YOUNG v POLICE [2026] SASC 42

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE CHESTER) MCCRM-23-033421, MCCRM-24-047418 Appellant: MICHAEL JOHN YOUNG Counsel: MR S MCDONOUGH - Solicitor: JON LISTER Respondent: COMMISSIONER OF POLICE Counsel: MR R GULLIVER - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 17/03/2026, 20/03/2026 File No/s: SCCRM-25-051147 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. YOUNG v POLICE [2026] SASC 42 Judgment of the Honourable Justice McDonald (ex tempore) 20 March 2026 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - OTHER MATTERS MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - OTHER MATTERS CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - SENTENCE CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - OTHER MATTERS MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION This is an appeal against a sentence imposed by a Magistrate on 13 November 2025 for two counts of driving whilst disqualified. For the first offence, the May offence, the appellant was sentenced to three months and 18 days after a 40 per cent reduction, as opposed to four months and seven days after a 30 per cent reduction. For the second November offence, the appellant was sentenced to five months and 18 days after a 30 per cent discount, as opposed to a sentence of four months and 25 days after a 40 per cent discount. This resulted in a total sentence of nine months and six days imprisonment. It was ordered that the sentence be served on home detention. These errors in the calculations were not identified when the initial grounds of appeal were filed. Shortly prior to the hearing of the appeal the grounds were amended to reflect the Magistrate erring in applying the incorrect sentencing discount to each offence. It was submitted that it was not necessary to determine the other grounds of appeal. The respondent conceded the error, and it was agreed by the parties that the appellant should be resentenced. -- 1 of 11 -- The respondent contended that the appellant should be resentenced for the limited purpose of giving effect to the correct maximum statutory discount applicable. It was submitted that the same sentence that the Magistrate imposed should be given, but with the correct discounts applied. It was further submitted that the appellant exhibited a continued disregard for his disqualification and anything other than a custodial sentence would not have the intended deterrent effect. The respondent did not oppose that sentence being served on home detention. The difficulty that arose however, was that since the time that he was sentenced the appellant had ceased to have appropriate accommodation available in which to serve a home detention sentence. He had been serving the sentence in custody, despite the order that it be served on home detention. The appellant relied on a number of personal circumstances to put the offending into proper context, such as his drug dependency, substance abuse, parental responsibilities, and physical and mental health issues. It was submitted by the appellant that the appropriate approach would be to convict him of both offences without any further penalty being imposed to reflect the time he has already served in custody. Held: 1. For the May offence, the appellant be sentenced to two months and four days imprisonment. 2. For the November offence, the appellant be sentenced to two months and 13 days imprisonment. 3. The appellant be sentenced to four months and 17 days imprisonment to commence from 13 November 2025. 4. It was not appropriate to order that the sentence be served on home detention as the Court could not be satisfied that the appellant had a suitable residence available to him (s 71(2)(c) Sentencing Act 2017 (SA)). Motor Vehicles Act 1959 (SA) ss 91(5), 91(5a); Sentencing Act 2017 (SA) ss 26(1), 71(2)(c); Road Traffic (Drug Driving and Careless or Dangerous Driving) Amendment Act 2021 (SA), referred to. Kentwell v The Queen (2014) 252 CLR 601; Police v Cadd (1997) 69 SASR 150; Police v Nissen (2014) 120 SASR 50; Measures v The Queen [2021] SASCA 82, discussed. -- 2 of 11 -- YOUNG v POLICE [2026] SASC 42 Magistrates Appeal: Criminal 1 McDONALD J (ex tempore): This is an appeal by Michael John Young against a sentence imposed by a Magistrate on 13 November 2025 for two counts of driving whilst disqualified.1 The offences were committed on 20 May 2023 and 17 November 2024. For the May offence, Mr Young was sentenced to six months imprisonment, which was reduced to three months and 18 days to take into account a 30 per cent reduction for his plea of guilty. For the November offence, Mr Young was sentenced to eight months imprisonment which was reduced to five months and 18 days to allow for a 40 per cent reduction for his guilty pleas. This amounted to a total sentence of nine months and six days, which the Magistrate ordered be served on home detention. Grounds of appeal 2 The grounds of appeal were originally:2 1. The Learned Sentencing Magistrate erred by not taking into account the material considerations of: (a) Partial concurrency; or (b) Imposing one sentence pursuant to s.26(1) of the Sentencing Act 2017 (SA); or (c) Totality. 2. The sentence is manifestly excessive. 3 Shortly prior to the hearing of the appeal, Mr Young made an oral application to amend the grounds to include: “The Learned Sentencing Magistrate erred in her process by applying the incorrect sentencing discount to each offence”.3 4 To elaborate, the complaint made by Mr Young was that whilst the Magistrate had correctly identified the correct maximum discount available for each count (and indicated that she proposed to give the maximum discount), the calculations were incorrect. 5 In relation to the May offence, as stated by the Magistrate, the maximum discount available was 30 per cent, which would result in a reduction from six months imprisonment to four months and seven days. Instead, the Magistrate arrived at a sentence of three months and 18 days which reflected a 40 per cent reduction. 1 Motor Vehicles Act 1959 (SA) s 91(5a). 2 FDN 8. 3 T38 and formally reflected in FDN 19. -- 3 of 11 -- [2026] SASC 42 McDonald J 2 6 Similarly, for the November offence, Mr Young was entitled to a 40 per cent discount, which would have resulted in a sentence of four months and 25 days. Instead, the Magistrate sentenced Mr Young to five months and 18 days, reflecting only a 30 per cent reduction. 7 The net effect was, accumulating the two sentences, that Mr Young was sentenced to nine months and eight days imprisonment, rather than the correct sentence of nine months and two days. 8 The application to amend the grounds of appeal was not opposed and, in fact, the new ground was appropriately conceded. A process error having been identified, it was accepted that it was not necessary for the Court to determine the remaining grounds of appeal and that Mr Young should be resentenced. 9 The first question that arose was whether the Court should resentence or remit the matter back for resentence before another Magistrate. It was agreed, however, that the most efficient and expeditious course would be for me to resentence Mr Young. Extension of time 10 I pause here to mention the question of an extension of time. 11 This appeal was brought out of time. Mr Young was sentenced on 13 November 2025. The notice of appeal was filed on 16 December 2025, therefore requiring an extension of time. Given the Director concedes there has been an error in the sentencing process, the extension of time is not opposed. Resentence 12 The task for this Court, having identified a specific error enlivening the power to intervene, is to resentence Mr Young, unless in a separate and independent exercise of its discretion it concludes that no different sentence should be passed. 13 As explained by the majority in the High Court decision of Kentwell v The Queen:4 As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be “warranted in law”. A sentence that happens to be within the range but that has been imposed as a result of a legally flawed determination is not “warranted in law” unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. 4 (2014) 252 CLR 601 at [42]. -- 4 of 11 -- [2026] SASC 42 McDonald J 3 14 The Court went on to elaborate:5 After having identified specific error of the kind described in House, the Court of Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentencing hearing, that a lesser sentence is the appropriate sentence for an offender and the offence. This is a conclusion that the lesser sentence is warranted in law. The result of the Court of Criminal Appeal’s independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of the appeal. 15 Accepting that as the correct approach, the Director however contended that, in the circumstances of this case, Mr Young should be resentenced for the limited purpose of giving effect to the correct maximum statutory discount applicable. That is, to impose the same sentence as the Magistrate, but applying the correct mathematical calculation. Factual background 16 Prior to the relevant offences, Mr Young had three prior convictions for driving disqualified.6 He also has a history of other driving offences. 17 On 26 November 2007, Mr Young was convicted for driving whilst his licence was suspended and was sentenced to a fine and licence disqualification. On 18 August 2017, Mr Young was convicted for driving whilst disqualified and was sentenced to six weeks imprisonment, which was suspended upon him entering into a good behaviour bond for 12 months. On 4 April 2019, Mr Young was convicted of having breached a condition of his probationary licence by driving with methamphetamine in his system, along with other driving offences. He was sentenced to a fine and a further licence disqualification. 18 Most relevantly, on 29 October 2020, Mr Young was dealt with for a number of traffic offences, including two counts of driving whilst disqualified. He was sentenced to six weeks imprisonment, which was suspended upon him entering into a good behaviour bond for 18 months. 19 On 13 September 2022, Mr Young was further convicted of two counts of driving unauthorised after a drug driving disqualification and driving under the influence of methamphetamine, for which he was fined and disqualified from driving for three years. 20 As to the two offences that are the subject of this appeal, on 20 May 2023, police stopped Mr Young as he was driving out of the driveway of a premises. 5 Kentwell v The Queen (2014) 252 CLR 601 at [43]. 6 Only the two offences the subject of this appeal were under s 91(5a). All previous convictions were recorded before s 91(5a) came into force. Nonetheless, s 91 is enlivened due to the subsequent driving offences which attract greater maximum penalties. -- 5 of 11 -- [2026] SASC 42 McDonald J 4 There is no dispute that Mr Young knew that he was disqualified from driving. He told police that the reason for driving was to purchase methamphetamine. 21 On 17 November 2024, Mr Young was observed by police driving into a shopping centre car park. On this occasion, his explanation for driving was that he was collecting a pizza. 22 There has been no suggestion that either episode of driving was anything other than contumacious. 23 Submissions were made at first instance about Mr Young’s background and personal circumstances. Those submissions were adopted on this appeal, to put the offending into proper context. These were as follows:7 a. In relation to the offending on 30 May 2023, the appellant drove his ex- partner’s car to purchase drugs. At the time of this offending he had developed a significant drug dependency to cannabis and methamphetamine. b. When under the influence of drugs and/or experiencing drug cravings, his desire to obtain drugs outweighed the consequences of his actions. c. In relation to the offending on 17 November 2024, the appellant made a very foolish decision in driving on this occasion to collect food for his family. d. Dr Lim’s report demonstrates that he had a dysfunctional childhood characterised by poor role-modelling and neglect by adult caregivers. e. He developed a significant substance abuse against this background starting as early as 10 with alcohol consumption, cannabis from 12 years and methamphetamine usage commencing at 15 years. f. Despite leaving school at year 9 level, and his drug dependency, he has managed to hold down employment up until he was the victim of a serious assault in 2017. g. He first worked for Scotch Transport as a casual packer/offsider for four years which is where he obtained a forklift licence. Then over next 15 years he worked as a storeman or forklift driver for various companies. h. He has five children from two different relationships. i. He is currently residing with his ex-partner who is the mother of his youngest child, his son who is five. He helps her around the house and 7 FDN 11. -- 6 of 11 -- [2026] SASC 42 McDonald J 5 helps with his share of parental responsibilities. He is in receipt of Newstart. j. His 20 year old daughter is also living with them as well as his ex- partner’s adult child. He has been supporting his daughter for the last few months who suffers from bi-polar disorder and has a history of suicide attempts and hospitalisation. k. In 2017 the appellant was the victim of a serious assault where he was stabbed multiple times in the neck, chest and arm by his step-brother with whom he was living at the time. l. He was hospitalised due to those injuries. Dr Lim formed the view he has developed PTSD of a moderate to severe level as a result of the stabbing and he was still suffering from that condition at the time of her assessment last year. m. He was also the victim of a hit and run in 2019 during which he sustained a broken leg. n. Those incidents have had a significant impact on him in that they have not only impacted his mental health, they have left him unable to work due to physical and mental injuries. o. It was accepted that the appellant has a poor criminal history and, in particular, a poor driving history. 24 It was the Director’s submission that, despite Mr Young’s personal circumstances, these are relatively serious offences of their type, particularly given the lack of a reasonable explanation for why Mr Young was driving. In particular, it was submitted that, in relation to the May offence:8 …driving in contravention of a disqualification to obtain illicit drugs is amongst the poorest of reasons conceivable, particularly against the appellant’s background of continued drug use…this places the May 2023 offence at the higher end of the seriousness for an offence of this type. 25 Similarly, the November offending exhibited a continued disregard for Mr Young’s disqualification and was of all the more concern because, at that time, he had already been charged with the May offence. 26 It was submitted by the Director that any scope for leniency was further reduced by the fact that Mr Young had already had the benefit of receiving a suspended sentence for driving whilst disqualified in 2017, 2019 and 2020, each of which did not appear to have the desired deterrent effect. 8 FDN 23 at [16]. -- 7 of 11 -- [2026] SASC 42 McDonald J 6 Consideration 27 There is no dispute that, given Mr Young’s criminal history and, in particular, his three prior convictions for driving disqualified, the only appropriate penalty is one of imprisonment. There is also no challenge to the Magistrate’s decision to order that the sentence be served on home detention. Events since then, however, have overtaken the decision to make that order. 28 I have been advised that after Mr Young had spent almost one month on home detention, he was charged with the offence of assault. As that allegation involved Mr Young’s housemate, he lost his place of residence and had no other suitable accommodation available to him, in which to serve a home detention sentence. Consequently, since that time, Mr Young has been serving his sentence in custody, despite the order that it be served on home detention. This has resulted in Mr Young, to date, serving one month of his sentence on home detention and just over three months in custody. 29 It was Mr Young’s submission that, in all of the circumstances, the appropriate approach would be to convict him of both offences without any further penalty being imposed, to reflect the time that has already been served. 30 In my view, that is not an appropriate course to adopt. It is important that there is a record and an understanding of the sentence that the Court has imposed for these offences. That outcome is best achieved by fixing a new sentence and backdating the commencement of that sentence to 13 November 2025. 31 There is no tariff for the offence of driving disqualified. 32 General deterrence is a central sentencing consideration for the offence of driving disqualified, particularly so for recidivist offenders, for the reasons provided by Kourakis CJ in Police v Nissen:9 It can generally be inferred that a person who drives when disqualified, or whilst holds a suspended licence, after having been convicted of an earlier offence, has contempt for or, at least, a dismissive attitude to orders of disqualification of suspension. A subsequent offender is unlikely to benefit from a rehabilitative sentence and personal deterrence will have a relatively greater part to play in framing his or her sentence. 33 In Measures v The Queen,10 the Court of Appeal, comprising of Livesey JA (as he then was) and Bleby JA, canvassed the authorities concerning the offence of driving disqualified, the appropriate sentencing approach to be adopted, and the sentences imposed in those cases. I can do no better than quote in full the summary provided in that judgment:11 9 (2014) 120 SASR 50 at [29]. 10 [2021] SASCA 82. 11 Measures v The Queen [2021] SASCA 82 at [17]-[26]. -- 8 of 11 -- [2026] SASC 42 McDonald J 7 In Police v Chilton and Police v Nissen, the Full Court reviewed the guidance given by the bench of five Judges in Police v Cadd when sentencing for driving whilst disqualified. It will be recalled that in Police v Cadd Doyle CJ explained that it was “not possible to give precise guidance” on questions such as when imprisonment was appropriate, the length of the term of imprisonment, or whether the term of imprisonment should be suspended. Nonetheless, in the ordinary case of contumacious driving whilst disqualified, a sentence of imprisonment was said to be appropriate. In Police v Cadd, there were a number of prosecution appeals before the Court. The sentences ranged from seven days (which was said to be inadequate for a subsequent offence) to a sentence of six weeks which seemed, at least to Doyle CJ, to be “too heavy” and the decision to suspend did “not appear to be warranted”. In Police v Chilton, the offender had two prior convictions for driving whilst disqualified. His previous offences had been dealt with by way of suspended or partially suspended sentences. A sentence of imprisonment of six weeks as imposed by a Magistrate was reinstated. In Police v Nissen, the offender had three prior convictions for driving whilst disqualified and he fell to be sentenced for his fourth and fifth offences. The previous offending had been dealt with by way of a fine followed by two suspended sentences. The fourth offence of driving whilst disqualified was committed whilst driving in a manner dangerous involving a police pursuit. The fifth offence was committed together with an offence of breaching bail. The Full Court overturned a 12-month supervised bond which had been imposed for the fourth and fifth offences (28 days having been spent in custody) and imposed a “moderate” sentence of six weeks imprisonment for the fourth offence and 12 weeks for the fifth offence. In R v Darling, the Court of Criminal Appeal upheld a sentence of eight months’ imprisonment (reduced from one year) for driving whilst disqualified in conjunction with a serious firearms offence. This was the offender’s seventh conviction for driving whilst disqualified, two of which had been connected to offences of driving dangerously to escape police pursuit. The two most recent prior offences had resulted in imprisonment for seven months (together with other offences) and six weeks, respectively. Whilst one or more members of the Court might have imposed a lesser sentence, the sentence was found not to be outside the ambit of the sentencing Judge’s discretion given the “appalling driving record [showing] a high degree of contempt for the law”. In Sabato v The Queen, this Court found that sentences of six months and eight months, respectively, for driving whilst suspended were manifestly excessive. Whilst it is a little unclear, it would appear that the offender had a minimum of six prior offences before the offences the subject of sentence. On resentence, the Court adopted starting points of two months and three months for the 8 April 2020 and 8 June 2020 offences, respectively. It may readily be accepted that general deterrence is an important sentencing consideration when addressing offences of driving whilst disqualified. It follows that, in most cases, absent a compelling reason for driving, the offending will usually be regarded as contumacious. That is why it is often appropriate, even with a first offender, to consider a sentence of imprisonment. Whether that sentence should be suspended or ordered to be served on home detention will depend upon the particular circumstances of any case. Where there are repeated offences, disclosing a persistent disregard for the law, offenders may readily expect sentences to become longer. Whether suspension or home detention are -- 9 of 11 -- [2026] SASC 42 McDonald J 8 appropriate for subsequent offending will depend upon the particular circumstances of any case. They may well be problematic in the case of repeated contumacious offending. However, the length of a sentence, even in the case of repeated offending, must still be determined having regard to the available maximum and the general course of authority. (Footnotes omitted) 34 I have had regard to the range of sentences that were the subject of discussion in Measures, however, I note that each of those sentences predated the Road Traffic (Drug Driving and Careless Or Dangerous Driving) Amendment Act 2021 (SA), which increased the maximum penalty for “subsequent offences” of driving disqualified,12 from two years imprisonment to three years imprisonment. 35 Taking all that has been put before me into account, I have arrived at a sentence of three months imprisonment for the May offence. That will be reduced by 30 per cent to take into account the guilty plea, to arrive at a sentence of two months and four days. 36 For the November offence, I sentence Mr Young to four months imprisonment with a 40 per cent guilty plea reduction. That results in a sentence of two months and 13 days imprisonment. 37 I have turned my mind to the question of concurrency. Given that the two offences are separate incursions into criminal offending, temporally disconnected, there is no proper basis for concurrency. The same considerations result in a conclusion that there is no proper basis to impose one sentence pursuant to s 26(1) of the Sentencing Act 2017 (SA). 38 I have also considered the issue of whether there should be any further reduction of the sentence based upon the principle of totality. Standing back and considering the overall sentence arrived at, this is not a case in which the sentence looks “wrong”. Considering the totality of the criminal behaviour in question, the sentence arrived at is a proper reflection of all of those matters that the Court is required to take into account and it cannot be said to be in any way disproportionate to Mr Young’s offending and personal circumstances. 39 The sentence of the Court is, therefore, that Mr Young will be sentenced to four months and 17 days imprisonment to commence from 13 November 2025. 40 Had the option of home detention been open, like the Magistrate, I would have ordered that the sentence be served on home detention conditions. 12 The amendment created two categories of offences. Those by which a person’s licence had been suspended under the Fines Enforcement and Debt Recovery Act 2017 (s 91(5)), and all other suspensions (s 91(5a)), s 91(5) offences retained the same penalty of six months imprisonment for a first offence and two years imprisonment for a subsequent offence. For an offence pursuant to s 91(5a), the penalty for a first offence was increased to 12 months imprisonment and for a subsequent offence, three years imprisonment. -- 10 of 11 -- [2026] SASC 42 McDonald J 9 41 However, s 71(2)(c) of the Sentencing Act 2017 (SA) provides: A home detention order must not be made unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place. 42 It follows that a suitable address must be nominated. Mr Young has no address available to him. It is, therefore, not open to the Court to order the sentence be served on home detention. -- 11 of 11 --