Rodgers v Police - [2022] SASC 119

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
RODGERS v POLICE
[2022] SASC 119
Judgment of the Honourable Justice McDonald
26 October 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT
The appellant appeals against a sentence imposed by a Magistrate. On 2 March 2022, the appellant entered a plea of guilty to one count of assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA). The appellant was sentenced in the Magistrates Court on 18 May 2022. The appellant pleaded guilty when the matter was listed for a pre-trial conference. Accordingly, the appellant was entitled to a discount of up to 30 per cent for his plea. From a starting point of six months imprisonment, the Magistrate applied the discount of 30 per cent and imposed a sentence of imprisonment of four months and six days. The Magistrate refused to suspend the sentence either wholly or partially and found that there were not proper grounds to order that the sentence be served on home detention. The Notice of Appeal contained six grounds of appeal. The combined effect of the grounds was a complaint that the Magistrate erred in not availing himself of a sentencing option that did not require the immediate imprisonment of the appellant. The appellant is seeking that the sentence of four months and six days be set aside, and that the Court resentence him.
Held, dismissing the appeal:
1. In light of the seriousness of the offending and having regard to all of the appellant’s personal circumstances, it cannot be said that the imposition of a term of immediate imprisonment for four months and six days fell outside of the permissible range of sentences available to the Magistrate.
Criminal Law Consolidation Act 1935 (SA) s 20(4); Magistrates Court Act 1991 (SA) ss 42(1), 42(2)(b); Sentencing Act 2017 (SA) ss 69, 71, 79, 80, 81, 96(1), 96 (4); Supreme Court Criminal Rules 2014 (SA) r 104V(1), referred to.
House v The King (1936) 55 CLR 499; R v Dell & Dell (2016) 126 SASR 571; Wittwer v Police [2004] SASC 226, applied.
R v Aubrey [2021] SASCA 71, discussed.
Craill v Police [2016] SASC 168; Dinsdale v The Queen (2000) 202 CLR 321; KMC v Director of Public Prosecutions (2020) 267 CLR 480; Lowndes v The Queen (1999) 195 CLR 665; Playford v Police [2017] SASC 26; R v Lutze (2014) 121 SASR 144; R v Mark [2019] SASCFC 48; R v Stevens [2008] SASC 170; R v Spyrou [2008] SASC 209; R v Wilton (1981) 28 SASR 362; Teasdale v Police [2022] SASC 64, considered.

RODGERS v POLICE
[2022] SASC 119
Magistrates Appeal: Criminal
McDONALD J:

This is an appeal against a sentence imposed in the Magistrates Court in relation to one count of Assault Causing Harm in contravention of s 20(4) of the Criminal Law Consolidation Act 1935 (SA). For this offence the appellant was sentenced to six months imprisonment, which was reduced by 30 per cent to four months and six days on account of the appellant’s plea of guilty. Underpinning the various grounds of appeal is a complaint that the Magistrate erred in ordering that the appellant serve that term of imprisonment.
The facts
The victim of the offending was an associate of the appellant. They had known each other for several years. A civil dispute had arisen between the two men over a motorcycle. The appellant thought that the victim owed him money in relation to that motorcycle.
At about 10.30pm on 10 December 2020 the victim was at his home at Smithfield Plains. He heard a vehicle pull up at the front of his house. He walked outside to investigate and found the appellant there. The appellant yelled loudly at the victim about the money he thought that the victim owed him. The victim remained on the footpath and then approached the appellant. The victim was also yelling at the appellant.
The appellant struck the victim to the face. The victim did not recall what happened next other than being struck repeatedly by the appellant and ending up on the ground near his letterbox. The victim’s next memory was of being on the opposite side of the road. There is no dispute that the victim was repeatedly struck by the appellant.
At this point the victim got to his feet and walked to the rear of the appellant’s vehicle. He punched the left tail light, causing it to break. The appellant then continued to assault the victim, punching him to the head and face multiple times until a neighbour intervened. It was only after the neighbour’s intervention that the appellant desisted.
The victim was conveyed to a hospital. As a result of the assault he suffered a broken nose.
At some stage during the assault the appellant took a photograph of the victim on his knees, obviously bleeding and injured, with his eyes closed.
A short time after the assault the appellant sent the victim’s partner a text message, asking her whether the victim had any sexually transmitted diseases because his hands were covered in the victim’s blood.
The appellant subsequently told police during an interview that he took the photograph “for [his] own gratification” and to show the victim that “he was a little bitch”. He also told police that he had previous boxing experience and that was why the appellant was quicker than the victim and knocked him out first.[1]
[1] Sentencing Remarks at 2.
Proceedings in the Magistrates Court
This matter took some time to come to a resolution. While these offences occurred on 10 December 2020, it was not until 2 March 2022 that the appellant entered a plea of guilty to one count of Assault Causing Harm.[2] After entering that plea, the solicitor for the appellant sought an adjournment in order to have the appellant psychologically assessed and a report prepared. The application for the adjournment was granted by the Magistrate and the matter was listed for submissions on 18 May 2022.
[2] Criminal Law Consolidation Act 1935 (SA) s 20(4).
For reasons that I will come back to, that psychological assessment did not take place.
The matter next came before the Magistrates Court on 18 May 2022. On that occasion submissions as to penalty were made. At the completion of submissions, the Magistrate sentenced the appellant. It follows that the remarks made by the Magistrate at the time of sentencing were ex tempore.
Grounds of appeal
As this is an appeal to a single Judge of the Supreme Court against the sentence of a Magistrate, the appeal is of right pursuant to s 42(1) and s 42(2)(b) of the Magistrates Court Act 1991 (SA). Specifically, the appellant is seeking that the sentence of four months and six days be set aside and that the Court resentence him.
The notice of appeal contains six grounds. These are:
1)The Learned Sentencing Magistrate erred in the exercise of his discretion residing in him to not wholly suspend the term of imprisonment imposed pursuant to section 96(1) of the Sentencing Act 2017 (SA).
2)In the alternative to 1) above, the Learned Sentencing Magistrate erred in the exercise of his discretion residing in him to not impose an Intensive Corrections Order upon penalty, pursuant to section 81 of the Sentencing Act 2017 (SA).
3)In the alternative to 1) and 2) above, the Learned Sentencing Magistrate erred in the exercise of his discretion residing in him to not impose a Home Detention Order upon penalty, pursuant to section 71 of the Sentencing Act 2017 (SA).
4)In the alternative to 1), 2), and 3) above, the Learned Sentencing Magistrate erred in the exercise of his discretion residing in him to not partially suspend the term of imprisonment imposed pursuant to section 96(4) of the Sentencing Act 2017 (SA).
5)The Learned Sentencing Magistrate erred in sentencing the Appellant, declining to impose either a wholly suspended term of imprisonment, or in the alternative, a Home Detention Order, for the said Magistrate determined there were no “proper grounds” provided to impose such forms of sentence. The Appellant submits the appropriate test for such forms of sentence to be imposed is not that of “proper grounds”.
6)The appellant reserves the right to amend these ground in the future after receiving the advice of Independent Counsel.
The combined effect of the grounds was a complaint that the Magistrate erred in not availing himself of a sentencing option that did not require the immediate imprisonment of the appellant.
Principles on appeal
This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and Chapter 12A of the Supreme Court Criminal Rules 2014 (SA).[3] Appeals from a Magistrate to a single Judge of the Supreme Court are by way of rehearing pursuant to r 104V(1) of the Supreme Court Criminal Rules 2014 (SA).
[3] This appeal commenced and was heard prior to the Joint Criminal Rules 2022 coming into operation on 29 August 2022.
In order to interfere with the exercise of a sentencing discretion, there must be a demonstrated error of the kind described in House v The King.[4] The approach to be adopted was summarised by White J in Wittwer v Police:[5]
The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or it if has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly: House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 324 – 325 [3] – [4]; Naera v Police (1995) 184 LSJS 328 at 329; Taylor v Hayes (1990) 53 SASR 252 at 291; Ware v Betts (1987) 134 LSJS 212 at 216; Wessling v Police (2004) 88 SASR 47 at 60.
[4] (1936) 55 CLR 499.
[5] [2004] SASC 226 at [16].
The Court will not interfere merely because it would have exercised the sentencing discretion in a different way to the sentencing Magistrate.[6]

It is the appellant’s submission that the sentence imposed by the Magistrate was infected by both outcome and process error. The approach to be adopted by an appellate court in relation to each type of error was conveniently summarised by Stanley J in R v Mark:[7]
A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ, if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal.
(Footnotes omitted)
[6] R v Wilton (1981) 28 SASR 362 at 363; Lowndes v The Queen (1999) 195 CLR 665 at [15].
[7] [2019] SASCFC 48 at [18].
In Lowndes v The Queen, the Court observed that:[8]
… a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. … The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
[8] (1999) 195 CLR 665 at [15].
Grounds 1, 4 and 5 – Suspended sentence
Although there are five grounds of appeal, the appellant’s primary argument was that the Magistrate had erred in exercising his discretion to not fully suspend the term of imprisonment. It was put that there had been both a process and outcome error.
Process error
The process error as identified by the appellant was said to be that the Magistrate had applied the wrong test in determining to not suspend the term of imprisonment.
Section 96(1) of the Sentencing Act 2017 (SA) (“the Sentencing Act”) provides:
96—Suspension of imprisonment on defendant entering into bond
(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.
It is plain that the statute provides only one test in respect of suspension of a sentence – whether good reason exists to suspend.
It is clear from the Magistrate’s remarks that he gave consideration to the issue of suspension. After determining that the only appropriate penalty was a term of imprisonment, the Magistrate considered the question of suspension. His Honour said:[9]
I need to consider whether there are proper grounds to suspend either wholly or partially the term of imprisonment that I have imposed or to have you serve that term of imprisonment on home detention.
[9] Sentencing Remarks at 3.
The Magistrate subsequently concluded “that there are not good grounds to suspend either wholly or partially the term of imprisonment”.[10]
[10] Sentencing Remarks at 3.
The appellant submits that these passages evidence three errors made by the Magistrate. Instead of using the words of the section, namely “good reasons”, the Magistrate refers to “proper grounds” and then “good grounds”. The third error is said to be that in the second expression of the test, the Magistrate inverted it by concluding “that there are not good grounds” to suspend rather than whether “good reason exists for suspension”.
Whilst it is clear that the Magistrate did not formulate these passages in his remarks in accordance with the precise words used in the Sentencing Act, when read in their entirety it is apparent that no error is made out. It is clear that the Magistrate was using the term “proper” interchangeably with the term “good” and that in this context those terms mean exactly the same thing. Similarly, there is no reason to think that the Magistrate erred in using the term “grounds” rather than “reasons” throughout his remarks when referring to the test for suspension. In this context, the two words have the same meaning. There is equally no force in the submission that the use of the phrase “that there are not good grounds” demonstrates that the Magistrate erred in the application of the test. At best, these criticisms raise matters of semantics.
It should also be observed that sentencing remarks, particularly the “necessarily economical”[11] remarks of Magistrates conducting busy lists, are not to be read and deconstructed with the same scrutiny as one might read written reasons for judgment.[12] It has 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 the sentencing law.
[11] Craill v Police [2016] SASC 168 at [30] per Stanley J.
[12] Playford v Police [2017] SASC 26 at [23] per Vanstone J.
[13] KMC v Director of Public Prosecutions (2020) 267 CLR 480 at [28] per Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.
Outcome error
I turn then to consider the outcome error complained of by the appellant. It was submitted that the Magistrate erred in declining to suspend the sentence of imprisonment. This complaint is a species of manifest excessiveness.[14] Consequently, the question for this Court is whether the decision fell outside the range of permissible sentences. As Blue J observed in Teasdale v Police:[15]
On appeal, an outcome error in respect of a decision not to suspend a sentence will only be demonstrated if the appellate court is persuaded that it was not open to the sentencing judge or magistrate to decline to suspend the sentence.
(Footnote omitted)
[14] R v Lutze (2014) 121 SASR 144 at [49] per Vanstone and Parker JJ citing Dinsdale v The Queen (2000) 202 CLR 321 at [6] per Gleeson CJ and Hayne J.
[15] [2022] SASC 64 at [73].
In the majority of cases in which a sentence of imprisonment is imposed, the next step usually taken is for the Court to determine whether good reason exists to suspend the term of imprisonment. The same factors that are relevant to determining the head sentence are relevant to determining whether good reason exists to suspend the sentence of imprisonment.[16] In making that decision the Court must consider all of the relevant circumstances, including the objective features of the offence and the personal circumstances of the defendant.[17]
[16] Dinsdale v The Queen (2000) 202 CLR 321 at [85]-[86] per Kirby J; R v Stevens [2008] SASC 170 at [22] per Duggan J, with whom Doyle CJ and Anderson J agreed.
[17] R v Stevens [2008] SASC 170; R v Spyrou [2008] SASC 209.
A decision to suspend, or not suspend, a sentence of imprisonment involves the exercise of a discretion. Reasonable minds may differ on the exercise of a discretion. It follows that to demonstrate error it must be established that the decision to not suspend the sentence fell outside of the appropriate range of differing views. The appellant submits that the outcome here is so unreasonable and so unjust as to demonstrate error. It was further submitted that there are erroneous findings in the Magistrate’s remarks which led to an error in the exercise of the discretion.
During her submissions counsel for the appellant relied very heavily on aspects of the appellant’s personal circumstances, some of which excite some sympathy. In particular, reliance was placed on the appellant’s limited criminal antecedents which were said to be stale; the most recent having occurred in 2011. The appellant had never previously been sentenced to a term of imprisonment, he had complied with good behaviour bonds, and the only other offence of violence that he had committed took place in 2010. Counsel for the appellant submitted that the combination of those factors indicated that the appellant had rehabilitated himself since his youthful offending and consequently ought to have been given the opportunity of a suspended sentence. Counsel for the appellant also placed emphasis on the appellant’s good employment history, his family support and the fact that he had not committed any further offence in the 18 months between the subject offending and the date of sentence.
Whilst each of the matters raised by the appellant were important in respect of the exercise of the discretion to suspend, they were all taken into account by the Magistrate. The Magistrate had the task of weighing these factors against the objectively serious nature of the appellant’s violent offending. Offending made all the more culpable given it was conduct that was unprovoked and occurred in a public place. The Magistrate was also required to take into account the appellant’s derogatory and demeaning conduct towards his victim in the aftermath of the offending.

The appellant also relies on what are said to be erroneous findings made by the Magistrate. These related to the topics of the appellant’s failure to obtain a psychological report, a Mental Health Treatment Plan, an apology letter and the question of whether the appellant had any issues with anger management. It was submitted by the appellant that as a consequence of the combined effect of these matters, the Magistrate made erroneous findings about whether the appellant appreciated the seriousness of his offending and was remorseful. It was contended that the error then permeated the exercise of the discretion to not suspend the sentence.
In order to assess this submission, it is necessary to descend into some of the detail of the history of this matter. As previously set out, the appellant pleaded guilty to the offence of Assault Causing Harm on 2 March 2022. Submissions as to penalty were made on 18 May 2022 and the appellant was sentenced. The matter was adjourned after the plea was entered in order for the appellant’s solicitor to arrange to have the appellant psychologically assessed and a report prepared. After the adjournment, the appellant’s solicitor made an appointment for the appellant to meet with a psychologist. Despite his solicitor advising him of the appointment in writing, by text and by email, the appellant failed to attend.[18]
[18] Affidavit of Hugh Gregory Meyer dated 6 July 2022 at [5].
For COVID-19 related reasons the appellant’s solicitor was unable to meet with him before the court appearance on 18 May 2022. In an affidavit dated 6 July 2022, the appellant’s solicitor described what occurred on that occasion in relation to the psychological report:[19]
[8]I indicated to the Magistrate that a psychological report was not forthcoming as previously envisioned, and that I had not received from Mr Rodgers instructions for sentencing submissions, due in part to his close contact status issue the previous week, and that I would accordingly request that the matter please be ‘held in the list’ for me to obtain said instructions from Mr Rodgers, following my making sentencing submissions in another matter in another courtroom.
…
[10]Later in the morning I obtained instructions for sentencing submissions from Mr Rodgers. He apologised for not recalling the text or reading his emails concerning the psychological assessment. He conceded both contact number and email address provided remained valid. He nonetheless wanted to finalise his matters that day. He did not want to seek a further adjournment to be psychologically assessed before sentence was imposed.
[19] Affidavit of Hugh Gregory Meyer dated 6 July 2022 at [8]-[10].
The matter was called back on before the Magistrate at which time the appellant’s solicitor made submissions. During the course of those submissions the appellant’s solicitor said the following that is relevant to the disposal of this ground of appeal:[20]
[14]…
l) Mr Rodgers has obtained a Mental Health Care plan, for he considers he likely has a mental health issue, he being assessed for depression, anger and possible Port Traumatic Stress Disorder at first instance, He has 10 sessions of counselling recommended to him but had yet to commence those;
…
[18]…
r) That Mr Rodgers had provided his instructions to apologise to the victim for his actions. That he to date had not apologised for bail conditions that prevent contact. By coincidence the victim had subsequently attended at Mr Rodgers property to enquire about a car advertised for sale, but the victim had run off as soon as he saw the complainant [sic];
[19]The Magistrate enquired when I had received those instructions as concerns forwarding an apology. I gave reply to the Magistrate to effect “this morning”.
[20] Affidavit of Hugh Gregory Meyer dated 6 July 2022 at [14]-[19].
During the course of delivering his sentencing remarks, the Magistrate was interrupted by an interjection from the appellant. The interjection occurred at the point that the Magistrate was dealing with the failure of the appellant to apologise to the victim of his offending. I set out the exchange in full:[21]
You hurt the victim and I accept that you have not had the ability to respond and apologise directly to them but I take with a grain of salt the instructions that you have given today to your lawyer that you would like to. Well you have not bothered to put pen to paper in case that one day you might be able to apologise to [the victim] and write an apology to him.
DEFENDANT: I actually have got an apology letter. It’s A4 size long.
Mr Rodgers, that is not before me. You have had the opportunity to do it just as you had the opportunity to take up some of the sessions on your mental health plan, just as you had the opportunity to see a psychologist and you have not done those things. It troubles me that you have seemed to have taken this matter relatively lightly. I would have thought you have been doing everything you could to reschedule that psychological report, get any help that was offered to you in that mental health case plan to deal with issues of depression and anger management knowing that you were going to be sentenced. I would have thought you would have furnished your solicitor with a copy of that letter saying ‘These are the things that I want to say to [the victim] if only I could, so that he doesn’t run away from me when he sees me’ but you have not done those things. In fact it seems that you have done very little to show that you accept the seriousness of your behaviour and that it cannot continue and that there maybe things you need to do to ensure that it does not.
The appellant’s failure to obtain a psychological report
[21] Sentencing Remarks at 2.
The appellant submits that the Magistrate was in error in the approach that he adopted in relation to the failure of the appellant to obtain a psychological report. It was put by the appellant:[22]
A psychological report was not obtained and therefore was not before the magistrate.
My submission is that at that point that becomes essentially neutral; there is no psychological report. What that psychological report may or may not have said is essentially something that the magistrate doesn’t know anything about and I say that it was incorrect for the magistrate to have taken into account that failure to obtain a psychological report.
[22] T5.
The appellant appeared to be suggesting that in the passage set out at [38], the Magistrate was in some way adversely speculating about what a psychological report may or may not have said. That is not my reading of the remarks. The Magistrate was making an observation about the appellant’s attitude towards the seriousness of the offending based on a number of factors, including the fact that he had been given the opportunity to obtain a psychological report and he had not taken up that opportunity. It was open to the Magistrate to consider that this, in combination with other matters, indicated something of the mindset of the appellant in relation to the seriousness with which he regarded the offending.
Mental Health Treatment Plan
Another of the matters that the Magistrate took into account in arriving at his view was the appellant’s failure “to take up some sessions”[23] on his Mental Health Treatment Plan. In sentencing submissions, it was the appellant’s solicitor who raised the topic of the appellant having obtained a Mental Health Treatment Plan. He put to the Court:[24]
Mr Rodgers has obtained a Mental Health Care plan, for he considers he likely has a mental health issue, he being assessed for depression, anger and possible Post Traumatic Stress Disorder at first instance, He has 10 sessions of counselling recommended to him but had yet to commence those;
[23] Sentencing Remarks at 2.
[24] Affidavit of Hugh Gregory Meyer dated 6 July 2022 at [14].
The appellant submits that the Magistrate was in error in how he approached this topic. It was put:[25]
The magistrate talks about that in the sense of that nothing had been done on that topic. I say in fact something had been done on that topic and that is the appellant had gone to see his GP, he had got himself that mental health treatment plan but not commenced on it yet.
[25] T6.
That submission elevates the comments of the Magistrate to a criticism of the appellant that a plain reading of his Honour’s remarks does not bear out. The Magistrate was doing no more than making the observation that although the appellant talked about doing the right thing, there was an obvious failure to put those words into action.
The letter of apology
The appellant’s claim to have written a letter of apology fell into the same category as the Mental Health Treatment Plan and the psychological report in that it was something that the appellant raised but failed to deliver upon.
The topic first came up during the submissions by the solicitor for the appellant. He told the Court that the appellant had provided instructions to apologise to the victim for his conduct. The Magistrate enquired as to when he had received those instructions and was advised that it had occurred that morning. The Magistrate dealt with the issue of the letter of apology in the passage of the sentencing remarks set out at [38]. It was the Magistrate’s reference to the appellant’s failure to “put pen to paper” that appears to have prompted the appellant’s interjection and claim that he had in fact written an apology letter.
Counsel for the appellant submits that the appellant’s instructions to his solicitor to apologise to the victim was an indication that he took the matter seriously and was remorseful. It was put that the Magistrate failed to give any weight to this demonstration of contrition.
I do not accept this submission. By his plea of guilty the appellant was admitting serious violent offending. In that context it is of no great moment that he instructed his solicitor to tell the Court that he wished to apologise to the victim. It involved no effort and came at no cost to him. The “apology” was bereft of detail and the victim was not present. Despite the appellant’s claim that he had prepared a written apology, at no stage was that produced to the Magistrate or to this Court. It was open to the Magistrate to place no weight on a submission that the appellant had provided instructions to apologise.
Anger management
The final aspect of the Magistrate’s remarks that the appellant takes issue with is his reference to the appellant experiencing anger management issues. On this topic the following submission was made:[26]
I want to make another point about that in a moment but the point that I’m making is there actually was nothing before the magistrate to indicate in terms of a formal diagnosis or a formal report that Mr Rodgers had depression or that Mr Rodgers had any anger management issues. What was before him was that he had self referred to his general practitioner because he himself thought that he had issues with depression or stress, and also to be considered was whether he had any issues with anger management. My point is this: there actually was no evidence that he had issues with anger management.
[26] T6-7.
Again, it was the appellant’s solicitor who had raised this topic in advising the Court that one of the reasons for the appellant obtaining a Mental Health Treatment Plan was that he wished to be “assessed for depression, anger and possible Post Traumatic Stress Disorder”. Given the offence that he had committed, it is hardly surprising that the appellant formed the view that he may be suffering from anger management issues. In his remarks the Magistrate was doing no more than making an observation about the failure of the appellant to take steps to ascertain if he had depression or issues with anger management, and if so, presumably to then obtain treatment. It is not correct to suggest that the Magistrate made a positive finding that the appellant had anger management issues, although given the appellant’s conduct it would be a logical inference to be drawn.
Ground 2 – Intensive corrections order (“ICO”)
This ground was run in the alternative to ground 1. It was submitted that the Magistrate was in error in failing to consider the sentencing option of an ICO. The regime surrounding the imposition of an ICO appears in “Division 7 – Community based custodial sentences” under Subdivision 2 of the Sentencing Act. Section 79 sets out the purpose of making such an ICO:
79—Purpose of intensive correction order
(1)The purpose of an intensive correction order is to provide a court with an alternative sentencing option for a defendant where the court—
(a) is considering imposing a sentence of imprisonment of 2 years or less; and
(b) considers there is a genuine risk that the defendant will re-offend if not provided with a suitable intervention program for rehabilitation purposes.
(2)The court should not impose an intensive correction order on a defendant unless the court considers that, given the short custodial sentence that the court would otherwise have imposed, rehabilitation of the defendant is more likely to be achieved by allowing the defendant to serve the sentence in the community while subject to strict conditions of intensive correction.
(3)Despite the preceding subsections, the paramount consideration of the court when determining whether to make an intensive correction order must be to protect the safety of the community (whether as individuals or in general).
Section 80 of the Sentencing Act relates to offences for which an offender is ineligible for an ICO. It is not suggested that the appellant falls within this section.
Section 81 creates the power and sets out the circumstances in which an ICO can be made. For present purposes, the following are the relevant provisions:
81—Intensive correction orders
(1)Subject to this section, if—
(a)     a court has imposed a sentence of imprisonment on a defendant of a term that is 2 years or less; and
(b)     the court considers that the sentence should not be suspended under Part 4 Division 2; and
(c)     the court determines that there is good reason for the defendant to serve the sentence in the community while subject to intensive correction,
the court may order that the defendant serve the sentence in the community while subject to intensive correction (an intensive correction order).
(2)For the purposes of subsection (1)(c), the court may determine that, even though a custodial sentence is warranted and there is a moderate to high risk of the defendant re offending, any rehabilitation achieved during the period that would be spent in prison is likely to be limited compared to the likely rehabilitative effect if the defendant were instead to spend that period in the community while subject to intensive correction.
…
(4)The court must take the following matters into consideration when determining whether to make an intensive correction order:
(a)     the impact that the intensive correction order is likely to have on—
(i)any victim of the offence for which the defendant is being sentenced; and
(ii)any spouse or domestic partner of the defendant; and
(iii)any person residing at the residence at which the defendant may, if released, reside;
(b)     the pre sentence report (if any) ordered by the court;
(c)     any other matter the court thinks relevant.
…
When determining whether an ICO should be imposed, the purpose of such an order must be considered. It appears from the terms of the sections that this legislation was intended to apply to a relatively narrow category of offenders. The discretion to make an ICO can be exercised where the Court “considers there is a genuine risk that the defendant will re-offend if not provided with a suitable intervention program for rehabilitation purposes”.[27] There is a further precondition in that s 79(2) of the Sentencing Act provides that an ICO should not be imposed unless the Court considers that the rehabilitation of the defendant is more likely to be achieved by allowing the defendant to serve the sentence in the community under the strict conditions of an ICO, rather than ordering a short custodial sentence.
[27] Sentencing Act 2017 (SA) s 79(1)(b).
It is likely that to address these preconditions the Court would commonly require the assistance of an expert report or at the least some detailed information about the defendant, the availability of suitable intervention programs, and the benefits of such a program to the defendant. Section 81(4)(b) of the Sentencing Act expressly permits the Court to have regard to a pre-sentence report for this purpose.
None of that information was available to the Magistrate. Neither of the parties raised the option of an ICO, nor did they make submissions about whether the Magistrate could be satisfied that this sentencing discretion was enlivened. Even on the appeal, it was put by the appellant that it was “not conceded that the appellant is at risk of re-offending”. In circumstances in which the appellant maintains that position, it is an untenable submission that the Magistrate erred in not imposing an ICO.
Grounds 3 and 5 – Home detention order (“HDO”)
These grounds are also in the alternative to ground 1.
The appellant contends that the Magistrate made both an outcome error and a process error in relation to the decision to not impose a HDO. In respect of the outcome error, the appellant relies on those same aspects of the appellant’s personal circumstances as were raised in relation to the issue of a suspended sentence. These amount to no more than a re-ventilation of the submissions put before the Magistrate. For the same reasons that I found the Magistrate did not err in declining to suspend the sentence, I also find that he did not err in declining to impose a HDO.
Process error
As to the process error, it is the appellant’s position that the Magistrate applied the incorrect test in determining whether to impose a HDO. In his remarks the Magistrate indicated that he had turned his mind to the question of a HDO, however concluded that he did not consider that there were “proper grounds” to have the appellant serve the sentence on home detention.
The Sentencing Act sets out the regime for the imposition of a home detention order.[28] Section 69 of the Sentencing Act sets out the purpose of home detention:
[28] Sentencing Act 2017 (SA), Part 3, Division 7 – Community based custodial sentences.
69—Purpose of home detention
(1)The purpose of a home detention order is to allow a court to impose a custodial sentence but direct that the sentence be served on home detention.
(2)The paramount consideration of the court when determining whether to make a home detention order must be to protect the safety of the community (whether as individuals or in general).
Section 71 provides for the circumstances in which a home detention order can be imposed:
71—Home detention orders
(1)Subject to this section, if—
(a)     a court has imposed a sentence of imprisonment on a defendant; and
(b)     the court considers that the sentence should not be suspended under Part 4 Division 2; and
(c)     the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may order that the defendant serve the sentence on home detention (a home detention order).
…
(3)The court must take the following matters into consideration when determining whether to make a home detention order:
(a)     the impact that the home detention order is likely to have on—
(i)any victim of the offence for which the defendant is being sentenced; and
(ii)any spouse or domestic partner of the defendant; and
(iii)any person residing at the residence at which the prisoner would, if released, be required to reside;
(b)     the pre sentence report (if any) ordered by the court;
(c)     any other matter the court thinks relevant.

In R v Aubrey,[29] the Court of Appeal considered the approach to be adopted in determining whether to order that a defendant serve a sentence on home detention:[30]
Section 71(1) of the Sentencing Act empowers the Court to order that a sentence of imprisonment be served on home detention if it considers that the sentence should not be suspended and that the defendant is a suitable person to serve the sentence on home detention. Section 69(2) provides that the paramount consideration when determining whether to make a home detention order must be to protect the safety of the community (whether as individuals or in general). Bleby JA observed recently in Liddicoat v The Queen.
In R v Dell & Dell, this Court concluded that whether to order home detention under the former s 33BB(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the predecessor to, and in materially the same terms as, s 71(1) of the Sentencing Act 2017 (SA)) required a two stage process of consideration. It held that this requires first, a narrow inquiry as to the suitability of the defendant for a home detention order, focusing on their personal circumstances. If the Court is satisfied that they are a suitable person, it may then proceed to exercise the broader description encompassed in the words, ‘the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention’.
The corresponding provision in s 71(1) does not contain the words ‘may suspend the sentence under this Division and’, but that does not, in my view, alter the conclusion that a two-stage process is required.
(Footnotes omitted)
[29] [2021] SASCA 71.
[30] R v Aubrey [2021] SASCA 71 at [23].
The test, as described in R v Dell & Dell,[31] is one of two parts. The first enquiry in s 71(1)(c) is directed towards the suitability of a defendant to serve a sentence on home detention. The second is the exercise of the broader discretion that “the court may order that the defendant serve the sentence on home detention”. This process will encompass taking into consideration those matters referred to in s 71(3) of the Sentencing Act.
[31] (2016) 126 SASR 571.
The appellant contends that the Magistrate erred in the manner of approaching the question of home detention in that his Honour failed to undertake the two-stage process outlined by the Court of Appeal. In particular, it was submitted that the Magistrate failed to address the first step – namely whether the appellant was a suitable person to serve the sentence on home detention.
While the two-stage test remains the approach to a determination of whether a HDO should be made, it is not mandatory in every case that a determination as to whether a person is a “suitable person” needs to be articulated. As Doyle J said in Dell:[32]
… While a conclusion that a defendant is a “suitable person” is a necessary condition of an exercise of the discretion to make a home detention order, I do not think that it will always be necessary to make an express finding on this issue. Bearing in mind the nature of sentencing remarks, and on the assumption that the range of matters relevant to the sentencing process will have been mentioned earlier in the remarks, it will generally be sufficient that the sentencing judge’s remarks make it plain that he or she has turned their mind to the exercise of the discretion under s 33BB(1), and set out the outcome of that exercise. …
[32] R v Dell & Dell (2016) 126 SASR 571 at [67].
It is clear from his remarks that the Magistrate was alive to all of the matters relevant to whether it would be appropriate to order that the appellant serve the sentence on home detention. The Magistrate expressly considered the issue of home detention and determined that it was inappropriate that such an order be made. It was open to his Honour to do so.
Even if I am wrong in that the Magistrate did not apply the correct test, I would not allow the appeal on this ground. A proper application of the test to the appellant’s circumstances leads me to the conclusion that the outcome was correct. At the very least, it was open to the Magistrate to come to the view that this was not an appropriate case in which to order that the sentence be served on home detention.
Conclusion
In light of the seriousness of the offending and having regard to all of the appellant’s personal circumstances, it cannot be said that the imposition of a term of immediate imprisonment for four months and six days fell outside of the permissible range of sentences available to the Magistrate.
Order
The appeal is dismissed.