R v BRADY [2026] SADC 80

Prosecution: R Counsel: MS G GROSSET - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Applicant: HADLEY LEE BRADY Counsel: MR N VADASZ - Solicitor: VADASZ LAWYERS Hearing Date/s: 18/05/2026, 10/06/2026, 02/07/2026 File No/s: DCCRM-24-009648 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal: Application) 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. R v BRADY [2026] SADC 80 Reasons for Decision of His Honour Judge White 14 July 2026 CRIMINAL LAW - PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES Application for Aboriginal Sentencing Conference pursuant to s 22 of the Sentencing Act 2017, as amended - application opposed by Director of Public Prosecutions. Held: In the circumstances of Mr Brady's trial verdict by jury of guilty for the charge of sexual abuse of a child, application refused. Sentencing Act 2017 (SA) s 22; Criminal Law (Sentencing) Act 1988 (SA) s 9C, referred to. R v Grose (2014) 119 SASR 92; R v Pennington [2015] SASCFC 98; Peters v Police [2014] SASC 192; Maloney v The Queen (2013) 87 ALJR 755, considered. -- 1 of 8 -- -- 2 of 8 -- R v BRADY [2026] SADC 80 1 This is an application by Mr Brady for an Aboriginal Sentencing Conference pursuant to s 22 of the Sentencing Act 2017. Background 2 Mr Brady was found guilty by jury verdict of the charge of sexual abuse of a child. This occurred on 2 March 2026 in the District Court sitting at Port Augusta. The offending is historical. The victim was a young girl who is now a proud and successful Aboriginal woman. 3 He was remanded in custody after the verdict. 4 The matter was listed for submissions on Monday 18 May 2026. On that date Mr Brady was not represented and I spoke with him directly. He appeared from Port Augusta Prison via AVL. 5 He informed me that Mr Vadasz was his new solicitor. Therefore, I continued the hearing once Mr Vadasz was contacted. I permitted him to appear by telephone. 6 Mr Vadasz indicated that he was unavailable to assist the Court that morning due to other commitments. 7 He advised me that he was ‘likely to conduct his appeal’1 but was unaware whether he was instructed regarding the sentencing submissions. The appeal is to be heard on 10 November 2026. 8 On the basis that sentencing submissions would be finalised by him, a fresh date was set for 9.30 am on 10 June 2026. 10 June 2026 9 On 10 June 2026 Mr Vadasz appeared in person with Mr Brady appearing by AVL from Port Augusta Prison. 10 Mr Vadasz indicated two applications, namely: 1. To adjourn the sentencing submissions on the basis that he had yet to receive all documents relevant to the trial. The DPP did not oppose an adjournment. 2. That an Aboriginal Sentencing Conference (‘the Conference’ or ‘a Conference’) be conducted prior to formal sentencing submissions. 1 T4, 18 May 2026. -- 3 of 8 -- [2026] SADC 80 2 11 I indicated to Mr Vadasz my ‘conceptual trouble’2 with a Conference given the circumstances of the conviction for sexual abuse of a child was by jury verdict. 12 I indicated to Mr Vadasz that as Mr Brady did not accept the verdict and used his legal right to appeal against the conviction, the utility of a Conference was difficult to appreciate. 13 As I indicated to Mr Vadasz at that point:3 … if he doesn't accept the verdict, which is his right, and also, his right to appeal the verdict, then I think it cuts across the overall purpose of the s.22 conference, part of which is seeking to heal him through advice from Aboriginal Elders and respected people, if that is an appropriate thing that they think should happen or give advice on. It is not me who is seeking to heal him but if it is appropriate, given the information about matters personal to him and his heritage and upbringing and healing is a part of that, then I can't see how that sits at all with his rights to not accept the verdict and appeal the verdict. 14 After further discussion I was referred to the case of R v Grose (2014) 119 SASR 92. 15 I note that this case was decided under now repealed legislation, namely s 9C of the Criminal Law (Sentencing) Act 1988 (SA), as amended, (‘s 9C’). 16 I do accept, as was submitted by Mr Vadasz, that the current s 22 criteria has a similar basis to the repealed section. However, there are differences that should be recognised, in particular s 22(2). Section 22 of the Sentencing Act 2017 22—Sentencing of Aboriginal and Torres Strait Islander defendants (1) Before sentencing an Aboriginal or Torres Strait Islander defendant, the court may, with the defendant's consent, and with the assistance of an Aboriginal and Torres Strait Islander Justice Officer— (a) convene a sentencing conference; and (b) take into consideration views expressed at the conference. (2) Nothing in subsection (1) is to be taken to require the court to convene a sentencing conference if the court, after taking into account all relevant sentencing purposes, principles and factors, determines not to convene a sentencing conference. (3) A sentencing conference must comprise— (a) the defendant and, if the defendant is a child, the defendant's parent or guardian; and 2 T3, 10 June 2026. 3 T3.16-28, 10 June 2026. -- 4 of 8 -- [2026] SADC 80 3 (b) the defendant's legal representative (if any); and (c) the prosecutor; and (d) if the victim chooses to be present at the conference—the victim and, if the victim so desires, a person of the victim's choice to provide assistance and support; and (e) if the victim is a child—the victim's parent or guardian. (4) A sentencing conference may also include (if the court thinks the person may contribute usefully to the sentencing process) 1 or more of the following: (a) a person regarded by the defendant, and accepted within the defendant's Aboriginal or Torres Strait Islander community, as an Aboriginal or Torres Strait Islander elder; (b) a person accepted by the defendant's Aboriginal or Torres Strait Islander community as a person qualified to provide cultural advice relevant to sentencing of the defendant; (c) a member of the defendant's family; (d) a person who has provided support or counselling to the defendant; (e) any other person. (5) A person will be taken to be an Aboriginal or Torres Strait Islander person for the purposes of this section if— (a) the person is descended from an Aboriginal or Torres Strait Islander; and (b) the person regards themself as an Aboriginal or Torres Strait Islander or, if the person is a young child, at least 1 of the parents regards the child as an Aboriginal or Torres Strait Islander; and (c) the person is accepted as an Aboriginal or Torres Strait Islander by an Aboriginal or Torres Strait Islander community. (6) In this section— Aboriginal and Torres Strait Islander Justice Officer means a person employed by the South Australian Courts Administration Authority whose duties include— (a) assisting the court in sentencing Aboriginal or Torres Strait Islander persons by providing advice on Aboriginal or Torres Strait Islander society and culture; and (b) assisting the court to convene sentencing conferences under this section; and (c) assisting Aboriginal or Torres Strait Islander persons to understand court procedures and sentencing options and to comply with court orders; family includes— -- 5 of 8 -- [2026] SADC 80 4 (a) the defendant's spouse or domestic partner; and (b) any person to whom the defendant is related by blood; and (c) any person who is, or has been, a member of the defendant's household; and (d) any person held to be related to the defendant according to Aboriginal or Torres Strait Islander kinship rules and observances. 17 As I pointed out to Mr Vadasz, my practical experience with both a Conference under the repealed section and a Conference under the current law are that they all occur as a result of guilty pleas or where the essential facts are admitted. This is akin to specialist Aboriginal courts in the Magistrates Court jurisdiction such as the Nunga Court and the Aboriginal Community Courts at Adelaide (‘ACCA’) and Elizabeth (‘ACCE’). I was fortunate enough as a magistrate to conduct the ACCE from 2017 to 2020. R v Grose (2014) 119 SASR 92 18 I refer to this case because, despite it referring to the repealed s 9C, it is still of great importance concerning a Conference pursuant to s 22 of the Sentencing Act. 19 In that case, the Supreme Court was considering an appeal against sentence for a guilty plea for a number of charges including aggravated serious criminal trespass in a place of residence, attempted deception, property damage and two counts of theft. 20 The leading judgment of the retired Justice Gray comprehensively set out the relevant principles concerning offending by Aboriginal and Torres Strait Island offenders, in particular from [28] to [102]. 21 His Honour’s judgment considered the significant decisions of the High Court, the Royal Commission into Aboriginal Deaths in Custody in 1987, the Racial Discrimination Act 1975 (Cth), and the International Convention on the Elimination of all Forms of Racial Discrimination 1966. 22 On that basis, Justice Gray found that a Conference as governed by relevant law ‘may be regarded as conducive to the advancement of equal treatment of Aboriginal people by the sentencing courts, and in light of the facilitative role of s 9C, it cannot be said that this purpose could be achieved by less restrictive means thus satisfying the test suggested by Hayne J’.4 23 His Honour found that the sentencing judge for Mr Grose should have ordered a Conference be convened prior to sentencing submissions. 24 Justices Sulan and Nicholson agreed. 4 Maloney v The Queen (2013) 87 ALJR 755. -- 6 of 8 -- [2026] SADC 80 5 25 I refer to Sulan J’s supporting remarks which I set out:5 I add the following observations. The judge, in determining that he would not order a s 9C conference, appears to have decided that, because a sentence of imprisonment was inevitable, he would not be assisted by convening such a conference. The very fact that the defendant had a troubled past, and that he had continuously reoffended, is a reason for investigating in detail the causes of the defendant’s conduct. The legislation recognises that persons of Aboriginal descent may have issues and factors in their lives which are not necessarily easily understood or revealed in the usual sentencing process. The very purpose of convening a s 9C conference is to assist the sentencing judge in better understanding the factors which may have contributed to an Aboriginal person’s anti-social conduct. The information may provide an insight into the person’s conduct which may not be appreciated by the defendant. A conference which is held in a less formal atmosphere, where the participants are encouraged to discuss matters relevant to their offending and their background in the presence of Elders who are alive to the cultural issues which affect Aboriginal people, may assist the judge in tailoring a sentence appropriate to the offender. (my emphasis) 26 The dilemma that I see here in the request for a Conference is that Mr Brady, in maintaining his stance about the verdict, cannot meaningfully achieve what Sulan J highlighted. 27 Further, should the victim of his offending choose to exercise her right to appear at the Conference, then anything she contributes about the effects of the crime on her by definition cannot be of significance to Mr Brady given he denies the offending despite the verdict. 28 The victim, as earlier mentioned, has requested to be present by AVL at the sentencing submissions where her victim impact statement will be tendered to the Court for me to consider without the content being read out to the Court. Submissions from the DPP 29 Understandably, the DPP carefully considered its stance on the application. As requested by Ms Grosset on 8 June 2026, I gave her time to obtain instructions. Ms Grosset was counsel for the DPP at trial and every hearing since. On 2 July 2026, she announced that:6 The prosecution position remains in line with your Honour's comments that, in the circumstances, a s.22 conference should not be convened for Mr Brady in respect of this matter for the reasons that your Honour indicated on the last occasion, being that he was found guilty by a jury, as it's understood, he does not accept that verdict, and whilst of course it's his right, he's currently appealing that conviction. 30 She referred to the Second Reading Speech for the introduction of the Sentencing Act 2017 which emphasised the ‘clause giving the sentencing court 5 R v Grose at [122] and [123]. 6 T2.4-12, 2 July 2026. -- 7 of 8 -- [2026] SADC 80 6 discretion about whether or not to convene such a conference’.7 I have read the Second Reading Speech. 31 The DPP emphasised the importance of a Conference in general but maintained this particular request on behalf of Mr Brady is opposed in these circumstances. 32 I emphasise again that nobody could provide me with a situation in this Court or any other Court of a person in Mr Brady’s position contesting a verdict who has requested and then been subject to a Conference. Conclusions 33 I acknowledge the importance of a Conference and the benefits to the offenders, courts, and the community in general of them to sentence, including the important factors of rehabilitation and cultural awareness. The circumstances of this situation are vastly different from the many Conferences that I have been involved in, either as a magistrate and now as a judge, given the lack of acceptance of guilt of the crime by Mr Brady. 34 In my experience of them, the circumstances of the crime, together with the long term and short-term reasons that it happened, its effect on the relevant Aboriginal community and the victim are always significant features. Equally significant is the advice from Elders and respected persons to the offender about insight into the offending and the need to seek healing from trauma whether intergenerational or personal or both. All of that, in my view, is not achievable in these circumstances, especially by reference to the remarks of Sulan J at [25] above. 35 I will, and do, acknowledge the fact that Mr Brady is a man from the APY Lands. I will have regard to cases from the Supreme Court such as R v Pennington [2015] SASCFC 98 and Peters v Police [2014] SASC 192 concerning cultural and sentencing issues relevant to the APY Lands community. Orders 36 In light of the above, and in the exercise of my discretion, I refuse the application for a sentencing conference pursuant to s 22 of the Sentencing Act. I will proceed to hear submissions in mitigation of penalty on an appropriate date to be fixed. 7 T3, 2 July 2026. -- 8 of 8 --