HAMMAD HASSAN v THE KING [2026] SASCA 8

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE MATTEO) DCCRM-23-009489 Appellant: HAMMAD HASSAN Counsel: MR A EY - Solicitor: MANGAN EY & ASSOCIATES PTY LTD Respondent: THE KING Counsel: MS C HANNA - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 11/02/2026 File No/s: SCCRM-25-022438 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. HASSAN v THE KING [2026] SASCA 8 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey and the Honourable Justice Bleby) 11 February 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE This is an application for permission to appeal against sentence. The appellant pleaded guilty to one count of aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). The offending comprised an incident of domestic violence against a background of verbal abuse. The sentencing judge recorded a conviction but imposed no further penalty pursuant to s 23(2) of the Sentencing Act 2017 (SA) where the appellant had spent one month in custody and two and a half months on home detention bail. During her sentencing remarks, the sentencing judge described the offending as having occurred in the complainant’s home, when it took place in the appellant’s home. This was brought to her attention shortly after sentencing, at which point she said that the location of the offending did not -- 1 of 9 -- mitigate the appellant’s conduct or reduce its seriousness for the purposes of determining whether to impose a conviction. The appellant raised the following grounds of appeal: 1. The sentencing judge made a material factual error by describing the offending as having occurred in the complainant’s home. 2. The sentence is manifestly excessive because the sentencing judge misstated the seriousness of the offending due to its location and erred in failing to dispose of the charge without conviction. Held (the Court), granting permission to appeal and dismissing the appeal: 1. Where a factual error has been made by the sentencing judge, the question is whether the error had the capacity to affect the exercise of sentencing discretion and the sentence ultimately imposed. 2. The location of the offending was regarded by the sentencing judge as informing its seriousness and should be regarded as material to the exercise of sentencing discretion. It is necessary to consider re-sentencing the appellant. 3. However, in the independent exercise of discretion on re-sentence, it is appropriate to record a conviction. This Court must do what it can regarding domestic violence. No lesser sentence should be imposed. Bail Act 1985 (SA); Criminal Law Consolidation Act 1935 (SA) ss 5AA(g), 20(3), 20A; Intervention Orders (Prevention of Abuse) Act 2009 (SA); Joint Criminal Rules 2022 (SA) rr 40.2(3), 40.2(4), 40.4; Sentencing Act 2017 (SA) ss 23, 23(2), 24, 28(1), 97; Uniform Civil Rules 2020 (SA) rr 182.2(3), 182.2(4), referred to. Brawn v The King (2025) 99 ALJR 872; Brooks v The King [2025] SASCA 88; Croser v Croser [2025] SASCA 145; Daley v The King [2023] SASCA 29; DPP v Smith (No 3) [2024] ACTSC 146; Gallagher v Police [2025] SASC 16; Holloway v The King [2023] SASCA 130; House v The King (1936) 55 CLR 499; Joseph v Police [2020] SASC 218 ; Kentwell v The Queen (2014) 252 CLR 601; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; MacGregor v Police (1995) 66 SASR 269; MDP v The King (2025) 99 ALJR 969; Millwood v The King [2024] SASCA 84; Mlakar v The King [2024] SASCA 76; Pasa v Bell [2014] ACTSC 303; R v Briese; Ex parte Attorney General (1997) 92 A Crim R 75; R v Harris (2023) 144 SASR 246; R v Hoffman [2017] SASCFC 15; R v JR (a juvenile) [2022] NSWDC 618; R v Lennon (2003) 86 SASR 295; R v Ritter [2016] SASCFC 88; R v Saunders [2017] SASCFC 86; R v SR [2019] NSWDC 479; R v Stakaj and Others (2015) 123 SASR 523; R v Taylor; R v Teekens [2022] SASCA 79; R v Wilkinson (2008) 101 SASR 21; R v Yousef (2005) 155 A Crim R 134; RB v Police [2022] SASC 77; Ryle v The King [2025] SASCA 47; Sims v Police (2000) 30 MVR 524; Stubberfield v The Queen (2010) 106 SASR 91; Uznanski v Searle (1981) 26 SASR 388; White v Commissioner of Police [2025] SASC 66, considered. -- 2 of 9 -- HASSAN v THE KING [2026] SASCA 8 Court of Appeal – Criminal: Livesey P and Bleby JA THE COURT (ex tempore): Introduction 1 In this application for permission to appeal against sentence, the appellant contends that the sentencing judge made a factual error and, in any event, the sentence was manifestly excessive because no conviction should have been recorded. 2 The offending comprised an incident of domestic violence against a background of verbal abuse. The appellant pleaded guilty to aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalty is imprisonment for three years. The circumstance of aggravation was that the appellant committed the offence knowing that he and the complainant were in a relationship.1 3 Following arrest in September 2022, the appellant served 28 days in custody before being granted home detention bail for two months and two weeks, and then supervised bail until sentencing on 13 May 2025.2 4 In the course of her sentencing remarks, the sentencing judge described the offending as having taken place in the complainant’s home when, in fact, it took place in the appellant’s home. The sentencing judge determined to impose no further penalty pursuant to s 23(2) of the Sentencing Act 2017 (SA) (the Sentencing Act). 5 Despite being asked to refrain from doing so, the sentencing judge recorded a conviction. Whether a conviction should have been recorded formed the centrepiece of the argument on manifest excess. 6 Permission to appeal should be granted, but the appeal dismissed. The sentencing judge made a material error of fact in misstating the location of the offending. However, in the independent exercise of our sentencing discretion, it is appropriate to impose a conviction.3 1 CLCA, s 5AA(g). 2 Though not sentenced for it, the appellant was initially charged with two counts of choking contrary to s 20A of the CLCA. The appellant was arrested for those offences on 15 September 2022 and was a “prescribed applicant” for the purposes of the Bail Act 1985 (SA). The complainant said that she did not wish for those charges to proceed. Shortly before trial, the Director of Public Prosecutions laid an ex officio Information containing the subject charge, to which the appellant pleaded guilty on an agreed factual basis. 3 Kentwell v The Queen (2014) 252 CLR 601, [35], [43] (French CJ, Hayne, Bell and Keane JJ). -- 3 of 9 -- [2026] SASCA 8 The Court 2 The circumstances of the offending 7 The appellant and the complainant commenced a relationship in 2018. They never lived together. The appellant required that the complainant be submissive in their relationship, and he regularly subjected her to verbal abuse. 8 Whilst at the appellant’s home, the complainant received an electronic communication from a previous partner. This was seen by the appellant, who started yelling. After having a shower, he grabbed the complainant by her wrists. The complainant told the appellant to let go of her. The appellant restrained the complainant before throwing her to the floor. 9 The complainant sustained bruising to her left wrist, which she photographed. Their relationship came to an end. 10 In her victim impact statement, the complainant said that she survived the relationship and was reclaiming her identity, free of the appellant’s control. She declined to tell the court about the effect of the appellant’s conduct on her, explaining that the appellant did not deserve to know anything more about her. 11 The sentencing judge drew the inference, which is not now challenged, that the appellant caused the complainant a degree of emotional suffering in addition to physical injury. The sentencing judge explained:4 The assault which you committed against [the complainant] cannot in any way be characterised as minor, trivial or fleeting. You overbore her physically by restraining her wrists and you threw her to the floor. You assaulted [the complainant] in her own home and knowing that you were in a relationship with her. For those reasons, the offence which you committed against [the complainant] was a serious one. There is no suggestion, and it forms no part of the offence to which you have pleaded guilty, that you intended to cause [the complainant] injury or that you were even reckless about doing so. … 12 As can be seen, in this passage the offending was described as occurring in the complainant’s home, and this was one of the reasons it was considered serious. The circumstances of the offender 13 At the time of sentence, the appellant was 34 years, having been born in Pakistan and raised in Qatar. In 2003, when the appellant was 12 or 13 years, he and his family came to Australia. Initially they lived in Sydney but in 2005, when the appellant was 14, he and his family relocated to Adelaide. 14 The appellant had a good childhood but witnessed domineering and controlling behaviour by his father towards his mother. Following the separation of his parents in 2015, he maintained a positive, supportive relationship with his mother and brother. 4 Sentencing remarks, AB 107. -- 4 of 9 -- [2026] SASCA 8 The Court 3 15 During his adult life the appellant has always been studying or gainfully employed. He obtained a Bachelor of Health Sciences, working in pathology. In 2015, the appellant returned to university and obtained a post graduate degree in education, completed in 2020. The appellant then embarked on a Masters in audiology which he completed in 2023. The sentencing judge was told that it was the appellant’s intention to work in that field and that he would commence applying for jobs once these criminal proceedings concluded. 16 The appellant cut all ties with the complainant but, by the time of sentence, he had for about a year been in a healthy relationship with a woman who had a young child. That woman wrote a letter of support to the sentencing judge in which she described a kind, supportive and caring partner who had taken on substantial financial responsibility for her and her child. 17 The sentencing judge had a number of other letters and references from members of the appellant’s family and colleagues who described the appellant as a good and dependable person, and the commission of the offence of aggravated assault as out of character. The sentencing judge observed that it was unclear whether those who had provided letters and references appreciated the background of the appellant’s verbal abuse towards the complainant. Nonetheless, the sentencing judge accepted that it was out of character for the appellant to lash out with physical violence. 18 The sentencing judge accepted that the appellant was remorseful and had taken very seriously the process of engaging in abuse prevention education. The appellant had completed a number of programs. Sentencing was deferred to enable the appellant to complete an Abuse Prevention Program. The sentencing judge received a final report from the senior case manager in that Program which attested to the appellant’s awareness and recognition of his past behaviour, his willingness to reflect on the need to change as well as his desire to obtain ongoing help. 19 The sentencing judge observed that the appellant had spent a Christmas in custody, and the time he spent in custody or on home detention weighed heavily in sentencing because of its effect on personal deterrence. The sentencing judge regarded the one month the appellant spent in custody as punishment for his offending. 20 The appellant had no previous criminal history and was a first offender. The approach of the sentencing judge 21 The sentencing judge explained the sentencing considerations she took into account:5 The primary purpose for sentencing you is to protect the safety of the community. In sentencing for domestic violence offending, both personal and general deterrence are of paramount importance. The court has a duty to ensure that offending within the context of 5 Sentencing remarks, AB 107. -- 5 of 9 -- [2026] SASCA 8 The Court 4 a domestic relationship and behind closed doors is publicly denounced so that others who might be inclined to commit similar acts of violence, including those who are moved by momentary anger or frustration, are deterred from doing so. As I have already remarked, you have been distinctly punished by serving one month in custody and, to a lesser degree, by the restrictions of home detention which followed. You are a first offender, and on the material before me, a person of otherwise very good character. The extent of your remorse, contrition and commitment to rehabilitation are demonstrated by the meaningful efforts which you have made towards addressing your behaviour and attitudes towards women especially within a domestic setting. I consider that the risk of you reoffending in a similar manner, or at all, is low. These factors combine to amount to good reason not to impose any further penalty upon you. 22 As for the submission that the court should refrain from recording a conviction, the sentencing judge observed that she was required to consider the public interest as well as the appellant’s personal circumstances:6 The public interest is served by the existence of a public record of a person having committed a serious criminal offence because prospective employers or agencies engaging a person's services may have a proper interest in knowing the truth about that person’s history and character. I do not attach significant weight to the submission that a conviction is likely to adversely impact your prospects of ongoing or future employment as that is a matter about which I am invited to engage in a large degree of speculation. … The seriousness of the offence which you committed … requires a public declaration of wrongdoing on your part taking the form of a conviction. The requirement for general deterrence in sentencing you for an offence of domestic violence, such as this was, also calls for a conviction. These considerations in my view outweigh the dictates of your personal circumstances and how a conviction will or may affect you. 23 The appellant did not oppose the making of an intervention order.7 The detection of a factual error 24 Just over 10 minutes after the appellant was sentenced, it was brought to the attention of the sentencing judge that the offending occurred in the home of the appellant. The matter was called back on, and the sentencing judge acknowledged the necessity to moderate her remarks about the seriousness of the offending being informed by having occurred at the complainant’s home. The sentencing judge explained that the location of the offending did not mitigate the appellant’s conduct or reduce its seriousness for the purposes of determining whether to impose a conviction. No application to recall the sentence was made by either party. 25 Before this Court, the appellant referred to the many authorities which have recognised that offending may be more serious where it is committed in the 6 Sentencing remarks, AB 108. 7 Pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and the Sentencing Act, s 28(1). -- 6 of 9 -- [2026] SASCA 8 The Court 5 victim’s home.8 It is clear that the location of the offending was regarded by the sentencing judge as informing the seriousness of the offending. Whilst it is likely that the complainant spent time in the appellant’s home, and might have regarded it as akin to her home, there was no evidence or agreement about considerations such as these. As the High Court explained in Kentwell v The Queen:9 When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. (Citations omitted.) 26 On this approach to materiality, the question is whether the error had the capacity to affect the exercise of sentencing discretion and the sentence which was imposed.10 As the sentencing judge said that the offending in the complainant’s home was a reason why it was serious, this factual error should be regarded as material to the exercise of the sentencing discretion.11 27 There was some debate on this appeal about the status of the comments made by the sentencing judge after the matter was called back on. It is doubtful whether those comments can be taken into account by this Court. Whilst it is likely that the sentencing judge’s orders had not been perfected at the time the factual error was brought to her attention,12 the sentence was not recalled, and the sentencing judge did not then proceed to formally sentence the appellant on the correct factual basis after having received the benefit of further submissions on the issue.13 8 R v JR (a juvenile) [2022] NSWDC 618, [33] (Lerve DCJ); R v SR [2019] NSWDC 479, [14] (Lerve DCJ); Pasa v Bell [2014] ACTSC 303, [16] (Murrell CJ); DPP v Smith (No 3) [2024] ACTSC 146, [41] (Hopkins AJ): “It is made more serious because it took place in the home of the victim, in which he was entitled to feel safe. It must have been a particularly frightening experience …”. See also the Australian Institute of Judicial Administration, National Domestic and Family Violence Bench Book (2024), [9.3.1]. 9 Kentwell v The Queen (2014) 252 CLR 601, [42] (French CJ, Hayne, Bell and Keane JJ). 10 A similar approach to materiality is taken in other contexts, see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610, [14]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ); Brawn v The King (2025) 99 ALJR 872, [9]-[11] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ); MDP v The King (2025) 99 ALJR 969, [3] (Gageler CJ), referring to the reasons of Gleeson, Jagot and Beech-Jones JJ at [106]-[107]; the reasons of Gordon and Steward JJ at [33]; and the reasons of Edelman J at [44], [46]. See also White v Commissioner of Police [2025] SASC 66, [8]-[10] (B Doyle J). 11 House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ). 12 Because the orders had not likely been entered in the records of the Court, that is into the Court’s electronic court management system (ECMS), see the Joint Criminal Rules 2022 (SA), rr 40.2(3) and (4), 40.4. See also Case Stated on Acquittal (No 1 of 2015); R v Stakaj and Others (2015) 123 SASR 523, [44] (Kourakis CJ) where reference was made to “the power of the jury to correct its verdict before it has dispersed”. In civil cases see, for example, the Uniform Civil Rules 2020 (SA), rr 182.2(3) and (4); Croser v Croser [2025] SASCA 145, [15]-[18] (Livesey P). 13 Holloway v The King [2023] SASCA 130, [17] (Kourakis CJ); Ryle v The King [2025] SASCA 47, [60] (Kourakis CJ, Bleby and David JJA). -- 7 of 9 -- [2026] SASCA 8 The Court 6 The determination of the application for permission to appeal sentence 28 It is necessary to consider re-sentence. It is not necessary to repeat the circumstances of the offending and the offender. Whilst the offending was serious, it was not as grave as other cases seen by this Court. It is appropriate to proceed on the basis that the time spent in custody represented adequate punishment for the appellant’s offending.14 29 The appellant urged this Court not to impose a conviction. The appellant relied on the well-known authorities which have recognised that a conviction may put future employment prospects at risk.15 Nonetheless, the appellant also recognised that a defendant’s employment prospects may be affected regardless of whether a conviction is recorded given the disclosures now typically required when seeking employment.16 30 The appellant was critical of the observation made by the sentencing judge that she had effectively been asked to speculate about whether a conviction would adversely impact the appellant’s prospects of ongoing or future employment. 31 There is no difficulty with that observation in this case. If a defendant wishes to do more than suggest that future employment may be affected by the recording of a conviction, it is usually necessary to demonstrate why that is so. It may not be self-evident that employment will necessarily be jeopardised by a conviction. In an appropriate case, some evidence may be needed. Whether evidence is needed will inevitably depend upon the particular circumstances of the case before the court, particularly the nature of the offending and the nature of the employment, or prospective employment, before the court. 32 When a sentencing court is considering whether to exercise the power under s 97 of the Sentencing Act, if good reason exists, to discharge a defendant with or without recording a conviction on entry into a good behaviour bond,17 there will be a range of relevant considerations.18 They will extend from the defendant’s personal circumstances and rehabilitation prospects, through to the significance and purpose of recording a conviction. These considerations must be evaluated recognising that a conviction will ordinarily be recorded upon a finding of guilt,19 14 Sentencing Act, s 23(2). 15 Stubberfield v The Queen (2010) 106 SASR 91, [44] (Gray, Sulan and David JJ); Joseph v Police [2020] SASC 218 (Hughes J); RB v Police [2022] SASC 77 (McDonald J); Gallagher v Police [2025] SASC 16, [48]-[49] (McDonald J). 16 R v Hoffman [2017] SASCFC 15, [29] (Nicholson J, with whom Kourakis CJ and Parker J agreed). 17 See also ss 23 and 24 of the Sentencing Act, which enable discharge without recording a conviction, or the imposition of a penalty without recording a conviction, in each case without entry into a bond. 18 Uznanski v Searle (1981) 26 SASR 388, 388-389 (King CJ). See also MacGregor v Police (1995) 66 SASR 269, 272 (Debelle J); R v Briese; Ex parte Attorney General (1997) 92 A Crim R 75, 79 (Thomas and White JJ); Joseph v Police [2020] SASC 218, [35] (Hughes J); R v Taylor; R v Teekens [2022] SASCA 79, [20]-[22] (Lovell, Doyle and David JJA); Daley v The King [2023] SASCA 29, [36]-[40] (Livesey P and Nicholson AJA); RB v Police [2022] SASC 77, [83] (McDonald J); Gallagher v Police [2025] SASC 16, [48]-[49] (McDonald J). 19 Sims v Police (2000) 30 MVR 524, [7] (Bleby J). -- 8 of 9 -- [2026] SASCA 8 The Court 7 and the power to refrain from recording a conviction should be exercised sparingly.20 33 The recording of a conviction serves a number of important purposes. The community has a legitimate interest in ensuring that there is a public record of criminal wrongdoing. The recording of a conviction also reflects the community’s condemnation of the defendant’s conduct and operates as a deterrence to others.21 34 Accordingly, it is important that when exercising the power conferred by s 97 of the Sentencing Act the court properly evaluate these public purposes. The court must not only consider the effect of a conviction on a defendant’s personal circumstances. All relevant considerations must be taken into account. So, in this case, it is important to balance and reflect not only on the appellant’s favourable personal circumstances and good rehabilitation prospects, but the serious nature of his offending and the need for this Court to do what it can to address domestic violence. Whilst the offending did not occur in the complainant’s home, it occurred in a place where, within the sanctuary of her domestic relationship, she was entitled to be safe. Recording a conviction is an important means of reflecting this Court’s denunciation and condemnation of conduct which is rightly deprecated within the community.22 35 In our view, this is an appropriate case in which to record a conviction. Conclusion 36 In the independent re-exercise of our sentencing discretion, we would impose no lesser sentence than that imposed by the sentencing judge. Accordingly, whilst permission to appeal should be granted, the appeal should be dismissed. 20 R v Yousef (2005) 155 A Crim R 134, [62] (Sulan and Layton JJ, with whom White J agreed). 21 Daley v The King [2023] SASCA 29, [36]-[40] (Livesey P and Nicholson AJA), and the cases there cited; R v Harris (2023) 144 SASR 246, [77]-[79] (Livesey P, Lovell and Bleby JJA). 22 Millwood v The King [2024] SASCA 84, [30]-[33] (Livesey ACJ and Bleby JA); Brooks v The King [2025] SASCA 88, [63]-[66] (Livesey P and David JA). See also R v Lennon (2003) 86 SASR 295 (Doyle CJ, Prior and Vanstone JJ); R v Wilkinson (2008) 101 SASR 21 (Gray, Sulan and White JJ); R v Ritter [2016] SASCFC 88 (Nicholson, Parker and Lovell JJ); R v Saunders [2017] SASCFC 86 (Peek, Stanley and Hinton JJ); Mlakar v The King [2024] SASCA 76 (Lovell, Doyle and Bleby JJA). -- 9 of 9 --