Cox v The King; R v Cox - [2023] SASCA 43

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
COX v THE KING; R v COX
[2023] SASCA 43
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
21 April 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
On 9 September 2022, following guilty pleas, the applicant was sentenced for one count of aggravated threatening life, contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Count 4) and one count of aggravated assault, contrary to s 20(3) of the CLCA (Count 5). The aggravating circumstance alleged in relation to both offences was that the applicant was in a relationship with the victim at the time of the offending.
The sentencing Judge imposed a single penalty for both counts pursuant to s 26 of the Sentencing Act 2017 (SA). The applicant was sentenced to four years and nine months imprisonment, reduced by five per cent on account of his guilty pleas to four years, six months, and five days. A non-parole period of two years and eight months was fixed. Both the head sentence and the non‑parole period were backdated to commence on 29 October 2020, when the applicant was taken into custody. An intervention order, with conditions, was also imposed.
The sentencing Judge found that there was not good reason to suspend the sentence, either wholly or partially, and declined to make a home detention order.
The applicant now appeals against the sentence on the following grounds:
1.The sentencing Judge erred by failing to consider, and afford, any concurrency of the notional head sentences for each count.
2.The sentence was manifestly excessive.

The appeal is the subject of a cross-appeal brought by the Director of Public Prosecutions (‘the Director’). The Director contends that the sentence imposed is manifestly inadequate. The Director does not pursue the cross-appeal if the applicant is refused permission to appeal on either ground.
The applicant seeks an extension of time to bring this appeal pursuant to r 193.1 of the Joint Criminal Rules 2022 (SA).
Held, per the Court, granting an extension of time to file the notice of appeal, refusing permission to appeal on both grounds, dismissing the appeal and dismissing the Director’s cross-appeal:
1.The sentencing Judge did not err in considering that, had separate sentences been imposed, the sentences should be served cumulatively with no order for complete or partial concurrency.
2.The sentence was within the permissible range and was not manifestly excessive.

Criminal Law Consolidation Act 1935 (SA) ss 19(1), 20(3); Criminal Law (Sentencing) Act 1988 (SA) s 18A; Joint Criminal Rules 2022 (SA) r 193.1; Sentencing Act 2017 (SA) ss 26, 26(2a), referred to.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; Hili v The Queen (2010) 242 CLR 520; R v Copeland (No 2) (2010) 108 SASR 398; R v Major (1998) 70 SASR 488; R v Symonds [1999] SASC 217; Trott-Dan v The King [2023] SASCA 2; White (A Pseudonym) v The Queen [2022] SASCA 78, discussed.
Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; Mill v The Queen (1988) 166 CLR 59; Nguyen v R (2016) 256 CLR 656; R v Nixon (1993) 66 A Crim R 83, considered.

COX v THE KING; R v COX
[2023] SASCA 43
Court of Appeal – Criminal: Livesey P, Bleby & David JJA

THE COURT: On 9 September 2022, following guilty pleas, the applicant was sentenced in respect of one count of aggravated threatening life, contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) (Count 4) and one count of aggravated assault, contrary to s 20(3) of the CLCA (Count 5). In relation to Count 4, the maximum penalty is 12 years imprisonment and for Count 5, three years imprisonment.[1] The aggravating circumstance alleged in relation to both offences was that the applicant was in a relationship with the victim at the time of the offending.
[1] Criminal Law Consolidation Act 1935 (SA) ss 19(1), 20(3).
The applicant was sentenced to four years and nine months imprisonment, reduced by five per cent on account of the applicant’s guilty pleas to four years, six months, and five days. A non-parole period of two years and eight months was fixed. Both the head sentence and the non-parole period were backdated to commence on 29 October 2020, when the applicant was taken into custody. An intervention order, with conditions, was also imposed.
The applicant now appeals against his sentence on the grounds that the sentencing Judge erred by failing to consider, and afford, any concurrency of the notional head sentences for each count (Ground 1); and the sentence was manifestly excessive (Ground 2).
The appeal is the subject of a cross-appeal brought by the Director of Public Prosecutions (‘the Director’). The Director contends that the sentence imposed is manifestly inadequate. However, the Director does not pursue his appeal should the applicant not receive permission to appeal on either ground.
The applicant seeks an extension of time to bring this appeal pursuant to r 193.1 of the Joint Criminal Rules 2022 (SA) (the Rules).
The question of permission to appeal on Grounds 1 and 2 was referred to this Court for consideration.
For the reasons that follow, we grant an extension of time, refuse permission to appeal on both grounds and dismiss the appeal. Consequently, we also dismiss the Director’s cross-appeal.
Circumstances of the offending
At the time of the offending, the applicant had been in a domestic relationship with the victim for approximately 11 years. It was common ground that the offending was committed in the context of other uncharged unlawful conduct against the victim, namely: a choking incident in 2010; an occasion where the applicant threatened the victim and then cut her face, near her eye, with a pair of scissors during an argument about the applicant’s drug use in January 2019; and an occasion where he threatened to throw boiling water over her in May 2019.
Further, on 27 October 2020, the day prior to the offending, the applicant became angry after being discharged from the Royal Adelaide Hospital without receiving medication he had requested to treat shoulder pain. After being escorted out of the hospital by security, the applicant returned with the victim to their home. Once there, he yelled at the victim, blaming her for the hospital staffs’ refusal to provide him with the medication. He proceeded to lock the screen door of their home and told the victim that she was his ‘hostage.’ He told her that she was not going anywhere and said ‘[t]he only way you are getting out of here is when I cut off your head and send it to your mother’. He then pushed her into a bedroom and told her to stay there. When the victim asked to use the toilet, he grabbed her by her ponytail and pushed her toward the toilet.
At about 11:00pm, the applicant fell asleep. The victim did not leave her home as she was fearful that he would come after her. He woke up at around midnight and, when the victim told him she was going to bed, he said he was going to watch her so that she did not leave. He then proceeded to wake her up several times throughout the night, telling her she was not allowed to fall asleep. That uncharged conduct was not disputed.
The charged offending occurred the following day, on 28 October 2020. The applicant was under the influence of alcohol, cannabis, and pain medication. During the day, the victim left the house and travelled to the local shopping centre to purchase some groceries and medication for the applicant. When she returned home, he locked the door and said, ‘that’s the last time you’re going to see the light’. He then left the premises to purchase a 10-pack of alcoholic cider.
Upon his return to the house, the applicant smashed the letterbox. This caused a neighbour to check on the victim’s welfare. The applicant then told the victim that he was going to drink the entire pack of cider, take all his medication and then kill her (Count 4). By his guilty plea, the applicant admitted intending to place the victim in fear of her life; she believed that he would carry out his threat to kill her.
At around 6:30pm, the victim told the applicant she was going to make dinner; he responded by saying that she would not be eating, everything in the house belonged to him, and that she was not allowed to leave the house. He said: ‘… [t]he only way you’re leaving this house is in a black garbage bag after I cut you up and kill you’. The applicant then grabbed the victim by her hair and pushed her head into the loungeroom wall. She told him to stop and in reply he said, ‘I won’t stop until the last breath of air comes out of your mouth’.
The victim then called her brother, Greg Nixon, and asked for help. Mr Nixon subsequently telephoned the victim’s friend, Dylan Thiele, who later received numerous text messages from her asking for help. At around 9:30pm, Mr Thiele called the victim. During that phone call, Mr Thiele overheard the applicant say that if she left the house, he would slit her throat. At about 10:30pm, Mr Thiele received a further text message from the victim asking for help, at which point he called the police.
At about 11:00pm, the applicant asked the victim where her brother was and said ‘[i]f it’s not Greg it’ll be you. All I wanna see is the blood all over these walls, your blood. I will be happy when I see your blood’. The victim went to lay down on the lounge, but the applicant refused to let her sleep until her brother was brought to the house. He proceeded to grab the victim’s head and yell at her repeatedly ‘[d]o you hear me?’. This caused the victim to become lightheaded. He then picked her up by her throat using his left hand, pushed her against a wall and began smashing her head into the wall. She was unable to breath or swallow. The applicant continued to apply pressure to the victim’s neck for approximately one minute (Count 5).
While continuing to choke the victim, the applicant hit her head into a wall and said, repeatedly, ‘[y]ou’re gonna keep gasping for air, I’m going to kill you’. The victim was eventually able to push him way. He headbutted her, grabbed her by the head and squeezed on both sides.
Police arrived at the house at around 11:30pm. The victim was taken to Mr Thiele’s home where she was interviewed by police and then transported to the Modbury Hospital. The applicant was arrested in the early hours of the morning on 29 October 2020. He has been remanded in custody since that date.
The offending has had a significant impact on the victim resulting in a deterioration in her mental health. She has also experienced difficulties sleeping and recurrent nightmares. She is hypervigilant and fearful for her safety, both within her own home and in public. She has difficulty trusting new people and often becomes angry for no reason. Her family continues to fear for her safety.
The applicant’s personal circumstances
At the time of sentencing, the applicant was 39 years old. He was born in Launceston, Tasmania and his parents separated when he was about eight years old. His mother struggled with alcohol and drug issues and died when he was 13 years old. After his mother’s death, the applicant divided his time between living with his father in Melbourne and with his grandmother in Tasmania. His father died when he was 25 years old.
The applicant has a sister with whom he has no contact and a son from a previous relationship. He also shares a daughter with the victim, who was 10 years old at the time of sentencing; she is currently in the care of the Department of Child Protection.
As to the applicant’s relationship with the victim, they met online in 2010, after which time the victim arranged for the applicant to move from interstate to Port Pirie. He commenced a relationship with the victim shortly thereafter and, at the time of the offending, they had been together for approximately 11 years. Their relationship was an unhappy one, tainted by illicit drug use by both parties. In the middle of 2010, they moved to Adelaide after an incident where the applicant was violent toward the victim in the presence of her children from another relationship. Since 2014, those three children have been in the care of the Department of Child Protection.
At the time of the offending, the applicant was working for an engineering company. Whilst in custody, he has been working as a sweeper and as a cleaner in a bakery. He has also made pallets and clothes lines while in prison.
In about 2015, the applicant sustained a shoulder injury which required reconstruction. As a result of the pain induced by that surgery, he began taking pain medication, together with cannabis and alcohol. Counsel submitted to the sentencing Judge that the offending occurred in the context of his intoxication and could be characterised as an impulsive act. It was also submitted that the applicant has been diagnosed with bipolar disorder and schizophrenia, for which he is currently taking Seroquel. However, there were no medical reports tendered in support of that medical diagnosis.
The applicant has a history of prior offending, albeit committed some time ago. In 2005, he was convicted of common assault. In 2008, he was charged with five counts of intentionally damaging property and criminal damage in Victoria, for which the court proceeded without conviction. In 2010, he was convicted of one count of common assault and one count of threatening to damage or destroy another person’s property in New South Wales. He also has multiple prior convictions for traffic offences, dishonesty offences, and the offences of disorderly conduct and resist police.
Sentencing remarks
The sentencing Judge considered the offending a ‘serious example of domestic violence and was a vicious and cowardly attack upon the victim, who felt frightened for her life during the ordeal.’ Her Honour said:
This was, to put it bluntly, appalling, cowardly and gratuitously violent offending, perpetuated against your long-term partner, someone for whom you should have been caring and protecting.
Accordingly, she considered that imprisonment was the only appropriate penalty.
As to the uncharged offending, the sentencing Judge said:
All of what I have just recited is accepted by you as providing an accurate context in which the offending occurred. While you are not to be sentenced for these uncharged acts, you are also not to be afforded any leniency which you may have been, had the offending occurred in isolation.
As to defence counsel’s submission that the offending occurred in the context of the applicant having consumed medication, alcohol, and cannabis to relieve the pain of his shoulder injury, her Honour said:
While I do not doubt you were in pain and intoxicated at the time of this offending, there is no dispute that this was not a one off. This was but an example of you becoming angry and frustrated and then taking out your anger and frustration by way of violence directed towards Ms Nixon.
The sentencing Judge acknowledged the importance of both general and personal deterrence in sentencing and made reference to several cases regarding sentencing for domestic violence related offending.[2] Her Honour noted that a distinguishing feature of the present case was that the applicant pleaded guilty to the very serious charge of aggravated threatening life in addition to aggravated assault.
[2] Sentencing Remarks of His Honour Judge O’Sullivan dated 6 October 2021 in R v Hammond; Sentencing Remarks of His Honour Judge Barklay dated 3 June 2022 in R v Moore; Sentencing Remarks of His Honour Judge Allen dated 14 June 2022 in R v Assad.
The sentencing Judge proceeded to impose one penalty for both counts pursuant to s 26 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) on the basis that the two counts reflected ‘one course of conduct’. Her Honour started with a notional head sentence of four years and nine months. Her Honour indicated that had she imposed separate sentences for each count, she would have imposed a term of imprisonment of three years and three months for Count 4 and 18 months for Count 5. That accumulated notional sentence was reduced by five per cent on account of the applicant’s guilty plea to four years, six months, and five days imprisonment. A non-parole period was fixed at two years and eight months. Both the head sentence and the non‑parole period were backdated to commence on 29 October 2020, when the applicant was taken into custody.
Her Honour considered the offending was ‘too serious’ for the term of imprisonment to be suspended or served on home detention.
Concurrency
The applicant complained that the sentencing Judge erred in failing to consider and afford any concurrence of the notional sentence imposed for each offence. He submitted that both offences constituted a single course of conduct on the basis that they were committed against the same victim in a domestic context within a matter of hours and the sentencing Judge was required to order some degree of concurrency or, in the circumstances of this case, impose a penalty under s 26 of the Sentencing Act which reflected some concurrency between the sentences. As set out above, the sentencing Judge utilised s 26 to impose one penalty in respect of both counts. Historically, s 18A of the Criminal Law (Sentencing) Act 1988 (SA), which is now embodied in s 26 of the Sentencing Act, empowered a sentencing judge to impose one penalty for more than one offence. It was ‘… not a substitution for nor does it replace, the existing law and practice relating to the structure of multiple sentences, whether they be concurrent or cumulative, for the purpose of arriving at a total sentence.’[3]
[3] R v Nixon (1993) 66 A Crim R 83 at 85-86 per Legoe J (with whom Matheson and Duggan JJ agreed).
In White (A Pseudonym) v The Queen,[4] this Court stated:[5]
Thus, sentences should be constructed primarily by reference to the principles of concurrent and cumulative sentencing, albeit with s 18A as an additional option available to a sentencing judge. Subsequent authorities have confirmed that approach. In R v Major (“Major”), Olsson J (Doyle CJ agreeing) held that a sentencing judge, if using s 18A, should first consider the sentence that would have been imposed had separate sentences been imposed in respect of each offence. Such a process preserves the transparency, and therefore the integrity, of the sentencing process. A failure to follow this process is not an error of law but may indicate an error in the sentencing process. Many decisions since Major have confirmed these principles.
(citations omitted)
[4] [2022] SASCA 78.
[5] [2022] SASCA 78 at [43] per Lovell, Bleby and David JJA.
The general rule is that the approach in R v Major[6] should be followed. That is, the sentencing judge must consider what would be proper separate sentences for each individual offence, whether they should be served concurrently or cumulatively, and have regard to principles of totality. In R v Symonds,[7] however, the Court noted that:[8]
In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
[6] (1998) 70 SASR 488.
[7] [1999] SASC 217.
[8] R v Symonds [1999] SASC 217 at [21] per Doyle CJ (with whom Prior and Mullighan JJ agreed).

Section 26(2a) of the Sentencing Act now provides that if any of the offences in respect of which a single sentence is being imposed under s 26 involves different victims or were committed on different occasions the Court must indicate the sentence that would have been imposed in respect of each such offence had the provision not been applied.
The relevant and competing considerations for a sentencing judge in determining whether sentences should be ordered to be served concurrently or cumulatively were outlined by Wells J in Attorney-General (SA) v Tichy:[9]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[9] (1982) 30 SASR 84 at 92-93 per Wells J.
In R v Copeland (No 2),[10] Kourakis J (as he then was) identified the reasons why an order for concurrency may still be appropriate for offences which do not involve a single course of conduct, but rather, are made up of ‘similar and proximate offences committed in furtherance of a single criminal plan …’.[11] His Honour said:[12]
[10] (2010) 108 SASR 398.
[11] R v Copeland (No 2) (2010) 108 SASR 398 at [102] per Kourakis J.
[12] R v Copeland (No 2) (2010) 108 SASR 398 at [105]-[106] per Kourakis J.
First, there is the consideration, which applies in all cases when sentences of imprisonment are made cumulative, that the deprivations of a sentence of a particular length will be suffered all the more deeply if it is served after the completion of one or more earlier terms. In Jarvis v The Queen Ipp J explained this consideration in the following way:
“What then is the explanation for the phenomenon that it is not unusual for an overall term of imprisonment to be reduced even though the individual sentences are proportionate to the gravity the particular crimes for which they were imposed? In my opinion the reason for such a reduction is that the severity of a term of imprisonment increases exponentially as it increases in length. Thus, for example, whereas a sentence of seven years may be appropriate for one set of crimes and a sentence of eight years may be appropriate for another set of crimes, a sentence of 15 years for both sets may be out of proportion to the degree of criminality involved
simply, because of the additional severity brought about by the significantly longer period the defendant will be required to spend in prison.”
(emphasis added)
Secondly, in my view, the length of imprisonment necessary to achieve specific and general deterrence in the case of sentences imposed for a single course of conduct will generally be less than the result of the multiplication, by the number of offences committed, of the sentence which would have been imposed for a single offence.
Thirdly, where the offences are committed within a very short space of time it may be that the limited time and capacity which the offender had to reflect on whether or not to commit the subsequent offences mitigates his or her moral culpability.
There can be no hard and fast rules, but considerations like the ones to which I have referred will inform the characterisation of offences as one or more courses of conduct and the extent, if any, to which the sentences imposed for them should be concurrent. I hasten to add that too much emphasis should not be placed on the characterisation of multiple offences as a single course, or a number of courses, of conduct. Even where the connections are insufficient to characterise the offences as a single course of conduct it may be that there is sufficient reason to make the sentences at least partially concurrent.
(citations omitted)
The operation of the principles of concurrency have also been considered in recent decisions of this Court.[13]
[13] See for example Edmonds (A Pseudonym) v The Queen [2022] SASCA 11; White (A Pseudonym) v The Queen [2022] SASCA 78.
In the present case, whilst the sentencing Judge referred to the offending as ‘one course of conduct’, it did not have the characteristics of a single incursion into criminal conduct or a ‘single course of conduct’. The offending involved a serious threat to the victim’s life and then, several hours later, progressed to a sustained physical assault upon her. Each offence involved a different act which caused a different form of harm. The offences were separated by at least five hours during which there was time for the applicant to contemplate his actions and desist from further unlawful conduct. The offending is more aptly characterised as two offences of a ‘similar and proximate nature committed in furtherance of a single criminal plan’. That is so by reason of the fact that the offences were committed by the applicant against the one victim, his partner, in their home and within several hours of each other to degrade and subjugate her in the context of an abusive relationship.
In proceeding under s 26, whilst it was open to the sentencing Judge to consider that the notional sentences should be partially concurrent, it was not an error for her Honour to not do so. Given the time which elapsed between the two offences, the different nature of the act underpinning each offence, and the difference in harm caused, it was equally appropriate for her Honour to consider that the latter sentence should be notionally cumulative on the first, provided that the ultimate sentence imposed pursuant to s 26 of the Sentencing Act was not disproportionate to the offences, nor the offender’s personal circumstances.
As this Court said in Trott-Dan v The King,[14] it is important to emphasise that there are no ‘hard and fast rules’ as to whether sentences should be ordered to be served either wholly or partially concurrently.[15] Flexibility must be afforded to sentencing judges in ensuring proportionality; that is, the aggregate sentence is ‘just and appropriate to the totality of the appellant’s offending behaviour.’[16] This may be done by various sentencing mechanisms. For example, a proportionate sentence may be achieved by ordering concurrency between individual sentences, or by moderating latter individual sentences in acknowledgment that earlier sentences have already done much to achieve sentencing objectives, or by a final reduction for totality whereby the accumulated sentence is adjusted for proportionality, or by utilising s 26 of the Sentencing Act.
[14] [2023] SASCA 2.
[15] R v Copeland (No 2) (2010) 108 SASR 398 at [106] per Kourakis J.
[16] Nguyen v R (2016) 256 CLR 656 at [37] per Bell and Keane JJ citing Mill v The Queen (1988) 166 CLR 59 at 62-3 per Wilson, Deane, Dawson, Toohey and Gaudron JJ.
We are satisfied that in the circumstances of this matter, there was no error by the sentencing Judge in considering that, had separate sentences been imposed, the sentences should be served cumulatively with no order for complete or partial concurrency.
Manifest excess
The ultimate issue is whether the sentence imposed under s 26 of the Sentencing Act was manifestly excessive. The applicant complains that the head sentence imposed by the sentencing Judge was disproportionately high to the objective seriousness of the offending and the applicant’s positive personal circumstances. The principles governing a complaint of manifest excess are well‑established.[17] The Court must be satisfied that the sentence imposed by the sentencing Judge was ‘unreasonable or plainly unjust’;[18] that is, ‘outside the permissible range of sentences for the offender and the offence.’[19]
[17] R v Morse (1979) 23 SASR 98 at 99 per King CJ (with whom White and Mohr JJ agreed); Dinsdale v The Queen (2000) 202 CLR 321 at [6] per Gleeson CJ and Hayne J; Hili v The Queen (2010) 242 CLR 520 at [59]-[60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Ndreka v The Queen [2021] SASCA 11 at [28] per Doyle JA.
[18] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ; Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
[19] Kentwell v The Queen (2014) 252 CLR 601 at [35] per French CJ, Hayne, Bell and Keane JJ. See also Hili v The Queen (2010) 242 CLR 520 at [60] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
To demonstrate an error of manifest excess, it is not sufficient for the Court to merely conclude that it would have come to an alternative decision from that reached by the sentencing Judge, or that the sentence imposed is markedly different from the sentences imposed in other cases.[20]
[20] Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In assessing whether a sentence is manifestly excessive, it is necessary to consider all matters relevant to the determination of a sentence, including the maximum penalty for the relevant offending, where the objective circumstances of the offending sit in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. Ultimately, however, manifest excess or inadequacy is a conclusion and may not permit of ‘lengthy exposition’.[21]
[21] Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
In applying this approach, it needs to be borne in mind that there is no single correct sentence, and sentencing judges should be allowed ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’.[22]
[22] Markarian v The Queen (2005) 228 CLR 357 at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ citing Johnson v The Queen (2004) 78 ALJR 616 at [5] per Gleeson CJ, [26] per Gummow, Callinan and Heydon JJ.
In submitting that the head sentence was manifestly excessive, the applicant relied on several recent sentences of the District Court.[23] However, whilst other sentences can provide a useful guide, each matter must be determined on its merits. It is immediately apparent that unlike some of those matters to which this Court was referred, the applicant fell to be sentenced for the offence of aggravated threatening life as well as the offence of aggravated assault; and the applicant’s offending was not isolated, but rather, committed in the context of other uncharged offending.
[23] Sentencing Remarks of His Honour Judge Boylan dated 15 October 2020 in R v McCormick; Sentencing Remarks of His Honour Judge Barklay dated 3 June 2022 in R v Moore; Sentencing Remarks of His Honour Judge Allen dated 14 June 2022 in R v Assad; Sentencing Remarks of Her Honour Judge Kudelka dated 26 October 2022 in R v Hitchcock.
In the present case, the charged offending was also attended by a number of objectively serious features. It involved offences of physical and domestic violence against the applicant’s long-term partner; and threats to the victim’s life which he intended for her to take seriously and which she believed he intended to carry out. The charged assault involved the applicant picking the victim up by her throat, pushing her against a wall and smashing her head into the wall. Whilst she was unable to breath or swallow, the applicant continued to apply pressure to her neck. This was a deplorable assault which had the potential to cause the victim serious harm.
Further, the charged offending was not isolated nor out of character, but rather, occurred in the context of a relationship during which the applicant committed numerous uncharged acts of domestic violence against the victim. As the sentencing Judge remarked, whilst the applicant was not to be sentenced for the uncharged offending, there was reduced scope for leniency in sentence.
It is also significant that while the applicant did not have any prior convictions for assaults or violent conduct committed in a domestic context, he had multiple prior court appearances and convictions for assaults, traffic offences, dishonesty offences, and “street offending”. The sentencing Judge also noted that the applicant was a person with ‘anger management’ issues. There was a basis to be guarded as to the applicant’s prospects of rehabilitation. Principles of both general and personal deterrence, and the primacy to be afforded to the safety of the protection of the community, including the victim, weighed heavily in this matter.
Notwithstanding the contrition the applicant may have demonstrated since the offending, and the applicant’s other positive personal circumstances, this was a serious example of domestic violence committed upon a victim, in her home, who feared for her life. Accordingly, the offending called for a significant sentence.
The question remains whether the head sentence imposed was manifestly excessive. We are satisfied that the sentence was well within the permissible range and was not disproportionate to the offending nor the offender. For the reasons outlined earlier, the offending, looked at in its entirety, was objectively serious. The applicant did not come before the Court as a first offender; his offending was not isolated or out of character; and the offending had a serious impact on the victim, whose mental health has deteriorated and who remains fearful for her safety. We are satisfied the sentence was not manifestly excessive.
We refuse permission to appeal on both grounds and dismiss the appeal.
Manifest inadequacy
The Director has indicated that if the applicant does not receive permission to appeal on either ground, he does not pursue the cross-appeal.
The cross-appeal is dismissed.
Orders
1.An extension of time to file the notice of appeal is granted.
2.Permission to appeal is refused on Grounds 1 and 2, the appeal is dismissed, and the cross-appeal is dismissed.