Hird v The King
[2025] SASCA 69
•11 June 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HIRD v THE KING
[2025] SASCA 69
Decision of the Honourable Acting Chief Justice Livesey (ex tempore)
11 June 2025
CRIMINAL LAW - PROCEDURE - BAIL - AFTER CONVICTION
The applicant applied for bail pending appeal pursuant to s 10(2) of the Bail Act 1985 (SA). The appellant sought bail on the basis of home detention bail. The respondent opposed bail in any form.
The applicant pleaded guilty to two counts of threatening to kill or endanger life, contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), and one count of aggravated assault, contrary to s 20(3) of the CLCA. The appellant was sentenced by the sentencing judge to four years and 11 days imprisonment with a non-parole period of two years.
The offending involved the applicant’s domestic partner and their neighbour’s sister. The first charge of threatening to kill or endanger life constituted the applicant threatening to kill his partner, whilst the aggravated assault involved the applicant putting his arm around his partner’s neck and threatening her. The second charge of threatening to kill or endanger life involved the applicant taking a handgun and pointing the barrel of the gun to the forehead of their neighbour’s sister. She did not know that the handgun was a replica.
Held, refusing bail pending appeal and dismissing the application:
1.The discretion conferred by s 10(2) of the Bail Act must be exercised having regard to all of the relevant factors. According to s 10(4) of the Bail Act, primary consideration must be given “to the need that the victim may have, or perceive, for physical protection from the applicant”.
2.The offending for which the applicant has been convicted is very serious.
3.Although the appeal raises genuine issues, it is not such an obvious case that it is appropriate to predict the likely outcome of the appeal.
4.In particular, whilst there appears to be a material error regarding the failure of the sentencing judge to consider home detention, the outcome on re-sentence cannot be predicted.
5.Releasing a convicted and imprisoned appellant on bail pending a sentence appeal will necessarily raise the policy considerations which tell against bail, referred to in cases such as R v Giordano and Beshara.
Bail Act 1985 (SA) ss 10(2), 10(4); Criminal Law Consolidation Act 1935 (SA) ss 19(1), 20(3), 20A(1); Sentencing Act 2017 (SA) s 96, referred to.
Beshara & Kleut v Paphitis (1987) 136 LSJS 16; C, TL v Police [2010] SASC 115; Deng v The King [2023] SASCA 35; Deng v The King (No 2) (2023) SASR 1; Ex Parte Maher (1986) 1 Qd R 303; Kentwell v The Queen (2014) 252 CLR 601; Nankivell v The King [2024] SASCA 71; R v Baker [2000] SASC 281; R v Blayney [2002] SASC 184; R v Flanigan (unreported judgment, Supreme Court of South Australia, Debelle J, 25 November 1996, S5937; R v Frederick [2004] SASC 304; R v Giordano (1982) 31 SASR 241; R v Jensen-Coulson [2023] SASCA 76; R v Kelly [2023] SASCA 22; R v Kostaras [2002] SASC 231; R v McKelliff [2003] SASC 357, considered.
HIRD v THE KING
[2025] SASCA 69
Court of Appeal – Criminal – Application
LIVESEY ACJ (ex tempore):
Introduction
The applicant has applied for bail pending an appeal against sentence pursuant to s 10(2) of the Bail Act 1985 (SA) (the Bail Act).
The applicant pleaded guilty to two counts of threatening to kill or endanger life contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), and one count of aggravated assault contrary to s 20(3) of the CLCA.
The applicant is 35 years. His prior convictions do not involve violent offending. The applicant seeks home detention bail. The applicant contends that the strength of his appeal and his suitability for home detention support his application for bail. The applicant relies on his favourable personal circumstances, particularly the availability of work and the support of his family.
The respondent submits that bail in any form is opposed. The respondent contends that this is a case where bail had previously been refused (albeit at a time when the applicant was charged with choking, contrary to s 20A(1) of the CLCA) and granting bail may raise issues concerning double jeopardy which may cause this Court some embarrassment when determining the outcome of the appeal.
The offending and sentence
The offending involved the applicant’s partner and their neighbour’s sister, Ms Lawrence. The first charge of threatening to kill or endanger life constituted the applicant threatening to kill his partner. The aggravated assault involved the applicant putting his arm around his partner’s neck and threatening her. The second charge of threatening to kill or endanger life involved the applicant taking a replica handgun and pointing the barrel of the gun to Ms Lawrence’s forehead.
According to the sentencing remarks delivered on 12 May 2025, the offending occurred on 17 July 2024 at around 4.00 pm after the applicant had been drinking whiskey and had been verbally abusive towards his domestic partner. She recorded some of what was said, and the recordings revealed that the applicant was swearing and belittling her in front of her three-year-old son.
The applicant said words to the effect that he owned everything in the house, and he complained about having to look after his partner’s son. The applicant threatened to kill himself and his partner’s father. He pushed his partner back into her son’s bedroom and wrapped his arm around her neck. He pushed her head back and said he was going to knock her out and hang her until she died. The applicant then grabbed his partner’s face and told her that it was her fault for making him do that, and that he did not want to hurt her, but that if he could not have her then no-one could.
Whilst this was occurring the applicant’s partner was saying that she was sorry. The applicant said that he was going to kill his partner, himself and they would all be found dead in one place.
The applicant’s partner left the house in fear. She left her son behind. She went to her neighbour and her neighbour had her sister, Ms Lawrence, go into the house to collect the boy. As she came into the house the applicant took up a handgun and pointed it at Ms Lawrence. He took a step forward and rested the barrel of the gun on her forehead. Ms Lawrence put up her hands and said that she was only there to take the child. Ms Lawrence did not know that the gun was a replica. The applicant lowered the gun and said that he was sick of women telling him what to do, and that women were screaming at him all day long.
The victim impact statements show that though the applicant had never previously been physically abusive toward his domestic partner, however in the preceding 12 months he had become increasingly verbally abusive, belittling her in public and making her feel worthless. Ms Lawrence said that she would never forget the fear that she felt when the gun was pointed at her. She was particularly fearful for the boy.
Before the sentencing judge consideration was given to the applicant’s favourable personal circumstances, particularly the absence of any record of violence. The applicant had a good work record and had the support of his former partner with whom he shares three children .
The appellant was sentenced by the sentencing judge to four years and 11 days imprisonment with a non-parole period of two years.
The notice of appeal
By Notice of Appeal dated 27 May 2025, the applicant appeals against sentence. The grounds of appeal are:
1.The Learned Sentencing Judge erred by failing to suspend the sentence;
2.The Learned Sentencing Judge erred by failing to consider whether the sentence should be served on home detention, or, alternatively;
2. a. The Learned Sentencing Judge erred by failing to order that the sentence be served on home detention;
3.The sentence was manifestly excessive.
The hearing before the sentencing judge
The applicant contended before the sentencing judge that the sentence of imprisonment should be suspended pursuant to s 96 of the Sentencing Act.[1] In the alternative, the applicant submitted that home detention should be ordered.[2] No Bail Enquiry (Home Detention) Report was prepared in support of that contention.
[1] Transcript, 2 May 2025, 9.23-9.26.
[2] Transcript, 2 May 2025, 14.8-14.9.
The respondent had in email correspondence dated 30 April 2025 told the applicant’s solicitors before the hearing that the Director would submit that the sentencing judge “may find good reason to suspend any sentence imposed, or alternatively, fix a lower than usual non-parole period”.
However, in sentencing submissions the respondent’s submissions were not clearly to that effect.The respondent submitted that “all sentencing options are available” but “a sentence of imprisonment is warranted”.[3] In a further submission that is difficult to understand, probably because of a transcription error, it was submitted:[4]
And then the submissions by my friend your Honour may find that good reason exists to suspend any sentence or find that lower than usual non-parole period is appropriate in this matter.
[3] Transcript, 2 May 2025, 3.37-4.6.
[4] Transcript, 2 May 2025, 3.6-4.9.
This did not reflect the correspondence. It may have been viewed as a submission about what the applicant would submit rather than what the respondent had agreed to submit. Having said that, the sentencing judge was obviously not constrained by the approach of the respondent.
An arguable case for re-sentence
The sentencing judge did not find good reason to suspend the sentence. The sentencing judge said nothing about home detention.
It seems clear that the sentencing judge failed to address the submission that, as an alternative to suspension, he should order home detention. On the face of it, that appears to be a material error.[5] However the difficult issue is whether a non‑custodial sentence will be imposed on re-sentence. Strictly, the options on re‑sentence likely include imposing a lower sentence, finding good reason to suspend, ordering home detention or finding that the same sentence should be imposed.[6]
[5] Deng v The King [2023] SASCA 35, [231] (Livesey P, Doyle and Bleby JJA); See also Deng v The King (No 2) (2023) 143 SASR 1, [69]-[79] (Livesey P, Doyle and Bleby JJA).
[6] Kentwell v The Queen (2014) 252 CLR 601.
The applicant appears to have been in custody for nearly 11 months. The appeal has not yet been listed for hearing.
The application for bail pending appeal
The applicant submitted that the strength of the case on re-sentence and suspension was demonstrated by the Director’s concession about suspension in correspondence, and that the offending was properly viewed as an aberration. It occurred some months after the death of the applicant’s mother. He did not cope with that, and he commenced drinking alcohol excessively.
Where the applicant has been convicted of the offence in respect of which he or she “has been taken into custody”, a bail authority has “an unfettered discretion as to whether the applicant should be released on bail”, subject to the Bail Act.[7] There is no presumption for or against bail on an application for bail pending appeal.[8] In R v Giordano, King CJ explained why the Court should be extremely cautious about the grant of bail pending appeal:[9]
There are practical reasons, moreover, why courts should exercise extreme caution about the grant of bail pending appeal. An appellate court does not sentence afresh in the light of circumstances which have changed since sentence was passed. It should not be placed in the invidious position, particularly on an appeal against sentence, of the dismissal of the appeal having the effect of returning to prison a person whose circumstances may have changed greatly during a period of liberty on bail pending appeal. There is a serious risk of availability of bail leading to a proliferation of unmeritorious appeals thereby adding to the strains on the system of justice. Persons undergoing punishment in custody are prone to seize any opportunity to secure release, perhaps leaving the future to take care of itself. Appeals would be launched, irrespective of the prospects of success, simply in order to secure release, or perhaps with a view to creating situations which would tend to frustrate justice by making it difficult to return the appellant to prison.
[7] Bail Act, s 10(2).
[8] Beshara & Kleut v Paphitis (1987) 136 LSJS 16 (Beshara); R v Baker [2000] SASC 281, [4]-[7] (Gray J); Nankivell v The King [2024] SASCA 71, [12] (Livesey P).
[9] R v Giordano (1982) 31 SASR 241, 242 (King CJ), followed in R v Baker [2000] SASC 281, R v Blayney [2002] SASC 184, R v Kostaras [2002] SASC 231, R v McKelliff [2003] SASC 357, R v Frederick [2004] SASC 304 and C, TL v Police [2010] SASC 115, [87]-[90] (Kelly J, with whom White J agreed).
There is a public interest in “not making it appear that a conviction is only contingent until affirmed on appeal” and in “having a convicted person serve the sentence imposed by the court as soon as is practicable”.[10]
[10] Nankivell v The King [2024] SASCA 71, [16] (Livesey P), referring to Ex Parte Maher [1986] 1 Qd R 303.
The applicant “has the task of satisfying the bail authority that his is a proper case for the grant of bail”.[11] As observed by Cox J in Beshara, that task “is never likely to be easy”:[12]
… [The] task of any defendant who applies for bail pending an appeal is never likely to be easy. That is not because a presumption, legal or factual or of some less precise kind, against the grant of bail in such a case. It is a conclusion that necessarily follows from the very circumstances inherent in any such application. These circumstances have not changed with the enactment of the Bail Act. There is nothing in the Bail Act that requires the courts to ignore them or to give them less weight than they were formerly given. That does not mean that the courts should never grant bail pending appeal. Each application must be dealt with on its own merits. However, it would seem correct to say that the grant of bail pending appeal will continue to be exceptional.
[11] Beshara (1987) 136 LSJS 16, 18 (Cox J).
[12] Beshara (1987) 136 LSJS 16, 19 (Cox J).
Similarly, Debelle J explained in R v Flanigan that “a grant of bail pending appeal will never be easy and if regard is had to all relevant factors, it might at the end of the day result in the grant of bail being an exceptional event”.[13] In C, TL v Police, Kelly J (with whom White J agreed) observed that a further consideration is “the potential for the appeal not to be prosecuted expeditiously”.[14] That does not appear to be a matter of concern in this case.
[13] R v Flanigan (unreported judgment, Supreme Court of South Australia, Debelle J, 25 November 1996, S5937).
[14] C, TL v Police [2010] SASC 115, [89] (Kelly J, with whom White J agreed).
Disposition of the bail application
I must exercise the discretion conferred by s 10(2) of the Bail Act having regard to all of the relevant factors. In the circumstances of this case, those factors include:
1.The offending for which the applicant has been convicted is very serious.
2.The non-parole period of two years means that there is no concern that the appeal may not be finalised before the sentence expires and the applicant becomes eligible for parole. Having said that, the thrust of the appeal is directed to the refusal of the sentencing judge to order suspension or home detention.
3.The applicant has been in custody since his arrest. Whilst he was previously denied bail, that was at a time before the abandonment of the choking charge, when he was a prescribed applicant.
4.Although the appeal raises genuine issues, it is not such an obvious case that it is appropriate for me to predict the likely outcome of the appeal, particularly, the outcome on re-sentence.[15] It is this issue that I think I must approach with extreme caution. There is a real risk that, were bail to be granted, and should the Court decide that incarceration remains an appropriate outcome on re-sentence, the applicant will be returned to custody. Strictly, that does not raise considerations akin to the “double jeopardy consideration of someone who has been released on bail pending appeal”.[16] This is not a Director’s application for permission to appeal. However, two issues are raised. First, there is, at the least, additional complexity presented for this Court because the applicant’s circumstances at the date of re-sentence must be taken into account. That is the “invidious position” referred to by King CJ in R v Giordano (above). Second, and more importantly, releasing a convicted and imprisoned appellant on bail pending a sentence appeal will necessarily raise the other policy considerations which tell against bail, referred to in cases such as R v Giordano and Beshara (set out earlier).
5.According to s 10(4) of the Bail Act, I must “give primary consideration to the need that the victim may have, or perceive, for physical protection from the applicant”. Here, that is a consideration addressed by the existence of intervention orders and the proposed home detention address. The proposed home detention address is around 90 minutes’ drive from the address of the victims in this case. The respondent conceded that this was not a significant consideration in the circumstances of this case. Nevertheless, I have taken it into account.
6.Whilst the Bail Enquiry (Home Detention) Report is generally favourable, the Department for Correctional Services added that it had “significant concerns regarding the suitability of the defendant being accommodated” with his previous partner in a three-bedroom home with their three children and a step-child. Overcrowding is mentioned. The respondent agreed with the submission of the applicant that this was an observation that was not explained, and which should be ignored by me.
[15] See Nankivell v The King [2024] SASCA 71, [17] (Livesey P).
[16] R v Jensen-Coulson [2023] SASCA 76, [85] (Bleby and David JJA), referring to R v Kelly [2023] SASCA 22, albeit in a case involving the Director’s application for permission to appeal sentence.
I have taken these matters into account. In the circumstances of this case, I am not prepared to grant bail pending appeal.
Conclusion
The order of the Court is that the application for bail is dismissed.
The appeal is listed for hearing before the Court of Appeal on 18 September 2025 at 10.15 am, with one hour set aside.
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