IAIN JOZEF FURLER v COMMISSIONER OF POLICE [2025] SASC 141

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE FAHEY) MCCRM- 25-004826 Appellant: IAIN JOZEF FURLER Counsel: MR B ARMSTRONG - Solicitor: MANGAN EY & ASSOCIATES PTY LTD Respondent: COMMISSIONER OF POLICE Counsel: MS S HALIKIAS - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 07/07/2025 File No/s: SCCRM-25-014579 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. FURLER v COMMISSIONER OF POLICE [2025] SASC 141 Judgment of the Honourable Auxiliary Justice Bochner 1 September 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE MAGISTRATES - HEARING - EVIDENCE - CHARACTER AND PRIOR CONVICTIONS TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - OFFENCES - DRIVING WHILE DISQUALIFIED This is an appeal against the sentence imposed by the learned sentencing Magistrate (the “Magistrate”) following the appellant’s plea of guilty to the charge of driving while under disqualification contrary to s 91(5a) of the Motor Vehicles Act 1959 (SA). The Magistrate imposed a term of imprisonment of 3 months. The appellant appeals the sentence on four grounds: 1. The sentence imposed was manifestly excessive; 2. The Magistrate took into account an incorrect criminal history in passing sentence; 3. The Magistrate failed to consider the option of a home detention sentence; and 4. The Magistrate misstated the guilty plea sentencing discount to which the applicant was entitled. The appellant abandoned ground one before the hearing of this appeal. -- 1 of 13 -- The respondent concedes ground four and accepts that this error enlivens this Court’s power to vary the appellant’s sentence. The respondent contends that if the appeal be allowed, the appellant only be re-sentenced for the limited purpose of giving effect to the correct maximum statutory discount applicable. The appellant submits that if this Court allows the appeal, the matter ought to be remitted for re- sentence in the Magistrates Court. Held, allowing the appeal and re-sentencing the appellant: 1. The sentence was affected by material errors requiring the appellant to be re-sentenced; 2. The Magistrate did not properly consider the question of home detention because he was not properly apprised of the relevant facts relating to the appellant’s offending history; 3. The appropriate sentence is a period of two months’ imprisonment to be reduced by 30% on account of the appellant’s guilty plea to a period of one month and 12 days to be served on home detention. Motor Vehicles Act 1959 (SA) s 91(5a); Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) s 7; Joint Criminal Rules 2022 (SA) ch 9, Part 3, referred to. Barnes v Police [2024] SASC 39; Da Silva v The Queen [2020] SASCFC 66; Kentwell v The Queen (2014) 252 CLR 601; R v M, G [2016] SASCFC 116; White v Commissioner of Police [2025] SASC 66; Wittwer v Police [2004] SASC 226, applied. Police v Chilton (2014) 120 SASR 32; R v Kreutzer [2013] SASCFC 130; (2013) 118 SASR 211, discussed. -- 2 of 13 -- FURLER v COMMISSIONER OF POLICE [2025] SASC 141 CRIMINAL — Single Judge Appeal 1 BOCHNER AJ: On 10 April 2025, the appellant pleaded guilty to the charge of driving while under disqualification. The learned sentencing Magistrate (“the Magistrate”) imposed a sentence of imprisonment, in view of his past convictions for this offence. He sentenced the appellant to a period of imprisonment of four months, to which he then applied a discount of 25%, to take into account the appellant’s guilty plea; this reduced the sentence to three months. The Magistrate did not consider that it was appropriate to suspend the sentence or to order that it be served on home detention. 2 This is an appeal against the sentence imposed. The appellant makes four complaints. First, he says that the sentence imposed was manifestly excessive. I note that, by the time that the appellant filed his written submissions, he had abandoned this ground. I do not consider it further. Second, he contends that the Magistrate took into account an incorrect criminal history in determining the sentence. Third, he says that the Magistrate failed to consider adequately the option of home detention. Fourth, he says that the Magistrate made an error in the discount to which he was entitled as a result of his guilty plea. I note that the respondent conceded that the Magistrate had, in fact, made an error in this regard, and acknowledged that the appellant was entitled to a discount of 30%, not 25%. The principles to be applied 3 There was no dispute between the parties as to the principles to be applied when considering an appeal of this nature. Appeals from decisions of a magistrate are dealt with in s 42 of the Magistrates Court Act 1991 (SA) and Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA). The approach to be taken was explained by White J in Wittwer v Police,1 where he said:2 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 it if has allowed irrelevant 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: House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 324 – 325 [3] – [4]; Naera v Police (1995) 184 LSJS 328 at 329; Taylor v Hayes (1990) 53 SASR 252 at 291; Ware v Betts (1987) 134 LSJS 212 at 216; Wessling v Police (2004) 88 SASR 47 at 60. Contrary to the appellant’s submission, this Court does not, on an appeal against sentence, consider the matter de novo, substituting its view as to the appropriate penalty whenever that differs from that of the sentencing Magistrate. This Court interferes only when it is 1 [2004] SASC 226. 2 Ibid, [16]-[17]. -- 3 of 13 -- [2025] SASC 141 Auxiliary Justice Bochner 2 satisfied that the sentencing Magistrate has made some error. Different considerations apply, of course, to appeals against conviction and findings of guilt by a Magistrate. 4 The approach was further explained by McDonald J in Barnes v Police,3 where, at [6], she said: The Court will not interfere merely because it would have exercised the sentencing discretion in a different way to the sentencing Magistrate. It is the appellant’s submission that the sentence imposed by the Magistrate was infected by both outcome and process error. The approach to be adopted by an appellate court in relation to each type of error was conveniently summarised by Stanley J in R v Mark: A court of appeal will not interfere with the sentence passed below merely because it has a different view to the sentencing judge about the most appropriate sentence. Only if there is an error of the kind described in House v The King does the appeal court have the power to quash the sentence passed below. As was said in R v Kreutzer by Kourakis CJ, if the error identified by the appeal court is manifest excess or inadequacy (an outcome error), the Full Court will fix the sentence it thinks ought to have been imposed. If the error identified by the appeal court is one of failing to take into account all relevant matters or taking into account extraneous ones (a process error), the Full Court may fix a different sentence in accordance with what it thinks ought to have been imposed, even if the sentence imposed below was not, in itself, manifestly unreasonable. On the other hand, the Full Court may, after finding the process error, nonetheless take the view that the same sentence should have been passed. In such a case, it will dismiss the appeal. (footnotes omitted) 5 In Kentwell v The Queen (“Kentwell”),4 the High Court considered the role of the appellate court where it is found that the trial court’s sentencing discretion has miscarried. The plurality said:5 …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 Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 3 [2024] SASC 39. 4 (2014) 252 CLR 601. 5 Ibid, [42]-[43]. -- 4 of 13 -- [2025] SASC 141 Auxiliary Justice Bochner 3 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion. After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare… (footnotes omitted) 6 The effect of Kentwell was explained by Livesey J (as he then was) in Da Silva v The Queen6 in the following way:7 In my view, Kentwell, together with AB v The Queen, are authority for the propositions that, where there is a “specific” or “process” error the appellate court’s power to intervene is enlivened, and it is duty bound to exercise the sentencing discretion afresh, but it is not required to re-sentence where it concludes that no different sentence should be imposed. (footnotes omitted) 7 Further explanation was provided by B Doyle J in the recent decision of White v Commissioner of Police (“White”),8 where he said:9 In Kentwell v The Queen, 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. 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, regardless of whether it is demonstrated, by reference to some particular standard, that it did influence the outcome. (footnotes omitted) 6 [2020] SASCFC 66. 7 Ibid, [38]. 8 [2025] SASC 66. 9 Ibid, [9]-[10]. -- 5 of 13 -- [2025] SASC 141 Auxiliary Justice Bochner 4 The Magistrate’s sentencing remarks 8 At the outset of his remarks, the magistrate noted that the offence of driving under disqualification was a serious offence, made more serious by the fact of the appellant’s prior history. He summarised the appellant’s offending history in the following way: • The disqualification that this offence relates to was to commence on 24 July 2023, after the appellant had served a term of imprisonment of two years for drug offending. • The appellant had been convicted of multiple charges of driving while under disqualification in November 2011. • There were numerous other charges of driving disqualified in 2017 and 2018. 9 The Magistrate then described the circumstances surrounding the appellant’s life and his recent period of imprisonment, and the changes that he has made to his life since that time. He described the circumstances leading to the commission of the offence under consideration. He then said: I think that a term of imprisonment is appropriate. I am of that view because of your prior offending, and on every occasion, you would have been warned of the consequences of driving under disqualification, but you have continued to offend, particularly in 2017, 2018 and 2019. Then you have offended again in 2024. 10 As to whether the sentence should have been suspended or served on home detention, the magistrate determined that, because of the appellant’s past history, that he had already served a period of imprisonment for similar offending and had had the benefit of a suspended sentence for the same offence, it was appropriate that he should serve a custodial sentence. 11 Counsel for the appellant then sought to correct the appellant’s offending history. He advised the magistrate that there had been no offending in 2011. Counsel for the respondent then clarified the history. It is worth setting out in full the exchange between counsel and the Magistrate: APP Bryant: I can go through it from the top her (sic). 18 November 2019 there were three counts of drive disqualified. The offending occurred on 28 May 2018, 1 June 2018 and 14 June 2018. That resulted in two months and three days. His Honour: And that was when, 2018? APP Bryant: 18 November 2019 was the sentence. Mr Ey: For offences in 2018. APP Bryant: For offences in 2018 that resulted in the head sentence of five months and 22 days. You go back from there – -- 6 of 13 -- [2025] SASC 141 Auxiliary Justice Bochner 5 His Honour: Okay. So, he has no offending in 2011. But offending in 2017, 2018, 2019 and this most recent offence. Mr Ey: Nothing in 2019. Just finalised in 2019. APP Bryant: Just finalised on those dates. His Honour: Okay. No, so that decision remains the same. 12 It is clear that at the time that the Magistrate first pronounced the sentence, he believed that the appellant had committed similar offences in 2011, 2017, 2018, 2019 and 2024, when in fact offences had been committed in 2017, 2018 and 2024. Following clarification, he believed, still erroneously, that offending had occurred in 2017, 2018, 2019 and 2024. His consideration after the second attempt at clarification lasted a period of only a few seconds before he confirmed the sentence imposed. 13 It is also clear that another error was introduced at this point: when clarifying the sentence for driving while disqualified, counsel for the respondent advised that the head sentence was five months and 22 days; in fact, the sentence imposed was two months and three days, to be served cumulatively with a sentence for an unrelated offence of three months and 19 days, resulting in five months and 22 days as the overall head sentence. The grounds of appeal Ground 2 – the Magistrate took into account an incorrect criminal history in passing sentence 14 The appellant says that the magistrate directly linked the seriousness of the offence to his offending history. By doing so, he made it clear that the appellant’s offending history was a central component of his decision-making process. In reaching his decision on sentence, he mistakenly believed that offending had occurred in 2011 and 2019. This had the effect of extending the period of offending from a relatively confined period in 2017 and 2018, with the addition of the subject offence, to a much longer pattern of behaviour from 2011 to 2019, followed by the 2024 offence. 15 This error was then compounded by the Magistrate’s belief that for the offences of driving while disqualified which were sentenced in 2019, the appellant received a head sentence of five months and twenty-two days, rather than this period being the aggregate of two separate sentences. 16 This error amounts to a material error which must lead to re-sentencing of the appellant. 17 The respondent says that following the initial errors, the Magistrate was informed that the prior offending was in 2017 and 2018 and did not extend to 2011 and 2019. Further, he was informed the sentence in November 2019, for the 2018 offences, was for two months and three days. The respondent says that the police -- 7 of 13 -- [2025] SASC 141 Auxiliary Justice Bochner 6 prosecutor’s subsequent statement, that the head sentence was for a period of five months and 22 days was not misleading, because that is, in fact, the head sentence that he was subject to following the imposition of the sentence for the 2018 offences, which was to be served cumulatively with the sentence that the appellant was currently serving. 18 The respondent further submits that, in any event, if the misstatement of the head sentence did amount to a process error, it was not a material error as explained by B Doyle J in White. The Magistrate correctly took into account the fact that the appellant had already had the benefit of a suspended sentence for that offence and, in addition, served a sentence of imprisonment for the subsequent commission of the same offence. 19 I am of the view that these errors are material errors which must lead to the appellant’s being resentenced. When the Magistrate first pronounced the sentence, it was on the basis that the appellant had a history of committing this offence in 2011, 2017, 2018 and 2019 prior to the commission of the offence for which he was being sentenced. It is clear that this lengthy pattern of offending was a matter of concern to the Magistrate; indeed, he made specific reference to his prior history at the commencement of his sentencing remarks. 20 I am also of the view that the exchange in relation to the head sentence imposed in 2019 amounts to a material error. The transcript demonstrates that the Magistrate was inquiring about the sentence received in 2019 for the offences of driving while disqualified; the answer given is of the cumulative head sentence for both the driving while disqualified offences and other offences for which the appellant was already serving a term of imprisonment. There is no indication in the transcript that the Magistrate appreciated that the answer that he was given and relied on was not in fact the answer to the question that he asked. There is a very real likelihood that this led to error. Ground 3 – the Magistrate failed adequately to consider the option of a home detention sentence 21 The appellant says that the Magistrate considered the question of sentence against the background of an incorrect factual matrix. In the context of the attempt to correct the appellant’s offending history, his counsel asked the Magistrate to consider ordering a home detention report. The Magistrate declined to do so, shortly after he had been advised of the head sentence of five months and 22 days for the offences that occurred in 2018. The appellant submits that the Magistrate had insufficient time to consider properly the sequence of errors and corrections in relation to the years in which offences had occurred and the sentences imposed, before he affirmed his original sentence. In light of the rapid change in the factual matrix, he says that the Magistrate did not give sufficient consideration to the option of home detention, particularly in light of the fact that only a few seconds passed between the exchange about the offending history and the head sentence and the confirmation of the sentence. -- 8 of 13 -- [2025] SASC 141 Auxiliary Justice Bochner 7 22 The respondent submits that, in declining to consider home detention, the Magistrate took into account the number of offences, not necessarily when they occurred. In making this submission, the respondent relied on the following extract from the Magistrate’s sentencing remarks: I do accept that some of that offending is aged – some of it is 13 years old. Some of it is of more recent events, but it is just the sheer volume of offending that I think is concerning. I think, notwithstanding all the things that Mr Ey has told me, I think a term of imprisonment is appropriate. 23 The respondent says that no error can be inferred by the short period of time between the clarification given by counsel and the confirmation of the sentence. She submitted that the time taken must be considered in the context of the nature of the proceeding and the need to deliver economical and quick sentencing remarks in the Magistrates Court. 24 The respondent submits that it is clear that, in rejecting home detention as an appropriate option, the Magistrate was influenced by the number of previous offences and the details of previous sentences. It was clearly considered by the Magistrate and no error is demonstrated. 25 I consider that the fate of this ground of appeal rests largely with the fate of ground 2. Given the confusion over the duration of the appellant’s offending history and the sentence imposed for the offences committed in 2018, it must be concluded that the Magistrate’s initial rejection of home detention was on the basis of incorrect evidence (that there was offending in 2017, 2018 and 2019, in addition to the current offence) and only seconds after the correction of a further misapprehension that there was further offending in 2011. Even if it is accepted that, at the time that he affirmed the sentence, the Magistrate clearly appreciated that the prior offending was limited to 2017 and 2018, he was still labouring under the misapprehension that the sentence imposed for driving while disqualified in 2018 was five months and 22 days. As a result, it must be concluded that the magistrate did not properly consider the question of home detention because he was not properly apprised of the relevant facts. Ground 4 – the Magistrate misstated the guilty plea sentencing discount to which the appellant was entitled 26 The respondent has conceded that the Magistrate was in error in giving the appellant a discount of 25% on his sentence and has acknowledged that he was entitled to a discount of 30%, given that there was no evidence of any intention in the Magistrate’s sentencing remarks to give him less than the maximum discount available to him. The respondent has conceded that this error enlivens this Court’s power to intervene. 27 Given that I have found that material error was made by the Magistrate, the appellant must be allowed, and the sentence imposed by the Magistrate must be set aside. -- 9 of 13 -- [2025] SASC 141 Auxiliary Justice Bochner 8 Resentence 28 The appellant submitted that, in the event that I found that a material error had been made, I should remit the matter to the Magistrates Court for resentencing. This is on the basis that, first, the Magistrates Court is the most appropriate place to deal with the question of home detention, and second, in reliance on the authority of R v Kreutzer (‘Kreutzer’).10 In that case, Kourakis CJ said:11 Another important consideration is that if this Court were to determine the disputed questions, and ultimately the sentence, the appellant would lose the benefit of an appeal pursuant to s 353 of the CLCA. Appeals from the Full Court of this Court to the High Court lie only by a grant of special permission. The High Court is not a court of criminal appeal. (footnotes omitted) 29 In effect, the submission is that, if a further error in relation to sentence is made, the appellant would lose the benefit of one layer of appeal and would proceed to the Court of Appeal, for which leave would be required. 30 The respondent, on the other hand, submitted that if resentencing is required, it is appropriate that it be undertaken by this Court. This Court is in as good a position as the Magistrates Court to order a home detention report if minded to do so. I was also referred to the case of R v M,G (“M,G”),12 a case where, as here, the appellant was granted bail pending appeal. Nicholson J, with whom Blue and Hinton JJ agreed, said:13 Counsel also submitted that a resentencing in this Court would operate to deprive the appellant of a right of appeal. He relied on certain observations in R v Kreutzer in this respect. However, Kreutzer involved disputed questions of fact likely to require the calling of oral evidence which, in the circumstances of that case, was more appropriately to be dealt with by a single Judge. Any findings to be made with respect to disputed facts might also be the subject of appeal and the preservation of a right of appeal in such cases can be an important consideration. Those considerations do not apply here. The resentencing in the present case will depend not on findings of disputed facts still to be made but on the application of sentencing principle to a body of essentially uncontested factual material. This is the ordinary case in which, typically, the Court of Criminal Appeal will undertake the resentencing task – there should be no loss of efficiency and the parties will have the benefit of three Judges giving consideration to the appropriate sentence. The argument that a right of appeal will be lost can be raised in all cases of a successful appeal against sentence and is ultimately self-perpetuating. What if the Judge errs on the next occasion? Will the appeal court be obliged to remit the matter again? The “loss of a right of appeal” argument carries little weight except in particular circumstances of which Kreutzer was an example. In addition, once the Director indicated during the hearing of the application for permission to appeal that the appeal would be conceded, a Judge of this Court released the appellant 10 [2013] SASCFC 130; (2013) 118 SASR 211. 11 Ibid, [42]. 12 [2016] SASCFC 116; (2016) 262 A Crim R 152. 13 Ibid, [28]-[30]. -- 10 of 13 -- [2025] SASC 141 Auxiliary Justice Bochner 9 on bail pending the appeal. In these circumstances, it is important that any resentencing exercise takes place as soon as fairness permits. (footnotes omitted) 31 I consider that, as in M,G, Kreutzer is distinguishable from the facts in this matter. There has been no suggestion that contested factual material will be introduced for the purpose of resentencing. In the circumstances, it is appropriate that this Court undertake the task. 32 The parties were invited to file further submissions on the question of resentence. The appellant did not do so, on the basis that he was content to rely on the submissions made to the Magistrate at first instance, and on those made by counsel on the appeal. The respondent filed further brief written submissions on 21 July 2025. In addition, I ordered that a Home Detention Report be prepared so that I was fully apprised of all relevant matters at the time that I came to consider the question of resentence. 33 The appellant has accepted that his offending in this case was contumacious and serious. The offending occurred on 23 December 2024. The appellant had arranged to have a car imported from Victoria and delivered on a truck to a storage yard approximately 1 km from the Services SA vehicle inspection facility at Regency Park. The vehicle was a Christmas gift for his sister. 34 This was not the first time that the appellant had imported a vehicle from Victoria; usually, a friend assisted him to transport the vehicle from the storage yard to the inspection facility, however on this day, the friend was not available. The appellant contacted other friends to see if someone could assist, without success. The storage yard was closing that afternoon for three weeks and the appellant was anxious that his sister would not receive her Christmas present. As a result, he decided to drive the vehicle to the inspection facility himself. 35 Before the Magistrate, the prosecutor outlined the circumstances of the offending and submitted that the appellant was aware that he was disqualified from driving. He then outlined the appellant’s offending history and submitted that a custodial sentence was warranted. 36 Counsel on behalf of the appellant submitted that the appellant’s life had spiralled out of control in about 2015 and 2016, following the breakdown of a long- term relationship. He became involved in drug use, which led to a trafficking offence and imprisonment. He had prior convictions for driving while disqualified in 2017 and 2018. Since his release from prison in July 2023, he had turned his life around, was employed full time in stable employment and had a supportive partner. He had also distanced himself from those associated with his previous offending. 37 Counsel submitted that the appellant had cooperated with police and acknowledged that he had made a foolish decision, which had been made in the -- 11 of 13 -- [2025] SASC 141 Auxiliary Justice Bochner 10 heat of the moment. He submitted that the appellant should not be returned to custody given his changed life circumstances. He submitted that a suspended sentence was appropriate, or in the alternative, home detention. 38 I turn now to the question of the appellant’s prior offending. 39 On 13 June 2018, the appellant was convicted of driving while under disqualification on 9 February 2018. He received a sentence of seven days’ imprisonment, which was suspended on his entering into a bond of nine months. 40 On 17 January 2019, the appellant was convicted of driving while under disqualification on 10 December 2017 and 30 December 2017. He was ordered to pay the costs with respect to these convictions. 41 On 18 November 2019, the appellant was convicted of driving while under a disqualification on 28 May 2018, 1 June 2018 and 14 June 2918. He was sentenced to a period of imprisonment of two months and three days, which was to be served cumulatively with another sentence (for an unrelated offence) of three months and 19 days, which had been imposed on 28 August 2019. 42 Thus, it can be seen that the appellant’s prior offending was confined to 2017 and 2018, with the court files finalised in 2018 and 2019. There has been no similar offending since that time, until 23 December 2024. I note that the appellant otherwise has a number of other convictions for driving and other offences. This is his first offence since his release from prison on 24 July 2023. Nonetheless, there can be no doubt that the appellant’s offending is serious. In Police v Chilton,14 Kourakis CJ said:15 It can be accepted that imprisonment is a sentencing option of last resort. However that, common law and statutory, principle is not applied by a sentencing judicial officer in each individual case free of the consideration of its application to offences of the kind in question by other courts and the Full Court of this Court in particular. The reasons of this Court in Cadd, which was recently considered by this Court in Police (SA) v Nissen, show that such is the need for personal deterrence and general deterrence for offences of this kind that a recidivist offender with no compelling reason to drive can, in the ordinary course, expect to be imprisoned notwithstanding that statutory and common law principle. To put it bluntly, so great is the need to ensure that disqualification orders operate as an effective sanction in ensuring compliance with the rules of the road that imprisonment will, generally, be resorted to in the case of offenders who repeatedly flout judicial or administrative orders of disqualification. 43 Balancing the seriousness of the appellant’s offending with the positive changes that he has made to his life in recent times, I sentence the appellant to a period of two months’ imprisonment which is to be reduced by 30% on account of his guilty plea, to a period of one month and 12 days. 14 (2014) 120 SASR 32 15 Ibid, [21]. -- 12 of 13 -- [2025] SASC 141 Auxiliary Justice Bochner 11 44 The appellant submitted that a suspended sentence should be considered, taking into account the changes that he has made to his life, his stable employment and his supportive relationship. The appellant has already had the benefit of a suspended sentence for the same offending and has also served a custodial sentence in 2019 for the same offending. In the circumstances, I consider it not appropriate to suspend this sentence. 45 I note the submission of the appellant that home detention should be considered, if suspension is considered inappropriate. I ordered a Home Detention Report, which has now been provided. The Intensive Compliance Officers, who attended the nominated residence on 28 July 2025, determined that it was not suitable for home detention. On receipt of this report, the appellant nominated a different residence, and I ordered a new Home Detention Report accordingly. The officers of the Intensive Compliance Unit who carried out the inspection of this second residence have determined it suitable for home detention. Accordingly, I order that the appellant is to serve his sentence on home detention. In reaching this decision, I have taken into consideration the positive changes that the appellant has made to his life in recent times. -- 13 of 13 --