PRESLEY v COMMISSIONER OF POLICE [2026] SASC 85

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE OATES) MCCRM- 25-045516 Appellant: DANIAL JOHN PRESLEY Counsel: MS R JONES - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Respondent: COMMISSIONER OF POLICE Counsel: MS F LINALE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 09/06/2026 File No/s: SCCRM-26-013308 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) 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. PRESLEY v COMMISSIONER OF POLICE [2026] SASC 85 Judgment of the Honourable Justice McIntyre (ex tempore) 9 June 2026 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE This is an appeal against sentence. The appellant plead guilty in the Magistrates Court of South Australia to aggravated assault and a breach of intervention order; both committed on 5 November 2025. Following a reduction for the pleas of guilty, the appellant was sentenced to six months and nine days imprisonment for the aggravated assault and sentenced to one year and 14 days imprisonment for the breach of intervention order. The sentences are to be served concurrently with a non-parole period of nine months. The appellant contends that the sentence and non-parole period are manifestly excessive. It is further said that the learned Magistrate erred in failing to consider home detention. The respondent contends that the sentences were not unreasonable or plainly unjust and that the sentence was open to the learned Magistrate. Further, it is said that the sentencing remarks indicate that the learned Magistrate considered, but discounted, home detention as an appropriate penalty. Held: Appeal dismissed. Criminal Law Consolidation Act 1935 (SA) s 20(3); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2aa)(b), referred to. House v King (1936) 55 CLR 499; Trott-Dan v The King [2023] SASCA 2; Playford v Police [2017] SASC 26; Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108; R v Dell (2016) 126 SASR 571; Hird v The King [2025] SASCA 104, considered. -- 1 of 6 -- -- 2 of 6 -- PRESLEY v COMMISSIONER OF POLICE [2026] SASC 85 Single Judge Appeal: Criminal McIntyre J. Introduction 1 The appellant appeals against the sentence imposed in the Magistrates Court on 10 March 2026 for aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) and contravention of an intervention order contrary to s 31(2aa)(b) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The grounds are that: 1. the sentence is manifestly excessive; 2. the non-parole period is manifestly excessive; and 3. the Magistrate erred in failing to consider home detention. 2 For the reasons that follow, I dismiss the appeal against sentence. Background and sentence 3 By way of background, the victim was the domestic partner of the appellant at the time of the offending or shortly prior to. They had been in an on and off relationship for four to five years with each other. They have no children together. 4 The background of this particular offending is summarised in the learned trial Magistrate’s sentencing remarks but, at about 9:00am on Wednesday, 5 November 2025, the victim was sitting in the back garden of her home having a coffee when the appellant attended, entering the garden via an unlocked side gate. The victim told police that she had not had contact with the appellant for about two to three months. The victim said she questioned the appellant as to why he was there and he then walked towards her. She felt fearful given his aggressive demeanour and she cowered by a nearby hot water system. She was crouched, holding her arms above her head to protect herself. The appellant was verbally abusive towards her and stood close to her. She could see the appellant’s feet and a clenched right fist while she was crouched down. The victim raised her head upwards and was punched once to the face, around the nose and mouth area. She started bleeding from her nose and mouth. She screamed for help, but no one came. The appellant sat on the porch and the victim walked past, stating she needed to go inside the house to wash the blood from her hands. She entered her house and locked the door, leaving the appellant outside. The appellant eventually left the residence via the side gate. 5 The matter was reported to the police. When questioned by police at the time of his arrest on 6 November 2025, the appellant made full and frank admissions. He -- 3 of 6 -- [2026] SASC 85 McIntyre J 2 said that he had consumed methamphetamine and marijuana the night before and that he thought the victim was another person he knew. 6 The appellant entered pleas of guilty to both charges and the learned Magistrate sentenced the appellant as follows: • For count 1: a term of imprisonment of six months and nine days, to be served concurrently with the sentence of imprisonment imposed on count 2. The period of imprisonment imposed for count 1 was the result of a notional sentence of nine months being reduced by 30 percent as a result of the guilty plea entered by the appellant. • For count 2: a term of imprisonment of one year and 14 days. The period of imprisonment imposed for count 2 was the result of a notional sentence of 18 months being reduced by 30 percent as a result of the guilty plea entered by the appellant. • The learned Magistrate imposed a non-parole period of 9 months. 7 Both the head sentence and the non-parole period were backdated to the date the appellant was taken into custody on 6 November 2025. The applicable appellate principles are not in dispute. The appeal is by way of a rehearing. A decision to impose a particular sentence, including whether or not to record a conviction, involves a discretionary decision. The usual principles governing appeals against discretionary decisions apply. Intervention is only justified upon identification of error in the House v King1 sense, including where a sentence is unreasonable or plainly unjust. Once a process error has been demonstrated, the Court may exercise discretion in the sentence afresh. It is conceded by the appellant that there is no precise error identified other than the contention that there is an outcome error of manifest excess. Ground 1 – Manifest excess 8 I will deal first with ground 1, the question of manifest excess of the head sentence. The appellant submits that the notional starting points adopted by the sentencing Magistrate were too high and overstated the objective seriousness of the offending. The conduct involved a single punch was brief and caused limited injury. It is further said that the sentencing Magistrate placed excessive weight on the appellant’s criminal history, possibly misapprehending aspects of it, and insufficient weight was given to mitigating factors including mental health concerns, early admissions and the guilty plea. 9 Whilst I accept that the learned Magistrate's comments concerning the criminal history at page 2 of his remarks are somewhat opaque, it is clear that in context there is no double-counting of offences and, accordingly, I do not consider 1 (1936) 55 CLR 499. -- 4 of 6 -- [2026] SASC 85 McIntyre J 3 that the learned Magistrate misapprehended the relevant aspects of the appellant's criminal history. 10 Further, I do not accept that the sentence was manifestly excessive. First, the offending must be assessed in its proper context. It was an incident of domestic violence, committed against a former partner in breach of an intervention order. Courts have repeatedly emphasised the seriousness of such offending and the need for deterrent sentencing responses. 11 Second, the appellant’s antecedents are significant. This offending represented a third conviction for aggravated assault against the same victim; and a third conviction for breaching an intervention order imposed for her protection. This pattern demonstrates persistence and a disregard for prior court orders. The Magistrate did, and was entitled to, treat those matters as materially aggravating. 12 Third, whilst the episode involved a single blow, it was unprovoked, inflicted upon a vulnerable victim, caused injury and occurred after the appellant entered the victim’s property despite the existence of a protective order. 13 Fourth, the Magistrate allowed an appropriate discount for the guilty plea and considered the contents of a pre-sentence report. There is no suggestion evident on the sentencing remarks that relevant mitigating factors were ignored. 14 Finally, the submission that the sentence is inconsistent with prior sentences imposed on the appellant carries little weight. The escalation of the penalties in response to repeated offending is neither unusual nor erroneous. 15 The sentence imposed cannot be characterised as outside the permissible range. No error of principle or outcome is established. I dismiss this ground of appeal. Ground 2 – Non-parole period 16 In relation to ground 2, the appellant submits that the non-parole period of nine months is excessive, particularly given that he is not a serious repeat offender and this non-parole period approaches the proportion applicable for such offenders. I accept that there is no statutory minimum non-parole period available and that the non-parole period represents is at the higher end of the scale. It is, however, within an accepted range in cases where no statutory minimum applies.2 Further, the same features relevant to the head sentence justify the non-parole period, specifically: • repeated offending against the same victim; • breach of court orders, including intervention orders; and 2 Trott-Dan v The King [2023] SASCA 2. -- 5 of 6 -- [2026] SASC 85 McIntyre J 4 • the need for personal and general deterrence in domestic violence matters. 17 The non-parole period is not manifestly excessive and I dismiss this ground of appeal. Ground 3 – Failure to consider home detention 18 In relation to ground 3, the appellant argues that home detention was an available sentencing option and that the Magistrate failed to consider it, as evidenced by the absence of any reference to it in the sentencing remarks. It is said that this constitutes a failure to consider a relevant alternative to imprisonment. I do not accept that this error has been demonstrated. 19 Sentencing remarks in the Magistrates Court, particularly when delivered ex tempore, are not to be scrutinised with undue technicality.3 A failure to explicitly refer to a particular sentencing option does not necessarily establish that it was not considered. Here, the Magistrate concluded that “a term of imprisonment is the only appropriate penalty”. That conclusion, in context, indicates that alternative dispositions were considered and rejected. 20 The appellant’s history reveals repeated breaches of court orders and escalating domestic violence. In those circumstances, the objectives of denunciation, deterrence and protection of the community were properly given primacy. 21 Even if it were accepted that the Magistrate did not expressly consider home detention, I am satisfied that such an order would not have been appropriate in the circumstances of this case, as it is a significantly less serious form of punishment.4 This is so, given: • the seriousness of the offending; • the persistent non-compliance with court and intervention orders; and • the need to maintain public confidence in the administration of justice. 22 A sentence of imprisonment to be served in custody was plainly open and appropriate. No material error is established, and, in any event, no different sentence would be imposed. Accordingly, I dismiss this ground of appeal. 3 Playford v Police [2017] SASC 26; Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108. 4 R v Dell (2016) 126 SASR 571 at [57]; Hird v The King [2025] SASCA 104 at [41]. -- 6 of 6 --