Police v James - [2025] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
POLICE v JAMES
[2025] SASC 32
Judgment of the Honourable Justice McIntyre
17 March 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - REMISSION FOR REHEARING
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
This is a Crown appeal from a Magistrates Court decision relating to the sentencing of the respondent for seven offences committed in breach of a suspended sentence bond.
The appellant appeals on two grounds. First, that the Magistrate erred in relying on the respondent’s youth and his expressed remorse as “special circumstances” to justify a reduction in the period of imprisonment suspended under the breached bond. Second, it is said that the overall sentence is manifestly inadequate as a result of the decision to suspend the sentence of imprisonment and undermines the essential objectives of deterrence and community protection, particularly in the context of serious domestic violence offences.
The respondent contended that there was no error demonstrated in either the finding that there were special circumstances justifying the reduction of the period of imprisonment suspended under the bond or the finding that there was good reason to suspend the sentence of imprisonment for the fresh offending. It was said that the Magistrate’s exercise of discretion was justified by the circumstances presented and that that the overall sentencing approach balanced the respondent’s personal circumstances, with the need for accountability.
Held:
1. Appeal allowed – matter remitted back to Magistrates Court for re-sentencing.
Sentencing Act 2017 (SA) ss 26, 96, 114; Magistrates Court Act 1991 (SA) s 42, referred to.
Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASC 150; R v Yaroslavceff [2022] SASCA 123; House v The King (1936) 55 CLR 499; R v Saleh [2017] SASCFC 74; Playford v Police [2017] SASC 26; Frank v Police (2007) 98 SASR 547; Police v Heritage (2019) 135 SASR 1; Kowald v Hoile (No 2) (1976) 14 SASR 314; Bugmy v The Queen (2013) 249 CLR 571; R v Talbot [2019] SASCFC 113, considered.

POLICE v JAMES
[2025] SASC 32
Magistrates Appeal: Criminal

McINTYRE J: This appeal arises from a sentence imposed in the Magistrates Court on 17 December 2024. Leroy James (‘the respondent’) entered pleas of guilty to seven charges arising out of an incident on 30 September 2024. These were two counts of contravening an intervention order, aggravated assault against own child/spouse, property damage and damage to a building, hindering police, and being unlawfully on premises.
The Magistrate utilised s 26 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) to impose one sentence of imprisonment for all seven offences of three months and two weeks, reduced by 30% from five months to reflect the respondent’s pleas of guilty. That sentence of imprisonment was suspended on the respondent entering into a bond to be of good behaviour with conditions for 15 months.
The offending on 30 September 2024 breached a bond that the respondent entered into on 19 August 2024. On that occasion the respondent was sentenced under s 26 of the Sentencing Act to three months imprisonment for two counts of aggravated assault, one count of aggravated assault against own spouse/child and one count of breaching an intervention order all occurring on 18 February 2024. That sentence was suspended on the respondent entering into a bond to be of good behaviour with conditions for a period of nine months. The Magistrate found that the breach was not trivial and ought not to be excused but found special circumstances justifying a reduction of the sentence of imprisonment to 50 days, backdated to 30 October 2024.
The appellant appeals on two grounds, first, that the Magistrate erred in relying on the respondent’s youth and his expressed remorse as “special circumstances” to justify a reduction in the period of imprisonment suspended under the breached bond; and second, it is said that the overall sentence is manifestly inadequate as a result of the decision to suspend the sentence of imprisonment and undermines the essential objectives of deterrence and community protection, particularly in the context of serious domestic violence offences.
For the reasons that follow, I grant the appeal and remit the matter to the Magistrates Court for re‑sentencing.
General principles
The appellant’s appeal arises as of right under s 42 of the Magistrates Court Act 1991 (SA) and is by way of rehearing. This case proceeded on the documents with no additional evidence beyond the audio recordings of the proceedings in the Magistrates Court which were tendered by the respondent and played in court.
The Court may set aside the sentence and impose the sentence that ought to have been imposed at first instance. In determining whether to resentence on a Crown appeal to a sentence of imprisonment, the principles in Everett v The Queen[1] apply.[2] That is, crown appeals against sentence ought only to be granted in “rare and exceptional” cases to resolve a matter of principle.[3] The rare and exceptional test should be rigorously applied.[4] The function of the Court in setting sentencing standards in appeals from the Magistrates Court was discussed by Doyle CJ in Police v Cadd:[5]
… It is the function of this Court to ensure that the sentencing process in individual cases is not affected by error of principle. It is also the function of this Court to ensure that sentences are neither excessive nor inadequate. The latter function is performed in two ways. First, in individual cases, by correcting a particular sentence that is considered to be excessive or inadequate. Secondly, by establishing standards of sentencing for particular offences, when the court thinks it appropriate to do so. That may be done over time through the process of correcting individual sentences. But it may also, in my opinion, be done by the court indicating an appropriate sentence range for a particular offence or offences of a particular type. That is what the court did in Eldridge v Bates.
[citations omitted]
[1] (1994) 181 CLR 295 (‘Everett’).
[2]     Police v Cadd& Ors (1997) 69 SASR 150 (‘Police v Cadd’).
[3]     Everett at 299-300.
[4]     R v Yaroslavceff [2022] SASCA 123 at [70] – [71].
[5]     Police v Cadd at 165.
The principles of appellate restraint in House v The King apply.[6] Accordingly, it is necessary to consider whether the Magistrate acted on a wrong principle; was guided by extraneous or irrelevant facts; mistook the facts; failed to take into account a material consideration; or reached an outcome which was manifestly unreasonable or plainly unjust.
[6] (1936) 55 CLR 499 at 505.
Sentencing remarks must contain sufficient detail to allow an appellate court to adequately discharge its function.[7] A failure to give adequate reasons for imposing a sentence can amount to an error justifying the sentence being set aside.[8] However, sentencing remarks are not to be read and deconstructed with the same scrutiny as might apply to written reasons for judgment.[9] Sentencing remarks are not required to deal with every matter that may be relevant to the sentence ultimately imposed.[10] This is particularly the case when considering the remarks of a Magistrate conducting a busy list. It is not necessary for any more than brief reasons, identifying for the benefit of the appellants, what are the critical factors that weighed in reaching the decision on penalty. It is not a check list.[11]
[7]     R v Saleh [2017] SASCFC 74 at [35] (‘Saleh’).
[8]     Saleh at [36].
[9]     Playford v Police [2017] SASC 26 at [23] (‘Playford’); Oatley v Commonwealth DPP [2021] SASCA 108 at [30] (‘Oatley’).
[10] Saleh at [34].
[11] Playford at [23]; Frank v Police (2007) 98 SASR 547 at [62].
The recordings of the hearing before the Magistrate indicate that this matter was dealt with in a busy list and was attended by some confusion. The fact the offending breached a bond only became apparent during the course of the hearing. The matter was held in the list for this issue to be considered by the parties. No party had the sentencing remarks from the previous occasion albeit the Magistrate was the sentencing magistrate on that occasion and indicated that he had some recall of the matter. For reasons that are not apparent the police prosecutor made no submissions as to the disposition of the breach bond matter other than to indicate that there was a breach. Once submissions were completed by both parties the Magistrate delivered ex-tempore remarks. In light of this, the brevity of the remarks on penalty is not surprising.
The Magistrate sentenced for the September offending before dealing with the breach of bond. I accept the appellant’s submission that, ideally, the Magistrate should have dealt with the breach of bond first. This enables the outcome to be taken into account as a personal circumstance of the respondent prior to sentencing for the subsequent offending.
Ground 1 – Did the Magistrate err in reducing the term of the suspended sentence of imprisonment?
The respondent conceded that his offending on 30 September 2024 breached the suspended sentence bond imposed on 19 August 2024. The Magistrate was not satisfied that the breach was trivial or that there were proper grounds to excuse the breach under s 114(3) of the Sentencing Act. He therefore revoked the suspension of that sentence. It appears that he then applied s 114(5) in order to reduce the term of imprisonment and to backdate it stating, in his ex tempore remarks on penalty:[12]
I am satisfied given your young age and your remorse to reduce the length of that bond down to 50 days, backdated to 30 October 2024.
[12] FDN 10 at 5.
Section 114(5) relevantly provides as follows:[13]
(5)If a court revokes the suspension of a sentence of imprisonment, the court may make any of the following orders:
(a) if it considers that there are special circumstances justifying it in so doing—an order reducing the term of the suspended sentence;
[13] Sentencing Act 2017 (SA) (‘the Act’) s 114(5).
The appellant argued that the Magistrate erred in treating the respondent’s youth and remorse as “special circumstances” justifying an additional reduction in the period of imprisonment attached to the bond. It was contended that for factors to qualify as special circumstances, they must represent a material change in circumstances compared to those known at the time of the previous sentencing. Whilst these factors are relevant to mitigation in general, they were already established and therefore ought not to be treated as fresh developments warranting further leniency. The appellant says that, in accordance with House v The King[14] principles, the absence of any demonstrable change renders the additional reduction a process error.
[14] Ibid.
Conversely the respondent maintained that the mitigating factors cited by the Magistrate were properly considered and, given the respondent’s personal circumstances as outlined to the Magistrate during sentencing submissions, justified the reduction applied. The respondent says that the sentence not only reflects his character and potential for rehabilitation but also appropriately reflects the gravity of the offences in combination with Mr James’ personal circumstances. The respondent submitted that the Magistrate’s brief remarks, although concise, captured these considerations and that there was no error in his application of the discretion regarding special circumstances.
In general, for factors to be considered “special,” there must be a demonstrable material change from the circumstances considered at the earlier sentencing.[15] The sentencing remarks from 19 August 2024 indicate that the respondent’s youth and his remorse were considerations taken into account when the previous bond was imposed. They do not constitute a fresh or additional mitigating development. Further, submissions were made on that occasion about the effect of the birth of his first child on the respondent, his “substantially disadvantaged background”, the time already spent in custody and his prospects for rehabilitation. Whilst not specifically articulated, it appears that these factors in combination were found to result in good reason to suspend the sentence of imprisonment. As a matter of logic, matters that were taken into account when imposing the original sentence cannot, of themselves, amount to special circumstances giving rise to a basis for reducing the term of a bond. There must be a change in circumstances or an additional matter which alone, or in combination with the pre-existing factors, amounts to special circumstances. The submissions to the Magistrate on the fresh offending and the breach bond were very similar to those put at the time the bond was imposed. This is not particularly surprising in view of the fact that only a limited time had elapsed from the imposition of the bond and the breach. No new or additional matters were put to the Magistrate. Indeed, none were put during the appeal.
[15] Police v Heritage (2019) 135 SASR 1.
The failure to establish a proper basis for reducing the term of the bond amounts to a process error in the exercise of judicial discretion. I therefore find that the reduction was not justified, and the appeal should be allowed on this ground.
Ground 2 – Was the overall sentence manifestly inadequate?
The gravamen of the appellant’s contention that the overall sentence was manifestly inadequate is that, whilst a suspended sentence was an available sentencing option, the Magistrate ought not to have found good reason to suspend the sentence for the subsequent offending.
Section 96 of the Sentencing Act relevantly provides as follows:[16]
(1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(b)     to comply with the conditions of the bond referred to in subsection (2); and
(c)     to comply with any other conditions of the bond as the court thinks appropriate and specifies in the bond.
[16] The Act s 96.
The Magistrate did not specifically articulate the reasons he determined that it was appropriate to suspend the sentence. He referred to the circumstances of the offending, the fact that it breached a bond imposed in August, the respondent’s remorse, the fact that he was drunk, the fact that he was a new father to his first child, his youth and the time in custody causing him to miss his child’s early months. The Magistrate also referred to rehabilitation options and the fact that the respondent would be supervised under the terms of the bond for nine months. It further seems that the respondent’s aboriginality and background of severe disadvantage were referred to in sentencing submissions.
The respondent argued that the sentence, as imposed, was proportionate to his circumstances and the nature of the offences committed. The respondent maintained that the Magistrate’s exercise of discretion in reducing the sentence was justified by the circumstances presented, and that the brevity of the remarks is acceptable given the practical constraints of a busy Magistrates list. The respondent contended that the overall sentencing approach balanced the respondent’s personal circumstances, such as his new fatherhood with the need for accountability, and that there was no manifest inadequacy in the outcome that would warrant appellate interference. Further it is said that the respondent originates from Fregon, a traditional and “dry” community, and is ill equipped to deal with the pressures associated with life in Port Augusta in particular the use of alcohol. In the written submissions it is contended for the respondent that:[17]
Given the experience of the Court’s (sic) that Aboriginal persons are overrepresented in the jails and Courts, the sentencing court should do what it can to encourage such offenders to seek help in the community wherever possible and rehabilitation should be an important focus when it comes to penalty wherever possible – especially when it comes to the length and severity of a sentence of imprisonment and the nature of the penalty itself, imprisonment being a penalty of last resort.
[17] FDN 10 at 48, [14].
The appellant on the other hand contends that there was nothing put to the Magistrate in the circumstances of this matter that was capable of amounting to good reason to suspend. Whilst the appellant acknowledged that there may be occasions where it is appropriate to suspend a sentence of imprisonment for offending committed during the currency of another suspended sentence bond, it was contended that it was inappropriate in this matter. The reasons for that include that the offending occurred approximately six weeks after the bond was imposed, it was committed in breach of an intervention order involving the same victim and accordingly the intervention orders and suspended sentence bonds have not deterred the respondent and have proven ineffective in protecting his victim. Further, the respondent has had the benefit of prior suspended sentences and has a history of breaching bonds, intervention orders and bail conditions. His remorse and contrition must be viewed in the light of the opportunities he has been given to reform. He has previously committed acts of violence. His drunkenness may partially explain his behaviour but cannot excuse it.
The appellant referred to the remarks of Zelling J as to the three questions underpinning decisions to sentence offenders to non-custodial alternatives to imprisonment in Kowald v Hoile (No 2):[18]
These are:
(a)    How do the extenuating circumstances fit into the pattern and context of the offence viewed as a whole?
(b)    Is this man likely to respond to a non-custodial sentence so as to reform and rehabilitated his lifestyle or is he merely seeking by the uses of exercises and forensic eloquence to escape the due reward of his misdeeds”
(c)    Does the community’s need and also it’s duty to suppress an active social evil whether that need and duty be expressed legislatively by Parliament in statutory form or factually by the prevalence of the offence, the difficulty of its detection, and the serious consequences to the community of its commission, outweigh the Judge’s duty to be as compassionate as the circumstances admit, in dealing with any person appearing before him who has been convicted of a criminal offence?
[18] (1976) 14 SASR 314 at 320.
The appellant contends that there were no extenuating circumstances, the respondent is unlikely to respond to leniency and the community’s need to suppress domestic violence requires that the sentence be served. In response to the submissions concerning the respondent’s aboriginality, the appellant referred to the principles relating to the sentencing of aboriginal offenders articulated in Bugmy v The Queen[19]. These are conveniently summarised in R v Talbot (No 2) as follows:[20]
[19] (2013) 249 CLR 571.
[20] [2019] SASCFC 113 at [72].
I turn to the submissions advanced on behalf of the applicant based on his Aboriginality. The principle stated by the High Court in Bugmy v The Queen may be summarised as follows:
·When sentencing an Aboriginal offender, a method of analysis should not be adopted which differs from that applied when sentencing a non‑Aboriginal.
·However, the deprived background of an Aboriginal offender may mitigate the sentence otherwise appropriate for the offence in the same way as would the deprived background of a non-Aboriginal.
·Where the misuse of alcohol by an offender reflects the environment in which he or she was raised, as is the case of some Aboriginal offenders who are raised by communities characterised by alcohol abuse and alcohol related violence, that fact should be taken into account as a mitigating factor.
·Aboriginality may also be relevant where, because of a defendant’s background or lack of experience of European ways, a lengthy term of imprisonment might be particularly burdensome.
·The courts cannot take judicial notice of any systemic background of deprivation of Aboriginal offenders. Where an offender relies on his or her deprived background in mitigation of sentence, they must point to material tending to establish that background.
·The effects of profound childhood deprivation do not diminish with the passage of time or repeated offending. Such a background is to be given full weight in sentencing. The background may point in one direction in relation to one of the purposes of punishment, such as moral culpability, and in a different direction in relation to another purpose, such as the importance of protecting the community.
[citations omitted]

It is contended that, whilst these factors are relevant, they must be weighed against maintaining the utility of the intervention order as a means of addressing domestic violence. Further, it is said that there was very little information placed before the Magistrate that enabled him to assess the respondent in the light of the Bugmy principles beyond a general recognition of his background.
I agree with the appellant’s submissions. There were no extenuating circumstances justifying further leniency in this case. The respondent’s lack of response to prior non-custodial sentences suggests that he is unlikely to respond to leniency in the future. Importantly, domestic violence is rightly a matter of great concern to the community. Aboriginal women are disproportionately affected by this. The respondent has been told by the courts, on more than one occasions, that he is not to assault, threaten, harass or intimidate his former domestic partner. He has signally failed to heed these warnings. In particular he has failed to comply with intervention orders in place for the protection of his victim. These orders will be undermined as a means of protection if a breach in these circumstances does not result in imprisonment. There was no good reason to suspend the respondent’s sentence of imprisonment – to do so results in a sentence that failed to address both personal and general deterrence and the protection of the community. The suspension of the sentence constitutes a House v King error. The sentence fails to maintain an adequate standard of punishment and warrants the intervention of this court.
Accordingly, the appeal is allowed. The sentence imposed by the Magistrates Court is set aside. In those circumstances, the parties contended that that the matter ought to be remitted for re‑sentencing in the light of other matters pending in that jurisdiction. I agree that this is an appropriate course of action and accordingly I will remit the matter to the Magistrates Court rather than resentencing,