R v Dingaman

[2025] SASCA 64

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v DINGAMAN

[2025] SASCA 64

Judgment of the Court of Appeal  (ex tempore)

(The Honourable Chief Justice Kourakis, the Honourable Justice S Doyle and the Honourable Justice Bleby)

16 May 2025

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - POWERS OF APPELLATE COURT

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE - MATTERS OF PROCEDURE - GENERALLY

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - ABORIGINAL OR TORRES STRAIT ISLANDER OFFENDER - GENERALLY

This is an application by the Director of Public Prosecutions (‘the Director’) for permission to appeal against a sentence.

A sentence of one year, two months and three days, with a non-parole period of seven months, was imposed on the respondent for the offences of aggravated serious criminal trespass in a place of residence, aggravated assault causing harm, aggravated assault and two counts of breaching a bail agreement. The respondent had pleaded guilty to all the offences.

The offences were committed in the township of Mimili in the APY Lands, in the north-west of South Australia. At around 6.15 am on 27 January 2024, the respondent, together with his partner and her sister (‘co-offenders’) went to the home of a woman and her daughter (‘the victims’) in the Mimili township.  The respondent and his co-offenders, armed with wooden sticks called ‘nulla nullas’ in the Pitjantjatjara language, broke their way into the victims’ home. The respondent grabbed the victims by the necks and attempted to drag them from a room. One of the victims defended herself by taking hold of a knife and stabbing the respondent, lacerating his left arm. One of the co-offenders struck the victims head, arm and elbow with a nulla nulla. The respondent pleaded guilty to the offence of aggravated assault causing harm on the basis that he was a participant in a joint enterprise with his co-offender against the victims. The respondent also struck one of the victims across her right shoulder and arm with his nulla nulla and struck the other victim about three times on her arm.

The respondent is a 32-year-old Aboriginal man raised in the APY Lands township of Amata and remains closely connected to his traditional country and culture. The respondent has three children aged fifteen, eight and five years.  He has been employed in the past, with work mustering camel in the Northern Territory and Western Australia available to him.

The Director appeals on the ground that the sentence imposed for the offences of aggravated serious criminal trespass in a place of residence, aggravated assault causing harm, and aggravated assault, is manifestly inadequate.

Held, by Kourakis CJ, S Doyle and Bleby JJA: Permission to appeal against sentence refused. This application is not a proper vehicle in which standards of punishment for offences of this kind can be appropriately reviewed.

Per Kourakis CJ: There are not sufficient prospects that the exercise of the discretion by the experienced Magistrate has miscarried or, at least, has miscarried so egregiously as to justify a grant of permission. 

Per S Doyle and Bleby JJA: The sentence imposed was manifestly inadequate and did not adequately reflect the seriousness of the offending or the guidance provided by R v Delphin (2001) 79 SASR 429. However, it is not clear it was so far outside the permissible range as to undermine public confidence in the administration of justice.

Sentencing Act 2017 (SA), referred to.

Bugmy v The Queen (2013) 249 CLR 571; R v Ametovic [2024] SASCA 153; R v Wilson [2024] SASCA 20, applied.

R v Delphin (2001) 79 SASR 429, distinguished.

R v DINGAMAN
[2025] SASCA 64

Court of Appeal – Criminal:  Kourakis CJ, S Doyle and Bleby JJA

1. KOURAKIS CJ (ex tempore):  This is an application by the Director of Public Prosecutions (‘the Director’) for permission to appeal against a sentence of one year, two months and three days, with a non-parole period of seven months, imposed on the respondent, Mr Dingaman, on his convictions for the offences of aggravated serious criminal trespass in a place of residence, aggravated assault causing harm, aggravated assault and two counts of breaching a bail agreement.  Mr Dingaman pleaded guilty to all the offences.  The offence of aggravated assault causing harm is a major indictable offence but, with the consent of Mr Dingaman and the Director, the matter was heard in the Magistrates Court. 

2. The Director appeals on the ground that the sentence imposed for the aggravated serious criminal trespass and assaults was manifestly inadequate.  The Magistrate attributed a notional sentence of 16 months for those offences before reducing it to one year, one month and eighteen days on account of Mr Dingaman entering a plea of guilty.

3. The offences were committed in the township of Mimili in the APY Lands,[1] in the north-west of South Australia.  Mr Dingaman is a resident of Amata, another township in the APY Lands. The sentencing hearings were heard in the Port Augusta and Whyalla Courthouses because the offence of aggravated serious criminal trespass is a major indictable offence.  The Magistrates who sit in Port Augusta and Whyalla also conduct the criminal circuits in the APY Lands and have a close familiarity with the circumstances of those communities. 

   [1] The lands described in Schedule 1 of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 (SA).

4. The facts of the offending on which the Magistrate imposed sentence were these.  At around 6.15 am on 27 January 2024, Mr Dingaman, together with his partner Jill Campbell (‘Jill’), and her sister Sabrina Campbell (‘Sabrina’), went to the home of Betty Pumani Brown (‘Betty’) and her daughter, Marina Brown (‘Marina’), in the Mimili township.  Betty is 60 years of age.  Mr Dingaman, Jill and Sabrina stood outside, shouting and swearing.  They were armed with wooden sticks called ‘nulla nullas’ in the Pitjantjatjara language.  Mr Dingaman, Jill and Sabrina eventually broke their way through the locked front door and the locked door of the rear room with the intention of assaulting Betty and Marina.  That conduct constituted the offence of aggravated serious criminal trespass. It is accepted that this is a serious example of an offence of that kind.

5. Mr Dingaman grabbed Marina and Betty by the necks and attempted to drag them from the room. That conduct was not the subject of a charge. Marina defended herself by taking hold of a knife and stabbing Mr Dingaman, lacerating his left arm. Mr Dingaman went outside, but Sabrina and Jill remained.  Sabrina struck Marina’s head, arm and elbow with her nulla nulla. Mr Dingaman pleaded guilty to the offence of aggravated assault causing harm on the basis that he was a participant in a joint enterprise with Sabrina to assault Betty and Marina. 

6. Marina and Betty ran out of the house. Mr Dingaman was waiting outside.  He struck Betty across her right shoulder and arm with his nulla nulla and struck Marina about three times on her arm. 

7. As a result of the assault, Marina suffered an injury to her right index finger which was surgically repaired. However, she will suffer ongoing disability and pain.  Marina also sustained swelling and bruising to her arm.  That was the harm inflicted by the offence of aggravated assault causing harm.  The assault on Betty constituted the remaining offence, the offence of aggravated assault. Those offences of assault were, too, serious examples of their kind.

8. When Mr Dingaman was located, he was taken into custody.  He was released on bail on 30 January 2024.  It was a condition of bail that he not attend the Mimili community or its immediate surrounds.   He twice breached that condition, on 27 March 2024 and then on 6 May 2024 when he attended the Mimili township for family reasons.  He had no contact with Betty or Marina on those visits.

9. In submissions in mitigation before the Magistrate, Mr Dingaman’s counsel explained that the offending was caused by a combination of Mr Dingaman’s drunkenness and a family dispute between the Browns and the Campbells.  That dispute had been exacerbated at about the time of the offending by some agitation between family members then residing in Adelaide.  The Magistrate's reasons are carefully expressed. Her Honour referred to the paramount sentencing consideration, which was the safety of the community, and referred to both personal and general deterrence. The Magistrate correctly described the seriousness of the offending in this way:

   Although no victim impact statements have been provided to the Court, the victims of your offending would have been terrified.  They were entitled to feel safe in their own home and safe in their community.  You breached the safety and security of their home, and proceeded to participate in an assault that has resulted in long-term consequences for Marina Brown.

   As a man in his early thirties, you physically attacked a woman aged in her sixties. 

   Offending of this type, Mr Dingaman, erodes and undermines communities. It has a profound and lasting impact on everybody’s safety as a cycle of retribution and violence is often perpetuated.

10. Mr Dingaman had two prior convictions for assault with a weapon for offences which were committed in 2014, as the Magistrate observed, almost a decade prior to the subject offending.  A sentence of four months and nine days was imposed for those offences but was wholly suspended. Therefore, Mr Dingaman has never served any sentenced period of imprisonment in custody.

11. Mr Dingaman is a 32-year-old Aboriginal man raised in the APY Lands township of Amata and remains closely connected to his traditional country and culture.  He has three children aged fifteen, eight and five years.  He has been employed in the past, and there is work mustering camel in the Northern Territory and Western Australia that is available to him.  Mr Dingaman acknowledged before the Magistrate that he should not have become involved and that his offending was inexcusable.  The Magistrate recorded in her remarks that Mr Dingaman had expressed shame and remorse for his offending.  That observation may allude to the cultural significance of shame to members of Mr Dingaman’s community.

12. In short, Mr Dingaman is a relatively young Aboriginal man with young children, a family support and with employment prospects.  His counsel on appeal was right to submit that there remains scope for some optimism about his rehabilitation.

13. The importance of encouraging the rehabilitation of those offenders who have not enjoyed the opportunities for advancement that most others have cannot be overstated.  The rehabilitation of those offenders is not only important for them and their families but also for their local community and for society generally. Mr Dingaman had been remanded in custody from 27 January 2024 to 2 February 2024 before his bail was revoked on 19 February 2025 and remained in custody for some 23 days before he was sentenced. 

14. The Magistrate sentenced Mr Dingaman to one year two months and three days for all of the offences pursuant to s 26 of the Sentencing Act (SA) and fixed what Her Honour described as a merciful non-parole period of seven months. The head sentence and non-parole period were backdated to 19 February 2025. Her Honour declined to suspend the sentence.

15. The Director emphasises that the maximum penalty for aggravated criminal trespass is life imprisonment.   The Director relied on a line of cases in which higher sentences have been imposed for offences which are very broadly comparable in terms of the bare offending.  The Director also relied on the established standard for offences of that kind: that being the standard established in R v Delphin,[2] in which there was a starting point of 20 to 24 months following a plea of guilty.  The Director does not contend that there has been a general or widespread erosion of that sentencing standard. Rather, the burden of the Director's submissions was that the sentence itself was idiosyncratic and an egregious failure to apply that standard.

    [2]     R v Delphin (2001) 79 SASR 429 (‘Delphin’).

16. Counsel for the Director and for Mr Dingaman agreed that the Magistrate was not referred to the sentencing standard in Delphin, but rather the prosecutor simply submitted that the offence fell out of what the prosecutor described as the ‘ordinary range’.  It is not clear what that statement was meant to convey and how it was understood. In particular, it is not clear whether or not that observation might have been a reference to the standard of sentences, or the sentences commonly imposed, for offences of this kind in the APY Lands.

17. Nonetheless, it must be accepted that all South Australians, wherever they reside, and whatever the circumstances of their community, are equally entitled to feel secure in the sanctuary of their own homes.  That is especially the case for those members of community who are most vulnerable to offences of violence, including women and the aged.  Sentencing for offences of this kind must provide a high degree of personal and general deterrence to protect that basic human entitlement. Indeed, as the Magistrate observed, the primary purpose of sentence is to protect the safety of the community.[3]

    [3] Section 3 of the Sentencing Act 2017 (SA) (‘Sentencing Act’).

18. However, the sentencing of any offender requires a careful consideration and weighing of both the circumstances of the offence and the personal circumstances of the offender.  In Bugmy v The Queen,[4] the High Court observed that the deprived circumstances of an offender may mitigate his or her offending.[5]  Even though drunkenness, in itself, is not ordinarily a mitigating factor, an offender’s alcohol abuse may mitigate the offending if it is a manifestation of entrenched social disadvantage. 

    [4] (2013) 249 CLR 571 (‘Bugmy’).

    [5] Ibid 592-594 [37]-[40].

19. The demoralising experience of social disadvantage and hopelessness is a relevant consideration.  The High Court in Bugmy also observed that imprisonment may be especially burdensome for Aboriginal persons living a traditional life.[6] Considerations like those are capable of justifying a departure from the standard articulated in Delphin in the circumstances of the offence and the offender. On this appeal, for example, the sentence of seven months imprisonment will be the first sentence of imprisonment which Mr Dingaman will serve in prison. In that context, the sentence of the Magistrate may not be as idiosyncratic as it might otherwise appear.

    [6] Ibid.

20. Magistrates who circuit regularly in the APY Lands have, through continuous and repetitive experience, acquired a deep knowledge of the circumstances of those communities and their residents.  They have developed a judicial intuition for the appropriate balancing of aggravating mitigating circumstances and the needs of the APY communities.  That personal knowledge and intuition has been incorporated into the institutional experience of the Magistrates Court.

21. That observation does not detract from the importance of this Court’s supervisory jurisdiction in reviewing sentencing standards.  However, in bringing this application for permission to appeal, the Director does not rely on any evidentiary material about the special circumstances of those remote and disadvantaged communities of the APY Lands which could give this Court confidence that it has a sufficient level of understanding and knowledge to properly review the sentence against which the Director has appealed for the purpose of maintaining proper sentencing standards. 

22. Section 15 of the Sentencing Act is calculated to allow sentencing courts to be informed about the effect of offending on the people living and working in the community in which the offence was committed. Notwithstanding the institutional knowledge of the Magistrates Court of the communities and townships of the APY Lands, it is in the public interests that those circumstances are recorded and put before the Court in a way which, if thought necessary, can be tested. Material which forms part of the Court record by the provision of a section 15 report, other expert reports, agreed facts, or affidavits, will equip this Court to more effectively exercise its supervisory jurisdiction. I would also encourage Magistrates to refer to such of that information and to other matters to which they may take judicial notice, as is appropriate in their sentencing remarks – acknowledging the restraints they have in dealing with these matters in busy lists, especially whilst on circuit in the APY lands.

23. As to the principles governing the grant of permission, the Court in R v Ametovic observed:[7]

    In our view, ‘rare and exceptional’ is better seen not as a test or criterion, or even principle, to be applied or satisfied in a particular case, but rather as a compendious reference to, or reflection of, the importance of restraint in exercising the Court’s jurisdiction to entertain Crown appeals against sentence. It is a reference to, or reflection of, the need to give separate and distinct consideration to whether there is not only error in the sentencing discretion, but also a public interest in intervention that outweighs the hardship to the respondent in exposing him or her to the double jeopardy associated with being resentenced. As such, the phrase directs attention to the nature of the error and hardship, by reference to considerations such as those listed earlier in these reasons.

    [7] [2024] SASCA 153, [93].

24. I am concerned to ensure the primary sentencing purpose of community protection is observed and applied in every corner of this State.  However, this application is not a proper vehicle in which standards of punishment for offences of this kind, particularly in the APY lands, can be appropriately reviewed.  Nor are there sufficient prospects that the exercise of the discretion by the experienced Magistrate has miscarried or, at least, has miscarried so egregiously as to justify a grant of permission. 

25. I would refuse permission to appeal.

26. S DOYLE JA:   In my view, the sentence which was imposed was manifestly inadequate.  It did not adequately reflect the seriousness of the offending.  Given that the offending for which the sentence was imposed included a serious instance of an offence of aggravated serious criminal trespass, the sentence did not, for example, adequately reflect the guidance provided by Delphin.

27. That said, given the particular circumstances of this matter, as described by the Chief Justice, and including the potential significance of the respondent’s cultural background and the cultural setting in which his offending was committed, it is not clear to me that the sentence was so far outside the permissible range as to undermine public confidence in the administration of justice.  Further, and in any event, for the reasons given by the Chief Justice, and including the difficulties and limited guidance which would be inherent in any resentencing exercise undertaken by this Court in the particular circumstances to which I have referred, I am not persuaded that this is an appropriate vehicle for this Court to intervene so as to address the standards of punishment for the kind of offences involved.

1. I would refuse permission to appeal.

2. BLEBY JA:   In my view, on the limited material before this Court, the sentence appears to have been too low. However, for the reasons given by the Chief Justice and S Doyle JA, I would refuse permission to appeal.  In doing so, I note the prosecutor did not refer the Magistrate to the sentencing standard identified in Delphin. I would repeat and emphasise the comments by this court in R v Wilson.[8]

   [8] [2024] SASCA 20, [33].

3. The Magistrates Court is an extremely busy court of summary jurisdiction. It does not have the time or the resources necessary to maintain a comprehensive and nuanced command of the principles relevant to sentencing for major indictable offences that come before it on occasion. When such an offence does come before it for sentencing pursuant to s 116, an important and useful facility, it is incumbent on the prosecution to provide the magistrate with the tools necessary for this much less usual exercise of jurisdiction. A failure to provide that assistance speaks against twice vexing the respondent on a Director’s subsequent application for permission to appeal.