[2025] SASC 38

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE MCLEOD) MCCRM-24-042483 Appellant: COMMISSIONER FOR CONSUMER AFFAIRS, CONSUMER & BUSINESS SERVICE In Person Counsel: MS C HARRISON - Solicitor: CROWN SOLICITOR (SA) Respondent: MINGHUI JIN In Person Hearing Date/s: 19/03/2025 File No/s: SCCRM-25-003513 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. CONSUMER & BUSINESS SERVICE v JIN [2025] SASC 38 Judgment of the Honourable Justice Gray (ex tempore) 19 March 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - DISCRETION TO RECORD CONVICTION The respondent pleaded guilty in the Magistrates Court to one count of interfering with an odometer and one count of dishonestly dealing with documents. The Magistrate, without recording convictions, placed the respondent on a supervised bond in the sum of $1,000 to be of good behaviour for a period of two years, but to return to Court for both conviction and sentence if he failed to comply with the conditions of the bond and ordered the appellant pay compensation of $1,364.50 to the purchaser of the vehicle, court, prosecution fees and victims of crime levy. The appellant appeals against the penalty imposed on three grounds: 1. The Magistrate erred in finding there was good reason to discharge the respondent on a bond to be of good behaviour under s 97(1) of the Sentencing Act 2017 (SA) (the Sentencing Act) without recording a conviction. 2. The Magistrate erred in finding that it was open to decline to record convictions under s 97(1) of the Sentencing Act in circumstances where he had concluded that such a similar course was not open under s 24 of the Sentencing Act because he was not of the opinion that the respondent was unlikely to commit such an offence again. 3. The Magistrate erred in imposing a penalty that was manifestly inadequate having regard to the purpose of sentencing for regulatory offences. Held, dismissing the appeal: -- 1 of 12 -- 1. The leniency of not recording a conviction will rarely have application in relation to a regulatory offence. In this case, the Magistrate included in his consideration matters which could amount to “good reason” within the meaning of s 97 of the Sentencing Act (at [36]). 2. It was open to the Magistrate to exercise the sentencing discretion pursuant to s 97 of the Sentencing Act 2017 (SA) without first excluding the use of other available sentencing options (at [40]). 3. The sentence imposed was lenient but not disproportionate to the seriousness of the crime so as to shock the public conscience (at [44]). Criminal Law Consolidation Act 1935 (SA) s 140; Fair Trading Act 1987 (SA) s 78C; Second-hand Vehicle Dealers Act 1995 (SA) s 34; Sentencing Act 2017 (SA) s 24, s 97, referred to. Everett v The Queen (1994) 181 CLR 295; Gallagher v Police (SA) [2025] SASC 16; Griffin v Police [2005] SASC 337; House v The King (1936) 55 CLR 499; Police v Cadd (1997) 69 SASR 150; Public Service Board (NSW) v Osmond (1986) 159 CLR 656; R v Osenkowski (1982) 30 SASR 212; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Wainohu v New South Wales (2011) 243 CLR 181, applied. Chehade v Commissioner for Consumer Affairs (2016) 125 SASR 223; Piva v Brinkworth (1992) 59 SASR 92; Hemming v Neave (1989) 51 SASR 427; Ly v Gover (1989) 150 LSJS 449, discussed. -- 2 of 12 -- CONSUMER & BUSINESS SERVICE v JIN [2025] SASC 38 Magistrates Appeal: Criminal GRAY J (ex tempore): Introduction 1 This is an appeal against sentence. 2 On 8 January 2025, the Magistrate without recording convictions placed Minghui Jin (the respondent) on a supervised bond in the sum of $1,000 to be of good behaviour for a period of two years, but to return to court for both conviction and for sentence if he failed to comply with the conditions of the bond. It was a condition of the bond imposed that the respondent undertake and complete 150 hours of community service within 12 months. A period of 18 months supervision during which the respondent was to report to the Department of Correctional Services was also imposed. In respect of Count 1, the respondent was ordered to pay compensation in the sum of $1364.50 and was ordered to pay court fees and prosecution fees as claimed together with victim of crime levies. 3 The sentence was imposed in respect of the following offences: • One count of interfering with an odometer, contrary to s 34 of the Second- hand Vehicle Dealers Act 1995 (SHVD Act); and • One count of dishonestly dealing with documents, contrary to s 140 of the Criminal Law Consolidation Act 1935 (CLCA). 4 The respondent entered pleas of guilty to both offences on his first appearance before the court, entitling the respondent to a reduction in his sentence of up to 40 per cent.1 5 This is a Crown appeal. There are three grounds of appeal. First, that the learned Magistrate erred in finding there was good reason to discharge the respondent on a bond to be a good behaviour under s 97(1) of the Sentencing Act 2017 (SA) (Sentencing Act) without recording convictions. Second, the learned Magistrate erred by finding that it was open to decline to record convictions under s 97(1) of the Sentencing Act in circumstances where he concluded that such a similar course was not open under s 24 of the Sentencing Act. Thirdly, the learned Magistrate erred in imposing a penalty that was manifestly inadequate having regard to the purpose of sentencing for regulatory offences. Counsel for the Crown made submissions in relation to those grounds. The respondent appeared in person on the appeal and made submissions as to his personal circumstances both at the 1 Sentencing Act 2017 (SA) s 39(2)(a). -- 3 of 12 -- [2025] SASC 38 Gray J 2 time of the offending and now and as to his remorse concerning the offending conduct. 6 In order to understand the grounds of appeal, it is necessary to refer in some detail to the sentencing process adopted by the Magistrate. The Magistrate set out the facts and circumstances from the prosecution outline in detail. The learned Magistrate then recognised that the maximum penalty for an offence against s 34 of the SHVD Act is a fine of $10,000 and the maximum penalty for an offence against s 140 of the CLCA is imprisonment for 10 years. Background 7 The learned Magistrate’s remarks record that investigators for the Commissioner for Consumer Affairs (the Commissioner) commenced an investigation in relation to allegations of odometer tampering after receiving a complaint from SA Police. During the course of their investigation, it was identified that a 2017 VF Holden Commodore with a New South Wales registration number of DPN13A (the Commodore) was a vehicle of interest. 8 The investigations revealed that on 18 November 2022, the Commodore had an odometer reading of 221,589 kilometres as recorded in a New South Wales authorised inspection e-safety check report. On 3 February 2023, the Commodore was sold for $15,000 in Wagga Wagga, New South Wales with an odometer reading of approximately 221,000 kilometres. The Commodore was transported from Wagga Wagga to South Australia by the respondent. The Department of Infrastructure and Transport (DIT) documents accessed by investigators indicated that the Commodore was presented to DIT by the respondent for inspection in South Australia on 10 February 2023, with an odometer reading of 67,559 kilometres. 9 That same day on 10 February 2023, the Commodore was advertised for sale on Facebook Marketplace by a seller, ‘Jux Jin’, for $27,500. The description of the Commodore indicated that the vehicle came with a service logbook. The respondent when interviewed by investigators admitted that he posted the advertisement on Facebook. Dylan Hards was looking to purchase a vehicle for himself in February 2023 and reports seeing the advertisement for the Commodore on Facebook Marketplace. The following day on 11 February 2023, Mr Hards made contact with the respondent. They arranged to meet at a location in Lightsview. Mr Hards inspected the Commodore and took it for a test drive. The respondent showed Mr Hards the Identity Inspection paperwork and at the conclusion of this meeting, Mr Hards agreed to purchase the Commodore from the respondent. 10 Two days later on 13 February 2023, Mr Hards arranged for a bank cheque in the amount of $26,500 to be made out to the respondent for the purchase of the Commodore and the transactions were concluded on 14 February 2023, when the respondent sold the Commodore to Mr Hards for $26,500. The Commodore registration was transferred to Mr Hards and he was provided with a South -- 4 of 12 -- [2025] SASC 38 Gray J 3 Australia registration number S346CUH. Mr Hards also paid a transfer fee of $673.56. 11 Later that day, Mr Hards took the Commodore to Peter Page Hyundai, which had previously been a Holden dealership, to be serviced. A staff member conducted checks on the Commodore in the General Motors and Holden database using the Commodore’s VIN number and was able to locate the Commodore’s service history. Each of the odometer readings recorded in the General Motors service history are set out in the Magistrate’s reasons. They indicate a steady increase in the kilometres recorded on the odometer. The first reading is a record of 19 October 2017 of 16,346 kilometres. There are then recordings at regular intervals of at least twice a year for each year until 18 November 2022, when a reading of 221,589 kilometres is recorded. Following the provision of the General Motors history to Mr Hards, Mr Hards requested to return the Commodore to the respondent and cancelled the bank cheque. The respondent agreed. The respondent met Mr Hards at Service SA where Mr Hards paid $691 to have the Commodore transferred back into the respondent’s name. 12 As set out below, it is of some significance in the Magistrate’s reasons that the respondent then readvertised the Commodore for sale on Facebook Marketplace for $25,000. 13 On 27 February 2023, the respondent agreed to sell the Commodore to Mr Sirinder Singh for approximately $25,000, however, the purchase was not completed because Mr Singh was unable to register the Commodore in his own name. On 28 February 2023, the respondent made an application to alter the odometer reading of the Commodore. Records from Holden showing the higher odometer reading were filed with the application. The reason for the application was recorded as “odometer/cluster not working”. On 2 March 2023, an embargo notice was issued on the Commodore, pursuant to s 78C of the Fair Trading Act 1987. It appears from the DIT database that a freeze was placed on the registration for the Commodore on 15 February 2023. 14 On 3 March 2023, the respondent presented the Commodore to the inspectors who took photographs of the vehicle. The odometer reading was 67,949 kilometres. The respondent also gave the service history logbook to the inspectors. The details of the service history logbook are set out in the remarks on penalty of the Magistrate. Relevantly, the odometer readings shown in the service history logbook differ from the odometer readings that are recorded for the Commodore in the General Motors service history database. The logbook also contained a series of entries accompanied by a stamp with ‘WTH LTD PTY’ on it. Investigations were undertaken concerning that company and by letter dated 2 August 2024, Heidi Gromer, State Manager of the Avis Budget Group, confirmed that ‘WTH LTD PTY’ denied any ownership of the Commodore. 15 On 6 March 2023, the respondent was interviewed by investigators in the presence of an interpreter. The learned Magistrate’s reasons record that during the -- 5 of 12 -- [2025] SASC 38 Gray J 4 interview, the respondent made admissions to purchasing the instrument cluster together with the logbook for $250 in Sydney. The respondent also admitted that on 3 February 2023, he purchased the Commodore with an odometer reading of approximately 221,000 kilometres in Wagga Wagga for $15,000 with the intention of lowering the odometer reading and selling the vehicle for a higher price than he paid for it. The respondent admitted knowing his conduct was wrong and conceded that the conduct was “stupid”. The respondent also admitted advertising the Commodore as having an odometer reading of 67,500 kilometres and seeking a price of $26,500. The respondent also admitted writing the Commodore’s details on the front sheet of the logbook so that someone would believe that the Commodore had lower kilometres. 16 As stated, the learned Magistrate correctly identified that the maximum penalty for an offence against s 34 of the SHVD Act is a fine of $10,000 and that the maximum penalty for an offence against s 140 of the CLCA is imprisonment for 10 years. Principles relevant to Crown sentence appeals 17 A Crown appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991 (SA) (Magistrates Court Act) is generally governed by the principles set out by the High Court in Everett v The Queen.2 18 In Everett, the Court held that the jurisdiction to grant leave to appeal by the Crown against sentence should be exercised only in a rare and exceptional case.3 A Crown appeal against sentence cuts across time-honoured concepts of criminal administration by putting in jeopardy for a second time the liberty of the subject. A Crown appeal against sentence can only be justified to establish some matter of principle and to afford an opportunity for an appeal court to perform its proper function by laying down sentencing principles for the guidance of lower courts, including avoiding the kind of manifest inadequacy in sentencing standards which constitutes an error of principle.4 19 In R v Osenkowski,5 King CJ explained that the proper role for prosecution appeals “is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience”.6 2 Everett v R [1994] HCA 49, (1994) 181 CLR 295, 299-300, 305 (Brennan, Deane, Dawson, Gaudron JJ), 306-7 (McHugh J) (Everett). See also, Police v Cadd (1997) 69 SASR 150. 3 Everett v The Queen (1994) 181 CLR 295, 299-300, 305 (Brennan, Deane, Dawson, Gaudron JJ), 306- 7 (McHugh J). 4 Everett v The Queen (1994) 181 CLR 295(Brennan, Deane, Dawson, Gaudron JJ), 306-7 (McHugh J). See also, Griffiths v R [1977] HCA 44; (1977) 137 CLR 293, 310 (Barwick CJ). 5 (1982) 30 SASR 212 at 213. 6 See also, R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ); R v Yaroslavceff [2022] SASCA 123; R v Dyett [2023] SASCA 41. -- 6 of 12 -- [2025] SASC 38 Gray J 5 20 The task of this Court is to determine whether there was error made in sentencing the respondent, in the sense explained in House v The King.7 It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 21 These principles apply both to Crown appeals and offenders’ appeals against sentence.8 Asserted error in the Magistrate’s approach 22 The appellant submits that the exercise of the Magistrate’s sentencing discretion miscarried in three ways. These grounds are summarised above and addressed sequentially below, although the submissions advanced by the appellant in support of these grounds were, in some respects, interrelated. 23 The first ground advanced is that the Magistrate erred in finding there was good reason to discharge the respondent on a bond to be of good behaviour under s 97(1) of the Sentencing Act without recording a conviction. 24 The appellant relied upon the principles articulated in Chehade v Commissioner for Consumer Affairs9 in which Hinton J held as follows in respect of sentencing for regulatory offences:10 … leniency extended under s 16 in relation to a regulatory offence, bearing in mind the social reasons justifying the creation of the offence as one of strict and absolute liability, will likely turn on there being some efforts made to avoid committing the offence for which the accused is to be sentenced and the nature of such efforts. To so hold is to recognise little more than that s 16 operates in the context of sentencing courts being required to impose penalties that reflect the seriousness of the offending. 25 In the appellant’s written submissions, the appellant contended that the remarks of the learned Magistrate do not articulate or adequately identify the matters that were considered to amount to “good reason” to enable the exercise of the discretion under s 97(1) taking into account the purpose of sentencing for a regulatory offence and having regard to the principle articulated in Chehade 7 House v R [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). 8 See Dinsdale v R [2000] HCA 54 at [4]; (2000) 202 CLR 321, 325. 9 [2016] SASC 105; (2016) 125 SASR 223 (Chehade). 10 Chehade v Commissioner for Consumer Affairs (2016) 125 SASR 223 at [63] (Hinton J). -- 7 of 12 -- [2025] SASC 38 Gray J 6 requiring an analysis of any effort made to avoid committing the offence for which the accused is to be sentences and the nature of such efforts.11 26 Ground 1 as articulated in the notice of appeal suggests an outcome error; this is that there was not, on the matters before the Magistrate, sufficient grounds to make a finding of “good reason” within the meaning of s 97(1) of the Sentencing Act. This is a different complaint to a complaint that the learned Magistrate did not articulate or adequately identify the matters that were considered to amount to “good reason”.12 27 The giving of reasons is a normal incident of the judicial process.13 An appeal ground concerning the adequacy of the reasons, if advanced, would need to be considered in the context of a busy Magistrate imposing sentence for a summary offence and a minor indictable offence.14 Counsel for the Crown confirmed on the appeal that the Commissioner did not contend as a ground of appeal that the reasons of the learned Magistrate were inadequate. As Vanstone J held in Scarfo v Deputy Commissioner for Consumer Affairs (SA),15 “[m]agistrates deal with numbers of regulatory offences and only brief reasons are needed to explain the penalty arrived at.” 28 The Magistrate set out at length in the remarks on sentencing the circumstances of the offending. The Magistrate also referred to the maximum penalty for each offence. 29 The Magistrate clearly articulated in the remarks on penalty the respondent’s personal circumstances and the submission made that the respondent was extremely remorseful.16 The Magistrate referred to the submissions that defence counsel advanced concerning the respondent’s age, his co-operation, his lack of antecedents, his lack of offending since these events, his otherwise good character and the potential impact that convictions for dishonesty have on employment and future employment prospects noting his university qualifications. The Magistrate also recognised that the recording of convictions may adversely impact the respondent’s ability to travel or readily travel to or from his native country or elsewhere.17 Although these submissions appear to have been advanced by defence counsel in support of a submission that no conviction should be recorded pursuant 11 See Appellant’s Submissions at [22]. 12 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279. 13 Public Service Board of NSW v Osmond (1986) 159 CLR 656; Wainohu v NSW (2011) 243 CLR 181. 14 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279. See further, Public Service Board of NSW v Osmond (1986) 159 CLR 656; Wainohu v NSW (2011) 243 CLR 181. 15 [2014] SASC 9 at [10] (Vanstone J). 16 See Magistrate’s Remarks on Penalty, page 5, para 3. 17 See Magistrate’s Remarks on Penalty, page 5, para 7. The respondent was unrepresented on appeal and did not give evidence as to what submissions were made in the Magistrates Court. The appellant’s affidavit only addressed the submissions made on behalf of the respondent in the Magistrates Court in very brief terms, and did not go beyond any matter referred to in the Magistrate’s Remarks on Penalty; see Exhibit A1 at [11]. -- 8 of 12 -- [2025] SASC 38 Gray J 7 to s 24 of the Sentencing Act, the Magistrate also considered these submissions in the context of the application of s 97 of the Sentencing Act. 30 The Magistrate had regard to the dishonest and premeditated nature of the offending.18 The learned Magistrate in his consideration of the nature of the offending recognised that the offending had planning and effort in a deliberate attempt to deceive potential purchasers and related parties. The learned Magistrate recognised that the nature of the purchases of the vehicle and the cluster and the dummy logbook, then movement of the vehicle, logbook and cluster from New South Wales to South Australia, the misleading advertisement and the acts involving the deception of two potential purchasers (including that the respondent was undeterred by the failure of the first transaction), was of such a character that the offending could be characterised like the conduct considered in Scarfo as “blatant, dishonest, sophisticated and premediated”. The Magistrate also had regard to the submissions of the prosecution including the strong opposition of the prosecution to not recording a conviction having regard to the blatant dishonesty and sophisticated, and premeditated nature of the offending, the extreme wind back of about 154,000 kilometres and the amount of profit the respondent stood to gain. The Magistrate also referred to the prosecution’s submission that as a regulatory offence, it was accepted practice that in the normal course of events a conviction would be recorded for Count 1. 31 The learned Magistrate then stated: I have carefully reviewed the authorities including those cited. I accept that notwithstanding the quite serious nature of the offending, it is nonetheless an isolated occurrence and the recording of convictions presents a disproportionate risk to employment and future employment and travel and would be counterproductive. The public interest would not be served by fettering the defendant’s future endeavours and movements through the imposition of a conviction. This against a background of a defendant with otherwise good character, no prior convictions and none since. 32 The question arising on appeal in respect of Ground 1 is therefore whether it was open to the learned Magistrate, in the context of the offending, to find “good reason” within the meaning of s 97. 33 On appeal the appellant relied upon the decisions in Piva v Brinkworth,19 Hemming v Neave,20 Ly v Glover21 and Chehade as supporting the general proposition that the leniency of not recording a conviction will rarely have application in relation to a regulatory offence. As the learned Magistrate recognised, the nature of the offending in this case is such that it can be difficult to detect and often comes to light well down the track.22 The learned Magistrate 18 See Magistrate’s Remarks on Penalty, page 5, para 2. 19 (1992) 59 SASR 92. 20 (1989) 51 SASR 427. 21 (1989) 150 LSJS 449. 22 See Magistrate’s Remarks on Penalty, page 5. -- 9 of 12 -- [2025] SASC 38 Gray J 8 referred at length to the circumstances of the offending, and appears to have had regard to the decision of Scarfo.23 34 It does not follow from the authorities cited by the Crown, that because Count 1 concerned a regulatory offence, there was necessarily an error in principle in the Magistrate proceeding pursuant to s 97 or that a magistrate could never find “good reason” within the meaning of s 97.24 It was held in Gannon v Harper25 that “good reason” can be the greater benefit to the community of having the respondent released to lead an honest life. It is also not necessary for the Magistrate to exclude the use of other available sentencing options, or to have a request from the defendant, before exercising his sentencing discretion pursuant to s 97.26 35 In deciding to proceed pursuant to s 97 of the Sentencing Act, the learned Magistrate set out in detail the circumstances of the offending. The learned Magistrate recorded details of both the submissions made by the defence and the submissions made by the prosecution. The Magistrate recorded his consideration of the authorities cited to him. The learned Magistrate considered those matters and weighed up relevant matters in deciding to proceed to sentence pursuant to s 97 of the Sentencing Act. 36 The leniency of not recording a conviction will rarely have application in relation to a regulatory offence.27 That said, there remains a discretion for a magistrate to exercise leniency.28 A Crown appeal against sentence can be justified if the judge acts upon the wrong principle, if the judge allows extraneous or irrelevant matters to guide the sentencing discretion or engages in some other form of error in the sentencing process in the sense explained in House v The King.29 The manner in which the learned Magistrate considered the submissions of both the prosecution and the respondent and weighed these considerations in deciding to impose a sentence pursuant to s 97 of the Sentencing Act does not reveal this form of error. The Magistrate recorded in his consideration matters which could amount to “good reason” within the meaning of s 97 and there was a basis for this finding. Ground 1 of the appeal is dismissed. 37 In respect of the second ground, it is said that the Magistrate erred by finding that it was open to decline to record convictions under s 97(1) of the Sentencing Act, in circumstances where he concluded that such a similar course was not open 23 [2014] SASC 9 at [10] (Vanstone J). 24 Piva v Brinkworth (1992) 59 SASR 92. 25 (SASC, Bollen J, 20 July 1989, Jud no 1627, unreported BC8900295). 26 Griffin v Police [2005] SASC 337 at [13]-[17] (White J). See also Piva v Brinkworth (1992) 59 SASR 92, 95 (Duggan J). 27 Piva v Brinkworth (1992) 59 SASR 92; Hemming v Neave (1989) 51 SASR 427; Ly v Glover (1989) 150 LSJS 449 and Chehade v Commissioner for Consumer Affairs (2016) 125 SASR 223. 28 Piva v Brinkworth (1992) 59 SASR 92, 95 (Duggan J). 29 (1936) 55 CLR 499, 505. -- 10 of 12 -- [2025] SASC 38 Gray J 9 under s 24 of the Sentencing Act because he was not of the opinion that the respondent was unlikely to commit such an offence again. 38 This ground of appeal can be addressed succinctly. First, the learned Magistrate did not make an express finding that he was not of the opinion that the respondent was unlikely to commit such an offence again.30 Counsel for the Crown, in oral submissions, rightly accepted that no such express finding was made. Nor should such finding be implied from the Magistrate’s reasons. The submission advanced by the Crown that such a finding should be implied from the Magistrate’s reason is rejected. Secondly, the learned Magistrate correctly recognised that the first hurdle imposed by s 24 was a “steep one” when considered in the context of the premeditated offending.31 Thirdly, as the appellant rightly accepted, the test to be satisfied under s 24 is different to that under s 97(1).32 39 The imposition of a supervised bond without recording a conviction had as a term of the bond that the respondent would return to court for both conviction and for sentence if he failed to comply with the conditions of the bond. That form of sentence is contemplated by the terms of s 97 of the Sentencing Act.33 It is a form of sentence that presents a very different sentencing option to that provided for in s 24 of the Sentencing Act.34 40 It was open to the Magistrate to exercise the sentencing discretion pursuant to s 97, without having to exclude the use of other available sentencing options.35 The manner in which the learned Magistrate considered the sentencing options available pursuant to both s 24 and s 97 of the Sentencing Act does not reveal the error complained of in Ground 2. Ground 2 of the appeal is dismissed. 41 The third ground of appeal is that the learned Magistrate erred in imposing a penalty that was manifestly inadequate having regard to the purpose of sentencing for regulatory offences. 42 In relation to Ground 3, the appellant contends that the decision not to record a conviction may be considered to be so manifestly inadequate that it not only amounts to an error of principle, but has the capacity to undermine public confidence in the administration of justice. 43 In Police v Cadd,36 a majority of this Court (Doyle CJ, Duggan and Mullighan JJ) held that on a Crown appeal against sentence pursuant to s 42 of the Magistrates Court Act, the Court should only interfere on a prosecution appeal where it is 30 And no such finding was required to be made, given the learned Magistrate’s reasons for proceeding under s 97 rather than s 24. 31 See Magistrate’s Remarks on Penalty, page 5, para 5. 32 See Appellant’s Submissions at [21]. 33 Sentencing Act 2017 (SA) s 97(3). 34 Gallagher v Police (SA) [2025] SASC 16. 35 Griffin v Police [2005] SASC 337 at [13]-[17] (White J). 36 (1997) 69 SASR 150. -- 11 of 12 -- [2025] SASC 38 Gray J 10 necessary to avoid manifest inadequacy or inconsistency in sentencing.37 As King CJ held in R v Osenkowski:38 It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. 44 The learned Magistrate determined to exercise leniency in this case. This Court should not intervene simply because it may have come to a different conclusion than the sentencing court.39 The sentence imposed was lenient, it was not so disproportionate to the seriousness of the crime as to shock the public conscience.40 Ground 3 of the appeal is dismissed. Conclusion 45 The appeal is dismissed. 37 Police v Cadd (1997) 69 SASR 150, 159, 172 and 173-174. 38 R v Osenkowski (1982) 30 SASR 212, 213 (King CJ). See further, Everett v The Queen (1994) 181 CLR 295, 299-300, 305 (Brennan, Deane, Dawson, Gaudron JJ), 306-7 (McHugh J); Dinsdale v The Queen (2000) 202 CLR 321, 324-5 (Gleeson CJ and Hayne J), 329 (Gaudron and Gummow JJ), 339- 40 (Kirby J); House v The King (1936) 55 CLR 499,505 (Dixon, Evatt, and McTiernan JJ). 39 R v Osenkowski (1982) 30 SASR 212, 213 (King CJ); Everett v The Queen (1994) 181 CLR 295, 299- 300, 305 (Brennan, Deane, Dawson, Gaudron JJ), 306-7 (McHugh J); Dinsdale v The Queen (2000) 202 CLR 321, 324-5 (Gleeson CJ and Hayne J), 329 (Gaudron and Gummow JJ), 339-40 (Kirby J); House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt, and McTiernan JJ). The reasons given for dismissing Ground 1 are also relevant to this ground. 40 See also, R v Nemer (2003) 87 SASR 168 at [24] (Doyle CJ); R v Yaroslavceff [2022] SASCA 123; R v Dyett [2023] SASCA 41. -- 12 of 12 --