MATTHEW JOHN HALSEY In Person v COMMISSIONER OF POLICE In Person [2026] SASC 38

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE DAVIS) [2025] SAMC 236, MCCRM-24-022739 Appellant: MATTHEW JOHN HALSEY In Person Counsel: MR A RICE - Solicitor: FRECH TASSONE PROFESSIONAL LAWYERS Respondent: COMMISSIONER OF POLICE In Person Counsel: MS R RICHARDSON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 06/03/2026 File No/s: SCCRM-25-046871 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates 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. HALSEY v POLICE [2026] SASC 38 Judgment of the Honourable Justice Gray (ex tempore) 6 March 2026 TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - DRIVING WHILE DISQUALIFIED CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT On 21 July 2023, the appellant was stopped by South Australia Police and tested positive for methamphetamine. Consequently, the appellant was issued an instant loss of licence and was informed by police that, effective forthwith, he was disqualified from holding or obtaining a licence for three months and that his driver’s licence was suspended. The appellant signed a notice acknowledging the licence disqualification. During the three-month suspension, the appellant renewed his licence at the Department of Motor Registration and Transport. The appellant was subsequently observed by Police driving a vehicle and, during a traffic stop, Police advised the appellant he was suspended from driving. The appellant indicated that he had a licence and provided the renewed licence with a valid expiry date. The Magistrate was satisfied beyond reasonable doubt that despite being in possession of a licence, the appellant knew he was suspended from driving and the defence of honest and reasonable mistake of fact was not made out. The Magistrate made a finding of guilt, imposing a custodial imprisonment for three months. The appellant contends on appeal that the sentence is manifestly excessive, submitting that the sentence of imprisonment ought to have been suspended or served on home detention. The appellant also contends that the length of the term of imprisonment was manifestly excessive. The respondent contends that the nature of the offending and the matters personal to the appellant, were relevant to the length of sentence and the question of suspension and home detention. The -- 1 of 14 -- respondent further contends that a sentence of three months’ imprisonment was within the learned Magistrate’s sentencing discretion and was not so unreasonable or unjust. Held, allowing the appeal: 1. The sentence of the Magistrates Court is set aside. A sentence of 21 days imprisonment, reduced to 14 days on account of seven days having been served, is imposed with the sentence to commence on the date of judgment. 2. The presence of contumacy as to the offending does not create a binary classification as to whether a sentence of imprisonment ought to be imposed. Where the offending demonstrates a flouting of orders, the need for personal and general deterrence is heightened, and imprisonment may be an appropriate penalty. Whilst this is particularly so in the case of offenders who have committed like offending in the past, imprisonment should be considered even with a first offender. [30] Magistrates Court Act 1991 (SA) s 42; Motor Vehicles Act 1959 (SA) ss 91, 91(5)(a); Road Traffic Act 1961 (SA) s 47BA; Road Traffic Act 1961 (SA) s 47BA; Road Traffic (Drug Driving and Careless or Dangerous Driving) Amendment Act 2021 (SA); Sentencing Act 2017 (SA) ss 69, 71, referred to. Measures v The Queen [2021] SASCA 82, applied. Coombe v Douris (1987) 47 SASR 324; Eldridge v Bates (1989) 51 SASR 532; Police v Cadd (1997) 69 SASR 150; Police v Chilton (2014) 120 SASR 32; Police v Matthew John Halsey [2025] SAMC 236, discussed. Bates v Police (1997) 79 SASR 66; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Mahon v Police [2024] SASC 147 ; Police v Nissen (2014) 120 SASR 50; R v Horstmann [2010] SASC 103; R v Morse (1979) 23 SASR 98; R v Wacyk (1996) 66 SASR 530; Woodward v Police [2000] SASC 246, considered. -- 2 of 14 -- HALSEY v POLICE [2026] SASC 38 Criminal: Magistrates Appeal 1 GRAY J (ex tempore): This matter concerns an appeal against sentence imposed in the Magistrates Court on 13 October 2025 in respect of the appellant, Matthew John Halsey, in relation to an offence of driving whilst disqualified, contrary to s 91(5a) of the Motor Vehicles Act 1959 (SA) (‘MV Act’). A sentence of three months imprisonment was imposed for the offence following a trial in the Magistrates Court.1 No complaint is made in respect of the conviction. 2 The appellant contends on appeal that the sentence is manifestly excessive.2 The appellant says that the sentence of imprisonment ought to have been suspended or served on home detention. The appellant also contends that the length of the term of imprisonment was manifestly excessive. 3 The respondent, the Commissioner of Police, contends on appeal that the sentence imposed was proportionate and was not manifestly excessive either in the sense that it was “outside the permissible range of sentences for the offender and the offence”, or by reason of some identifiable error of fact or law.3 Background 4 On 21 July 2023, the appellant was stopped by South Australia Police (‘SAPOL’) while driving in relation to a defective external vehicle light. The appellant participated in a roadside drug screen test in which he tested positive for methamphetamine. Consequently, an instant loss of licence (‘ILOL’) was issued to the appellant,4 and he was informed by police that his driver’s licence was suspended and that he was disqualified from holding or obtaining a licence for a three-month period to take effect forthwith. The appellant signed an acknowledgement of receipt of the notice of licence disqualification or suspension (“the notice”).5 The notice, informed the appellant that his driver’s licence is suspended or he was disqualified from driving for a period of 3 months. The notice, inter alia provided: 6 1 Remarks on Penalty of Magistrate Davis dated 13 October 2025, Appeal Book filed 17 February 2026, 67 (FDN 12). 2 Matthew John Halsey, ‘Notice of Appeal Against Sentence’, Submission in Halsey v Police, SCCRM- 25-046871, 17 November 2025 (FDN 1) (‘Notice of Appeal’); Appeal Grounds dated 17 November 2025 (FDN 2) (‘Appeal Grounds’). 3 Commissioner of Police, ‘Written Submissions of the Respondent’, Submission in Halsey v Police, SCCRM-25-046871, 11 February 2026 (FDN 8). 4 Road Traffic Act 1991 (SA) s 47BA(1). 5 ‘P4 - Notice of Licence Disqualification’, Exhibit in Halsey v Police, MCCRM-24-022739, 23 September 2025 (‘Exhibit P4’). 6 Police v Matthew John Halsey [2025] SAMC 236, 1 [2]-[5] (Magistrate Davis) (‘Police v Halsey’); Exhibit P4 (n 5). -- 3 of 14 -- [2026] SASC 38 Gray J 2 It is an offence punishable by imprisonment to drive a motor vehicle whilst your licence is suspended or you are disqualified. 5 The suspension period commenced on 21 July 2023 and expired on 20 October 2023.7 6 On 23 August 2023, the appellant attempted to renew his licence online but was unable to do so. The appellant made contact with the Department of Motor Registration and Transport (‘the Department’) he was advised that he was disqualified from holding a licence and could not renew it.8 The appellant later attended in person at the Department’s offices and renewed his licence. The renewed licence showed an expiry date of 2 September 2024.9 7 On 20 September 2023, the appellant was observed by SAPOL driving through a Hungry Jacks Drive Through on South Road. Police conducted a traffic stop when the appellant exited the drive-through. Police advised the appellant that he was suspended from driving. The appellant indicated that he received his licence and provided police a physical licence with an expiry date of 2 September 2024.10 8 There is no complaint advanced about the conviction and the trial generally. The factual findings made at trial are relevant to the sentence imposed. I summarise these findings as they are relevant to this appeal. 9 There was no contest at trial that the appellant drove a motor vehicle on 20 September 2023 whilst disqualified.11 Rather, the appellant advanced the defence of an honest and reasonable mistake about the state of his disqualification.12 The appellant gave evidence that on 21 July 2023, when the ILOL was issued, the appellant was under the influence and the interaction with police happened so quickly that he simply forgot.13 10 The evidence of the police officer who pulled the appellant over was preferred. He gave evidence that throughout his interaction with the appellant they engaged in general, coherent conversation, and the officer made it clear to the appellant that he was disqualified from driving. The learned Magistrate was satisfied that the appellant understood the effect of the disqualification notice and that it was clearly explained.14 Further, the learned Magistrate viewed the 7 Exhibit P4 (n 5). 8 Police v Halsey (n 6) 1, [7] [42] - [45]. 9 ‘P9 – Client Screenshot’, Exhibit in Halsey v Police, MCCRM-24-022739, 23 September 2025 (‘Exhibit P9’); Police v Halsey (n 6) 1 [8], 7. 10 Police v Halsey (n 6) 7 [70]. 11 Police v Halsey (n 6) 1-2 [9]. 12 Police v Halsey (n 6) 2 [10]. 13 Police v Halsey (n 6) 2 [14]. 14 Police v Halsey (n 6) 2-3 [15]-[24]. -- 4 of 14 -- [2026] SASC 38 Gray J 3 body-worn footage of the police officer to satisfy himself as to the manner of both the police officer and the appellant in that interaction.15 11 The appellant gave evidence that, when applying to the Department to renew his licence in the phone call to the Department, he had forgotten about the interaction with police on 21 July 2023.16 The phone call with the Department call centre was tendered by the respondent at trial. The learned Magistrate found that the appellant ‘lied to feign ignorance of his disqualification’ when advised that he was currently suspended.17 12 The learned Magistrate was satisfied beyond reasonable doubt that at the time of the offending, despite being in possession of a physical licence, the appellant’s state of mind was such that he knew he was suspended from driving a motor vehicle.18 The learned Magistrate found the defence of honest and reasonable mistake of fact, was not made out.19 In making this finding, the learned Magistrate rejected the appellant’s evidence in relation to a number of key issues, finding: 20 1. that the appellant’s claim that when he spoke to the Department on the phone he did not recall anything about the incident on 21 July 2023 was “utterly fanciful”;21 and 2. that the appellant was either aware that there was a loophole he could exploit to “renew” his licence despite the ILOL or that, notwithstanding the renewal of his licence, he knew he was still disqualified and thought that possession of the licence would enable him to feign ignorance if accused of driving disqualified.22 13 In effect, the learned Magistrate disbelieved the appellant’s evidence at critical points. The learned Magistrate rejected the appellant’s evidence that he did not recall being served with the ILOL, and the learned Magistrate rejected that, by reason of the appellants possession of a physical drivers licence, the appellant believed that he was entitled to drive on 23 September 2023.23 The learned Magistrate, as indicated, made a finding of guilt and imposed a custodial imprisonment for three months. That sentence is said by the appellant to be manifestly excessive. 15 Police v Halsey (n 6) 4 [34]-[40]. 16 Police v Halsey (n 6) 3 [26]. 17 Police v Halsey (n 6) 5 [47]. 18 Police v Halsey (n 6) [70]. 19 Police v Halsey (n 6) 7 [72]. 20 Police v Halsey (n 6) [27]. 21 Police v Halsey (n 6) 3 [27]. 22 Police v Halsey (n 6) 7 [72]. 23 Police v Halsey (n 6) [58] - [61]; see Matthew John Halsey ‘Written Submissions of the Appellant’, Submission in Halsey v Commissioner of Police, SCCRM-25-046871, 9 February 2026, 3 [12] (FDN 10). -- 5 of 14 -- [2026] SASC 38 Gray J 4 Statutory basis of the appeal and relevant principles 14 This is an appeal under s 42(1) of the Magistrates Court Act 1991 (SA) and is governed by Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA). It is to be conducted by way of rehearing. 15 In Police v Chilton,24 Kourakis CJ observed that the sentence imposed by a Magistrate can only be set aside for error in accordance with House v The King.25 Kourakis CJ held:26 The twin mischiefs which this Court must avoid in sentencing appeals are, on the one hand, too readily imagining error in the interstices of the necessarily economic sentencing remarks of busy Magistrates and, on the other, too readily excusing error as a merely infelicitous expression of no consequence. The mischiefs can be avoided by fidelity to, and a rigorous application of, the prescript in House v The King. 16 To establish that a sentence was manifestly excessive, the appellant must establish that the sentence was unreasonable or plainly unjust, such that it can be inferred that the outcome has been attended by error.27 It is insufficient to find on appeal that the appellate court would have imposed a different sentence. Rather, the sentence must be outside the permissible range of sentences for the offender and the offence.28 17 In considering whether a sentence is manifestly excessive, regard will be had to the following:29 1. The maximum sentence prescribed by law for the offence; 2. The standards of sentence customarily observed for offences of the kind in question; 3. The place which the criminal conduct occupies in the scale of seriousness of crimes of that type; and, 4. The personal circumstances of the offender. 18 If an outcome error is established, the appellate court will resentence, or remit the matter for resentence, having formed the view that the sentence imposed at first instance was either manifestly excessive or inadequate.30 24 Police v Chilton [2014] SASCFC 76; (2014) 120 SASR 32 (Kourakis CJ, David J agreeing). 25 (1936) 55 CLR 499 (‘House v The King’). 26 Police v Chilton [2014] SASCFC 76; (2014) 120 SASR 32, 38 [19] (Kourakis CJ, David J agreeing). 27 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane JJ). 28 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane JJ). 29 R v Morse (1979) 23 SASR 98, 99 (King CJ, White and Mohr JJ agreeing): see further Mahon v Commissioner of Police (SA) [2024] SASC 147, [12] (Stanley J). 30 R v Horstmann [2010] SASC 103; (2010) 269 LSJS 42, 50 [37]-[38] (Kourakis J). -- 6 of 14 -- [2026] SASC 38 Gray J 5 Submissions of the parties 19 Although I have summarised the parties below, I have considered the details of the submissions that the parties advanced both in their written submissions and in oral argument before the Court today, and at the previous hearing. 20 The appellant contends on appeal that the sentence is manifestly excessive.31 The appellant says that the sentence of imprisonment ought to have been suspended or served on home detention. The appellant also contends that the length of the term of imprisonment was manifestly excessive. 21 The respondent contends that the nature of the offending, the matters personal to the appellant, were relevant to both a consideration of the length of sentence and the question of suspension and home detention. The respondent further contends that as with the decision to impose a custodial sentence, a sentence of three months imprisonment was within the learned Magistrate’s sentencing discretion and was not so unreasonable or unjust to warrant appellate intervention. Consideration 22 The maximum penalty for the offence of driving whilst disqualified in this case is 12 months. The sentence imposed was one quarter of the maximum penalty. The offence also needs to be considered in the context of recent amendments to the Motor Vehicle Act. Section 5 of the Road Traffic (Drug Driving and Careless or Dangerous Driving) Amendment Act 2021 (SA) amended s 91 of the Motor Vehicle Act. There are two offences of driving whilst disqualified, one contrary to s 91(5) and relevantly one contrary to s 91(5)(a). The consequence of these amendments is that recidivous offenders will receive significantly higher penalties. The discretion to suspend a sentence for driving whilst disqualified remains a sentencing option that must be considered. Consideration must also be given to whether an order should be made that imprisonment be served on home detention.32 23 This Court has, on numerous occasions, considered sentences imposed by the Magistrates Court for the offence of driving whilst disqualified.33 Coombe v Douris,34 concerned a Crown appeal on the ground of manifest inadequacy. That matter concerned sentences imposed by a Magistrate in respect of two charges of driving whilst disqualified. The Magistrate imposed a sentence of one month imprisonment for the first offence, which was suspended, and seven days imprisonment for the second. This was held to be manifestly inadequate. On appeal 31 Notice of Appeal (n 2); Appeal Grounds (n 2). 32 See further Woodward v Police [2000] SASC 246, [21]-[23] (Lander J). 33 Coombe v Douris (1987) 47 SASR 324, 325 (King CJ) (‘Coombe v Douris’); Eldridge v Bates (1989) 51 SASR 532, 534 (King CJ), 535 (White J), 538 (Bollen J); Police v Cadd (1997) 69 SASR 150, 166 (Doyle CJ), 173 (Duggan J), 179 (Mullighan J); Police v Nissen [2014] SASCFC 77; (2014) 120 SASR 50, 55 [15] (Kourakis CJ, David J agreeing); Police v Chilton [2014] SASCFC 76,[21], (2014) 120 SASR 32. 34 Coombe v Douris (n 33). -- 7 of 14 -- [2026] SASC 38 Gray J 6 the order of suspension was stuck out and the order of imprisonment on the second count was increased to three months imprisonment. King CJ held:35 … The effectiveness of orders of disqualification from holding or obtaining a driver's licence depends upon observance of them by the persons disqualified. If they are treated with contempt and ignored by the persons affected, the orders of the court designed to deter offenders and to protect the public are rendered ineffective. The ordinary punishment for driving under disqualification must be imprisonment. This is not to deny that circumstances may exist which would justify suspension of the sentence or some other order such as community service order. In my opinion, however, the circumstances would have to be exceptional to justify a penalty other than an unsuspended sentence of imprisonment. A suspension of a sentence of imprisonment will rarely be justified in view of the primary deterrent purpose of the penalty. 24 The decision in Coombe v Douris indicates that the ordinary punishment for the offence of drive whilst disqualified was imprisonment unsuspended, in the absence of exceptional circumstances.36 That principle was upheld by the Full Court in Eldridge v Bates.37 In Eldridge v Bates, King CJ held:38 … Regrettable as it is that a young person should be sent to prison, the paramount consideration in imposing penalty for the offence in question must be deterrence. If offenders are not deterred effectively from disregarding disqualifications, others are tempted, in many cases pressured, to do likewise. Orders for disqualification may be found to speak in vain with very detrimental consequences for the safety of the public. The paramount necessity of underpinning disqualification orders makes it necessary that nothing be said or done in the courts which would weaken the warning which I gave in Coombe v Douris “to all who may be tempted to drive under disqualification that imprisonment will almost certainly follow any non-observance of the disqualification”. 25 White J, whom agreed with King CJ, noted that although the one month imprisonment imposed in that case was within the learned sentencing magistrate’s discretion, it was not the norm and the necessary term of imprisonment that would often result for a first offender may, dependent on the circumstances, be as short as one or two weeks.39 26 The sentencing considerations for the offence of driving whilst disqualified were considered again by the Full Court of this Court in Police v Cadd.40 In that case, Doyle CJ identified in the addendum to his judgment that each member of the majority in Cadd accepted that the punishment imposed for the offence of driving whilst disqualified should be imprisonment, “in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender may dictate some less severe form of punishment”.41 35 (1989) 51 SASR 532, 533. 36 The maximum penalty for the offence at that time was six months imprisonment. 37 (1989) 51 SASR 532, 533 (King CJ), 537 (White J), 538 (Bollen J) (‘Eldridge v Bates’). 38 (1989) 51 SASR 532. 39 Eldridge v Bates (n 37) 537. 40 (1997) 69 SASR 150 (‘Cadd’). 41 Cadd (n 40) 171 (Doyle CJ citing Mullighan J at 179). -- 8 of 14 -- [2026] SASC 38 Gray J 7 27 Mullighan J in Cadd considered “contumacious” to mean the following:42 I use the word “contumacious” in the sense that it is understood in the law: see Witham v Holloway (1995) 183 CLR 525 at 542-543. It means something more than mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it. 28 The decision in Cadd has been subsequently discussed, followed, and upheld.43 As Kourakis CJ held in Police v Nissen,44 the decision in Cadd does not elevate a finding of contumacy to being a necessary precondition to a sentence of imprisonment. As Kourakis CJ, referring to Cadd, in Police v Nissen held: As the judgments of Doyle CJ and Duggan J show, general deterrence will always have an important part to play in sentencing for offences of this kind. … Plainly enough, in a case of ‘total disregard’ of the order, it would require a particularly powerful combination of mitigatory circumstances to support a sentence other than imprisonment, but even lesser degrees of contumacy must be strongly discouraged. 29 The Chief Justice went on to find: 45 … Imprisonment of young persons, even for a short period, is extremely distasteful, but where there is deliberate disobedience of a disqualification order, there will usually be no alternative which is consistent with the court's duty. 30 Whilst the presence of contumacy as to the offending does not create a binary classification as to whether a sentence of imprisonment ought to be imposed, the cases following Cadd indicate that where the offending demonstrates a flouting of disqualification orders, the need for personal and general deterrence is heightened, and imprisonment may be an appropriate penalty.46 Whilst this is particularly so in the case of offenders who have committed like offending in the past, imprisonment should be considered even with a first offender. As the Court of Appeal in Measures v The Queen held:47 It may readily be accepted that general deterrence is an important sentencing consideration when addressing offences of driving whilst disqualified.48 It follows that, in most cases, absent a compelling reason for driving, the offending will usually be regarded as contumacious. That is why it is often appropriate, even with a first offender, to consider a sentence of imprisonment. Whether that sentence should be suspended or ordered to be served on home detention will depend upon the particular circumstances of any case. 42 Cadd (n 40) 179 (Mullighan J). 43 See, eg, Bates v Police (1997) 79 SASR 66 (Perry J); Police v Nissen [2014] SASCFC 77; (2014) 120 SASR 50, 55-9 [15]-[30] (Kourakis CJ, David J agreeing); Police v Chilton [2014] SASCFC 76; (2014) 120 SASR 32, 36-8 [14]-[21] (Kourakis CJ, David J agreeing), 48 [61] (Gray J). See, for a recent statement of the sentencing standard, Mahon v Police [2024] SASC 147, [14] (Stanley J). 44 [2014] SASCFC 77, [24] (Kourakis CJ). 45 [2014] SASCFC 77, [24] (Kourakis CJ). 46 See Police v Chilton [2014] SASCFC 76; (2014) 120 SASR 32, 38 [21] (Kourakis CJ, David J agreeing). 47 Measures v The Queen [2021] SASCA 82, 4-5 [24]-[25] (Livesey and Bleby JJA) (‘Measures’). 48 Police v Nissen (2014) 120 SASR 50, [26]-[30] (Kourakis CJ). -- 9 of 14 -- [2026] SASC 38 Gray J 8 Where there are repeated offences, disclosing a persistent disregard for the law, offenders may readily expect sentences to become longer. Whether suspension or home detention are appropriate for subsequent offending will depend upon the particular circumstances of any case. They may well be problematic in the case of repeated contumacious offending. 31 In Measures v The Queen, the Court of Appeal allowed an appeal against the imposition of a sentence to a term of imprisonment of 12 months, reduced by 30 percent to eight months and one week on account of the appellant’s guilty plea. The appellant was resentenced to a term of 10 weeks imprisonment which, after a 30 per cent reduction for the guilty plea, was a sentence of seven weeks imprisonment. That case concerned a sentence imposed for a third offence of driving whilst disqualified. 32 Each case turns upon its own facts, and every sentence represents individualised justice having regard to the circumstances of the offender and the circumstances of the offending. That said, when considering the question of manifest excess, consideration should be given to the standards of sentence customarily observed49 for the offence of drive disqualified. The following may be observed from the decided cases referred to above including the recent observations of the Court of Appeal in Measures v The Queen: 1. For a first offender, in the absence of a compelling reason for driving, the offending will usually be regarded as contumacious, and it is often appropriate to consider imprisonment. General deterrence is an important sentencing consideration for this offence.50 2. Whilst it may not be possible to give precise guidance on questions such as the length of imprisonment for a first offence,51 dependent on the circumstances of imprisonment necessarily may potentially be short. However, there has been an increase in the maximum penalties from the time of earlier decisions.52 3. For a first offender, whether a sentence should be suspended or ordered to be served on home detention will depend upon the particular circumstances of the case.53 The statement of this principle in Measures in my view, does not diminish the importance of general deterrence in sentencing for this offence. Nor does the decision in Measures, in my view, indicate that suspension or imprisonment served on home detention will necessarily be appropriate for a first offender. Measures did not specifically repeat the reference in 49 See House v The King (1936) 55 CLR 499. 50 Measures v The Queen [2021] SASCA 82, 4 [24] (Livesey and Bleby JJA); Police v Nissen (2014) 120 SASR 50, [26]-[30] (Kourakis CJ). 51 Cadd (n 40) 172 (Doyle CJ). 52 See, for eg, Eldridge v Bates (n 37) 537 (White J); Cadd (n 40); see also Measures v The Queen [2021] SASCA 82, 4-5[24]-[25] (Livesey and Bleby JJA) citing Police v Nissen (2014) 120 SASR 50, [26]- [30], (Kourakis CJ). 53 Measures v The Queen [2021] SASCA 82, 4 [24] (Livesey and Bleby JJA). -- 10 of 14 -- [2026] SASC 38 Gray J 9 Elridge v Bates to the circumstances having to be exceptional to justify a penalty other than an unsuspended sentence of imprisonment. Rather, in Measures it was emphasised that each case turns on its own facts and any sentence now to be imposed needs to consider all sentencing options including suspension and a home detention sentence. In my view the emphasis in both Eldridge v Bates and the cases following Eldridge and Measures all emphasise the need for general deterrence such that there is a consistency in principle between the two decisions. 4. In circumstances of repeat offending, disclosing persistent disregard for the law, a longer sentence may be required.54 5. In the circumstances of repeat offending, whether suspension or home detention are appropriate for subsequent offending will depend upon the particular circumstances of the case. Suspension of a sentence, or home detention may be problematic in the case of repeated contumacious offending. 33 In addition to consideration of the maximum penalty and the standards of sentence customarily observed in considering manifest excess regard should also be had to the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. 34 Turning to the facts of this case, in considering the place which this conduct occupies in the scale of seriousness of driving whilst disqualified offences, the offending was not the most serious breach for this offence. There are, however, aspects of the offending which indicate that this offence could not be described as being at the lower end of offending of this nature. On the findings of the learned Magistrate which are not in dispute, the appellant had knowledge of the disqualification of his licence, and took steps to feign ignorance of the disqualification, and then to obtain a physical driver’s licence. The offending was deliberate. I consider this offending was within the mid to upper range of the relevant offending. 35 Turning to the personal circumstances of the appellant I note that the appellant was 28 years old when he committed the offence. He has a young son. He had a deprived upbringing where his father was in and out of prison. It is submitted that his mother struggled to raise him. He is said to have a limited education but, notwithstanding this, he entered the workforce, and for the most part has had a solid employment history prior to the COVID-19 pandemic. It was submitted that when the appellants work decreased his drug use increased. The appellant had never been imprisoned prior to this offence and has limited criminal 54 Measures v The Queen [2021] SASCA 82, 5 [25] (Livesey and Bleby JJA). -- 11 of 14 -- [2026] SASC 38 Gray J 10 antecedents. He has had a significant drug problem but ceased using drugs in January 2025. 36 This was the first time that the appellant was convicted for drive disqualified. His antecedent history included a conviction in 2013 for drink driving, for which he received an immediate loss of licence, a conviction in 2019 for drug driving involving methylamphetamine, enforcement of a breached bond in 2020, and a conviction for drug driving in relation to cannabis in 2021. 37 In considering the ground of manifest excess I have taken into account the maximum penalty of the offence, the standards of sentence customarily observed for offences of the kind in question, the circumstances of the offending and the place which the criminal conduct occupies in the scale of seriousness of the offence of drive disqualified, and the personal circumstances of the appellant. I consider that this offending falls in the mid to upper range of offending of this nature having regard to the blatant and deliberate nature of the offending and the lack of candour of the appellant in the context of the offending. This is however the first offence of drive disqualified committed by this offender. A three-month sentence of imprisonment is longer than the standard of sentence customarily observed for a first offence of drive disqualified. That said, there was limited scope for leniency for this offender noting the poor record of this offender in respect of driving offences. Having regard to these matters and all of the relevant circumstances of this offending and this offender, in my view, the length of the sentence of imprisonment imposed falls outside the permissible range of sentences for this offender and this offence.55 38 It follows that I would allow the appeal. I would set aside the sentence imposed by the learned Magistrate and re-sentence the appellant. 39 Contumacy characterised the offending in this case. The findings of the learned Magistrate at trial indicate that the appellant had devised a plan to ‘renew’ his licence in circumstances where he was unsuccessfully able to do so online, and feigned surprise at the advice given to him that he had been disqualified from driving. The learned Magistrate rejected the defence of honest and reasonable mistake of fact, and found that the appellant had engaged in the process of attempting to renew his licence. 40 The circumstances of this matter calls for a strong emphasis on not only general deterrence, but to send a message to the appellant that this kind of behaviour will be faced with punishment, in line with the principles in the decided cases considered above.56 In other words, both general and specific deterrence are important in this case. Although this is the first matter concerning an allegation of 55 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane JJ). 56 Police v Cadd (1997) 69 SASR 150, 162 (Doyle CJ); Police v Nissen (2014) 120 SASR 50, [26]–[30]; Measures v The Queen [2021] SASCA 82, [24]-[25] (Livesey and Bleby JJA). -- 12 of 14 -- [2026] SASC 38 Gray J 11 driving whilst disqualified, the appellant has an antecedent history that includes numerous driving offences. 41 The sentence to be imposed in this case needs to acknowledge that there is less scope for leniency to be afforded to the appellant, having regard to the manner of the commission of the offence, the contumacy in its commission, and the antecedent history of the appellant. I impose a sentence of 21 days imprisonment. 42 In considering the discretion to suspend the sentence of imprisonment, I acknowledge that what amounts to good reason is wide ranging and may be found in all the circumstances of a case.57 A suspended sentence is a significant penalty. Considering all matters relevant both to the circumstances of this offender, and the circumstances of the offending including those summarised above, I do not consider that there is good reason to suspend the sentence. 43 Section 71(1) of the Sentencing Act 2017 (SA) (‘Sentencing Act’) provides for a determination of whether a sentence of imprisonment should be served on home detention. Whilst I accept, as the appellant submits, that s 71(1) Sentencing Act directs attention to whether the appellant is a suitable person to serve the sentence on home detention, and I have had regard to the home detention report prepared in this matter, the circumstances and nature of the offending are relevant considerations which weigh in the mix of whether this offender is considered suitable within the meaning of s 71(1). Protection of the public remains the paramount consideration, although I do not consider that a sentence served on home detention would endanger the public.58 44 This offender was found by the learned Magistrate to know that he was disqualified from driving, and took deliberate steps to obtain a physical driver’s licence. The circumstances of the offending, being going through a Hungry Jacks drive through, is not a compelling reason for the appellant to drive. The appellant has a number of prior driving offences. Considering all the matters before me, and in particular having regard to the need for specific deterrence, considering the appellant’s past history and relevant circumstances, I do not consider that the appellant is a suitable person to serve the sentence on home detention. 45 I would not order the sentence be served on home detention. Conclusion and orders 46 The sentence is manifestly excessive, and I allow the appeal. 47 The orders of this Court are: 1. The appeal is allowed. 57 See R v Wacyk (1996) 66 SASR 530, 535 (Perry J). 58 Sentencing Act 2017 s 69(2). -- 13 of 14 -- [2026] SASC 38 Gray J 12 2. Having regard to all of the circumstances set out in consideration of the appeal and on considering these matters on re-sentence, the appellant is resentenced to 21 days imprisonment reduced to 14 days on account of seven days having been served. 3. I direct that the appellant serve 14 days imprisonment with the sentence to commence immediately from today’s date. 48 I will hear from the parties as to any other matters. -- 14 of 14 --