MIDZI v ELECTORAL COMMISSION (SA) [2026] SASC 116

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE DAVIS) MCCRM- 24-037428 Appellant: JAISON MIDZI Counsel: MR J WILSON - Solicitor: CALDICOTT AND ISAACS LAWYERS Respondent: ELECTORAL COMMISSION (SA) Counsel: MS R RICHARDSON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 29/05/2026 File No/s: SCCRM-26-006822 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. MIDZI v ELECTORAL COMMISSION (SA) [2026] SASC 116 Judgment of the Honourable Justice Bochner 18 August 2026 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - ELECTIONS - CONDUCT OF ELECTIONS - ELECTORAL OFFENCES This is an appeal against sentence. On 17 February 2025, the appellant was sentenced following his plea of guilty to 10 counts of dishonestly exercising a vote at an election or poll contrary to s 58(1) of the Local Government (Elections) Act 1999 (SA). The Magistrate imposed a head sentence of 18 months imprisonment, with a non-parole period of nine months. The offending arose from the appellant’s conduct between October and November 2022, at which time, he was a candidate in the Local Council Mayoral Election for the City of Marion. Following the scrutiny process at the expiry of the voting deadline, after a series of inconsistences were found in the ballot paper envelopes, the appellant was investigated and later, charged with the offences. The appellant did not dispute the length of the head sentence or non-parole period, instead appealing on the sole ground of manifest excess, in that the Magistrate erred in failing to find good reason to suspend the sentence of imprisonment, or in the alternative, erred in declining to order the sentence be served on home detention. In submitting that the sentence was manifestly excessive, the appellant relied on his previously unblemished history, his charity work, and the public humiliation from negative media reporting, racial abuse, and loss of employment that he suffered as a result of his offending. -- 1 of 14 -- The respondent submitted that the sentence imposed by the Magistrate was proportionate, and that an immediate custodial sentence was within the range of sentences open to the Magistrate. The respondent submitted that the Magistrate took into consideration the appellant’s personal circumstances, and the public interest in maintaining the integrity of the electoral process and was correct in determining that the objective seriousness of the offending required a sentence of immediate imprisonment. The appellant’s conduct is serious and any attempt to pervert the system of democracy must be dealt with severely. However, in refusing to suspend the sentence, the Magistrate overstated the seriousness of this offending when compared with other offences of this kind, and placed insufficient weight on the appellant’s personal circumstances. The Magistrate imposed a sentence that was manifestly excessive. Held: 1. Appeal allowed. 2. The sentence imposed in the Magistrates Court is set aside. 3. The appellant is resentenced to 18 months imprisonment, with a non-parole period of nine months, wholly suspended on his entry into a bond. Local Government (Elections) Act 1999 (SA) ss 5, 15, 37, 47, 58, and 92; Local Government Act 1999 (SA); Magistrates Court Act 1991 (SA) s 42, referred to. R v Hosking (2017) 128 SASR 37; Cromb v The King (2024) 313 A Crim R 194; House v The King (1936) 55 CLR 499, discussed. Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; Hackett v The Queen [2021] SASCA 32; McManus v Police [2019] SASC 206; R v Palmer [2016] SASCFC 34, considered. -- 2 of 14 -- MIDZI v ELECTORAL COMMISSION (SA) [2026] SASC 116 Magistrates Appeal: Criminal 1 BOCHNER J: This is an appeal by Jaison Midzi (“the appellant”) against a sentence imposed by a Magistrate on 17 February 2026 following his plea of guilty to 10 counts of dishonestly exercising a vote at an election or poll contrary to s 58(1) of the Local Government (Elections) Act 1999 (SA) (“the LGE Act”). The offending arose from the appellant’s conduct between October and November 2022, at which time, he was a candidate in the Local Council Mayoral Election for the City of Marion. He was sentenced to an immediate custodial sentence of 18 months imprisonment, with a non-parole period of nine months. The appellant has now appealed that sentence on the sole ground that it is manifestly excessive. Factual background 2 The factual basis of the appellant’s offending is not contested between the parties. 3 In accordance with s 5 of the LGE Act,1 the periodic elections to determine membership of each council constituted under the Local Government Act 1999 (SA) are held at intervals of four years. The appellant was a candidate in the 2022 Marion City Council Mayoral election. 4 Nominations for candidates seeking to run for election closed on 6 September 2022. A candidate handbook was produced and made available to nominees, which outlined important information for the election and included information on illegal practices. On 26 August 2022 the appellant’s nomination for candidacy was accepted. At the close of nominations, each of the candidates was emailed a letter confirming the candidates in the election, and a copy of the legislative framework to electoral material and illegal practices. 5 In accordance with s 37 of the LGE Act, the election was conducted via a postal vote. This involved a process where ballot papers were to be delivered by post to electors. To exercise a valid vote, electors were required to fill out the ballot papers in accordance with the enclosed voting guide, which included writing their name and date of birth on the ballot paper and signing the ballot paper envelope. The roll of voters is maintained pursuant to s 15 of the LGE Act, and, at the time of the offending, there were 68,556 electors on the electoral roll for the Mayoral election in the City of Marion. 6 After the expiry of the voting deadline, on 10 November 2022 at 5:00 p.m., a total of 20,521 ballot paper envelopes was returned, all of which were subject to a scrutiny process pursuant to s 47 of the LGE Act. On 12 November 2022, the 1 Local Government (Elections) Act 1999 (SA) (version 7.7.2022 to 10.12.2025). -- 3 of 14 -- [2026] SASC 116 Bochner J 2 count for the Mayoral election concluded; the appellant received 2,695 first preference votes (amounting to 14.0 per cent of the total vote). On 3 November 2022, during the initial scrutiny process, it was observed that a number of ballot paper envelopes appeared to have been submitted using similar handwriting, using a similar pen, and without a date of birth on the declaration. As a result, an investigation pursuant to s 92 of the LGE Act was commenced by the Electoral Commissioner. 7 The South Australian Electoral Commission (“the respondent”) then began a process of isolating those ballot paper envelopes which did not include a date of birth, which became the subject of a further scrutiny process. In total, 495 ballot paper envelopes became the subject of further scrutiny, and of those: • 365 were rejected from the vote and 130 were admitted; • 334 of the rejected ballot paper envelopes were from three (of the six) wards in the City of Marion, in particular, within a concentration from certain streets and from certain unit blocks within those streets; • 78 of those ballot paper envelopes became the subject of further analysis; Of those 78 ballot paper envelopes: • 77 contained mayoral ballot papers which had the appellant marked with “1” as the preferential vote; • 51 of the electors provided statements, in which they stated they had not received their ballot voting papers and did not participate in the vote; • One related to an elector who was deceased; • Where statements were not obtained, the signatures of the electors were found not to match the electoral records; • Samples were taken from the seal of 34 of the ballot paper envelopes; DNA sufficient for further analysis was obtained from ten. Eight of the ten samples contained DNA matching the DNA profile of the appellant; and • 35 were tested for fingerprints and returned fingerprints belonging to the appellant. 8 The appellant was originally charged with 26 counts contrary to s 58(1) of the LGE Act. He entered guilty pleas to 10 counts, representative of the entire course of conduct in this matter and was sentenced on 17 February 2026. -- 4 of 14 -- [2026] SASC 116 Bochner J 3 The Magistrate’s remarks on penalty 9 The Magistrate delivered ex tempore remarks on penalty.2 He noted the appellant’s guilty pleas and the maximum penalty for the offence, and provided a summary on the circumstances of offending. 10 The Magistrate considered the appellant’s personal circumstances: he is 46 years of age, was born in South Africa and came to Australia with his wife in 2009. He is still married and has three daughters aged, 10, 13 and 20. He obtained a Bachelor of Science in Nursing and has worked as a Registered Nurse, and as a part-time lecturer, and contributes substantially to the community, working as a volunteer for approximately 30 hours per week. 11 The Magistrate noted the appellant’s work as a volunteer and his contribution and personal service to the community, and considered the “glowing and heartfelt references” which attested to the appellant’s “commendable, strong desire to serve the community generally but also within the African community, in particular youths”.3 He observed:4 I make it clear that, apart from this offending, you have conducted yourself with integrity and honour your whole life and have and still enjoy a very high standing within the community. 12 Consideration was given to the fact that the appellant expressed deep regret and felt ashamed of, and deeply remorseful for, his offending, particularly because of the public embarrassment that has come as a result, and the effect it has had on his family. The Magistrate also considered the submission that the motivation for the offending was an attempt to minimise the embarrassment of the appellant’s receiving a low vote in the election. On this topic he said:5 I note the submission that your reason for committing these offences was to lessen the embarrassment of losing by a large margin. However, you have, ironically, suffered far more embarrassment from the offending itself than you stood from turning out a true (that is, accurate) but lower, vote. I accept that this publicity over a lengthy period has taken a personal toll on you and your family. I accept that you are ashamed and embarrassed, and it has been put by Mr Wilson that this reduces the need for personal deterrence, as the media interest in this matter adds to the public denunciation of your conduct and also to the punishment you have or will receive. 13 The Magistrate then turned to the nature of the offending. He acknowledged that the appellant knew he had no “chance” of being elected as mayor, and that 2 Ex Tempore Remarks on Penalty of Magistrate Davis delivered 17 February 2026 (MCCRM-24- 037428). 3 Ibid, 3-4. 4 Ibid, 2. 5 Ibid, 4. -- 5 of 14 -- [2026] SASC 116 Bochner J 4 although the conduct may have been an attempt to “save face”, it was no excuse as there had been a clear attempt to influence the election. 14 His Honour disagreed with the position that, taking into account the mitigatory factors, including the appellant’s lack of prior offending and negligible to zero risk of reoffending, a sentence of imprisonment was not the only appropriate penalty. He found that the offending was not isolated, in that it was not undertaken as an independent lapse of judgement; it was planned and systematic and the appellant did not desist despite there being multiple opportunities to do so. Notwithstanding the personal factors, the Magistrate considered the offending serious. He said:6 Your offending was pre-planned and brazen. It necessitated sneaking into letter boxes, taking ballot papers, falsifying voting slips and signatures, then posting or placing them into the electoral machinery system. You had the goal of maximising your votes, developing a plan and system to achieve it, which you executed. I agree with the prosecution submission that your offending was systematic, planned and widespread, noting that you went to a number of different addresses. It may be trite or obvious, but it needs to be clearly said, that a hallmark of society’s democratic system of Government at all tiers and levels, including local 5 councils, is the holding of free and fair elections. Your offending strikes at or tugs away at the shared social fabric of the public’s trust in Institutions, including local Council elections and associated electoral processes, not to mention the rule of law more broadly. The public expects, and deserves, that elections will be free and fair in every way and, consequently, there is a strong need for general deterrence in this matter. You of all people, having previously stood for public Office, would have known this full well. It is clear, and I infer, that you used your knowledge of the local government electoral system in an attempt to flaunt its operation. Further, his Honour gave considerable weight to the sentencing consideration of deterrence, particularly for offending that involved an attempt to undermine the integrity of the democratic process, when he said:7 Your sentence should send a strong message to would-be like offenders and provide assurance to the community that such offending will be dealt with in an appropriate manner. 15 He found that offences of this nature are to be dealt with seriously and that interference with elections should carry a significant punishment, as they are a fundamental characteristic of our democratic society. 16 In his reasons, the Magistrate found that there was no good reason to suspend the sentence and that the making of an order of home detention may affect public confidence in the administration of justice. 6 Ibid, 4-5. 7 Ibid, 5. -- 6 of 14 -- [2026] SASC 116 Bochner J 5 17 Convictions were recorded and the appellant was sentenced to 20 months imprisonment, reduced by 10 per cent to 18 months in consideration of his guilty pleas. A non-parole period was set for nine months, which the Magistrate referred to as “lower than usual”.8 18 The appellant appeals on the sole ground that the sentence imposed was manifestly excessive, in that the Magistrate erred in failing to find good reason to suspend the sentence of imprisonment, or in the alternative, erred in declining to order that the sentence be served on home detention. The appellants’ submissions 19 I note at the outset that the appellant does not complain about the length of the head sentence or the non-parole period. His complaint is about the refusal of the Magistrate to entertain a suspended sentence or home detention. 20 The appellant accepts that, in order for him to be successful on this appeal, he must demonstrate that the sentence imposed was not reasonably open on the facts of the matter, and was unjust having regard to the circumstances of the offending, and his personal circumstances. He says that, in refusing to suspend the sentence or ordering that it be served on home detention, the Magistrate imposed a sentence that was manifestly excessive and not reasonably open to him. I note that there is no dispute between the parties as to the factual findings made by the Magistrate or as to the principles to be applied. 21 The appellant submits that a suspended sentence remained a serious penalty, and, in the circumstances of the offending in this case, would operate as a significant punishment to him and general deterrence. He says that it is appropriate to suspend the sentence of imprisonment where the offence is of sufficient seriousness to warrant a term of imprisonment but not so serious as to preclude suspension, taking into account his personal circumstances. 22 As to home detention, the appellant understands that there is no suggestion that he is not a person suitable to serve his sentence on home detention; rather, the Magistrate formed the view that an order that he serve his sentence on home detention would undermine public confidence in the administration of justice. He notes that a sentence to be served on home detention is regarded as more serious than a suspended sentence. 23 In submitting that it was unreasonable or plainly unjust not to suspend the sentence or order that it be served on home detention, the appellant relies on his previously unblemished history, the charity work that he has undertaken, and the public humiliation through negative media reporting, racial abuse, and loss of long standing employment that he has suffered as a result of his offending. This is sufficient punishment to satisfy the need for deterrence, both personal and general. Further, he notes that the offending itself was unsophisticated, and, on a continuum 8 Ibid, 6. -- 7 of 14 -- [2026] SASC 116 Bochner J 6 of objective seriousness, was at the lower end of the spectrum. There was no prospect of its affecting the outcome of the election. It was very rudimentary in nature. The Magistrate accepted that his risk of reoffending was negligible. 24 The appellant accepts that his offending was not isolated in nature; nonetheless, this does not mean that an immediate custodial sentence is the only appropriate sentence. In making this submission, the appellant relied on the decision of Blue J in R v Hosking, where he said: 9 It may be appropriate to suspend a sentence of imprisonment when the offending circumstances are sufficiently serious as to require a sentence of imprisonment but not so serious as to preclude there being good reason to suspend that sentence. It may be appropriate to suspend a sentence of imprisonment as a result of greater relative weight being given to the defendant’s personal circumstances (vis a vis the offending circumstances) at the suspension stage compared to the head sentence stage. Usually it will be a combination of these two matters, weighing the offending circumstances with the personal circumstances. Ultimately, however, if the offending circumstances are sufficiently serious, there will not be good reason to suspend the sentence however favourable be the defendant’s personal circumstances. (footnotes omitted) 25 The appellant also relied on similar remarks made by Blue J with respect to home detention,10 and submitted that home detention would give appropriate effect to the need for general deterrence, and to maintain public confidence in both the administration of justice and the electoral process. The appellant accepted the statement of the Court of Appeal in Cromb v The King that the personal circumstances of the offender must be balanced against the gravity of the offending;11 he submitted, however, that in this case, the circumstances of the offending are not so serious as to outweigh the positive personal circumstances in his favour. 26 The appellant submits that the lack of sophistication of the conduct is a relevant circumstance, in that it demonstrates that the offending was at the lower end of the spectrum in terms of seriousness. It was highly likely to be detected and had no prospect of influencing the outcome of the election. Given this, and taking into account the personal circumstances in his favour, the appellant submits that, if the sentence imposed by the Magistrate is found not to be plainly unreasonable or unjust, it must lead to the conclusion that for like offences, an immediate sentence of imprisonment must be imposed where there are multiple counts of offending. He further submits that the maximum penalty for this offence indicates that there was no intention that a first offender with no previous criminal history would be subject to a penalty of immediate imprisonment. Further, the length of sentence imposed by the Magistrate falls squarely within the length of sentence appropriate for home detention. 9 (2017) 128 SASR 37, [50]. 10 Ibid, [59]-[60]. 11 (2024) 313 A Crim R 194, [98]. -- 8 of 14 -- [2026] SASC 116 Bochner J 7 The respondent’s submissions 27 The respondent says that the sentence imposed by the Magistrate was proportionate. It was not manifestly excessive, as a result of which the appeal ought to be dismissed. The sentence was within the permissible range of sentences open to the Magistrate and so cannot be characterised as unreasonable or manifestly unjust. As the imposition of a sentence is an exercise of discretion, an appeal court should not intervene merely because of a different opinion as to the weight to be placed on certain factors, or the ultimate sentence to be imposed. 28 In refusing to suspend the sentence, the Magistrate was required to weigh the seriousness of the offending against relevant mitigating factors. Ultimately it is a matter for the Magistrate to decide whether there is good reason to suspend a sentence. Similarly, it is a matter for the Magistrate to determine whether offending is so serious that suspension must be refused, but not so serious as to reject home detention. Taking those matters into account, the respondent says that an immediate custodial sentence was within the range of sentences that the Magistrate could reasonably impose. 29 The respondent says that, as the appellant had pleaded guilty to multiple counts that were representative of a course of conduct, he was not entitled to the leniency that he may have been entitled to had the offending been an isolated incident. In assessing the appellant’s moral culpability, the Magistrate was entitled to take into consideration all of the surrounding circumstances of the offending. 30 The respondent says that it is clear from the sentencing remarks that the Magistrate appropriately took into consideration the appellant’s personal circumstances, including his employment, lack of criminal history, his previous high standing in the community, his volunteer work and service to the African community and his shame and remorse. The Magistrate also, appropriately, accepted that his prospects of rehabilitation were good and that there was little risk of his reoffending. Nonetheless, the Magistrate considered that the objective seriousness of the offending outweighed the positive personal circumstances in his favour. In particular, the respondent pointed to the premeditated and calculated nature of the offending, its widespread nature, the appellant’s failure to desist despite multiple opportunities to do so, the fact that the offending was an attempt to undermine the democratic process and the appellant’s familiarity with the election process. 31 The respondent emphasised the need for general deterrence. In considering the public interest in maintaining the integrity of the electoral process, the Magistrate was correct to determine that the objective seriousness of the offending required a sentence of immediate imprisonment, rather than a suspended sentence or home detention. -- 9 of 14 -- [2026] SASC 116 Bochner J 8 32 The respondent submits that the appellant has not demonstrated an error of the type described in House v The King.12 It is not sufficient to demonstrate that it was open to the Magistrate to suspend the sentence or order that it be served on home detention. In the circumstances, it cannot be said that the refusal to suspend the sentence or impose a sentence of home detention was unreasonable or plainly unjust. Consideration 33 This appeal has been brought pursuant to s 42 of the Magistrates Court Act 1991 (SA), and is by way of rehearing. The principles which govern a complaint of manifest excess are well canvassed,13 and are largely not in dispute between the parties. The circumstances in which this Court can intervene are limited. This was explained in Markarian v The Queen, where Gleeson CJ, Gummow, Hayne and Callinan JJ stated:14 As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”. (footnotes omitted) 34 In Hackett v The Queen, the Court of Appeal described the nature of an appeal such as this in the following way: 15 The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion. 12 (1936) 55 CLR 499. 13 Ibid, 504-5. 14 [2005] HCA 25; (2005) 228 CLR 357 at [25]. 15 [2021] SASCA 32, [8]-[9]. -- 10 of 14 -- [2026] SASC 116 Bochner J 9 The appellant contends that this is a case of an outcome error rather than a specific error in the sentencing process. Consequently, the basis of the present appeal is that the sentence imposed was unreasonable or unjust, warranting the intervention of this Court. (footnotes omitted) 35 The question for this Court to determine in this appeal is whether an immediate custodial sentence was unreasonable or manifestly excessive, and whether the Magistrate erred in imposing such a sentence. 36 The Magistrate outlined at some length the personal circumstances of the appellant. In particular, he said: 16 … you have conducted yourself with integrity and honour your whole life and have and still enjoy very high standing within the community. He went on to describe the appellant’s volunteer work in his community as “incredible work”.17 As to the volunteer work, the Magistrate elaborated: 18 You contribute heavily to the community working as a volunteer for approximately 30 hours a week. This is really commendable, and I refer to the glowing, heartfelt references that are just so positive about you and your personal service to the community, in particular new arrivals to Australia from Africa and the wider African community, people, particularly young people who are at risk of offending and falling through the cracks of society. 37 In considering whether to suspend the sentence, the Magistrate took into account the seriousness of the offending. I note that he considered that the offending was serious, in that it was systematic, planned and widespread. He described it as “pre-planned and brazen”.19 He said: 20 Your offending strikes at or tugs away at the shared social fabric of the public’s trust in Institutions, including local Council elections and associated electoral processes, not to mention the rule of law more broadly. 38 The Magistrate indicated that the sentence imposed should send a message to the community, both to deter offending of this type, and to reassure the community that such offending is dealt with appropriately by the courts. Similarly, he declined to order that the sentence be served on home detention, as such an order might affect public confidence in the administration of justice.21 16 Ex Tempore remarks on Penalty of Magistrate Davis delivered 17 February 2026 (MCCRM-24- 037428), 2. 17 Ibid, 3. 18 Ibid, 3. 19 Ibid, 4. 20 Ibid, 5. 21 Ibid, 6. -- 11 of 14 -- [2026] SASC 116 Bochner J 10 39 In the case of McManus v Police, Bampton J described the purposes behind the sentencing of offenders: 22 The Sentencing Act prescribes that the primary purpose for sentencing a defendant for an offence is to protect the safety of the community. Protection of vulnerable young persons is a paramount consideration. The secondary purposes are to ensure [the defendant] is punished and held accountable, to publicly denounce his conduct, to publicly recognise the harm done to the victim, to provide personal and general deterrence, and to promote his rehabilitation. 40 While the offence in that case was markedly different to that considered here, I consider that these remarks remain apposite. In particular, in considering whether the sentence imposed was unreasonable or manifestly excessive, I must consider the need to protect the community, as well as the need to punish the appellant for his conduct and the need to provide personal and general deterrence. 41 In R v Palmer, Stanley J discussed the principles to be applied in determining whether a sentence is manifestly excessive. He said: 23 I turn to consider the ground that the head sentence and non-parole period are manifestly excessive. In The Queen v Morse King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender. To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing Judge. In Hili v The Queen French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said: “… appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say in Wong, ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that ‘the sentence imposed in these matters is so far outside the range of sentences available that there must have been error’”. [Citations omitted]. 42 When these matters are taken into consideration, I am of the view that the sentence imposed by the Magistrate is manifestly excessive. 22 [2019] SASC 206, [39]. 23 [2016] SASCFC 34, [20]-[21]. -- 12 of 14 -- [2026] SASC 116 Bochner J 11 43 The maximum sentence for the offence of dishonestly exercising a vote at an election or poll is imprisonment for one year, or a fine of $5,000.00. It is immediately apparent that a sentence of imprisonment is not inevitable following conviction. The Magistrate could have chosen to impose a fine rather than imprisonment. I accept that it was open to the Magistrate to impose a penalty of imprisonment, given the nature of the offending. I further accept that the appellant’s conduct is serious, and that any attempt to pervert the system of democracy must be dealt with severely. I am of the view, however, that in refusing to suspend the sentence, the Magistrate overstated the seriousness of this offending when compared with other offences of this kind, and placed insufficient weight on the appellant’s personal circumstances. 44 I address first the seriousness of the offending when compared to other offences of this kind. The Magistrate described the offending as “pre-planned and brazen”, “sophisticated” and “outrageous” while also describing it as “unsophisticated” to a degree.24 I consider that he was in error to describe the offending as sophisticated, when it is clear that there was no likelihood that it would escape detection or influence the outcome of the election in any meaningful way. The very nature of the offending demonstrates that this is not the case. None of the votes cast by the appellant supplied dates of birth, as required. All were obviously filled out by the same person, with no attempt to disguise handwriting or signatures. The same or similar pen was used for each ballot paper. Nor was there any attempt to prevent his fingerprints or DNA from being present on many of the ballot papers. This seems to me to be the very opposite of sophisticated offending. It also throws into doubt the level of pre-planning that went on prior to the commission of the offences. Even if it had gone undetected, there is no suggestion that his offending would have altered the outcome of the election in a material way. 45 Taking all of those factors into account, I consider that the appellant’s offending was at the lower end of the scale of seriousness. It was easily detected, had no prospect of passing unnoticed, and had no likelihood of affecting the outcome of the election, even if it had not been detected. 46 I turn now to the appellant’s personal circumstances. He has a long history of volunteer work for his community and before the Court are personal references which attest to the high regard within which he is held in the community and the significant contribution that he has made since his arrival in Australia. Indeed, the Magistrate described his work as a volunteer as “incredible” and “really commendable”.25 He is ashamed, embarrassed and deeply remorseful for his offending. The media coverage of his offending has brought great shame to himself and his family. He has no prior criminal history. The Magistrate described his risk of reoffending as “negligible to zero”.26 In the circumstances, I consider 24 Ex Tempore Remarks on Penalty of Magistrate Davis delivered 17 February 2026 (MCCRM-24- 037428), 4-5. 25 Ibid, 3. 26 Ibid, 4. -- 13 of 14 -- [2026] SASC 116 Bochner J 12 that, when the seriousness of the offending is weighed against the appellant’s previously exemplary history (in both the criminal and personal sense) there is good reason to suspend the sentence. 47 I turn now to address the purposes of sentencing. It is clear that there is no danger to the community that the appellant will reoffend. This was accepted by the Magistrate. The recording of a conviction and a sentence of imprisonment is a serious punishment and amounts to significant public denunciation of his conduct. The loss of his employment and the very significant public humiliation that he has suffered will serve as both a personal and general deterrent, to him and to any other person considering engaging in similar conduct in the future. I do not consider that suspending the sentence of imprisonment in any way diminishes this. A conviction and a suspended sentence remain significant punishments and ones that will have an impact on the appellant’s life going forward. 48 I consider that in refusing to suspend the sentence, the Magistrate imposed a sentence that was manifestly excessive, and outside the range of sentences reasonably available, taking into account all of the circumstances of this case. 49 I would allow the appeal. I would set aside the sentence imposed by the Magistrate and in lieu thereof, fix a sentence of 18 months imprisonment (calculated on the same basis as that imposed by the Magistrate) with a non-parole period of nine months, wholly suspended on his entry into a bond in the amount of $500, to be of good behaviour for a period of 18 months, with the following conditions attached: 1. That he be of good behaviour and comply with all of the conditions of the bond; 2. That he be under the supervision of a Community Corrections Officer for a period of 12 months and obey the lawful directions given to him by the Community Corrections Officer to whom he is assigned for the purposes of supervision; 3. That he report, within two working days of having signed this bond, at the offices of the Department of Correctional Services 4. That he abstain from using drugs and alcohol, other than drugs legally prescribed to him; 5. That he submit to tests, including those without notice, relating to drug and alcohol use as the Community Corrections Officer may reasonably require. -- 14 of 14 --