Hird v The King - [2025] SASCA 104

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HIRD v THE KING
[2025] SASCA 104
Judgment of the Court of Appeal (ex tempore)
(The Honourable Acting Chief Justice Livesey, the Honourable Justice David and the Honourable Auxiliary Justice Mullins)
19 September 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - THREATS TO KILL
This is an appeal against sentence.
The appellant pleaded guilty to two counts of aggravated threatening life (Counts 2 and 3), contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), and one count of aggravated assault (Count 4), contrary to s 20(3) of the CLCA.
On 17 July 2024, the appellant threatened to kill his partner in front of her young child (Count 2). The appellant also pushed his partner and wrapped his left arm around her neck (Count 4). The circumstances of aggravation for these two counts were that the appellant was in a relationship with his partner.
Once the appellant let his partner go, she went outside and called her neighbour for help. Her neighbour’s sister attended the house to retrieve the child. While she was inside the house, the appellant pointed an imitation handgun at her and placed the barrel of the gun on her forehead (Count 3). The circumstances of aggravation was that the appellant threatened to use an offensive weapon.
The sentencing Judge imposed the following sentence:
-     in relation to Count 2, he commenced with a starting point of imprisonment for three and a half years reduced by 15 per cent on account of his guilty plea to two years, 11 months and 22 days;
- in relation to Count 4, he adopted a starting point of imprisonment for one year, reduced by 35 per cent on account of his guilty plea to seven months and 25 days, ordered to be served wholly concurrently with the earlier sentence; and
-     in relation to Count 3, he adopted a starting point of three years’ imprisonment, reduced by 15 per cent on account of his guilty plea to two years, six months and 19 days, and ordered that one year and six months of this sentence be served concurrently with the earlier sentences of imprisonment.
This resulted in a head sentence of four years, 11 days' imprisonment. A non-parole period of two years was fixed.
The appellant complains that the sentence was manifestly excessive by reason of the sentencing Judge’s decision to decline to suspend the sentence or order that it be served on home detention. The appellant also separately complains that the sentencing Judge erred by failing to consider, at all, whether the sentence be served on home detention
Held, per the Court, granting permission to appeal but dismissing the appeal:
1.    The sentence is not manifestly excessive by reason of the sentencing Judge’s decision to decline to suspend the sentence or by not making a home detention order.
2.    The sentencing Judge’s failure to mention the issue of home detention in his sentencing remarks is not indicative of his failure to consider the option; but rather, reflects his view the imposition of such an order would, or may, have affected public confidence in the administration of justice.
Criminal Law Consolidation Act 1935 (SA) ss 19(1), 20(3); Sentencing Act 2017 (SA) s 71, referred to.
House v The King (1936) 55 CLR 499, discussed.
R v Nedza [2013] SASCFC 142; Trott-Dan v The King [2023] SASCA 2; R v Henderson (2023) 142 SASR 507; Millwood v The King [2024] SASCA 84; Hueppauff v The King [2024] SASCA 11; Brooks v The King [2025] SASCA 88, considered.

HIRD v THE KING
[2025] SASCA 104
Court of Appeal – Criminal: Livesey ACJ, David JA and Mullins AJA:

THE COURT: The appellant pleaded guilty to two counts of aggravated threatening life, contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The charges related to his former partner (Count 2), and her neighbour’s sister (Count 3). The circumstances of aggravation were that the appellant was in a relationship with his partner, and that he used or threatened to use an offensive weapon when committing the offence against the neighbour’s sister. The maximum penalty for each of the two counts of aggravated threatening life is 12 years’ imprisonment.
The appellant also pleaded guilty to one count of aggravated assault, contrary to s 20(3) of the CLCA (Count 4). Again, the circumstance of aggravation was that the appellant was in a relationship with his partner. The maximum penalty for this offence is three years’ imprisonment.
The appellant was sentenced as follows. In relation to the offence of aggravated threatening life committed on his partner (Count 2), the sentencing Judge adopted a starting point of imprisonment for three and a half years reduced by 15 per cent on account of his guilty plea to two years, 11 months and 22 days. In relation to the offence of aggravated assault (Count 4), the sentencing Judge adopted a starting point of imprisonment for one year, reduced by 35 per cent on account of his guilty plea to seven months and 25 days. This sentence was ordered to be served wholly concurrently with the earlier sentence.
In relation to the offence of aggravated threatening life involving the neighbour’s sister (Count 3), the sentencing Judge adopted a starting point of three years’ imprisonment, reduced by 15 per cent on account of his guilty plea to two years, six months and 19 days. The Judge ordered that one year and six months of this sentence be served concurrently with the earlier sentences of imprisonment.
This resulted in a total head sentence of four years and eleven days’ imprisonment. A non-parole period of two years was fixed. The sentencing Judge found there was not good reason to suspend the sentence. His Honour did not explicitly address the issue of home detention. The head sentence and non-parole period were backdated to commence on 17 July 2024. Intervention orders were imposed, by consent, in respect of both victims.
The appellant now complains that the sentence was manifestly excessive by reason of the sentencing Judge’s decision to decline to suspend the sentence or order that it be served on home detention. Under this ground of appeal, the appellant does not challenge the length of the head sentence or non-parole period.
The appellant also separately complains that the sentencing Judge failed to have regard to all relevant matters when considering the question of suspension, and erred by failing to consider, at all, whether the sentence be served on home detention.
Circumstances of the offending
On 17 July 2024, the appellant was at the home he shared with his former partner and her three-year-old son, A. The appellant and his partner had been in a relationship for about three years. The appellant was drinking alcohol and during the afternoon became increasingly verbally abusive.
The appellant’s partner used her mobile phone to make three audio recordings which captured some of that abuse.[1] The appellant can be heard swearing at his partner, berating her in front of her child, and complaining that he had been left to look after her child, using an expletive when referring to A. The appellant also threatened to kill himself and to kill his partner (Count 2).
[1] Recording made at 6:06pm. The transcript of the recording is attached to the declaration of Ashley Traeger dated 26 August 2024, Annexure JWM2.
The appellant’s partner was also recording the appellant while she was standing in the doorway of her child’s bedroom. While in this position, the appellant pushed her back into the bedroom and wrapped his left arm around her neck (Count 4). He pushed her head back with his other hand and said he was going to knock her out and hang her until she died. The appellant then grabbed his partner’s face and told her that it was her fault for making him do that. He said that he did not want to hurt her, but if he could not have her then no-one could. His partner was screaming that she was sorry and begged for him to let her go.
Once the appellant let his partner go, she went outside and called her neighbour for help. Her neighbour’s sister attended the house to retrieve A. While she was inside the house, the appellant pointed an imitation handgun at her and placed the barrel of the gun on her forehead (Count 3). She put her hands up and said that she was only there to take the child. The appellant lowered the gun and said that he was sick of women telling him what to do and that he gets women screaming at him all day long.
The neighbour’s sister suggested that she could take the child to give the appellant some space. He allowed her to do so, and she returned next door with the child.
The sentencing Judge received victim impact statements from the appellant’s partner and her neighbour’s sister. They both described the ongoing adverse effect of the appellant’s unlawful conduct on them.
Personal circumstances
At the time of sentencing, the appellant was 35 years of age. He was raised by his mother in Port Lincoln, and they had a close relationship. The appellant’s mother became ill with a brain tumour and died in December 2023. Following her death, the appellant became increasingly dependent upon alcohol to deal with his grief.
The appellant left school after year 11 and obtained a Certificate III in metal fabrication and automotive, as well as an aquaculture certificate through the fishing academy in Port Lincoln. At the age of 16, the appellant began working seasonally on fishing boats and has continued to do so ever since.
In 2014, the appellant commenced a relationship with a previous partner. They have three children together. His previous partner also has one son from a former relationship to whom the appellant has been a father figure. The children are now aged 11, nine, seven and five years old. Since their separation, the appellant has continued to financially support all four children. He has an amicable relationship with his previous partner.
The appellant has no relevant prior convictions.
The sentencing Judge received a character reference from the appellant’s employer, who spoke well of him and indicated he is willing to employ him in the future.
Sentencing remarks
The sentencing remarks were relatively brief. The sentencing Judge summarised the facts, and the appellant’s personal circumstances. His Honour then proceeded to impose the sentence outlined earlier.
When considering the question of suspension, the sentencing Judge said:
Your counsel submits that there is good reason to suspend the sentence. She refers to your guilty pleas entered early in the Magistrates Court, the fact that you have no antecedents for violence, and that the last offending of any sort was nine years ago.
While each of those submissions is perfectly relevant, I do not find that they amount to good reason to suspend the sentence. This was serious offending carried out in the presence of a very young child and carried out against an innocent party coming to protect that child.
The question of home detention was not mentioned at all.
Appeal grounds 1, 2 and 3 - manifest excess
It is convenient to commence with a consideration of the ground of manifest excess. The applicable principles are well established and need not be repeated. The determinative question is whether, after considering all the circumstances relevant to sentence, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust.[2]
[2]House v the King (1936) 55 CLR 499 at 504–505 (Dixon, Evatt and McTiernan JJ).
The appellant contends that it was not open, in the circumstances of this case, for the sentencing Judge to impose an immediate term of imprisonment to be served in custody. That is, it was not open to decline to suspend the sentence or refuse to order the sentence be served on home detention. In support of this contention, the appellant relies on the following matters:
·     the appellant’s lack of prior convictions for offences of violence;
·     his remorse as demonstrated by his early guilty pleas;
·     that he had served 10 months in custody at the time of sentence that being his first time incarcerated;
·     his previous good character; and
·     upon his release he would likely obtain employment with his former employer and would be able to reside with his previous partner and their children.
The appellant also relies on the prosecutor’s concession before the sentencing Judge that it was open to find good reason to suspend any sentence imposed, or alternatively, fix a lower than usual non-parole period.
While accepting that a prosecutor’s submissions as to penalty does not bind a sentencing judge, the appellant submits that the prosecution’s position at first instance is relevant for three reasons. First, it reflects the community’s expectations as to the seriousness of the matter and the level of sentence required. Secondly, it informs both the sentencing Judge and the appellate courts as to the level of perceived risk to the victims; that is, a suspended sentence with conditions and the agreed intervention orders are sufficient to meet that purpose of punishment. Thirdly, the failure by the sentencing Judge to refer to the concession indicates that he neglected to consider relevant matters when declining to suspend the sentence.
The appellant contends that those matters together provided the sentencing Judge with ‘good reason’ to suspend the sentence or alternatively, rendered it appropriate to order the sentence be served on home detention. The appellant emphasises that the sentencing Judge was not legislatively precluded from making either order.
When determining this ground of appeal, it is necessary to begin with a consideration of the nature and circumstances of the offending.
The offending, considered as a whole, was objectively grave and at the upper end of seriousness for offences of this kind. The audio recordings captured the sustained and violent nature of the appellant’s threats of harm towards his partner. In addition, he physically attacked her in the presence of her very young child. While doing so, he threatened to knock her out and hang her until she died. He made serious threats against her including that if he could not have her, then no–one could, and then stated that he was not only going to kill her, but also himself, and that they would all be found dead in one place.
This is a serious example of violent offending committed in a family context.
The offending was not isolated. While the appellant had not previously physically attacked his partner, his verbal abuse of her was not confined to this incident. It was accepted that in the year preceding the offences, there had been an escalation in the appellant’s verbal abuse of his partner. There was accordingly less scope for leniency.
The latter offence of aggravated threatening life was committed against a neighbour’s sister who came to assist by retrieving a very young child from a dangerous situation. Moreover, the appellant’s use of a firearm when threatening her rendered this offence particularly serious. While it is true that the handgun was an imitation firearm, she was not to know this. The incident has understandably had an ongoing adverse impact on her.
In those circumstances, the sentencing Judge was obliged to impose a sentence which properly met the sentencing objectives of both general and personal deterrence and the paramountcy to be afforded to the protection of the safety of the community.
While it is true that the appellant had no relevant prior convictions, and there was a basis to find that he had good prospects of rehabilitation, the sentencing Judge reflected those matters in the orders for partial concurrency (which tempered the overall sentence) and by fixing a lower non-parole period which was slightly less than 50 per cent of the head sentence.
The fact remains that this incident was an objectively serious example of this type of offending. As outlined earlier, the offences were committed in a family context, in the presence of a young child and over a protracted period. The appellant not only inflicted violence on his partner but threatened her neighbour’s sister with a firearm.
Recent decisions of this Court involving offences of violence committed in a family or domestic setting have emphasised that sentences must reflect the prevalence of offending of this kind in the community, the adverse impact of such offending on the community, and the requirement that sentences are strongly denunciatory of such conduct so as to deter likeminded offenders from committing offences of domestic violence.[3]
[3] See for example: R v Nedza [2013] SASCFC 142 at [87] (Nicholson J with whom Stanley J agreed); Trott-Dan v The King [2023] SASCA 2 at [43]; Millwood v The King [2024] SASCA 84 at [20] (Livesey ACJ and Bleby JA); Brooks v The King [2025] SASCA 88 at [66] (Livesey P and David JA).
For those reasons, we do not consider the sentence was plainly unjust by reason of the sentencing Judge declining to suspend the sentence.
As to the separate but aligned complaint that the sentencing Judge failed to consider all relevant matters when considering the issue of suspension, while the sentencing remarks were brief, they did address the more significant matters put in mitigation. These included the appellant’s personal circumstances, his lack of relevant prior convictions, positive employment history, the support he will receive upon his release and his remorse. All those matters provided the appellant with good prospects of rehabilitation. This was reflected in the orders for concurrency or partial concurrency and a lenient non-parole period.
A sentencing judge is not required to recite every matter relied upon, and in this case, the remarks considered as a whole indicate that the sentencing Judge had regard to defence counsel’s submissions as to the matters relied upon in support of a suspended sentence.
We also consider that the sentence was not plainly unjust as a result of the sentencing Judge not making a home detention order.
Section 71 of the Sentencing Act 2017 (SA) (‘Sentencing Act’) empowers a court to order home detention where: a sentence of imprisonment has been imposed; the sentence is not to be suspended; and the court considers the defendant to be a suitable person to serve the sentence on home detention.[4] Importantly, however, s 71(2)(a) of the Sentencing Act provides that a home detention order must not be made if the court considers that the making of such an order would, or may, affect public confidence in the administration of justice. It has been observed that these terms leave little scope for an order to serve a lengthy sentence on home detention.[5]
[4] Sentencing Act 2017 (SA) s 71(1).
[5] R v Henderson (2023) 142 SASR 507 at [121]–[122] (Nicholson AJA); Hueppauff v The King [2024] SASCA 11 at [66] (Livesey P, Bleby and David JJA).
For the reasons outlined earlier, this offending was objectively grave and at the upper end of seriousness for these types of offences. While the appellant might have been a suitable person to serve the sentence on home detention, we are satisfied that the making of a home detention order in the circumstances of this case would, or may, adversely affect public confidence in the administration of justice. A home detention order would simply not provide condign punishment nor sufficiently meet the sentencing objectives of denunciation and general deterrence.

Accordingly, we do not consider it was unreasonable or plainly unjust to not order the sentence be served on home detention.
We dismiss these grounds of appeal.
Appeal ground 2a - home detention not mentioned in the sentencing remarks
The appellant also contends that the sentencing Judge erred by failing to consider home detention at all as a sentencing option. It was common ground that the sentencing Judge made no explicit reference in the sentencing remarks to the home detention provisions nor defence counsel’s submissions on this topic. Nor did he give any reasons for not ordering the sentence be served on home detention.
The appellant submits that the absence of any reference to the issue of home detention in the sentencing remarks supports his contention that the sentencing process was affected by error.
By contrast, the respondent submits that the sentencing Judge was aware of this sentencing option (which was explicitly raised during sentencing submissions by both defence counsel and the prosecutor) but simply omitted to mention it because a home detention order was not realistically available.
For the reasons outlined earlier, this offending was objectively grave and the making of a home detention order in the circumstances of this case would, or may, adversely affect public confidence in the administration of justice. In those circumstances, we consider that the sentencing Judge’s failure to mention the issue of home detention in his sentencing remarks is not indicative of his failure to consider the option; but rather, reflects his view that the imposition of such an order would, or may have, affected public confidence in the administration of justice.
In any event, had we reached a different conclusion and found there was a process error, in the independent exercise of our sentencing discretion, we would not impose a different or lesser sentence.
We dismiss this ground of appeal.
Orders
We grant permission to appeal but dismiss the appeal.