S, B v COMMISSIONER OF POLICE [2025] SASCA 124

On Appeal from YOUTH COURT OF SOUTH AUSTRALIA (AUXILIARY MAGISTRATE IULIANO) YCCRM-24-004645 Appellant: S, B Counsel: MS M BARNES - Solicitor: EVITTS LEGAL Respondent: COMMISSIONER OF POLICE Counsel: MS R ANDERSEN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 07/10/2025 File No/s: SCCRM-25-009935 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. S, B v POLICE [2025] SASCA 124 Judgment of the Court of Appeal (The Honourable Justice Bleby, the Honourable Justice David and the Honourable Auxiliary Justice Lovell) 30 October 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - TIME SPENT IN CUSTODY AND QUASI-CUSTODY Appeal against sentence. The appellant pleaded guilty in the Youth Court to two counts of aggravated serious criminal trespass contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”), two counts of aggravated theft contrary to s 134 of the CLCA, one count of interfering with a motor vehicle contrary to s 86A(1) of the CLCA, one count of failure to answer question contrary to s 74AB(2)(a) of the Summary Offences Act 1953 (SA) and one count of failure to comply with bond obligation contrary to s 26(4) of the Young Offenders Act 1993 (SA). In respect of this offending, the appellant spent nine hours in police cells, 13 days in custody as well as time on home detention and electronic monitored curfew bail. A single sentence of six-months detention was imposed. The appellant was ordered to serve three months of the sentence in detention, and the balance of the sentence was suspended upon the appellant entering into an obligation for a period of six-months. The appellant complains that the sentencing Magistrate erred in not specifically deducting any credit for time spent in custody, on home detention bail, or on electronic monitored curfew bail. -- 1 of 8 -- Held, by the Court, granting the application for an extension of time and allowing the appeal: 1. The sentence imposed in the Youth Court is set aside. 2. The matter is remitted to the Youth Court for resentence. 3. The driver’s licence disqualification for a period of 12-months is set aside. Criminal Law Consolidation Act 1935 (SA) ss 86A(1), 134, 170(1); Sentencing Act 2017 (SA) ss 26, 96(4); Summary Offences Act 1953 (SA) s 74AB(2)(a); Young Offenders Act 1993 (SA) s 26(4), referred to. House v The King (1936) 55 CLR 499; R v Taylor [2016] SASCFC 54; R v Tsonis (2018) 131 SASR 416; Zaidi v The Queen [2020] SASCFC 93, applied. -- 2 of 8 -- S, B v POLICE [2025] SASCA 124 Court of Appeal – Criminal: Bleby, David JJA and Lovell AJA THE COURT: Background 1 On 16 January 2025, the appellant was sentenced in the Youth Court having pleaded guilty to several serious offences. The sentencing Magistrate, utilising s 26 of the Sentencing Act 2017 (SA) (“Sentencing Act”), convicted the appellant and after allowing a reduction of 30 percent for pleas of guilty imposed a sentence of six-months detention. The sentencing Magistrate ordered that the appellant serve three months of the sentence in detention and suspended the balance of the sentence upon the appellant entering into an Obligation for a period of six-months pursuant of s 96(4) of the Sentencing Act. 2 The appellant appeals on three grounds. It is only necessary for this Court to consider Ground 1.2 namely that the sentencing Magistrate erred in not giving the appellant credit for time spent in custody, on home detention bail or electronic monitored curfew bail. For the reasons that follow, we would allow the appeal and resentence the appellant. 3 The appellant also seeks an extension of time in which to bring the appeal. The circumstances of the offending 4 In the early hours of 29 September 2024, the appellant, along with four others, entered a home at Goodwood (Aggravated Serious Criminal Trespass – Count 1 on the Information) 1 and stole personal items and a Toyota Prado valued at approximately $70,000 (Aggravated Theft – Count 3 on the Information).2 To steal the Toyota Prado, a Mini Cooper had to be moved from the driveway (Interfere with a Motor Vehicle Without Consent – Count 2 on the Information).3 During this manoeuvre the Mini Cooper collided with a parked car. 5 On the same evening, the appellant along with others entered a home at Parkside (Aggravated Serious Criminal Trespass – Count 4 on the Information).4 They stole electronic items and two motor vehicles namely a 2023 BMW IX and a 2018 Volvo wagon (Aggravated Theft – Count 5 on the Information)5 valued at approximately $300,000. 6 At approximately 3:25 am, the police located the BMW travelling at speed along Diment Road. The vehicle failed to stop for police and a high-speed chase 1 Contrary to s 170(1) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). 2 Contrary to s 134 of the CLCA. 3 Contrary to s 86A(1) of the CLCA. 4 Contrary to s 170(1) of the CLCA. 5 Contrary to s 134 of the CLCA. -- 3 of 8 -- [2025] SASCA 124 The Court 2 ensued. The BMW was later located by police, waterlogged and in a badly damaged condition. The appellant initially failed to answer questions as to the identity of the driver, later admitting he was the driver (Failure to Answer Question – Count 6 on the Information).6 The appellant made admissions to the offending. 7 The above offending breached a four-month supervised Obligation imposed on the appellant two weeks prior on 12 September 2024 for the offences of Aggravated Theft and Basic Assault (Failure to Comply with Bond Obligation – Count 9 on the Information).7 The personal circumstances of the appellant 8 The appellant is an Aboriginal child aged 16 years at the time of sentencing. The appellant, after his arrest, spent nine hours in the police cells and 13 days in custody before being granted home detention bail. The appellant spent 56 days on home detention bail and 43 days on electronic monitored curfew bail. 9 After his release on home detention bail and before sentencing, the appellant had engaged well with his Youth Justice Officer and completed a number of programs. Reports tendered before the sentencing Magistrate confirmed this compliance with home detention bail conditions. He was also working with an Aboriginal elder as a mentor. Present in court during the sentencing hearing were his mother and aunt and a Youth Justice worker. Apart from the single breach for a positive drug test (cannabis), he was compliant with bail conditions. 10 The appellant has sleep difficulties and his GP suggested that he attend a sleep study. He was attending a FLO program at school. He does not have a driver’s licence. He was living with his mother and siblings and had his mother and aunt’s support. 11 The appellant wrote an apology to the victims. This was read out in court. His aunt had helped him to write it due to his lack of schooling. 12 Counsel for the appellant at the sentencing hearing submitted that the appellant didn’t find his time in custody “at all an enjoyable experience”. Counsel submitted that the appellant’s performance on home detention bail demonstrated that he responded well to supervision. The sentencing remarks 13 The sentencing Magistrate described the nature and seriousness of the offending. 14 During sentencing the sentencing Magistrate observed: 6 Contrary to s 74AB(2)(a) of the Summary Offences Act 1953 (SA). 7 Contrary to s 26(4) of the Young Offenders Act 1993 (SA). -- 4 of 8 -- [2025] SASCA 124 The Court 3 [Y]ou have completed a number of programmes and … you are hoping to obtain employment either in the building industry or as a mechanic. 15 This was the only reference to the appellant’s personal circumstances. The sentencing Magistrate took into account the appellant’s letter of apology. The sentencing Magistrate then again reminded the appellant about the serious nature of the offending. 16 The sentencing Magistrate stated: There will be convictions recorded in relation to each of the offences. I would have given you, without the discount, Detention of nine months. I have discounted that by 30%8 to reach a sentence of Detention of six months. Pursuant to section 26 of the Sentencing Act 2017, I impose the one penalty in relation to all counts. I do not consider it is appropriate to suspend all of the sentence of Detention. In fact, what I am going to order is that you serve three months Detention and that the balance will be suspended upon you entering into an Obligation for a period of six months, pursuant to section 96(4) of the Sentencing Act 2017. 17 When pronouncing sentence, the sentencing Magistrate made no specific allowance for the appellant having served time in custody or on home detention bail and electronic monitored curfew bail. 18 During his remarks the sentencing Magistrate stated: You are entitled to a 30% discount because of your guilty pleas to these charges. I have also taken into account the fact you had spent some nine hours in police cells when you were arrested and there was a period of 13 days in custody before you were released on home detention bail. You spent some 56 days on home detention bail and 43 days on electronic curfew monitored bail. 19 The sentencing Magistrate did not specify how he took those matters into account. It is unknown whether he gave the appellant full credit for the 13 days spent in custody nor is it known what allowance the sentencing Magistrate made for the restriction on the appellant’s liberty for the 56 days on home detention bail or the 43 days restriction due to the electronic monitored curfew bail imposed. Submissions 20 The appellant, while acknowledging that the sentencing Magistrate stated in his remarks that he had taken into account the relevant times in custody and on bail, submitted that he did not indicate what credit he in fact gave for those periods. In particular, the sentencing Magistrate did not state whether he gave the appellant full credit for time spent in custody. 21 The appellant accepted that what allowance should be made with regard to the appellant’s time on home detention bail and electronic monitored curfew bail 8 The discount applied was in fact 33.33 percent. Such an allowance was not permitted by the Sentencing Act 2017 (SA). -- 5 of 8 -- [2025] SASCA 124 The Court 4 is discretionary. However, the appellant submitted that it was incumbent on the sentencing Magistrate to specify what allowance he made. The failure to specify what allowance he made for these periods of time or how he took them into account is an error of the type identified in House v The King.9 22 The sentencing Magistrate did not reduce the sentence that was later imposed in light of what was a significant period of time for a youth of 16 years to spend in custody and subject to stringent bail conditions. 23 The respondent acknowledged that from the sentencing remarks it is impossible to know what allowance the sentencing Magistrate made for any of the periods discussed. The respondent, correctly in our view, conceded that the sentencing Magistrate’s remarks on this issue, other than the general remark that he had taken them into account, were opaque. Discussion 24 While allowance for time spent in custody is framed as a discretion, unless there is some special or unusual feature of the case, it is usual practice to provide full credit on a day-to-day basis.10 25 The situation in relation to credit for time spent on home detention bail and electronic monitored curfew bail is different. In R v Taylor, Lovell J observed (Nicholson and Parker JJ agreeing):11 A court is not obliged to make a reduction on account of time spent on home detention although it is a factor that can be taken into account. The Judge correctly stated that there is no mathematical formula for taking into account time on home detention bail nor any authority which mandates a specific deduction. Much will depend on the circumstances of the matter. As was stated in R v Franceschini: At common law, a sentencing judge in this State has a discretion to allow credit for time spent on home detention bail and to, in effect, fix a period by which the sentence otherwise to be ordered is to be reduced thereby. There is no obligation on a court to give any such credit. Further, where some allowance is made, it inevitably will be significantly less than the total amount of time spent on home detention bail, but there is no accepted formula. It is akin to a personal circumstance to be taken into account and the particular facts of each case will inform whether or not credit is warranted and the extent of any such credit that is warranted. Whilst it is a common practice for a sentencing judge to make an allowance for a period of home detention and deduct that allowance from the head sentence and non-parole period a court does not have to approach the problem in that way. It can be taken into account as a personal circumstance of the prisoner to which the judge gives appropriate weight when 9 (1936) 55 CLR 499. 10 R v Tsonis (2018) 131 SASR 416 at [85] (Lovell, Doyle and Hinton JJ). 11 [2016] SASCFC 54 at [19]-[20]. -- 6 of 8 -- [2025] SASCA 124 The Court 5 arriving at a head sentence and non-parole period. This latter approach may lack transparency. [Footnotes omitted] 26 In Zaidi v The Queen, Kelly J observed (Kourakis CJ and Bleby J agreeing) that:12 First, as wide as the discretion to give credit for time spent on home detention is, it remains a judicial one which must be exercised reasonably and proportionally. Secondly, it is also one which attracts the obligation to give reasons. 27 The sentencing Magistrate stated that he had “taken into account” the relevant periods of time. He did not say how he took them into account nor did he say, in relation to time spent on home detention bail and electronic monitored curfew bail, what allowance he made. The sentencing remarks, as the respondent acknowledged, are opaque. This Court is unable to say whether the sentencing Magistrate gave the appellant full credit for his time spent in custody. Nor is this Court able to say that he exercised the discretion in relation to home detention bail and electronic monitored curfew bail, reasonably and proportionately. The sentencing process lacked transparency. 28 The time spent in custody should have been specifically accounted for and in the circumstances of this case what allowance was to be made for time spent on home detention and electronic monitored curfew bail also should have been specified. 29 We would allow this ground of appeal. The appellant is to be resentenced. Extension of time 30 Having considered the merits of the appeal, it is appropriate to return to the application for an extension of time. The appellant was sentenced on 16 January 2025. The notice of appeal was not filed until 12 March 2025. The affidavit of the appellant’s solicitor in support of the extension of time sets out his explanation for the delay. The respondent indicated that it would not oppose the extension of time sought. We would allow the application for an extension of time. Resentence 31 The appellant was granted bail on 14 February 2025 after serving approximately 30 days in custody. It will be important on resentence for the sentencing Court to have information on how the appellant responded to his time in custody and further information on how he responded to his now bail conditions. 32 Given the specialist nature of the Youth Court jurisdiction, and in the unusual circumstances of this case where the appellant served part of his sentence before 12 [2020] SASCFC 93 at [28]. -- 7 of 8 -- [2025] SASCA 124 The Court 6 being granted bail, it is appropriate to remit the matters to the Youth Court for sentencing before a different judicial officer. 33 The mandatory driver’s licence disqualification of 12-months is set aside. 34 There was no appeal in relation to the sentence for the offence of breach of bail (file YCCRM-25-000282). The sentence for that offence remains. Order 35 The application for an extension of time is granted and the appeal is allowed. The sentence imposed pursuant to s 26 of the Sentencing Act is set aside. The matters are remitted to the Youth Court for sentencing before a different judicial officer. The driver’s licence disqualification for a period of 12-months is also set aside. -- 8 of 8 --