MARCUS WILLIAM LANE v THE KING [2025] SASCA 122

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HIS HONOUR JUDGE DURRANT) DCCRM-23-027309 Appellant: MARCUS WILLIAM LANE Counsel: MS K WAITE - Solicitor: SHAW LEGAL & ADVISORY Respondent: THE KING Counsel: MS Z SMITH WITH MS P YATES - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 16/10/2025 File No/s: SCCRM-25-032920 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. LANE v THE KING [2025] SASCA 122 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice David) 23 October 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - SENTENCE Appeal against sentence. The applicant pleaded guilty to three offences of aggravated creating likelihood of harm, creating likelihood of harm, and aggravated assault. The offending arose out of an incident of domestic violence against the applicant’s former partner, C. The appellant was sentenced to two years, eight months and 17 days’ imprisonment, with a non-parole period of one year and four months. The applicant’s grounds complain that the judge erred: (i) in failing to make deductions for time served on remand and on home detention when fixing the non-parole period (Ground 1), and (ii) in not ordering that the sentence be served on home detention (Ground 2). Held, per the court, granting permission to appeal and allowing the appeal on Ground 1: 1. The judge erred in deducting the allowance for time served from only the head sentence and not the non-parole period. -- 1 of 12 -- 2. It is appropriate that the sentence below be set aside and that the appellant be resentenced on a basis which appropriately reflects the allowance for time served. 3. The original sentence is set aside and the applicant is resentenced to imprisonment for two years, eight months and 17 days with a non-parole period of one year and five days, backdated to commence on 6 August 2025. Criminal Law Consolidation Act 1935 (SA) ss 29(3), 20(3); Sentencing Act 2017 (SA) s 71, referred to. Owens v The King [2024] SASCA 65; R v Tsonis (2018) 131 SASR 416; Ribbon v The Queen [2022] SASCA 15; Kentwell v The Queen (2014) 252 CLR 601; Millwood v The King [2024] SASCA 84, considered. -- 2 of 12 -- LANE v THE KING [2025] SASCA 122 Court of Appeal – Criminal: S Doyle, Bleby and David JJA 1 THE COURT: Following pleas of guilty, the appellant was sentenced for three offences, each of which was committed in an episode of domestic violence on 17 November 2022: • aggravated creating likelihood of harm1 (with a maximum penalty of imprisonment for seven years) (Count 5); • creating likelihood of harm2 (with a maximum penalty of imprisonment for five years) (Count 7); and • aggravated assault3 (with a maximum penalty of imprisonment for three years) (Count 9). 2 Counts 5 and 9 were aggravated by reason that the victim was the appellant’s former partner, C. The victim of Count 7 was J, the partner of C’s sister, H. 3 In sentencing the appellant, and after identifying notional head sentences for each of the offences, the judge identified an overall notional head sentence of imprisonment for three years, eight months and 12 days. From this, his Honour deducted a period of close to one year for time served in custody and on home detention bail, resulting in a head sentence of imprisonment for two years, eight months and 17 days. His Honour fixed a non-parole period of one year and four months, being slightly less than 50 per cent of the head sentence. 4 The appellant seeks permission to appeal his sentence on two grounds: • the judge erred in not deducting the 56 days spent in custody and 10 months for two years and seven months spent on home detention bail, when fixing the non-parole period; and • the judge erred in not exercising his discretion under section 71 of the Sentencing Act 2017 (SA) to make an order that the term of imprisonment be served on home detention. 5 For the reasons which follow, the application for permission to appeal should be granted, the appeal allowed, and the appellant resentenced on the basis indicated at the conclusion of these reasons. 1 Contrary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA). 2 Contrary to s 29(3) of the Criminal Law Consolidation Act 1935 (SA). 3 Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). -- 3 of 12 -- [2025] SASCA 122 The Court 2 Circumstances of the offending 6 By way of background, the appellant and C met in 2017, when the appellant was 26 years of age and C was 18. They commenced a relationship which lasted about four years, and produced three children. Although the relationship was strong in its early stages, it began to deteriorate as they struggled with the combination of C being unwell and the responsibilities of raising their young children. The appellant accepts that he became verbally and physically abusive towards C. C left the appellant for a short period in 2019, and the relationship ultimately came to an end in about May 2021. This followed an instance of domestic violence by the appellant against C in April 2021 (for which the appellant was later convicted and sentenced for aggravated assault and breach of an intervention order). 7 After their relationship ended, the appellant had no contact with C for a few months. However, despite intervention orders being in place from time to time which prevented the appellant from having contact with C, they remained in intermittent contact with one another through to the date of the offending described below. The appellant was charged with breaching an intervention order intended to protect C in September 2021, although this was ultimately dealt with on a ‘without conviction’ basis. 8 The appellant and C had been together the night before the offending and had made some plans to see each other the following evening. In the immediate lead up to the offending, they had been exchanging messages in which the appellant was questioning C about her whereabouts given their plans to see each other again. 9 Turning to the events of 17 November 2022, C had been at a local shopping centre with her sister (H), her sister’s partner (J), and their infant son (B). 10 At around 7.30 pm, they left the shopping centre in J’s car, with J driving them towards C’s home address. C saw a silver Commodore driving in the opposite direction and suspected it was the appellant’s car. When they arrived at C’s home, the appellant’s car was parked there, and the appellant was sitting in the driver’s seat. On noticing the appellant’s car, C directed J to continue driving. The appellant, in his car, began to follow J’s car. 11 The appellant pursued J’s car along North East Road. He caught up with J’s car and drove into its right rear. The collision caused J’s car to complete a full rotation and come to a stop. 12 J was able to drive a further 500 metres along North East Road before the appellant again caught up with them. From the right adjacent lane, the appellant swerved his car into J’s car, colliding with its front wheel. J’s car rotated and hit the median strip, causing it to come to a complete stop. 13 This reckless and dangerous driving, resulting in a likelihood of harm to C and J, was the subject of Counts 5 and 7. It was accepted that the appellant did not -- 4 of 12 -- [2025] SASCA 122 The Court 3 know that H and the infant were in J’s car, although this was nevertheless relevant to the overall seriousness of the appellant’s offending. 14 C got out of J’s car and attempted to run away from the appellant. However, the appellant parked his car nearby and intercepted C on foot. He grabbed her by the shirt and threw her onto the road. He then punched her in the head several times while she was on the ground. This conduct was the subject of Count 9. 15 The appellant returned to his car, and drove away. In doing so, he collided with two further vehicles. Rather than stopping, he drove from the scene of those collisions. As the judge explained, whilst not part of the offending for which the appellant was sentenced, this conduct nevertheless showed that his driving at the time of his collisions with J’s car was not an isolated instance of disregard for other road users. 16 C was taken to hospital via ambulance and treated for minor injuries, including to her wrist and shoulder. 17 Although C did not provide a victim impact statement, the judge was prepared to infer that she would have been terrified by the appellant’s offending. J’s victim impact statement included reference to the physical and mental impact of the offending upon him. Personal circumstances 18 At the time of sentencing, the appellant was 34 years of age. He was born in South Australia and his parents separated when he was young. He lived at his father’s house in Whyalla and visited his mother in Adelaide on weekends. He maintains a positive relationship with his mother. 19 The appellant left school at year 11. After completing an apprenticeship, he commenced working in a concreting business. He thereafter maintained what the judge described as a good work history. He was employed at the date of sentencing, and his employer provided the court with a letter attesting to his character and contribution. 20 As mentioned, the appellant commenced a relationship with C when he was 26 years of age. Their three children are currently under the supervision of the Department for Child Protection. The appellant does not have any contact with C or his children. He does not have a partner, but remains in regular contact with his family, with his mother visiting him on weekends. The judge noted that the appellant had taken steps to end some of his former antisocial associations. 21 Following his arrest, the appellant spent 56 days in custody, before then spending the remaining two years and seven months through to the date of sentencing on home detention bail. -- 5 of 12 -- [2025] SASCA 122 The Court 4 22 In the pre-sentence report prepared by the Department of Correctional Services, there was reference to the appellant reporting that he had been suicidal when arrested, due to a build up of stress and panic. However, he reported subsequently feeling more stable. 23 The judge was informed that the appellant found his time in custody very difficult, and that his strong motivation not to return to prison would serve as significant personal deterrence. The judge accepted that the appellant had complied with the conditions of his home detention bail, and that he was not using illicit drugs or alcohol. 24 The appellant sought to explain his offending as a reaction to the thought that C had another boyfriend. He said that, at the time of his offending, he had wanted to confront her and the unknown male. His counsel sought to characterise his offending as involving a momentary lapse of reason. On appeal, his counsel described the offending as involving a complete loss of self-control, but that this was ‘situational’ rather than part of a continuous or persistent pattern of behaviour. Sentencing remarks 25 The judge accepted that the appellant had some insight, remorse and regret. However, he remained guarded about the appellant’s risk of reoffending and prospects of successful rehabilitation. He also rejected the suggestion the offending was momentary. His Honour explained: I accept that you have since this offending acquired some insight and that you are remorseful and that you do regret what you did. I accept you have complied with lengthy home detention and that you will do anything to not return to custody. I am also told that you do not intend to contact C again, albeit you may wish for some future contact with your children. I am concerned, none the less, as to the depth of your insight and I am guarded about your prospects of rehabilitation and risk of re-offending. This was not momentary offending. You weaponized your car for the purpose of domestic violence against your former partner and you had multiple opportunities to stop what you were doing. 26 After describing the relatively extended period of the offending, and the multiple opportunities to reflect and desist, the judge characterised the offending as a serious instance of domestic violence, calling for a strong measure of community protection and deterrence: This is a serious example of domestic violence. The paramount consideration in sentencing you is the protection of the safety of the community, personal and general deterrence are also significant sentencing considerations. The court must deter you and others from this type of offending and domestic violence of any kind must be condemned. That is particularly the case when it occurs in breach of an intervention order intended to protect against such abuse. Parliament has created a regime to protect vulnerable persons -- 6 of 12 -- [2025] SASCA 122 The Court 5 from the use of violence to control or intimidate in a domestic setting. A strong message must be sent to the community that the courts will not tolerate this type of behaviour. 27 Having announced that he intended to impose a single sentence for all three offences, the judge commenced by identifying notional sentences for each count. In so doing, his Honour held that it was appropriate to make the maximum available reduction for the appellant’s guilty pleas of 5 per cent. 28 For the offence of aggravated creating a likelihood of harm, the judge identified a starting point of three years imprisonment, which he reduced to two years, 10 months and seven days. For the offence of creating a likelihood of harm, the judge identified a starting point of one year and 10 months, which he reduced to one year, eight months and 28 days. The judge explained that he would have made these sentences wholly concurrent, given that the offending arose out of the same conduct. 29 For the offence of aggravated assault, the judge identified a starting point of one year and five months, which he reduced to one year, four months and five days. The judge explained that he would have ordered that six months of this sentence be served as partially concurrent with the other two, given that this offending occurred close in time and as a continuation of the appellant’s pursuit of C. 30 Reflecting this approach, the judge identified a single notional sentence of imprisonment for three years, eight months and 12 days. His Honour said that this reflected the inherent criminality of the whole of the appellant’s offending. 31 The judge said that it was appropriate to reduce this notional sentence for time served, and in particular, by day-for-day credit for the 56 days spent in custody, and a further 10 months in recognition of the two years and seven months the appellant had spent complying with his home detention bail conditions. This resulted in a reduced head sentence of two years, eight months and 17 days imprisonment. 32 In then fixing a relatively short non-parole period of one year and four months (being slightly less than 50 per cent of the reduced head sentence), the judge explained: I consider, given your work history, long-term compliance with home detention conditions, and the family support that you enjoy, that both you and the community would benefit from a longer than usual period on parole under the supervision of the Parole Board. 33 The judge noted the matters put by the appellant’s counsel in favour of his sentence being suspended or served on home detention, including: that he had already commenced his rehabilitation given the deterrent effect of the periods already spent in custody and then complying with strict home detention conditions; that he was contrite; that his risk of offending had reduced; that he could continue -- 7 of 12 -- [2025] SASCA 122 The Court 6 to work if his sentence was suspended or served on home detention; and that this would aid the appellant’s rehabilitation and benefit the community. 34 However, the judge declined to suspend the appellant’s sentence: Turning first to suspension. It is the case that those matters do favour a community-based sentence. This offending though is very serious. Your actions were extremely dangerous and occurred on a busy road. It was offending which involved domestic violence against the victim, against whom you have previously offended. It occurred while an intervention order was in place to protect that person. It was offending which completely disregarded the safety of those in J’s car and of other road users. I am not satisfied balancing all those matters that there is good reason to suspend in your case. 35 In also declining to order that the sentence be served on home detention, the judge said: As for whether I should order your sentence be served on home detention, for the same reasons I decline to do so. I do not consider the relevant sentencing considerations applicable in this case will be appropriately served by the imposition of a community-based sentence. 36 The judge concluded that the appellant’s sentence should be served in custody, commencing immediately. His Honour also made the requisite order disqualifying the appellant from holding or obtaining a driver’s licence for five years, commencing from the day of his release from custody. He also ordered that he be served with an intervention order naming C as the protected person in the terms drafted by the prosecution. The appeal 37 There is merit in the appellant’s first ground of appeal. Although the judge indicated an appropriate allowance for time served (that is, 56 days for the time spent in custody, and 10 months for the time spent on home detention bail), he only deducted this from the head sentence. Whilst fixing a non-parole period by reference to this reduced head sentence, his Honour did not make a direct deduction from the non-parole period for the time served. 38 As this Court has previously explained, approaching the sentence in this way, whilst not necessarily erroneous, has the effect of diluting the credit given for time served. In allowing an appeal in very similar circumstances in Owens v The King,4 the Court explained the difficulties in the approach adopted by the judge: The appellant's complaint on appeal is not the length of the head sentence but rather that the sentencing Judge, when fixing the non-parole period, failed to take into account, or take into account sufficiently, the 220 days spent in custody prior to sentence. 4 Owens v The King [2024] SASCA 65 at [4]-[13]. -- 8 of 12 -- [2025] SASCA 122 The Court 7 By adopting the approach of reducing the head sentence and then fixing a non-parole period by reference to the head sentence, the deduction for time served is diluted so far as the non- parole period is concerned. Only a proportion flows through to the non-parole period. The preferable approach, referred to in earlier cases of this Court, is that a sentencing judge should fix both the head sentence and the non-parole period, and then both the head sentence and non-parole period should be reduced for the time served. This approach allows for an explicit reduction from both the head sentence and non-parole period for time served which better reflects the time an accused has actually spent in custody. It allows for transparency in the sentencing process so there can be no sense of grievance by a defendant that the time served has not properly been accounted for in the non-parole period. However, it is not necessarily an error for a sentencing judge to reduce the head sentence for time served in custody and then fix the non-parole period by reference to the head sentence, provided the time served in custody is not overlooked when fixing the non-parole period. In R v Tsonis the Court of Criminal Appeal held that where a sentencing judge does decide to give less than full credit, there must be good reason to do so.5 In those circumstances it is incumbent upon the judge to disclose the amount of credit given for time served in custody and the reason or reasons for giving less than full credit. The sentencing Judge here made no reference to how the 220 days were accounted for when fixing the non-parole period. The appellant submitted the sentencing Judge erred in not giving reasons for failing to deduct the 220 days from the non-parole period. Unlike the sentencing Judge in Ribbon v The Queen where the Judge referred specifically to the fact that she took into account time in custody when fixing a non-parole period,6 the sentencing Judge here simply fixed the non-parole period without explaining how she arrived at the final figure. The respondent accepted that the sentencing Judge failed to give reasons why the 220 days were not deducted from the non-parole period. However, the respondent submitted that we could infer from the low non-parole period actually fixed that proper allowance had been made. We reject that submission. That asks too much of this Court. While the non-parole period fixed was towards the lower end of the available range, there were factors personal to the appellant which allowed for the imposition of a low non-parole period. The low non-parole period fixed may or may not have been in part due to a proper allowance being made for the time spent in custody. We simply have no way of telling. In our view error has been established. We would resentence the appellant. 39 There is no basis for distinguishing the present case. The judge in the present case mentioned the appellant’s ‘long-term compliance with home detention conditions’ when deciding to fix a lower than usual non-parole period (being slightly less than 50 per cent of the reduced head sentence). However, taking time served into account in deciding to fix a lower than usual non-parole period is not the same as giving appropriate credit for time served. It cannot be said in the 5 R v Tsonis (2018) 131 SASR 416. 6 Ribbon v The Queen [2022] SASCA 15. -- 9 of 12 -- [2025] SASCA 122 The Court 8 present case that the judge gave the appellant full credit for the 56 days and 10 months that he determined should be allowed for time served. 40 In our view, error has been established and it is appropriate that this Court resentence the appellant. 41 The respondent concedes error but, relying upon Kentwell v The Queen,7 contends that the appeal should nevertheless be dismissed on the basis that no lesser sentence would be imposed in any event. As will be apparent from the resentencing that we propose below, we are not satisfied that this approach is appropriate in the present case. 42 Because Ground 1 has been made out, it is not necessary to consider the issue raised by Ground 2 (namely, whether the judge erred in not ordering that the sentence be served on home detention). However, the submissions advanced under that ground will inform our fresh consideration of the discretion to order that the sentence we impose be served on home detention. Resentence 43 In exercising our independent discretion as to the sentence to be imposed, we have had regard to all of the matters relevant to sentence. As they have been addressed in the course of summarising the approach below, there is no need for us to repeat the matters we have taken into account. 44 We agree with the judge that the appellant’s offending was a serious example of domestic violence. The importance of a strong sentencing response to such offending was recently addressed by this Court in Millwood v The King.8 45 There were some features of the present offending that warrant emphasis. It involved the very dangerous weaponisation of a motor vehicle on a busy road. The appellant had several opportunities to reflect and cease his offending, but did not take them. The offending was not isolated in the sense that it occurred against a background of verbal and physical aggression towards the victim, including his conviction for an aggravated assault. It also occurred in contravention of an intervention order which had been imposed to protect the victim, and occurred only a couple of months after the expiration of the good behaviour bond imposed in response to the appellant’s earlier conviction for aggravated assault. 46 The appellant contends that his offending should be seen as a ‘situational’ loss of control rather than part of a persistent course of offending. Whilst there were some circumstances which contributed to the offending occurring on the occasion it did, referring to the offending as ‘situational’ or ‘momentary’ tends to understate the significance of the background to, and relatively extended duration of, the offending. 7 Kentwell v The Queen (2014) 252 CLR 601 at [35]. 8 Millwood v The King [2024] SASCA 84 at [30], [33]. -- 10 of 12 -- [2025] SASCA 122 The Court 9 47 All of that said, we are satisfied that the head sentence imposed by the judge below adequately reflected the seriousness of the appellant’s offending. In our view, the individual notional sentences, degree of concurrency and reductions for the pleas of guilty indicated by the trial judge were all appropriate. Like the sentencing judge, we would impose a single head sentence of imprisonment for three years, eight months and 12 days. 48 We also agree with the appropriateness of the judge’s allowance for time served; namely day-for-day credit for the 56 days served in custody, and 10 months for the two years and seven months served on home detention bail. However, for the reasons explained earlier, we would deduct this allowance from both the head sentence and the non-parole period. 49 In fixing the non-parole period, it is appropriate to emphasise some of the appellant’s personal circumstances. Given his history of employment, and his significant period of compliance with the conditions of his home detention bail, there is a basis for some guarded optimism as to the appellant’s prospects for rehabilitation. His history of verbal and physical aggression towards the victim remains a concern, but we are satisfied that it is appropriate to fix a relatively low non-parole period. We would fix a non-parole period of two years, being slightly more than 50 per cent of the head sentence. 50 After making the foreshadowed allowance for time served from the head sentence and non-parole period, we would impose a head sentence of two years, eight months and 17 days imprisonment, and fix a non-parole period of one year and five days. 51 For the reasons given by the judge, which were focussed upon the seriousness of the offending, we would not suspend this sentence. 52 The issue of home detention is finely balanced. On the one hand, as the judge emphasised, the offending in this case was a serious instance of domestic violence. It was a disturbingly dangerous and public episode of violence. It involved a sustained course of conduct over a period of time which allowed for opportunities to reflect and desist which were not taken. Moreover, it occurred in the context of a history of violence against the same victim, and whilst an intervention order intended to protect her was in place. These aspects of the matter, reflected in the appropriately significant head sentence to be imposed, militate against any order that the sentence be served on home detention. 53 Against these considerations, some of the appellant’s personal circumstances are favourable. His history of employment, and the apparent availability of work to him upon his release from prison, weigh in the appellant’s favour when considering his prospects of rehabilitation. It is also significant that the appellant has already served two periods of custody (the initial 56 days prior to being released on home detention bail, and the 71 days since being returned to custody upon being sentenced), as well as a lengthy period on home detention bail. This -- 11 of 12 -- [2025] SASCA 122 The Court 10 Court was informed that the appellant has found his time in custody particularly difficult, not least because he has suffered sexual and physical abuse from fellow prisoners, and has had some health challenges. It may be accepted that the time served in prison and on home detention bail have achieved a significant measure of personal deterrence. 54 It may also be accepted that the appellant’s lengthy period of compliance with his home detention bail conditions provides some indication that the appellant has progressed in terms of his self-control, and rehabilitation more generally. He also relied in this respect upon his participation in a lengthy course which he says has provided him with some insight into his offending, and assistance in developing strategies intended to reduce his risk of similar reoffending. Against this, it is appropriate to observe that the appellant’s progress may not be tested until he forms a new relationship; and that the utility of the course he undertook may be questioned in circumstances where it was prompted by his previous offending, and appears to have been commenced well before his November 2022 offending. In the circumstances, the judge was right to be guarded in his assessment of the appellant’s risk of reoffending and prospects of successful rehabilitation. 55 In our view, the matters favourable to the appellant, including the significant measure of personal deterrence that has already been achieved, are best, and adequately, reflected in the relatively low non-parole period that we have fixed. Even though the period remaining to be served has been materially reduced as a result of this Court giving additional credit for the time already served by the appellant, we are not satisfied that an order that the appellant’s sentence be served on home detention would be appropriate. We are not satisfied that it would achieve an adequate measure of general deterrence (and, relatedly, have adequate regard for the protection of the community). We also remain concerned about the appellant’s personal deterrence and rehabilitation, given the nature of the offending and the context in which it occurred (that is, against the background of previous violence towards the same victim, and in contravention of an intervention order). 56 In summary, despite the availability of a suitable home detention address, and some considerations in favour of this sentencing option, we are not persuaded that it is appropriate to exercise our discretion to order that the appellant’s sentence be served on home detention. Conclusion 57 We grant permission to appeal, allow the appeal, and set aside the sentence imposed below. In lieu thereof, we impose a single head sentence of two years, eight months and 17 days imprisonment. We fix a non-parole period of one year and five days. We backdate both the head sentence and non-parole period to 6 August 2025, being the date the appellant was first sentenced. We impose a licence suspension and intervention order in the same terms as the judge below. -- 12 of 12 --