Oatley v The Commonwealth Director of Public Prosecutions - [2021] SASCA 108

Supreme Court of South Australia
(Court of Appeal: Criminal)
OATLEY v THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2021] SASCA 108
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Stanley)
7 October 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - RECOGNISANCES
On 2 May 2019, the applicant was convicted in the Magistrates Court for the offences of non residential serious criminal trespass and dishonestly take property without consent. As the offences were committed at the Adelaide Airport, a Commonwealth place, they were prosecuted by the Commonwealth Director of Public Prosecutions.
The applicant was sentenced to 16 months imprisonment but was released upon entry into a $500 recognizance with conditions for the term of the sentence. The applicant failed to comply with the recognizance by returning positive drugs tests on five occasions (the drug breaches).
On 7 December 2020, the Magistrate revoked the recognizance and imposed the 16 month period of imprisonment not served. The applicant appealed against the sentence to a single Judge of this Court (the appeal Judge), who dismissed the appeal. The applicant sought leave to appeal the Judge’s decision to this Court.
During the appeal in this Court, a difference was discovered between the transcription of the Magistrate’s sentencing remarks and the settled remarks provided to the parties. The applicant sought leave to add a new ground of appeal which the Director did not oppose.
Held (per the Court), granting permission to appeal, allowing the appeal and resentencing the applicant to a six-month extension of the recognizance:
1.By s 50 of the Supreme Court Act 1935 (SA), the Court of Appeal has power to entertain an appeal ground not previously advanced before a single Judge on appeal from a Magistrate. Whether permission to pursue a second appeal is granted will often turn on whether the judgment is plainly wrong or unjust. An appeal court is not obliged to, and ought not, allow an appeal unless some miscarriage of justice is demonstrated.
2.While sentencing courts have considerable latitude to amend and settle ex tempore sentencing remarks, that does not extend to making changes of substance to the material basis upon which the sentencing discretion was apparently exercised.
3.Where a sentence is affected by specific error, it must be set aside unless, in the fresh exercise of the sentencing discretion, taking into account all relevant matters, the Court is of the opinion that the earlier sentence was appropriate.
4.Where a particular sentencing option is relevant, open and urged on the Court but rejected, it is usually necessary for the sentencing court to say why it was rejected. However, it must also be presumed that a sentencing court knows the sentencing law and sentencing remarks will not be inadequate simply because a sentencing court does not expressly address all sentencing options.
5.When determining which of the sentencing options provided for in s 20A(5)(c) of the Crimes Act 1914 (Cth) to apply, the overriding requirement is to make an order appropriate to the circumstances of the case, taking into account the matters provided for in s 16A(2) of the Crimes Act 1914 (Cth).

Crimes Act 1914 (Cth) ss 20A(1), 20A(5), 20A(6), 20A(7); Criminal Procedure Act 1921 (SA) s 158(8); Judiciary Act 1903 (Cth) s 68(1); Sentencing Act 2017 (SA) ss 25(2), 114(1); Supreme Court Act 1935 (SA) ss 50(1), 50(4), 50(6), referred to.
Sweeney v Corporate Security Group (2003) 86 SASR 425, discussed.
AB v The Queen (1999) 198 CLR 111; Bond v The Queen (2000) 201 CLR 213; BRK v Police [2020] SASC 116; Connecticut Fire Insurance Co v Kavanagh [1892] AC 473; Coulton v Holcombe (1986) 162 CLR 1; Craill v Police [2016] SASC 168; Crampton v The Queen (2000) 206 CLR 161; Cross v Police [2001] SASC 47; Doyle v The Queen (1996) 84 A Crim R 287; Feldman v Samuels [1956] SASR 55; Fingleton v The Queen (2005) 227 CLR 166; Gazepis v Police (1997) 70 SASR 121; Hart v Police [2010] SASC 47; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 169; Ierodiaconou v Police [2018] SASC 105; Kentwell v The Queen (2014) 252 CLR 601; KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480; Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573; Lam v Beesley (1992) 7 WAR 88; Lawrence v Becker [2008] SASC 29; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Ludgate v Police [2018] SASC 175; Markarian v The Queen (2005) 228 CLR 357; Martin v Kraft (No 2) [1991] SASC 2964; Mickelberg v The Queen (1989) 167 CLR 259; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 95 ALJR 292; Moore McQuillan v Police (No 4) [2002] SASC 237; Neal v The Queen (1982) 149 CLR 305; Nguyen v Police [2009] SASC 255; Oatley v Police [2021] SASC 40; Paps v Police (2000) 77 SASR 210; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282; Pinkstone v The Queen (2004) 219 CLR 444; Plaintiff M47/2012 v The Director-General of Security (2012) 251 CLR 1; R v Buckman (1988) 47 SASR 303; R v Davey (2006) 95 SASR 63; R v De Simoni (1981) 147 CLR 383; R v Doyle (1996) 84 A Crim R 287; R v Fati [2021] SASCA 99; R v Horstmann [2010] SASC 103; R v Marston (1993) 60 SASR 320; R v Oake [2017] SASCFC 82; R v Reiner (1974) 8 SASR 102; R v Robin [2016] SASCFC 55; R v Tsonis (2018) 131 SASR 416; R v Ttikirou [2018] SASCFC 76; R v Traiconi (1990) 49 A Crim R 417; Spencer v Bamber [2012] NSWCA 274; St Clair v Police [2000] SASC 290; Stanberg Pty Ltd v Tabibi [2012] SASC 187; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Szewczuk v Police [2001] SASC 223; The State of South Australia In Right Of The Department For Education And Child Development v Dolan [2021] SASCFC 30; Todorovic v Moussa (2001) 53 NSWLR 463; Tuncks v Chief Executive Officer of Customs [2005] SASC 408; University of Wollongong v Metwally (No 2) (1985) 60 ALR 68; Water Board v Moustakas (1988) 180 CLR 491, considered.

OATLEY v THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2021] SASCA 108
Court of Appeal: Criminal: Livesey P, Lovell JA, Stanley AJA
THE COURT:
Introduction

This case took an unexpected turn. The appeal commenced with the contention that the Magistrate had given inadequate reasons for sentence following the revocation of a recognizance release order (the recognizance) and ordering that the applicant be imprisoned for 16 months, and that a Judge of this Court had erred in finding otherwise, dismissing an appeal against the Magistrate’s order.[1]
[1] Oatley v Police [2021] SASC 40 (David J).
During the appeal, however, it emerged that a change had been made to the Magistrate’s ex tempore sentencing remarks. Whereas the transcript recorded that the Magistrate found that “breaches” of the recognizance conditions included failing to undergo psychological counselling, the settled version of these remarks removed the reference to these failings as “breaches”.
The applicant sought permission to include a new ground of appeal, which was not opposed by the respondent Director, in the following terms:
The learned sentencing Magistrate erred in sentencing the applicant for breaches of the recognizance that were neither charged nor admitted.
Whilst sentencing courts have considerable latitude to amend and settle ex tempore sentencing remarks, that does not extend to making changes of substance to the material basis upon which the sentencing discretion was apparently exercised.
For the reasons that follow, we allow the appeal.
The earlier offending and sentence - the recognizance
On 2 May 2019, the applicant was sentenced by the Chief Magistrate for the following offences committed on 27 October 2016:
1.Non-residential serious criminal trespass, contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA); and
2.Dishonestly take property without consent, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA).
These were Commonwealth offences.[2] The offending was prosecuted by the Commonwealth Director of Public Prosecutions under the Commonwealth Places (Application of Laws) Act 1970 (Cth). On sentencing the applicant for the offences at first instance, Part IB of the Crimes Act 1914 (Cth) applied, along with certain provisions of the Sentencing Act 2017 (SA).[3]
[2] As the offences were committed at the Adelaide Airport, a Commonwealth place. The Commonwealth Places (Application of Laws) Act 1970 (Cth) applied the subject State offence provisions as a “surrogate federal law”: Pinkstone v The Queen (2004) 219 CLR 444, [34] (McHugh and Gummow JJ).
[3] The Sentencing Act 2017 (SA) applies to the sentencing of Commonwealth offenders in South Australia to the extent that it is not contrary to a Commonwealth law, or where there is a Commonwealth legislative scheme that is “complete on its face”: Judiciary Act 1903 (Cth), s 68(1); Putland v The Queen (2004) 218 CLR 174, 178 [4]-[7] (Gleeson CJ); Hili v The Queen (2010) 242 CLR 520, [51]-[52]. For example, s 26 of the Sentencing Act 2017 (SA) applies to Commonwealth sentencing, but the provisions relating to suspended sentence bonds do not.
The applicant was sentenced to 16 months’ imprisonment but released forthwith upon entry into a recognizance to be of good behaviour in the amount of $500 pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth).
The recognizance was set to expire on 1 September 2020. It contained conditions to be of good behaviour, to remain under the supervision of a probation officer, to obey all lawful directions given by that officer, and to not consume any drug which was not medically prescribed.
Breaches of the recognizance release order
Early the following year, on 14 February 2020, the Commonwealth Director filed an application to enforce the recognizance after the applicant had returned three urinalysis results positive to methylamphetamine and amphetamine on 22 August, 4 September and 28 October 2019.
When the matter initially came before the Magistrates Court on 27 March 2020, the applicant was unrepresented. The Director was given permission to charge two further positive urinalysis results, being on 17 February and 16 March 2020.
On 28 August 2020, the applicant admitted the five positive drug test breaches and commenced on bail, even though the recognizance was due to expire on 1 September 2020, because he wished to have an opportunity to demonstrate his willingness to engage with Corrections even following the expiration of the order.
Sentencing submissions before the Magistrate
The matter came before the Magistrate for sentencing submissions on 23 October 2020. It was submitted on behalf of the applicant that, instead of revoking the recognizance and bringing into effect the 16 month term of imprisonment, the Magistrate should instead exercise one of the other options available under s 20A(5), or estreat the recognizance under s 20A(7), or make an order that the defendant be subject to a community service order or an intensive corrections order pursuant to s 20A(5)(c)(ic) of the Crimes Act 1914 (Cth).
The Magistrate requested written submissions and ordered an addendum progress report concerning the applicant’s continued engagement with Corrections.
On 25 November 2020, the applicant’s solicitor sent the Magistrate’s clerk a written update from Corrections, noting that there had been two more drug tests, on 29 October and 5 November 2020, but both had been negative.
The Magistrate’s ex tempore sentencing remarks
On 7 December 2020, the matter came back before the Magistrate who proceeded to sentence. During the course of his ex tempore remarks, the Magistrate found various breaches proved, revoked the recognizance order pursuant to s 20A(5)(c)(i) of the Crimes Act 1914 (Cth), and ordered that the applicant be imprisoned for the sentence earlier imposed, but not served, at the time of earlier release.
In the course of these remarks, the Magistrate said that he had taken the written submissions of the parties into account, along with the “ongoing progress reports from the Department of Correctional Services”, which he did not repeat. He said that he concentrated on the sentence imposed by the Chief Magistrate, the conditions of the recognizance and the failures to comply with those conditions. The Magistrate noted the absence of reoffending, the applicant’s regular reporting and the negative drug tests. The Magistrate explicitly acknowledged the submission made on behalf of the applicant that he should focus on these positive factors, before saying that he had taken those matters into account. The Magistrate then said:
… the offending was serious. The requirements of the bond were in my view, lenient and the Judge gave you an opportunity to reform and although you have partly complied, you have only partly complied. The failure to comply fully is, in my view, fatal and I think that the only appropriate was to deal with it is to revoke the suspension and I do.
The appeal before the single Judge
A few days later, the applicant was released on bail pending an appeal lodged that day. The appeal was heard by the Judge on 10 February and 3 March 2021. The appeal was dismissed on 16 April 2021. In the course of her comprehensive reasons, the appeal Judge explained:[4]
… Whilst his Honour did not specifically refer to the other alternative orders which could have been made under s 20A(5) of the Crimes Act, those alternatives were fully canvassed in the written submissions of both parties, and his Honour had adjourned proceedings for those submissions to be prepared and said in his remarks that he had taken the written submissions into account. It is not necessarily an error for a Magistrate to fail to mention all sentencing options or orders available under the relevant legislation.
In this matter, the Magistrate was clearly aware of the other options available under s20A(5) of the Crimes Act. His Honour made clear in his remarks that he considered the appellant’s failure to fully to comply with the bond as ‘fatal’, implicitly rejecting the other alternatives as an appropriate order. In those circumstances, I consider the Magistrate’s reasons adequate, albeit brief.
(footnote omitted.)
[4] Oatley v Police [2021] SASC 40, [60]-[61] (David J).
Adequate reasons
The applicant’s attack on the adequacy of the Magistrate’s reasons commenced with Sweeney v Corporate Security Group in which Perry J explained that where the Court is satisfied that the defendant’s failure is “without reasonable cause or excuse”, the five options specified in s 20A(5) are:[5]
… not, in my view, expressed in language which suggests that the option of activating that part of the sentence of imprisonment which has not at that stage been served is necessarily the predominant option, or the starting point in considering the course to be followed.
[5] Sweeney v Corporate Security Group (2003) 86 SASR 425, [159].
It may be accepted that the discretion exercised pursuant to s 20A(5)(c) in connection with a breach of recognizance differs from that which is exercised when a sentence is first imposed.[6] For example, by s 17A(1) of the Crimes Act 1914 (Cth), the Court must not pass a sentence of imprisonment unless, having considered all sentencing options, the Court considers no other sentence is appropriate. That provision does not apply when addressing the breach of a recognizance imposed under s 20(1)(b), because the Court is not then imposing a sentence of imprisonment. Indeed, in Sweeney v Corporate Security Group it was explained that, under s 20A(5)(c):[7]
… the court should simply select whichever of the options available to it as seem to be appropriate, having regard to all relevant circumstances of the particular case.
[6] Sweeney v Corporate Security Group (2003) 86 SASR 425, [13]-[15], [132] (Perry J).
[7] Sweeney v Corporate Security Group (2003) 86 SASR 425, [160] (Perry J).
In that case Perry J contrasted the position under State law where, following the breach of a suspended sentence bond, the Court was then required to activate the suspended term of imprisonment unless satisfied that the breach was trivial or could be excused on proper grounds.
Relevantly, s 20A sets out the following sentencing options following a breach of a recognizance order:
(1)Where a person has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), and information is laid before a magistrate alleging that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, the magistrate may:
(a)     issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the order was made; or
(b)     if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective—issue a warrant for the apprehension of the person.
…
(5)Where, in accordance with this section, a person who has been discharged in pursuance of an order made under subsection 19B(1), or released in pursuance of an order made under subsection 20(1), appears or is brought before the court by which the order was made, the court (whether or not constituted by the judge or magistrate who made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, may:
(a)     in the case of a person who has been discharged in pursuance of an order made under subsection 19B(1):
(i)revoke the order, convict the person of the offence or offences in respect of which the order was made and, subject to subsection (6), deal with the person, for that offence or those offences, in any manner in which he or she could have been dealt with for that offence or those offences if the order had not been made; or
(ii)take no action; or
(b)     in the case of a person who has been released in pursuance of an order made under paragraph 20(1)(a):
(i)without prejudice to the continuance of the order, impose a pecuniary penalty not exceeding 10 penalty units on the person;
(ii)revoke the order and, subject to subsection (6), deal with the person, for the offence or offences in respect of which the order was made, in any manner in which he or she could have been dealt with for that offence or those offences if the order had not been made and he or she was before the court for sentence in respect of the offence or offences; or
(iii)take no action; or
(c)     in the case of a person who has been released by an order made under paragraph 20(1)(b):
(ia)impose on the person a monetary penalty of not more than $1000; or
(ib)subject to subsection (5A), amend the order so as to extend the period for which the person is required to give security to be of good behaviour; or
(ic)revoke the order and make an order under section 20AB; or
(i)revoke the order and deal with the person for the offence or offences in respect of which the order was made by ordering that the person be imprisoned for that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release; or
(ii)take no action.

In addition, by s 20A(5)(c)(ia) the Court may simply estreat the amount of the recognizance or, alternatively, pursuant to s 20A(5)(c)(ic), the Court may order that the defendant be subjected to a community service order or intensive corrections order.[8] The Court does not have the power to reduce the sentence of imprisonment associated with the recognizance.
[8] The Court may only make such an order where the sentencing alternative would be available for a corresponding offence under State law: Crimes Act 1914 (Cth), s 20AB(1)(b).
It is in this statutory context that the applicant contended that the Magistrate’s reasons were inadequate. It was argued that the Magistrate did not explain why any of the other potential sentencing options would not be an appropriate penalty.
The applicant contended that the reasons of the Judge did not grapple with the available sentencing options and it was far from clear that, even if the Magistrate was aware of the other options, he had implicitly rejected them. The Judge failed to recognise, it was contended, that when describing the applicant’s non‑compliance as “fatal”, this was merely a statement of conclusion, rather than a reason for that conclusion, with the result that it was impossible to discern from the sentencing remarks why the other sentencing options were not appropriate. There must, it was submitted, have been some other reason for the order which was made.
By s 80 of the Judiciary Act 1903 (Cth), the common law applies to all courts exercising Commonwealth jurisdiction as modified by the Constitution and the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held. The common law is applied only so far as the laws of the Commonwealth are not applicable or insofar as their provisions are insufficient to carry them into effect or to provide adequate remedies or punishment.
The relevant common law includes the obligation to give adequate reasons.
Whilst the failure to provide adequate reasons for sentence is an error of law,[9] it has also been recognised that when a court is imposing an immediate sentence of imprisonment, the requirement to provide adequate reasons becomes more important.[10] In addition, exchanges with counsel during submissions provides no substitute for giving adequate reasons.[11]
[9] Papps v Police (2000) 77 SASR 210 (Gray J, with whom Olssen and Wicks JJ agreed); Cross v Police [2001] SASC 47 (Olssen J); Szewczuk v Police [2001] SASC 223 (Lander J); Tuncks v Chief Executive Officer of Customs [2005] SASC 408.
[10] R v Robin [2016] SASCFC 55, [20] (Kelly J, with whom Stanley and Nicholson JJ agreed).
[11] R v Davey (2006) 95 SASR 63 [36]-[40] (Gray J, with whom Bleby and Anderson JJ agreed).
As has often been emphasised, reasons will be inadequate if an appeal court is unable to ascertain the reasoning upon which the decision is based and if the appeal court is unable to carry out the appellate function of review when determining whether the exercise of discretion miscarried or, was in fact, exercised. Where a particular sentencing option is relevant, open and urged on the Court but rejected, it is usually necessary for the sentencing court to say why it was rejected.[12] Nonetheless, it has also been recognised that:[13]
… sentencing remarks are not reasons for judgment and are not to be read with a hyper‑critical eye but on the presumption that the sentencing judge knows sentencing law.[14] The respondent also submitted, correctly, that there is no verbal formula for making findings or rejecting arguments.[15]
(footnotes in original.)
[12] R v Robin [2016] SASCFC 55, [16]-[17] (Kelly, with whom Stanley and Nicholson JJ agreed) (regarding suspension of a sentence of imprisonment); Ludgate v Police [2018] SASC 175 (Hinton J); BRK v Police [2020] SASC 116, [89] (Livesey J).
[13] KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480, [28] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[14] R v Reiner (1974) 8 SASR 102, 114-115 (Wells J).
[15] Cf Douglass v The Queen (2012) 86 ALJR 1086.
Moreover, due regard must be given to the summary nature of the proceeding and the fact that the Magistrate’s remarks were delivered ex tempore. As Vanstone J explained in Playford v Police:[16]
I do not consider that the Magistrate’s quite extensive ex tempore reasons disclose any error. Remarks on penalty given by magistrates, and particularly ex tempore remarks, are not to be analysed and deconstructed in the same way as might be settled reasons for judgment. Of necessity, magistrates often deliver ex tempore reasons. If they did not, no doubt their workloads would become overwhelming. Not all cases call for any more than brief reasons identifying, for the benefit of the person to be penalised, what are the critical factors which weighed in the decision on penalty.
Here, the Magistrate focused on the thrust of the appellant’s submissions which went to the question of whether or not to record convictions. She gave quite extensive reasons. They run to two pages. That not every submission made by the appellant was mentioned is of no great moment. There is no obligation to mention every submission or every argument; Sims v Police [2000] SASC 102 at [6] per Bleby J; Gilev v Police [2013] SASC 108 at [7] per David J; McDermott v Police [2014] SASC 175 at [27] per Nicholson J ...
[16] Playford v Police [2017] SASC 26, [23]-[24] (Vanstone J); Mak v Police [2008] SASC 342, [40] (Kourakis J).
Accordingly, appeal courts ought be cautious before inferring error from the “necessarily economical” sentencing remarks made in the Magistrates Court.[17] In particular, not only must it be presumed that the sentencing court knows the sentencing law, but error is not established where a Magistrate does not expressly address all alternatives when recognition of the available sentencing options can be inferred.[18]
[17] Craill v Police [2016] SASC 168, [30] (Stanley J).
[18] Ludgate v Police [2018] SASC 175, [59] (Hinton J).
In this case, the extensive written submissions properly outlined all of the available sentencing options, and the Magistrate’s remarks demonstrate that he had regard to these, as well as the case put for the applicant. It may readily be inferred that the Magistrate was concerned to ensure that the community’s interest in preserving the integrity of sentencing options such as a recognizance was maintained.[19] As the Court was not punishing for the breach, “but, by reason of the breach, for [the] original offence”, the essential question was which of the available options was appropriate.[20] In these circumstances, the appeal Judge was correct to find that, albeit brief, the sentencing remarks were, in the circumstances of this case, not inadequate.
[19] Doyle v The Queen (1996) 84 A Crim R 287, 289-290 (Smart, Badgery-Parker and Simpson JJ).
[20] Sweeney v Corporate Security Group (2003) 86 SASR 425, [160] (Perry J); R v Tran [2019] SASCFC 5.
Accordingly, permission to appeal the adequacy of the Magistrate’s reasons should be refused.
Should the new ground be entertained?
Before addressing the new appeal ground, it is first necessary to address the Director’s concern as to whether the Court of Appeal can set aside a decision of a single Judge on appeal from a Magistrate on a ground that was not advanced before the single Judge.
There is no reason to question the power of the Court of Appeal to entertain an appeal ground not previously advanced before a single Judge on appeal from a Magistrate. The jurisdiction of the Court of Appeal is conferred by s 50(1)(a) of the Supreme Court Act 1935 (SA). The appeal jurisdiction encompasses that which is conferred expressly or inferentially by the statute,[21] and includes the implied power to do all that is necessary to effect the purpose of the express conferral of power.[22]
[21] Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573, [56], or that which is incidental to the express grant: R v Fati [2021] SASCA 99, [54] (Livesey P, Doyle and David JJA).
[22] Plaintiff M47/2012 v The Director-General of Security (2012) 251 CLR 1, [48] (French CJ) and the authorities there cited.
The appeal in this matter lies to the Court of Appeal, albeit only with permission, against “a judgment” of the single Judge.[23] The term “judgment” is defined to mean an order or direction, or a decision not to make an order or direction,[24] which embraces “a judicial act which decides the question or one of the questions … raised for decision in the particular proceedings”.[25] Though the reasons of the Court often reveal why an order or direction was made, as well as whether an order or direction was made in error, the appeal does not lie against the reasons. The appeal lies against an order or direction of the Court.[26] In this case, it is arguable that the order was made by the single Judge in error because there was a failure to identify that the Magistrate exercised his discretion on an erroneous basis, namely, that the applicant had breached the conditions of the recognizance by failing to follow directions which were neither proved nor admitted. It is not to the point that this error was not addressed in the reasons of the single Judge. The content of the reasons does not necessarily determine whether the order made by the single Judge is affected by appellable error. As was explained in Crampton v The Queen:[27]
Error in a final determination does not necessarily involve error in the process of reasoning of the court.
[23] See the Supreme Court Act 1935 (SA), ss 50(1)(a) and 50(4)(a)(ii).
[24] Supreme Court Act 1935 (SA), s 50(6).
[25] Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, 127-128 (King CJ); Stanberg Pty Ltd v Tabibi [2012] SASC 187, [16]-[18] (Peek J).
[26] Crampton v The Queen (2000) 206 CLR 161, [149] (Hayne J).
[27] Crampton v The Queen (2000) 206 CLR 161, [12] (Gleeson CJ). See also The State of South Australia In Right Of The Department For Education And Child Development v Dolan [2021] SASCFC 30, [66]‑[75] (Livesey J, with whom Doyle J agreed).
Assuming that there is power to entertain a new appeal ground, it is a separate question whether the Court of Appeal should entertain a ground which was not raised before the single Judge. The power to be exercised by this Court must be exercised judicially, having regard to recognised principles. Whilst parties are ordinarily bound by their conduct of litigation, whether at trial or on appeal,[28] it is also well-recognised that where the new point could not have been met by further evidence, it will often be entertained:[29]
When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea …
[28] Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438; University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, 70-71; Coulton v Holcombe (1986) 162 CLR 1, 7-8; Water Board v Moustakas (1988) 180 CLR 491, 496-497.
[29] Connecticut Fire Insurance Co v Kavanagh [1892] AC 473, 480 (Lord Watson), approved in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, 438.
Whilst this approach to finality in the conduct of litigation applies equally to civil and criminal proceedings,[30] it has been said in “criminal appeals, this rule is tempered, to some extent”:[31]
In criminal appeals, this rule is tempered, to some extent, by the ordinary focus of the governing legislation upon issues of “miscarriage of justice” and by the heightened concern of the law with questions of liberty, status and reputation typically involved. Nonetheless, the law’s proper anxiety about finality of litigation, and about the costs and other burdens that litigation occasions, focuses attention, in cases such as the present, upon the question of whether “special” or “exceptional” circumstances are shown that warrant a belated reliance on a new point. This obstacle cannot be brushed aside. Consistency in the treatment of appeals requires that this issue be given specific attention in this appeal …
[30] Mickelberg v The Queen (1989) 167 CLR 259, 272-273 (Mason CJ); Bond v The Queen (2000) 201 CLR 213, [30] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[31] Fingleton v The Queen (2005) 227 CLR 166, [148] (Kirby J).
In the context of an appeal against a judgment of a single Judge on appeal from a Magistrate, whether permission to pursue a second appeal is granted will often turn on whether the judgment is plainly wrong or unjust:[32]
Leave to appeal to this Court against a decision of a single judge on appeal from a Court of Summary Jurisdiction is granted, ordinarily speaking, only where the grounds of appeal disclose a point of law, or a point of principle of general importance, or in some exceptional cases where there are clear indications that an injustice has occurred.
[32] Martin v Kraft (No 2) [1991] SASC 2964. See also Lawrence v Becker [2008] SASC 29, [8]; Moore‑McQuillan v Police (No 4) [2002] SASC 237, [20].
Nonetheless, an appeal court is not obliged to, and ought not, allow an appeal unless some miscarriage of justice is demonstrated.[33]
[33] Gazepis v Police (1997) 70 SASR 121 (Doyle CJ, with whom Lander and Bleby JJ agreed).
In this case, the Director, very properly, did not suggest that the new ground ought not be entertained, assuming that there was power to do so. The applicant should be permitted to raise the new ground of appeal.
Revising ex tempore sentencing remarks
It was in the course of addressing the Court about the extent to which the Magistrate had or had not properly explained his reliance upon the applicant’s failure to undergo psychological counselling that attention was drawn to the difference between the transcription of the Magistrate’s sentencing remarks and the settled remarks to which reference has already been made. The transcript is in the following terms:
The conditions were that you were to be under the supervision of the Department of Corrections, and you were not to consume any drugs during that period. You haven’t complied, or at least you haven’t complied completely, and the breaches in particular have been, first of all, five positive urine tests, positive for methamphetamine. You failed also to undertake psychological counselling, and those are breaches.
(emphasis added.)
These last few lines may be compared with the passage as it appears in the settled remarks:
You have not complied, or at least you have not complied completely and the breaches in particular, have been five positive urine tests, positive for methamphetamine. You have also failed to undertake psychological counselling.
The editing of the transcript removed any suggestion that the failure to engage in psychological counselling comprised breaches of the recognizance entered into on 2 May 2019.
The applicant contends that the Magistrate erroneously took into account the failure to undertake psychological counselling as a breach of the conditions of the recognizance. It is submitted that this cannot be conflated with the related, but separate issue whether the applicant started, but did not complete, the voluntary Matrix program. A failure to undergo psychological counselling could only have been a breach of the recognizance if it had been directed by a Corrections officer. Whether any directions were given as formal directions in writing is not known.
Before the Magistrate, the applicant had contested the proposition that he had failed to comply with any directions given by a Corrections officer on this issue. The applicant was never separately charged with any failure to undertake psychological counselling as directed by Corrections as breaches of the conditions of the recognizance: on the information available to the Magistrate and this Court, one cannot say exactly when or in what terms directions were given, or when any failure to comply occurred.
The Director contends that, regardless whether these failings were separately charged as breaches, the Magistrate was required to take into account what had occurred under the recognizance,[34] together with any other matter the Court considered should be taken into account. The Magistrate was required to have regard to all of the applicant’s conduct as part of the relevant circumstances.[35]
[34] See Crimes Act 1914 (Cth), s 20A(6)(b).
[35] Sweeney v Corporate Security Group (2003) 86 SASR 425, [158] (Perry J).
Whilst the applicant had not obtained a Mental Health Care Plan and had not commenced psychological counselling,[36] and had accordingly failed to engage with this aspect of his rehabilitation, there is a difference between taking this circumstance into account and a finding that there is a proved breach of the recognizance “without reasonable cause or excuse” under s 20A(1) of the Crimes Act 1914 (Cth). There is a clear, important difference between a circumstance which might be taken into account in a general way, and the breach of the conditions of a recognizance order to which there is no defence.
[36] Appeal Book, page 100: The applicant told his Community Corrections Officer that he had by 24 September 2020 obtained a Mental Health Care Plan and an appointment with a psychologist had been booked in early December. This process had not commenced during the period of the order, as the applicant’s Community Corrections Officer had, according to the Director, directed.
Indeed, and with respect, the recognition of this difference might explain the changes made to the transcript of the ex tempore remarks.
In Minister v AAM17, Steward J emphasised that the “general principle” is that a court must accept as the authentic record of a judge’s reasons “that which has been approved … after consideration of the draft”.[37] Nonetheless, the appeal court may consider the original transcript where there is “cogent evidence” to support it.[38] That requirement is satisfied in this case.
[37] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 95 ALJR 292, [34], citing Bromley v Bromley [1965] P 111, 116 (Danckwerts LJ) and Lam v Beesley (1992) 7 WAR 88, 93-94 (Owen J).
[38] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 95 ALJR 292, [33], citing Bromley v Bromley [1965] P 111, 114 (Willmer LJ, with whom Danckwerts and and Davies LJJ agreed).
This is not a case where the existence of any difference between the ex tempore and settled remarks is speculative or uncertain. In most cases, there is no good reason to go behind the settled remarks. In most cases, the settled remarks are the only basis upon which the exercise of discretion must be reviewed by the appeal court. Reviewing the transcript or audio recording of what was said at the time of sentence is not to be encouraged. It is not enough that a party wishes to go looking to see whether there is a point or where there is uncertainty about what was said in the courtroom. By contrast, in this case, the transcript was obtained by the single Judge for a different reason and a comparison with the settled remarks demonstrates the difference between what was said and what has been settled.
Sentencing judges and magistrates are to be encouraged to decide cases promptly and to give judgments immediately. Because expedition is to be encouraged, judges and magistrates may revise ex tempore reasons “extensively, without altering their substance or the orders which they sustain”.[39] Indeed, judges and magistrates may improve “the manner of expression of their reasons, provided, of course, they do not alter the substance”.[40] The scope to improve the expression of ex tempore remarks and reasons, so long as the “substance of what was said” is not changed, was recently reiterated by the High Court:[41]
… a judge has some ability to improve the expression of her or his judgment in published reasons, so long as she or he does not change the substance of what was said in ex tempore reasons or make other material changes. Depending upon any applicable rules of court, it may be accepted that in civil proceedings (without a jury) there is latitude for a judge to revise ex tempore reasons. That capacity may not be limited to slips, or to mistakes, or to matters of style. However, changes of substance are not permitted.
… where written reasons of a court are published following the giving of ex tempore reasons, those written reasons must be taken to be the authentic expression of the judgment of the court unless it is otherwise shown that those reasons had materially deviated from what had been announced in court. Such deviations might be demonstrated by calling for the transcript (or other recording) of the ex tempore judgment; by the production of notes taken by counsel or by an instructing solicitor of what was said; or even by evidence given by counsel or an instructing solicitor in lieu of such notes.
(footnote omitted.)
[39] The Honourable Michael Kirby AC, “Ex Tempore Judgments – Reasons on the Run” (1995) 25 University of Western Australia Law Review 213, 229-230.
[40] The Honourable Murray Gleeson AC, “Revising Transcripts of Summings-up” (1997) 9 Judicial Officers’ Bulletin 25, 25.
[41] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 95 ALJR 292, [31]-[32] (Steward J, with whom Kiefel CJ, Keane, Gordon and Edelman JJ agreed).

In civil matters, Beazley JA has expressed the view that whether alteration to ex tempore reasons is permissible is determined by whether the alteration is one of substance.[42] By contrast, in criminal matters, Owen J has expressed the view that where alteration to ex tempore reasons “could lead to an appearance of altered substance”, rather than mere matters of form, that is sufficient to render a conviction liable to be set aside.[43] The difference between the approach of Beazley JA and Owen J is, arguably, one of emphasis. A defendant is entitled to know the basis upon which sentence was actually imposed. In addition, the appeal court must be furnished with remarks that enable real appellate review. In many cases, particularly in sentencing, it may be difficult to be confident whether the change concerned a matter which affected the exercise of discretion.
[42] Todorovic v Moussa (2001) 53 NSWLR 463, [41]-[47] (Beazley JA with whom Powell JA and Sperling J agreed), citing Bar-Mordecai v Rotman [2000] NSWCA 123, 193. See also Spencer v Bamber [2012] NSWCA 274, [137] (Campbell JA, with whom Basten and Macfarlan JJA agreed).
[43] Lam v Beesley (1992) 7 WAR 88, 95 (Owen J).
The question will usually be whether the change appears to be one of substance, affecting a consideration material to the exercise of the sentencing discretion. As with any appellate review of sentencing remarks, one does not read sentencing remarks and any changes made to them hypercritically or so as to find error. The difference must concern some material aspect of, or the essential basis for, the exercise of the sentencing discretion. That is, a material consideration of fact or law that, if overlooked or misstated, would enliven the authority of the appeal court to intervene. Alteration or changes made to matters which are immaterial or which concern peripheral details are of no moment.
In this case, the alteration made to the ex tempore remarks certainly gives the appearance that a change of substance has been made. Rather than consider the applicant’s failure during the period of the recognizance to undergo psychological counselling in a general way, the transcript suggests that this was treated as further, proved breaches of the recognizance. As has been emphasised, there is a difference between failing to undertake rehabilitation and breaching an order. It is far from clear that the applicant had breached the recognizance by failing to follow directions to undergo psychological counselling.
It was accordingly erroneous to regard the failures to follow directions to undergo psychological counselling as breaches of the recognizance order absent clear charges and admissions or proof. Accordingly, the alteration made to the transcript of the ex tempore sentencing remarks appears to be one of substance, correcting an error made in the exercise of the sentencing discretion.
This therefore is a case where it is appropriate to have regard to the transcript, rather than to the settled reasons, because the transcript reveals that when the applicant was sentenced on 7 December 2020, the Magistrate erroneously took into account as proved breaches of the recognizance which were neither charged nor proved,[44] vitiating the exercise of sentencing discretion.[45]
[44] R v De Simoni (1981) 147 CLR 383, 389: the basic rule is that no person is to be punished for offences for which they have not first been duly convicted. See also Feldman v Samuels [1956] SASR 55 and R v Traiconi (1990) 49 A Crim R 417.
[45] House v The King (1936) 55 CLR 169, 505; Markarian v The Queen (2005) 228 CLR 357, [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
In these circumstances, permission should be granted in respect of this appeal ground and, subject to the fresh exercise of sentencing discretion, the appeal succeeds.
Resentencing the applicant
The Director maintained that the decision to revoke the recognizance and require that he serve the sentence of imprisonment was not outside the range of outcomes reasonably available and was not otherwise plainly wrong or unjust.[46] That is, leaving aside the question of psychological counselling, given the seriousness of the offending and the repeated nature of the applicant’s other breaches, revocation of the order was “well within the range” of the options available to the Magistrate under s 20A(5)(c) of the Crimes Act 1914 (Cth).
[46] Martin v Kraft (No 2) [1991] SASC 2964. See also Lawrence v Becker [2008] SASC 29, [8]; Moore‑McQuillan v Police (No 4) [2002] SASC 237, [20].
The Director maintains that the breach of a recognizance is a serious matter and, where an offender has been extended leniency, any breach should be dealt with in a manner that demonstrates that it is regarded seriously.[47] That is, despite any specific error, the outcome was neither plainly wrong nor unjust.
[47] R v Buckman (1988) 47 SASR 303, 304; R v Marston (1993) 60 SASR 320, 322; R v Doyle (1996) 84 A Crim R 287, 289-291.
So much may be accepted. However, where the sentence is affected by a specific error, as here, it must be set aside unless, in the fresh exercise of the sentencing discretion, taking into account all relevant matters, including events since the sentence was passed,[48] this Court is of the opinion that the resulting penalty was appropriate.[49] Should the appeal court decide that a harsher sentence is appropriate, convention requires that the applicant be given an opportunity to abandon the appeal.[50] The appeal does not succeed unless this Court actually proceeds to resentence.[51]
[48] AB v The Queen (1999) 198 CLR 111, [130] (Hayne J), [104]-[107] (Kirby J); Kentwell v The Queen (2014) 252 CLR 601, [35]-[43] (French CJ, Hayne, Bell and Keane JJ).
[49] Particularly where the same or a higher sentence would likely be imposed on resentence: R v Horstmann [2010] SASC 103, [38] (Kourakis J).
[50] Neal v The Queen (1982) 149 CLR 305, 308 (Gibbs J) and Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, 290 (Kirby P). However, the Court of Appeal cannot now impose a harsher sentence, see s 158(8) of the Criminal Procedure Act 1921 (SA). See R v Ttikirou [2018] SASCFC 76, [65] (Hinton J) and R v Wakefield [2018] SASCFC 85, [92] (Parker J).
[51] Ierodiaconou v Police [2018] SASC 105, [30] (Nicholson J).
It was with these considerations in mind that the Court invited the parties to make submissions on the question of resentence. A further hearing was convened.
The applicant’s submissions
The applicant submits that on the question of resentence, the Court should have regard to the time that the applicant has already served:
·8 days before bail was granted pending the appeal.
·Following the single Judge’s decision on 16 April 2021 (by 7 October 2021, the date of judgment delivery), a further 5 months and 21 days.[52]
[52] The appeal Judge allowed the applicant to remain on bail and to surrender by 5.00pm on Saturday, 17 April 2021.
The applicant has found imprisonment difficult, particularly given the circumstances of his father’s death. The applicant had resided with his father who was undergoing treatment for bowel cancer. He was his father’s sole carer. The applicant was incarcerated when his father died and he was not permitted to attend the funeral. During late September 2021, the applicant was told that his ex-wife died from breast cancer, which she had battled for the last two years. She lived in Brisbane with the applicant’s 14-year-old son. She had no domestic partner. The applicant has been unable to find out where his son is, whether his son will stay in Brisbane or come to Adelaide, or what care arrangements have been made.
The applicant has been of good behaviour while in custody and all random drug tests have been negative.
By s 20A(6) of the Crimes Act 1914 (Cth), a court dealing with a person for a failure to comply with a condition of the order must to take into account anything that was done under the order and any other matter the court considers should be taken into account having regard to all of the relevant circumstances. It is submitted that it would be appropriate for the Court to:
·take no action;[53]
·impose a fine of not more than $1,000;[54]
·amend the recognizance order so as to “extend” the period for which the person is required to be of good behaviour.[55]
[53] Crimes Act 1914 (Cth), s 20A(5)(c)(ii).
[54] Crimes Act 1914 (Cth), s 20A(5)(c)(ia).
[55] Crimes Act 1914 (Cth), s 20A(5)(c)(ib), though the order expired in September 2020, this does not prevent the order being amended to “extend” the period for which the person is required to be of good behaviour, albeit not so as to make the total period more than five years from 2 May 2019: Sweeney v Corporate Security Group (2003) 86 SASR 425, [56] (Perry J).
The Director’s submissions
The dishonesty offence on which the applicant was initially sentenced had a maximum penalty of 10 years imprisonment. It was a serious example of its type, having been committed against his employer, in significant breach of trust.
The Director contends that the applicant’s drug use and abstinence at the time of initial sentencing were the principal reason that the sentence was fully “suspended” given that the applicant was aged 52 and had prior convictions for robbery and other dishonesty offences. He had previously served a significant term of imprisonment.
In determining which of the s 20A(5)(c) options to apply, the overriding requirement under s 16A(1) is to make an order appropriate in all the circumstances of the offence, taking into account the matters provided in s 16A(2) of the Crimes Act 1914 (Cth). Whilst s 20A(5)(c)(ic) provides an option for an order to be made under s 20AB of the Crimes Act 1914 (Cth), in South Australia no such “sentencing alternatives” are available on the failure to comply with the conditions of a recognizance release order.[56]
[56] Section 20A(5)(c)(ic) of the Crimes Act 1914 (Cth) empowers the Court to revoke the recognizance release order and make an order pursuant to s 20AB. The revocation of the recognizance release order would mean that the sentence of imprisonment remains and the Court has no power to set that sentence aside. Section 20AB provides for “sentencing alternatives” where available in the corresponding State case. In South Australia, the alternatives applied by s 20AB are community service orders, intensive corrections order and home detention orders. Contrary to the submissions made at first instance, a community service order cannot be made alongside a sentence of imprisonment and that order is not available in the corresponding State case of the breach of a suspended sentence bond: see the Sentencing Act 2017 (SA), ss 25(2) and 114(1)(d). A home detention order or an intensive corrections order cannot be made in the corresponding State case of the breach of a bond: R v Oake [2017] SASCFC 82, [38]-[40].
Whilst subject to the recognizance release order, the applicant breached it by using methylamphetamine on five occasions between 22 August 2019 and 16 March 2020, after the order commenced on 2 May 2019. A sixth positive test for methylamphetamine use was returned on 17 September 2020, whilst the applicant was before the Magistrates Court and on bail.
Of the available options under s 20A(5)(c), the Director submits that imposing a monetary penalty of not more than $1,000, or taking no action, would not be “orders of appropriate severity”. The Director submits that revoking the order and ordering that the applicant serve the remaining unserved portion of the sentence of imprisonment is the appropriate order.
Conclusions on resentence
An important consideration is that the applicant has now spent nearly six months in custody. As counsel for the Director properly conceded, had that been the position before the sentencing court it might well have imposed no further penalty. It may be accepted that the time spent in custody has been a salutary reminder of the need for the applicant to abide by the conditions of the recognizance, particularly those conditions and directions geared toward drug rehabilitation.[57]
[57] St Clair v Police [2000] SASC 290, [15] (Martin J); Nguyen v Police [2009] SASC 255, [26] (Sulan J); Hart v Police [2010] SASC 47, [20] (Nyland J); R v Tsonis (2018) 131 SASR 416, [100] (Lovell, Doyle and Hinton JJ).
In these circumstances, and having regard to the submissions of the parties and the evidence before this Court, it is appropriate to quash the sentence imposed by the Magistrate and, on resentence:
1.Extend the period of the recognizance by six months.
2.Otherwise, make no further order.