COMMISSIONER OF POLICE v GIBSON [2026] SASCA 72

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE FOTHERINGHAM) MCCRM-25-005221; MCCRM-25-005222; MCCRM-25-005175; AND MCCRM-25- 010234 Appellant: COMMISSIONER OF POLICE Counsel: MR M. G. HINTON KC WITH MS M BARTLETT - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: SHANARA TENNILLE GIBSON Counsel: MR G LANG - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Hearing Date/s: 21/05/2026 File No/s: SCCRM-26-009098 B SUPREME COURT OF SOUTH AUSTRALIA (Court of 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. COMMISSIONER OF POLICE v GIBSON [2026] SASCA 72 Judgment of the Court of Appeal (the Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice Stanley) 25 June 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT MAGISTRATES - ORDERS AND CONVICTIONS - SENTENCE - SURETY OR ORDER TO KEEP PEACE OR BE OF GOOD BEHAVIOUR This is a Crown appeal against sentence. The respondent was sentenced for offences, committed in January 2025, of disorderly behaviour, assaulting a prescribed emergency worker, and aggravated criminal trespass in a place of residence. This offending also breached two good behaviour bonds entered in July and August 2024. The respondent pleaded guilty to the January 2025 offending and admitted to the breaches. The Magistrate was required to deal with the breach of bond applications before proceeding to sentence for the fresh offending. He sentenced the respondent to imprisonment for two days for the offending the subject of the first bond, and excused the breach of the second bond. Following discounts for guilty pleas, the Magistrate then imposed sentences of six weeks' imprisonment, and three weeks' imprisonment, for the January 2025 offending. The Magistrate ordered those sentences to be served cumulatively, resulting in a head sentence of nine weeks and two days, which was then suspended upon the respondent entering into another good behaviour bond for six months. The Director appealed that sentence on the grounds that the Magistrate was wrong to excuse the respondent's breach of the second bond, mistook the factual circumstances of the respondent's assault -- 1 of 16 -- upon a prescribed emergency worker to an extent that vitiated the sentence imposed for that offence, and otherwise imposed manifestly inadequate sentences. Held, by the Court, granting permission to appeal and allowing the appeal: 1. Standing back, the sentence package as a whole failed adequately to reflect the seriousness of the offending, protect the public, bring home to the respondent the seriousness of her conduct, vindicate the victims, hold the respondent accountable to the community, and deter the respondent and others from harming emergency services workers. The sentence was so lenient as to fall outside the range of decisional freedom conferred on the Magistrate. 2. The sentences imposed by the Magistrate should be set aside and the respondent resentenced. Criminal Law Consolidation Act 1935 (SA) ss 20AA(3), 170A(1), 248(1)(b); Criminal Procedure Act 1921 (SA) s 116 ; Summary Offences Act 1953 (SA) ss 7(1)(a), 21C(1)(a), 79A, referred to. Cruise v The King; R v Cruise [2025] SASCA 59; Devine v Carey (1980) 24 SASR 338; Dinsdale v The Queen (2000) 202 CLR 321; Dodd v Byrne (2014) 243 A Crim R 250; DPP (Vic) v Arvantidis (2008) 202 A Crim R 300; Higgins v Goldfinch (1981) 26 SASR 364; McCormick v DPP (WA) [2022] WASC 275; Police v Heritage (2019) 135 SASR 1; Pye v Samuels (1972) 4 SASR 12; R v Delphin (2001) 79 SASR 429; The Queen v Malone (1980) 23 SASR 195; The Queen v King (2008) 179 A Crim R 600, discussed. Everett v The Queen (1994) 181 CLR 295; Heal v Police (1999) 75 SASR 331; Police v Vannarath [2015] SASC 187; R v Kinvig [2013] SASCFC 132; R v Nemer (2003) 87 SASR 168; R v Smith [2014] SASCFC 98; R v Smith (2014) 118 SASR 487, considered. -- 2 of 16 -- COMMISSIONER OF POLICE v GIBSON [2026] SASCA 72 Court of Appeal – Criminal: S Doyle, Bleby and Stanley JJA THE COURT: Introduction 1 This is an application for leave to appeal against sentence. The respondent was sentenced by a Magistrate for the offences of disorderly behaviour1 and assaulting a prescribed emergency worker,2 committed on 1 January 2025. The respondent was also sentenced by the Magistrate for the offence of aggravated criminal trespass in a place of residence,3 committed on 20 January 2025.4 2 That offending breached two good behaviour bonds that the respondent had entered. 3 The first bond was entered on 5 July 2024 upon the respondent being sentenced for the offences of carrying an offensive weapon5 and disorderly behaviour.6 The first bond required that the respondent be of good behaviour for a period of 12 months, concluding 5 July 2025, and required her to appear before the Court for sentence if she failed during the term of the bond to comply with its conditions.7 4 The second bond was entered on 9 August 2024, upon the respondent being sentenced for the offence of threatening a person in judicial proceedings to influence the outcome.8 That bond required the respondent to be of good behaviour for a period of 15 months, concluding 9 November 2025, and required her to appear before the Court for sentence if she failed during the term of the bond to comply with its conditions.9 5 The Magistrate was required to deal with the breach of bond applications before proceeding to sentence for the fresh offending.10 Sentencing 6 The Magistrate sentenced the respondent to imprisonment for two days for the offending the subject of the first bond (Matter MCCRM-25-005222); excused 1 Contrary to s 7(1)(a) of the Summary Offences Act 1953 (SA) (SOA). 2 Contrary to s 20AA(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). 3 Contrary to s 170A(1) of the CLCA. 4 Matters MCCRM-25-005175 and MCCRM-25-010234 respectively. 5 Contrary to s 21C(1)(a) of the SOA. 6 Contrary to s 7(1)(a) of the SOA. 7 Matter MCCRM-25-005222. 8 Contrary to s 248(1)(b) of the CLCA. The respondent was sentenced pursuant to s 116 of the Criminal Procedure Act 1921 (SA). 9 Matter MCCRM-25-005221. 10 Heal v Police (1999) 75 SASR 331 at [9]; R v Smith (2014) 118 SASR 487 at [28]-[29], [82]; Police v Vannarath [2015] SASC 187 at [28]. -- 3 of 16 -- [2026] SASCA 72 The Court 2 the breach of the second bond (Matter MCCRM-25-005221); sentenced the respondent to six week’s imprisonment for the 1 January 2025 offending (Matter MCCRM-25-005175) from a starting point of two months, reduced by 30 per cent; and sentenced the respondent to three weeks’ imprisonment for the 20 January 2025 offending (Matter MCCRM-25-010234) from a starting point of one month, reduced by 30 per cent. The Magistrate ordered the latter to be served cumulatively upon the former, and for both to be served cumulatively on the two days imposed for the offences the subject of the first bond. The Magistrate imposed conditions for all offences in relation to which penalties were imposed. 7 Ultimately, the respondent was sentenced to a total period of imprisonment of nine weeks and two days. That sentence was then suspended by the Magistrate upon the respondent entering into a bond to be of good behaviour for six months, i.e. expiring 10 July 2026. 8 The Director on appeal challenges the orders made by the Magistrate on the grounds that he was wrong to excuse the respondent’s breach of the second bond; mistook the factual circumstances of the respondent’s assault upon a prescribed emergency worker to an extent that vitiated the sentence imposed for that offence; in sentencing the respondent for that offence, imposed a manifestly inadequate sentence in that the sentence imposed was so low as to fall outside the range of decisional freedom and should not have been suspended; and in sentencing the respondent for the offence of aggravated criminal trespass, similarly imposed a manifestly inadequate sentence in that the sentence imposed was so low as to fall outside the range of decisional freedom and should not have been suspended. 9 In the circumstances, the Director submits permission to appeal should be granted, the appeal allowed, and the respondent sentenced and resentenced. Circumstances of the offending Matter MCCRM-25-005221 10 At about 1:45 pm on 8 June 2023, the victim of this offending (Victim 1) was doing her shopping at Port Augusta Woolworths and was checking out. Victim 1 observed the respondent and a co-accused near the milk area inside Woolworths. Victim 1 had known the respondent for about 30 years. Victim 1 was a protected person the subject of an intervention order against the respondent’s sister, Ms Donielle Reid. Upon observing the respondent and the co-accused, victim 1 panicked and began packing her purchases into her trolley quickly so she could leave as she was scared of what the respondent and co-accused might do to her. The respondent and co-accused began walking towards victim 1, and the respondent started shouting at victim 1, “We’re going to smash you, you need to drop the charges”. Woolworths staff tried to intervene and separate the respondent and victim 1. Victim 1 stood behind a Woolworths staff member during the altercation as she was afraid. Woolworths staff called the police. The incident was captured on CCTV. -- 4 of 16 -- [2026] SASCA 72 The Court 3 11 Victim 1 was in fear of the respondent because of what the respondent said to her, and believed that the respondent would probably carry out the threats made towards her and might seriously hurt her. Victim 1 felt unsafe whenever walking around the Port Augusta area because the respondent and “her mob” always “cause trouble and look out for her, to harass and fight her”. 12 On 11 July 2023, police interviewed the respondent. She denied making the threats but admitted telling victim 1 to drop the charges. Police advised the respondent that she would be reported for the offending. This conduct breached the second good behaviour bond. Matter MCCRM-25-005222 13 At about midday on 27 November 2023, a worker at a pool and paving shop located in Port Augusta could hear shouting coming from the street. The worker went to the front of the shop where she observed a male and a female walking down the road, shouting and screaming. She also saw two other females, one of whom was the respondent, following the male and female. The respondent was observed to be in possession of a metal pole.11 14 It appeared to the worker that the male and female were trying to get away from the respondent and the other female. The male began throwing rocks at the respondent and the other female. He was seen to have a small knife. The respondent shouted to him words to the effect of “What are you going to do with that knife, cut me?”. 15 Later the same day, police attended at a disturbance in central Port Augusta where they spoke to the respondent, who screamed repeatedly at police words to the effect of “Go do your fucking job”. The respondent was extremely uncooperative, verbally aggressive, and continued to shout words, including “cunt”, “fuck”, and “slut”.12 Police located a metal pole which was approximately 40 cm long on the footpath in the location from which the respondent had walked. 16 This offending occurred in the centre of Port Augusta, at a time attended by many members of the public, including business owners, or staff, who had come out of their shops at the sound of the commotion. The respondent was arrested and charged that day, i.e. 27 November 2023. This conduct breached the first good behaviour bond. Matter MCCRM-25-005175 17 At about 3:25 am on 1 January 2025, police attended a property on Litchfield Crescent, Port Augusta, in relation to a disturbance. The first officers on the scene deployed defensive spray on a number of people fighting in the front yard of the premises, including the respondent. Police subsequently observed the respondent to be in the front yard of the premises, washing her eyes out at a garden tap, and 11 Count 1: carry offensive weapon contrary to s 21C(1)(a) of the SOA. 12 Count 3: disorderly behaviour contrary to s 7(1)(a) of the SOA. -- 5 of 16 -- [2026] SASCA 72 The Court 4 shouting and swearing at another person present, threatening to “smash” her once the police left. 18 Police removed the respondent from the front yard and warned her against shouting and swearing while on the street. The respondent was directed to cease loitering. The respondent continued to shout and swear, and was subsequently placed under arrest by Constable George Hayter (Victim 2).13 19 The respondent was handcuffed and placed in a cage vehicle where victim 2 commenced reading the respondent her arrest rights. While victim 2 was doing so, the respondent spat at him with the spittle landing on the face of victim 2. As police attempted to push the respondent back into the cage to shut the door, the respondent kicked victim 2 in the arm with moderate force, which caused victim 2 pain. Victim 2 did not suffer any injuries that required treatment as a result of the assault.14 Matter MCCRM-25-010234 20 At about 11:40 am on 20 January 2025, the victim of this offending (victim 3) was at his home address in Port Augusta with his partner when he heard a loud knocking at the door. Victim 3 opened the front door and observed the respondent in company with two co-accused at the front of his address. Victim 3 had known the respondent for about a year, as she is a relative of his partner. When victim 3 opened the front door, the respondent began shouting at him and calling him a “fat prick” and asking him for money. Victim 3 replied with, “fuck off and go away, we have sent you money last night”. Victim 3 felt as though the respondent and co-accused were going to “rush him”, so he closed the door and quickly locked it. Victim 3 then heard a loud bang and looked back at the front door, which he observed had been kicked open.15 Victim 3 locked himself inside the bathroom as he was scared. He could hear the respondent and her co-accused arguing with his partner in relation to money. Victim 3 heard a male voice shouting, “I am going to kill you, I am going to bury you, prick”, which victim 3 believed to be directed at him. 21 After about five or 10 minutes, victim 3 could no longer hear any noise emanating from the room. Victim 3 left the bathroom and saw that the respondent and her co-accused had left the premises. Victim 3 was scared as a result of the incident and felt unsafe in his own home. He believed if he had not closed the door he may have been badly hurt. Personal circumstances of the respondent 22 The respondent is 47 years of age, single, and the eldest of five children. Her father died when she was quite young, and she was raised by her mother and 13 Count 1: disorderly behaviour contrary to s 7(1)(a) of the SOA. 14 Count 2: assault prescribed emergency worker contrary to s 20AA(3) of the CLCA. 15 Count 1: aggravated trespass contrary to s 170A(1) of the CLCA. -- 6 of 16 -- [2026] SASCA 72 The Court 5 another man. The relationship between the respondent’s mother and that man was marred by alcohol and violence. 23 The respondent completed year 10. Before becoming her mother’s carer, she had a good work history. Her mother died about two years ago. 24 The respondent has two children, aged around 23 and 26. Her eldest child has two children of their own, around the ages of nine and seven. The respondent spends time looking after the younger grandchild, who suffers from autism spectrum disorder. 25 The respondent suffers from post-traumatic stress disorder arising from an incident where she found her cousin crushed after he had been working under a large four-wheel drive, which fell off the jack. The respondent is prescribed medication for her PTSD. The respondent’s antecedents 26 The respondent’s antecedents are as follows: (i) the respondent first came into contact with the criminal justice system in 1993 as a minor when she entered into an obligation upon being convicted for an offence of violence; (ii) on 2 May 2000, as an adult, having been convicted for the offence of larceny, the respondent was convicted and entered into a bond to be of good behaviour for 12 months’; (iii) in 2001, the respondent was dealt with without conviction upon entering into a bond to be of good behaviour for 12 months for the offence of common assault. The assault was committed on 10 February 2001 in breach of the bond entered into on 2 May 2000; (iv) in 2005, the respondent was convicted of trespass on school premises; (v) in 2006, the respondent was convicted of two counts of common assault and entered into a bond to be of good behaviour for 18 months; (vi) in 2016, the respondent was convicted of aggravated assault and entered into a bond to be of good behaviour for 18 months; and (vii) in 2020, the respondent was convicted of property damage and entered into a bond to be of good behaviour for nine months. 27 The above offending and sentences have been punctuated by other driving and public order offences punishable either by fine or community service. The respondent has never been imprisoned. -- 7 of 16 -- [2026] SASCA 72 The Court 6 Grounds of Appeal 28 The grounds of appeal are as follows: 1. The Magistrate erred in determining that there were proper grounds to excuse the breach of bond on matter number MCCRM-25-005221. 2. The Magistrate erred in imposing sentence for the offence of assaulting a prescribed emergency worker the subject of matter MCCRM-25-005175. Particulars: a. The Magistrate committed an error of fact by misunderstanding the factual circumstances of the offending. b. The sentence imposed was manifestly inadequate. c. The Magistrate erred in suspending the sentence. 3. The Magistrate erred in imposing sentence for the offence of aggravated criminal trespass in residence the subject of matter number MCCRM-25-010234. Particulars: a. The sentence imposed was manifestly inadequate. b. The Magistrate erred in suspending the sentence. Argument The first ground of appeal 29 The Magistrate purported to excuse the breach of the second bond pursuant to s 114(1)(c)(i) of the Sentencing Act 2017 (SA). The proper grounds to excuse that breach were articulated as being due to the “different” nature of the breaching conduct of disorderly behaviour, assault of a prescribed emergency worker and aggravated criminal trespass, compared to the offending that gave rise to the imposition of the bond, namely, threatening a person in judicial proceedings to influence the outcome. 30 In Police v Heritage, Blue J, with whom Stanley and Lovell JJ (as they then were) agreed, said:16 Turning to the meaning of the expression “proper grounds upon which the failure should be excused” in subs (3), it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subs (3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach. This follows from a combination of the juxtaposition between the criteria of trivial breach and proper grounds for excusal (the former giving colour to the latter), the concept of “excusal” of the breach suggesting that the circumstances of the breach justify excusal, the legislative policy that ordinarily a breach should result in the offender serving the full term of the original 16 (2019) 135 SASR 1 at [22]. -- 8 of 16 -- [2026] SASCA 72 The Court 7 sentence and the contrast between excusing a breach under subs (3) and reducing the term of the original sentence by reason of special circumstances under subs (4). [citations omitted.] 31 There is nothing in s 114 of the Sentencing Act that either expressly or impliedly requires that a breach of bond be of the same character as the initial offence in relation to which a defendant was placed on a bond.17 32 The primary condition to which a defendant agrees to be bound when entering a bond is that they shall be of good behaviour. In Higgins v Goldfinch,18 King CJ, after referring to the judgments of Zelling J and Legoe J in The Queen v Malone19 and Devine v Carey20 respectively, said:21 It is true, as both Zelling J and Legoe J observed in the cases just referred to, that the words “good behaviour” are ordinary English words. The meaning of words varies, however, according to context and purpose. When a child is told that his behaviour must be good, what is envisaged is quite different from that which is envisaged when a husband is told that he ought to behave well towards his wife. Good behaviour may refer, according to context and purpose, to personal habits, domestic or social obligations or commercial dealings, and the content of the concept differs in each case. Section 2a of the Offenders Probation Act and s 51(6) of the Children’s Protection Act are concerned with the criminal law. Good behaviour as used in those sections may be taken to mean observance of the rules of the criminal law. The purpose of the sections is to rehabilitate convicted persons by encouraging them to abandon criminal ways. The suspended sentence offers them freedom in lieu of imprisonment in order to direct them away from criminal conduct and in the direction of a law abiding way of life. I think that the words “good behaviour” in those sections must be understood in that context and in the light of that purpose. I think that in order to amount to a departure from the standard of good behaviour so as to activate a suspended sentence, conduct must not only be such as to constitute a breach of the law attracting penal sanctions, but must constitute such a breach as can fairly be regarded as a relapse into non-law abiding ways. 33 In this case, the conduct giving rise to the second bond on matter MCCRM-25-005221, occurred in public, involved threats to another, instilled fear that the threats would be carried out, and challenged legal authority. The breaching conduct on matter MCCRM-25-005175, occurred in public, involved violence, and challenged legal authority. The breaching conduct on matter MCCRM-25- 010234, involved violence and was committed while on bail for the 1 January 2025 offending. 34 The Director submits that the breaching conduct can fairly be regarded as a relapse into non-law-abiding ways and the Magistrate was wrong to conclude that the breaching conduct was of such a different nature as to justify excusing the breach. 17 R v Kinvig [2013] SASCFC 132 at [6]; R v Smith [2014] SASCFC 98 at [24]. 18 (1981) 26 SASR 364. 19 (1980) 23 SASR 195. 20 (1980) 24 SASR 338. 21 Higgins v Goldfinch (1981) 26 SASR 364 at 366-367. -- 9 of 16 -- [2026] SASCA 72 The Court 8 35 In our view, this submission should be accepted. The difference in the character of the wrong-doing was not a basis for declining to enforce the bond in circumstances where the respondent plainly relapsed into non-law-abiding ways. The third ground of appeal 36 It is convenient to deal with the third ground of appeal before the second. 37 In Dinsdale v The Queen, Gleeson CJ and Hayne J observed:22 Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. … 38 To determine whether a sentence is excessive or inadequate requires consideration of all factors relevant to determining the appropriate sentence. 39 The Director relies on the sentencing guideline fixed in R v Delphin23, namely, that in the ordinary case of a single serious criminal trespass in a place of residence, where the intention upon entry is larceny generally, a penalty for a first offence must now be in the order of 20 to 24 months where a plea of guilty is entered.24 The Director submits that, having regard to the circumstances of the offending in the present case, the maximum penalty of imprisonment for up to five years, the absence of any mitigating factors, the respondent’s antecedents, and the fact that the offending was committed while the respondent was on bail for the 1 January 2025 offending, a sentence starting at one month was not only manifestly inadequate, but so low as to warrant intervention by this Court. 40 In our view, there is force in this criticism. Whilst each case must be determined by reference to its own particular circumstances, including not only the circumstances of the offending but also the offender, it is apparent that the sentence imposed for the respondent’s 1 January 2025 offending did not adequately reflect the guidance provided by Delphin. 22 (2000) 202 CLR 321 at [6]. 23 (2001) 79 SASR 429. 24 R v Delphin (2001) 79 SASR 429 at [47]. -- 10 of 16 -- [2026] SASCA 72 The Court 9 The second ground of appeal The factual misconception 41 In recounting the circumstances of the offending on 1 January 2025, the Magistrate said:25 … Things started to get a bit argumentative at this stage and police said to you that you better get out of there or they would arrest you. You start (sic) to leave and then they said you could not go in that direction, even though your property was in that direction, but police said to you that you needed to go in the other direction to avoid the people who [were] congregating outside the front. It is at this time that you further complained, and Officer Hayter went to arrest you. It is at this time that you spat at him and kicked him in the arm. Fortunately, there were no injuries. 42 Consideration of the body-worn footage demonstrates that the arrest and the assault were separated by a period of time in which the respondent calmed down. Having walked the respondent down the street to the cage car without incident, victim 2 then asked the respondent to enter the cage car. She did so without assistance. Then, with the door to the cage car open and the respondent seated in the back, victim 2 commenced reading to the respondent her arrest rights.26 Throughout she repeated over and over, “blah, blah, blah …”, continuously attempting to drown out the voice of victim 2, punctuated by “I don’t give a fuck”. A friend of the respondent then approached. That friend cannot be seen on the body-worn footage, but the respondent stops her outburst, becoming more agitated at her arrest by victim 2. Victim 2 continues to read to the respondent her arrest rights. Her agitation reaches a level where she leans forward and spits at victim 2. 43 Importantly, the respondent did not spit on victim 2 during the course of being arrested. She had been arrested a short time before and had walked calmly to the cage car. Further, at the time the respondent spits, she is not being physically restrained by the police, or physically interfered with by them in any way. She is sitting in the back of the cage car, independently, albeit she is handcuffed. Her act of spitting is intended and directed at victim 2, who it seems she held responsible for her arrest. Although her arrest occurred not long before, she had had time to reflect. We are satisfied her action was in retribution. 44 The Director submits that the Magistrate’s recitation of the factual circumstances of the offending do not accurately reflect the gravity of the respondent’s actions. This was not something that occurred in the heat of the moment when the respondent did not have time to think or reflect. The Director noted that while the sentencing remarks of a busy Magistrates Court should not be read as if they were a “conveyancing document”, the learned Magistrate’s recitation of the factual circumstances suggests a non-appreciation of the facts such as to amount to error. That error is material. He submits it impacts the assessment 25 Police v Gibson, Shanara Tenille, (Magistrates Court of South Australia, Magistrate Fotheringham, 10 February 2026) at 2. 26 SOA s 79A. -- 11 of 16 -- [2026] SASCA 72 The Court 10 of the gravity of the offending, the need for specific deterrence, and the need to protect a particular cohort in the community. Manifest inadequacy 45 In Cruise v The King; R v Cruise,27 Kourakis CJ, after noting that in the course of his Second Reading Speech in relation to the Bill enacting s 20AA of the CLCA, the Attorney-General stated the government’s intention that “[o]ur most vulnerable on duty workers will have charges appropriately sentenced, accounting for their role at work and role in protecting the community”, cited the judgment of Redlich JA in DPP (Vic) v Arvantidis28 as follows: It is a serious offence to assault police officers in the execution of their duty ordinarily requiring a significant element of deterrence in the sentences to be imposed. The courage of police officers in protecting lives and property is something upon which the community depends. It is incumbent on the Court to impose appropriate sentences to demonstrate support for the authority of police officers who undertake a difficult, and dangerous task in the execution of their duties in maintaining law and order. Ambulance officers, and others performing such essential public duties, are to receive a similar measure of support and protection. Where the offender knows or ought to have known that the victim was discharging a public duty of this sort, a more severe sentence will usually be imposed to deter such persons from violent assaults on them when performing their duties. [citations omitted.] 46 In Pye v Samuels, where the defendant kneed a police officer in the groin, Wells J observed of the offence of assault to police:29 … The legislature has, therefore, by those provisions, clearly demonstrated the seriousness with which it regards violence directed against police officers and other persons seeking to make lawful arrests. The reason is not far to seek. If the peace is to be kept, and the laws made for the safety and protection of our community are to be administered, those who, on behalf of that community, try to maintain peace and uphold the law, will inevitably be called on to face violence directed against them. The law would, accordingly, be failing in its duty if it did not confer upon its agents a special measure of protection. 47 In The Queen v King, a case involving an assault on a police officer by spitting in circumstances comparable to those in this case, de Jersey CJ remarked:30 One begins with the proposition that those who treat a police officer in this way should ordinarily expect to be imprisoned, meaning actual imprisonment. Police officers carry out duties which are usually onerous and often dangerous. It is abhorrent that a police officer responsibly going about his or her business be subject to the indignity and risk of being spat upon. The risk in contemporary society relates obviously to communicable disease. Related to the indignity is the display of contempt for civil authority which will often be involved in these incidents. An appropriate level of deterrence will in such cases usually be secured only through actual imprisonment of the offender. Along similar lines see R v 27 [2025] SASCA 59. 28 (2008) 202 A Crim R 300 at [50]. 29 (1972) 4 SASR 12 at 17-18. 30 (2008) 179 A Crim R 600 at [6]. -- 12 of 16 -- [2026] SASCA 72 The Court 11 Reuben [2001] QCA 322 at 6. In my view this sentencing judge was right in ordering that the applicant be imprisoned. 48 In a similar vein, Blokland J in Dodd v Byrne said:31 Spitting on a person is a humiliating and degrading act. Plainly this is aggravated when the spitting is to a person’s face. This factor is well accepted in the authorities. 49 In McCormick v DPP (WA), Tottle J considered factors aggravating an assault upon police by spitting as:32 (a) The inherent seriousness of an assault by spitting (a particularly egregious form of assault). The appellant was in close proximity to the victim and spat directly in the victim’s face, posing a serious risk of transmissible disease to the victim. (b) The assaults occurred in the context of ‘sustained bad behaviour’ by the appellant. The assaults did not occur as the result of a ‘momentary flash of anger’. (c) The appellant had already been issued a move-on order by police but had continued to behave erratically and aggressively in a public place. (d) Police are required to deal with people behaving in aggressive ways and ‘an assault on police is essentially an assault against the community generally because the police act on behalf of and serve the community’. [citations omitted]. 50 The Director submits that, when proper regard is had to the above principles, and the circumstances of this case, the starting point of two months' imprisonment was manifestly inadequate. 51 Counsel for the respondent submits that it was open to the sentencing Magistrate to conclude that the behaviour of some police on 1 January 2025, and victim 2 in particular, fell beneath the standard inherently anticipated by judicial statements as to the need to protect emergency workers and honour their service to the community, by way of especially deterrent sentences. Before this Court counsel for the respondent adopted the submission made to the Magistrate which described behaviour on the part of police as dismissive, high handed, and rude; or at least, such as it would have been so perceived by the respondent. While not suggesting that this amounted to a defence, it was put that it took the matter out of the scope of commonplace of unilateral hostility and provided an unusual context, capable of amounting to proper grounds to excuse the inherent breach. Consideration 52 As recounted earlier, police had given the respondent a direction to leave the area of the property which had been the locus of complaint. There was initial compliance with that direction but the respondent soon attempted to return to the residence where police were trying to quell a disturbance. The respondent was 31 (2014) 243 A Crim R 250 at [22]. 32 [2022] WASC 275 at [23]. -- 13 of 16 -- [2026] SASCA 72 The Court 12 arrested. At that stage, she remained relatively calm. Her dealings with the police and victim 2 at this stage were not belligerent. She was handcuffed and placed in the cage car without incident. Victim 2 proceeded to read to the respondent her arrest rights. While he was attempting to do so, the respondent spat in his face. Police attempted to push the respondent back into the cage to shut the door, in the course of which she kicked victim 2 in the arm. Fortunately, apart from some transient pain, the officer escaped any serious harm. 53 Insofar as the Magistrate proceeded on the basis that the respondent spat on the police officer during the arrest process, that involved error. In assessing the seriousness of the respondent’s offending, it was relevant that there was some, albeit short, time between her arrest and her decision to spit on victim 2. 54 Further, in our view, there was no basis to criticise the conduct of police prior to the spitting incident. We do not consider there is any basis to depart from the principles applicable to the sentencing of offenders charged with assaulting emergency services workers. In our view, the sentence imposed did not adequately reflect those principles. Leave to appeal 55 A court should grant leave to the Director to appeal against sentence only in rare and exceptional cases.33 To obtain leave to appeal against sentence, the Director must do more than satisfy the Court that an error may have occurred. The Court cannot grant leave to appeal with a view to increasing a sentence, merely because it appears that an error has been made. Leave to appeal should be granted only if the allowing of the appeal would advance some wider purpose such as to give the Court an opportunity to establish a principle of sentencing law, or to establish, or to maintain an adequate standard of sentencing for a particular offence, or kind of offence, as distinct from simply correcting an error in a particular case.34 This is a rare and exceptional case that warrants intervention of this Court on appeal. 56 In our view, the overall sentence imposed upon the respondent for her offending was so far below the appropriate range of sentences as to justify the intervention of the Court. 57 As an adult, the respondent has a number of convictions over a 20-year period for offences of violence. 58 Focusing upon her assault of a prescribed emergency worker, the assault of victim 2 was deliberate and intended to humiliate and demean him as a person and to diminish the office he held. There is an absence of mitigating factors, she has failed to respond to leniency in the past, and given the maximum penalty of 33 Everett v The Queen (1994) 181 CLR 295. 34 R v Nemer (2003) 87 SASR 168 at [22]-[24]. -- 14 of 16 -- [2026] SASCA 72 The Court 13 imprisonment for an offence of that kind is five years, the starting point of imprisonment of two months was manifestly inadequate. 59 Further, standing back, the sentence package as a whole failed adequately to reflect the seriousness of the offending, to protect the public, to bring home to the respondent the seriousness of her conduct, to vindicate the victims, to hold the respondent accountable to the community, and to deter the respondent and others in the community from harming or assaulting emergency services workers, and police in particular. The sentence imposed discloses error on the part of the Magistrate. In the result, the Magistrate imposed a sentence which fails to achieve the primary and secondary purposes of punishment, and risks undermining community respect for the administration of justice. In the circumstances of this offending, and this offender, the sentence is so lenient as to fall outside the range of decisional freedom conferred on the Magistrate. For these reasons, the Court should set aside the sentences imposed by the Magistrate and sentence the respondent on all matters. 60 In so doing, however, there are factors relevant to the issue of whether in resentencing this Court should suspend any sentence of imprisonment, as the Magistrate did. The respondent has not previously had the benefit of a suspended sentence. A suspended sentence would avoid the respondent undergoing an immediate term of imprisonment. A suspended sentence hopefully would have the effect of focussing the respondent’s mind on the need for her to change her behaviour in the face of the Damoclean sword hanging over her, carrying the likelihood that any further breaches of the criminal law would result in an immediate term of imprisonment. In these circumstances, the Director accepted that it would be within this Court’s discretion to suspend the sentence of imprisonment to be imposed upon the respondent. Disposition of the Appeal 61 We grant permission to appeal, allow the appeal against sentence, and set aside the sentence imposed by the learned Magistrate. Resentencing 62 We sentence the respondent to imprisonment for 21 days for the offending the subject of the first bond, from a starting point of one month, reduced by 30 per cent for the respondent’s plea of guilty.35 63 We resentence the respondent to imprisonment for two months and 17 days for the offending the subject of the second bond, from a starting point of three months, reduced by 15 per cent for the respondent’s plea of guilty.36 35 Matter MCCRM-25-005222. 36 Matter MCCRM-25-005221. -- 15 of 16 -- [2026] SASCA 72 The Court 14 64 We resentence the respondent for the 1 January 2025 offending37 to imprisonment for two months and 24 days, from a starting point of four months, reduced by 30 per cent for the respondent’s plea of guilty. 65 We resentence the respondent for the 20 January 2025 offending38 to imprisonment for four months and six days, from a starting point of six months, reduced by 30 per cent for the respondent’s plea of guilty. 66 Each of those sentences of imprisonment are to be served cumulatively. 67 That is a head sentence of 10 months and eight days imprisonment. 68 We consider that there are good reasons to suspend the sentence. In our assessment there are three good reasons to suspend the sentence of imprisonment. First, it is desirable that every reasonable effort should be made to provide a final opportunity for the respondent to stay out of jail and lead a law-abiding life. The fact of the pleas of guilty at least evidence some contrition on the respondent’s part which constitutes a favourable indication of a genuine intention to avoid criminal offending in future. 69 Second, the respondent has not previously had the benefit of a suspended sentence. There must be a chance that a suspended sentence will prove effective in deterring her from further lapses into criminal conduct, otherwise she will face the real prospect of the suspended term of imprisonment having to be served immediately. 70 Third, it is to be acknowledged that, in resentencing a defendant following a successful Crown appeal, this Court is required to impose the sentence that should have been imposed in the first instance. It follows that the Court cannot impose a lesser sentence than would otherwise be appropriate to reflect the prejudice associated with being twice vexed by a Crown appeal. However, as the Director accepts, the fact that the respondent has had a period of time in which she has no doubt conducted herself on the basis of her conditional liberty is nevertheless a relevant consideration in determining whether there is good reason to suspend her sentence. 71 In all the circumstances, we consider that there is good reason to suspend the respondent’s head sentence of 10 months and eight days on the respondent entering a six month bond to be of good behaviour in the amount of $100. We do not think that any supervision is required. 72 We waive court fees, but prosecution fees and victims of crime levies remain payable. 37 Matter MCCRM-25-005175. 38 Matter MCCRM-25-010234. -- 16 of 16 --