Sauth Thi v Police

Case [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…

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Sauth Thi v Police [2025] SASC 169
Case
[2025] SASC 169
Decision Date

CaseChat Overview and Summary

In the matter of Sauth Thi, the appellant, versus Police, the respondent, the Supreme Court of South Australia heard an appeal against the appellant’s sentence. The appellant had pleaded guilty to multiple counts of aggravated assault against two separate complainants, both of whom he had been in a relationship with. The Magistrate had imposed a sentence of imprisonment, which was appealed by the appellant on the basis of alleged procedural errors in the sentencing process.

The primary issue for the Supreme Court was whether the Magistrate had erred in the sentencing process by considering matters in the victim impact statements that were deemed irrelevant to the determination of an appropriate sentence. The appellant argued that while victims are entitled to have their statements heard, the court is not required to consider irrelevant content. The respondent, however, maintained that the court had the discretion to consider relevant material from the victim impact statements.

The Supreme Court found that there was an error in the sentencing process as the Magistrate had considered matters in the victim impact statements that were not relevant to the determination of an appropriate sentence. The court emphasised the legislative intent to provide a mechanism for victims to have their voices heard in the sentencing process but also noted that the court is not obligated to consider irrelevant material. Consequently, the Supreme Court determined that the sentence imposed was inappropriate given the error in the sentencing process.

The Supreme Court allowed the appeal, resentenced the appellant, and ordered that the sentence of imprisonment be served on home detention. The court concluded that it was appropriate to resentence the appellant in the interests of finality and justice, considering all submissions and material relevant to the sentencing process, including the suitability of home detention. The appellant was resentenced to imprisonment for 9 months and 14 days, commencing from the date of the resentence, to be served on home detention.

Orders

Orders of the court

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Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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).