LONG v POLICE (SA) [2026] SASC 94
On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SMART)
MCCRM-23-017920
Appellant: ADRIAN LONG In Person Counsel: MR B ARMSTRONG - Solicitor: NORTH EAST
LAWYERS
Respondent: COMMISSIONER OF POLICE (SA) In Person Counsel: MISS R ANDERSEN -
Solicitor: CROWN SOLICITOR (SA)
Hearing Date/s: 24/10/2026
File No/s: SCCRM-25-013159
B
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
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LONG v POLICE (SA)
[2026] SASC 94
Judgment of the Honourable Justice Gray
22 June 2026
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
Following a trial in the Magistrates Court, the appellant was convicted of two counts of indecent
assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). The offending occurred
on 16 October 2022 against a single complainant in the course of an evening that began at a 30th
birthday party. The first count concerned the appellant pinching the complainant’s breasts. The
second count concerned the appellant placing his hand on the complainant’s upper thigh between her
legs, while travelling in an Uber. The appellant did not give evidence. The defence case was that
the touching the subject of the first count occurred inadvertently in the context of a group hug, and
that the touching the subject of the second count, whilst it occurred, was not in circumstances of
indecency. The learned Magistrate found the appellant guilty of both counts and imposed a single
penalty pursuant to s 26 of the Sentencing Act 2017 (SA) of imprisonment for 12 months with a non-
parole period of 6 months.
The appellant appeals against conviction, contending that the learned Magistrate failed to give
adequate reasons, that the reasoning of the learned Magistrate was inadequate in that the foundations
for his Honour’s findings were not adequately exposed, and that the learned Magistrate failed to give
consideration, or adequate consideration, to the defence case.
The appellant appeals against sentence, contending that the sentence was manifestly excessive, that
the learned Magistrate erred in failing to order that the sentences in respect of the two counts be
served concurrently or partially concurrently, that the learned Magistrate failed to apply the principle
of totality, and that the learned Magistrate erred in the assessment of the objective seriousness of the
offending.
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Held, dismissing the appeal against conviction and the appeal against sentence:
(1) The reasons of the learned Magistrate, read as a whole, adequately disclosed the basis upon
which the appellant was found guilty and the resolution of the factual and evidential disputes.
The learned Magistrate was not bound to refer to every matter, and the reasons do not support
the contention that the learned Magistrate did not view the video recording of the interview
or that the defence case was not addressed. [20]-[27]
(2) The learned Magistrate’s reasons indicate that the learned Magistrate made a finding of
reckless indifference in accordance with s 47(b) of the Criminal Law Consolidation Act 1935
(SA). The use of the word ‘either’ in the reasons did not establish that the finding was not
properly made. [33]-[38]
(3) The learned Magistrate was entitled to, and did, have regard to the evidence of the
complainant’s distress only for permissible purposes. No error is established in the use of that
evidence. [41]-[43]
(4) It was open to the learned sentencing Magistrate to find that the offending, viewed in totality,
was not at the lower end of the range. No process error is shown in sentencing including in
the approach to concurrency or totality. The sentence was not manifestly excessive. [51]-[56]
Criminal Law Consolidation Act 1935 (SA) ss 47 and 56; Magistrates Court Act 1991 (SA) ss 9 and
42; Sentencing Act 2017 (SA) ss 9, 10, 11, 26 and 71; Sentencing (Suspended and Community Based
Custodial Sentences) Amendment Act 2019 (SA), referred to.
DL v The Queen (2018) 266 CLR 1, applied.
Police v Long [2025] SAMC 26, discussed.
Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; Gately v The Queen (2007) 232
CLR 208; R v BEC [2023] QCA 154; R v Copeland (No 2) (2010) 108 SASR 398, considered.
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LONG v POLICE (SA)
[2026] SASC 94
Magistrates Appeal: Criminal
1 GRAY J: The appellant raises three grounds of appeal concerning the appeal
against conviction and four grounds of appeal concerning the appeal against
sentence.1
2 Grounds 1, 2 and 3 concern the appeal against conviction. It is contended in
grounds 1 and 2 that the learned Magistrate failed, in a number of ways, to give
adequate reasons and that the reasoning of the learned Magistrate was inadequate
in that the foundations for his Honour’s findings were not adequately set out.
Ground 3 contends that the learned Magistrate failed to give consideration, or
adequate consideration, to the defence case. 2
3 The appeal against sentence raises the grounds of manifest excess, and that
there was error in failing to order that the sentences in respect of Counts 1 and 2
be served concurrently or partially concurrently. The learned Magistrate is said to
have failed to apply the principle of totality. The learned Magistrate is also said to
have erred in his assessment of the objective seriousness of the offending.3
4 The respondent contends that the learned Magistrate adequately reasoned to
a finding of guilt beyond reasonable doubt, and in doing so, adequately revealed
his decision-making process.4 In relation to the appeal against sentence, the
respondent contends that the learned Magistrate was entitled to and did consider
the seriousness of the offending, the lack of contrition and remorse demonstrated
by the appellant’s not guilty plea, and the impact upon the victim. Further, the
learned Magistrate properly had regard to the need to give effect to the principles
in ss 9, 10 and 11 of the Sentencing Act 2017 (SA) and the need to give effect to
general deterrence.5 The respondent submits that the sentence was within the
applicable range of sentences for offending of this nature and that the penalty
imposed was not manifestly excessive and no error has occurred in the sentencing
process.6
1 Adrian Long, ‘Amended Appeal Grounds’, SCCRM-25-013159, 19 September 2025 (FDN 13)
(‘Amended Appeal Grounds’).
2 Grounds 1.3 and 4, which concern the issue of the appellant’s intoxication, are not pressed: see, Adrian
Long, ‘Written Submissions of Appellant’, SCCRM-25-013159, 10 June 2025, at [46] (FDN 4)
(‘Appellant’s Written Submissions’); Commissioner of Police, ‘Written Submissions of the
Respondent’, SCCRM-25-013159, 17 June 202, at [40] (FDN 8) (‘Respondent’ Written Submissions’).
Ground 1.5 was abandoned during oral submissions in the appeal: see, Transcript 51.11–19.
3 See Amended Appeal Grounds (n 1), Grounds 5–8.
4 Respondents Written Submissions, at [48].
5 Commissioner of Police, ‘Supplementary Written Submissions of the Respondent’, SCCRM-25-
013159, at [38] (FDN 16) (‘Supplementary Written Submissions of the Respondent’).
6 Supplementary Written Submissions of the Respondent (n 6), at [39]-[40].
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[2026] SASC 94 Gray J
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5 For the reasons that I articulate below, I would dismiss both the appeal
against conviction and the appeal against sentence.
Background
6 The appellant was tried in relation to two counts of indecent assault. Both
counts occurred on the same evening and against the same complainant.
7 The prosecution case was based upon the evidence of the complainant (KH)
and her fiancé, whom I will refer to as MF. KH’s evidence was that on the 16th of
October 2022 she was attending a 30th birthday party at B. Social. The facts giving
rise to the first count involved an incident where the appellant approached KH and
pinched her nipples with both hands.7 The facts giving rise to the second count
involved an incident in an Uber following the event. The appellant is alleged to
have pulled KH’s dress up and placed his hands in the gap between her thigh and
vaginal area.8 The evidence of KH was that the appellant held his hand there for
‘most of the duration of the drive’.9
8 KH also gave evidence that prior to the acts giving rise to the two counts, the
appellant had engaged in a conversation with her about women with whom he was
having sexual relations. KH’s evidence was that this conversation made her feel
uncomfortable and it was not a subject that she would usually discuss with the
appellant.10 KH also gave evidence that early in the evening the appellant had
placed his arm around her and said in a joking manner that she was his girlfriend.11
9 The prosecution called evidence from MF who is the fiancé of the
complainant. MF’s evidence was that he was also attending the 30th birthday party
in Oakden and was present in the front seat of the Uber when the second indecent
assault occurred. MF gave evidence that during the Uber ride the appellant, who
was seated in the rear of Uber with the complainant, told MF to ‘look forward’ on
multiple occasions.12 MF also gave evidence that later in the evening, KH told him
that the appellant had ‘put his hand up near her crotch area and that he had been
grabbing her breasts over the course of the night’.13 MF’s evidence was that prior
7 See Transcript of Proceedings, Police v Long (Magistrates Court, MCCRM-23-017920, Magistrate
Smart, 19 November 2024) T4.
8 See Transcript of Proceedings, Police v Long (Magistrates Court, MCCRM-23-017920, Magistrate
Smart, 19 November 2024) T10.
9 See Transcript of Proceedings, Police v Long (Magistrates Court, MCCRM-23-017920, Magistrate
Smart, 19 November 2024) T12.
10 See Transcript of Proceedings, Police v Long (Magistrates Court, MCCRM-23-017920, Magistrate
Smart, 19 November 2024) T3.
11 See Transcript of Proceedings, Police v Long (Magistrates Court, MCCRM-23-017920, Magistrate
Smart, 19 November 2024) T3.
12 See Transcript of Proceedings, Police v Long (Magistrates Court, MCCRM-23-017920, Magistrate
Smart, 19 November 2024) T48.
13 See Transcript of Proceedings, Police v Long (Magistrates Court, MCCRM-23-017920, Magistrate
Smart, 19 November 2024) T51.
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[2026] SASC 94 Gray J
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to the complainant telling him this, the complainant was visibly upset and kept
saying that she felt ‘dirty’.14
10 The appellant did not give evidence and did not adduce any evidence as part
of the defence case. The defence case with respect to Count 1 was that the touching
occurred inadvertently in the context of a group hug. The defence case with respect
to Count 2 was that there was touching in the Uber, but it was not in circumstances
of indecency. The appellant provided his explanation of events in a recorded
interview with police. Following a voir dire, part of this evidence was admitted.
The admitted evidence contained the appellant’s account of events both in regard
to count 1 and count 2.
Grounds 1.2 and 3
11 Ground 1.2 complains that the learned Magistrate’s reasons failed to expose
whether and in what manner the appellant’s record of interview with South
Australian Police was deployed. The further complaint (Ground 3) is that the
learned Magistrate erred in failing to give consideration, or adequate consideration,
to the defence case.
12 As stated above, following a voir dire hearing, the Crown was permitted to
lead evidence of the appellant’s participation in an interview with police in an
edited form.15 At the trial, the Crown tendered a copy of the video record of
interview, and provided an accompanying transcript (as an aide memoire).16
13 I have reviewed both the video of the record of interview in its entirety, and
I have had regard to the particular time stamps to which counsel have directed my
attention. I have also had regard to the accompanying transcript which I have used
as an aide memoire. What can be seen from the interview is that the appellant’s
case in respect of the first count was that there was a group hug. The appellant
indicated that accidental touching may have occurred in the context of that group
hug.17 With respect to the second count, in the interview the appellant indicated
that he did put his hand on the upper thigh of the complainant. At trial, the
appellant submitted that the interaction was within the bounds of normal social
interaction and there was a denial of circumstances of indecency.
14 The first complaint in relation to the learned Magistrate’s reasons is that the
reasons fail to expose if and how the appellant’s record of interview with South
Australian Police was deployed. The appellant refers to the learned Magistrate’s
reasons in which his Honour stated:18
14 See Transcript of Proceedings, Police v Long (Magistrates Court, MCCRM-23-017920, Magistrate
Smart, 19 November 2024) T50.
15 Reasons for Ruling on voir dire, Police v Long (Magistrate Smart, 13 August 2024); Exhibit R1.
16 See Transcript of Proceedings, Police v Long (Magistrates Court, MCCRM-23-017920, Magistrate
Smart, 19 November 2024) T63.2-63.4.
17 See Exhibit P1 (record of interview with South Australian Police).
18 See Police v Long [2025] SAMC 26, at [109]; Adrian Long, ‘Appeal Book’, SCCRM-25-013159, 19
June 2025, at 27 (‘AB’).
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[2026] SASC 94 Gray J
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A copy of the defendant’s transcript of interview with police was tendered by consent (see
P1). I have taken into account what the defendant told police although I note it was not
said under oath or subject to cross-examination.
15 The appellant complains that there is no further reference to the appellant’s
record of interview in the learned Magistrate’s reasons and contends that there is
nothing in that paragraph which suggests that the learned Magistrate had regard to
the audio visual record as opposed to having regard to the transcript of the recorded
interview which was provided as an aide memoire.19 The appellant refers to the
decision in R v BEC, in which Mullins P, Livesey AJA and Callaghan J held:20
The difference between written and video evidence is reflected in the difference between
the conveyance of information in writing and the conveyance of the same information,
supplemented by seeing the witness convey that information. The playing of the video
recording is apt to convey much more information than the printed words on a page because
it permits the jury to see the way in which the evidence was given, enabling the demeanour
of the witness to be assessed. Indeed, in most cases the video recording of the complainant
giving evidence, rather than the bare information conveyed by a transcript of it, will be
particularly important. As was recognised in Gately v The Queen reading or hearing the
reading of a s 93A statement cannot be equated to watching a video recording of a witness
giving evidence. Less information is conveyed. In some cases, the written statement may
not appear as compelling as the video recording.
16 The appellant contends that there is a qualitative difference between the
written word and the spoken word. Further, the appellant contends that it would
appear that the learned Magistrate only considered the transcript of the interview,
and this marks a fundamental defect in the consideration of the defence case. The
appellant contends that it cannot now be known what difference a consideration of
the interview according to law would have made to the outcome.
17 The second aspect of the appellant’s complaint in relation to these grounds is
that when the whole of the reasons are considered, it cannot be understood how
the learned Magistrate brought to account what the appellant told the police, what
the learned Magistrate understood the appellant to have told the police, and what,
if any, adjustment in approach was made because the words of the appellant were
not given on oath or under cross-examination and how the learned Magistrate
balanced the burden and onus of proof with any adjustment in that context.
Further, it is contended that the learned Magistrate did not explain how and in what
way he used aspects of the interview to assess aspects of the complainant’s
credibility.
18 The respondent submits that it was inherent in the learned Magistrate’s
findings that he took the record of interview into account, and that in finding the
complainant to be credible and reliable and accepting her evidence beyond
reasonable doubt,21 the learned Magistrate rejected the accused’s assertions of
19 See Amended Appeal Grounds (n 1), Ground 3.
20 [2023] QCA 154 at [141] (Mullins P, Livesey AJA and Callaghan J); see also Gately v The Queen
(2007) 232 CLR 208; see also Butera v The Director of Public Prosecutions (Vic) (1987) 164 CLR 180.
21 Police v Long [2025] SAMC 26, at [149].
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[2026] SASC 94 Gray J
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innocence as provided for in the record of interview. The respondent contends that
the learned Magistrate made plain the basis upon which he found the accused guilty
of both counts. Further, the respondent points to the manner in which the learned
Magistrate correctly directed himself as to the relevant onus stating:22
The onus of proving the charge remains on the Crown throughout beyond a reasonable
doubt. Each element of each offence must be established beyond a reasonable doubt before
a verdict of guilty can be returned. I remind myself the defendant need prove nothing.
I further remind myself the defendant did not give evidence and had no obligation to do so.
I draw no adverse inference as a consequence.
19 The respondent contends that considering the learned Magistrate’s reasons as
a whole it is plain that he accepted the central elements of the complainant’s
account which necessarily required a rejection of the accused’s assertions of
innocence as set out in the accused’s record of interview.
Consideration in relation to Grounds 1.2 and 3
20 I would not infer from the reference in the learned Magistrate’s reasons to
the defendant’s transcript of interview, 23 that the learned Magistrate did not have
regard to the video recording of that interview. I do not consider that is a logical
inference to draw. This matter was dealt with by an experienced Magistrate. It
was not disputed by the appellant’s counsel that the evidence was the video
recording, and the transcript was an aide memoire. There is no reason to imply
from the learned Magistrate’s reference to the transcript that the learned Magistrate
was not aware of that. Further, the exhibit list specifically makes reference to the
exhibit as being the audio-visual recording and the transcript being the aide
memoire. It is also not in dispute that the learned Magistrate specifically referred
to the video recording in the audio recording of the hearing before the learned
Magistrate.24 The transcript records:25
DISCUSSION RE RECORD OF INTERVIEW
EXHIBIT #P1 DISC OF RECORD OF INTERVIEW WITH ACCOMPANYING AIDE
[MEMOIR] TENDERED BY APP THORPE. ADMITTED. ‘
21 Although not shown on that page of transcript, the audio recording of what
occurred on the relevant day, which I have listened to, indicates that there was a
specific discussion between defence and the learned Magistrate in which the
learned Magistrate indicated he had, in the context of the voir dire, viewed the
video footage. Defence counsel did not require the video footage to be played.26
22 Police v Long [2025] SAMC 26, at [3]-[4].
23 Police v Long [2025] SAMC 26, at [109].
24 Exhibit A1 (audio recording from Magistrates Court of Tuesday, 19 November 2024).
25 See Transcript of Proceedings, Police v Long (Magistrates Court, MCCRM-23-017920, Magistrate
Smart, 19 November 2024) T63.
26 See Exhibit A1 on this Appeal (SCCRM-25-013159) audio recording of 19 November 2024.
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[2026] SASC 94 Gray J
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22 Further, submissions were made by the prosecution as to particular time
stamps to be viewed.27. Having regard to all of these matters, I would not draw an
inference that the learned Magistrate did not view the video footage, by reason of
the learned Magistrate referring to the transcript of the record of interview in the
learned Magistrate’s reasons. That implication is contrary to a fair assessment of
what the learned Magistrate said, considered in context of the material produced
on this appeal.
23 The second aspect of the complaint on these grounds is that the learned
Magistrate’s reasons do not disclose the regard that he had to the record of
interview. This essentially amounts to a complaint as to the inadequacy of reasons
concerning the defence case. In DL v The Queen, Kiefel CJ, Keane and Edelman
JJ held:28
Not every failure to resolve a dispute will render reasons for decision inadequate to justify
a verdict. At one extreme, reasons for decision will not be inadequate merely because they
fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will
they be inadequate merely because they fail to undertake “a minute explanation of every
step in the reasoning process that leads to the judge's conclusion”. At the other extreme,
reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a
significant factual or evidential dispute that is a necessary step to the final conclusion. In
between these extremes, the adequacy of reasons will depend upon an assessment of the
issues in the case, including the extent to which they were relied upon by counsel, their
bearing upon the elements of the offence, and their significance to the course of the trial.
(citations omitted)
24 I consider that the learned Magistrate did explain his conclusions on the
significant factual or evidential disputes that were a necessary step to the final
conclusion. In the course of the learned Magistrate’s reasons the learned
Magistrate adequately dealt with the defence case. There were really two aspects
to the defence case. First, in relation to Count 1, the defence case was that any
touching of the complainant’s breast occurred inadvertently and in the context of
a group hug. In relation to Count 2, the defence case was that there was no
indecency involved. The appellant accepted that he placed his hand on the upper
thigh of the complainant in the back of the Uber, the interaction was however said
to be within the bounds of normal social interaction, and did not constitute an
assault.
25 The learned Magistrate had regard to the evidence of the complainant and the
specific rejection by her of having been touched during a group hug.29 The learned
Magistrate specifically referred to the rejection by the complainant of innocent
touching on the knee.30 The learned Magistrate dealt with, in detail, the evidence
27 Exhibit A1 on this Appeal (SCCRM-25-013159) audio recording of 19 November 2024. I have also
viewed admitted parts of the video recording in the context of this appeal by reference to the time
stamps. See also, Affidavit of Christopher James Kummerow dated 5 August 2025 (FDN 12).
28 DL v The Queen (2018) 266 CLR 1, at [33] (Kiefel CJ, Keane and Edelman JJ).
29 Police v Long [2025] SAMC 26, at [135].
30 Police v Long [2025] SAMC 26, at [136].
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[2026] SASC 94 Gray J
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of the complainant and the reasons he found for accepting the evidence of the
complainant and the consideration that he gave to the defence challenge to the
credibility and reliability of her evidence. The learned Magistrate similarly dealt
with the other prosecution witness. The learned Magistrate then set out his
findings in relation to their evidence and expressed the following conclusion:31
I formed favourable impressions as to the veracity of both witnesses. Both struck me as
honest historians. They were genuine and candid. Both struck me also as reliable (subject
to the exceptions as described above). As concerns the complainant those exceptions do
not cause me to doubt the reliability of the central elements of her account. I accepted her
evidence beyond a reasonable doubt. I felt confident to make findings beyond a reasonable
doubt on the basis of her evidence.
26 The learned Magistrate then went on to find the facts that he found proved
beyond reasonable doubt.32 The learned Magistrate found that the defendant had
approached the complainant, grabbing her breasts with both hands on the outside
of her clothing, and at the same time, pinching her nipples as he pulled his hands
away. The learned Magistrate found that this was an intentional act by the
defendant. In doing so, it is clear that he rejected the appellant’s explanation in
relation to Count 1. The learned Magistrate adequately explained his conclusion
on the significant factual and evidential dispute that was a necessary step in his
final conclusion of guilt in respect of Count 1.
27 In respect of Count 2, the learned Magistrate made a finding that the
defendant placed his hands on the complainant’s thigh, pulling up her dress and
resting his hand on the area between her thigh and vagina. The learned Magistrate
found that the defendant’s actions were intentional, and the complainant had not
given the defendant permission to act as he did.33 In making these findings, the
learned Magistrate has rejected the appellant’s explanation in relation to Count 2
and explained his conclusion on the factual or evidential issues in dispute in
relation to this count which were a necessary step to his final conclusion.
28 It follows that I would dismiss Grounds 1.2 and 3 of the appeal.
Grounds 1.1 and 2
29 The appellant contends that the learned Magistrate failed to expose, or
adequately expose, the basis upon which the learned Magistrate found the
appellant committed the offences whilst acting with reckless indifference.34 The
appellant further complains that the learned Magistrate failed to articulate the
foundation for his finding having regard to the use of the conjunction ‘either’ in
the learned Magistrate’s reasons at paragraph [150].35 The appellant contends that
the use of the word ‘either’ in the passage complained of connotes that the learned
Magistrate was considering one of two propositions and these are not properly
31 Police v Long [2025] SAMC 26, at [149].
32 Police v Long [2025] SAMC 26, at [150].
33 Police v Long [2025] SAMC 26, at [150].
34 See Amended Appeal Grounds dated 19 September 2025 (FDN 13), Ground 1.1.
35 Police v Long [2025] SAMC 26, at [150.13]; AB (n 19) at 35.
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articulated.36 The appellant contends that there is considerable opacity in the
learned Magistrate’s reasons. The appellant states that whilst the learned
Magistrate was considering reckless indifference rather than knowledge that the
complainant was not consenting, the learned Magistrate’s reasons reveal nothing
as to why the learned Magistrate arrived at that conclusion.37
30 The respondent contends that the learned Magistrate adequately and
succinctly set out his factual findings.38 Further, the respondent contends the
learned Magistrate stated that he found the accused to have been ‘recklessly
indifferent’. The respondent states that the learned Magistrate expressly found as
follows:39
(a) that the complainant did not give her consent to the accused;
(b) that the complainant had not done anything that might convey that she
was consenting;
(c) that the accused failed to take reasonable steps, and the learned
Magistrate identifies that asking the complainant would have been
considered a reasonable step, as to whether she was in fact consenting;
and
(d) that the appellant proceeded irrespective of consent.
31 The respondent contends that the conclusion as to reckless indifference was
reached based upon the complainant’s account which was detailed and addressed
in the learned Magistrate’s reasons.40
32 The respondent contends that it is clear that the learned Magistrate was
satisfied that the appellant was acting with reckless indifference as to whether the
complainant was consenting, and that the use of the word ‘either’ in the learned
Magistrate’s reasons was not intended to convey a consideration of two
propositions.41
Consideration in relation to Grounds 1.1 and 2
33 Section 47 of the Criminal Law Consolidation Act 1935 (SA) (CLCA)
provides:
For the purposes of this Division, a person is recklessly indifferent to the fact that another
person does not consent to an act, or has withdrawn consent to an act, if he or she—
36 Written Submissions of the Appellant (n 2) at [20].
37 Written Submissions of the Appellant (n 2) at [19].
38 Police v Long [2025] SAMC 26 at [150].
39 Written Submissions of the Respondent (n 2) at [17].
40 See, Police v Long [2025] SAMC 26, at [5]-[145]; see further, Written Submissions of the Respondent
(n 2) at [18].
41 Police v Long [2025] SAMC 26, at [150].
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(a) is aware of the possibility that the other person might not be consenting to the act, or
has withdrawn consent to the act, but decides to proceed regardless of that
possibility; or
(b) is aware of the possibility that the other person might not be consenting to the act, or
has withdrawn consent to the act, but fails to take reasonable steps to ascertain
whether the other person does in fact consent, or has in fact withdrawn consent, to
the act before deciding to proceed; or
(c) does not give any thought as to whether or not the other person is consenting to the
act, or has withdrawn consent to the act before deciding to proceed.
34 The passage of the learned Magistrate’s reasons in relation to which these
grounds advance a complaint provides as follows:42
That when the defendant touched [the complainant] on each occasion he acted with reckless
indifference as to whether she was consenting. [The complainant] had not given her consent
to the defendant, nor was it suggested she had done anything which might convey to him
that she was consenting. I am satisfied either the defendant was aware of the possibility
[the complainant] may not have been consenting and failed to take reasonable steps (i.e. by
asking her) to ascertain whether she was consenting and proceeded irrespective. I reach this
conclusion from the complainant’s account of the areas of her body where she was touched
and the circumstances of that touching.
35 Having regard to s 47 of the CLCA and to the findings of the learned
Magistrate set out above, a fair reading of the learned Magistrate’s reasons
indicates that the learned Magistrate made a finding of reckless indifference in
accordance with the provisions of s 47(b). I do not consider that on a fair reading
of those reasons as a whole that the reference to the word ‘either’ indicates an
intention to consider two propositions. I consider the learned Magistrate has
explained the factual and evidentiary findings upon which the learned Magistrate
relied to make the finding of reckless indifference.
36 The learned Magistrate made a factual finding that the complainant had not
given her consent to the defendant. The learned Magistrate made a factual finding
that the complainant had not done anything to convey to the appellant that she was
consenting. The learned Magistrate made a finding that the appellant did not take
reasonable steps to ascertain whether the complainant was consenting and
proceeded irrespective of the lack of consent. The learned Magistrate made a
finding that asking the complainant whether she consented would have been a
reasonable step.43
37 These were all factual findings that the learned Magistrate made which were
relevant to the finding of reckless indifference. The learned Magistrate also
indicated that he reached the conclusion of reckless indifference based upon the
complainant’s account of the areas of her body where she was touched and the
circumstances of the touching. I consider that having regard to all of these matters
42 Police v Long [2025] SAMC 26, at [150.13]; AB (n 19), at p 35; Exhibit A3.
43 See Police v Long [2025] SAMC 26, at [150.13].
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the complaint concerning inadequate reasons in relation to the finding of reckless
indifference is without foundation.
38 I dismiss Grounds 1.1 and 2.
Ground 1.4
39 In relation to the issue of distress, it is not in dispute that there are two
occasions on which the complainant exhibited distress that were referred to by the
learned Magistrate. The first occasion concerns when the complainant arrived at
the house to which she had travelled by Uber together with her partner and the
appellant. The second circumstance of distress was when she arrived home that
evening with her partner. The appellant complains that, when the learned
Magistrate refers to distress, the learned Magistrate did not clearly articulate which
occasion of distress he was referring to. Further, the appellant complains that the
learned Magistrate did not say what use was made of the evidence of distress in
assessing the evidence of the complainant. The appellant complains that the
learned Magistrate’s reasons are inadequate as he does not explain the use to which
he considered the evidence of distress when considering the credibility of the
complainant.
40 The respondent contends that the learned Magistrate’s reasons reveal the
precise way in which the learned Magistrate utilised the evidence of distress and
also identifies the ways in which the evidence was not used. Further, that the
learned Magistrate explained the reasons for concluding that the evidence was
capable of use to assess the complainant’s credibility.44 The respondent contends
that the learned Magistrate gave appropriate consideration to any other reason for
the distress and found no reason for coming to any other conclusion as to the reason
for the exhibited distress. The respondent contends that the learned Magistrate
appropriately used the evidence for a permissible purpose and adequately
articulated the use and non-use of that evidence.45
Consideration in relation to Ground 1.4
41 The learned Magistrate clearly refers to the evidence of distress which
accompanied the making of the complaint.46 The learned Magistrate referred to
the complainant referring to herself as having been ‘hysterically upset’. The
learned Magistrate also refers to the complainant’s partner having observed that
she had gone into the shower upon returning to their home ‘visibly upset’, saying
repeatedly that she felt ‘dirty’. The complainant was observed by her partner to
be ‘sitting on the floor of the shower’. The learned Magistrate makes it clear that
it was at that point that the complaint was made. The learned Magistrate observed
that the evidence was not challenged and that the learned Magistrate was satisfied
44 Written Submissions of the Respondent (n 2) at [43].
45 Written Submissions of the Respondent (n 2) at [44]-[45].
46 See Police v Long [2025] SAMC 26, at [127].
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that the evidence was accurate. The learned Magistrate then goes on to hold as
follows:47
… This evidence is not lead by the prosecution as corroborative of the complainant’s
allegations. That is, as independent evidence of the defendant’s guilt and I do not treat it as
such. It is lead to show consistency of conduct on the part of the complainant. That is
because there is a general expectation that the victim of a sexual offence will exhibit signs
of distress. Although this evidence of distress did not occur immediately following the
alleged assaults I am satisfied that it occurred and that it occurred with sufficient temporal
and causal connection to the offences so as to be available as an item of circumstantial
evidence to assess the credibility of the complainant’s evidence. I am satisfied that it has
that character. In so doing, I have considered whether it is possible the evidence may have
been feigned. I saw no reason for such conclusion. I have also considered whether the
distress may have been as a consequence of intoxication. I note [the complainant’s]
evidence, which I accept, that she was ‘very sober’ having drunk only a small amount of
alcohol during the evening.
42 I consider that the complaint concerning a lack of adequate reasons in relation
to the use of the evidence of distress is not made out. The learned Magistrate
articulated the use that he made of the distress that accompanied the making of the
complaint. His Honour went on later, in his Honour’s reasons, to return to and
consider the assessment of the complainant’s credibility and made clear findings
in relation to that matter.48 The learned Magistrate also referred to and considered
the complainant’s evidence of distress upon arrival at the house that she had
travelled to in the Uber with the appellant and her partner.49 The learned Magistrate
appropriately used the evidence for a permissible purpose and the complaint in
relation to inadequate reasons is, in my view, not made out.
43 I dismiss Ground 1.4.
Grounds 5, 6, 7 and 8
44 Grounds 5, 6, 7 and 8 concern the appeal against sentence. The appellant
contends that the sentence was manifestly excessive in that the sentence imposed
for Count 1 was manifestly excessive. The sentence imposed for Count 2 is also
said to be manifestly excessive, and the same complaint of manifest excess is made
in respect of the non-parole period.50 The appellant further contends that the
learned Magistrate erred in failing to order that the sentences in relation to
Counts 1 and 2 be served concurrently or partially concurrently.51 Further, the
appellant contends that the learned Magistrate erred in failing to apply the principle
of totality52 and erred in his assessment of the objective seriousness of the
offending.53
47 Police v Long [2025] SAMC 26, at [127]; AB (n 19) at 30; Exhibit A3.
48 See Police v Long [2025] SAMC 26, at [149]-[150].
49 See Police v Long [2025] SAMC 26, at [125]-[126].
50 See Ground 5.
51 See Ground 6.
52 See Ground 7.
53 See Ground 8.
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45 The appellant submits that the appellant was aged about 44 years at the time
of offending, he had no prior convictions and had a solid work record. The
appellant refers to his employment as having been interrupted as a result of being
charged with the offending because his employer required him to work at a site
which required police clearances to access.54 The appellant contends that
notwithstanding the seriousness of the offending, both the primary and secondary
objectives of sentencing can be met by way of the imposition of a bond, and the
offending was not so serious as to exclude any penalty other than imprisonment.55
46 The appellant also contends that s 10 of the Sentencing Act 2017 (SA)
(‘Sentencing Act’) had not been satisfied.56 The appellant submits that if s 10(2)
was satisfied each of the notional sentences are of themselves manifestly excessive
and having regard to what is referred to as the linear relationship between them
and the final sentence, there is overall manifest excess in the sentence imposed
both in respect of the head sentence and the non-parole period.57
47 Whereas Ground 5 concerns an outcome error, Grounds 6, 7 and 8 focus on
process errors. The appellant notes that the notional individual sentences referred
to by the learned sentencing Magistrate in respect of Counts 1 and 2, when
accumulated amounts to 12 months in duration. Because the single sentence
imposed pursuant to s 26 of the Sentencing Act was also 12 months, the appellant
points to this as being indicative of error in that the learned Magistrate is said to
have imposed terms of imprisonment in a wholly cumulative fashion. The
appellant contends that the very close temporal relationship between the offences
and their similarity in character provided compelling reasons for the sentences to
be served concurrently either wholly or in part.58 The appellant seeks to identify
further error of a similar and related nature in the failure of the learned sentencing
Magistrate to refer to the principle of totality and contends that the reasons and the
outcome are indicative of a failure to consider and apply the totality principle.
48 The appellant contends in respect of Ground 8 that contrary to the findings
of the learned sentencing Magistrate the offending occupied the lower end of the
scale of seriousness for this type of offending. The appellant points to the findings
of the learned Magistrate which indicate that the appellant was convicted on the
basis of recklessness and that the first offence was relatively brief in nature and the
second offence did not involve touching the genitals of the complainant. Whilst
the appellant acknowledges that there were two offences committed which must
be taken into account, the appellant points to each instance being at the lower end
of the scale of seriousness for this type of offending and maintains that submission
in the context of the accumulated offending.59
54 Appellant’s Written Submissions (n 2) at [27].
55 Appellant’s Written Submissions (n 2) at [28].
56 Appellant’s Written Submissions (n 2) at [26]-[28].
57 Appellant’s Written Submissions (n 2) at [29].
58 R v Copeland (No 2) (2010) 108 SASR 398 at [102]-[106] (Kourakis J).
59 Appellant’s Written Submissions (n 2) at [32].
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49 In relation to the appeal against sentence the respondent contends that the
learned Magistrate was entitled to and did properly consider the seriousness of
offending, the lack of contrition and remorse demonstrated by the appellant’s not
guilty plea and the impact upon the victim and the need to give effect to the
principles in ss 9, 10 and 11 of the Sentencing Act and in particular the need to give
effect to general deterrence.60 In relation to Grounds 6 and 7 concerning
concurrency and totality, the respondent contends that the learned sentencing
Magistrate was entitled to impose a single penalty pursuant to s 26 of the
Sentencing Act and that the learned sentencing Magistrate was not required
necessarily to consider concurrency and/or cumulative sentences on the basis of
reference to the nominated sentence for each offence. The respondent submits that
the learned sentencing Magistrate was entitled to sentence in relation to the course
of conduct that the defendant was found guilty of. The respondent submits that the
offences were not separate offences such that s 26(2a) was required to be utilised.
In this context it is submitted that principles of concurrency have little, if any,
application. Further, it is contended that the totality principle had little part to play
where a single sentence was imposed under s 26 and there was no requirement to
attribute a notional sentence for each offence.61
50 In relation to Ground 8 and the assessment of the seriousness of the offending
the respondent submits that the learned sentencing Magistrate was correct in
identifying the offending as serious and that, in any event, the appellant has failed
to identify how the characterisation of the offending as not falling at the lower end
of the scale of offending, has resulted in appealable error.62
Consideration in relation to Grounds 5, 6, 7 and 8
51 The maximum penalty for each of the offences committed by the appellant
was eight years imprisonment. The matter proceeded in the Magistrates Court and
as a consequence the learned sentencing Magistrate was entitled to sentence the
appellant to a maximum of 10 years imprisonment for the two offences of which
he was found guilty.63 There was a significant change in the sentencing regime as
it applied to the offences of which the appellant had been convicted by reason of
the Sentencing (Suspended and Community Based Custodial Sentences)
Amendment Act 2019. The effect of those amendments was that from
1 October 2022 there was a preclusion on a suspended sentence being available for
a defendant convicted of an offence under s 56 of the CLCA, namely for the
offence of indecent assault. Section 71 of the Sentencing Act also limited the
circumstances in which a home detention order would be available to a defendant
sentenced for a serious sexual offence.
52 The clear intention of Parliament both in relation to the setting of the
maximum penalty and in relation to the amendments precluding a suspended
60 Supplementary Written Submissions of the Respondent (n 6) at [38].
61 Respondent’s Written Submissions (n 2) at [44]-[49].
62 Respondent’s Written Submissions (n 2) at [51]-[52].
63 See s 9 of the Magistrates Court Act 1991 (SA).
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sentence or a sentence served on home detention in almost all circumstances
following a conviction for indecent assault is indicative of the inherent seriousness
of the offences of this nature as viewed by Parliament.
53 As referred to above, an appellate court will only interfere with a sentence if
it is outside the range of sentences that might reasonably have been imposed.
Offences of indecent assault are inherently serious and the manner in which these
offences have been addressed by Parliament indicates the seriousness with which
Parliament views such contraventions. It was open to the learned sentencing
Magistrate to consider that the offending was not at the lower end of the range of
offences of this type when viewed in totality. It was open to the learned Magistrate
to have particular regard to the second offence involving touching of an intimate
area that occurred over a protracted period of time.64 The learned sentencing
Magistrate appropriately had regard to the significant negative impact of the
offending on the victim. Having regard to the clear intent of Parliament, the
circumstances and nature of the offending and the circumstances of this offender
the appellant has not demonstrated that the offending is outside the permissible
range of sentences for offending of this nature.
54 The learned sentencing Magistrate determined that it was appropriate to
impose one sentence pursuant to s 26 of the Sentencing Act. It followed that there
was no obligation having regard to the terms of s 26(2a) of the Sentencing Act for
the learned sentencing Magistrate to identify individual sentences. Whilst it would
have been open to the learned sentencing Magistrate to expressly consider
concurrency and to make a reduction in respect of totality there is no error
demonstrated in the learned sentencing Magistrate approaching the matter as he
did and imposing one sentence pursuant to s 26 of the Sentencing Act. The
sentence imposed was not, for the reasons I have outlined above, manifestly
excessive such that totality was required to be applied so as to ensure that the
sentence was not disproportionate to the offending or was not “crushing”. It
follows that it was open for the learned sentencing Magistrate to consider that the
totality principle had little or no part to play in the context of the imposition of the
single sentence pursuant to s 26, and as a consequence of this there is no error in
the failure of the learned sentencing Magistrate to separately refer to this principle.
Similarly, in the context of the imposition of a single sentence, principles of
concurrency may have a limited or no role to play, and no error has been identified
in the nomination of individual sentences and the imposition of one sentence.
55 I reject the submission of the appellant that each instance, even when
accumulated, should have been considered as offending which is objectively at the
lower end of the scale of seriousness for this type of offending.65 Having regard to
the whole of the circumstances before the learned sentencing Magistrate I consider
64 See Sentencing Remarks at page 3.
65 Appellant’s Written Submissions (n 2) at [32].
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that it was open to the learned sentencing Magistrate to characterise the offending
as serious and to proceed as he did.
56 It follows that I would dismiss the appeal against sentence on all grounds.
There is no outcome or process error identified in the manner in which the learned
sentencing Magistrate approached the sentencing task.
Conclusion
57 It follows that I would dismiss the appeal.
58 I will hear from the parties as to any further or consequential orders.
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