Pails v The King - [2025] SASCA 18

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
PAILS v THE KING
[2025] SASCA 18
Judgment of the Court of Appeal
(The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice David)
27 February 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - DEPRIVED BACKGROUND
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
Application for permission to appeal against sentence.
The applicant pleaded guilty to and was sentenced in respect of two counts of aggravated causing harm with intent to cause harm, contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA). This followed an altercation during which the applicant, and three co-offenders, repeatedly hit and then stabbed the complainant outside his restaurant in Christies Beach. The applicant was sentenced to a head sentence of three years, three months and 27 days with a non-parole period of one year, six months and 27 days. The sentencing judge declined to order that the sentence be suspended or served on home detention.
On appeal, the applicant’s primary contention was that the sentencing judge’s failure to suspend the sentence or order that it be served on home detention was unreasonable. The applicant also complained of two process errors including that the judge failed to consider and apply the Bugmy principle and made a factual error as to the applicant’s personal circumstances.
Held, granting permission to appeal but dismissing the appeal:
(by the Court):
1.It was open to the judge to decline to order that the sentence be suspended or order that it be served on home detention.
2.The factual error of misdescribing the applicant’s living arrangements at the time of sentence was not such that it could have materially affected the exercise of the sentencing discretion.

(per Doyle and David JJA)
3.The judge had regard to the applicant’s background in the manner contemplated by the Bugmy principle. More explicit consideration of the Bugmy principle was not necessary given the limited focus on the issue.

(per Bleby JA, dissenting):
4.In all the circumstances of this case, the causal link between the applicant’s background and offending required specific consideration in accordance with the Bugmy principle. The sentencing judge’s failure to expressly consider that connection amounted to a process error.
5.Permission to appeal should be granted, the appeal allowed and the applicant resentenced. The head sentence and non-parole period should be confirmed. Subject to a Home Detention Order Report, in light of the applicant having already spent a not insignificant time in prison, the applicant should serve the balance of the non-parole period on home detention.

Criminal Law Consolidation Act 1935 (SA) s 24(1); Sentencing Act 2017 (SA) ss 71(1), 71(2), referred to.
R v Dell (2016) 126 SASR 571; Bugmy v The Queen (2013) 249 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pails v The King

Details

AGLC: Pails v The King [2025] SASCA 18
Case: [2025] SASCA 18
Decision Date: 27 February 2025

CaseChat Overview and Summary

The applicant, Pails, appealed against a sentence imposed by the District Court of South Australia. The dispute concerned the severity of the sentence, with Pails arguing that the judge erred by failing to suspend the sentence or order home detention, and by allegedly failing to consider the *Bugmy* principle in relation to his deprived background and psychological explanations for his offending, as well as making a factual error about his personal circumstances.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the sentencing judge erred in principle by failing to adequately consider the applicant's deprived background and its impact on his offending, and whether the sentence imposed was manifestly excessive or plainly unjust as a result of this failure or any factual error. The court was required to determine if the *Bugmy* principle, which mandates consideration of an offender's disadvantaged background when assessing the appropriate sentence, had been properly applied.

The Full Court reasoned that while the sentencing judge acknowledged the applicant's difficult upbringing, including parental violence, drug use in the household, and a strained relationship with his father, the judge did not sufficiently engage with the *Bugmy* principle. The court found that the judge's approach did not adequately reflect how the applicant's background might have contributed to his offending behaviour, particularly in the context of his youth at the time of the offences. The court also noted a factual error regarding the applicant's personal circumstances.

Consequently, the Full Court allowed the appeal, finding that the sentence was demonstrably excessive due to the sentencing judge's failure to properly apply the *Bugmy* principle and the identified factual error. The court resentenced the applicant, imposing a sentence that was suspended on conditions, reflecting a more appropriate consideration of his background and the circumstances of the offending.

Orders

Orders of the court

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Background

Background to the litigation

The applicant’s primary contention is that the sentencing judge’s failure to suspend the sentence or to order that it be served on home detention was unreasonable or plainly unjust. He also complains of two process errors. These are that the judge failed to consider and apply the Bugmy principle, specifically with respect to the psychological explanation for his offending, and that the judge made a factual error as to his personal circumstances. Background On 27 January 2022 at about 11:00pm, the victim was at his restaurant in Christies Beach, chopping food. He heard noises from the rear of the premises when he was in the kitchen. He put a knife in his pocket and went to investigate. He saw fresh graffiti on the rear wall and door. He went to the front area of the shop complex and saw a group of young men who included the applicant. He asked what they were doing there, said the police were coming and told them to leave. One member of the group kicked the victim. The victim took the knife from his pocket and told them not to come any closer. One of men tried to grab the knife while another hit the victim to the back of the head. The victim tried to run. The group chased and physically attacked him. The victim received a heavy blow to the right eye, causing injury which has required two separate surgeries. He suffered a fracture of his lower eye socket, a chipped tooth, and significant bruising to his head, face and body. This was the subject of count 1. The circumstance of aggravation was that the offenders were in company with each other. During that attack, a valuable gold chain was taken from the victim’s neck. It has not been recovered. One of the applicant’s co-offenders pleaded guilty to aggravated robbery in respect of the theft of the chain. The altercation continued, with the victim trying to recover the chain. The applicant armed himself with the victim’s knife and hit the victim twice. He made contact with the victim’s right hand, causing a small cut that required three stitches. He then made contact with the victim’s left hand, using a downward hacking or chopping motion. This caused injury and significant blood loss, requiring 40 stitches. This was the subject of the second count to which the applicant pleaded guilty. The circumstances of aggravation were that the applicant used an offensive weapon. The group of males then fled. The victim returned to inside his restaurant and called for assistance. He has sustained mental trauma, which impacted upon his ability to return to work. He has suffered financial hardship as a result. The applicant’s personal circumstances The applicant was 21 at the date of sentencing, and 18 years and eight months at the time of the offending. The judge sentenced the applicant on the basis that he was a first offender. The applicant had a difficult childhood. He observed aggression and violence between his parents and was verbally abused by his father. His father won a custody dispute over him. The household in which the applicant then found himself was characterised by drug-use and squalor. It included his father’s landlord who had a methylamphetamine addiction. The applicant had to care for the landlord’s dog and buy food and cigarettes for his father. His relationship with his father was difficult. His father used cannabis habitually in front of him. The applicant had no contact with his mother.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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