GALLAGHER v Police

Case [2025] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

GALLAGHER v POLICE

[2025] SASC 16

Judgment of the Honourable Justice McDonald 

21 February 2025

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

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS

This is an appeal against a sentence imposed in the Port Adelaide Magistrates Court on 3 September 2024.  On this date, the appellant pleaded guilty to two counts of breaching bail.  The Magistrate imposed a bond to be of good behaviour for 12 months as well as recording convictions.

The appellant appeals the Magistrate’s decision on the basis that the Magistrate erred in the exercise of the sentencing discretion by deciding to record convictions against the appellant.  The appellant contends that the recording of convictions against the appellant and the consequences that follow, including the appellant’s prospects of maintaining employment and the desire to commence studying at university, result in a disproportionate outcome.

A further contention raised by the appellant is that the Magistrate failed to provide sufficient reasons for the decision.  The appellant submits that the Magistrate failed to clearly set out the factual basis upon which the decision to record convictions was made and that there was insufficient clarity regarding the specific section of the Sentencing Act 2017 (SA) applied in determining the sentence.

The appellant also contends that the sentence imposed was manifestly excessive on the grounds that the sentencing standard for offences of this nature are highly fact dependent and vary significantly. It is further submitted that insufficient consideration was given to the appellant’s personal circumstances and lack of criminal convictions in arriving at the sentence. The appellant further contends that the offences, subject of this appeal, were not of a serious nature and should be regarded as falling towards the lower end of the scale of serious offences.

Held; the appeal is allowed.

1.The sentence imposed on 3 September 2024 is revoked on the basis that the Magistrate failed to provide adequate reasoning for the basis of the decision.

2.      The appellant is to be resentenced.

Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 23, s 24, s 97; Bail Act 1985 (SA) s 10(4); Joint Criminal Rules 2022 (SA) r 191.1, referred to.

R v Lobban (2001) 80 SASR 550; House v The King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; Lowndes v The Queen (1999) 195 CLR 665; Wainohu v New South Wales (2011) 243 CLR 181; Fleming v The Queen (1998) 197 CLR 250; R v Keyte (2000) 78 SASR 68; DL v The Queen (2018) 266 CLR 1; Boyle (A Pseudonym) v…

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GALLAGHER v Police [2025] SASC 16
Case
[2025] SASC 16
Decision Date

CaseChat Overview and Summary

In the matter of Gallagher v Police, the appellant contested the sentence imposed by the Magistrates Court following their conviction for breaching bail conditions. The case was heard in the Supreme Court of South Australia where the appellant sought to appeal the severity of the sentence, arguing that it was excessive. The legal issues before the court centred on whether the sentence was manifestly excessive or inadequate, and whether the Magistrate had failed to give reasons for their decision. Additionally, the court considered the general principles of appeal, particularly the discretion to record a conviction and the relevant considerations in sentencing.

The court examined the Magistrate's decision to impose a 12-month good behaviour bond and whether it fell within the appropriate range of sentences for a serious breach of bail. The court found that the breach was deliberate and intended to protect the alleged victim of an offence, which justified a stringent sentence. It also noted that there is no uniform sentencing standard for breaching bail, given the wide variation in the nature of different offences. The court concluded that the sentence was not manifestly excessive, as it was within the range of appropriate sentences for the circumstances of the case.

In light of the findings, the appeal was allowed, and the sentence imposed on 3 September 2024 was revoked. The court indicated that it would hear from the parties regarding whether to resentence the appellant or remit the matter back to the Magistrates Court for resentence before a different Magistrate. The decision underscored the importance of appropriate sentencing considerations and the need for reasons to be given for sentencing decisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no sentencing standard for breaching bail given the breadth of the variation between different offences.[29] For reasons that I have already canvassed, I agree with the Magistrate that this was a serious breach of bail; this was a deliberate breach of a condition designed to protect the alleged victim of an offence. In such circumstances, it cannot be said that a 12 month good behaviour bond fell outside of the range of sentences that were appropriate for the Magistrate to impose. [29] Brady v Police [2022] SASC 114 at [23].Conclusion I allow the appeal. The sentence imposed on 3 September 2024 is revoked. I will hear the parties as to whether I should resentence the appellant or remit the matter back to the Magistrates Court for resentence before a different Magistrate.

Ratio Decidendi

Legal Principle Established

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