Noble v Police - [2014] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NOBLE v POLICE
[2014] SASC 156
Judgment of The Honourable Justice Sulan
22 October 2014
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
Appellant charged with aggravated assault and aggravated theft. He pleaded guilty and was sentenced to 21 months' imprisonment with a non-parole period of nine months. Appeal on the grounds that the sentence was manifestly excessive and that the Magistrate erred by failing to suspend the sentence.
Held (allowing the appeal):
1 An appeal court will not interfere with the exercise of a discretion unless error is demonstrated.
2 An appellate court should not set aside an order made in the exercise of a discretion on the ground that too much or too little weight has been given to a relevant consideration unless the failure to give appropriate weight really amounts to a failure to exercise the discretion actually entrusted to the court, and not bare a conclusion that an apeal court would have exercised the discretion differently.
3 An appeal court needs to view this ground of appeal with considerable caution. Particular caution should be taken where the assessment of weight to be given to relevant factors are liable to be affected by seeing and hearing the parties.
4 Imposing a custodial rather than non-custodial sentence may result in a manifestly excessive sentence. However, it does not follow that a complaint that a judge has failed to suspend a sentence is necessarily a particular of the complaint that a sentence is manifestly excessive.
5 Sentence set aside and appellant re-sentenced.
Criminal Law Consolication Act 1935 (SA) s 20(3) s 134; Magistrates Court Act 1991 (SA) s 5, s 42; Statutes Amendment (Court Efficiency Reforms) Act 2012 (SA); Summary Procedures Act 1921 (SA) s 108(1); Criminal Law (Sentencing) Act 1988 (SA) s 19(3), s 38(1), referred to.
Police v Chilton [2014] SASCFC 76; Skinner v King (1913) 16 CLR 336; Lacey v Attorney-General (QLD) (2011) 242 CLR 573; House v The King (1936) 55 CLR 499; R v Sidlow (1908) 1 Cr App R 28; Storie v Storie (1945) 80 CLR 597; Blunt v Blunt (1943) AC 517; Lovell v Lovell (1950) 81 CLR 513; Gronow v Gronow (1979) 144 CLR 513; Mallet v Mallet (1984) 156 CLR 605; Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 621; R v Wong (2001) 207 CLR 584; R v Horstmann [2010] SASC 103; R v Kentwell [2014] HCA 37; Bugmy v The Queen (2013) 249 CLR 571; Carroll v The Queen (2009) 83 ALJR 579; Hili v The Queen (2010) 242 CLR 520; Dinsdale v The Queen (2000) 202 CLR 321; AB v The Queen (1999) 198 CLR 111; R v Buckman (1988) 47 SASR 303; R v McGaffin (2010) A Crim R 188; Wood v Samuels (1974) 8 SASR 456; R v Avgooustinos (1975) 13 SASR 48; Elliot v Harris (No 2) (1976) 13 SASR 516; R v Gaffly [2009] SASC 261, considered.

NOBLE v POLICE
[2014] SASC 156
Magistrates Appeal: Criminal

SULAN J: This is an appeal against sentence. The defendant and appellant, Joshua James Noble, was charged with aggravated assault and aggravated theft. He pleaded guilty to those offences and was sentenced in the Magistrates Court to 21 months’ imprisonment with a non-parole period of nine months.[1] The Magistrate further estreated a good behaviour bond in the amount of $500 and imposed convictions for the offences of disorderly behaviour and resist police to which the bond related, but imposed no further penalty in respect of those offences.
[1] Criminal Law (Sentencing) Act 1988 (SA) s 18A.
The defendant appeals on the grounds that the sentence was manifestly excessive and that the Magistrate erred by failing to suspend the sentence.
The offending
The defendant was jointly charged with David Fieldhouse with the offences of aggravated assault and aggravated theft contrary to sections ss 20(3) and 134, respectively, of the Criminal Law Consolidation Act 1935 (SA). The circumstances of the offending are that during the early hours of Saturday, 14 September 2013, the defendant and Mr Fieldhouse approached the victim, Mr Pope. The defendant asked the victim what he had in his pockets. When the victim said that he had no money, the defendant grabbed hold of the victim, pushed him against a wall, head-butted and punched him. Mr Fieldhouse then put his hand in the victim’s pocket and removed an iPhone. The victim asked for the phone to be returned, promising to give money instead. Mr Fieldhouse agreed and gave back the phone. About this time, police were seen nearby and the victim was warned not to say anything to police. The defendant and Mr Fieldhouse then accompanied the victim to a nearby automatic teller machine on Hindley Street. There, the victim opened his wallet and threw two $20 notes on to the ground, using the opportunity to escape. He approached nearby police and the defendant and Mr Fieldhouse were apprehended a short time later. The victim sustained minor pain as a result of the assault.
Sentencing remarks
In sentencing the defendant, the Magistrate commenced by outlining the circumstances of the offending. The Magistrate characterised the offending and identified the need for personal and general deterrence. He said:
These offences are serious. People are entitled to be out and about late at night without the risks of attack of this nature. The sentence must deter each of you personally, from such offending. …In your case Noble, your prior offending was somewhat less serious but nevertheless displayed a lack of concern for expected norms of behaviour.
The sentence must also deter others from grouping together for the purpose of rendering defenceless and then stealing from individuals who choose to be out late at night.
In sentencing you both, I have regard to the need to protect the community and the need to adequately punish you for your offending.
The Magistrate noted that the defendant had a limited antecedent history. He was charged with disorderly behaviour, refusing name and address and resisting police following an incident which occurred during the early hours of 18 May 2013. On that occasion, police attended the Golden Grove Tavern as a result of a complaint about a disturbance. When police approached the defendant, he refused to provide his personal details and swore loudly at police. On 4 September 2014, the defendant was dealt with for that offending. The Court did not proceed to sentence and instead released the defendant on a bond to be of good behaviour in the sum of $500 for a period of two years, with a further condition that he come up for sentence if called upon. It is to be noted that the offending the subject of this appeal occurred less than a fortnight after the defendant was released on the bond.
The Magistrate then turned to the defendant’s personal circumstances. The Magistrate observed:
Noble, turning to your personal circumstances, you are also 20 years of age and you live with your parents and your younger brother who is 17. Your parents are very supportive but understandably disappointed in your conduct. You did commence and complete two years of an apprenticeship in refrigeration, when you moved with your family to Queensland and you continued that apprenticeship when the family moved back to Adelaide after two years. Unfortunately, after another year, your employer went out of business and you lost your apprenticeship. Then you had a significant period out of the workforce due to major medical problems suffered mainly in 2012 and 2013, the nature of which are fully described in the letter of Dr Ford dated 11 June 2014. Not surprisingly, these medical issues resulted in anxiety and depressive illness and you were referred to a psychologist and psychiatrist for assistance in June 2013. Dr Ford states that you have made excellent progress, coming off antidepressant medication and requiring sedative medication only occasionally. He also understands that you have now abstained from the use of alcohol and other substances. You and your family have always been heavily involved in sport and you maintain that involvement. I note the positive reference from the president of the Modbury Cricket Club. You started drinking as a teenager and steadily increased your consumption until you did not enjoy it any more and about two years ago you moved onto cannabis and ecstasy.
Your trouble with the law started in late 2012 and escalated with the incident in May 2013 followed, as I have noted, by this incident less than a fortnight after you were released on a bond. You turned to your parents for help and also to your doctors. With their assistance and support you have managed to curb your use of alcohol and illicit drugs. You have also been attending the Royal Adelaide Hospital for drug and alcohol counselling. You are in stable employment as a trades assistant at the Royal Adelaide Hospital and your employer has offered you an apprenticeship in plumbing. That apprenticeship, according to a letter that I have received which is dated yesterday, is due to start next Monday and it will be a four year apprenticeship.
The Magistrate delivered sentence as follows:
As to you Noble, I also impose a sentence of one year and nine months reduced from two years and six months on account of your plea of guilty. You do not have a significant offending record and your personal circumstances, as I have recited them, indicate that your prospects for rehabilitation are good and I fix a relatively low non-parole period of nine months.
You have never had the benefit of a suspended sentence. I have been urged to suspend the sentence which I have imposed. As I said, it has been confirmed today that you have an apprenticeship available to you to start immediately but, on balance in all the circumstances, I conclude that the need for general deterrence arising out of the serious nature of this offending outweighed considerations personal to you and I do not find good reason to suspend that sentence and your sentence will be served, commencing today.
Course of the appeal
Before considering the grounds of appeal, it is useful to say something about the way in which the appeal proceeded given recent procedural amendments governing appeals from the Magistrates Court.
Division 2 of Part 6 of the Magistrates Court Act 1991 (SA) deals with appeals from the criminal division of the Magistrates Court. Section 42(1) confers a right of appeal on party to a criminal action against a judgment given in the action. Section 42(2) stipulates the forum for the appeal. It states:
42—Appeals
(2) The appeal lies—
(a)in the case of an action relating to an offence categorised under the Summary Procedure Act 1921 as an industrial offence—to the Industrial Court; or
(ab)in the case of a sentence passed on the conviction of a person of an offence that is, or offences that include, a major indictable offence—to the Full Court of the Supreme Court with the permission of the Full Court; or
(b)in any other case—to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Full Court).
Sub-section 42(2)(ab) was inserted into the Magistrates Court Act 1991 (SA) by s 26 of the Statutes Amendment (Courts Efficiency Reforms) Act 2012 (SA) which came into operation on 1 July 2013.[2] The sub-section operates in conjunction with sub-s 108(1) of the Summary Procedures Act 1921 (SA). Sub-section 108(1) was also promulgated by the Statutes Amendment (Courts Efficiency Reforms) Act 2012 (SA) and came into operation on the same date as sub-section 42(2)(ab).
[2] Sub-section 42(2)(ab) was subsequently amended by s 11(1) of the Statutes Amendment (Appeals) Act 2013 (SA) which also came into operation on 1 July 2013.
Sub-section 108(1) of the Summary Procedures Act 1921 (SA) provides as follows:
108—Forum for sentence
(1) If—
(a)a defendant admits a charge of a major indictable offence (other than treason, murder, or an attempt or conspiracy to commit, or assault with intent to commit, either of those offences); and
(b)the Director of Public Prosecutions for the State or the Commonwealth and the defendant consent to the defendant being sentenced by the Court,
the Court is to determine and impose sentence itself unless the Court is of the opinion that the interests of justice require committal to a superior Court.
The effect of these reforms is that where a defendant pleads guilty to a major indictable offence,[3] or offences that include a major indictable offence, the defendant and the Director of Public Prosecutions may, pursuant to s 108(1) of the Summary Procedures Act 1921 (SA), consent to the defendant being sentenced by the Magistrates Court. Where a party appeals against the sentence imposed in those circumstances, sub-s 42(2)(ab) of the Magistrates Court Act 1991 (SA) then vests the Full Court with the jurisdiction to determine an application for permission and, upon that power being exercised favourably to the party, the jurisdiction to determine the appeal.
[3] Other than the offences of treason or murder.
The purpose of the amendments is to improve efficiency and reduce delays in the court system by extending the jurisdiction of the Magistrates Court to include sentencing for most major indictable offences, as an alternative to committing defendants to the District Court for sentence. At the same time, jurisdiction to hear appeals against sentence is vested in the same court as if the matter had been dealt with in the District or Supreme Courts, thereby not diminishing the efficacy of the reforms by allowing an appeal, as a right, to single Judges of this Court.
In the present case, the Magistrates Court Information charging the defendant provided as follows:
Offence details:
1. On the 14^th day of September at ADELAIDE in the said State, assaulted Dane POPE.
Section 20(3) of the Criminal Law Consolidation Act 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that the offender committed the offence in company with one or more other persons.
This is a minor indictable offence.
2. On the 14^th day of September at ADELAIDE in the said State, dishonestly dealt with property, namely cash to the value of $40.00 without consent of Dane POPE, the owner of that property, intending to permanently deprive him of the property or make serious encroachment of his propriety rights.
Section 134 of the Criminal Law Consolidation Act 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that the offender committed the offence in company with one or more other persons.
This is a major indictable offence.
The defendant entered pleas of guilty to both counts on his first appearance in the Magistrates Court on 16 June 2014. Pursuant to s 108(1) of the Summary Procedures Act 1921 (SA), the Director of Public Prosecutions and the defendant consented to sentence being determined in the Magistrates Court on the basis that count 2 was a major indictable offence. The defendant was subsequently sentenced on 14 September 2014. It is clear from the Magistrate’s sentencing remarks and compliance by the parties with s 108(1) of the Summary Procedures Act 1921 (SA) that there was a common misapprehension that count 2 on the Information was a major indictable offence.
The defendant filed a notice of appeal against sentence dated 4 July 2014, indicating that permission to appeal was not required. When the matter first came before me, I raised the issue of whether a court constituted by a single judge was competent to hear the appeal. The parties, accepting that count 2 was a major indictable offence, acknowledged that jurisdiction to hear such an appeal vested in the Full Court upon permission to appeal being granted. I indicated that I would direct that the Notice of Appeal filed on 4 July 2014 be treated as an application for permission to appeal and set the matter down for hearing.
For reasons I will outline later, during the course of the permission hearing, it was conceded by the Crown that count 2 was a summary offence – not a major indictable offence – and, accordingly, permission to appeal was not required. The appeal then proceeded in the normal course.
The appeal
The defendant appeals on the grounds that the sentence was manifestly excessive and that the Magistrate erred by failing to suspend the sentence. It is contended that the Magistrate placed too much weight on the need for general deterrence and too little weight on the defendant’s personal circumstances. Counsel for the police submits that proper weight was given to all relevant considerations and that the sentencing discretion was properly exercised. As the grounds of appeal require this Court to review the exercise of the Magistrate’s discretion, a threshold issues arises.
Identifiable error
It is trite law that an appellate court will not interfere with the exercise of a discretion unless error is demonstrated.[4] In Police v Chilton,[5] the Full Court of this Court recently considered the circumstances in which an exercise of discretion is vitiated by error. In that case, the respondent was sentenced by a Magistrate to six weeks’ imprisonment for the offence of driving whilst disqualified. A single Judge of this Court set aside that sentence and imposed instead a fine and ordered that the respondent perform community service. Relevantly, the Police appealed to the Full Court against the decision of the Judge on the ground that the Judge erred in setting aside the sentence of the Magistrates Court when it was not vitiated by any appealable error.
[4] See also; Skinner v King (1913) 16 CLR 336; referred to in Lacey v Attorney-General (QLD) (2011) 242 CLR 573.
[5] [2014] SASCFC 76.
The error identified by the Judge was that, by placing too much weight on the respondent’s previous offending and not enough weight on other mitigatory factors, the Magistrate failed to give proper consideration to the option of imposing a penalty other than a sentence of imprisonment for the offence of drive disqualified. The Judge observed:[6]
I accept the Crown submission that it is unlikely that the Magistrate was unaware of the availability of a fine as a sentencing option. Nevertheless, I am satisfied that the Magistrate failed to give proper consideration to this option. His Honour placed too much weight on the repeated nature of the appellant’s offending and too little weight on the many mitigatory factors as earlier described. In so doing, his Honour appeared to focus almost solely on the question of whether or not the prison term should be suspended without considering whether or not a sentence of imprisonment was warranted.
[6] Chilton v Police [2013] SASC 205, [34].
The Chief Justice considered that the Judge was in error in setting aside the sentence on the ground that the exercise of the Magistrate’s sentencing discretion was not vitiated by an appealable error. The Chief Justice held:[7]
If the underlined sentences in [34] were meant literally, the Judge  surpassed the bounds of appellate review of exercises of the sentencing discretion. It is not an appealable error, in accordance with the principle in House v The King,[8] that a sentencing Judge has placed too little or too much weight on one or more of the applicable sentencing considerations. It is in the very nature of a discretion that different judges will evaluate the considerations relevant to its exercise in different ways.
Over familiarity with the decision in House v The King can at times obscure the strictness of the limited grounds for the appellate interference it prescribes. The grounds on which a discretion can be set aside are analogous to the grounds of judicial review. Neither the exercise of a judicial discretion, nor the making of an administrative decision, are vitiated by giving a relevant matter less or more weight than the judge before whom the decision is impugned would have given it. The Magistrates Court is a Court of Record.[9] Its judgments are final orders. They are not provisional opinions subject to the approval of this Court. The sentences imposed in the Magistrates Court can only be set aside for error in accordance with House v The King.
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.
[Underlining is mine.]
[7]    Police v Chilton [2014] SASCFC 76, [17]-[19].
[8] (1936) 55 CLR 499.
[9]    Magistrates Court Act 1991 (SA), s 5.

If the underlined passage of the Chief Justice’s reasons are to be read as meaning that an appealable error can never arise where a sentencing Judge has placed too little or too much weight on one or more relevant sentencing considerations, then for the reasons that follow, I respectfully disagree with this interpretation of the principles enunciated in House v The King.[10]
[10] House v The King (1936) 55 CLR 499.
David J gave brief reasons in Chilton. He was of the view that the Judge erred in finding that the Magistrate placed too much weight on the respondent’s previous offending and too little weight on the factors in mitigation. He said:[11]
I would allow the appeal. I agree substantially with the reasons of the Chief Justice and I agree with the orders he proposes.
In my view, the sentence of the Magistrate’s Court indicated no appealable error and the appeal judge was incorrect when indicating the sentencing magistrate “placed too much weight on the repeated nature of the appellant’s offending and too little weight on the many mitigating factors as earlier described”. Such an emphasis was well within the appropriate sentencing discretion of the Magistrate. I am also of the view that the appeal judge’s substituted sentence of a fine of $1,500 and an order for the respondent to perform 80 hours of community service was manifestly inadequate, bearing in mind the driving record of the respondent, which included two previous convictions for driving whilst disqualified.
[11] Police v Chilton [2014] SASCFC 76, [66]-[67].
In my view, the decision of David J is limited to the facts of that case and his substantial agreement with the reasons of the Chief Justice should not be read as involving an endorsement of the view that issues concerning weight can never amount to an appealable error.
In his dissenting judgment, Gray J considered that the sentencing discretion of the Magistrate was vitiated by failing to have regard to all of the relevant circumstances, in particular, the respondent’s explanation as to why he was driving whilst disqualified. He expressed no opinion on the issue of whether placing too little or too much weight on a relevant sentencing consideration can ever amount to an appealable error.
Issues of weight and identifiable error
It is instructive at this point to recall the oft-cited passage of House v The King. The majority in that case (Dixon, Evatt and McTiernan JJ) observed:[12]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[12] House v The King (1936) 55 CLR 499, 504-5.
It is to be noted, however, that the analysis of the bases for reviewing an exercise of discretion in House v King did not end with the above passage. The majority continued:[13]
But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar). See, further, Skinner v. The King and Whittaker v. The King.
In the present case we think we are unable to interfere with the sentence imposed by his Honour Judge Lukin if we apply the principles we have stated.
[Citations omitted.][Underlining is mine.]
[13] House v The King (1936) 55 CLR 499, 505.
In dismissing the appeal, the majority held that there were no grounds for interfering with the sentence under review in that case. Importantly, and consistent with the observations in R v Sidlow[14] cited in their reasons, the majority said:[15]
In the circumstances we have stated we do not think that we can say that the sentence, although severe, was unreasonable or clearly unjust, and there is no other ground for saying that it arose from error of fact or of law, or failure to take into account any material consideration, or from giving undue weight to any circumstance or matter.
[Underlining is mine.]
[14] (1908) 1 Cr App R 28. In that case Lord Alverstone LCJ at 29 observed:
…the Court would not interfere with a sentence unless it was apparent that the judge at the trial had proceeded upon wrong principles, or given undue weight to some of the facts proved in evidence. It was not possible to allow appeal because individual members of the Court might have inflicted a different sentence, more or less severe.
[15] House v The King (1936) 55 CLR 499, 507.
It is clear that the majority in House v King considered that the giving of undue weight to a relevant consideration could amount to a basis for interfering with the exercise of a discretion.
In the earlier decision of Skinner v The King, Barton A.C.J observed:[16]
It follows that a Court of Criminal Appeal is not prone to interfere with the Judge's exercise of his discretion in apportioning the sentence, and will not interfere unless it is seen that the sentence is manifestly excessive or manifestly inadequate. If the sentence is not merely arguably insufficient or excessive, but obviously so because, for instance, the Judge has acted on a wrong principle, or has clearly overlooked, or undervalued, or overestimated, or misunderstood, some salient feature of the evidence, the Court of Criminal Appeal will review the sentence; but, short of such reasons, I think it will not.
[Underlining is mine.]
[16] (1913) 16 CLR 336, 340.
In a number of subsequent decisions the High Court approved and further refined the principles enunciated by the majority in House v The King. In Storie v Storie,[17] the High Court considered the functions of an appellate court on reviewing an appeal from a discretionary order. The Judge at first instance refused a mother’s application for custody of her child and her appeal to the Full Court of the Supreme Court of Victoria was subsequently dismissed. The majority of the High Court (Latham CJ, Rich, Starke, Dixon and Williams JJ, McTiernan J dissenting) held that, although the making of the order was a matter of discretion, the order dismissing the wife’s application should be set aside because due weight had not been given to all considerations material to the welfare of the child.
[17] (1945) 80 CLR 597.
In considering the principles according to which an appellate court should exercise its powers upon appeal in a matter in which a judge has exercised a discretion, Latham CJ cited with approval the observations of the House of Lords in Blunt v Blunt.[18] Latham CJ stated:[19]
In Blunt v. Blunt the same question was again considered, and citations were made from Osenton's Case . Viscount Simon L.C., referring to the circumstances in which an appeal may successfully be brought against the exercise of the Divorce Court's discretion, said:—“If it can be shown that the Court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal.”
His Lordship then quoted a statement in Osenton's Case to the effect that the appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion exercised by the Judge, but said that “if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations … then the reversal of the order on appeal may be justified.”
In this case I apply the principles established by the decisions in the House of Lords that where an appellate court is reviewing an order made in the exercise of a discretion conferred by law the appellate court may reverse the order either if it is satisfied that no weight, or that no sufficient weight, has been given to relevant considerations, or if it is satisfied that an injustice has been done by the order appealed against.
[Citations omitted.][Underlining is mine.]
[18] (1943) AC 517.
[19] Storie v Storie (1945) 80 CLR 597, 600.
Latham CJ concluded that sufficient weight had not been afforded to the consideration of parental care and allowed the appeal. He said:[20]
In my opinion, when the order sought by the mother was refused, sufficient weight was not given to the profound importance of giving a child parental care, affection and control, where that is possible, in a suitable home. This is an element which is of the greatest significance in relation to the welfare of a young child.
[20] Storie v Storie (1945) 80 CLR 597, 603. See also; Rich J at 605.
In Lovell v Lovell,[21] the High Court again considered the grounds upon which interference with the exercise of a discretion is permissible. That case also concerned the custody of a child. The primary judge refused a mother’s application for custody of her child. The decision was overturned by the Full Court of the Supreme Court of Victoria. The majority of the High Court (Latham CJ, McTiernan and Kitto JJ, Webb J dissenting) allowed the appeal on the ground that the primary judge had not erred in the exercise of his discretion in refusing the wife’s application and there was no ground on which a Court of Appeal was warranted in disturbing his decision.
[21] (1950) 81 CLR 513.
Latham CJ referred to the decision of Storie and, in some respects, qualified the circumstances in which appellate interference with a discretionary order is permissible where questions of weight are concerned. He said:[22]
In Storie v Storie it was considered by this Court that in effect no weight had been given to the claim of a parent as against a stranger to the custody of a child. The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion (as to which see Sharp v. Wakefield) unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.
[Citations omitted.][Underlining is mine.]
[22] Lovell v Lovell (1950) 81 CLR 513, 519.
Kitto J expressed a similar view. He observed:[23]
The proposition that the appeal court will consider whether “no sufficient weight” has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully. Lord Atkin, in Evans v. Bartlam, said that if the appellate tribunal “sees that on other grounds (i.e. other than grounds of law) the decision will result in injustice being done it has both the power and the duty to remedy it”; and Lord Wright in Osenton's Case interpreted this as applying when there is a reasonable danger of an injustice. But it is to be noticed that Lord Wright prefaced his judgment with a quotation from Ormerod v. Todmorden Joint-Stock Mill Co. Ltd, in which Brett L.J. said that “This court lays down for itself the rule, which I think is the right one, that it will not exercise its own discretion unless it thinks the case is perfectly clear”; and later in his speech Lord Wright used words which I think are important: “I have already explained that, in my opinion, when the statute gives a right of appeal from an order made by a judge in exercise of his discretion and an appeal is taken, the discretion of the appellate court is substituted for that of the judge, as Brett L.J. pointed out in the passage which I have quoted above. The responsibility of deciding is then placed on the appellate court. No doubt that court starts with the presumption that the judge has rightly exercised his discretion. It must be satisfied that the exercise was wrong—‘clearly satisfied’ is the phrase used; but if the court is said to be satisfied, it must mean that it is ‘clearly’ satisfied. ‘Clearly’ strictly adds nothing, though it is useful to emphasize the strength of the presumption in favour of the judge's order being right. The appellate court must not reverse the judge's decision on a mere ‘measuring cast’ or on a bare balance”.
[Underlining is mine.][Citations omitted.]
[23] Lovell v Lovell (1950) 81 CLR 513, 533.
In Gronow v Gronow,[24] the majority of the High Court (Stephen, Mason, Aickin and Wilson JJ) held that a conclusion that a judge has given excessive weight to some factors does not alone provide a basis for reversal of the decision by an appellate court, particularly where the assessment of weight to be given to relevant factors are liable to be affected by seeing and hearing the parties. Stephen J observed:[25]
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
[Underlining is mine.]
[24] (1979) 144 CLR 513.
[25] Gronow v Gronow (1979) 144 CLR 513, 519-20. See also Aickin J at 537-8. Referred to with approval in Mallet v Mallet (1984) 156 CLR 605. See further, Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621, 627.
It can be observed from the foregoing analysis that the exercise of a judicial discretion may be vitiated by a judge’s failure to give sufficient weight to a relevant factor. The proposition that the appeal court may consider whether sufficient weight has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction. An appeal court needs to view this ground of appeal with considerable caution.[26] Particular caution should be taken where the assessment of weight to be given to relevant factors are liable to be affected by seeing and hearing the parties. An appellate court should not set aside an order made in the exercise of a discretion unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court, and not bare a conclusion that an appeal court would have exercised the discretion differently. It will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion that, by reason of the failure to give adequate weight to relevant considerations, the discretion has been exercised wrongfully.
[26] Mallet v Mallet (1984) 156 CLR 605, 622.
Classifying the error
The types of errors capable of vitiating the exercise of a discretion identified in House v King can be divided in two categories. The first category of error may involve adopting an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material consideration or a mistake as to the facts. The second category of error may not be possible to identify with exactness but may be apparent in a result which is manifestly unreasonable or plainly wrong.
In AB v The Queen,[27] Hayne J considered the importance of correctly classifying the error the subject of complaint. He referred to the first category of error as “specific” and the second as “manifest”. Hayne J observed:^[28]
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
[27] (1999) 198 CLR 111.
[28] AB v The Queen (1999) 198 CLR 111, [190]. See also Kirby J at [104]-[107]. See further, R v Wong (2001) 207 CLR 584, [58]; R v Horstmann [2010] SASC 103, [36] where Kourakis J (as he was then) referred to “process” and “outcome” errors, respectively.
Similarly, in the recent decision of R v Kentwell, the majority of the High Court (French CJ, Hayne, Bell and Keane JJ) observed: [29]
In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.
[29] [2014] HCA 37, [35].

The practical importance of correctly classifying the subject error is demonstrated in the decision of Bugmy v The Queen.[30] In that case, the New South Wales Court of Criminal Appeal allowed a prosecution appeal against the sentence imposed on the appellant. The prosecution appealed on the ground that the sentence was manifestly inadequate. In a later notice, the prosecution sought to rely also on the following grounds:
Ground 1: His Honour failed to properly determine the objective seriousness of the offence.
Ground 2: His Honour failed to properly acknowledge the category of the victim as a serving prison officer in the lawful performance of his duties.
Ground 3: The weight his Honour afforded the [appellant]'s subjective case impermissibly ameliorated the appropriate sentence.
[30] (2013) 249 CLR 571.
The Court of Criminal Appeal upheld the three additional grounds of appeal and resentenced the appellant without deciding whether the sentence was manifestly inadequate. The majority of the High Court held that the Court of Criminal Appeal erred in doing so. It said that the three additional grounds were, in fact, particulars of the ground that the sentence was manifestly inadequate. Implicitly, the majority also determined that the three additional grounds did not amount to “specific” error. The majority (French CJ, Hayne, Crennen, Kiefel, Bell and Keane JJ) observed:[31]
The Director's additional grounds were particulars of the ground that the sentence was manifestly inadequate. The Director did not complain, and the Court of Criminal Appeal did not find, that Judge Lerve applied an incorrect principle of sentencing, took into account an irrelevant matter, applied a mistaken view of the facts or failed to take into account a material consideration. The conclusion that Judge Lerve “comprehensively misstated” the parties' submissions may not have been justified in light of the elaborate submissions put on the appellant's behalf. Mr Lawrence sought to dissect the assessment of the objective seriousness of the offence into component parts leading to a submission that the court “must balance a mens rea that is well below the mid-range with a result that is somewhere from the mid-range to above mid-range”. In any event, as Hoeben JA recognised, the assessment of the objective seriousness of the offence was a matter for Judge Lerve. The fact that Judge Lerve did not refer to the appellant's lack of remorse and failure to take responsibility for his conduct does not suggest that his Honour failed to take into account the appellant's callous disregard for his conduct. Judge Lerve detailed this in his account of the facts of the offence.
In the result, the Director's appeal was allowed without determination of the sole ground of challenge.
[Citations omitted.][Underlining is mine.]
[31] Bugmy v The Queen (2013) 249 CLR 571, [22]-[23].
The majority concluded that the Court of Criminal Appeal’s power to re-exercise the sentencing discretion was not enlivened by the Court’s finding that too much or too little weight had been given to material considerations:[32]
The Director submits that it is implicit in the reasons of the Court of Criminal Appeal that the Court concluded that the sentence for the offence against Mr Gould was manifestly inadequate. The difficulty with acceptance of the submission is that the Court expressly refrained from making that assessment. Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by Judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal's assessment of the appropriate sentence and Judge Lerve's assessment may be explained by saying that Judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case. The power could only be engaged if the Court was satisfied that Judge Lerve's discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. In that event, the Court was required to consider whether the Director's appeal should nonetheless be dismissed in the exercise of the residual discretion. The Court of Criminal Appeal did not decide that the sentence for the s 33(1)(b) offence was manifestly inadequate. The Court of Criminal Appeal did not consider the exercise of the residual discretion. It follows that the appeal must be allowed.
[Citations omitted.][Underlining is mine.]
[32] Bugmy v The Queen (2013) 249 CLR 571, [24].
In a separate judgment, Gageler J considered that the additional grounds were not clearly framed to invoke either category of appellate intervention. He said:[33]
The first and second were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account. As demonstrated in the joint reasons for judgment, they were not analysed by the Court of Criminal Appeal in those terms. The third was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.
[33] Bugmy v The Queen (2013) 249 CLR 571, [53]. See also, Carroll v The Queen (2009) 83 ALJR 579, [9]; Hili v The Queen (2010) 242 CLR 520, [58]-[60]
In Dinsdale v The Queen,[34] it was held that complaints as to the weight attributed to relevant considerations were properly categorised as particulars of the ground of appeal that a sentence is manifestly inadequate. In a joint judgment, Gleeson CJ and Hayne J further observed that a sentence may be manifestly inadequate or excessive because a custodial rather than non-custodial sentence is imposed. They said:[35]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
[Underlining is mine.]
[34] (2000) 202 CLR 321, [5].
[35] Dinsdale v The Queen (2000) 202 CLR 321, [6].
Similar observations were made by Gaudron and Gummow JJ:[36]
In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been “upon the facts … unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”. Was the sentence “manifestly wrong”?
[36] Dinsdale v The Queen (2000) 202 CLR 321, [22].
The approach on appeal
In the present case, the relevant grounds of appeal are as follows:
1.The sentence is manifestly excessive.
2.The learned sentencing Magistrate erred in failing to exercise his discretion to suspend the term of imprisonment he imposed.
Each ground of appeal then contains a number of particulars. The particulars are, for the most part, complaints that the Magistrate erred in placing too much or too little weight on certain sentencing considerations. Although the reasons of Gleeson CJ and Hayne J in Dinsdale suggest that imposing a custodial rather than non-custodial sentence may result in a manifestly excessive sentence, it does not, in my view, follow that a complaint that a judge has failed to suspend a sentence is necessarily a particular of the complaint that a sentence is manifestly excessive. In my view, the grounds of appeal are properly formulated.
Ground 1 concerns a complaint of the kind referred to by Hayne J in AB v The Queen as a manifest error. It is evident from the particulars that the complaint relates to the length of the head sentence. In determining whether such an error arises, the inquiry for the Court is whether the sentence falls within the appropriate range having regard to the matters identified in the Criminal Law (Sentencing) Act 1988 (SA) and all the relevant circumstances.[37]
[37] R v Nemer (2003) 87 SASR 168.
Ground 2 is also a complaint of manifest error. The defendant submits that the Magistrate erred in determining that no good reason existed to suspend the sentence of imprisonment. It is conceded by the defendant that the Magistrate identified all of the relevant sentencing considerations. The complaint is that the Magistrate placed too much weight on the need for general deterrence and too little weight on the defendant’s personal circumstances. In determining this ground of appeal, the Court will not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion that, by reason of the failure to give adequate weight to relevant considerations, the discretion has been exercised wrongfully. Unlike the inquiry to be undertaken in respect of ground 1, it is not appropriate to inquire whether the imposition of a custodial sentence was within the appropriate range. The inquiry should focus on whether the Magistrate erred in declining to exercise the discretion on the basis that no good reason existed to suspend the sentence.
Was the head sentence manifestly excessive?
The defendant contends that the starting point of two years and six months’ imprisonment was manifestly excessive and beyond that warranted by the objective circumstances of the offending. It is submitted that the defendant and the co-accused were not previously known to each other, the offence was spontaneous and committed whilst intoxicated, involved the theft of a minor amount of cash, was readily detected and the property returned, and the injury sustained by the victim was minor pain.
The maximum penalty for the offence of aggravated theft is imprisonment for 15 years.[38] However, the power of the Magistrates Court to impose a sentence of imprisonment is constrained by s 19(3) of the Criminal Law (Sentencing) Act 1988 (SA). That section limits the penalty the Court can impose in respect to one offence to a sentence of five years’ imprisonment. Despite the error in classifying Count 2 as a major indictable offence, the Magistrate correctly identified that the maximum penalty that could be imposed in respect of both offences was imprisonment for eight years. The Magistrate observed:
The offences are aggravated because they were committed in company with each other. The offence of aggravated assault carries a maximum penalty of three years imprisonment. The offence of aggravated theft carries a maximum of 15 years imprisonment but for that offence this court cannot impose a sentence greater than five years. So, the maximum penalty I can impose today is imprisonment for up to eight years. These are offences which would usually be dealt with in the District Court, as one of them is a major indictable, but each of you and the Director of Public Prosecutions have consented to having them dealt with in this court.
[38] Criminal Law Consolidation Act 1935 (SA) s 134.
In my view, the starting point of two years and six months’ imprisonment, whilst at the higher end, was not outside the appropriate range for offending of this nature. It cannot, in my view, be said to be unreasonable or plainly unjust.[39] The defendant was fortunate that the victim did not suffer more serious injuries.
[39] Dinsdale v The Queen (2000) 202 CLR 321, [6].
Accordingly, I would dismiss this ground of appeal.
Did the Magistrate err in failing to suspend the sentence?
Section 38(1) of the Criminal Law (Sentencing) Act 1988 (SA) empowers a court, on imposing a sentence of imprisonment on a defendant, to suspend the sentence on condition that the defendant enter into a bond, if it thinks that good reason exists for doing so. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life.[40] In deciding whether to suspend a sentence of imprisonment, a court will invariably revisit the factors considered in deciding to impose a sentence of imprisonment. Factors such as the youth of an offender, prospects of rehabilitation and the seriousness of the offending need to be considered afresh in light of the question the court is being asked to consider.
[40] R v Buckman (1988) 47 SASR 303, 304.
The defendant was aged 19 years at the time of the offence. A letter from the defendant’s general practitioner confirms that he has had major medical and psychiatric issues over the preceding two years which led to behavioural problems and the use of alcohol and illicit drugs. The doctor states that the defendant has now managed to abstain from using alcohol and other substances. The defendant lives with his parents and has strong family support. The defendant remains in stable employment and has the opportunity to commence an apprenticeship. A custodial sentence would jeopardise the defendant’s employment opportunities and his positive steps towards rehabilitation.
The defendant has a limited antecedent history and had not previously been sentence to a term of imprisonment. I have referred above to the defendant’s submissions on the objective seriousness of the offending.
In my view, the remarks of White J in R v McGaffin,[41] are apposite:
The youth of an offender who has attained the statutory age of majority is usually regarded as a mitigatory factor in sentencing. This may be because courts recognise that the young and immature are more prone to ill-considered or rash decisions; or because they consider young offenders may not have appreciated fully the nature, seriousness and consequences of the criminality involved in their conduct; or because they recognise the potential for young offenders to be redeemed and rehabilitated; or because they consider that the effect of incarceration in an adult prison is likely to impair, rather than improve, the offender's prospects of a successful rehabilitation. Thus, in R v Carroll, King CJ spoke of the courts being “inclined to mercy in the case of young people facing prison for the first time”. In R v Mills Batt JA endorsed the following propositions concerning the sentencing of youth offenders:
(i)Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
(ii)In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focussing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender).
(iii)A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified …
[Citations omitted.]
[41] (2010) A Crim R 188, [69].
The offending in this case was serious and there is a need to deter such behaviour in the community. However, effective deterrence can be achieved through the imposition of a suspended sentence. [42]
[42] Wood v Samuels (1974) 8 SASR 456, 468; R v Avgoustinos (1975) 13 SASR 48, 49-50; Elliot v Harris (No 2) (1976) 13 SASR 516, 527. R v Gaffly, [2009] SASC 261, [37].
Having regard to the above considerations, I am of the view that the Magistrate gave insufficient weight to the defendant’s youth and prospects of rehabilitation. I have come clearly to the conclusion that, by reason of the failure to give adequate weight to those considerations, the discretion has been exercised wrongfully.
Accordingly, I would allow the appeal on this ground.
Erroneous categorisation of Count 2
For completeness, it is necessary to consider the effect of the erroneous classification of count 2. As stated earlier in these reasons, it is clear from the sentencing remarks and the application pursuant to sub-s 108(1) of the Summary Procedures Act 1921 (SA) that count 2 on the Information was erroneously dealt with as a major indictable offence.
Major indictable offences are defined by s 5 of the Summary Procedures Act 1921 (SA). For present purposes, s 5 relevantly provides:
(c)an offence against Part 5 of the Criminal Law Consolidation Act 1935 involving $2 500 or less not being—
(ai)an offence against Division 3 of that Part (robbery); or
(i)an offence of violence; or
(ii)an offence that is one of a series of offences of the same or a similar character involving more than $2 500 in aggregate,
The offence of aggravated theft is contained within Part 5 of the Criminal Law Consolidation Act 1935 (SA). Section 4 of the Summary Procedures Act 1921 (SA) defines an offence of violence:
"offence of violence" means an offence where the offender—
(a)uses a weapon, or threatens to use a weapon, against another; or
(b)inflicts serious harm on another, or threatens to inflict serious harm on another,
The offending did not involve the use of a weapon, the infliction of serious harm, or the threat of either.
Section 5(9) of the Summary Procedures Act 1921 (SA) states:
(9)Where a summary offence is erroneously dealt with as an indictable offence or a minor indictable offence is erroneously dealt with as a major indictable offence, the proceedings are not invalid but any penalties imposed should conform with what would be appropriate if the offence had been correctly classified at the inception of the proceedings.
Several issues of construction arise in respect of s 5(9). The effect of the provision is that where a summary offence is erroneously dealt with as an indictable offence, the proceedings in respect of that offence are not invalid. Whilst there is a recognition that penalties imposed should conform with what would be appropriate if the offence had been correctly classified, the provision does not itself vest power in a court to set aside a sentence where the sentence is inappropriate, nor does it invalidate proceedings in such cases. Further, there are at least two possible constructions which attach to the adjective “appropriate”. On a broad construction, a sentence is inappropriate where another judge would have imposed a different sentence. On a narrower view, a sentence would only be inappropriate if it fell outside the range of appropriate sentences. My preliminary view is the latter, although I suspect that little turns on this.

Although the Magistrate correctly identified the maximum penalty that could be imposed in respect of count 2, he considered that the offences would usually be dealt with in the District Court, as one of them was a major indictable offence. In my view, this was an irrelevant matter for the Magistrate to have considered and, accordingly, the sentence should be set aside. I do not consider that s 5(9) of the Summary Procedures Act 1921 (SA) operates to preclude this finding.
Conclusion
I would set aside the sentence imposed by the Magistrate in respect of the offences of aggravated assault and aggravated theft. I would impose a sentence of one year and nine months’ imprisonment reduced from two years and six months on account of the defendant’s plea of guilty. I would fix a non-parole period of nine months. I would suspend that sentence upon the defendant entering into a bond to be of good behaviour for a period of 24 months. I would order that he be under the supervision of a community corrections officer and obey the lawful directions including in respect to any counselling that the officer considers appropriate. I would also order that he perform 100 of community service within 12 months and that during that period he remain at his residential address during the hours of 9 pm and 5 am unless to avert the risk of injury or death to himself or others, or to obtain urgent essential medical treatment.
I would not interfere with the Magistrate’s orders with respect to estreatment of the suspended sentence bond.
Post script
Since preparing these reasons I have considered the judgment of Gray J in Robinson v Police.[43] I indicate that I agree with those reasons.
[43] [2014] SASC 155.