MICHAEL JAMES WHITE v COMMISSIONER OF POLICE [2025] SASC 66

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE ALMEIDA) MCCRM-24-030362 Appellant: MICHAEL JAMES WHITE Counsel: MR J WILSON - Solicitor: CALDICOTT & ISAACS LAWYERS Respondent: COMMISSIONER OF POLICE Counsel: MS H LEAHEY - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 12/05/2025 File No/s: SCCRM-25-008137 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. WHITE v COMMISSIONER OF POLICE [2025] SASC 66 Judgment of the Honourable Justice B Doyle 12 May 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE The appellant was team manager of his son’s football team. His son was tackled by another player (the victim), causing both players to fall to the ground. The victim got up after the tackle, but the appellant’s son remained on the ground having been injured in the course of the tackle. Play was suspended whilst the appellant’s son was attended to. The appellant ran onto the field in the direction of his son. Shortly prior to reaching his son, he diverted slightly and made physical contact with the victim, who was standing nearby, facing away from the direction from which the appellant approached. The appellant pleaded guilty to a charge of common assault. He was sentenced to three months imprisonment. The magistrate found no good reason to suspend the sentence and declined to order that the appellant serve the sentence on home detention. The appellant appeals against the sentence, contending that: 1. the sentence was vitiated by process error, in that the magistrate sentenced on the basis of a material error of fact by finding that the appellant’s contact with the victim caused the victim to fall to the ground; 2. the sentence was manifestly excessive, in that the magistrate should have suspended the sentence or ordered that it be served on home detention. Held, allowing the appeal and re-sentencing the appellant: 1. the sentence was not manifestly excessive; 2. the sentence was affected by a material error of fact; -- 1 of 8 -- 3. re-sentencing the appellant, the appropriate sentence is a term of imprisonment of three months suspended on condition that the appellant enter into a bond to be of good behaviour. Criminal Law Consolidation Act 1935 (SA) s 20(3); Sentencing Act 2017 (SA) ss 3, 9, 11, 96(1), referred to. Kentwell v The Queen (2014) 252 CLR 601; Kola v The King [2025] SASCA 38; R v Kreutzer (2013) 118 SASR 211; Brawn v The King [2025] HCA 20; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; Adams (a pseudonym) v The Queen [2022] SASCA 47; R v Hosking [2017] SASCFC 50; R v Kruger (1977) 17 SASR 214; Wood v Samuels (1974) 8 SASR 465; R v Buckman (1988) 47 SASR 303; Markarian v The Queen (2005) 228 CLR 357, discussed. -- 2 of 8 -- WHITE v COMMISSIONER OF POLICE [2025] SASC 66 Magistrates Appeal — Criminal 1 B DOYLE J: The appellant entered a plea of guilty to a charge of common assault.1 A magistrate sentenced him to three months imprisonment and found no good reason to suspend the sentence. The magistrate further declined to order that the appellant serve the sentence on home detention, concluding that to so order would affect public confidence in the administration of justice. 2 The appellant appeals against the sentence on two bases. The first is that the magistrate made a factual error in sentencing the appellant. The second is that the sentence was manifestly excessive. The respondent accepts that a factual error was made, but contends that it was not material. The respondent contends that the sentence was within the range of available sentences. 3 For the reasons that follow, whilst I would not conclude that the sentence was manifestly excessive, the factual error cannot be said to have been immaterial. Unless, in the separate and independent exercise of the sentencing discretion, it should be concluded that no lesser sentence is warranted, the appellant must be resentenced.2 Material error in relation to circumstances of offending 4 The appellant was the team manager of his son’s ‘under 13s’’ football team. On 6 August 2023, his son was tackled by the victim, who was 12 years old at the time, causing both players to fall to the ground. The victim got up after the tackle, but the appellant’s son remained on the ground having been injured in the course of the tackle. Play was suspended whilst the appellant’s son was attended to. 5 In the magistrate’s sentencing remarks, he observed: [The victim], together with other players remained nearby on the field, waiting for your son to be attended to. [The victim] was standing, hunched over with his hands on his knees. He then heard ‘watch out’ and saw you running towards him, elbowing him to the left-hand side of his jaw further causing him to fall to the ground. [The victim] felt immediate pain to his jaw. 6 The magistrate had received affidavits from two witnesses and footage, taken on a mobile phone, of the incident. The footage was not played during submissions but was viewed the magistrate in chambers. In his remarks, he stated: I have viewed and scrutinised the video footage numerous times. 1 Criminal Law Consolidation Act 1935 (SA), s 20(3). 2 Kentwell v The Queen (2014) 252 CLR 601 at [35], [43] (French CJ, Hayne, Bell and Keane JJ), Kola v The King [2025] SASCA 38 at [7] (Lovell and Bleby JJA and B Doyle AJA), R v Kreutzer (2013) 118 SASR 211 at [10] (Kourakis CJ). -- 3 of 8 -- [2025] SASC 66 B Doyle J 2 I find that you ran towards your son on the ground and in the course of doing so, deviated, albeit slightly, deliberately making contact with [the victim], who was hunched over at the time, with such force that it caused him to move no less than 2 metres from the point of contact, falling to the ground. 7 There were two different resolution versions of the relevant footage. There is now some uncertainty about which version the magistrate received. I have viewed both versions. The higher resolution footage is significantly clearer. 8 It shows that after the contact, the victim took several steps in the direction of the collision, clearly as a result of the force of the collision. He momentarily stooped, but did not fall to the ground. He turned and then began to walk towards the boundary, with his hand to the side of his head. Prior to, and at the moment of impact, the victim was hunched over with his back towards the direction from which the appellant approached. Not having braced for any impact, and being of smaller stature, any contact was likely to cause him to be pushed in the direction of the collision. 9 In Kentwell v The Queen,3 the plurality made clear that when a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the appeal court does not assess whether and to what degree the error influenced the outcome. Unless, in the separate and independent exercise of its discretion, the appeal court concludes that no lesser sentence should be passed, the appellate court’s power to intervene is enlivened and it is under a duty to re- sentence the appellant.4 10 Whilst the plurality did not expressly limit that statement of principle to ‘material’ errors of fact, the appellant (in my view, rightly) did not contest that there is such a requirement. The appellant submitted, the respondent did not differ, and I would accept, that materiality in this context invites consideration of the capacity of the error to have affected or infected the exercise of sentencing discretion,5 regardless of whether it is demonstrated, by reference to some particular standard, that it did influence the outcome. 11 As earlier noted, the respondent accepts that the magistrate sentenced on an inaccurate factual basis by finding that the victim fell to the ground as a result of the assault. The respondent contended that the error was not material because: … the force of the assault can be clearly assessed by the fact that it propelled the victim forward from the point of contact. Regardless of whether or not the victim fell to the grass momentarily, the footage clearly shows him leaving the vicinity of the assault on foot. Whether the victim stumbled briefly then briefly fell to the ground or stumbled but 3 (2014) 252 CLR 601. 4 (2014) 252 CLR 601 at [35], [43] (French CJ, Hayne, Bell and Keane JJ). 5 This or a similar approach to materiality is a familiar one in other contexts. See, eg, Brawn v The King [2025] HCA 20 at [10] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ), LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610 at [14]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). -- 4 of 8 -- [2025] SASC 66 B Doyle J 3 managed to stay on his feet before leaving the area is not a significant or material element of the facts that bears on the objective seriousness of the offending. It is submitted that the Learned Magistrate found, that was open for his Honour to find, on the evidence, was that the assault caused the victim to move a significant distance (approximately 2 metres) from the point of contact. Whether or not the victim fell to the ground was not said to bear on the extent of any injury resulting from the offence. 12 In my view, this tends to pose a false contrast: between the victim ‘momentarily’ falling to the ground and ‘managing’ to keep his feet. The sentencing remarks do not describe the victim momentarily falling to the ground. The second passage in the sentencing remarks expressly links the level of force and the victim falling to the ground. Of course, it is true that the same degree of force might cause one person to fall to the ground, whilst another might keep their footing in the same circumstances. But whether the victim falls to the ground after moving a number of metres from the collision is a matter that has the capacity to influence an assessment of the objective seriousness of the conduct, as well as its effect on the victim. 13 The error was material. I must re-sentence the appellant unless, considering the relevant matters afresh, no lesser sentence was warranted. Re-sentencing the appellant 14 I have viewed the higher resolution footage on a number of occasions and read the affidavits of the two witnesses to the incident. 15 The appellant was running, perhaps faster than at jogging pace but not in a sprint, towards his son. The footage makes clear, as the magistrate observed, that any deviation made in order to contact the victim was slight. When he made contact with the victim, he was within metres of his son, and had either begun or shortly after contact, began, to slow down as he reached his son. 16 In my view, it cannot be said with confidence that the appellant raised or lifted his elbow. Certainly, the appellant did not distinctly raise his elbow prior to impact with a view to striking the victim with his elbow. If, as appears to have been the perception of one witness,6 the appellant lifted his elbow, this was in the motion of ‘bumping’ or giving a ‘hip and shoulder’ to the victim, as distinct from having raised his elbow with a view to making contact with his elbow and not his upper arm or shoulder. 17 Bearing in mind the size, strength and height differential, and the fact that the victim was not braced for contact, had the appellant made a pre-meditated decision to injure the victim by contacting the victim’s head or upper body with his elbow, the victim would likely have been knocked straight to the ground. 6 Affidavit of Ms Leanne Cornell-March made on 22 September 2023 at [20], cf. Affidavit of Mr Phil Martin made on 14 November 2024 at [13]. -- 5 of 8 -- [2025] SASC 66 B Doyle J 4 18 My review of the footage supports the conclusion that whilst the contact was plainly not inadvertent, nor merely reckless, it was consistent with a spontaneous and opportunistic act which occurred as the appellant was about to pass by the victim whilst running towards his son, likely in an emotional state. 19 I do not intend by that description to sanitise or justify the appellant’s conduct, but to contextualise it, as I must, in order to consider the appropriate sentence. The conduct and the offending remains serious. Whilst the appellant, through his counsel, gave an explanation that his behaviour was an emotional reaction at a time when he was concerned for his son, quite properly, the appellant did not seek to justify the behaviour. 20 As the magistrate observed, it is utterly unacceptable that a fully-grown man, particularly one entrusted with a team manager role who should understand the importance of modelling appropriate behaviour for the young footballers, should assault a defenceless 12 year old. Even characterising the impact as I have, it had the potential to have caused significant injury. As the respondent’s counsel emphasised, the risks associated with head-high contact of that kind ought to be well understood. 21 It did, in fact, cause a degree of trauma for the victim. As the magistrate observed, his confidence was significantly dented. His enjoyment of a game that he evidently loved playing has been jeopardised by the appellant’s abuse of his position of responsibility. As well, those who saw the incident are likely to have been shocked and potentially affected by it. 22 At the time of sentencing, the appellant was 43 years old. The appellant has no relevant prior convictions and there is no suggestion of any similar or other offending conduct, nor any non-compliance with his bail conditions, having occurred since the event in question. 23 At the time of sentencing, the appellant had been in a de facto relationship for 25 years, with a son aged 14 and daughters aged eight and three years old. The appellant was working as a painter on a full time basis, and he had a consistent previous work history. The hardship that may be caused to his dependents by being required to serve a term of imprisonment is relevant to the exercise of the sentencing discretion albeit that standing alone it will rarely significantly affect the sentence which is imposed, unless it is shown to be out of the ordinary or extreme.7 24 The magistrate received character references from a work colleague and a long-time friend. These references suggest that the appellant’s conduct was very much out of character. 25 The appellant acknowledged through his counsel that he had let his son and his family down, had failed to act as an appropriate role model to his son, and was 7 Adams (a pseudonym) v The Queen [2022] SASCA 47. -- 6 of 8 -- [2025] SASC 66 B Doyle J 5 responsible for his son’s loss of engagement in the sport of football. The appellant tendered a letter of apology that he had provided to the victim. 26 The appellant suffered some extra-curial hardship as a result of his actions. The matter was investigated by the relevant league, and the appellant has been given a lifetime ban from being involved in any official club representative capacity. He was banned for 12 months from attending any Australian rules football match and given a $500 fine. Undoubtedly, given the public nature of the offending, the appellant suffered a deep sense of shame and embarrassment as a result of his conduct. 27 I may also have regard to events that occurred since the sentence hearing.8 These include that he spent some hours in custody for the first time in his life before being granted bail. Since that time, he has of course faced the prospect of returning to custody in the event that his appeal fails. 28 In all the circumstances, I consider the appellant has strong prospects of rehabilitation and is unlikely to re-offend. 29 Notwithstanding that I consider the appellant should be sentenced on a factual basis that differs from that of the magistrate, it remains the case that the offending was serious. It requires a proportionate response that reflects, among other things, the need for general deterrence so as to reflect that violence by adults in the context of children’s sport is unacceptable and will be treated as such by the Courts. 30 There has been an increased recognition that offensive and verbally abusive conduct on the part of parents and supporters at junior sporting contests has the potential to undermine safe and enjoyable participation in what is an important and beneficial part of a healthy community. Physical violence on the part of adults, directed towards children, is obviously even more serious. 31 No doubt these considerations informed the magistrate’s view, not contested by the appellant, that the only appropriate penalty was one of imprisonment, even allowing for the appellant’s guilty plea and other factors to which I have referred, and the sentencing factors which must be considered.9 32 The magistrate fixed a term of imprisonment of three months, by a process that involved a reduction from four months on account of the plea, and a further reduction of 15 days with reference to ‘totality principles’. Whilst totality principles were not relevant, given there was only a single offence, the resultant three month sentence was, in my view, an appropriate one. 8 Kentwell v The Queen (2014) 252 CLR 601 at [43] (French CJ, Hayne, Bell and Keane JJ). 9 Sentencing Act 2017 (SA), s 11. -- 7 of 8 -- [2025] SASC 66 B Doyle J 6 33 However, having regard to the person circumstances of the appellant which I have earlier described,10 and his strong prospects of rehabilitation, I consider there is ‘good reason’ to suspend the sentence in this case.11 34 In the course of this morning’s hearing, the respondent’s counsel indicated that should the Court be satisfied that there was material error so as to enliven the duty to re-sentence, a suspension of any term of imprisonment imposed was not opposed. I have nevertheless undertaken an independent consideration of the appropriateness of suspending the sentence. I am satisfied that the appellant is someone who is likely to benefit from an exercise of the Court’s clemency in the sense described in the authorities.12 35 A suspended sentence provides the offender a chance to avoid imprisonment which is otherwise merited and is a sanction that is suspended over the offender’s head to be activated if there is a lapse into non law-abiding ways.13 A suspended sentence remains a significant penalty. I consider that in this case it is capable of adequately achieving the objectives of general and specific deterrence as well as the protection of the community14 called for by the circumstances of the offending and its impact on the victim. Disposition 36 Whilst I am not satisfied that the sentence imposed by the magistrate was manifestly excessive,15 it follows from the view I have expressed that this is not a case where, specific or process error having been demonstrated, I am persuaded that no lesser sentence than that imposed by the magistrate is warranted. 37 I therefore allow the appeal and re-sentence the appellant on the basis that he is sentenced to a period of imprisonment of three months which is to be suspended on condition that the appellant enter into a bond in the amount of $500 to be of good behaviour for a period of 18 months. 10 R v Hosking [2017] SASCFC 50 at [50] (Blue J). 11 Sentencing Act 2017 (SA), s 96(1). 12 R v Kruger (1977) 17 SASR 214 at 221 (Bray CJ, Hogarth and King JJ agreeing), referring to Wood v Samuels (1974) 8 SASR 465 at 468-469 (Walters J). 13 R v Buckman (1988) 47 SASR 303 at 304 (King CJ). 14 Sentencing Act 2017 (SA), ss 3, 9. 15 Markarian v The Queen (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ). -- 8 of 8 --