INGLIS v Police
[2025] SASC 167
•2 October 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal)
INGLIS v POLICE
[2025] SASC 167
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 - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
This is an appeal against a sentence imposed by a magistrate on 12 February 2025 for offences of disorderly behaviour, contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA) and assaulting a prescribed emergency worker, contrary to s 20AA(3) of the Criminal Law Consolidation Act 1935 (SA).
The learned sentencing Magistrate imposed a sentence of imprisonment of 25 days for the disorderly behaviour offence, and a sentence of imprisonment of 12 months for the assault offence. The resultant head sentence was 12 months and 20 days, allowing for partial concurrency, which was then reduced on account of the appellant’s guilty plea to seven months and 21 days imprisonment.
The appellant was directed to serve five months of that sentence in custody, whereby the balance would be suspended upon entrance into a bond to be of good behaviour in the amount of $200 for 18 months.
The appellant complains that the sentence is manifestly excessive, and that the learned sentencing Magistrate erred in principle by considering the concept of concurrency in the context of totality.
The respondent submits that the sentence was not manifestly excessive and that the learned sentencing Magistrate afforded due weight to considerations of concurrency.
Held, dismissing the appeal:
1.It was open to the learned sentencing Magistrate to impose the penalty complained of. Having regard to the appellant’s poor antecedent history, which may warrant less scope for leniency, the principles of individualised justice, and the gravity of the offending itself, the sentence, albeit heavy, was within the range of permissible sentences: at [30]-[32];
2.The learned sentencing Magistrate did not err in imposing partial concurrency. It was within discretion to consider the issue of concurrency in the manner in which his Honour did in the context of imposing a single sentence: at [41]-[42].
Magistrates Court Act 1991 (SA) s 42; Summary Offences Act 1953 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 20AA; Sentencing Act 2017 (SA) s 26; Criminal Law (Assaults on Prescribed Emergency Workers) Amendment Act 2019 s 7, referred to.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 398; Cruise v The King [2025] SASCA 59; Director of Public Prosecutions (Vic) v Arvanitidis [2008] VSCA 189; (2008) 202 A Crim R 300; Ettridge v Police (SA) [2022] SASC 96; Hackett v The Queen [2021] SASCA 32; House v The King [1936] HCA 40; (1936) 55 CLR 499; Hubbard v Police (SA) [2023] SASC 182; Jones v Police (SA) [2020] SASC 188; Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601; Lane v The Queen [2020] SASCFC 82; Mahon v Commissioner of Police (SA) [2024] SASC 147; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; McKenna v The Queen [2022] SASCA 10; R v Morse (1979) 23 SASR 98; Police (SA) v Chilton [2014] SASCFC 76; (2014) 120 SASR 32; Wittwer v Police [2004] SASC 226; Zacher v The Queen [2022] SASCA 83, considered.
INGLIS v POLICE
[2025] SASC 167Criminal: Magistrates Appeal
GRAY J:
Introduction
This is an appeal against a sentence imposed by a magistrate on 12 February 2025. The appellant pleaded guilty to the offences of disorderly behaviour, contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA), and assaulting a prescribed emergency worker acting in the course of official duties, contrary to s 20AA(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).
The learned sentencing Magistrate imposed a single sentence pursuant to s 26 of the Sentencing Act2017 (SA), being a total sentence of seven months and 21 days imprisonment. Pursuant to s 96(4) of the Sentencing Act 2017 (SA), his Honour directed that the appellant serve five months of the sentence in custody and suspended the remainder of the sentence on condition that the appellant enter into a bond to be of good behaviour in the amount of $200 for 18 months upon release.
The appellant appeals against the sentence. The appeal was instituted out of time, however; an extension of time was not opposed by the respondent and that extension has been granted.
There are two grounds of appeal:[1]
1. That the sentence(s) imposed were manifestly excessive, having regard to the pre-discount starting points of 12 months on count 1 and 20 days on count 2; and,
2. That the learned sentencing Magistrate erred by treating concurrency as solely being a question related to totality, when in the circumstances of this case the question of concurrency arose more persuasively by reference to the factual overlap between the offences.
[1] Notice of Appeal (FDN 1) and Appeal Grounds (FDN 3), as orally amended: see Appeal Transcript (‘AT’) at T2.29-36 and Record of Outcome dated 24 June 2025 (FDN 11) at 2, Order 2. The starting point in the sentencing remarks in respect of count 2 was 25 days.
The respondent submits that the sentence was not manifestly excessive. The respondent further submits that given the two offences were not committed as one course of conduct, and as they had different victims, and as the offence of assaulting a prescribed emergency worker was committed after the appellant’s arrest, the learned sentencing Magistrate did not err in the application of the principle of concurrency.
Background
The factual basis upon which the appellant was sentenced was largely uncontentious. The circumstances of the offending were that at about 5:45pm on 22 December 2024, police were called to Whitmore Square because of a disturbance. Upon arrival, police located the appellant. The appellant was intoxicated and was yelling and swearing. Police spoke with the appellant and warned the appellant to calm down. Police observed that the appellant had a cut above his right eye.
Police were again called to attend at Whitmore Square at about 7:15pm that day and the same uniformed patrol attended, including the victim of the assault charge, Constable Simister. The appellant approached the police on that occasion and was yelling and swearing.
Police called for an ambulance to treat the cut above the appellant’s right eye. Upon the paramedic’s arrival, the appellant became aggressive towards them. The appellant continued to yell and swear. Members of the public were nearby, including children.
The appellant’s behaviour on the second occasion that police attended is the subject of the disorderly behaviour charge. Because of the disorderly behaviour, police placed the appellant under arrest. The appellant was handcuffed, and police placed the appellant in a seated position on the ground. At that point, without provocation or warning, the appellant used both of his feet to kick Constable Simister in his shins in what has been described as a ‘push kick’ motion. The kick is said to have caused Constable Simister immediate pain however, no injury was suffered, and the pain subsided after about 15 minutes. The appellant was then conveyed to hospital where he was examined and cleared as being fit for custody. He was refused bail and remanded in custody.
Principles on appeal
This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and is in the nature of a rehearing pursuant to r 191.1 of the Joint Criminal Rules 2022 (SA). To interfere with the exercise of a sentencing discretion there must be a demonstrated error of the kind described in House v The King.[2]The approach to be adopted was explained by White J in Wittwer v Police in which it was held:[3]
The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or [if it] has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly.
[2] House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5 (Dixon, Evatt and McTiernan JJ).
[3] Wittwer v Police [2004] SASC 226 at [16] (White J).
Further, as Kourakis CJ held in Police (SA) v Chilton:[4]
The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy Magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King.
[4] Police (SA) v Chilton [2014] SASCFC 76; (2014) 120 SASR 32 at 38, [19] (Kourakis CJ, David J agreeing).
There are two distinct types of error frequently relied upon as the basis for intervention with a discretionary judgment by an appellate court such as occurs on an appeal against sentence. These were summarised in Markarian v The Queen in which Gleeson CJ, Gummow, Hayne and Callinan JJ held:[5]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as “manifest inadequacy”.
(citations omitted)
[5] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 370-1, [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
Manifest excess
To establish that the sentence imposed was manifestly excessive, the appellant must establish that the sentence was unreasonable or plainly unjust such that it can be inferred that the outcome has been attended by error.[6] That the appellate court would have imposed a different sentence is insufficient to interfere with the sentence on appeal. Rather, the sentence must be outside the permissible range of sentences for the offender and the offence.[7] It is necessary to consider whether the sentence was plainly unreasonable or unjust in the circumstances, such that it fell outside the sentencing discretion available to the learned sentencing Magistrate.
[6] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at 615, [35] (French CJ, Hayne, Bell and Keane JJ).
[7] Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at 615, [35] (French CJ, Hayne, Bell and Keane JJ)
The following factors are to be considered in determining whether the sentence imposed was manifestly excessive:[8]
1.The maximum sentence prescribed by law for the offence.
2.The standards of sentence customarily observed for offences of the kind in question.
3.The place which the criminal conduct occupies in the scale of seriousness of crimes of that type.
4.The personal circumstances of the offender.
Ground 1 – manifest excess
[8] R v Morse (1979) 23 SASR 98 at 99 (King CJ, White and Mohr JJ agreeing).
Submissions of the parties
The appellant notes that s 20AA was inserted into the CLCA on 3 October 2019.[9] As such, the offence provision under consideration is relatively new and authorities as to sentencing standards are limited compared to some other offences. The amendments occasioned a material increase in the maximum penalty to five years imprisonment.
[9] See Criminal Law Consolidation (Assaults on Prescribed Emergency Workers) Amendment Act 2019 (SA) s 7.
The appellant refers to the decisions of McKenna v The Queen (‘McKenna’),[10] Zacher v The Queen (‘Zacher’),[11] Ettridge v Police (‘Ettridge’)[12] and Hubbard v Police (‘Hubbard’).[13] The submission advanced by the appellant was that, whilst not seeking to trivialise or otherwise diminish the seriousness of committing an assault on police, the conduct constituting the offence in this case represented offending at the lower end of the scale of objective seriousness, more comparable to the circumstances in Zacher than to those considered in McKenna and Hubbard.
[10] McKenna v The Queen [2022] SASCA 10 (Livesey P, Lovell and S Doyle JJA).
[11] Zacher v The Queen [2022] SASCA 83 (S Doyle, Bleby and David JJA).
[12] Ettridge v Police (SA) [2022] SASC 96 (McDonald J).
[13] Hubbard v Police (SA) [2023] SASC 182 (Kimber J).
The appellant submitted that the assault committed by the appellant at a time that he was handcuffed involved one kick to the shin which caused immediate but temporary pain and no other ill effects, and as such was at the more benign end of the scale of objective seriousness for offences of assaulting a prescribed emergency worker. The appellant points to there being no material ongoing threat by reason of the offender being handcuffed, and to the offending being impetuous rather than vicious, and that the action included was highly likely to not be capable of causing any meaningful damage.[14]
[14] Appellant’s Written Submissions (FDN 5) (‘AWS’) at [23].
The appellant submitted that the starting point of 12 months imprisonment for the assault offence was not within the range of available sentencing options. It was also submitted that it was not even close to that range.[15]
[15] AWS at [25].
In relation to manifest excess, the respondent referred to the general principles concerning this ground, including the gravity of the offending, the sentencing standards of the offence of an assault on a prescribed emergency worker, and to the personal circumstances of the offender.
In relation to the gravity of the offending, the respondent submitted:
1. The offending was entirely unprovoked and was an example of gratuitous offending;
2. The offending was committed upon a police officer acting in the course of his official duties who was only engaging with the appellant as a result of his other offending behaviour;
3. The offending conduct occurred whilst in police custody for disorderly behaviour;
4. The fact that the appellant was under the influence of alcohol (though this goes someway in explaining the behaviour) does not mitigate the offending. In fact, the various victims of the appellant’s offending were likely to be more frightened as a result; and,
5. The offending caused the victim pain.
As a consequence of the above matters, the respondent submitted that, whilst the circumstances indicate that the offending was not at the upper end of the scale of objective seriousness, it was also not at the very lower end.
The respondent also submitted in relation to sentencing standards for the assault that the maximum penalty of five years indicates the seriousness that Parliament ascribes to the type of criminal conduct involved. Further, reliance was placed upon the decision of Director of Public Prosecutions (Vic) v Arvanitidis, in which Redlich JA held:[16]
It is a serious offence to assault police in the execution of their duties ordinarily requiring a significant element of deterrence in the sentence to be imposed. The courage of police officers in protecting lives and property is something upon which the community depends. It is incumbent on the Court to impose appropriate sentences to demonstrate support for the authority for police officers who undertake a difficult, and dangerous task in the execution of their duties in maintaining law and order. Ambulance officers, and others performing such essential duties, are to receive similar measure of support and protection. Where the offender knows or ought to have known the victim was discharging a public duty of this sort, a more severe sentence will usually be imposed to deter such person’s violent assaults on them when performing their duties.
[16] Director of Public Prosecutions (Vic) v Arvanitidis [2008] VSCA 189; (2008) 202 A Crim R 300 at 314, [50] (Redlich JA, Buchanan and Nettle JJA agreeing).
Reference was also made to the decision in Cruise v The King,[17] with the appellant acknowledging that intoxication and personal dysfunction are matters bearing upon an assessment of weight to be placed on an offender’s personal circumstances.
[17] Cruise v The King [2025] SASCA 59 at [142] (Kourakis CJ, S Doyle JA agreeing).
In relation to the circumstances of the offender, the respondent submits that:[18]
1.The appellant was a 33-year-old Indigenous man who had lived an unstable existence and was experiencing alcoholism and housing issues;[19]
2.The appellant had only just been released the same day that he committed the offences and that this called for a strongly deterrent sentence;
3.The appellant had a large number of “public nuisance” convictions, including, 40 counts of disorderly behaviour from 2012 to 2024, urinating in a public place, possessing liquor in public, loitering, damaging property and offensive language;
4.In addition to the assault police matter in 2024, the appellant also had prior convictions for spitting in 2023 and nine convictions for resisting police from 2011 to 2024, three convictions for hindering police from 2011 to 2023, and a conviction for fighting from 2016, a basic assault in 2023 and 2020 and another assault police conviction in 2012; and,
5.The appellant’s history of alcohol-fuelled violence against police despite his unfortunate personal circumstances gave rise to the requirement for a strongly deterrent penalty.
[18] Respondent’s Written Submissions (FDN 9) at [30]-[34]. See also, Affidavit of Lauren Cuma affirmed 1 July 2025 (FDN 12) at 6-34 (Annexure LC1).
[19] Affidavit of Jonathan Peter Stevens dated 12 March 2025 (FDN 4).
The respondent referred to the five-year maximum penalty prescribed by law, the standards of sentencing reserved for those offences and the place of the criminal conduct occupied in the scale of objective seriousness of the crimes of that type, and the personal circumstances of the appellant. Having regard to those matters, the respondent submitted that the sentence imposed by the learned sentencing Magistrate was not outside the permissible range of sentences for the appellant and the offence.
Consideration
As this Court has previously observed, where an offender has a poor prior criminal record or has previously committed offences of a similar nature, the offence will be rendered more serious than may otherwise be the case. A penalty that is severe but still proportionate can be expected. This does not mean that a severe penalty is being imposed because the previous offending has been revisited, but rather the severity of the penalty reflects that there is less scope for leniency.[20]
[20] Jones v Police (SA) [2020] SASC 188 at [31]-[33] (Nicholson J); Mahon v Commissioner of Police (SA) [2024] SASC 147 at 17 (Stanley J).
It can also be expected that, generally, the imposition of an immediate term of imprisonment for repeat offending of this kind by the appellant would be expected. It can be expected that there is a need for personal deterrence.
The difficulty the learned sentencing Magistrate was faced with is that the type of offending committed in the circumstances of this case, by this appellant, was very similar to the form of offending that the appellant had previously engaged in. Further, the appellant had, on the day of this offending, just been released from custody for similar offending. I find that this context required a sentence which provided personal deterrence.
In considering whether or not the sentence imposed involved an outcome error, I have had regard to the observations of this Court in Hackett v The Queen (‘Hackett’).[21] In that case, the Court of Appeal held:[22]
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.
(citations omitted)
[21] Hackett v The Queen [2021] SASCA 32 (Kelly P, Lovell and Livesey JJA).
[22] Hackett v The Queen [2021] SASCA 32 at [8] (Kelly P, Lovell and Livesey JJA).
The sentence imposed in this case, I would find, reflects the type of sentence referred to by the Court of Appeal in Hackett as being one which represented individualised justice. The sentence was at the upper end of the range of permissible sentencing options. However, I would not conclude that it exceeds the bounds of the learned sentencing Magistrate’s discretion. Looking at the result alone, it is a heavy sentence. However, the sentence was not manifestly excessive having regard to the maximum penalty prescribed by law for the offence, and other relevant factors.
Even accepting that the place which the charged conduct occupied in the scale of objective seriousness for this offence is at the lower end, this does not demonstrate that the sentence was manifestly excessive having regard to the other matters relevant to the exercise of the sentencing discretion. There is little scope for leniency in respect of this offender in relation to this offence given the significant history of similar offending.
The learned sentencing Magistrate in imposing this sentence, imposed a sentence which represented individualised justice.[23] This is apparent from the consideration given to the prior offending, the need to protect the community through general and specific deterrence, and the need to promote rehabilitation. The regard had to the appropriateness of partially suspending the sentence, and the terms of the bond imposed which included conditions that the appellant undergo assessment and participate in programs and treatment as directed by his supervising officer including in respect of alcohol, demonstrate that the learned sentencing Magistrate had appropriate regard to the individual circumstances of this offender. Looking at the outcome of the sentencing process, the sentence is not unreasonable or plainly unjust.
[23] Appeal Book (FDN 10) (‘AB’) at 2-3 (Remarks on Penalty of Magistrate Clover dated 12 February 2025).
I dismiss ground 1 of the appeal.
Ground 2 – concurrency
Submissions of the parties
The appellant submitted that the two offences in this case were separated by a short space of time and were underpinned by a common cause, namely, the excessive consumption of alcohol. Given the fleeting and opportunistic nature of the assault upon police and that the offence of disorderly conduct was considered by the learned sentencing Magistrate to be effectively overwhelmed by that assault, the appellant submitted that a wholly concurrent penalty was appropriate.
The appellant referred to the principles in Attorney-General (SA) v Tichy in which Wells J held:[24]
Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.
[24] Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 93 (Wells J, King CJ and Cox J agreeing).
Reference was also had to the reasoning of Kourakis J (as his Honour then was) in R v Copeland (No 2).[25] The appellant submits that the learned sentencing Magistrate failed to have any regard to these principles, instead relying solely on totality as a basis to afford the relatively meagre five days’ concurrency between the notional starting points for the two offences. It is submitted that the failure to have regard to the correct principle amounts to an error of approach and calls for the independent exercise of this Court’s sentencing discretion.
[25] R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 398 at 424-6, [99]-[105] (Kourakis J). See also at 419-21, [82]-[87] (White J).
In relation to ground 2 and the issue of concurrency, the respondent relied upon the decision of Lane v The Queen in which Livesey J (as his Honour then was) held:[26]
Totality has been recognised as having two aspects. The first entails a final review or check to ensure that the overall punishment is proportionate to the circumstances of the offending and the offender. In seeking to achieve proportionality a sentencing Judge has a number of tools and a broad discretion. In connection with this aspect of totality, these tools include concurrency, lowering one or more of the sentences, and the imposition of a single sentence under s 26 of the Sentencing Act 2017 (SA).
(citations omitted)
[26] Lane v The Queen [2020] SASCFC 82 at [5] (Livesey J (Livesey and Kelly JJ agreeing with Bleby J)). See also R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 398.
The respondent submitted that there was no error, bearing in mind the discretionary nature of the power and that the learned sentencing Magistrate allowed partial concurrency of five days between the two offences. The respondent further submitted that the two offences were not committed as one “course of conduct” as they had different victims and the assault police occurred after the arrest. The respondent also contended that although the offences occurred close in time and were underpinned by the appellant’s alcohol use, they were separate incursions into criminal conduct.
Consideration
The relevant passage of the learned sentencing Magistrate’s remarks on penalty provides as follows:[27]
In respect of count one, the disorderly behaviour, were it not for your guilty plea, I would have imposed a sentence of 25 days’ imprisonment and, for reasons of totality, I would have made that sentence partially concurrent with the sentence for the assault, resulting in a total sentence of 12 months and 20 days.
I reduce that by 40 per cent on account of your guilty pleas and therefore impose a single sentence for both counts of seven months and 21 days imprisonment.
[27] AB at 9 (Remarks on Penalty of Magistrate Clover dated 12 February 2025).
This passage occurs at the commencement of the part of the learned sentencing Magistrate’s remarks which indicates the duration of the sentence to be imposed in respect of each offence. The learned sentencing Magistrate then reduces those sentences on account of the guilty plea and imposes a single sentence for both counts of seven months and 21 days imprisonment.
There was, in the circumstances of this case, in my view, factual matters upon which it was open for the learned sentencing Magistrate to rely in determining to make the sentences only partially concurrent. Partial concurrency, even limited to five days, was within the learned sentencing Magistrate’s discretion. The first offence of disorderly conduct occurred prior to the arrest of the appellant and was brought about as a result of the appellant’s behaviour upon police’s second attendance at Whitmore Square, and upon attendance of the paramedics who were attempting to treat the cut above the appellant’s eye. This conduct can be considered as separate and distinct from the later offence of assaulting Constable Simister. That conduct occurred after the arrest. Partial concurrency was within the learned sentencing Magistrate’s discretion given these separate incursions, albeit there was a shared a temporal nexus, and I would not read the learned sentencing Magistrate’s remarks which make reference to totality as revealing a process error or suggesting that the learned sentencing Magistrate did not consider the relevant factual matrix.
In my view, there was no process error in the manner in which the learned sentencing Magistrate exercised his Honour’s discretion to make the sentences partially concurrent. It was within the learned sentencing Magistrate’s discretion to consider the issue of concurrency in the manner in which his Honour did, and there is no process error in the reference to totality.[28] Whilst the appellant refers to the extent of the concurrency being limited to five days as being “relatively meagre”, the relative amount of concurrency does not in and of itself demonstrate a process error of the type which the appellant seeks to identify. The sentencing remarks in my view need to be read as a whole, and in the context of the brief explanation of the reasons for the imposition of a single sentence.
[28] Lane v The Queen [2020] SASCFC 82 at [5] (Livesey J (Livesey and Kelly JJ agreeing with Bleby J). See also R v Copeland (No 2) [2010] SASCFC 61; (2010) 108 SASR 398.
On a fair reading of the learned sentencing Magistrate’s decision, his Honour considered both the question of concurrency and the question of totality. Although it would have been open to the learned sentencing Magistrate to consider concurrency first, prior to totality by reference to the factual matrix, it was not an error to consider the question of concurrency when applying the principle of totality. I would not read the error that the appellant complains of into the learned sentencing Magistrate’s sentencing remarks. The learned sentencing Magistrate’s decision provides for partial concurrency and indicates that both concurrency and totality were considered. There is no complaint of inadequate reasons.
I dismiss ground 2 of the appeal.
Conclusion and orders
The appeal is dismissed.
I will hear from the parties as to any other orders.
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