KOBE RANKINE v COMMISSIONER OF POLICE [2025] SASC 163

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE DAVIS) MCCRM- 24-049094, MCCRM-24-043125 Appellant: KOBE RANKINE Counsel: MR W MICKAN - Solicitor: DIXON GALLASCH PTY LTD Respondent: COMMISSIONER OF POLICE Counsel: MS S HALIKIAS - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 02/09/2025 File No/s: SCCRM-25-024160 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. RANKINE v COMMISSIONER OF POLICE [2025] SASC 163 Judgment of the Honourable Justice B Doyle 29 September 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - FRESH EVIDENCE AND EVENTS OCCURRING AFTER SENTENCE The appellant was sentenced by a magistrate to a period of nine months imprisonment following an early plea of guilty to five counts of property damage contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA). In sentencing the appellant, the magistrate did not allow the appellant a 30 per cent discount to the sentence otherwise identified as appropriate. The magistrate decided that the sentence should not be partially suspended. The appellant contended that the magistrate erred by failing to provide reasons for not affording a 30 per cent discount by reason of the guilty plea, and erred in declining to partially suspend the sentence, resulting in a sentencing outcome that was manifestly excessive. The respondent drew the Court’s attention to the magistrate’s failure to comply with s 26(2a)(a) of the Sentencing Act 2017 (SA) (‘Sentencing Act’), but contended that the error was not material. The respondent submitted that the magistrate’s failure to give a 30 per cent discount was a mistake that should be rectified utilising s 20 of the Sentencing Act. The respondent submitted that the decision not to partially suspend the sentence did not result in a manifestly excessive sentence. Held, allowing the appeal and re-exercising the sentencing discretion: 1. whilst a court hearing an appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991 (SA) has jurisdiction to act pursuant to s 20 of the Sentencing Act where the intention of the magistrate to impose a sentence other than the sentence imposed can be confidently ascertained, that was not the case here; 2. the magistrate’s failure to provide reasons as to why a 30 per cent discount was not given vitiated the sentence and required the re-exercise of the sentencing discretion; -- 1 of 11 -- 3. a total effective sentence in respect of the offences of 11 months, reduced by 30 per cent to seven months and 22 days, should be imposed; 4. the appellant had served seven months in custody before he was granted home detention bail pending appeal. He had since obtained employment and a favourable reference from his employer. There is good reason to suspend the remaining period of his sentence. Criminal Law Consolidation Act 1935 (SA) s 85(2); Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5(1); Magistrates Court Act 1991 (SA) s 42; Sentencing Act 2017 (SA) ss 20, 26, 39, 47, 96; Criminal Law (Sentencing) Act 1988 (SA) s 9A, referred to. KB v The King [2025] SASCA 73; R v Bechara [2022] SASCA 37; Stenecker v Police (2014) 120 SASR 18, applied. Gaston v Police [2004] SASC 222; Hubbard v Police [2023] SASC 182; Johnson (a pseudonym) v The King [2022] SASCA 126; Kentwell v The Queen (2014) 252 CLR 601; Kola v The King [2025] SASCA 38; R v Bahrami (2020) 137 SASR 327; R v Baldetti [2008] SASC 232; R v Davey [2017] SASCFC 151; R v Farquhar [2023] SASCA 98; R v Hunt [2018] SASCFC 137; R v Hussey [2013] SASCFC 41; R v Kreutzer (2013) 118 SASR 211; R v Nguyen [2015] SASCFC 40; R v Singh [2018] SASCFC 89; Sullivan v Police [2010] SASC 216; Teasdale v Police [2022] SASC 64; The Queen v Perrey [2022] SASCA 51; Turner-Lindsay v Commissioner of Police [2024] SASC 69; Vanson v The King [2024] SASCA 62, discussed. R v Kuci [2016] SASCFC 136, considered. -- 2 of 11 -- RANKINE v COMMISSIONER OF POLICE [2025] SASC 163 Magistrates Appeal: Criminal 1 B DOYLE J: The appellant appeals against his sentence of nine months imprisonment following a plea of guilty to five counts of property damage contrary to s 85(2) of the Criminal Law Consolidation Act 1935 (SA). 2 The conduct the subject of the first two counts occurred on 21 August 2024, when, for no apparent reason, the appellant caused damage to two separate motor vehicles travelling on Sir Donald Bradman Drive not far from its intersection with Marion Road. The third, fourth and fifth offences occurred in quick succession in the early hours of 24 November 2024 when the appellant, again for no obvious reason, caused damage to three shopfronts on Henley Beach Road. 3 After considering the circumstances of the offending in some detail, the magistrate concluded: Yes, you have pleaded guilty, but other than your pleas and the explanation put forward by your lawyer of your excessive drinking, you have given no explanation, made no admissions, and I have no evidence of or submissions made about your insight, remorse or anything of that nature. Consequently, in my view, the only appropriate penalty is one of imprisonment. But for your plea of guilty, I would have sentenced you to a total of 12 months imprisonment, six months on each of the two files, cumulative. Taking into account your plea, I reduce this sentence to 9 months, backdated to 24 December last year. Even though you are young, do not have a huge criminal history, and have a number of pro-social factors in your favour, given the seriousness of your offending and the need very much for general deterrence to deter people from committing these pointless, scary offences and, in your case, the need for personal deterrence, the seriousness of your offending has to be brought home to you. Consequently, in my view, the time you have already spent in custody is not enough in your case for this scary, dangerous type of offending. In my view, there is no good reason to suspend this sentence of imprisonment, whether in part or in whole, nor to order a sentence of Home Detention. 4 The appellant contends that the magistrate erred in failing to give the appellant the maximum statutory discount pursuant to s 39(2)(b)(ii) of the Sentencing Act 2017 (SA) (‘Sentencing Act’) or, in the alternative, erred in law by failing to give reasons for not affording the appellant the maximum statutory discount. The appellant submits that the error vitiates the sentence and enlivens the power of the Court on appeal to re-sentence the appellant unless it is of the view that no lesser sentence should be passed. -- 3 of 11 -- [2025] SASC 163 B Doyle J 2 5 The respondent contends that it should be taken that the magistrate intended to give the maximum statutory discount but made an arithmetic error of a kind that should be rectified by the exercise of the power in s 20 of the Sentencing Act. In those circumstances the respondent submits that the Court should reduce the term of imprisonment so as to reflect a 30 percent discount on the term of imprisonment of 12 months, but should not otherwise re-visit any other aspect of the sentencing exercise. 6 The appellant also contends that the magistrate erred in failing to impose a partially suspended sentence pursuant to s 96(4) of the Sentencing Act. 7 The respondent submits that whilst the sentencing outcome may be seen as at the upper end, it was within the range of permissible sentencing outcomes. 8 In a commendable discharge of model litigant responsibilities, the respondent’s counsel also drew the Court’s attention two errors made by the magistrate, neither of which were conceded to be material: (1) first, in declining to fix discrete sentences for each of the counts within the two brackets of offending, the magistrate utilised s 26 of the Sentencing Act but did not comply with the requirement arising pursuant to s 26(2a)(a) to indicate the sentence that would have been imposed in respect of each offence had the provision not been applied; (2) secondly, in the course of his sentencing remarks, the magistrate mistakenly treated the second bracket of offending as having occurred on 24 December 2024 when in fact it occurred on 24 November 2024. 9 Whilst a slip as to the date of offending of that kind will almost always be immaterial, just before making the remarks extracted above, the magistrate laid emphasis, from the perspective of the victims of the property damage, upon the time of year at which the offending occurred. The magistrate said: Then, the day before Christmas, when people are wanting to wind down, looking forward to their holiday and no doubt the owners and workers of those shops had been working hard and looking forward to a break, you, for absolutely no reason other than who knows what, because I have not been informed, smashed a sliding door to a Chemmart shop. You also smashed two glass windows at the Happy Jar premises with a pole, and then smashed windows at Lenny’s Records by kicking them. 10 It is convenient first to consider the question whether the sentence is vitiated by reason that, without identifying a reason not to give the appellant the benefit of a 30 per cent discount, the judge applied only a 25 per cent discount to the notional head sentence regarded as appropriate. If so, it will be unnecessary to consider whether the two conceded errors just mentioned are material, and if so whether the appellant, who did not apply to amend his grounds of appeal, can avail himself of them. -- 4 of 11 -- [2025] SASC 163 B Doyle J 3 Discount for a plea of guilty 11 By virtue of the appellant’s early guilty plea, the appellant was entitled to a sentencing discount of up to 30 per cent.1 12 As was recently affirmed in KB v The King,2 when departing from the applicable maximum discount available, a sentencing judge must provide adequate reasons for doing so to ensure that the utilitarian purpose of the statutory scheme is not undermined.3 The Court went on to observe:4 The requirement to give reasons explaining the discount does not mean that the maximum discount should be awarded unless there is good reason not to do so. As was explained in R v Bahrami, such an approach would ‘bias the balancing process in a way not authorised by the text of the provision’.5 However, generally speaking, there will need to be ‘significant countervailing circumstances before a defendant [is] denied the substantial part of the available reduction’.6 13 As has been mentioned, the respondent submitted that I should utilise s 20 of the Sentencing Act, and should not embark on a re-exercise of the sentencing discretion more generally. That section provides as follows: 20—Rectification of sentencing errors (1) A court that imposes, or purports to impose, a sentence on a defendant, or a court of coordinate jurisdiction, may, on its own initiative or on application by the DPP or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order. (2) The DPP and the defendant are both parties to proceedings under this section. 14 The Director of Public Prosecutions is not a party to these proceedings, but that does not appear to have been treated as denying the jurisdiction of the Magistrates Court to utilise s 20 (or its predecessor s 9A of the Criminal Law (Sentencing) Act 1988 (SA)) in summary prosecutions maintained by South Australia Police.7 15 Further, notwithstanding earlier decisions which might have suggested that an appellate court should remit a matter for the sentencing court to rectify a 1 Sentencing Act, s 39(2)(b)(ii). 2 [2025] SASCA 73. 3 [2025] SASCA 73 at [83] (S Doyle, Bleby and David JJA), referring to R v Nguyen [2015] SASCFC 40 at [19] (Nicholson J). 4 [2025] SASCA 73 at [84] (S Doyle, Bleby and David JJA). 5 R v Bahrami (2020) 137 SASR 327 at [46] (Kourakis CJ). 6 R v Davey [2017] SASCFC 151 at [48] (Kourakis CJ, Stanley and Hinton JJ agreeing). 7 Sullivan v Police [2010] SASC 216 at [16] (Kourakis J). -- 5 of 11 -- [2025] SASC 163 B Doyle J 4 relevant error,8 it is apparent that the jurisdiction to rectify errors conferred by s 20 (and its predecessor) may be exercised by an appellate court. 16 In R v Kuci,9 Kourakis CJ, with whom Blue and Lovell JJ agreed, relied on the jurisdiction conferred by the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) (‘Judicial Administration Act’).10 The Court of Criminal Appeal took the same approach in R v Singh.11 17 In R v Hunt,12 Stanley J, with whom Kelly J agreed, said that in R v Kuci, the Court had determined that it was a ‘court of coordinate jurisdiction’ pursuant to s 9A.13 Hinton J agreed that the Court of Criminal Appeal could exercise the power, relying upon s 5(1) of the Judicial Administration Act, and without characterising the appellate court as a court of coordinate jurisdiction. 18 Whilst it might be argued that reliance upon s 5(1) was necessary in R v Kuci because the appellate court was not a court of co-ordinate jurisdiction, in R v Bechara,14 the Court of Appeal adopted the approach taken by Stanley J in R v Hunt.15 For present purposes, the only important point is that it is authoritatively established that the Court of Appeal may itself exercise the jurisdiction conferred by s 20 of the Sentencing Act. It must follow that a single judge may exercise the same jurisdiction in a sentence appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) in an appropriate case. Blue J considered the Court had such a power in Teasdale v Police,16 and was evidently not troubled by the fact that the Director of Public Prosecutions was not a party to the appeal. 19 The power is only appropriately exercised where the true intention of the sentencing judge can be ‘confidently ascertained’ and where the nature of the identified error is technical.17 A miscalculation of a sentencing discount is an appropriate occasion for the exercise of the s 20 power, as R v Kuci shows, but the appellate court must be able to confidently ascertain that the judge did intend to give a particular discount. 8 R v Baldetti [2008] SASC 232 at [10]-[11] (David J, Duggan and Vanstone JJ agreeing). In R v Hussey [2013] SASCFC 41, the sentencing judge had declined to exercise the rectification power and the Court of Criminal Appeal allowed the appeal on the basis of the relevant error, quashed the sentence and imposed what it considered to be the properly-rectified sentence in its stead. 9 [2016] SASCFC 136. 10 [2016] SASCFC 136 at [7] (Kourakis CJ, Blue and Lovell JJ agreeing). 11 [2018] SASCFC 89 at [23] (Bampton J, Kelly and Blue JJ relevantly agreeing). 12 [2018] SASCFC 137. 13 [2018] SASCFC 137 at [35]. 14 [2022] SASCA 37. 15 [2022] SASCA 37 at [19] (Kourakis CJ, Lovell and Doyle JJA). In Johnson (a pseudonym) v The King [2022] SASCA 126 at [49] (Livesey P, Lovell and Bleby JJA), the Court confirmed its capacity to exercise jurisdiction pursuant to s 20 on the basis indicated by Kourakis CJ in R v Kuci without directly addressing whether the Court of Appeal was a court of coordinate jurisdiction 16 [2022] SASC 64 at [44]. 17 R v Singh [2018] SASCFC 89 at [8] (Blue J), R v Bechara [2022] SASCA 37 at [16]-[17] (Kourakis CJ, Lovell and Doyle JJA), The Queen v Perrey [2022] SASCA 51 at [21] (Livesey P and Lovell JA), Johnson (a pseudonym) v The King [2022] SASCA 126 at [50]-[54] (Livesey P, Lovell and Bleby JJA). -- 6 of 11 -- [2025] SASC 163 B Doyle J 5 20 The real question is whether, in the present case, an intention on the part of the magistrate to give a 30 per cent discount can be ‘confidently ascertained’. The respondent relied upon the following remarks made by Blue J in R v Singh:18 In Kuci, the true intention of the sentencing Judge could be confidently ascertained because it is well established that, absent good reason, a sentencing judge should ordinarily allow a discount of or (allowing for rounding) as close as practicable to the maximum allowable under section 10B or 10C in respect of both the head sentence and the non-parole period. In Kuci there was no suggestion that the Judge had reason to do so, or intended to do, otherwise. 21 This observation was not expressly agreed in or adopted by the other two members of the Court. Respectfully, Kuci was not a case in which the sentencing judge’s intention had to be inferred. The sentencing judge explicitly referred to a sentencing discount of 10 per cent, but by a miscalculation ultimately allowed a lower discount which could not be explained on the basis of rounding (either to the nearest week or month, or generally).19 There was no other possible explanation for the sentence but that a miscalculation had been made. 22 In the present case, the magistrate made no explicit reference to a discount of 30 per cent. The sentence imposed was nine months. The magistrate might have miscalculated that nine months involved a thirty per cent discount from a starting point of 12 months, or he may have decided that wielding a broad axe, a nine month sentence was appropriate even though it did not amount to a 30 per cent discount. In my view, this is not a case where the judge’s intention to give a 30 per cent discount can be confidently ascertained. It is possible, perhaps likely, that he made a miscalculation, but I lack the requisite confidence to consider it appropriate to utilise s 20 of the Sentencing Act. 23 In my view, having regard to the principles recapitulated in KB v The King, set out earlier, the unexplained denial of the full benefit of a 30 per cent discount involved a failure to give adequate reasons. A five percent difference is not obviously attributable to rounding, and the impact upon the length of the sentence was not submitted to be de minimis. Unless, in the separate and independent exercise of the sentencing discretion, it should be concluded that no lesser sentence is warranted, the appellant must be resentenced.20 Before turning to consider that question, I briefly address the other appeal grounds. Failure to partially suspend the sentence 24 A person who is liable to serve a term of imprisonment which is less than 12 months in duration cannot be granted parole.21 However, a person who has been 18 [2018] SASCFC 89 at [10]. 19 R v Klodian Pobrati and Anri Kuci, DCCRM-15-536, Sentencing Remarks of his Honour Judge Millsteed delivered on 8 July 2016. 20 Kentwell v The Queen (2014) 252 CLR 601 at [35], [43] (French CJ, Hayne, Bell and Keane JJ), Kola v The King [2025] SASCA 38 at [7] (Lovell and Bleby JJA and B Doyle AJA), R v Kreutzer (2013) 118 SASR 211 at [10] (Kourakis CJ). 21 Sentencing Act, s 47(5)(a)(i). -- 7 of 11 -- [2025] SASC 163 B Doyle J 6 sentenced for a period of more than three months and less than 12 months may be made the subject of a partially suspended sentence.22 25 In Stenecker v Police,23 Kourakis CJ said:24 The option of partially suspending a sentence of imprisonment is a very useful sentencing option in that it combines the specific and general deterrent effects of a period of imprisonment with a subsequent period of rehabilitation and supervision in the community. The utility of [the predecessor provision] of the Sentencing Act has been much enhanced by the capacity to impose a bond which extends beyond the length of the head sentence. 26 He went on to say there was obvious utility in a partially suspended sentence for relatively young offenders who have not previously been imprisoned or subjected to a suspended sentence.25 27 In order to succeed on the appeal ground concerning the magistrate’s failure to partially suspend the sentence on a stand-alone basis, the appellant must demonstrate that the failure to partially suspend the sentence resulted in an outcome that fell outside the range of permissible dispositions.26 28 Whilst not advancing a separate ground of inadequate reasons on this issue, the appellant was critical of the magistrate for not having dealt separately with the question whether there was good reason to suspend the sentence, to partially suspend the sentence or to order a sentence of home detention. Whilst considerations which bear on each stage of the sentencing discretion may carry different weight at each of those stages, so long as it is apparent from the reasons that the relevant considerations have been considered by a sentencing judge, a failure separately to re-evaluate those considerations at each stage will not necessarily disclose a failure to provide adequate reasons.27 In that context it is important to bear in mind the realities of sentencing in a busy court.28 Of course, where there is no mention of partial suspension as an option in sentencing remarks, that is a different matter, and may well involve a failure to give adequate reasons.29 29 Turning to the substance of the matter, the second bracket of offending occurred whilst the appellant was on bail in respect of the charges the subject of the first bracket. And whilst the appellant had not previously had the benefit of a suspended sentence, he did have prior convictions for offences of violence and property damage and had been discharged without further penalty on 13 October 2020 on the basis of having spent time in custody on remand. The magistrate’s 22 Sentencing Act, s 96(4). 23 (2014) 120 SASR 18. 24 (2014) 120 SASR 18 at [14]. 25 [2014] SASC 68 at [15]. 26 Hubbard v Police [2023] SASC 182 at [42] (Kimber J), Turner-Lindsay v Commissioner of Police [2024] SASC 69 at [34] (Stanley J). 27 See, eg, Vanson v The King [2024] SASCA 62 at [34]-[38] (Livesey P, Bleby and David JJA). 28 Turner-Lindsay v Commissioner of Police [2024] SASC 69 at [26]-[28] (Stanley J). 29 Stenecker v Police [2014] SASC 68 at [15] (Kourakis CJ). -- 8 of 11 -- [2025] SASC 163 B Doyle J 7 conclusion that there was not good reason wholly to suspend the appellant’s sentence was therefore unsurprising and, in my view, correct. 30 However, the question whether there was good reason to partially suspend the sentence was more difficult. In my view, the seriousness of offending is a less important consideration where the question is one of partial suspension. If the period of imprisonment exceeds 12 months, partial suspension will be unavailable, but a non-parole period will provide a facility to promote rehabilitation. In my respectful view, it is unlikely that the seriousness of offending which justifies a head sentence of less than 12 months can itself foreclose partial suspension as a suitable sentencing approach. If partial suspension is not to be entertained, it should ordinarily be because there is very little prospect, in the case of the particular offender, of the realisation of the potential benefits identified by Kourakis CJ in Stenecker. 31 In the present case, the respondent submitted that there was no information before the magistrate to permit a finding that the appellant had good prospects of rehabilitation if the sentence were to be partially suspended. There was no information to suggest that the appellant had engaged or had enrolled to engage in any programs in custody or on bail to address his alcohol abuse. 32 That is true, but having regard to the appellant’s relative youth; the fact that his criminal history – whilst not insignificant – was not as serious or persistent as is often encountered; and the family support and pro-social factors emphasised by the appellant’s counsel in submissions before the magistrate, there was at least some prospect of a positive response to a partial suspension. The appellant has six siblings and is part of a close-knit family. He has three young children of his own. He completed year 12 at Henley High School. The appellant is a talented footballer who had played ‘A’ Grade football and wanted to resume playing as a way to maintain sobriety and promote rehabilitation upon his release. 33 In my view, those considerations militate in favour of partial suspension. I would not conclude that they were so overwhelming that a failure to partially suspend the sentence rendered the result outside the range of permissible dispositions. However, as I will explain, re-exercising the discretion, including by reference to events that have occurred since the magistrate’s decision was made, I find there to be good reason to partially suspend the sentence. Section 26(2a)(a) of the Sentencing Act 34 The magistrate did not indicate the notional sentence relevant to each offence, as was required by s 26(2a)(a) of the Sentencing Act. The respondent pointed to the fact that the relevant requirement was a response to a Royal Commission recommendation to a perceived need to provide clarity and certainty, particularly to victims, when sentencing in relation to multiple offences of child sexual abuse.30 30 R v Farquhar [2023] SASCA 98 at [120] (Nicholson J). -- 9 of 11 -- [2025] SASC 163 B Doyle J 8 35 As enacted, the operation of the provision is not as narrow as that mischief may suggest. Compliance with the provision may also enable it to be seen that the facility in s 26 is only deployed in appropriate cases.31 It is not necessary in the present appeal to decide whether, standing alone, non-compliance with s 26(2a)(a) vitiated the sentence. However, in re-sentencing the appellant, I should indicate the sentences that would have been imposed had s 26 not been applied. Considerations relevant to re-sentencing 36 The appellant relied upon the matters that had been put to the magistrate, most of which have been canvassed earlier in these reasons. Reliance was also placed upon the appellant’s Aboriginal background as a matter that may have influenced his attitude towards alcohol and violence.32 37 Importantly, subsequently to being sentenced on 26 May 2025: • the appellant was granted bail pending appeal on home detention conditions on 24 July 2025; • the appellant obtained employment at a barber shop business in the Hilton Plaza Shopping Centre on 31 July 2025 and has been employed on a 9 am – 5 pm basis since that time. 38 According to the owner of that business, Mr Mesologitis, the appellant has impressed, and has enrolled to undertake an apprenticeship within the business. Mr Mesologitis proposes to leave the appellant in charge of the store for a period when he is away in December.33 39 In my view, whereas minds might reasonably have differed about the appellant’s capacity to respond positively to a partially suspended sentence at the time he was first sentenced, the evidence as it now stands points firmly in favour of that capacity. 40 Re-sentencing the appellant, I would emphasise that I broadly agree with the magistrate’s assessment of the offending as serious. In my view the first bracket of offending in August 2024 was inherently more serious in that there were persons in the vehicles the appellant damaged. In particular, the occupants of the Uber vehicle damaged by the appellant were unsurprisingly terrified by the appellant’s erratic and aggressive behaviour. The second bracket of offending in November 2024 was somewhat less serious, but there were three shop premises damaged and the conduct was undertaken whilst the appellant was on bail. 31 In Stenecker v Police [2014] SASC 68 at [27], Kourakis CJ said that the provision should not be used to impose a sentence of imprisonment for a group of offences, one or more of which would not, if dealt with individually, have attracted a period of imprisonment. 32 Relying upon Gaston v Police [2004] SASC 222 at [30] (Gray J), and the authorities there cited. 33 I received as Exhibit A1 a letter from Mr Mesologitis as relevant only in the event that the Court reached the point of re-sentencing. It was not admitted as fresh evidence going to the question whether the appeal should be allowed. -- 10 of 11 -- [2025] SASC 163 B Doyle J 9 41 In respect of the first bracket of offending, I consider that on a standalone basis the first offence warranted a term of imprisonment of four months, and the second offence warranted a term of imprisonment of three months. The two occasions occurred on the same evening and during what was likely a single period of significant intoxication. Allowing for some concurrency leads me to consider that a single sentence, before any reduction for the appellant’s guilty plea, of six months imprisonment, would be appropriate. In that respect I agree with the magistrate. 42 In respect of the second bracket of offending, I consider that each of the three counts of property damage warranted similar treatment, and that two months imprisonment would be appropriate responses to each count. Again, however, they occurred on a single occasion over a short period of time. Allowing for a measure of concurrency, I consider that a period of imprisonment of five months is appropriate. 43 In my view, the two periods of imprisonment I have identified for the two brackets of offending are appropriately to be served cumulatively. The resultant 11 month period should be reduced by 30 per cent on account of the appellant’s early pleas of guilty. That results in a period of imprisonment of seven months and 22 days. 44 Backdated to 24 December 2024, the appellant had therefore served all but approximately three weeks of the sentence that I would impose when he was released on home detention bail on 24 July 2025. 45 There is good reason to suspend the remaining period of the sentence given the positive step recently taken by the appellant in securing full time employment. That development tends to highlight the potential for the objectives of a partial suspension of a sentence to be realised in this case. And it highlights the disruption that would be caused by not suspending the unserved balance of the sentence and by requiring the appellant to re-enter custody. Disposition 46 I would allow the appeal, set aside the sentence imposed by the magistrate and in its place, utilising s 26(1) of the Sentencing Act, I would sentence the appellant to a term of imprisonment of seven months and 22 days, backdated to commence on 24 December 2024. Pursuant to s 96(4)(b), I would suspend the period of 22 days that the appellant has not yet served upon the appellant’s entry into a bond to be of good behaviour for a period of one year. -- 11 of 11 --