapy with which he has engaged. Mr Mickan further submitted that Mr Ahmed’s psychologist expressed the view that imprisonment would likely have an adverse effect on his rehabilitation.
Mr Mickan relied on authorities such as R v Morse[4], where King CJ said:
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
…
Of course, no two cases are alike and each sentence must be considered in relation to the facts of the particular case.[5]
[4] (1979) 23 SASR 98.
[5] Ibid, 99.
He also relied on R v Hibeljic[6], where, more recently, the Full Court said:
In considering a submission of manifest excess, it is appropriate to bear in mind the approach mandated by the High Court in Hili v The Queen. This requires a consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. In the context of sentencing for more than one offence, regard must also be had to the need to ensure proportionality in the overall sentence. But ultimately there is a limit to the amount of analysis that may be brought to bear. Often manifest excess will be a conclusion that does not admit of lengthy exposition.[7]
[6] [2018] SASCFC 35
[7] Ibid, [43].
In relation to the imposition of a good behaviour bond, Mr Mickan referred to the case of R v Butler (A Pseudonym)[8] where the Court of Appeal addressed the effect of ss 71(2)(b)(ii) and 96(3)(ba) of the Sentencing Act and the circumstances in which it is appropriate to impose a good behaviour bond. It said:
[8] [2022] SASCA 112.
As a consequence of amendments made in the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Act 2019 (SA) (the 2019 Amendments) which commenced on 23 May 2019, the sentencing judge was precluded by ss 71(2)(b)(ii) and 96(3)(ba) of the Sentencing Act from imposing a suspended sentence or a home detention order. This is because the respondent was being sentenced as an adult for two counts of a designated “serious sexual offence”, neither of which were committed in the “prescribed circumstances” in ss 71(6) or 96(10) of the Sentencing Act.
Section 10(2)(a) of the Sentencing Act enshrines the principle, long recognised in the criminal law, that imprisonment is the sentencing option of last resort. That is, no other penalty can be justified. A court cannot impose a sentence of imprisonment unless positively satisfied that a sentencing option short of imprisonment is inappropriate.
…
As Kourakis CJ said in R v MJJ, the sexual abuse of children calls for a “strongly deterrent sentencing response”. Accordingly, matters personal to an offender, while not irrelevant, will be accorded relatively limited weight.
In a similar vein, in Evans v The Queen, Kelly and Parker JJ stated:
This Court has long recognised that it is necessary for courts to impose penalties which protect young people from their own immaturity and from older people prepared to take advantage of their youth and naivety. In these circumstances, the need for personal and general deterrence has often been emphasised.
A good behaviour bond under s 97 of the Sentencing Act may be imposed if the court “thinks that good reason exists for doing so”. These words are of wide import, but the discretion to impose a good behaviour bond for an offence of unlawful sexual intercourse cannot be exercised in a vacuum without regard to the principles we have just referred to and, in particular, the need to impose strongly deterrent sentences. While good behaviour bonds have been imposed in cases of sexual offending against children, generally speaking, as a matter of fact, the usual sentencing outcome for the offence of unlawful sexual intercourse will be imprisonment. Prior to the 2019 Amendments, leniency by way of a suspended sentence or a home detention order may have been extended, but Parliament has now foreclosed these options, other than in limited circumstances which do not apply to the respondent.[9]
(Footnotes omitted)
[9] Ibid, [56] – [70].
Mr Mickan referred to the case of R v Lomas & Symmons.[10] In this case, the victim was 15 and the respondents were 19 and 18 respectively. The sentencing judge did not record convictions on the basis that they entered into good behaviour bonds. The Full Court dismissed an appeal against sentence and in upholding the sentence imposed by the sentencing judge, relied on the facts that the respondents stopped when the victim indicated her lack of consent, they were mistaken as to her age and they were young, of good character and had no previous convictions.
[10] [2005] SASC 435.
He also relied on McManus v Police[11], where, in allowing an appeal against a sentence of imprisonment, the Court took into account the appellant’s lack of criminal record, his acceptance of responsibility for his conduct, his recognition of the harm he caused to his victim, the unlikelihood of his reoffending and his good prospects of rehabilitation. In particular, Bampton J said:
The primary purpose for sentencing Mr McManus, which must be the paramount consideration in determining and imposing the sentence, is to protect the safety of the community. The seriousness of the offending and the punitive and protective purposes of punishment in the circumstances of this matter are, in my view, adequately reflected by the making of an order under s 97 of the Sentencing Act. Most importantly, such an order will allow Mr McManus to immediately undertake the intervention measures recommended by Mr Fugler, giving him the best chance of rehabilitation and thereby ensuring the protection of the safety of the community.[12]
[11] [2019] SASC 206.
[12] Ibid, [42].
Mr Mickan noted that the Magistrate rejected his submission that McManus was good authority for the submission that a bond was appropriate, on the basis that the circumstances of McManus were very different and did not involve a breach of trust. Mr Mickan criticised the Magistrate’s approach in this regard, which he said failed to consider the totality of the circumstances. In particular, he failed to take into consideration Mr Ahmed’s personal circumstances and his rehabilitation which would be assisted by a bond.
Mr Mickan submitted that in all of the circumstances, the appeal should be allowed.
The respondent’s submissions
Ms Lakatos, on behalf of the respondent, emphasised the fact that an appeal of this nature is governed by the principles in House v The King.[13] In this regard, she relied on the restatement of these principles in Hackett v The Queen[14], where the Court of Appeal said:
The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.[15]
(Footnotes omitted)
[13] (1936) 55 CLR 499.
[14] [2021] SASCA 32.
[15] Ibid, [8].
Ms Lakatos submitted that no outcome error can be demonstrated in the Magistrate’s refusal to impose a good behaviour bond rather than a period of imprisonment. He clearly articulated the matters that he took into consideration when determining that a bond would not adequately reflect the seriousness of Mr Ahmed’s conduct, including his position of trust as an Uber driver, the first act was compounded with a request to engage in sexual intercourse, and the fact that he had asked the victim to sit in the front seat, which allowed him to commit the offence.
Ms Lakatos submitted that an offence such as this is often committed by a person with no previous convictions, and with personal circumstances which might suggest that personal deterrence would not be a significant factor in any sentence imposed. General deterrence, however, is an important factor to be considered when determining the appropriate sentence. In this regard, she relied on the case of Bignell v Police[16], where Bleby J said:
Of course much can be and was said in favour of the appellant. A regrettable feature of so many sexual abuse cases of this nature that come before the courts is that defendants have impeccable records, are decent hardworking upright members of society, undertake substantial community service, and on the surface have a good healthy family and marital relationship. Furthermore, they almost invariably show genuine and deep remorse.
It is because of all those common features that deterrence becomes such a significant element, and why custodial sentences, distasteful as they may be, are more often than not imposed. The fact that the appellant has good support systems, and still enjoys cordial relationships with the victims, speaks volumes for those who support him and stand by him, and says much for the Christian and forgiving attitude of his victims. He and they are extremely fortunate people, however that cannot detract from the seriousness of the offences, and the need to deter others of equal standing in the community who may be tempted to engage in similar conduct.[17]
[16] Unreported, Bleby J, 11 December 1997.
[17] Ibid, 5.

In her submissions, Ms Lakatos emphasised the fact that Mr Ahmed was to be sentenced for an offence committed against a child aged between 14 and 17 years. Thus, the offence is aggravated by the fact that the victim was incapable of consenting. Having pleaded guilty to the offence of aggravated indecent assault, he pleaded guilty to engaging intentionally in non-consensual touching of a child. As a result, his submission that he believed that the victim was in her twenties should be treated with caution. She submitted that consent by a child is irrelevant to the overall assessment of the criminality of the conduct where there is a significant age difference between the victim and the perpetrator. This is demonstrated by the facts of R v Lomas & Symonds.
Ms Lakatos submitted that it was a relevant consideration that Mr Ahmed was in a position of trust and was only able to commit the offence because of his employment as an Uber driver. He took advantage of her vulnerability, including her age, the time of the offence (the early hours of the morning), and she was having a panic attack. There was a significant age difference between the parties, which led to a power imbalance between them. It was during the second act that the victim pushed Mr Ahmed’s hand away and said, “no”.
Ms Lakatos distinguished this case from McManus. In that case, the Magistrate sentenced on a more serious factual basis, misunderstood a relevant part of the report of the appellant’s psychologist and the appellant had extenuating personal circumstances.
Ms Lakatos submitted that Mr Ahmed’s personal circumstances were no different to many other offenders: he was lonely, depressed and abused alcohol. She further noted that the psychologist found that there was no clear causal link between Mr Ahmed’s psychological state and his offending.
Ms Lakatos submitted that the sentence of ten months was not so unjust as to warrant intervention.
Consideration
In McManus, Bampton J described the purposes of sentencing in the following way:
The Sentencing Act prescribes that the primary purpose for sentencing a defendant for an offence is to protect the safety of the community. Protection of vulnerable young persons is a paramount consideration. The secondary purposes are to ensure Mr McManus is punished and held accountable, to publicly denounce his conduct, to publicly recognise the harm done to the victim, to provide personal and general deterrence, and to promote his rehabilitation.[18]
[18] [2019] SASC 206, [39].
Taking into account these purposes, and the principles set out in House v The King, I am not satisfied that the sentence imposed by the Magistrate was manifestly excessive, or that he erred in failing to impose a good behaviour bond. In Ndreka v The Queen[19], the Court of Appeal said this:
The principles governing the Court’s consideration of a submission of manifest excess are well-known. They were summarised by the High Court in Dinsdale v The Queen and Hili v The Queen. They require satisfaction by the appellate court that the impugned sentence is unreasonably high, or plainly unjust, in the sense required by House v The King. It is not enough that the sentence is higher than what the appellate court, or some other sentencing judge, might have imposed. The appellate court will only interfere if the sentence is outside the range of sentences that might reasonably have been imposed. Whether this is so requires consideration of the range of matters relevant to the sentencing task, including the maximum penalty for the relevant offending, where the circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. But ultimately there is a limit to the amount of analysis that may be brought to bear. Often the existence or otherwise of manifest excess will be a conclusion that does not admit of lengthy exposition.[20]
(Footnotes omitted)
[19] [2021] SASCA 11.
[20] Ibid, 28.
There is nothing in the sentence imposed by the Magistrate which is indicative of manifest excess. The sentencing remarks of the Magistrate are detailed and clearly explain the basis for the sentence imposed. He appropriately took into consideration the fact that Mr Ahmed believed the victim was in her twenties and that the first act was consensual; that he was in a position of trust as an Uber driver, driving a young female passenger at 2 am; that the victim was having a panic attack; that he asked her to sit in the front seat of the vehicle; Mr Ahmed’s personal circumstances; and the need for both personal and general deterrence. He also took into consideration the opinion of Mr Ahmed’s psychologist. He made no error in distinguishing McManus from the case before him, where demonstrable errors had been made by the sentencing magistrate. No error can be identified in any of this reasoning. I further consider that the case of Lomas & Symonds is also distinguishable, because of the relatively small age difference between the offenders and the victim, and the fact that the offenders were not in a position of trust vis-à-vis the victim.
In determining that no error has been demonstrated, I have taken into consideration the words of the Court in R v Yousef[21], in which a taxi driver was sentenced for the offence of false imprisonment. The Court said:
In this case, the offence was deliberate. It continued over a period of time. The respondent was in a position of power by reason of the age differential as well as the fact that his passenger was a woman. The experience was a terrifying one.
There is also a significant public interest. Taxi drivers have a responsibility to the public to safely convey passengers who engage them. They provide an essential service to many members of the public. Many members of the public rely upon taxi drivers. In particular, there are many vulnerable individuals who are unable to travel on public transport, due to age or infirmity, who require the assistance of taxi drivers. Young women also rely on taxis as a safe means of transport. The public is reliant upon the honesty and integrity of those who transport them. Often members of the public who engage taxi drivers are not familiar with the areas into which they travel. They are entitled to expect to be conveyed to their destination by the most efficient and most economical route.[22]
[21] [2005] SASC 203.
[22] Ibid, [49] – [50].
These words are apposite to the offending in question. The victim was a vulnerable young person, as evidenced by the fact that she was female, much younger than Mr Ahmed, alone in an Uber at 2 am and having a panic attack. She was entitled to trust him to convey her to her destination without the risk of indecent assault. This trust was breached.
Taking into account all of the circumstances surrounding the offending, and the need for personal and general deterrence in relation to offences such as this against children, no error on the part of the Magistrate has been demonstrated.
The appeal will be dismissed.