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 571; Lloyd v The Queen [2022] NSWCCA 18; Kentwell v The Queen (2014) 252 CLR 601; Webb v O’Sullivan [1952] SASR 65; Hackett v The Queen [2021] SASCA 32; Elias v The Queen (2013) 248 CLR 483; Markarian v The Queen (2005) 228 CLR 357; House v The King (1936) 55 CLR 499; Barbaro v The Queen (2014) 253 CLR 58; R v Pham (2015) 256 CLR 550, considered.

PAILS v THE KING
[2025] SASCA 18
Court of Appeal – Criminal: S Doyle, Bleby and David JJA

S DOYLE and DAVID JJA: We have had the benefit of considering a draft of the reasons prepared by Bleby JA. We gratefully adopt his summary of the relevant facts and issues raised on appeal.
We agree with his reasons for rejecting the contention of manifest excess, and the contention of a process error in misdescribing the applicant’s living arrangements at the time of sentence.
As to the remaining contention, namely that the sentencing judge erred in failing to consider and apply the Bugmy principle, we have reached a different conclusion. As Bleby JA explained, a submission in support of the application of this principle and its relevance to the applicant’s moral culpability was made at first instance. And the submission was supported by evidence from the psychologist, Ms Hackett, as to a connection between the applicant’s deprived and abused background and his offending.
Whilst the circumstances called for an application of the Bugmy principle, we are not persuaded that the failure to expressly advert to the principle, and its impact upon the applicant’s moral culpability, involved a process error. It would have been preferable had the judge been more explicit in this regard. However, we are satisfied from a reading of the sentencing remarks as a whole that the judge had regard to the applicant’s background of deprivation and abuse in the manner contemplated by the Bugmy principle.
The judge described the applicant’s background in some detail, and referred to Ms Hackett’s report. Whilst not summarising or paraphrasing the operative conclusion from that report, we are satisfied that it can be safely inferred that the judge had regard to it. Whilst more explicit consideration of the Bugmy principle will be required in some cases, we do not think that was necessary given the limited focus upon the issue in the present matter.
For these reasons, we would grant permission to appeal, but dismiss the appeal.
BLEBY JA: This is an application for permission to appeal against sentence. On 28 October 2024, the applicant was sentenced on his plea of guilty 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). A judge of the District Court sentenced the applicant to a head sentence of three years, three months and 27 days. He fixed a non-parole period of one year, six months and 27 days. He declined to suspend the sentence or to order that the sentence be served on home detention.
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.
The applicant was bullied at school from year 6 and reacted aggressively. He commenced to smoke cannabis from year 7 and was and was regularly absent from school. When he was 14, he was required to see a doctor after being segregated at school and hitting his head against a wall.
The applicant completed high school to year 11 with an adjusted timetable. He obtained some certificates of qualification, including a White Card and a Responsible Service of Alcohol certificate. Since 2019 he has had a number of brief casual jobs.
In 2020, a friend of the applicant was killed in a motorcycle accident. The applicant responded by ceasing use of his anti-depressant medication and using, in greater volumes, opiates, benzodiazepines, Xanax and Oxy-Contin. At around this time, when he was aged 17, he made a serious suicide attempt. His then-girlfriend found him unconscious and took him to the Women’s and Children’s hospital. He was discharged into the care of his father, whose response was, ‘why’d you do something stupid?’ The applicant continued to abuse medications up until around February 2024.
From February 2024, the applicant’s circumstances changed. The applicant pointed to several matters. He obtained a prescription for medicinal cannabis and ceased to abuse non-prescribed medications. In July 2024, he was granted permission to alter his bail address to reside with his girlfriend and her parents. Prior to then, he had been living in an uninsulated garden shed at the rear of the premises where his father was renting, in the circumstances described earlier.
In March 2024, the applicant obtained employment on a casual basis with a business called ‘Made to Fit Gates’. His employer indicated that this employment involved the applicant working towards an Adult Apprenticeship in Furniture Making (Certificate 3). He said he would be happy to have the applicant continue his employment while on home detention, as he had become an asset to the company.
In August 2024, the applicant obtained a Mental Health Care Plan to address the conditions that Ms Louisa Hackett identified in a forensic psychological report dated 10 May 2024. The opinions that Ms Hackett expressed are of central importance to this appeal.
Ms Hackett’s summary and opinion included the following:
In terms of predisposing factors, Mr Pails appears to have experienced significant early disruption characterised by parental separation, emotional abuse and neglect. Within this developmental context Mr Pails did not have the opportunity to experience, observe and learn about nurturance, resilience or self-regulation. He did not have a reliable caregiver to supportively guide him as he navigated the transition from childhood to adulthood through adolescence. Throughout his childhood and adolescence, my opinion is that the most appropriate diagnostic label which can be applied to Mr Pails’ experience is that of Persistent Depressive Disorder. Mr Pails’ chronic experience of low self-esteem and feelings of hopelessness as a child have contributed to his vulnerability to developing substance use disorders in adolescence and his experience of a suicide attempt at the age of 17. Mr Pails’ developmental trauma manifested itself, as is often the case with young boys, in externalising [his] behaviour in the school environment. In my opinion there is a clear etiological connection between his experience of chronic emotional abuse and neglect and his development of persistent depressive disorder.
Ms Hackett then went on to express her view about the connection between this disorder and his offending:
At the time of the offending, Mr Pails had been heavily misusing Xanax and other illicitly obtained prescription medications to an extent which constituted a clinically significant impairment in his functioning, thus satisfying criteria for a Sedative, Hypnotic or Anxiolytic Use Disorder, which at the time of the offence would have been considered severe. Mr Pails’ experience of a chronic depression and an acute substance disorder likely contributed to his inability to effectively problem solve the altercation which arose on 27^th January 2022. On the basis of the collateral information available to me, along with Mr Pails’ self report, I[t] appears that there was no intention on the part of Mr Pails or his peers to commit an act of violence on that evening.
Ms Hackett noted that the applicant had had almost no exposure to or sustained engagement in treatment or rehabilitation for either of the conditions she identified. She considered that this likely reflected his experience of complex developmental trauma and consequent perception of adults as a potential source of support or advice. She noted that he had nonetheless managed to maintain some trusted and supportive peer relationships, which were the catalyst for the more recent changes identified above. However, she considered that he remained highly vulnerable to relapse and decompensation.
Ms Hackett expressed the opinion that the applicant presented a medium risk of general recidivism and a low risk of violent recidivism. She considered that if the applicant sustained his employment and maintained his abstinence from drugs over a 12-month period (nine more months from the date of the report), and sustained his employment over that period of time, he would be considered to be within the low-risk category for general recidivism.
Sentencing
The judge indicated that he had regard to Ms Hackett’s report, as well as to various pieces of medical documentation and the letter from the applicant’s employer. He identified that the applicant had no relationship with his mother and an extremely difficult relationship with his father. He then said, incorrectly, that the applicant presently lived with his father ‘in a living environment that you appreciate is less than ideal’. As identified earlier, the applicant had obtained a variation to his home detention bail conditions to live at the home of his girlfriend and her parents.
The judge summarised, accurately, the applicant’s early life history and present employment situation. He then said:
You are currently in a relationship with a young woman who would appear to be a positive influence on you. She runs her own business and does not take drugs. You report her being a significant motivating factor for you to deal with your addiction issues. Those issues commenced when you were in year 7 at school. You commenced using cannabis and steadily increased your consumption to the point where you were smoking every day, from around the age of 15 and 16.
The judge then traced the applicant’s substance abuse history, noting his recent prescription for medicinal cannabis and the consequent significant change for the better. He also noted the applicant’s poor history of mental health, including his suicide attempt, and his recent therapeutic interventions. He noted that the applicant had no prior convictions and that he appeared to have acted out of character.
The judge sentenced the applicant as described earlier. On the question of suspension of the sentence or ordering that it be served on a home detention order, he said:
I have been urged to find that good reason exists to suspend your sentence or order that your sentence be served under a home detention order. In support of this it has been submitted that the combination of your youth, lack of prior offending, pleas of guilty, difficult upbringing and the significant progress you have made since the offending including but not limited to engaging in counselling and therapy, employment and prosocial support in the community combine to warrant a penalty other than an immediate gaol sentence.
I have carefully considered everything that has been put on your behalf. I accept you are a young man who has made efforts to rehabilitate since the night in question, however, that does not erase the gravity of your actions of firstly, being part of the group attack on the victim causing the fracture to his eye socket and secondly, arming yourself later in the incident and inflicting further injuries to the victim. Having regard to the primary and secondary purposes of sentencing pursuant to the Sentencing Act and taking into account all relevant matters I am not satisfied that good reason exist to suspended [sic] the sentence.
The judge then turned to the question of serving the non-parole period on home detention. He referred to the relevant authorities and said:
In considering whether to exercise the discretion to permit you to serve the sentence on home detention I have regard to all relevant matters, the matters prescribed by the Sentencing Act, the authorities to which I have referred, the circumstances of your offending and your personal circumstances. Ultimately I am not persuaded that this is an appropriate case to exercise the discretion to order that the non-parole period be served on home detention.
Whilst it may be that you are an appropriate candidate to serve the non-parole period on home detention I am not persuaded this is the appropriate course. I am of the view that the making of such an order may affect public confidence in the administration of justice, particularly having regard to the seriousness of the offending and the need for deterrence.
The form of the judge’s reasons for not ordering that the non-parole period be served on home detention is significant. His Honour expressly adopted the two-stage process identified by Doyle J in R v Dell[1] with respect to the relevantly similar predecessor provisions.[2] That is to say, he accepted that the applicant may be a suitable person to serve the sentence on home detention, as required by s 71(1)(c) of the Sentencing Act 2017 (SA) (‘Sentencing Act’). However, he then considered that the making of such an order may affect public confidence in the administration of justice, given the seriousness of the offending and the need for general deterrence. Having reached that conclusion, he was required not to impose a home detention order, pursuant to s 71(2)(a) of the Sentencing Act.
The appeal
[1] (2016) 126 SASR 571.
[2] R v Dell (2016) 126 SASR 571 at [43].
The complaints of process error

The applicant’s first complaint of process error is that the judge did not consider whether the principle identified by the High Court in Bugmy v The Queen[3] (‘Bugmy’) applied such as to reduce his moral culpability. The failure to do so amounted to a failure to have regard to a material consideration that bore significantly on whether good reason existed to suspend the sentence or otherwise order that it be served on home detention.
[3] (2013) 249 CLR 571.
In Bugmy, which concerned the proper approach to be taken to the deprived background of an Aboriginal offender, the Court said:[4]
The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
[4] Bugmy v The Queen (2013) 249 CLR 571 at [40].
The Court further emphasised that the effects of profound deprivation do not diminish over time and are to be given full weight in the determination of the appropriate sentence in every case.[5]
[5] Bugmy v The Queen (2013) 249 CLR 571 at [42].
I have set out the circumstances of the applicant’s deprived and abused background. With respect to this background, Ms Hackett’s opinion was quite clear, in that there was ‘a clear etiological connection’ between his experience of chronic emotional abuse and neglect and the development of his persistent depressive disorder. His depressive disorder likely contributed, in Ms Hackett’s opinion, to his inability to respond appropriately to the situation which arose when the victim confronted him and his friends.
The judge referred in some degree to the applicant’s background and history of poor mental health. He said that he had regard to Ms Hackett’s report. He accepted that the applicant had acted out of character. What was missing, in the applicant’s submission, was a consideration that accurately reflected the complexities of how the applicant’s deprived and abused background affected his moral culpability for what occurred that night. The judge was required to grapple with this, in the applicant’s submission, given the apparent causal relationship between that background, the applicant’s depressive disorder and the offending.
Counsel at sentencing did submit, briefly, that the principles articulated in Bugmy applied to her client. Her submissions were brief, and not developed in the way that they were before this Court. Having said that, she submitted the following about the applicant’s mental state at the time of the offence:
But he was not working. He was suffering from untreated childhood and adolescent trauma. He was someone battling with mental health and dealing with it in unconstructive ways. It was in that context and in the context of consuming a cocktail of substances and being with a group of people that this offending occurred. It wasn’t planned offending.
While these submissions could, with respect, have paid closer attention to Ms Hackett’s opinion as to the causal relationship between the applicant’s background, his persistent depressive disorder and the offending, they did effectively refer to that aspect of the report. Counsel had submitted that the Bugmy principles were enlivened.
As set out above, the judge made considerable reference to the applicant’s background. However, he did not make any specific reference to the link between the applicant’s background, his depression and the offending, such as to articulate the effect of that background on his moral culpability.
The Director submitted that it is not incumbent on a sentencing judge to mention every submission by a party or to explain each and every consideration relevant to the sentencing discretion. So much may be accepted. Here, however, Ms Hackett had drawn a clear causal link between the applicant’s background, his mental state and the offending.
I have reached the view, with a degree of hesitation, that this causal link required specific consideration as a matter relevant to the applicant’s moral culpability. Counsel had alluded to it, albeit in terms that could have been expressed with more focus. In Lloyd v The Queen,[6] the New South Wales Court of Criminal Appeal held that where a specific submission was made that there was such a causal connection, and that submission was supported by the evidence, then the issue was raised as a discrete aspect of the sentencing task.[7] While sentencing judges need to be able to proceed on the basis that counsel will highlight matters of particular importance, I am satisfied in all the circumstances, if only just, that it was necessary for the judge to consider expressly this causal relationship in accordance with the High Court’s statements of principle in Bugmy.[8] I accept the applicant’s submission that the failure to do so amounted, in the circumstances, to a process error.
[6] [2022] NSWCCA 18.
[7] Lloyd v The Queen [2022] NSWCCA 18 at [29].
[8] Bugmy v The Queen (2013) 249 CLR 571.
The second matter of complaint is that the judge erroneously said that the applicant was still living with his father, when in fact the applicant had moved to the far more pro-social environment of his girlfriend’s house. The Director conceded that this was an error. However, counsel submitted that it was not a material error.[9] It concerned only one aspect of the personal circumstances of the applicant and not, for example, the circumstances of the offending.
[9] Citing Kentwell v The Queen (2014) 252 CLR 601 at [42].
The applicant’s living arrangements were directly relevant to his prospects of rehabilitation, in that the change was unquestionably to a far more prosocial environment. The judge noted expressly the positive influence of the applicant’s relationship with his girlfriend. The fact that the applicant was living with her and her family fed into that.
Having said that, when it came to considering whether to suspend the sentence, the judge gave close attention to the ‘significant progress’ the applicant had made since the offending. Ultimately, however, he found that that progress, and the other matters to be said in the applicant’s favour, were outweighed by the gravity of the offending. In this regard he referred back to the group attack causing a fracture to the victim’s eye socket and then the applicant’s separate arming himself with the knife and injuring the victim further.
Similarly, and perhaps more starkly, when it came to whether to order that the sentence was to be served on home detention, the judge was prepared to accept that the applicant was a suitable candidate for home detention. However, he ultimately found that making such an order would affect public confidence in the administration of justice. It is difficult to see that a correct acknowledgment of the applicant’s living arrangements could have affected this analysis, as that would have fed in primarily to the question of suitability, which the judge accepted.
The applicant’s new living arrangements were a feature of his rehabilitation. However, I am not satisfied that the judge’s error about them was such that it could have materially affected the exercise of the discretion.
Manifest excess
In circumstances where I have found that the judge’s failure to refer to the causal relationship between the applicant’s deprived and abused background, his depression and his offending, it is not strictly necessary to address the complaint that the failure to suspend the sentence or to order that it be served on home detention was unreasonable. However, in the circumstances of this appeal I think it is preferable to do so. The applicant pointed to the following features in support of his submission that the sentence was unreasonable or unjust:
·the offending, while serious, was not premeditated;
·the applicant did not possess the knife prior to the offending but rather took possession of it after the victim introduced it;
·the applicant was 18 years and 8 months old, with consequent observations to be made about his immaturity and potential for rehabilitation. Ms Hackett addressed these considerations at length;
·the applicant was plainly remorseful;
·the applicant had no relevant criminal antecedent history;
·the applicant had been of good behaviour and had complied with the terms of his bail agreement, which included fortnightly reporting;
·the applicant had brought his substance abuse disorder under control;
·the applicant had commenced psychological therapy and obtained a prescription for medicinal cannabis;
·the applicant was, for the first time, in a stable home life with his girlfriend and her parents, having removed himself from the deleterious environment of his father’s home;
·the applicant had been in employment for seven months and was enjoying for the first time the pro-social benefits of this;
·the applicant posed a medium risk of general recidivism and a low risk of violent recidivism.
The applicant accepted the seriousness of his offending. However, he submitted that the accumulation of these matters, together with his background as already discussed in the context of the application of the Bugmy principles, amounted overwhelmingly to good reason to suspend the sentence or at least to order that the sentence be served on home detention. He submitted that a suspended or home detention sentence would best secure his continued rehabilitation by permitting him to remain in the community, with the support of his partner’s family and his employer. In this regard he invoked the remarks of Napier CJ in Webb v O’Sullivan:[10]
The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.
[10] [1952] SASR 65 at 66.
There has been considerable exposition of the sentencing task in the 70 years since. In any event, aspirational statements of guidance such as this cannot be taken to curtail the discretionary task of the sentencing judge that responds to all the circumstances of the case. Here, there were several features of the offending that made this a serious case. General deterrence, denunciation and recognition of the harm suffered were important considerations. As this Court explained in Hackett v The Queen:[11]
The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case.[12] The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence.[13] Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed.[14] A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice.[15] It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[16] To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.[17]
(Footnotes in original)
[11] [2021] SASCA 32 at [8] (Kelly P, Lovell and Livesey JJA).
[12] Elias v The Queen (2013) 248 CLR 483.
[13] Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[14] House v The King (1936) 55 CLR 499.
[15] Barbaro v The Queen (2014) 253 CLR 58 at [61] (Gageler J).
[16] Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[17] R v Pham (2015) 256 CLR 550 at [56] (Bell and Gageler JJ).
Having regard to all the features of the offending and the applicant’s personal circumstances, as discussed above, I am not persuaded that it was not open to the judge to decline to order that the sentence be suspended or that it be served on home detention.
Resentencing
Having found that the sentence was affected by a process error, it is necessary to set aside the sentence and resentence the applicant unless the Court is satisfied that no different sentence should be imposed. I would not impose a lesser sentence than that imposed by the judge, being 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 applicant did not complain about these periods.
On the question of whether to suspend the sentence, while much can be said about the rehabilitative progress of the applicant, and the support that suspension of a sentence would give to that progress, the primary and secondary purposes of sentencing warranted a strong response. I would not depart from the sentencing judge’s conclusion that there was not good reason to suspend the sentence.
Home detention raises different considerations. I would find, for the reasons given by the sentencing judge, that the applicant is a suitable person to serve the sentence on home detention. The relevant question pursuant to s 71(2)(a) of the Sentencing Act is then whether such an order would, or may, affect public confidence in the administration of justice. On considering the question now, it is highly relevant that the applicant has been in custody since 28 October 2024. That is, he has served approximately four months in custody. I think it is appropriate that he has done so.
I have had particular regard to the matters raised in Ms Hackett’s report and note that it is proposed that the applicant would reside, in home detention, at his girlfriend’s parents’ place rather than at the inappropriate accommodation provided by his father. In my view, these considerations provide a strong case for accepting that public confidence in the administration of justice would be maintained by the applicant having spent a not insignificant period in prison, and now having an opportunity to pursue his best path to rehabilitation by serving the balance of his sentence on home detention.
On resentencing, I would confirm the applicant’s head sentence of three years, three months and 27 days, with a non-parole period of one year, six months and 27 days, commencing on 28 October 2024. However, I would order that the applicant is to serve the balance of the non-parole period on home detention. I would make that order subject to the provision of a favourable Home Detention Order Report in respect of the premises of the applicants’ girlfriend’s family, where the applicant was residing prior to his incarceration. I would enter the order for home detention only on receipt of such a report and being satisfied of the current suitability of the premises.