KAYNE FOSTER v COMMISSIONER OF POLICE [2025] SASC 68

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE DAVIS) MCCRM-25-001872 Appellant: KAYNE FOSTER Counsel: MR N GRIFFIN - Solicitor: CALDICOTT AND ISAACS LAWYERS Respondent: COMMISSIONER OF POLICE Counsel: MS Z UNDERWOOD - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 13/05/2025 File No/s: SCCRM-25-004775 B SUPREME COURT OF SOUTH AUSTRALIA (Appeal to a Single Judge) 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. FOSTER v COMMISSIONER OF POLICE [2025] SASC 68 Judgment of the Honourable Justice B Doyle 19 May 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY The appellant entered a plea of guilty to a charge of failing to comply with a condition of a bail agreement. The relevant condition required that he not communicate with any child under the age of 18 years unless the child was accompanied by their parent or guardian. In sentencing the appellant for the breach of bail, the magistrate referred to the seriousness of the underlying offences with which the appellant had been charged and made reference to the appellant having been charged with maintaining a sexual relationship with a child. In fact, the appellant had not been charged with that offence. He was charged only with a single count of possessing child exploitation material. The magistrate sentenced the appellant to a term of imprisonment of 10 days, suspended upon his entry into a good behaviour bond. The circumstances of the breach of bail included that a 17 year old female known to the appellant visited his home. Earlier in the afternoon, the appellant had foreshadowed to police his concern that this might occur. When the female arrived, he declined to answer the door for a period. Eventually, he communicated with her through the screen door for a period of approximately 20 minutes, in the course of which he told her he was not able to speak to her. The female was sitting on a chair outside the screen door of the appellant’s residence when police attended. The appellant was taken into custody for a period of about 24 hours before he was sentenced for the breach of bail condition. He had no prior convictions. The appellant contends that the magistrate erred by: 1. taking into account an irrelevant consideration, namely the seriousness of the underlying charged offending; -- 1 of 11 -- 2. sentencing on an incorrect factual basis, in that the magistrate referred to the appellant having been charged with multiple offences including offending in relation to the female; 3. failing to provide adequate reasons in relation to the factual basis for sentencing and the extent to which it was accepted facts proffered by the appellant were mitigatory; and 4. imposing a sentence that was manifestly excessive. Held, allowing the appeal and re-sentencing the appellant: 1. the magistrate sentenced the appellant on the basis of a mistaken apprehension as to the nature of the underlying charged offending; 2. the circumstances of the breach of bail condition placed the offence towards the lower end of the scale of seriousness; 3. in view of the appellant’s lack of prior criminal history, his relatively transparent approach with authorities, his early plea of guilty and the fact he had served nearly 24 hours in custody by the time he came to be sentenced, exercising the discretion available pursuant to s 23(2) of the Sentencing Act 2017 (SA), he should be convicted but discharged without further penalty. Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) s 63A(1)(a); Sentencing Act 2017 (SA) ss 10(1)(d), 10(2), 12, 17(2), 23(2), referred to. Police (SA) v Chilton [2014] SASCFC 76; Kentwell v The Queen (2014) 252 CLR 601; R v De Simoni (1981) 147 CLR 383; McCallum v Police [2010] SASC 19; Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108; Ludgate v Police [2018] SASC 175; R v Mustac [2013] SASCFC 21; R v Fresiello [2020] SASCFC 127; MJCH v Director of Public Prosecutions (SA) (2013) 116 SASR 180; Brady v Police [2022] SASC 114; Gallagher v Police [2025] SASC 16; R v Tsonis (2018) 131 SASR 416, discussed. -- 2 of 11 -- FOSTER v COMMISSIONER OF POLICE [2025] SASC 68 Magistrates Appeal—Criminal 1 B DOYLE J: The appellant entered a plea of guilty to failing to comply with a condition of a bail agreement1 entered into after having been charged with a single count of knowingly being in possession of child exploitation material.2 2 A magistrate imposed a penalty of 10 days imprisonment, which he suspended upon the appellant entering into a bond to be of good behaviour for a period of six months. 3 The appellant appeals against sentence, contending that: (1) the magistrate erred by taking into account an irrelevant consideration, namely, the seriousness of the underlying charged offence(s); (2) the magistrate erred by sentencing on an incorrect factual basis, in that the magistrate referred to the appellant having been charged with ‘offences’, including ‘the charge of maintaining a sexual relationship with a child’; (3) the magistrate erred by failing to provide adequate reasons and, in particular, by failing to articulate the accepted factual basis and whether factual matters relied on by the appellant were accepted as mitigatory; (4) the sentence was manifestly excessive in light of the appellant’s absence of a criminal history and having regard to the relevant factual basis and mitigating factors. 4 For the reasons that follow, the sentence was affected by a material misapprehension as to the relevant facts. I would re-sentence the appellant on the basis set out later in these reasons. Background 5 On 5 January 2025, police attended the appellant’s home, and he was arrested and charged with having knowingly been in possession of child exploitation material. He was granted police bail. Condition 7 of the bail agreement provided that: I must not contact or communicate, either directly or indirectly, or attempt to contact or communicate with any child under the age of 18 years unless that child is accompanied by a parent or guardian other than myself. 6 The ‘Facts of Charge’ that were before the magistrate when sentencing the appellant stated that when police attended at the appellant’s home on 5 January 1 Bail Act 1985 (SA), s 17(1). 2 Criminal Law Consolidation Act 1935 (SA), s 63A(1)(a). -- 3 of 11 -- [2025] SASC 68 B Doyle J 2 2025 there was a 17 year-old female (to whom I will refer as AB) present, who identified herself as the appellant’s girlfriend. Police believed that a relationship started between the appellant and AB when she was 16 years old, and that she was currently pregnant by him. Police observed the vehicle that AB was driving. The appellant was not charged with any offending in relation to AB. 7 On 14 January 2025, police attended the appellant’s home. He volunteered to them that earlier in the afternoon he had arrived home from Tea Tree Plaza to find personal items and a note on his doorstep, which suggested to him that AB had been present and would return. He was advised that if that occurred, he should tell AB he was not able to talk to her and he should contact police. 8 After about an hour, police returned to his address and observed AB’s car parked in the driveway. As police approached the premises, they observed AB sitting on a chair just outside the front door. The front door was open, but the screen door remained closed. The appellant was seated on a chair inside the dwelling and behind the screen door. He was communicating with her. Police moved AB on and arrested the appellant, alleging breach of his bail agreement. 9 The appellant was conveyed to Adelaide City Watch House where he participated in a recorded interview. He indicated that AB was his ex-partner and that they had been in a romantic relationship for a number of months during 2024, but he declined to say precisely how many months. He told police that AB had arrived at his premises about an hour before police arrived, crying and begging to speak with him. The appellant ignored her for about half an hour before opening the front door and speaking with her through the screen door for a period of about 20 minutes. In his interview, he fully accepted that he had failed to comply with his bail agreement. 10 The appellant appeared before a magistrate the following afternoon, having spent the intervening period in custody. He entered a plea of guilty at the earliest opportunity. The submissions on sentence 11 It is common ground that, in the course of the sentence hearing: • the prosecutor outlined the facts by reference to the ‘Facts of Charge’ document but without reading the contents verbatim, with the appellant’s counsel confirming the facts as outlined were admitted by the appellant; • the appellant’s counsel made submissions regarding the circumstances of the offending, explaining that the appellant had been in a relationship with AB for a period, and further that when AB attended, the appellant did not let her into the residence and told her he was unable to speak with her or see her. Counsel submitted that the appellant nevertheless accepted he ought to have contacted police and closed the door; -- 4 of 11 -- [2025] SASC 68 B Doyle J 3 • the appellant’s counsel outlined the appellant’s relevant personal circumstances (including his age, absence of criminal history, mental and physical health issues) and submitted that he ought to be discharged without penalty in light of the time he had spent in custody; • the prosecutor countered that the offence was concerning because the appellant was on bail for serious offending with a specific condition that he not have contact with children. The prosecutor submitted that while it was ‘unusual’ for a person with no criminal history, the prosecution was seeking ‘some form of custodial sentence’; • the appellant submitted that AB was not ‘just a child’, but rather was someone known to the appellant. The appellant had not proactively engaged with a child. He had remained inside and advised AB that he was unable to speak with her. These circumstances were ‘atypical’; • the magistrate gave ex tempore sentencing remarks, which are reproduced below. 12 The parties agree that, in the course of delivering his remarks, when the magistrate referred to the background or the factual basis as ‘unusual’, the prosecutor and the appellant’s counsel made brief clarificatory submissions relating to the earlier attendance by police in which the appellant had advised them of his concern that AB might return. There was discussion about the appellant having been told that he should call police if that occurred, and that he had not in fact done so. Following this exchange the magistrate said he ‘accepted’ that factual basis. The sentencing remarks 13 Having regard to the nature of the grounds of appeal, it is convenient to reproduce the sentencing remarks in their entirety. Mr Foster, you have pleaded guilty, at the first opportunity, to having breached a bail condition on 14 January 2025. I take into account your plea, together with the time that you have spent in custody, overnight. Further, you have no prior criminal history, and I take on board your lawyer’s submissions. I accept the unusual factual basis of the charge, but having said that, there are a number of countervailing considerations which have been raised by Ms Noble for the prosecution. One of these is the seriousness of the substantive offences. You were arrested and bailed on 5 January in respect of a number of charges, including being in possession of child exploitation material. In my view all of your bail conditions were pretty clear. One concerning aspect of the breach of bail is that the substantive offences contain disturbing allegations. Your mobile phone is said to contain in excess of 35,000 images, at least 75 of which comprise child exploitation material of children between the ages of 13 and 14. One of the images is of a girl, believed to be 10 years old, naked and exposing her genitalia. -- 5 of 11 -- [2025] SASC 68 B Doyle J 4 The other is that, in respect of the charge of maintaining a sexual relationship with a child, you are 37 and the complainant is only 17. The onus is on you to put your ‘big boy pants on’ and not commit this type of offence of breaching bail. It is really concerning that someone on bail for such serious charges would have anything to do with the complainant, although I accept that there are some factors that mitigate the offence itself, for example, there is no suggestion that you initiated the contact. Further, you did tell the police about the items that the complainant had placed there and so on. In my view, given all of those matters, notwithstanding your lack of prior history, a sentence of imprisonment is the only appropriate penalty, particularly given the need for general deterrence in matters such as these. But for your plea of guilty, I would have sentence you to 20 days imprisonment. I reduce this to 12 days given your early plea. I reduce this by a further two days, allowing for the time you have spent in custody. I find good reason exists to suspend this sentence and I place you on a Bond to be of Good Behaviour for a period of six-months. The amount of the Bond is $600. A conviction is recorded. Irrelevant consideration and mistaken factual basis 14 It is convenient to deal with the first two grounds together. More than once in the course of the sentencing remarks, the magistrate referred to the appellant being the subject of ‘offences’ or ‘charges’, whereas in fact the appellant had only been charged with a single offence. Moreover, the magistrate wrongly referred to the existence of a charge of maintaining a sexual relationship with a child, and described AB as ‘the complainant’. 15 Whilst the concerns of police in relation to the appellant having entered into a relationship with AB before she was 17 years old are noted in the facts of charge, and whilst their relationship to one another forms part of the factual context of the admitted breach of bail, the magistrate wrongly apprehended that the appellant had been charged with an offence in relation to his relationship with AB. 16 The respondent submits that the magistrate was entitled to have regard to the circumstances relevant to the breach of bail offending, which included by way of background the belief on the part of police that the relationship with AB likely commenced in circumstances amounting to criminal conduct. The respondent further submits that when the magistrate stated that the appellant was charged with maintaining a sexual relationship with a child, and referred to AB as the complainant, this was to deploy a ‘merely infelicitous expression of no consequence’.3 17 In my view, however, this was not a case of using an inapt expression or description of a true state of affairs. The inescapable conclusion is that the magistrate misapprehended the nature and extent of the charges faced by the appellant and in respect of which he had entered into a bail agreement. The only 3 Cf. Police (SA) v Chilton [2014] SASCFC 76 at [19] (Kourakis CJ). -- 6 of 11 -- [2025] SASC 68 B Doyle J 5 question is whether the error was material. In my respectful view, the nature of the misapprehension, considered in light of the structure of the sentencing remarks, suggests that it was. 18 The fact that there was (thought to be) a charge of maintaining a sexual relationship with AB was instanced as the ‘other’ ‘concerning aspect’ of the breach of bail. These matters were juxtaposed by the magistrate with the early plea, time spent in custody, and the appellant’s lack of prior criminal history, as well as what was described as the ‘unusual factual basis of the charge’. Accordingly, the error featured in the magistrate’s consideration of matters that tended to counteract the mitigatory considerations. 19 The error had the capacity to affect the sentencing magistrate’s exercise of discretion. In those circumstances, the appellant must be resentenced unless, in the exercise of the appellate court’s independent discretion, it is determined that no lesser sentence was warranted.4 20 The appellant also submitted that the magistrate erred by placing significance on the seriousness of the underlying charged offending. 21 Had the magistrate’s reference to the seriousness of the alleged offending been confined to the charge of being in possession of child exploitation material, it may be debated whether this would have amounted to reliance on an irrelevant consideration. That is because, as the appellant’s counsel accepted, the charged offending was at least relevant in explaining the purpose or concern that lay behind the relevant bail condition. 22 Of course, whatever its justification, a condition of a bail agreement must be complied with. But where a bail condition is tailored to address a risk that is obviously linked to the charged offending, it is not difficult to see that a breach of that condition may be viewed as more grave than might be the case where the condition breached is of a more generic kind. Where the defendant has been charged with alleged offending and has agreed to a condition of bail directed at avoiding the risk of offending of a similar kind occurring whilst on bail, a breach of that condition might, in a particular case, bear a cavalier or more egregious character as a result, even without making any assumption as to guilt of the underlying charged offending. 23 The underlying offence is also relevant inasmuch as the maximum penalty for it operates as an additional and independent ceiling upon any penalty that can be imposed for breach of bail.5 24 However, for obvious reasons, in sentencing for a breach of a bail agreement, the significance to be attributed to the nature and seriousness of the underlying offending has real limits. A defendant is not to be sentenced on the basis of having 4 Kentwell v The Queen (2014) 252 CLR 601 at [35], [43] (French CJ, Hayne, Bell and Keane JJ). 5 Bail Act 1985 (SA), s 17(2). -- 7 of 11 -- [2025] SASC 68 B Doyle J 6 committed an offence of which they have not been convicted,6 and for that reason, it may be problematic to refer to a complainant as a victim.7 The defendant is not to be punished for offending which has been charged but not found proved. A fortiori, a defendant is not to be punished for, or more heavily by reason of, possible offending which is not formally alleged. 25 In the present case, it is not necessary to attempt to define or delimit the legitimate context that may be provided by the seriousness of the underlying charged offence when sentencing for a breach of a bail agreement. The magistrate’s mistaken reliance upon the seriousness of conduct that was not in fact charged is sufficient to demonstrate process error. Inadequate reasons 26 No complaint is made about the magistrate’s treatment of the appellant’s personal circumstances, nor is it suggested that the ex tempore remarks required a laborious recitation of sentencing principles or an explicit canvassing of the alternative sentencing alternatives.8 27 Rather, the crux of the appellant’s complaint is that the magistrate’s reasons do not sufficiently reveal the factual basis for sentencing accepted by the magistrate and, relatedly, do not enable an assessment of whether the magistrate has accepted or rejected particular submissions by the appellant’s counsel in mitigation of penalty. 28 As explained earlier, in view of the way in which the remarks were delivered, it may be inferred that when the magistrate stated that he accepted the unusual factual basis of the charge, this involved an acceptance of the fact that earlier in the afternoon, the appellant had, to his credit, volunteered his concern to police that AB might visit him at his residence. Indeed, the magistrate later mentioned this as a mitigating factor. 29 It may also be that the sentencing remarks should be taken to indicate an acceptance of the facts as summarised in the ‘Facts of Charge’ document, which provided the foundation for the prosecutor’s submissions and which was available to the magistrate during sentencing submissions. 30 The real focus of the appellant’s complaint is that the remarks leave unclear whether additional circumstances put on his behalf by his counsel were accepted, and if so, whether they were treated as mitigatory. The first of these was that the appellant and AB had remained separated by the screen door during their 6 Sentencing Act 2017 (SA), s 10(1)(d), R v De Simoni (1981) 147 CLR 383 at 389, 392 (Gibbs CJ), at 395-396 (Wilson J) and at 406 (Brennan J). 7 McCallum v Police [2010] SASC 19 at [22] (Gray J). 8 Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108 at [31] (Livesey P, Lovell JA and Stanley AJA), referring to Ludgate v Police [2018] SASC 175 at [59] (Hinton J). See also Police (SA) v Chilton [2014] SASCFC 76 at [20] (Kourakis CJ). -- 8 of 11 -- [2025] SASC 68 B Doyle J 7 communications and that AB had not been allowed into the residence. The second was that the appellant had told AB that he was unable to speak to her or see her. 31 As to the first of these, it is sufficiently clear from the ‘Facts of Charge’ that there was no contention that AB entered the appellant’s residence. It may be taken that, when the magistrate indicated he accepted the ‘unusual factual basis of the charge’, he proceeded on the basis that the appellant and AB remained physically separate during their interactions. 32 The second matter is less clear. The statement attributed to the appellant formed no part of the ‘Facts of Charge’, including the summary of the appellant’s account given in that document. It was a matter that was put forward by the appellant’s counsel in the course of sentencing submissions. But it was not discussed in the exchange that occurred in the course of the magistrate’s sentencing remarks, and so may not have been embraced within the facts that the magistrate stated he accepted immediately following that discussion. 33 In its written submissions concerning the ground of manifest excess, the respondent contended that this alleged statement did not form part of the ‘Facts of Charge as agreed by the parties’. Implicitly, this was a submission that the severity of the sentence was not to be assessed on the basis that the statements attributed to the appellant properly formed part of the magistrate’s factual basis for sentencing. 34 By way of written reply, the appellant submitted that a sentencing judge is permitted to act on the submission of counsel,9 and that in circumstances where the prosecutor had not specifically disputed the appellant’s submission, procedural fairness demanded that if the magistrate was not proposing to accept the mitigatory explanation unless it was supported on oath, notice of that circumstance should be provided.10 35 In the course of oral submissions, the respondent withdrew reliance on its written submission and contended instead that the magistrate should be taken to have accepted and sentenced on the basis that the appellant did tell AB that he was unable to speak with her. 36 I make no criticism of this refinement of the respondent’s position. But it tends to suggest uncertainty as to whether that particular matter was accepted by the magistrate and, if so, whether it was accepted as being mitigatory. 37 A sentencing judge is not obliged to resolve every factual matter that either party contends is relevant to the proper sentence. Particularly where the remarks are delivered ex tempore, due regard must be had to that circumstance and the 9 Sentencing Act 2017 (SA), s 12. See also R v Mustac [2013] SASCFC 21 at [24] (Kourakis CJ, Stanley and Sulan JJ agreeing). 10 R v Fresiello [2020] SASCFC 127 at [33] (Kourakis CJ, Peek and Blue JJ agreeing), MJCH v Director of Public Prosecutions (SA) (2013) 116 SASR 180 at [17] (Kourakis CJ). -- 9 of 11 -- [2025] SASC 68 B Doyle J 8 summary nature of the proceeding.11 On the other hand, the parties should not be left in doubt whether matters of substance that are relied on by them have been resolved. In between these propositions, questions of fact and degree will be encountered. 38 Having concluded on other grounds that the duty to resentence is enlivened, it is not necessary for me to reach a concluded view on this issue. What is significant, however, is that the respondent accepts that if it be appropriate to resentence the appellant, it is open to this Court to act upon the factual basis put forward by the appellant’s counsel. 39 That was a fair and appropriate concession. The statement was not contradicted by any other evidence or directly addressed by the prosecutor. Given that the appellant had earlier foreshadowed to police his concern that AB might visit him, and the fact that he did not allow her entry into the premises, there is nothing inherently improbable about his statement that he informed her that he could not speak with her. I see no reason for the assertion not to be accepted for the purposes of re-sentencing the appellant. Re-sentencing the appellant 40 The appellant had no prior convictions and pleaded guilty at the first opportunity to the breach of bail condition. The factual basis upon which he should be sentenced is that not only did he not initiate contact with AB on the occasion in question, he foreshadowed his concern that this might occur to police, and, when she did attend, he declined for some time to open the front door before eventually participating in a discussion with her through a screen door. In that discussion he told AB he could not speak with her. 41 These circumstances do not make his breach inadvertent, nor do they amount to a ‘reasonable excuse’ within the meaning of s 17(1) of the Bail Act 1985 (SA). But they show that this was a contravention which he failed to prevent and ultimately acquiesced in, rather than one which he encouraged or embraced. He took some steps to discourage AB from communicating with him, but then ultimately engaged in discussion with her, through a screen door, for a period of around 20 minutes. 42 Whether or not, at an earlier time, the appellant’s conduct with or in connection with AB was unlawful is not a matter to which I have regard. But the admitted fact of a relationship between the two provides an explanation consistent with the appellant not having initiated the contact between them on the early evening in question. 43 The nature of the charged offending (possession of child exploitation material) provides context for the imposition of the relevant condition of the bail 11 Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108 at [30] (Livesey P, Lovell JA and Stanley AJA citing Playford v Police [2017] SASC 26 at [23]-[24] (Vanstone J)). -- 10 of 11 -- [2025] SASC 68 B Doyle J 9 agreement. It makes clear that the appellant ought to have been cognisant of the purpose and importance of the bail condition. But so much is apparent from his voluntary disclosure to police. He did not protest ignorance. He acknowledged that he ought not to have communicated with AB at all. That having been acknowledged, in my view, the circumstances of this particular offending place it towards the lower end of the scale of seriousness. 44 The maximum penalty for breach of bail is imprisonment for two years.12 It has been observed that there is no sentencing standard for breach of bail, given the breadth of variation between different offences.13 Numerous instances may be found of the imposition of an immediate term of imprisonment for a breach of bail.14 That said, imposition of a sentence of imprisonment is to be avoided unless the seriousness of the offence or the protection of the safety of the community require it.15 45 Given my assessment of the seriousness of the breach, the appellant’s lack of prior criminal history, his relatively transparent approach with authorities, his early plea of guilty and the fact that he had served nearly 24 hours in custody by the time he came to be sentenced,16 I would exercise the discretion available pursuant to s 23(2) of the Sentencing Act 2017 (SA). I would order that a conviction be recorded but that he be discharged without further penalty. 46 Whilst it follows that I consider that the sentence imposed by the magistrate exceeded that which was called for by the relevant sentencing considerations when applied to the facts and circumstances of this case, I need not finally resolve whether it was manifestly excessive in the requisite sense. The process error arising from the material error of fact not only authorises but requires that I impose the sentence considered to be appropriate in the independent exercise of discretion. 47 The appeal is allowed. The sentence imposed by the magistrate is set aside. Aside from the recording of a conviction, the appellant is discharged without further penalty. 12 Bail Act 1985 (SA), s 17(1). 13 Brady v Police [2022] SASC 114 at [23] (Kimber J), Gallagher v Police [2025] SASC 16 at [62] (McDonald J). 14 See the authorities surveyed in McCallum v Police [2010] SASC 19 at [27]-[32] (Gray J). 15 Sentencing Act 2017 (SA), s 10(2). 16 R v Tsonis (2018) 131 SASR 416 at [75] (Lovell, Doyle and Hinton JJ). -- 11 of 11 --