THE KING v DYLAN LEONARD KILWORTH [2026] SASCA 32

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE KUDELKA) DCCRM-25-031763 Appellant: THE KING Counsel: MR M HINTON KC WITH MS K HAND - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: DYLAN LEONARD KILWORTH Counsel: MR S NOTTLE - Solicitor: MANGAN EY & ASSOCIATES Hearing Date/s: 10/03/2026 File No/s: SCCRM-25-049957 A 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. R v KILWORTH [2026] SASCA 32 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice David and the Honourable Justice B Doyle) 2 April 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - POWER TO BRING APPEAL CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - BREACH OF CONDITIONS OF SUSPENSION AND SENTENCE FOLLOWING BREACH CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - DENIAL OF NATURAL JUSTICE This is an application by the Director of Public Prosecutions (SA) (‘the Director’) for permission to appeal against the dismissal of an Originating Application for Enforcement Order. This application is made pursuant to s 157(1)(a)(iii) of the Criminal Procedure Act 1921 (SA) (‘the CPA’). On 13 February 2022, the respondent committed the offences of aggravated serious criminal trespass and aggravated assault against his ex-partner. On 5 May 2023, her Honour Judge Deuter sentenced the respondent for both offences pursuant to s 26 of the Sentencing Act 2017 (SA) (‘Sentencing Act’). Taking into account his guilty plea and time spent in custody, the respondent was sentenced to two years, six months and 18 days’ imprisonment. A non-parole period of one year and six months’ imprisonment was fixed. The sentence was suspended upon the respondent entering into a bond in the amount of $1,500 to be of good behaviour for a period of three years. A condition of the bond required the respondent to be supervised by a Community Corrections Officer for two years and obey -- 1 of 21 -- their reasonable directions (‘the supervision condition’). Another condition prohibited the respondent from consuming any drug unless medically prescribed or legally available (‘the no drug condition’). On 20 May 2024, the Director filed an Originating Application for Enforcement Order in relation to the bond entered into by the respondent before her Honour Judge Deuter. This application, and accompanying affidavits, alleged that the respondent failed to report for supervision on numerous occasions. The respondent acknowledged the bond and admitted the breaching conduct on 26 July 2024. On 14 March 2025, his Honour Judge Barklay found proper grounds to excuse the breaching conduct, varied and extended the supervision condition for a further 12 months. On 8 August 2025, the Director filed a second Originating Application for Enforcement Order (that being the application subject of the appeal) in relation to further failures by the respondent to attend for supervision as required. The hearing scheduled for 17 October 2025 was administratively adjourned at the request of the respondent’s counsel. A progress report was ordered to assess the respondent’s responsivity to supervision. The matter was listed for submissions on 26 November 2025. On 26 November 2025, the respondent failed to appear. His counsel sought leave for himself and his solicitor to withdraw from the file, stating that they had not had contact with the respondent for some time. At the hearing, the prosecutor sought time to amend the application and file a further affidavit alleging five breaches by the respondent of the no drug condition, which were raised, for the first time, in the progress report ordered on 17 October 2025. The sentencing judge declined to adjourn the hearing and proceeded to dismiss the application without the bond or alleged breaches of the bond ever being put to the respondent, and in his absence, notwithstanding the fact that his counsel had no instructions and had applied to withdraw from the file. The Director now applies permission to appeal against the sentencing judge’s order to dismiss the application on the following grounds: 1. The sentencing judge acted beyond power in dismissing the application pursuant to s 114 of the Sentencing Act. 2. In dismissing the application, the sentencing judge denied the parties procedural fairness. 3. In the alternative, if the sentencing judge acted within power, the sentence imposed was manifestly inadequate as it departed from the available sentencing options provided for in s 114 of the Sentencing Act. Held, per the Court, granting permission to appeal on Grounds 1 and in part, on Ground 2 and allowing the appeal: 1. The sentencing Judge’s decision is a sentence capable of being appealed pursuant to the right of appeal vested in the Director by s 157(1)(a)(iii) of the CPA. 2. As to Ground 1, the sentencing judge erred by proceeding to find that the respondent failed to comply with a condition of the bond ‘on the papers’ and without the bond or the alleged breaches of the bond having been put to the respondent. This was a significant departure from the procedure contemplated by the statutory scheme for enforcement applications. 3. As to Ground 2, whilst the sentencing judge’s erroneous approach to the enforcement application did not result in any practical injustice to the respondent, the Director was not accorded procedural fairness. 4. It was not necessary to consider the Director’s alternative third ground of appeal that the sentence imposed was manifestly inadequate. -- 2 of 21 -- 5. There are strong public policy reasons to grant the Director permission to appeal. The appeal is allowed and the second Originating Application for Enforcement dated 8 August 2025 is remitted to the District Court for re-determination. Criminal Procedure Act 1921 (SA) ss 151, 157, 158; Joint Criminal Rules 2022 (SA) r 174; Sentencing Act 2017 (SA) ss 5, 96, 98, 103, 108, 113, 114, referred to. Department of Family and Community Services v C (1997) 190 LSJS 1; DL v The Queen (2018) 265 CLR 215; House v The King (1936) 55 CLR 499; Lacey v Police [1999] SASC 177; Magaming v The Queen (2013) 252 CLR 381; Nollen v Police (SA) (2001) 78 SASR 421; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; R v Buckman (1988) 47 SASR 303; R v Bui (2016) 125 SASR 137; R v Chandra (Unreported, Court of Criminal Appeal, SA, No S6554, 17 February 1998); R v Heritage (2019) 135 SASR 1; R v Lewis (1988) 165 CLR 12; R v Marshall [2016] SASCFC 147; R v Marston (1993) 60 SASR 320; R v Osenkowski (1982) 30 SASR 212; R v Scuteri [2018] SASCFC 103; R v Singh [2024] SASCA 81; R v Yandle [2024] SASCA 111; Trott-Dan v The King [2023] SASCA 2, considered. -- 3 of 21 -- -- 4 of 21 -- R v KILWORTH [2026] SASCA 32 Court of Appeal: Criminal – Livesey P, David and B Doyle JJA 1 THE COURT: This is an appeal by the Director of Public Prosecutions (SA) (‘the Director’) against the dismissal of an Originating Application for Enforcement Order (‘the application’), instituted pursuant to s 157(1)(a)(iii) of the Criminal Procedure Act 1921 (SA) (‘CPA’). 2 The issues raised by this appeal are whether the sentencing judge, by determining an application for enforcement of a suspended sentence bond without the alleged breaches being put to the probationer, and in his absence, erred in the exercise of the powers conferred by s 114 of the Sentencing Act 2017 (SA) (‘Sentencing Act’). 3 For the reasons which follow, we grant the Director permission to appeal, allow the appeal and remit the matter to the District Court for re-determination. An overview of the proceedings The original sentence 4 On 13 February 2022, the respondent committed the offences of aggravated serious criminal trespass and aggravated assault. The victim was his ex-partner. On 5 May 2023, her Honour Judge Deuter sentenced the respondent for both offences pursuant to s 26 of the Sentencing Act. Taking into account his guilty plea and time spent in custody, the respondent was sentenced to two years, six months and 18 days’ imprisonment. A non-parole period of one year and six months’ imprisonment was fixed. 5 The sentence was suspended upon the respondent entering into a bond in the amount of $1,500 to be of good behaviour for a period of three years. A condition of the bond required the respondent to be supervised by a Community Corrections Officer for two years and obey their reasonable directions (‘the supervision condition’). Another condition prohibited the respondent from consuming any drug unless medically prescribed or legally available (‘the no drug condition’). The first originating application for enforcement of the bond 6 On 20 May 2024, the Director filed an Originating Application for Enforcement Order in relation to the bond entered into by the respondent before her Honour Judge Deuter. This application, and accompanying affidavits, alleged that the respondent failed to report for supervision on numerous occasions. The respondent acknowledged the bond and admitted the breaching conduct on 26 July 2024. 7 The Director’s application was heard before his Honour Judge Barklay on 14 March 2025. -- 5 of 21 -- [2026] SASCA 32 The Court 2 8 The Director’s position on the first application was that while the breaches were not trivial, it was open to the Judge to excuse the breaches. It was submitted that the period of supervision should be extended. His Honour found proper grounds to excuse the breaching conduct, varied and extended the supervision condition for a further 12 months. The second originating application for enforcement of the bond 9 On 8 August 2025, the Director filed a second Originating Application for Enforcement Order in relation to further failures by the respondent to attend for supervision as required (this being the application the subject of this appeal). This application was first heard in the District Court before the sentencing judge on 19 September 2025. The respondent appeared but the matter was adjourned to 17 October 2025 to enable him to obtain legal representation. 10 The hearing scheduled for 17 October 2025 was administratively adjourned at the request of the respondent’s counsel. A progress report was ordered to assess the respondent’s responsivity to supervision. The matter was listed for submissions on 26 November 2025. 11 On 26 November 2025, the respondent failed to appear. His counsel sought leave for himself and his solicitor to withdraw from the file, stating that they ‘haven’t had contact for some time’ with the respondent. The application for leave to withdraw was never determined by the sentencing judge. It is unclear from the transcript of the proceedings whether the respondent was advised of the administratively adjourned court date of 26 November 2025. Nothing was said by the respondent’s counsel to indicate, one way or another, whether the respondent knew of the adjourned hearing date. 12 At the hearing, the prosecutor sought time to file a further affidavit alleging five breaches by the respondent of the ‘no drug’ condition (in late 2023 to early 2024) which were raised, for the first time, in the progress report which had been ordered on 17 October 2025. 13 The sentencing judge declined to adjourn the hearing of the application, stating that ‘the amount of court time that this matter is taking up is disproportionate.’ Her Honour proceeded to deal with the application without the alleged breaches ever being put to the respondent, and in his absence, notwithstanding that his counsel had no instructions and had applied to withdraw from the file. 14 Her Honour set out the procedural history of the enforcement applications before turning to the application the subject of the appeal, and ‘dismissing’ the application. Her Honour said: The director has filed a further application which is now before me dated 8 August 2025. The papers complain that [the respondent] has breached condition 3 again regarding his supervision. From the material before me, it appears that his attendance at supervision has been sporadic since he was dealt with by Judge Barklay on 14 May 2025. He reported on -- 6 of 21 -- [2026] SASCA 32 The Court 3 23 April 2025 and 6 May 2025 and I have information from a progress report that his last attendance was 5 June 2025. I also have information from the progress report that he contacted the office on 7 July 2025 asking to report and was directed to report on 16 July but did not report. The director points out that there have been some positive drug tests and has indicated they could be the subject of a further amended application regarding breaching the bond. However, more significantly is that the most recent drug tests have been negative and, also, much more significantly, is that there is no information before me that [the respondent] in fact offended since February of 2022. The primary sentencing purpose is the protection of the safety of the community. Even though his attendance for supervision has not been perfect, he has not reoffended. In my view, revoking the suspension of the sentence of two years, six months, 18 days with a non-parole period of one year and six months now would be quite disproportionate to the nature and circumstances of the alleged breaches, namely, the sporadic non-attendance for supervision, and based on the papers, I dismiss the application. 15 The Director now applies for permission to appeal against that determination. The appeal grounds 16 The Director appeals on the following amended grounds: 1. The sentencing Judge acted beyond power in dismissing the application pursuant to s 114 of the Sentencing Act 2017 (SA): 2. In dismissing the application, the sentencing Judge denied the parties procedural fairness. 3. In the alternative, if the sentencing Judge acted within power, the sentence imposed was manifestly inadequate as it departed from the available sentencing options provided for in s 114. A competent appeal? 17 The first issue raised by this appeal is whether the sentencing judge’s order constitutes a ‘sentence’ for the purposes of s 157(1)(a)(iii) of the CPA, and is within the meaning and scope of Part 6A, Division 2 of the CPA. 18 Part 6A of the CPA governs appeals in the context of criminal proceedings. An appeal by the Director against sentence lies to the Court of Appeal on any ground where there is a sentence passed on conviction, or there is a decision of the court to defer the sentencing of the convicted person, with the permission of the Court of Appeal.1 19 Section 151 of the CPA defines ‘sentence’ for the purposes of an appellate procedure as: 1 CPA s 157(1)(a)(iii). -- 7 of 21 -- [2026] SASCA 32 The Court 4 Includ[ing] any order of the court of trial or of the judge of such court made on, or in connection with, a conviction with reference to the convicted person, or any property, or with reference to any moneys to be paid by the person, and also includes an order under the sentencing law discharging the convicted person, without imposing a penalty, on the person entering into a bond. 20 Section 158(7) of the CPA provides: 158 – Determination of appeals in ordinary cases … (7) Subject to subsection (8), on an appeal against sentence, the Court of Appeal must– (a) if it thinks that the sentence is affected by error such that the defendant should be re-sentenced– (i) quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or (ii) quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or (b) in any other case – dismiss the appeal. … 21 The order of the sentencing judge dismissing the application is an order made in connection with a conviction with reference to the convicted person by reason of the fact it is related to bringing into effect an order made on conviction, that being the imposition of a head sentence and non-parole period. 22 Accordingly, the sentencing judge’s decision is a sentence capable of being appealed pursuant to the right of appeal vested in the Director by s 157(1)(a)(iii) of the CPA. 23 Before considering the Director’s grounds of appeal, it is necessary to outline the relevant statutory provisions relating to the imposition and enforcement of suspended sentence bonds provided for by Division 2 and Division 3 of the Sentencing Act. Legislative framework 24 Subject to s 96 of the Sentencing Act, a court may impose a sentence of imprisonment, but suspend that sentence, if good reason exists, upon the defendant entering into a bond to be of good behaviour and agreeing to comply with the conditions of the bond. Under s 96(2), a bond is subject to two mandatory conditions: a condition prohibiting a defendant from possessing a firearm or ammunition or any part of a firearm; and a condition requiring the defendant to submit to tests for gunshot residue as may be reasonably required. -- 8 of 21 -- [2026] SASCA 32 The Court 5 25 Section 98 provides that a bond may also include various conditions including, relevantly, a condition requiring the defendant to be placed under the supervision of a Community Corrections Officer for a specified period; a condition requiring the defendant to perform a specified number of hours of community service; a condition requiring the defendant to abstain from drugs of a specified class (including alcohol) and a condition requiring the defendant to submit to such tests (including testing without notice) relating to drug use as a Community Corrections Officer may reasonably require. 26 As to the variation or discharge of a bond, pursuant to s 103(1), a court may, on the application of a probationer or the Minister for Correctional Services, vary or revoke a condition of a bond under the Sentencing Act. 27 As to a supervision condition, under s 108(1)(a), a Community Corrections Officer, responsible for supervising a person in the community, must give reasonable directions to the person requiring the person to report to the officer on a regular basis. 28 Division 3 of the Sentencing Act deals with the enforcement of bonds, community service orders and other orders of a non-pecuniary nature. 29 A suspended sentence bond imposed under these provisions can be characterised as ‘an agreement … entered into pursuant to the sentence of a court under which the defendant undertakes to the Crown to comply with the conditions of the agreement …’.2 To that end, a bond is considered contractual in nature between the Crown and the probationer.3 As an agreement between the probationer and the Crown, it is the Crown who brings an application for enforcement. It is only the Crown who can initiate enforcement proceedings, as they are prosecutorial in nature.4 Thus, there are three relevant parties concerned with the imposition of a bond: the Crown, the defendant (or probationer) and the court. 30 Notwithstanding the effect of a bond as an agreement between the Crown and the probationer, the imposition and operation of a suspended sentence bond is intended to act as a penalty. It is a sentence which, in principle, acknowledges the seriousness of the offending and aims to meet the sentencing objectives of punishment and the protection of the safety of the community while still providing scope for the defendant’s rehabilitation within the community. A suspended sentence bond is generally understood to be the most serious sentence a court can impose other than an immediate custodial sentence, or a sentence ordered to be served on home detention. 31 Under r 174.1 of the Joint Criminal Rules 2022 (SA) (‘JCR’), an application to enforce a sentencing order made against the probationer must be made by an 2 Sentencing Act s 5(1). 3 Trott-Dan v The King [2023] SASCA 2 at [92] (Lovell, Doyle and David JJA); Nollen v Police (SA) (2001) 78 SASR 421 at [51] (Gray J). 4 Department of Family and Community Services v C (1997) 190 LSJS 1. -- 9 of 21 -- [2026] SASCA 32 The Court 6 originating application. The probationer (referred to as ‘the subject’) is to be joined as the respondent to the proceedings. 32 The power to bring the application for non-compliance with a bond is found in s 113 of the Sentencing Act, which relevantly provides: 113–Non-compliance with bond (1) If it appears to a probative court, by evidence given on oath, that a probationer may have failed to comply with a condition of the probationer’s bond, the court– (a) may– (i) issue a summons to the probationer requiring the probationer to appear before the court at the time and place specified in the summons; or (ii) issue a warrant for the probationer’s arrest; and (b) may issue a summons to a guarantor. (2) If a person fails to appear before the court as required by a summons issued under this section, the court may issue a warrant for the person’s arrest. (3) If a person is arrested pursuant to a warrant issued under this section, the person must be brought before the probative court or the Magistrates Court not later than the next working day and may be remanded in custody or released on bail pending determination of the proceedings. (4) If the probationer is found guilty of an offence by a court of a superior jurisdiction to that of the probative court, being an offence committed during the term of the bond, any proceedings for breach of condition arising out of the offence are to be taken in the court of superior jurisdiction. (5) If a probationer is found guilty of the offence by an inferior jurisdiction to that of the probative court, being an offence committed during the term of the bond, the court of an inferior jurisdiction must– (a) sentence the probationer for the offence and remand the probationer to the probative court to be dealt with for breach of the conditions of the bond; or (b) remand the probationer to the probative court to be sentenced for the offence and dealt with for breach of the conditions of the bond. (6) The court dealing with a probationer for breach of condition must hear any evidence adduced tending to establish that the probationer has failed to comply with a condition of the bond and any evidence or representations that the probationer may wish to adduce or make in reply. … 33 The bringing of an enforcement application under s 113 of the Sentencing Act, and r 174.1 of the JCR, engages the jurisdiction of the probative -- 10 of 21 -- [2026] SASCA 32 The Court 7 court. The dispositive powers available in the court’s exercise of the jurisdiction are conferred by s 114 of the Sentencing Act,5 which relevantly provides: 114 – Orders that court may make on breach of bond (1) If the court is satisfied that the probationer has failed to comply with a condition of the bond, the court— (a) may, if the bond requires the probationer to pay a sum in the event of non-compliance with a condition of the bond, order the probationer to pay the whole or a part of that sum; or (b) may order a guarantor to pay the whole or a part of the amount due under the guarantee; or (c) may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond— (i) sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or (ii) if the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds on which the failure should be excused, refrain from taking any action in respect of the failure; or (d) if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect. (2) The court may not order a person to pay an amount pursuant to subsection (1)(a) unless the court is satisfied that— (a) the person has, or will within a reasonable time have, the means to pay the amount; and (b) payment of the amount would not unduly prejudice the welfare of dependants of the person. (3) If a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds on which the failure should be excused, the court may refrain from revoking the suspension and— (a) in the case of a bond requiring performance of community service—may— (i) extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or 5 The Sentencing Act was preceded by the Criminal Law (Sentencing) Act 1988 (SA) and the Offenders Probation Act 1913 (SA) respectively. Each preceding Act featured a similar provision allowing for the excusal of a breach on the basis of triviality or by finding the existence of proper grounds. -- 11 of 21 -- [2026] SASCA 32 The Court 8 (ii) extend the period within which any uncompleted hours of community service must be performed by not more than 6 months; or (iii) if the period within which the community service must be performed has expired, impose a period of not more than 6 months within which any uncompleted hours of community service must be performed; or (iv) cancel the whole or a number of any unperformed hours of community service; or (v) revoke or vary any other condition of the bond; and (b) in the case of any other bond—may— (i) extend the term of the bond by such period (not exceeding 12 months) as the court thinks fit; or (ii) impose a condition on the bond requiring the probationer to perform a specified number of hours of community service; or (iii) revoke or vary any other condition of the bond; and (c) if the bond has expired in any case—may require the probationer to enter into a further bond, the term of which must not exceed 12 months. (4) Section 105 applies in relation to a bond in respect of which a condition requiring the performance of community service is imposed under subsection (3)(b)(ii). (5) If a court revokes the suspension of a sentence of imprisonment, the court may make any of the following orders: (a) if it considers that there are special circumstances justifying it in so doing–an order reducing the term of the suspended sentence; (b) an order directing that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence; (c) in the case of a probationer whose sentence of imprisonment was partially suspended under section 96(5) and even if the term of the sentence now to be served in custody is less than 12 months–an order fixing or extending a non-parole period taking into account the time spent in custody by the probationer before being released on the bond; (d) an order directing that– (i) in the case of a sentence partially suspended under section 96(4) or (5)–any part of the sentence that the probationer has not served in custody; or (ii) in any other case – the suspended sentence, -- 12 of 21 -- [2026] SASCA 32 The Court 9 be cumulative on another sentence, or sentences, of imprisonment then being served, or to be served, by the probationer. (6) If a court other than the probative court sentences a probationer for the original offence, the court cannot impose a sentence that the probative court could not have imposed. 34 The powers conferred by s 114 are enlivened when the probative court is satisfied of the matter addressed in the chapeau to s 114(1); namely, that the probationer has failed to comply with a condition of the bond. The standard of proof denoted by ‘satisfied’ is beyond reasonable doubt; that is, it is for the prosecuting authority to prove beyond reasonable doubt that the probationer has entered the bond and failed to comply with a condition of the bond. 35 In R v Buckman,6 (‘Buckman’) King CJ addressed the legislative policy of applications for the enforcement of a suspended sentence bond:7 There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance. 36 It is well established that the possibility of the enforcement of a suspended sentence bond, and therefore the bringing into effect of a term of imprisonment, serves to act as a deterrent to the defendant or probationer for the life of the bond. It follows that should the courts deal with applications for the enforcement of suspended sentence bonds expediently, with inappropriate leniency and without proper regard to the statutory requirements for enforcement, the integrity and effectiveness of suspended sentences as a means of deterring future offenders, will be undermined and placed at risk.8 37 In Buckman, Jacobs J (agreeing with King CJ) noted that these statutory provisions9 ‘… clearly dictate the proper judicial approach’. The judicial approach or judicial method includes the duty to hear both sides and principles of procedural fairness. As Gageler J (as his Honour then was) explained in Magaming v The Queen:10 6 (1988) 47 SASR 303. 7 R v Buckman (1988) 47 SASR 303 at 304 (King CJ). 8 R v Marston (1993) 60 SASR 320 at 322 (King CJ, Perry and Duggan JJ agreeing). See also Lacey v Police [1999] SASC 177 at [22] (Perry J); R v Chandra (Unreported, Court of Criminal Appeal, SA, No S6554, 17 February 1998) (Doyle CJ, Cox and Williams JJ agreeing); R v Bui (2016) 125 SASR 137 at [58] (Kelly J, Blue and Nicholson JJ); R v Heritage (2019) 135 SASR 1 at [21] (Blue J, Stanley and Lovell JJ agreeing); R v Scuteri [2018] SASCFC 103 at [33] (Peek J, Lovell and Doyle JJ agreeing). 9 Section 9 of the now repealed Offenders Probationers Act 1913 (SA), which were in the same terms as s 114 of the Sentencing Act 2017 (SA). 10 (2013) 252 CLR 381 at [65]-[66] (Gageler J). -- 13 of 21 -- [2026] SASCA 32 The Court 10 The unique and essential function of the judicial power is the quelling of … controversies [including those between the executive and the individual as to life or liberty] by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion. The exercise of the judicial power “involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process”, which “requires that the parties be given an opportunity to present their evidence and [at least ordinarily] to challenge the evidence led against them. Those standard non-exhaustive descriptions of the nature of judicial power and the incidents of its exercise apply to the determination of criminal punishment no less than to the determination of criminal guilt. The facts relevant to each are limited to those facts permitted by law to be taken into account by a court… (citations omitted) 38 It is against this legislative background and settled judicial approach to the enforcement of suspended sentence bonds that the Director’s overarching contentions fell to be considered; namely, that the sentencing judge’s determination of the application for enforcement or ‘sentence’ involved a significant departure from what the statute contemplates, and failed to accord the parties procedural fairness. Ground 1: The sentencing judge erred in dealing with the application to enforce a suspended sentence bond in the absence of the respondent appearing before the court; and acknowledging the bond and admitting the breaches 39 In his written submissions, the Director contended that the sentencing judge acted without power by proceeding to make orders under s 114(3) without, first, being satisfied of the requirement in the chapeau to s 114(1) that the probationer has failed to comply with a condition of the bond. The Director submitted that the exercise of any power pursuant to s 114 is conditioned upon the probative court being satisfied that the probationer has failed to comply with a condition of the bond. Accordingly, it was contended that her Honour fell into jurisdictional error. 40 However, during the appeal hearing, the Director conceded that the sentencing judge implicitly found that the respondent failed to comply with a condition of the suspended bond but contended that her Honour’s approach to making that finding involved significant departures from the requirements contemplated by the statutory scheme. In particular, the Director contends that her Honour erroneously exercised the powers under s 114 by failing to put to the respondent the fact of the suspended sentence bond to be acknowledged, and the alleged breaches of the bond to be admitted or denied (and if denied, proved by the Director). 41 As outlined above, it was common ground that the bond, and the alleged breaches of the bond, were never put to the respondent. Consequently, the respondent did not admit the alleged breaches, nor was the Crown ever put to proof. As mentioned, a summons was served on the respondent on 11 September 2025 to attend court on 19 September 2025. On 19 September 2025, the respondent -- 14 of 21 -- [2026] SASCA 32 The Court 11 appeared in person but unrepresented and told the sentencing judge that his lawyer could not be there that day. The hearing was adjourned for submissions on 17 October 2025. This date was administratively adjourned at the request of the respondent’s legal representatives to 26 November 2025. 42 On 26 November 2025, the respondent’s counsel indicated to the court that he had no instructions and sought leave to withdraw from the file. The prosecutor made no application for a warrant to issue, nor for the court to determine the application in the respondent’s absence. Rather, the prosecutor sought an adjournment to amend the application by adding further breaches of the ‘no drug’ condition (albeit they pre-dated the other alleged breaches). 43 It is the Director’s contention that in the absence of the respondent acknowledging the bond, and the Crown proving or the probationer admitting his alleged non-compliance, the sentencing judge erred by proceeding to exercise the powers under s 114(3). That is, the statutory provisions contemplate that the bond and the alleged breaches of the bond, will be formally put to the probationer (and if denied, proved). To proceed without undertaking this step in the process amounts to an erroneous exercise of the powers conferred by s 114, albeit that this is an error made within jurisdiction. 44 We accept the Director’s contention. 45 It is to be accepted that the Sentencing Act is silent as to whether an application for enforcement can be decided in the absence of the bond and the alleged breaches of conditions of the bond being put to the probationer. The powers under s 114 are only expressly conditioned on the probative court being satisfied that the probationer has failed to comply with a condition of the bond. 46 However, the statutory powers contained in s 114 are exhaustive. There is no power in the Sentencing Act which otherwise permits the merits of an application for enforcement to be determined in the absence of the probationer and ‘on the papers’. 11 Moreover, the legislature has clearly contemplated that the probationer will be present for the determination of the application. Under s 113(1), the probative court is empowered to compel the probationer to appear at the hearing of the application through the issuance of a summons or warrant. Section 113(2) provides that the probative court may issue a warrant for the probationer’s arrest if he or she fails to appear before the court as required by the summons. 47 More significantly, without the alleged breaches being put to the probationer and admitted or denied (thereby putting the Crown to proof on the contested aspects of the application), the probationer is not given the opportunity to challenge the alleged instances of non-compliance. Furthermore, even where a probationer may have admitted the breaches, unless they are put there is no 11 In contrast, reg 7(4) of the now-repealed Criminal Law (Sentencing) Regulations 2000 (SA) explicitly provided for such applications to be dealt with in the absence of the probationer provided that the summons was duly served on them. -- 15 of 21 -- [2026] SASCA 32 The Court 12 opportunity for the probationer to explain his or her non-compliance. In an appropriate case the probationer may wish to contest, for example, that the breaches should be excused as trivial under s 114(1)(c)(iii). Similarly, without a hearing there would be no opportunity for the Crown to formulate an informed position as to the appropriate exercise of the various powers conferred under s 114. 48 For example, it may be that the probationer has failed to report for supervision and the breach may, on the face of the affidavits, appear impregnable. However, if the non-compliance is put to the probationer, it may be submitted that the directions given by the supervising Community Corrections Officer were not ‘reasonable directions’ (under s 108). Alternatively, a probationer may have an explanation for a failure to attend supervision which places the seriousness of the breach in a different context. There is obvious scope for a range of permutations on these scenarios. The point is that without the bond being acknowledged and the alleged breaches being put to the probationer (so that they are admitted or proved), the probative court will be denied informed submissions as to the proper exercise of the dispositive powers conferred under s 114. This speaks against the probative court being able to make a finding of non-compliance and exercise the powers under s 114 without the fact of the bond and the alleged breaches being put to the probationer. 49 Moreover, s 114(5)(a) of the Sentencing Act confers upon the probative court considering whether to order that a sentence be carried into effect, a discretion to reduce the length of the suspended sentence where it is satisfied that there are ‘special circumstances’ justifying that course. The special circumstances which must exist to authorise a reduction must be such as render the original sentence inappropriate for that offence in the special circumstances now existing.12 The probative court must be able to say that if those circumstances had existed at the time of the imposition of the sentence, the sentence imposed would have been inappropriate.13 Special circumstances encompass broader issues not directly related to the breaching conduct which have arisen after the imposition of the suspended sentence. They can also include the probationer’s rehabilitation since the breaching conduct which render the original sentence inappropriate in the special circumstances now existing.14 The focus of any submissions about special circumstances justifying the reduction of the length of a revoked suspended sentence will invariably turn on the personal circumstances of the probationer. It is difficult to envisage how a probative court could properly consider the exercise of this power in the absence of the alleged breaches being put to the probationer, and if the breach is admitted or proved, receiving evidence or submissions from the probationer as to his personal circumstances. 12 R v Buckman (1988) 47 SASR 303 at 304 (King CJ). 13 R v Buckman (1988) 47 SASR 303 at 304 (King CJ). 14 R v Marshall [2016] SASCFC 147 at [6] (Vanstone and Parker JJ agreeing), [19] (Doyle J). -- 16 of 21 -- [2026] SASCA 32 The Court 13 50 It follows that where a summons has been issued, the provisions under Division 3 of the Sentencing Act contemplate the following procedural steps: 1. If the probationer fails to appear, and there is no proof of service, the probative court may issue a fresh summons to appear. If the probative court is satisfied that the summons has been served, the probative court may adjourn the application to another date or issue a warrant for the probationer’s arrest. 2. If the probationer appears before the probative court, the sentencing judge is to put the bond, and the alleged breaches of conditions of the bond, to the probationer for an answer. 3. If the probationer acknowledges the bond and admits non-compliance with conditions of the bond, the sentencing judge will make a finding the probationer has failed to comply with a condition of the bond, and the matter will proceed to submissions as to the exercise of the powers under s 114. If the bond is not acknowledged or the probationer does not admit non-compliance with the bond, it will be necessary for the prosecution to prove those matters beyond reasonable doubt. 4. Pursuant to s 113(6), a sentencing judge must hear any evidence adduced tending to establish that the probationer has failed to comply with a condition of the bond, and any evidence or representations from the probationer seeking an explanation or excuse the breach. 51 In the present case, the sentencing judge erred by proceeding to find that the probationer failed to comply with a condition of the bond ‘on the papers’ and without requiring that the bond or the alleged breaches be put to the respondent. This was a significant departure from the procedure contemplated by the statutory scheme for enforcement applications. Ground 2: A denial of procedural fairness 52 In criminal proceedings, including proceedings relevant to sentencing, the parties are to be accorded procedural fairness.15 ‘Fairness’ is not an abstract concept but is to be construed in light of the circumstances of the case. A denial of procedural fairness will arise where a party has suffered an unfairness resulting in a practical, as opposed to theoretical, injustice.16 53 This ground complains that the practical injustice occasioned to the parties is two-fold. First, neither the respondent nor the Crown was heard on the disposition of the application. Secondly, the Crown was denied an opportunity to file evidentiary material alleging further breaches of the bond in circumstances where 15 DL v The Queen (2018) 265 CLR 215; R v Lewis (1988) 165 CLR 12. 16 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37] (Gleeson CJ). -- 17 of 21 -- [2026] SASCA 32 The Court 14 the sentencing judge was obliged to hear any evidence in support of the application pursuant to s 113(6) of the Sentencing Act. 54 As to the first alleged denial of procedural fairness, by reason of the fact that the alleged breaches were never put to the respondent, and given his counsel was without instructions, the respondent’s position with respect to the application was unknown. The respondent was not given the opportunity to deny any aspect of his alleged non-compliance or put any submissions as to the circumstances of his non-compliance with the bond. 55 However, during the appeal hearing, counsel for the respondent indicated that the appellant now admitted the breaches and, on any re-consideration of the application, he would urge the probative court to find that there were proper grounds to excuse the breaches on the basis that revocation of the suspended sentence would result in an outcome which was disproportionate to his breaching conduct. This, in effect, reflected the approach taken by the sentencing judge. Given that intimation, there appears to have been no practical injustice to the respondent. 56 However, before the sentencing judge, the Crown had no information about whether the breaches would be admitted or denied. Nor was the Crown provided any information as to the circumstances of the alleged breaches nor as to the probationer’s current personal circumstances beyond the limited information provided by the progress report. Accordingly, the Crown was not in any position to make any informed submissions as to the court’s exercise of the powers under s 114. For that reason, by proceeding peremptorily her Honour denied the Crown a fair hearing. 57 As to the second aspect of the complaint, the prosecutor sought an opportunity to file additional evidentiary material to allege further breaches by the probationer of the ‘no drug’ condition. Those allegations consisted of the respondent returning five positive drug test results between 29 May 2023 and 5 September 2024. They were raised for the first time in the progress report ordered by the probative court in October 2025. 58 Section 113(6) of the Sentencing Act requires a sentencing judge to hear any evidence adduced to establish that the probationer has failed to comply with a condition of the bond, and any evidence or submissions the probationer may wish to make in reply. Despite s 113(6), the sentencing judge erroneously declined the Crown’s application to amend the application. As the breaches were raised for the first time in the recent progress report, there was no delay on the part of the Crown in bringing the application. In addition, an amendment would have brought clarity to the terms of the enforcement application. It was open to her Honour to entertain the oral application to amend. Allowing that application did not need to result in a lengthy adjournment or, indeed, any adjournment at all. -- 18 of 21 -- [2026] SASCA 32 The Court 15 59 As to the question of whether the sentencing judge’s erroneous approach to the application for amendment resulted in any practical injustice to the parties, it seems that her Honour took those alleged breaches into account (despite the fact they were not admitted by the probationer). In her sentencing remarks, her Honour referred to the positive drug tests, observing that the Director ‘has indicated that they could be the subject of a further amended application regarding breaching the bond.’ Her Honour went on to say, favourably to the respondent, ‘that the most recent drug tests had been negative and, also, much more significantly, is that there is no information before me that [the respondent] has in fact offended since February of 2022.’ 60 Given those remarks, it cannot be said that the sentencing judge did not take the respondent’s failure to comply with the ‘no drug’ condition into account. That being so, there was no practical injustice to the Director that could be said to amount to a denial of procedural fairness. 61 As to the respondent, given his counsel’s intimation at the appeal hearing that non-compliance with the ‘no drug’ condition is now admitted, and the favourable manner in which the sentencing judge dealt with the matter, it cannot be said there is any practical injustice to the respondent. 62 We consider that the Director’s complaints under Grounds 1 and, in part, under Ground 2 have been made out. Accordingly, there is no need to consider the Director’s alternative third ground of appeal that the sentence imposed was manifestly inadequate. Permission to appeal 63 Having found that the sentencing judge erred in determining the application for enforcement of the bond, it is necessary to consider whether this is an appropriate case for a grant of permission to appeal. 64 The general principles governing permission to appeal on a prosecution appeal are well established. They were recently summarised in the context of a prosecution appeal complaining of manifest inadequacy in R v Singh:17 The principles governing an application for permission to appeal against sentence by the Director are well established. Where the Director's complaint involves one of manifest inadequacy, there will only be a grant of permission in the ‘rare and exceptional case’ where principles of double jeopardy are outweighed by the need to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or to correct a sentence which is so manifestly inadequate that it amounts to an error of principle. (citations omitted) 17 [2024] SASCA 81 at [30] (Livesey ACJ, Doyle and David JJA). See also R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ); House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ). -- 19 of 21 -- [2026] SASCA 32 The Court 16 65 In the present case, the sentencing judge’s exercise of her authority under s 114 involved significant departures from the procedure contemplated by the statutory scheme and denied the Director procedural fairness. 66 This is not to say that, had the statutory procedure been followed, the suspended sentence would necessarily have been revoked. As much was conceded by the Director on the appeal hearing. However, there are important and wider purposes served by adherence to the statutory process, and important public policy reasons raised by the application for permission to appeal. It would appear that there is a need to set out clearly the appropriate approach of a probative court when determining an application for the enforcement of a suspended sentence bond. 67 In addition, the sentencing judge’s truncated approach to the application for enforcement resulted in the respondent not being called to account for his failures to comply with the bond. The Director was not provided the opportunity to properly provide informed submissions to the probative court as to the disposition of the application. Her Honour’s peremptory treatment of the application has the potential to diminish the suspended sentence regime as an effective form of punishment and undermine public confidence in the administration of justice. 68 Importantly, the order made by the sentencing judge was that ‘the application is dismissed’. There was no power under s 114 of the Sentencing Act for her Honour to make that order. It may be accepted that her Honour’s order (when read in conjunction with her sentencing remarks) was intended to reflect that there were proper grounds to excuse the non-compliance with the bond. However, that was not reflected in the court outcome. 69 The sentencing judge’s erroneous approach to the order made reflects the errors considered in R v Yandle,18 where this Court said:19 The circumstance that the sentence imposed was not authorised by law, and included a bond which may be vulnerable to challenge and unenforceable, weighs heavily in favour of intervention. Whilst the requirement for permission to appeal presupposes that it may not be inconsistent with the administration of justice to leave in place a sentence which is manifestly inadequate, or otherwise infected by some process error, there is something more fundamental about an error which goes to the authority of the Court to impose, and the potential enforceability of, the impugned sentence. The public interest in favour of intervention is stronger in the case of an error of this nature. As White J said when granting permission to appeal in R v Ossitt: “The imposition of a sentence which is not authorised by law is an affront to the administration of justice. Sentencing courts must act according to law. To allow a sentence not authorised by law to stand would not achieve the purposes of the criminal law and would undermine public confidence in the courts.” 18 [2024] SASCA 111. 19 R v Yandle [2024] SASCA 111 at [141]-[142] (Livesey P, Doyle and David JJA). -- 20 of 21 -- [2026] SASCA 32 The Court 17 However, even in the case of an error of this nature, the public interest in favour of intervention must be weighed against the hardship that may be associated with the double jeopardy to which the respondent will be exposed. (citations omitted) 70 As for the question of any hardship to the respondent by being twice vexed, the statutory regime for the enforcement of bonds contemplates that a probationer may be brought before the court each time the probationer is alleged to have breached the conditions of the bond. In this case, the respondent has never been required to account for his alleged breaches. Even though the bond only remains in force for another two months, there are sound reasons of public policy which justify granting the Director permission to appeal in the circumstances of this case. 71 For those reasons, we grant permission to appeal, allow the appeal and remit the application for enforcement to the District Court for re-determination. -- 21 of 21 --