Sauth Thi v Police - [2025] SASC 169

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
SAUTH THI v POLICE
[2025] SASC 169
Judgment of the Honourable Justice Gray
8 October 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE - VICTIM IMPACT STATEMENTS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - HOME DETENTION ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
This is an appeal against a sentence imposed by a magistrate on 22 May 2025 in respect of three counts of aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). Two counts of assault were against one complainant, and the remaining count against another complainant. Both complainants were, at the relevant times, in a relationship with the appellant.
The appellant was sentenced to imprisonment for 13 months and 18 days, with a non-parole period of 3 months to be served in custody.
The appellant complains that numerous process errors were made in fixing sentence, including, inter alia, the regard that the learned Magistrate to uncharged acts referred to in a victim impact statement of the second complainant. The sentence is said to be manifestly excessive and that it ought to have been suspended, or, alternatively, ordered to be served on home detention.
The respondent conceded error, but, notwithstanding the process errors, submitted that the sentence was not manifestly excessive and was appropriate in all the circumstances, save that a reduction on account of the time spent in custody should now be made.
Held, allowing the appeal and resentencing:
1.The provisions of the Sentencing Act 2017 (SA) make plain that a sentencing court must receive a victim impact statement as presented by a victim, and it then falls to the sentencing court to have regard to only relevant material: at [23]; and,

2.      On a re-exercise of the sentencing discretion:
2.1.    A sentence of imprisonment is the only appropriate penalty: at [41];
2.2.    Notwithstanding the youth of the appellant, his rehabilitative efforts, and his lack of antecedent history, given the seriousness of the offending, there is not good reason to suspend the sentence: at [60]; and,
2.3. Imposition of a home detention order meets the punitive and deterrent aims of sentencing, as well as promoting rehabilitation of the appellant, and, in light of the circumstances of this case, is appropriate and would not affect public confidence in the administration of justice: at [67].

The appellant is resentenced as follows:
1. A sentence of imprisonment of 9 months and 14 days is imposed;
2. No non-parole period is fixed under s 47(5)(a)(i) of the Sentencing Act 2017 (SA); and,
3.The sentence is to be served pursuant to a home detention order, imposed under s 71 of the Sentencing Act 2017 (SA), commencing 8 October 2025.

Observations as to the use of victim impact statements made: at [17]-[23].
Criminal Law Consolidation Act 1935 (SA) s 5AA and s 20; Legislation Interpretation Act 2021 (SA) s 16; Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 7, s 14-16, s 47, s 69, s 71 and s 96; Victims of Crimes Act 2001 (SA) s 10, referred to.
R v Agius [2000] SASC 259; (2000) 77 SASR 469; Attorney-General (SA) v Tichy (1982) 30 SASR 84 ; R v Bakewell (New South Wales Court of Criminal Appeal, Gleeson CJ, McInerney and Studdert JJ, 27 June 1996); Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593; R v De Simoni [1981] HCA 31; (1981) 147 CLR 383; R v Driver [2011] SASCFC 130; (2011) 111 SASR 245; Donnelly v Police (SA) ; Elliot v Harris (No 2) (1976) 13 SASR 516; R v Fowler [2006] SASC 18; R v Franceschini [2015] SASCFC 116; (2015) 123 SASR 396; Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462; R v H [2005] NSWCCA 282; R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; R v Horstmann [2010] SASC 103; Josefski v The Queen [2010] NSWCCA 41; (2010) 217 A Crim R 183; R v Kane [2003] SASC 237; R v Kreutzer [2013] SASCFC 130; Lane v The Queen [2020] SASCFC 82; R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231; Miller v The Queen [2014] NSWCCA 34; R v Mills [1998] 4 VR 235; R v P (1992) 64 A Crim R 381; Porter v The Queen [2008] NSWCCA 145; PWB v The Queen [2011] NSWCCA 84; (2011) 216 A Crim R 305; Rendic v The Queen [2021] SASCA 23; (2021) 138 SASR 214; R v Schultz [2010] SASCFC 47; R v Scott [2014] SASCFC 131; Siganto v the Queen [1998] HCA 74; (1988) 194 CLR 656; Teasdale v Police (SA) [2022] SASC 64; R v Thomas [2007] NSWCCA 269; R v Webb [1971] VR 147; Wood v Samuels (1974) 8 SASR 465; R v Zefi; R v Jakaj [2017] SASCFC 121; (2017) 129 SASR 161, considered.

SAUTH THI v POLICE
[2025] SASC 169
Criminal: Magistrates Appeal
GRAY J:
Introduction

This matter concerns an appeal against sentence. The appellant contends that the learned Magistrate made a number of process errors in imposing sentence. The appellant contends that these errors require that the appeal be allowed, the sentence quashed, and the appellant resentenced.
The respondent concedes that there were process errors in the sentencing process and that this Court should resentence the appellant.[1] Those process errors include, inter alia, the regard that the learned Magistrate had to the victim impact statements, including regard had to uncharged acts which were referred to in the victim impact statement of the second complainant.
[1] Appeal Transcript dated 8 August 2025 (‘AT1’) at T4.19-35 and T39.17-20.
The parties differed in their submissions as to the appropriate exercise of the discretion on resentence. The appellant submitted that whilst a term of imprisonment may be imposed, the sentence should be suspended, or in the alternative, the appellant should be permitted to serve his sentence of imprisonment on home detention. The respondent submitted that on a re-exercise of the sentencing discretion a similar sentence as that imposed by the learned Magistrate should be imposed.[2]
[2] The respondent concedes that the decision of the learned Magistrate should be set aside and the sentence of imprisonment reduced to allow for time served in custody.
The learned Magistrate considered both suspension and entrance into a home detention order but deemed that good reason did not exist to warrant suspension, and that it would affect public confidence in the administration of justice if the appellant was permitted to serve the term of imprisonment on home detention. The learned Magistrate considered the appellant needed to spend time in custody having regard to the gravity of the offending. A head sentence of 13 months and 18 days’ imprisonment was imposed, with a non-parole period of 3 months, both commencing from the date of sentence.
Background and submissions
The appellant entered pleas of guilty in the Mount Barker Magistrates Court in relation to aggravated assaults against two separate complainants, whom I will refer to as the first complainant and the second complainant. Each of those offences was aggravated by virtue of the fact that the appellant was, or was formerly, in a relationship with each complainant. Two informations were before the Court containing charges against the appellant.
The first information, dated 4 March 2024, alleged five offences of aggravated assault against the first complainant. A sixth count of aggravated assault was later added. The appellant entered pleas of guilty to two counts of aggravated assault alleged to have taken place on 15 November 2021 and 26 January 2022. The remaining counts were withdrawn.[3]
[3] The factual matrix concerning the withdrawn charges was agreed to form part of the factual matrix for the two offences to which pleas were entered: see Appellant’s Written Submissions (FDN 6) (‘AWS1’) at [16].
The second information, dated 13 February 2024, charged the appellant with an offence of assault, which was subsequently amended to include a second, alternative charge of aggravated assault relating to the same conduct on 9 October 2022. A plea of guilty was entered to the aggravated assault and the basic assault was withdrawn on 16 August 2024. This offending was in relation to the second complainant.
The learned Magistrate imposed sentence on 22 May 2025. The learned Magistrate noted that the appellant’s behaviour was violent, aggressive and abusive toward the first complainant, and the appellant behaved in the same way toward the second complainant. Her Honour also took into account the uncharged acts which were withdrawn as counts against the appellant, to deprive the appellant of the leniency he may have otherwise been afforded for an isolated occasion of offending.
The learned Magistrate heard the victim impact statements of both the first complainant and the second complainant. Her Honour remarked that the complainants were terrified of the appellant and brave for reporting the matters to police, and that he had threatened both of their friends and family members. Her Honour also stated that both complainants were lucky to have left their relationships with the appellant.
The appellant submitted that a victim can place whatever matters they wish to in a victim impact statement, but it was the duty of the sentencing court to take into account only relevant matters, and to disregard anything which ought not bear upon sentence.[4] The appellant submitted that the learned Magistrate, in considering that the appellant had threatened the safety of the family and friends of the second complainant, took into account an irrelevant matter.[5]
[4] AWS1 at [61].
[5] AWS1 at [53]-[55].
In the circumstances of this case, the respondent conceded that the uncharged acts or allegations contained in the victim impact statement of the second complainant, relating to threats upon family and friends, and the perpetuation of ongoing abuse against that complainant, ought not have been taken into account by the learned Magistrate.[6] Further, it was conceded that the inclusion of what amounted to uncharged offending contained within the victim impact statement, which was not agreed between parties, in circumstances where the victim impact statement was not provided in advance to the appellant’s solicitor, was inappropriate.
Resentence
[6] AT1 at T36-9. See further PWB v The Queen [2011] NSWCCA 84; (2011) 216 A Crim R 305 at 315, [52]-[54] (RS Hulme J, Harrison J agreeing).
Submissions on resentence
The appellant submits that the sentence imposed on him was manifestly excessive in the circumstances. There appears to be no complaint as to the imposition of a term of imprisonment, rather, it was submitted that the learned Magistrate ought to have found that there was good reason to suspend the sentence. In the alternative, it is submitted there is a very strong case to order that the appellant serve the sentence of imprisonment pursuant to a home detention order. The appellant submits that any sentence imposed should be reduced by seven days taking into account time spent in custody and a further reduction should be imposed allowing for time spent on home detention bail. The appellant indicates that in the event of a term of imprisonment being imposed in excess of 12 months then a non-parole period will need to be imposed.[7]
[7] See also Sentencing Act 2017 (SA) s 47(5)(a).
The respondent submits that on resentence the sentencing discretion should be re-exercised, but that the exercise of that discretion should yield the same sentencing outcome, save for the reduction of seven days taken into account for time spent in custody.[8]
[8] The respondent accepts that it is open to the Court to give credit for time spent on home detention bail, but this is not an obligation: R v Franceschini [2015] SASCFC 116; (2015) 123 SASR 396 at 407, [42] (Nicholson J, Bampton and Lovell JJ agreeing); R v Zefi; R v Jakaj [2017] SASCFC 121; (2017) 129 SASR 161 (Kourakis CJ, Blue and Lovell JJ); Teasdale v Police (SA) [2022] SASC 64 (Blue J).
Consideration
When a process error is established, the appellate court should resentence or remit, unless the appellate court considers, having regard to the re-exercise of the sentencing discretion, that the sentence imposed by the sentencing court was appropriate, despite the presence of an error.[9] For the reasons that follow, I differ in my view as to the appropriate sentence to impose on resentence.
[9] See R v Horstmann [2010] SASC 103 at [37]-[38] (Kourakis J). See also, R v Kreutzer [2013] SASCFC 130 at [10] (Kourakis J).
I therefore must consider whether to resentence or remit the matter. In my view, it is appropriate in the interests of finality of litigation and the interests of justice to resentence the appellant.
In imposing sentence, I take into account all of the submissions referred to by the parties on resentence. I also have regard to the material provided to the Court concerning resentence. I have had regard to the Home Detention Order Suitability Report and to the evidence of the author of that report, particularly in relation to the question of the suitability of home detention.[10]
Regard to victim impact statements
[10] Home Detention Order Suitability Report dated 28 August 2025 (FDN 13). See also Appeal Transcript dated 4 & 18 September 2025 (‘AT2’) at T29-42.
A victim of an offence is entitled to have injury, loss or damage suffered as a result of an offence considered by a sentencing court before passing sentence.[11] A central matter raised at the hearing of this appeal concerns the regard that this Court should have to the victim impact statement submitted by each complainant in the lower court.
[11] Victims of Crime Act 2001 (SA) s 10(1).
A purpose of the Sentencing Act 2017 (SA) (‘the Act’) is to provide the mechanism for a voice to be given to victims in the sentencing process. In my view, this legislative intent is clear from an ordinary reading of the statutory provisions.[12] Section 16(1c) of the Act provides that a victim impact statement should be received by the Court although material contained in the statement may be irrelevant to the sentencing process. The statutory language also makes clear that nothing in the section requires a court to have regard to irrelevant material in determining sentence.[13]
[12] Victims of Crime Act 2001 (SA) s 10(1); Sentencing Act 2017 (SA) ss 14-16.
[13] See further, R v Liddy (No 2) [2002] SASC 306; (2002) 84 SASR 231 at 251-2, [65] (Mullighan J).
Section 14(1) of the Act, on an ordinary reading of the wording of that provision, read in the context of other relevant legislative provisions, indicates that, in addition to providing a voice to victims in the sentencing process, a victim impact statement may inform a sentencing court about the impact of the injury, and any loss or damage suffered by the victim as a result of a defendant’s criminal conduct on the victim and any of the victim’s family.
The purposes of a victim impact statement as described above, based upon an ordinary reading of the statutory provisions,[14] is consistent with legislative intent expressed in the second reading speech of the Honourable Kyam Maher[15] as follows:[16]
Victim impact statements give victims of crime the important opportunity to provide a sentencing court with a personal statement about the impact of injury, loss or damage suffered by them as a result of that crime. These statements may be considered by the court when determining the sentence for an offence and often have a significant restorative and therapeutic value for victims of crime.
[14] See Legislation Interpretation Act 2021 (SA) s 16(1)(a).
[15] Minster for Aboriginal Affairs, Attorney-General and Minister for Industrial Relations and Public Sector.
[16] South Australia, Parliamentary Debates, Legislative Council, 11 April 2024, 5349 (Kyam Maher, Attorney-General).
The provisions of the Act are not prescriptive as to how a victim impact statement is to be taken into account.[17] The impact of an injury, and the impact of loss or damage caused by a defendant’s criminal conduct at common law have always been regarded as relevant matters for a court to consider in the exercise of the sentencing discretion.[18] Gleeson CJ, Gummow, Hayne and Callinan JJ in Siganto v The Queen referred to:[19]
The undoubted proposition that a sentencing judge is entitled to have regard to the harm done to the victim by the commission of the crime.
[17] See further R v Thomas [2007] NSWCCA 269 at [36] (Basten JA, Latham J at [59] agreeing); Sentencing Act 2017 (SA) s 7.
[18] R v Webb [1971] VR 147 at 150-1 (Winnecke CJ, Pape and Lush JJ); R v P (1992) 64 A Crim R 381 at 384-5 (Burchett, Miles and O’Loughlin JJ).
[19] Siganto v the Queen [1998] HCA 74; (1988) 194 CLR 656 at 665-6, [29] (Gleeson CJ, Gummow, Hayne and Callinan JJ)
Those matters inform a sentencing court’s discretion concerning the gravity and impact of the criminal conduct. The legislative provisions are consistent with and do not derogate from the common law principles.[20] A sentencing court is entitled at common law to consider the damage, harm or loss occasioned to the victim, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[21] A sentencing court would generally, in imposing sentence, only have regard to the consequences of an offence that were intended or could reasonably have been foreseen.[22]
[20] Rendic v The Queen [2021] SASCA 23; (2021) 138 SASR 214, [5]-[6], [9] (Lovell JA, Kelly P agreeing). See generally Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 469-70, [19] (French CJ, Crennan and Kiefel JJ).
[21] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389 (Gibbs CJ, Mason and Murphy JJ agreeing); R v Bakewell (New South Wales Court of Criminal Appeal, Gleeson CJ, McInerney and Studdert JJ, 27 June 1996) (Gleeson CJ, agreeing with Studdert and McInerney JJ).
[22] Josefski v The Queen [2010] NSWCCA 41; (2010) 217 A Crim R 183 at 185, [3]-[4] (James J); 195, [38]-[39] (Howie J, Davies J agreeing); R v Agius [2000] SASC 259; (2000) 77 SASR 469 at 486-7, [93]-[97] (Gray J).
The matters referred to in a victim impact statement can, also, for example, inform the sentencing court about the seriousness of the offence and the appropriate nature of any conditions to be imposed, such as, a term of a bond or a condition of a home detention order.[23] Victim impact statements will, in most cases, only be relevant to the extent that they concern the factual basis upon which an offender is to be sentenced.[24] The provisions of the Act make clear that a sentencing court must receive a victim’s statement, even if the statement contains other irrelevant material.[25]
[23] See generally, as to the seriousness of the offence, R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at 366, [94] (Spigelman CJ, Wood CJ at CL, Newman, Hulme and Simpson JJ agreeing as to that matter).
[24] The Court when sentencing is not necessarily bound by the facts as the parties have agreed them. There are however, circumstances in which the requirements of procedural fairness mean that the parties should be informed of any intention to go outside of any agreed facts and be given an opportunity to deal with them: see Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593 at 606 (Kirby P); R v H [2005] NSWCCA 282 at [59] (Studdert, Bell and Latham JJ); Donnelly v Police (SA) [2014] SASC 193 at [30] (Kourakis CJ); Sentencing Act 2017 (SA) s 7.
[25] Sentencing Act 2017 (SA) s 16(1c). See generally, Porter v The Queen [2008] NSWCCA 145 at [53] (Johnson J, Bell JA and McCallum J agreeing); Miller v The Queen [2014] NSWCCA 34 at [155] (Johnson J, Harrison and Adamson JJ agreeing).

I have had regard to the impact of the injury, loss and damage suffered by both complainants resulting from the appellant’s admitted criminal conduct referred to in both complainants’ victim impact statements.
In respect of the victim impact statement made by the first complainant, I note in particular that the first complainant was in a 1-year relationship with the appellant which commenced when she was aged 16 years, and that that relationship took away her happiness and her confidence. She experienced significant fear of the appellant. Her mental health has been extremely affected as a result of the offending, and she encounters trust issues, particularly with other relationships. These issues followed her into her present relationship. The offending also left her with significant physical injuries which require ongoing treatment and continue to cause pain.
In respect of the victim impact statement made by the second complainant, I note that the offending against her led to her physically sustaining a burn and has specifically caused her great stress and fear of the appellant. The stress placed upon her has led to stress upon her family as they have tried to support her in the aftermath of the offending.
The offending
The appellant is to be sentenced for three offences of assault contrary to section 20(3) of the Criminal Law Consolidation Act 1935 (SA). Each offence is an aggravated form of the offence pursuant to section 5AA(1)(g) as each complainant was a person with whom the appellant was, or was formerly, in a relationship. The maximum penalty for each offence is three years’ imprisonment.[26] Two offences were committed against the first complainant; the first on 15 November 2021 at Andrews Farm, and the second on 26 January 2022 at Gumeracha. A third offence was committed against the second complainant on 9 October 2022 at Gumeracha.
[26] Criminal Law Consolidation Act 1935 (SA) s 20(3)(b).
The applicable maximum discount on account of the appellant’s plea of guilty is 10%.[27]
[27] AT2 at T8.15-24.
I impose sentence on the basis of the following agreed factual matrix.[28]
[28] AT2 at T11.29-12.10.
The first instance of offending against the first complainant took place at the appellant’s house in Andrews Farm on 15 November 2021.[29] The first complainant and the appellant had an argument over dinner that the first complainant had made. The appellant grabbed the first complainant around the waist, lifted her up off the ground, and threw her onto the tiled floor. She experienced pain, and she was crying as a result. The first complainant got up and pushed the appellant to get him away from her as he was standing over her but somehow, she ended up back on the ground. She was on the ground when the appellant began to kick her in the legs, hip and abdomen. The first complainant curled up into a foetal position and began to cry. She states that once she felt the kicking and pain stop, she yelled at the appellant. The appellant smashed her phone on the ground. He walked up to her and grabbed her by the hair and dragged her by the hair across the floor for about five minutes. The first complainant got up and walked away once the appellant let go. She began to pack her bag to leave. The appellant pushed her into a wardrobe door. He held her against the door to stop her from leaving but she managed to push the appellant off and leave shortly after. The first complainant experienced some bruising and sought medical treatment in relation to that bruising.[30]
[29] Appeal Book (‘AB’) at 38 (Transcript of Proceedings, Commissioner of Police v Tony Sauth Thi (Magistrates Court, MCCRM-24-008447 and MCCRM-24-005633, Magistrate Martin, 22 May 2025) at 2 (‘Magistrates Court Transcript’)).
[30] AB at 38 (Magistrates Court Transcript at 2).
The second offence against the first complainant took place on 26 January 2022. The appellant contacted the first complainant on that day to say her belongings were ready for collection from his address in Gumeracha. When she arrived the first complainant grabbed her belongings. As she was trying to leave in her car, the appellant grabbed her keys and phone and hit her in the face. This caused her lip to split and bleed.[31]
[31] AB at 40 (Magistrates Court Transcript at 4).
It was part of the agreed factual basis that the offending of 15 November 2021 and 26 January 2022 were not isolated incidents of violence. They occurred in the course of a relationship between the appellant and the first complainant, which relationship extended from at least October 2021 until February 2022 and in which there were other incidents of violence.
The offending against the second complainant occurred on 9 October 2022 at Gumeracha at the appellant’s house.[32] On that night, the second complainant argued with the appellant about her visiting friends. During the argument the appellant grabbed both of the second complainant’s arms by the wrists and pushed her towards and onto the bed in his bedroom. He then held her down. There was a heater beside the bed. It was switched on. Whilst holding her down and during the scuffle, the second complainant’s right leg hit the heater which was very painful. It caused some redness. It did not cause a big burn but there was some redness and pain. The second complainant eventually managed to push the appellant away with her free arm. She ended up on the floor on the other side of the bed. The appellant got on top of her so she could not move and pinned her with both hands on her upper chest and neck area. The second complainant struggled to breathe. She panicked and could not recall how long she was pinned down but stated “it felt like forever”.[33]
Factors in mitigation
[32] AB at 40 (Magistrates Court Transcript at 4).
[33] AB at 40 (Magistrates Court Transcript at 4).
It was submitted that there are a number of protective factors which operate to support the appellant in the future. These include his gainful employment, his lack of antecedent history, and that he enjoys a supportive family unit.
Emphasis in mitigation was placed upon the appellant’s youth and consideration that his life is ahead of him, and that this offending is a brief departure from the lifestyle he wishes to lead. Reference was also made to the passage of time since the last offending.
I am satisfied that the appellant’s youth is relevant and mitigatory. Rehabilitation should be a prominent consideration in fixing sentence for young offenders.[34] As was stated by White J in R v Schultz,[35] courts recognise that not only are the young and immature more prone to ill-considered conduct, but youthful offenders also have great potential for rehabilitation. Further, incarceration may have an impairing, rather than deterrent, effect.[36] This is particularly so in the case of a first offender.[37]
[34] R v Scott [2014] SASCFC 131 at [19] (Blue J, Nicholson and Bampton JJ agreeing).
[35] R v Schultz [2010] SASCFC 47 (White, David and Peek JJ).
[36] R v Schultz [2010] SASCFC 47 at [23]-[24] (White J, David and Peek JJ agreeing).
[37] R v Driver [2011] SASCFC 130; (2011) 111 SASR 245 at 251, [30] (Gray, Sulan and Blue JJ), citing R v Mills [1998] 4 VR 235 at 241 (Batt JA, Phillips CJ and Charles JA agreeing).
The appellant submitted that he had engaged in a course of rehabilitative treatment, namely the Abuse Prevention Program, which is run through the Courts Administration Authority. A report dated 19 May 2025 is before this Court regarding the appellant’s participation in that program.[38]
[38] AB at 31 (Abuse Prevention Program Final Report dated 19 May 2025).
The report is favourable and supports the proposition that the appellant has engaged in a course of meaningful rehabilitation. I take that matter into account. The only area of concern raised by the report is the appellant’s attendance. There are numerous instances of recorded non-attendance due to work commitments. It is important at this juncture to note that the appellant’s rehabilitation is reliant upon consistent engagement in programs, and that these programs need to take priority over work commitments.
The appellant relies upon a letter of apology to the complainants, and I take that into account.
Sentence imposed upon resentence
I impose penalties for each of the offences individually as set out below.
I consider a sentence of imprisonment is the only appropriate penalty in the circumstances of this case.
For the first in time offence against the first complainant, I impose a sentence of 4 months’ imprisonment. I reduce that by 10% on account of the timing of the plea to 3 months and 19 days’ imprisonment.
For the second in time offence against the first complainant, I impose a sentence of 5 months’ imprisonment. In my view, this sentence reflects the gravity of the escalation of the appellant’s conduct against the first complainant. I reduce that by 10% on account of the timing of the appellants plea to 4 months and 16 days’ imprisonment.
With respect to these two offences against the first complainant, in the exercise of my discretion, there should be some degree of concurrency having regard to the commonality of the victim, the conduct, and the general timeframe within which the offences were committed.[39] The two offences occurred in the context of a relationship. It was agreed that this relationship was characterised by other incidences of violence. This operates to limit the leniency that the appellant may otherwise have been afforded.
[39] See Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 93 (Wells J, King CJ and Cox J agreeing).
I direct that the sentence of imprisonment for the second offence be served concurrently with the sentence for the first offence to the extent of 1 month.
For the offence against the second complainant, I impose a sentence of 5 months’ imprisonment. The sentence of imprisonment for 5 months takes into account the matters referred to in the course of these reasons and reflects the severity of the offence which was committed against a second victim. I reduce that sentence by 10% on account of the timing of the plea to 4 months and 16 days’ imprisonment. I direct that the sentence be served wholly cumulatively on the sentences imposed above.
This results in a head sentence of 11 months and 21 days.
I reduce the head sentence by 7 days on account of time spent in custody[40] to 11 months and 14 days’ imprisonment.
[40] Between 22 May 2025 and 29 May 2025.
I then apply a further reduction in sentence of 2 months on account of time spent on home detention bail pending determination of this appeal.
This results in a head sentence of imprisonment of 9 months and 14 days.
Having regard to the principle of totality, standing back and considering the sentence as a whole, I do not find that the sentence is crushing, or that it does not reflect the overall criminality of the conduct engaged in by the appellant.[41] As a result of the sentence of imprisonment being less than 12 months, I do not fix a non-parole period.[42]
Suspension
[41] Lane v The Queen [2020] SASCFC 82 at [4]-[5] (Livesey J (Livesey and Kelly JJ agreeing with Bleby J)).
[42] Sentencing Act 2017 (SA) s 47(5)(a)(i).
The appellant submits that there is good reason to suspend the sentence pursuant to s 96 of the Act. In that regard, the appellant relies upon the appellant’s engagement in rehabilitative programs, his youth, his support network and his stable employment.
The respondent submits that the sentencing objectives of personal and general deterrence will not be met by a suspended sentence bond. It remains the position of the respondent that an immediate custodial term of imprisonment is appropriate.
Whether a sentencing court is of the view that there is good reason to suspend depends on an evaluative judgment of all of the circumstances, including both the circumstances of the offending and the circumstances of the appellant. The seriousness of the offending is also relevant in making such a determination.[43]
[43] R v Fowler [2006] SASC 18 at [33] (Perry J, Gray and Layton JJ agreeing).
The appellant comes before this Court with no criminal history. He is a first-time offender, and this matter is his first interaction with the criminal courts. He was only 19 years old and had just turned 20 at the time of the most recent offending. He is currently 23 years of age. He was and still is a young man. As I have mentioned earlier in my reasons,[44] the youth of an offender is a factor to be considered in mitigation.
[44] At paragraph [33].
I have given very serious consideration to the question of whether the sentence should be suspended. I note that a suspended sentence remains a sentence of imprisonment and a deterrent.[45]
[45] Elliot v Harris (No 2) (1976) 13 SASR 516 at 527 (Bray CJ, Bright J agreeing); Wood v Samuels (1974) 8 SASR 465 at 468 (Walters J); R v Kane [2003] SASC 237 at [41] (Debelle J, Nyland and Gray JJ agreeing).
I take into account in assessing the question of whether to suspend the sentence all of the matters put by the appellant’s counsel in support of the submission that the sentence should be suspended. I consider both matters relevant to the offence, as well as those personal to the appellant.
The offending is serious offending. It involves offences of violence against two young women.
Whilst the good reason test calls for a consideration of all of the submissions advanced by the appellant in favour of suspension, those matters are not to be considered in the abstract and divorced from the other circumstances of the case.[46]
[46] R v Fowler [2006] SASC 18 at [33] (Perry J, Gray and Layton JJ agreeing).
Having regard to the objective seriousness of this offending, involving domestic violence against two young women, together with the need for specific and general deterrence, I am, in the exercise of my discretion, even having regard to the appellant’s youth and lack of prior engagement with the criminal justice system and other matters put by his counsel, unable to find good reason to suspend his sentence.
Home detention
I then turn to consider the question of whether the sentence should be served on home detention.
The paramount consideration of a sentencing court when determining whether to make a home detention order must be to protect the safety of the community.[47] A home detention order must not be made if the making of such an order would or may affect public confidence in the administration of justice.[48]
[47] Sentencing Act 2017 (SA) s 69(2).
[48] Sentencing Act 2017 (SA) s 71(2)(a).
I have considered all of the matters referred to in the Home Detention Order Suitability Report, and the evidence of the report writer. Whilst, considering all those matters together, they were not adverse to the potential of home detention, they could not be said to have been highly favourable.
The premises at which the appellant seeks to reside upon this Court ordering the sentence of imprisonment be served on home detention is deemed suitable for electronic monitoring.[49]
[49] Home Detention Order Suitability Report dated 28 August 2025 (FDN 13).
In determining whether to impose a home detention order, I take into account all matters raised by counsel and considered above, including in the context of determining whether there was good reason to suspend the sentence.
Whilst I have in the exercise of my discretion determined that there is not good reason to suspend and that a suspended sentence bond would not meet the objectives of personal and general deterrence, and would not underscore the seriousness of the offending which the appellant committed, a home detention order may serve to meet these objectives, as well as support rehabilitation and the continuation of a lifestyle which is prosocial.
I consider that the punitive aims of sentencing, in addition to supporting the rehabilitation of the appellant and supporting a prosocial lifestyle, are met by the imposition of a home detention order. Therefore, pursuant to s 71 of the Act, I impose a home detention order with the conditions set out in the Home Detention Order Suitability Report. This includes residing at the proposed address with leave from the address permitted only at the discretion of the Department for Correctional Services, and the usual firearm conditions. I would further order that the appellant undergo any treatment or rehabilitation programs including programs to address domestic violence as reasonably directed by his supervising officer.
I also include a condition, in respect to the condition regarding treatment or rehabilitation programs, that the appellant must obey directions to attend such programs despite work commitments. Of note in the Abuse Prevention Program report was the number of absences due to work commitments. Imposition of such a condition will operate to support rehabilitation and aid in the prioritisation of rehabilitation over work.
I direct that the sentence of imprisonment and home detention order commence from today.
Conclusion and orders
The appeal is allowed.
The appellant is resentenced to imprisonment for 9 months and 14 days commencing today. The sentence of imprisonment is to be served on home detention pursuant to s 71 of the Sentencing Act 2017 (SA).