STALWIN GALLAGHER v COMMISSIONER OF POLICE [2025] SASC 16

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE PANDYA) MCCRM-24-25065 Appellant: STALWIN GALLAGHER Counsel: MS J ADAMS - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Respondent: COMMISSIONER OF POLICE Counsel: MS V RAJARAMANAN - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 13/12/2024 File No/s: SCCRM-24-035811 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. GALLAGHER v POLICE [2025] SASC 16 Judgment of the Honourable Justice McDonald 21 February 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION - RELEVANT CONSIDERATIONS This is an appeal against a sentence imposed in the Port Adelaide Magistrates Court on 3 September 2024. On this date, the appellant pleaded guilty to two counts of breaching bail. The Magistrate imposed a bond to be of good behaviour for 12 months as well as recording convictions. The appellant appeals the Magistrate’s decision on the basis that the Magistrate erred in the exercise of the sentencing discretion by deciding to record convictions against the appellant. The appellant contends that the recording of convictions against the appellant and the consequences that follow, including the appellant’s prospects of maintaining employment and the desire to commence studying at university, result in a disproportionate outcome. A further contention raised by the appellant is that the Magistrate failed to provide sufficient reasons for the decision. The appellant submits that the Magistrate failed to clearly set out the factual basis upon which the decision to record convictions was made and that there was insufficient clarity regarding the specific section of the Sentencing Act 2017 (SA) applied in determining the sentence. The appellant also contends that the sentence imposed was manifestly excessive on the grounds that the sentencing standard for offences of this nature are highly fact dependent and vary significantly. -- 1 of 13 -- It is further submitted that insufficient consideration was given to the appellant’s personal circumstances and lack of criminal convictions in arriving at the sentence. The appellant further contends that the offences, subject of this appeal, were not of a serious nature and should be regarded as falling towards the lower end of the scale of serious offences. Held; the appeal is allowed. 1. The sentence imposed on 3 September 2024 is revoked on the basis that the Magistrate failed to provide adequate reasoning for the basis of the decision. 2. The appellant is to be resentenced. Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 23, s 24, s 97; Bail Act 1985 (SA) s 10(4); Joint Criminal Rules 2022 (SA) r 191.1, referred to. R v Lobban (2001) 80 SASR 550; House v The King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; Lowndes v The Queen (1999) 195 CLR 665; Wainohu v New South Wales (2011) 243 CLR 181; Fleming v The Queen (1998) 197 CLR 250; R v Keyte (2000) 78 SASR 68; DL v The Queen (2018) 266 CLR 1; Boyle (A Pseudonym) v The Queen [2022] SASCA 50; R v Ricciardi (2017) 128 SASR 571; Rowland v Police (2001) 79 SASR 569; Allison v Police [2005] SASC 447; Playford v Police [2017] SASC 26; Donges v Ratcliffe [1975] 1 NSWLR 501; R v Briese, Ex part Attorney-General (1997) 92 A Crim R 75; R v Stubberfield (2010) 106 SASR 91; MacGregor v Police (1995) 66 SASR 269, applied. -- 2 of 13 -- GALLAGHER v POLICE [2025] SASC 16 Magistrates Appeal: Criminal McDONALD J: 1 This is an appeal against a sentence imposed in the Port Adelaide Magistrates Court on 3 September 2024. On that date the appellant pleaded guilty to two counts of breaching bail that were committed on 2 September 2024. For these offences, convictions were recorded, and the appellant was made the subject of a bond to be of good behaviour for 12 months in the sum of $500. Grounds of appeal 2 Whilst there were initially two grounds of appeal namely, that the sentence was manifestly excessive and that the Magistrate erred in failing to exercise her discretion to not record convictions, the central complaint was that the Magistrate convicted the appellant in relation to the two counts. The manifest excess ground also incorporated a complaint about the length of the good behaviour bond, although that aspect of the sentence was not as vigorously challenged. Additional ground of appeal 3 By the time the appeal came on for hearing, it had become apparent that I was unable to properly weigh the competing submissions of the parties, as the basis upon which the Magistrate sentenced the appellant was far from clear. On that basis I invited counsel for the appellant to consider whether she wished to seek leave to file an additional ground of appeal in relation to the adequacy of the reasons. The appellant took up that opportunity. The factual basis for sentence 4 The Magistrate sentenced the appellant on the following factual basis: 1. On Tuesday 16 July 2024, the appellant entered into two bail agreements in relation to charges of aggravated assault and rape.1 A condition of each of the bail agreements was that the appellant would not “contact or communicate, directly or indirectly, with NP” the alleged victim of both offences. 2. At about 9.15pm on 2 September 2024, police attended at a unit in North Haven in relation to a disturbance that had been reported by neighbours. 1 These charges were not proceeded with. -- 3 of 13 -- [2025] SASC 16 McDonald J 2 3. Upon arrival, police could hear noise coming from within the unit. The police knocked on the door and the owner answered, granting the police entry. 4. Once inside, the police located the appellant in the company of NP. 5. The appellant was arrested and charged with two counts of breaching bail (as there were two bail agreements). 6. The appellant participated in an interview with police during which he admitted that he knew the conditions of the two bail agreements, including that he was to not contact or communicate with NP. 5 During submissions, through his counsel, the appellant provided an explanation for how he had come to be in breach of his bail conditions. It was said that the house at which he was located with NP was his Aunty’s house. The appellant was already at the house when NP arrived. He had been drinking alcohol. The appellant wanted to leave (knowing that he was in breach of his bail) however the next train was sometime away, so instead, he laid down on the couch while waiting for the train and fell asleep. It was whilst he was asleep that the police arrived. 6 The Magistrate rejected the appellant’s account of the circumstances in which he came to be at the house with NP. During submissions, her Honour put the appellant on notice that absent sworn evidence from him, she would not sentence him on the basis that he put forward. The appellant declined to give evidence. Given the intimation by the Magistrate, counsel for the appellant withdrew her submissions in relation to the appellant’s explanation for being at the property and in the company of NP. 7 There can be no suggestion that the Magistrate in any way erred in adopting this approach. The appellant’s personal circumstances 8 Counsel for the appellant made some brief submissions about the appellant’s personal circumstances. She put to the Court that at the time of the offending he was a 23 year old Aboriginal man. He had completed year 12 at school and at the time of sentencing worked as an administrative support officer for the Department of Correctional Services. He wishes to study psychology at university in 2025. 9 At the time of sentencing, the appellant had no criminal convictions and no history of breaching court orders. Aside from the two breach of bail offences, the appellant was otherwise of good character. 10 During the course of submissions, the Magistrate told counsel for the appellant that if she wanted her to place any weight on the appellant being employed by DCS or his prospects of studying psychology, the Magistrate would -- 4 of 13 -- [2025] SASC 16 McDonald J 3 require some confirmation of those submissions. When the appellant’s counsel enquired as to what form of confirmation the Magistrate required, her Honour responded that she wanted confirmation that the appellant had completed year 12. The Magistrate went on to explain that given the significance of the matters being put to the Court she “would need something to hang her hat on” if she was to accede to a submission to not record a conviction. 11 The appellant’s counsel advised the Court that she was not in a position to provide school records at short notice and, given that the appellant was hoping to finalise the mater that day, asked the Magistrate to simply rely on her submissions. 12 The Magistrate responded that she was unclear as to how she could do that when the appellant was making a submission that no conviction be recorded. 13 The Magistrate then addressed the appellant directly and asked him about his employment. Her Honour told the appellant that unless she had confirmation of “these matters”, she could not properly consider the application for no conviction to be recorded. The appellant told her Honour that he had an administrative job with DCS at Edwardstown, which he had worked in since March and that his boss was called “Sheena”. 14 The Magistrate suggested to the appellant’s counsel that it may be straightforward to make some enquires about the appellant’s employment, however counsel responded that she was not prepared to do so and invited the Magistrate to proceed to sentence the appellant. 15 I digress for moment to make some observations about the appropriateness of the approach adopted by the Magistrate in requiring that the appellant provide confirmation of the submissions made from the bar table. 16 In R v Lobban,2 the Court of Criminal Appeal were required to consider the approach to be adopted when competing submissions are made during the course of sentencing submissions, both as to the circumstances of the offence and the personal circumstances of the offender. 17 In his judgment, Martin J considered first the situation in which there are conflicting submissions about the nature of the criminal conduct. On that topic, Martin J concluded:3 There can be no inflexible rule. Each case must be determined according to its particular circumstances. The critical question is whether an offender, by some means, is on notice that a submission advanced in mitigation might not be accepted by the sentencing judge. 18 There can be no doubt that the Magistrate in this case complied with that requirement. 2 (2001) 80 SASR 550. 3 Ibid at [21]. -- 5 of 13 -- [2025] SASC 16 McDonald J 4 19 Martin J went on to discuss the approach to be adopted by the Court in relation to submissions about an offender’s personal circumstances. His Honour said:4 The same critical question arises in respect of matters of a personal nature put forward by an offender in mitigation of penalty. If issue is taken by the Crown, the offender is on notice that a different view is being put to the judge and that the judge might act on either view. In such circumstances, there is no requirement that a judge give an indication that the matter advanced in mitigation might not be accepted. Once on notice, it is a matter for an offender whether to call evidence to support a particular submission that is in dispute. Leaving aside matters disputed by the Crown, submissions as to personal matters put in mitigation of penalty stand in a different position from submissions concerning the criminal conduct. The court does not usually have the assistance of verified statements. Pre-sentence reports are largely based upon information from an offender. The Crown is frequently not in a position to challenge particulars of a personal nature advanced in mitigation. As a matter of sentencing practice, generally speaking judges accept personal matters put forward in submissions unless they are inherently implausible or are, to the knowledge of the offender, contradicted by other material before the sentencing judge. Occasionally, the credit of an offender may be so badly tarnished that it will be obvious to the offender that the sentencing judge is unlikely to accept at face value anything that the offender says by way of mitigation. Sentencing proceedings must be both practical and fair. Bearing in mind the many personal matters often advanced in submissions by way of mitigation, the existing practice achieves both objectives. For these reasons, if a submission as to personal circumstances advanced in mitigation is not disputed by the Crown, or an offender is not on notice by some other means that a submission might not be accepted, in my opinion an offender is ordinarily entitled to assume that a sentencing judge will accept the submission at face value unless the judge indicates otherwise. The unfairness of a judge rejecting such a submission without notice is readily apparent. 20 To adopt a pragmatic approach is all the more important in a busy lower court jurisdiction. The system would become bogged down and unworkable if practitioners were required to be prepared to provide confirmation, of what appear to be relatively uncontroversial submissions, about a defendant’s personal circumstances. Whilst judicial officers should remain vigilant about ensuring that the Court is not misled, there was nothing inherently implausible about the submissions made by counsel for the appellant, particularly in relation to him having completed year 12. The Magistrate’s reasons 21 I turn then to the Magistrate’s reasons. 22 Having set out the factual basis of the plea and her rejection of the appellant’s explanation for how he came to be in the company of NP, the Magistrate emphasised the importance of bail conditions that are designed for the protection of a victim. Her Honour said: 4 Ibid at [22]-[24]. -- 6 of 13 -- [2025] SASC 16 McDonald J 5 In relation to these matters, protecting the complainant is the most important part of the sentence.5 The matter you were bail on for is a serious allegation, a major indictable allegation of a sexual nature and you breached the very important condition of no contact with the complainant. No doubt, that condition was put in place for the protection of the complainant, and it was breached by you. You had other options to leave the house, you chose not to. 23 The Magistrate then made reference to the need for personal deterrence, and for the sentence to deter others from committing offences of this nature, and in that context referred to the breach as “a serious breach”. 24 The Magistrate acknowledged the appellant’s guilty pleas and accepted that he was remorseful and had taken responsibility for his actions. 25 Following this, the Magistrate set out the submissions made by the appellant’s counsel about his personal circumstances. Having set those details out in full, the Magistrate observed “none of the submissions can be confirmed”. 26 The Magistrate then gave consideration to the question of whether to exercise her discretion to decline to record a conviction. The Magistrate explained her reasoning in the following terms: In relation to this matter, ordinarily a conviction should be recorded. It should be a signal to the community and future employers that you have not complied with a serious obligation, but every matter has to be considered on its individual circumstances. Ultimately, having considered all of the matters, whilst I am prepared to make a finding that you are unlikely to commit such an offence again, I am not going to make a finding that in the circumstances it is appropriate for you to be released without a conviction given the matters I have outlined as to the seriousness of the breach. 27 The Magistrate did not specify what “all of the matters were”. Principles on appeal 28 This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA) (‘the Rules’). Appeals from a Magistrate to a single Judge of the Supreme Court are by way of a rehearing pursuant to r 191.1 of the Rules. 29 In order to interfere with the exercise of a sentencing discretion, there must be a demonstrated error of the kind described in House v The King.6 The approach to be adopted was summarised by White J in Wittwer v Police:7 The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or if it has allowed irrelevant 5 By that I am assuming that the Magistrate meant the most important sentencing consideration. 6 (1936) 55 CLR 499 at 505. 7 [2004] SASC 226 at [16]. -- 7 of 13 -- [2025] SASC 16 McDonald J 6 considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly. … 30 The Court will not interfere merely because it would have exercised the sentencing discretion in a different way than the sentencing Magistrate. 31 In Lowndes v The Queen, the High Court observed that:8 … a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. That is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. 32 Ultimately, the real questions on this appeal are whether the sentencing Magistrate failed to provide adequate reasons and/or failed to properly exercise her discretion in arriving at a decision to record a conviction. Accordingly, the appellant must demonstrate that the Magistrate committed an error of a type that would vitiate the Magistrate’s discretion, before this Court will interfere with the order. It is not enough that this Court would have taken a different view. Adequacy of reasons 33 It is convenient to commence with a consideration of whether the Magistrate provided adequate reasons for arriving at her decision to record a conviction. The appellant contends that the reasons are inadequate for two reasons. These are that the Magistrate failed to clearly set out the factual basis upon which she arrived at the decision to record a conviction, and that her Honour failed to clearly enunciate which section of the Sentencing Act 2017 (SA) (‘Sentencing Act’) was being utilised to impose the sentence. 34 The provision of reasons for a decision is, amongst other things, an expression of the open justice principle. The centrality, to the judicial function, of a public explanation of reasons for final decisions has long been recognised.9 This applies equally to a Magistrate presiding over a trial or in sentencing a defendant. The judicial obligation to provide reasons for a decision is important, both for facilitating a party’s right to appeal,10 and as a matter of public accountability. The parties and public are entitled to know how and why the Court made a particular decision.11 A failure to provide adequate reasons amounts to an error of law. 35 If a Judge or Magistrate was not required to give reasons, then an appellate court would not be able to identify whether the Judge or Magistrate correctly applied the principles of law.12 In a paper titled “The Judicial Method: Essentials 8 (1999) 195 CLR 665 at [15]. 9 Wainohu v New South Wales (2011) 243 CLR 181 at [54]-[58]. 10 Fleming v The Queen (1998) 197 CLR 250 at [22]. 11 R v Keyte (2000) 78 SASR 68 at [43]. 12 Ibid at [38]. -- 8 of 13 -- [2025] SASC 16 McDonald J 7 and Inessentials”,13 the Hon AM Gleeson AC identified the purpose of providing judicial reasons: Reasons serve a number of purposes. They promote good decision-making by requiring a decision-maker to explain and justify an outcome. They inform a losing party of the reason for failure. They allow an appellate court to identify possible error and correct possible injustice. They inform the public of the way judicial power is exercised. The adequacy of a statement of reasons for a decision is judged by reference to these purposes. 36 The adequacy of reasons should be considered on a case-by-case basis because the content and detail of reasons will vary depending upon the nature of the jurisdiction and the matter subject of the decision.14 However, an appellate court should not have to speculate as to what a Judge or Magistrate might have meant, particularly on an important issue.15 37 Reasons for a decision are to be read as whole and a Judge or Magistrate does not need to provide lengthy or elaborate reasons.16 It is important to remain cognisant that the Magistrates Court is a court of summary jurisdiction.17 In almost all cases, a short succinct statement of the essential process by which a Magistrate has reached his or her decision will be enough.18 I bear in mind the observations made by Vanstone J in Playford v Police:19 Remarks on penalty given by magistrates, and particularly ex tempore remarks, are not to be analysed and deconstructed in the same way as might be settled reasons for judgment. Of necessity, magistrates often deliver ex tempore reasons. If they did not, no doubt their workloads would become overwhelming. Not all cases call for any more than brief reasons identifying, for the benefit of the person to be penalised, what are the critical factors which weighed in the decision on penalty. 38 It remains however an important part of the Magistrate’s duty to state the facts found and the legal principles applied to those facts, for the purposes of reaching a verdict or arriving at a sentence.20 The factual basis of the sentence 39 I will deal firstly with the complaint that the Magistrate did not clearly set out the factual basis of the sentence. 40 The concern in relation to the Magistrate’s process of reasoning arises from the manner in which events unfolded during the course of submissions. The Magistrate was persistent in her insistence that confirmation be provided in respect of the appellant’s personal circumstances. When that confirmation was not forthcoming, it appears that the Magistrate was left in a conundrum as to whether 13 (2009) 9 The Judicial Review 377 at 384. 14 DL v The Queen (2018) 266 CLR 1 at [32]. 15 Boyle (A Pseudonym) v The Queen [2022] SASCA 50 at [119]. 16 R v Ricciardi (2017) 128 SASR 571 at [25]. 17 Allison v Police [2005] SASC 447 at [59]. 18 Rowland v Police (2001) 79 SASR 569 at [35]. 19 [2017] SASC 26 at [23]. 20 Donges v Ratcliffe [1975] 1 NSWLR 501 at 507. -- 9 of 13 -- [2025] SASC 16 McDonald J 8 to sentence on the basis of the unconfirmed submissions or to sentence having no regard to any of the appellant’s personal circumstances, other than that he was a young Aboriginal man of prior good character. 41 From the Magistrate’s reasons, it is unclear which approach her Honour adopted. Whilst she set out in full the personal details which were provided by the appellant’s counsel, she went on to observe that the submissions had not been confirmed. The reasoning became all the more opaque by the Magistrate’s reference to having considered “all of the matters” without any identification of what those matters were. 42 In my view, the reasons provided by the Magistrate are inadequate in that it is not possible to discern those matters relied upon in arriving at the decision to record a conviction. It follows that a procedural error has been identified. I will come back to the question of how this error impacts on the outcome of the appeal, after considering the merits of the grounds relating to the decision of the Magistrate to decline to not record a conviction. The relevant section of the Sentencing Act 2017 (SA) 43 Section 97 of the Sentencing Act confers a discretion on the Court to decline to record a conviction on the imposition of a bond to be of good behaviour. Unlike other sections of the Sentencing Act that allow for not recording a conviction,21 under s 97 there is no presumption in favour of or against the recording of a conviction. The discretion is at large, enabling the Court to “discharge the defendant, with or without recording a conviction”, if good reason exists. 44 Section 24 also provides the Court with discretion to decline to record a conviction however, only in circumstances in which a fine or a sentence of community service or both is imposed. The test to be satisfied under s 24 is different to that to be found in s 97. Under s 24, in order for a court to impose a penalty without recording a conviction, the Court must be satisfied that the defendant is unlikely to commit such an offence again and must also take into account a number of enumerated considerations as to whether “good reason” exists for not recording a conviction. The discretion created under s 97 is clearly broader. 45 In the Magistrate’s remarks on penalty, the Magistrate appears to have picked up the terminology of s 24 in concluding that the appellant was “unlikely to commit such an offence again”. 46 It has been suggested by the appellant that the inference to be drawn from this passage is that the Magistrate erroneously sentenced pursuant to s 24 of the Sentencing Act. In circumstances in which the passage relied upon falls within ex tempore reasons provided by the Magistrate, I would be disinclined to draw that inference absent express reference to s 24. 21 Sentencing Act 2017 (SA) s 23 and s 24. -- 10 of 13 -- [2025] SASC 16 McDonald J 9 47 Even if, however, the Magistrate did erroneously proceed under s 24, her Honour had plainly considered those matters relevant to whether there was good reason to decline to record a conviction. Recording of a conviction 48 The recording of a conviction serves many purposes, including a formal finding of guilt of a crime, a public declaration that the person engaged in such criminal conduct, the communication of the community’s denunciation and censure of the conduct and to act as a deterrent. In deciding whether to record a conviction, consideration must be given to the offender and the impact that it will have on the individual as compared with the public interest inherent in the recording of a conviction. 49 In R v Briese, Ex parte Attorney-General,22 which was cited with approval in R v Stubberfield,23 Thomas and White JJ discussed the tension between these competing interests:24 … the effect of such an order is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department. … For present purposes it is enough to note that the making of an order … has considerable ramifications of a public nature, and courts need to be aware of this potential effect. … On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation … Did the Magistrate err in determining to record a conviction? 50 In determining whether to record a conviction, the Magistrate was required to undertake a balancing exercise. The seriousness of the offending and the need for adequate punishment had to be balanced against the appellant’s personal circumstances and the effect that recording a conviction would have on him in the future. In MacGregor v Police,25 Debelle J discussed this balancing process. His Honour said:26 The criminal law exists for the protection of the public and the protection of the public must remain the first concern of the court. But public concern about crime should not displace the fundamental concepts of justice and mercy which should animate criminal tribunals of civilised nations. Whilst the protection of the public is the first concern of the courts, if, 22 (1997) 92 A Crim R 75. 23 (2010) 106 SASR 91 at [44]. 24 R v Briese, Ex parte Attorney-General (1997) 92 A Crim R 75 at 79. 25 (1995) 66 SASR 269. 26 Ibid at 272. -- 11 of 13 -- [2025] SASC 16 McDonald J 10 consistently with that, the courts can, in their compassion, assist another human being to avoid making ruin of his life, they ought to do so. … 51 Consistent with that approach, Debelle J came to the view that Mr MacGregor’s circumstances were such that the consequences of the convictions were disproportionate to the seriousness of his conduct. 52 It is the appellant’s contention, that in undertaking this balancing exercise the Magistrate failed to consider and/or give appropriate weight to: 1. The appellant’s lack of criminal convictions; 2. The appellant’s young age; 3. The detriment to current employment; 4. The detriment to future employment prospects; and 5. The detriment to future education prospects and should a conviction be imposed. 53 The first two points were matters central to sentencing submissions and specifically referred to in the Magistrate’s remarks on penalty. There is no merit to this complaint. 54 The considerations in 3, 4 and 5 fall into a different category in that these were the matters that the Magistrate found “were not confirmed”. 55 As a starting point, it must be assumed that an experienced Magistrate, regularly dealing with a busy list would be aware of, and take into account, the general impact of the recording of a conviction on an offender. 56 I also agree with the Magistrate’s observations about the seriousness of the offences. The Bail Act 1985 (SA) requires that where there is a victim of an offence, primary consideration must be given to the need that a victim may have, or perceive, for physical protection from a defendant.27 It follows that a breach of a condition that attempts to provide that protection is a serious breach and must be treated accordingly. 57 The difficulty is that absent any clear indication as to whether the Magistrate was sentencing on the basis of a young man who was at risk of losing his employment and/or jeopardising his future education or some other factual basis, it is not possible to conduct a review into how the Magistrate undertook that balancing act and arrived at the decision to record a conviction. The deficiencies are such that the appellant is left to wonder if and why the submissions put on his 27 Bail Act 1985 (SA) s 10(4). -- 12 of 13 -- [2025] SASC 16 McDonald J 11 behalf were rejected. As a result, it is also unclear whether any errors were made in the balancing process involved in arriving at the sentence. 58 Given the lack of clarity in the Magistrate’s reasons, it cannot be determined whether the Magistrate erred in her decision to record convictions. In order to make that assessment, it is necessary to know the factual basis upon which the sentence was determined. It cannot be said that the offences of themselves were so serious that the outcome was inevitable, regardless of the appellant’s personal circumstances, and the consequences for him in the event that convictions were recorded. 59 In my view, the sentencing process miscarried and the appeal should be allowed. Was the imposition of a 12 month good behaviour bond manifestly excessive? 60 As this matter will require the appellant to be resentenced, I will deal with the complaint about the imposition of a 12 month good behaviour bond. 61 The maximum penalty for breach of bail is a fine of $10,000 or two years imprisonment.28 62 There is no sentencing standard for breaching bail given the breadth of the variation between different offences.29 For reasons that I have already canvassed, I agree with the Magistrate that this was a serious breach of bail; this was a deliberate breach of a condition designed to protect the alleged victim of an offence. In such circumstances, it cannot be said that a 12 month good behaviour bond fell outside of the range of sentences that were appropriate for the Magistrate to impose. Conclusion 63 I allow the appeal. 64 The sentence imposed on 3 September 2024 is revoked. 65 I will hear the parties as to whether I should resentence the appellant or remit the matter back to the Magistrates Court for resentence before a different Magistrate. 28 Bail Act 1985 (SA) s 17(1). 29 Brady v Police [2022] SASC 114 at [23]. -- 13 of 13 --