ERRIN CRIS CHILDS v COMMISSIONER OF POLICE [2025] SASC 147

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SMOLICZ) MCCRM-24-009744; MCCRM-23-025419; MCCRM-24-008172 Appellant: ERRIN CRIS CHILDS Counsel: MS C DEMERTZIS - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Respondent: COMMISSIONER OF POLICE Counsel: MS I NOBLE - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 22/07/2025 File No/s: SCCRM-25-015004 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. CHILDS v COMMISSIONER OF POLICE [2025] SASC 147 Judgment of the Honourable Auxiliary Justice Bochner 4 September 2025 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PROCEDURE CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OBTAINING PROPERTY BY DECEPTION - SENTENCE The appellant sought to appeal against a sentence imposed in the Magistrates Court. The sentence was imposed for two counts of dishonestly dealing with property, where the appellant was found to have shoplifted, and one count of deception for self-benefit, where the appellant had opened a bank account using another person’s identity. The grounds of appeal were that: 1. The sentence with regard to the dishonesty offence was manifestly excessive; and 2. The Magistrate erred in failing to exercise the discretion to wholly suspend the sentence. The appellant contended that the sentence of six months’ imprisonment for the deception offence was manifestly excessive. In particular, the appellant considered that the magistrate incorrectly characterised this offence as serious, premeditated and sophisticated by virtue of the offence being easily detected, causing no detriment to another person, where no financial harm was suffered by the other person, and that the account was not used for a nefarious purpose. The appellant also put forward that aspects of the sentencing remarks made by the Magistrate, such as the non-chronological order in which the Magistrate addressed the offences, pointed to error in the Magistrate’s characterisation of the offending. The respondent submitted that the sentence imposed by the -- 1 of 13 -- Magistrate was reasonable and that the Magistrate appropriately characterised the deception offence as serious. Regarding the second ground, the appellant submitted that as the Magistrate made no reference to consideration of whether there was a good reason not to suspend the sentence in his sentencing remarks, the Magistrate misapplied s 71 of the Sentencing Act 2017. The appellant further contended that the decision not to suspend the sentence was so unusual such that the Magistrate should have provided clear reasons in not doing so. The respondent contended that the Magistrate’s consideration of the seriousness of the offending militated in favour of home detention over a suspended sentence. Held, dismissing the application: 1. The Magistrate did not err in describing the deception offence as serious, premeditated and sophisticated. Obtaining another’s details on the dark web requires a degree of sophistication and premeditation. Further, the person whose identity was stolen could not be said to have suffered no detriment despite there being no financial harm caused. The sentence was not so unreasonable or unjust and the magistrate appropriately took into account the appellant’s circumstances; 2. There is a two-stage test under s 71, that requires a judicial officer to consider whether a sentence should be suspended before considering whether to make a home detention order. The Magistrate’s remarks were extensive and detailed, and it does not follow that the Magistrate’s lack of specific mention of the question of suspension meant that he did not undergo this consideration. Criminal Law Consolidation Act 1935 s 134, s 139(a); Sentencing Act 2017 (SA) s 3, s 4, s 71, referred to. R v Dell (2016) 126 SASR 571; R v Reiner (1974) 8 SASR 102, applied. Rodgers v Police [2022] SASC 119; R v Wilton (1981) 28 SASR 362; Lowndes v The Queen (1999) 195 CLR 665); R v Mark [2019] SASCFC 48; Lees v The Queen [2022] SASCA 93; Walker v The Queen [2023] SASCA 79; Dinsdale v The Queen (2000) 202 CLR 321; Playford v Police [2017] SASC 26, considered. -- 2 of 13 -- CHILDS v COMMISSIONER OF POLICE [2025] SASC 147 CRIMINAL — Single Judge Appeal 1 BOCHNER AJ: This is an appeal against a sentence imposed in the Magistrates Court for two counts of dishonestly dealing with property without the owner’s consent, contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA), and one count of deceive another to benefit self or third person contrary to s 139(a) of the Criminal Law Consolidation Act 1935 (SA). The appellant was sentenced to a period of imprisonment of six months for the deception offence, and to periods of two weeks for each of the thefts, with each sentence to be served cumulatively. She then received a discount as a result of her guilty pleas which reduced the sentence of seven months to four months and 27 days, to be served on home detention. Details of the offending 2 On 15 April 2023, the appellant opened a bank account with Westpac Banking Corporation. She used the name, date of birth and driver’s licence number of another person, and her own street address and mobile phone number. She had apparently obtained the identity details of the other person from the dark web. She obtained a credit card attached to the bank account. It appears she transferred her own money into the account, which she later withdrew. 3 On 12 May 2023, the car driven by the appellant was stopped and searched by police. In the vehicle, the police found a mobile phone and some articles of clothing which they suspected had been stolen from a shop at Harbour Town. They also found in her possession the Westpac credit card, and a quantity of methamphetamine and equipment. 4 On 23 August 2023, the appellant committed a further shoplifting offence, taking clothing and makeup from Target at Elizabeth. 5 The appellant was charged with the two theft offences and the deception offence, as well as a number of offences in relation to the possession of a controlled drug. She pleaded guilty to all of the charges. 6 Prior to the trial in the Magistrates Court, the appellant breached her bail conditions as a result of which her bail was revoked, and she spent approximately 12 days in custody. The Magistrate’s sentencing remarks 7 The Magistrate commenced by describing the offences committed by the appellant in May and August 2023. He described her apprehension on 12 May 2023, which led to the discovery of the shoplifting offence at Harbour Town as -- 3 of 13 -- [2025] SASC 147 Auxiliary Justice Bochner 2 well as the Westpac credit card. He then described the theft from Target at Elizabeth on 23 August 2023. He said:1 Your offending continued and became more serious. You were involved in an offence of deception – that is a serious offence and the maximum penalty is 10 years imprisonment, 5 years in this jurisdiction. 8 In his next paragraph, the Magistrate correctly identified the date on which the Westpac bank account was opened; nonetheless, the sequencing of his remarks suggests that the deception offence occurred after the two shoplifting offences, which is not correct. 9 The Magistrate then outlined the personal circumstances of the appellant, including difficulties that she experienced during her childhood, her drug use, her relationship history and her employment history. He then noted that the appellant had ceased using drugs and had good prospects of rehabilitation. 10 The Magistrate described the appellant’s offending in the following way:2 The offending is serious. It was ongoing and only stopped when you were taken into custody. It involved dishonesty with little regard for the victims of your offending. The thefts appear to involve targeted items which were resold to support your drug addiction. Aspects of your offending were premedicated (sic) and sophisticated. They involved identity theft, which is now prevalent and difficult to detect and of great concern to the community. By way of background, Mr Collinson says that you accept responsibility for opening up that false bank account; you accept you used that account on at least one or two occasions. It is suggested that you were provided the information from the dark web by some drug associates and you agreed to use that information knowing that it involved identity theft. The benefit you were to obtain from the false bank account is not exactly clear, but a false bank account is an extremely powerful tool which can lead to quite sophisticated crime. You would have caused great inconvenience to the victim, who would have needed to review all her banking, all her credit checks to determine whether there had been any implication on her given an account was created in a false name and implicating her as the owner. 11 The Magistrate considered that the appellant was a suitable candidate for home detention, noting that she had a limited criminal history and had never previously been sentenced to a period of imprisonment. He accordingly ordered that she serve her sentence on home detention. The grounds of appeal 12 There are two grounds of appeal. They are: 1. The sentence is manifestly excessive; 1 Remarks on Penalty, 9 April 2025 (FDN 11). 2 Ibid. -- 4 of 13 -- [2025] SASC 147 Auxiliary Justice Bochner 3 2. The Magistrate erred in failing to exercise the discretion to wholly suspend the sentence. 13 There appeared to be some dispute between the parties as to whether, at the sentencing hearing, the appellant’s counsel made a positive submission that home detention would be a suitable penalty. It was the appellant’s position that no such submission had been made; rather, her counsel did not disagree with the Magistrate when he proposed to deal with the matter by way of a sentence of home detention. The respondent, on the other hand submitted that the appellant’s counsel had actively sought home detention and did not raise the question of suspension. I do not consider that anything turns on this. The principles to be applied on an appeal 14 The principles to be applied were succinctly summarised by McDonald J in Rodgers v Police:3 In order to interfere with the exercise of a sentencing discretion, there must be a demonstrated error of the kind described in House v The King. The approach to be adopted was summarised by White J in Wittwer v Police: 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. (Footnotes omitted) 15 The Court will not interfere merely because it would have exercised the sentencing discretion in a different way to the sentencing Magistrate.4 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:5 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), 3 [2022] SASC 119, [17]. 4 R v Wilton (1981) 28 SASR 362 at 363; Lowndes v The Queen (1999) 195 CLR 665, [15]. 5 [2019] SASCFC 48, [18]. -- 5 of 13 -- [2025] SASC 147 Auxiliary Justice Bochner 4 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) 16 In Lowndes v The Queen, the Court observed that:6 … a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. … The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. Ground 1 – The sentence is manifestly excessive 17 I note that, at the commencement of her submissions, Ms Demertzis on behalf of the appellant advised that no issue was taken with the amount of the discount allowed, nor was the appeal in relation to the penalties imposed for the shoplifting offences. She conceded that a sentence of two weeks’ imprisonment for each of the shoplifting offences was not manifestly excessive. The appeal was in relation to the sentence of six months’ imprisonment for the deception offence. 18 Ms Demertzis contended that the Magistrate was in error when he described the deception offence as serious, premeditated and sophisticated. While she accepted that all offending is serious, she submitted that in this case, the offence was easily detected, it caused no detriment to another person and the Westpac bank account was not used for any nefarious purpose. 19 Ms Demertzis pointed to the fact that the appellant used her own address and mobile phone number which demonstrated the lack of sophistication of the offending. She also pointed to the fact that the appellant transferred her own money into the account and did not make any other use of the account. 20 Ms Demertzis submitted that the Magistrate erred in finding that the deception offence was an escalation of her shoplifting offences. In fact, the deception offence occurred first and so it cannot be seen as an escalation. 21 Ms Demertzis submitted that the Magistrate made a further error in finding that the appellant’s offending only ceased when she was taken into custody. In fact, she ceased offending immediately on her arrest for the second shoplifting offence, but was not taken into custody until two years later, when she breached the conditions of her bail agreement. Her breach consisted of her not residing at a required address and did not involve further offending. 6 (1999) 195 CLR 665, [15]. -- 6 of 13 -- [2025] SASC 147 Auxiliary Justice Bochner 5 22 Ms Noble, on behalf of the respondent submitted that the relevant question for the purpose of this appeal is whether the penalty imposed by the Magistrate was not reasonably open on the facts of this matter, having regard to the circumstances of both the offending and the offender. She says that the sentence imposed was reasonably open to the Magistrate taking into account the circumstances of the matter. 23 In relation to the deception offence, Ms Noble submitted that the Magistrate did not err in describing the offending as serious. The evidence was that the appellant had opened a bank account in the name of another person, using personal details obtained from the dark web. While the benefit to the appellant was unclear, the actions of the appellant had the capacity to cause real harm. She submitted that this potential to cause harm can be taken into account on sentencing. In this regard, Ms Noble relied on the case of Lees v The Queen,7 where the Court said:8 However, taking the present case, the fact that the offending the subject of the pleas did not extend to theft does not mean that the sentencing exercise should be carried out in isolation from an understanding of the circumstances and impact of the offending. That understanding may still inform the seriousness of the offending without breaching the principle articulated in R v De Simoni. 24 She also relied on Walker v The Queen,9 where the Court said:10 Counts 3 to 9 related to the appellant and Mr Lees’ false applications for accounts at various financial institutions and created in various names. The individuals whose identities were used to establish the fraudulent bank accounts were unaware of the fraudulent activity. The entire context of the offending allows an inference that the nature of the intended benefit lay in the securing of an effectively anonymised, and therefore more protected, receptable for funds the appellant and Mr Lees intended to obtain dishonestly in the future. These offences were part of a broad, dishonest scheme of offending. The maximum penalty for each count is imprisonment for 10 years. (Footnotes omitted) 25 Ms Noble contended that, in assessing the seriousness of the offence, the Court should have regard to the fact that the appellant obtained information about the identity of another person on the dark web, that she knew that it amounted to identity theft, and that it was the theft of the identity of a real person in the community. Further, the use of the bank account only ceased when it was detected during the investigation of other offending. 26 Ms Noble submitted that the Magistrate appropriately took into account the personal circumstances of the appellant and the circumstances of the offending. In 7 [2022] SASCA 93 (‘Lees’). 8 Ibid [50]. 9 [2023] SASCA 79 (‘Walker’). 10 Ibid [34]. -- 7 of 13 -- [2025] SASC 147 Auxiliary Justice Bochner 6 this regard, she referred to the decision of Kirby J in Dinsdale v The Queen,11 where his Honour said:12 Adopting this approach, then, permits attention to be given not only to the circumstances personal to the offender but also to the objective features of the offence. These may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. They may require that the prison sentence be immediately served, despite mitigating personal considerations. This approach is consonant with the recognition in jurisdictions other than Western Australia of the "complete discretion" which, subject to the statute, the primary judge has in suspending a sentence of imprisonment. In other States, it has been considered undesirable to attempt to circumscribe the language of the statute by reference to supposed formulae, particular considerations or any other gloss. (Footnotes omitted) 27 She submitted that the overall seriousness of the offence is such that the appellant’s personal circumstances did not outweigh the other matters that the Magistrate took into consideration when sentencing. She noted that, in Walker,13 the Court considered that general deterrence was a signification consideration:14 … As the respondent submitted, this type of technological facility with which identities can be illegally obtained and fraudulently utilised poses a significant risk of damage that can be done not just to the individual victims but across the entire community. Businesses and individuals now have to take extra measures at considerable cost to thwart this type of crime. General deterrence is a significant consideration. 28 As a result, it was open to the Magistrate to find that the appellant’s offending was serious and warranted a sentence of six months’ imprisonment. Consideration 29 I do not consider that the Magistrate was in error when he described the appellant’s offending as serious, premeditated and sophisticated. It is true that her offending was not as sophisticated as that in Walker and Lees;15 nonetheless, it involved her obtaining the personal details of another person on the dark web, which in itself required a degree of sophistication and organisation. I also reject Ms Demertzis’ submission that the offending caused no detriment to another person. It is true that no financial detriment was caused, but it cannot be said that no detriment was caused to the person whose identity was stolen. The mere fact that another person stole the victim’s identity and opened a bank account is a detriment in itself. 30 I accept that the Magistrate described the deception offence as an escalation, in that he said:16 11 (2000) 202 CLR 321. 12 Ibid [86]. 13 Walker (n 9). 14 Ibid [37]. 15 Lees (n 7). 16 Sentencing remarks, 9 April 2025 (FDN 11). -- 8 of 13 -- [2025] SASC 147 Auxiliary Justice Bochner 7 Your offending continued and became more serious. You were involved in an offence of deception – that is a serious offence… 31 Immediately before this sentence, he described the two shoplifting offences with the correct dates of each of them. Immediately after this, he stated the correct date on which the appellant opened the Westpac bank account. In the context of the sentencing remarks as a whole, I am satisfied that the Magistrate appreciated that the deception offence occurred before the two shoplifting offences. His use of the words, “Your offending continued and became more serious”, amounts to infelicitous wording rather than an error as to the sequence of events. Having correctly stated the dates of each of the offences, it must be concluded that the Magistrate was aware of the order in which they occurred. 32 I also reject the submission that the Magistrate erred in finding that the appellant’s offending only ceased when she was taken into custody. This is in fact technically correct; there was no further offending after her arrest following the second shoplifting offence. I consider that, when the Magistrate referred to the appellant’s being taken into custody, he was referring to this arrest, rather than to her being taken into custody for breaching her bail conditions. 33 It is clear from the Magistrate’s sentencing remarks that he took into consideration the appellant’s personal history, the circumstances surrounding the offending, including the appellant’s drug use and her prospects of rehabilitation. In the circumstances, I conclude that the appellant has not been able to identify an error on the part of the Magistrate. 34 I also conclude that the appellant has been unable to demonstrate that the sentence of six months’ imprisonment is so obviously unreasonable or unjust that the Magistrate’s exercise of his discretion must have miscarried. He appropriately noted that the offending was serious and that it involved dishonesty with little regard for the victims of the offending. No error was demonstrated by the following remarks:17 Aspects of your offending were premedicated (sic) and sophisticated. They involved identity theft, which is now prevalent and difficult to detect and of great concern to the community. 35 The Magistrate was correct to find that the appellant’s offending required a degree of premeditation and sophistication. 36 I consider that it was open to the Magistrate to reach the view that a period of imprisonment of six months was appropriate, taking into consideration the primary purpose of sentencing, set out in s 3 of the Sentencing Act 2017 (SA) (‘Sentencing Act’) and the secondary purposes described in s 4. He clearly took into consideration the questions of protection of the community, deterrence and rehabilitation of the appellant in reaching his decision. 17 Ibid. -- 9 of 13 -- [2025] SASC 147 Auxiliary Justice Bochner 8 37 This ground of appeal must be dismissed. Ground 2 – The Magistrate erred in failing to exercise the discretion to wholly suspend the sentence 38 Ms Demertzis submitted that the sentence should have been wholly suspended. This submission has a number of bases. 39 First, Ms Demertzis says the Magistrate misapplied s 71 of the Sentencing Act in that it is not clear that he considered whether there was good reason not to suspend. Section 71(1) provides: 71—Home detention orders (1) Subject to this section, if— (a) a court has imposed a sentence of imprisonment on a defendant; and (b) the court considers that the sentence should not be suspended under Part 4 Division 2; and (c) the court considers that the defendant is a suitable person to serve the sentence on home detention, the court may order that the defendant serve the sentence on home detention (a home detention order). 40 Ms Demertzis argued that this section imposes a positive duty on the Magistrate to consider whether or not the sentence should be suspended, before moving to the question of whether the appellant is a suitable person to serve the sentence on home detention. In sentencing the appellant, the Magistrate made no reference to suspension of the sentence, leading to the conclusion that he failed to consider it as an option. She submitted that the Magistrate was required to undertake a two-stage process before moving to the question of whether to order home detention. The first two stages are to impose a sentence of imprisonment, and then to then determine that it should not be suspended. The Magistrate left out the second stage, as a result of which his discretion miscarried. 41 Second, Ms Demertzis submitted that there was good reason to suspend the sentence in this case. Indeed, she argued that the reasons for which home detention was allowed equally supported a decision to suspend the sentence. 42 Third, Ms Demertzis argued that, given the appellant’s lack of prior offending history, her good prospects for rehabilitation, and that she had not had the prior benefit of a bond or a suspended sentence, the decision not to suspend the sentence is so unusual that the Magistrate should have provided clear reasons for it. 43 Fourth, Ms Demertzis reiterated that, before the Magistrate, counsel for the appellant did not make a positive submission in favour of home detention; rather, -- 10 of 13 -- [2025] SASC 147 Auxiliary Justice Bochner 9 counsel made submissions on sentencing generally and did not, at any time, concede that suspension was not appropriate. 44 Ms Noble conceded that home detention is a more onerous penalty than suspension. She further acknowledged that the discretion to impose home detention only arose once a decision was made to impose a period of imprisonment. Finally, she conceded that the Magistrate did not address the question of suspension in his sentencing remarks. 45 Ms Noble submitted, however, that the fact that the Magistrate did not mention suspension does not necessarily lead to the conclusion that it was not considered. In his remarks, the Magistrate specifically addressed the appellant’s personal circumstances and explained why home detention would be ordered. Having previously remarked on the seriousness of the offending, Ms Noble submitted that it can be accepted that the Magistrate considered the option of suspending the sentence and discarded that in favour of ordering home detention. Consideration 46 In R v Dell,18 in his Honour’s consideration of the predecessor to the Sentencing Act, Doyle J (as he then was) said this about the discretion to make an order of home detention:19 The power to order that a defendant serve their term of imprisonment on home detention is intended to provide an alternative to custody within a prison. A home detention order sits in the sentencing hierarchy between a suspended sentence under Part 5 and a custodial sentence. That is, it is a more onerous punishment than a Part 5 suspended sentence of imprisonment, but a less onerous punishment than a custodial sentence. Given the terms and structure of s 33BB(1), the discretion to make a home detention order is not enlivened unless and until the court has determined to impose a sentence of imprisonment on the defendant (s 33BB(1)(a)), and has decided that the sentence should not be suspended under Part 5 of the Sentencing Act (s 33BB(1)(b)). Once the power is enlivened, the balance of s 33BB(1) provides that if the court considers that the defendant is a “suitable person” to serve the sentence on home detention (s 33BB(1)(c)), then it “may” make a home detention order … 47 He determined that the section required a two-stage test.20 He found that before the Magistrate could consider whether to make a home detention order, he was required to consider whether the sentence should be suspended. 48 I accept that the Magistrate did not, in his remarks, address the question of suspension. I do not, however, accept that this must lead to the conclusion that he did not consider it. 18 (2016) 126 SASR 571. 19 Ibid [44]-[45]. 20 Ibid [48]. -- 11 of 13 -- [2025] SASC 147 Auxiliary Justice Bochner 10 49 In R v Reiner,21 Bray CJ said:22 I agree with Wells J. that a judge's remarks on sentence ought not to be approached by a court of appeal in a hostile or hypercritical manner and that it is not to be assumed that he failed to take into account anything that he did not specifically mention. 50 The same point was made by Vanstone J in Playford v Police,23 where her Honour said:24 … Remarks on penalty given by Magistrates, and particularly ex tempore remarks, are not to be analysed and deconstructed in the same way as might be settled reasons for judgment. Of necessity, Magistrates often deliver ex tempore reasons. If they did not, no doubt their workloads would become overwhelming. Not all cases call for any more than brief reasons identifying, for the benefit of the person to be penalised, what are the critical factors which weighed in the decision on penalty. Here, the Magistrate focused on the thrust of the appellant’s submissions which went to the question of whether or not to record convictions. She gave quite extensive reasons. They run to two pages. That not every submission made by the appellant was mentioned is of no great moment. There is no obligation to mention every submission or every argument; Sims v Police [2000] SASC 102 at [6] per Bleby J; Gilev v Police [2013] SASC 108 at [7] per David J; McDermott v Police [2014] SASC 175 at [27] per Nicholson J. In particular, I do not consider that the Magistrate was obliged to mention the submission that the imposition of convictions might have an impact on any future overseas travel plans of the appellant. So much is well known, although the desired destination is likely to have an impact. No evidence about particular travel plans or hopes was presented. Neither do I consider that the Magistrate was required to catalogue every conceivable sentencing option available to her. The Magistrate is well experienced and it is plain that she was aware of the full array of options. That the Magistrate made no reference to s 39 of the Sentencing Act does not mean she overlooked it … 51 I do not consider that it is open to me to conclude that the Magistrate must not have considered the question of suspension because he did not specifically address it in his remarks. The Magistrate’s remarks were extensive, and contained a detailed description of the offending, why he considered that it was serious, and the appellant’s personal circumstances. The fact that the reasons which supported an order of home detention are the same reasons that would support a suspended sentence is not surprising. While this is not explicitly stated, it is clear from the remarks, when read as a whole, that given the seriousness with which he regarded the offending, the Magistrate formed the view that the circumstances of the appellant were sufficient to allow him to impose a sentence of home detention, but not to suspend it. 21 (1974) 8 SASR 102. 22 Ibid 106. 23 [2017] SASC 26. 24 Ibid [23] – [24]. -- 12 of 13 -- [2025] SASC 147 Auxiliary Justice Bochner 11 Conclusion 52 For these reasons, I have formed the view that this appeal must be dismissed. I do not consider that the sentence imposed by the Magistrate fell outside of the permissible range of sentences that it was open to him to impose. -- 13 of 13 --