Hackett v The Queen - [2021] SASCA 32

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
HACKETT v THE QUEEN
[2021] SASCA 32
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Livesey)
13 May 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
The appellant forcefully pushed the victim once to the chest outside a nightclub on Hindley Street, causing the victim to fall backwards and sustain severe head injuries including a fractured skull. The appellant pleaded guilty to one charge of recklessly causing harm. A judge of the District Court imposed a term of imprisonment of 2 years and 2 months with a non-parole period of 14 months.
The appellant appealed on the basis that the sentence was manifestly excessive (Ground 1) and that the Sentencing Judge erred in refusing to suspend the sentence (Ground 2). Permission to appeal on Ground 1 was referred to this Court; permission to appeal on Ground 2 was conceded by the respondent.
Held, by the Court, granting permission to appeal on Ground 1 and dismissing the appeal:
1. No error has been demonstrated in the Sentencing Judge's approach;
2. The sentence imposed is within the permissible range;
3. The decision not to suspend the sentence is within the Sentencing Judge's discretion.
Criminal Law Consolidation Act 1935 (SA) ss 23(3), 24(2), referred to.
Barbaro v The Queen (2014) 253 CLR 58; Elias v The Queen (2013) 248 CLR 483; House v The King (1936) 55 CLR 499; Markarian v The Queen (2005) 228 CLR 357; R v Chalmers (2012) 115 SASR 150; R v Hietanen (1989) 51 SASR 510; R v Parrott [2018] SASCFC 78; R v Pham (2015) 256 CLR 550; R v Teremoana (1990) 54 SASR 30; Wong v The Queen (2001) 207 CLR 584, considered.

HACKETT v THE QUEEN
[2021] SASCA 32

Court of Appeal – Criminal: Kelly P, Lovell and Livesey JJA
THE COURT:
Overview

Around 4.00am on 5 March 2017, outside a strip club in Hindley Street, Mr Hackett (the appellant) forcefully pushed Mr Nixon (the victim) in the chest causing him to fall heavily to the ground. The victim’s skull fractured when his head struck the pavement. The appellant pleaded guilty in the District Court to recklessly causing harm to the victim. The Sentencing Judge imposed a term of imprisonment of 2 years and 2 months with a non-parole period fixed at 14 months. The appellant appeals on the grounds that the sentence is manifestly excessive and that the sentencing judge erred in refusing to suspend the sentence.
Background
The appellant and the victim were patrons at a nightclub on Hindley Street. Both were intoxicated, the victim significantly so. Due to the victim’s intoxication, he was escorted from the nightclub premises. The appellant coincidentally was in the stairwell when the victim was being removed. CCTV footage shows the appellant and victim interacting in the stairwell of the nightclub in a seemingly friendly manner. The appellant and victim were not otherwise known to one another.
Once outside the nightclub, the victim commented to security guards to the effect that it was unfair that he be expelled and the appellant be allowed to remain inside. The appellant exited the nightclub on his own accord shortly after. Outside the nightclub, the appellant chatted with acquaintances. Witnesses suggest that the victim pestered the appellant and his acquaintances. The appellant initially ignored the victim but became increasingly agitated by the victim’s behaviour. The appellant turned, took several steps towards the victim, exchanged words with him before pushing him forcefully in the chest. The victim fell backwards, striking his head on the concrete pavement and immediately losing consciousness. The victim was hospitalised for 10 days following the incident. He suffered a fractured skull and intercranial bleeding. The victim continues to suffer ongoing issues including headaches, cognitive fatigue, mood swings, and anxiety. Some of these problems are likely to persist.
The appellant left the scene on foot and caught a taxi home from nearby on King William Street. He was arrested on 25 August 2017 upon attending the Adelaide Police Station at the request of the police. The appellant denied knowledge of any incident involving the victim.
The sentence
The appellant was initially charged with the offence of recklessly causing serious harm, contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). On the morning the trial was to commence, the respondent accepted the appellant’s guilty plea to the lesser charge of recklessly causing harm, contrary to s 24(2)(a) of the CLCA. The maximum penalty for this offence is five years imprisonment.
The appellant was sentenced to two years and six months imprisonment. That sentence was reduced by 10% for the appellant’s early guilty plea to 27 months imprisonment. A further one month was deducted for time spent in custody and home detention bail resulting in a final sentence of 26 months imprisonment. A non-parole period of 14 months was imposed.
The Sentencing Judge was not satisfied that good reason existed to suspend the sentence due to the serious nature of the offending and significant ongoing trauma caused to the victim. Further, the Sentencing Judge considered the serious nature of the offending, the need for adequate punishment and general deterrence meant serving the sentence on home detention was inappropriate in all the circumstances.
Principles on appeal
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.[1] The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence.[2] 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.[3] 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.[4] 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.[5] 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.[6]
[1]     Elias v The Queen (2013) 248 CLR 483.
[2]     Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[3]     House v The King (1936) 55 CLR 499.
[4]     Barbaro v The Queen (2014) 253 CLR 58 at [61] (Gageler J).
[5]     Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[6]     R v Pham (2015) 256 CLR 550 at [56] (Bell and Gageler JJ).
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.
The appeal
The appellant agitated two grounds of appeal: the sentence is manifestly excessive (Ground 1) and that in all of the circumstances, the sentence should have been suspended (Ground 2). The respondent conceded permission to appeal on Ground 2 and was not opposed to permission on Ground 1 being referred.
Ground 1
Appellant’s submissions
To establish that the sentence was manifestly excessive the appellant relied on two matters. First, the appellant submitted that the Sentencing Judge placed excessive weight on the outcome of the incident rather than the objective conduct of the appellant, resulting in a manifestly excessive sentence being imposed. Secondly, the appellant submitted that the Sentencing Judge placed too much weight on the decision of this Court in R v Parrott.[7]
[7] [2018] SASCFC 78 (“Parrott”).
Turning to the first issue the appellant submitted that the Sentencing Judge placed excessive weight on the injuries suffered by the victim and insufficient weight on the conduct that caused the injuries. Notwithstanding the resultant injuries, the objective conduct undertaken, that is the forceful single push to the chest, should be, in the appellant’s submission, the primary aspect of sentencing.
The appellant accepted that the Sentencing Judge was entitled to give some weight to the serious injuries suffered by the victim. Further, the appellant acknowledged that the Sentencing Judge in his reasons accepted that the appellant “did not contemplate there would be serious harm to the degree that there in fact was”, but that the appellant “contemplated some harm.” Despite making this distinction, the appellant submitted that the Sentencing Judge elevated the serious harm actually caused as a significant factor when sentencing the appellant. The appellant contended that by placing too much weight on the outcome of the offending, the starting point of half the maximum sentence for the offending was excessive.
In relation to the second issue, the appellant submitted that the Sentencing Judge placed too much weight on the decision of Parrott. During his remarks, the Sentencing Judge stated:
There are clear parallels between this case and the facts of R v Parrott, closely considered by the Supreme Court recently. You are a similar age, you have a similar minor criminal record and the facts of the offending are in many respects similar. In the context of exactly this type of offending, the Supreme Court said that any offence involving violence is treated seriously by the law with general deterrence always a significant factor to be taken into account.
In the final analysis, a similar sentence to that held by the Supreme Court in that case is warranted in this case.
The appellant sought to distinguish the case at bar from the factual circumstances in Parrott. The appellant contended that there were more differences than similarities between the cases.
It is necessary to briefly consider the facts on which Parrott was decided. The defendant in Parrott attended the victim’s home to confront him about an incident that had occurred earlier at their workplace. The parties were known to each other, and had in fact been friends for many years. At the front door of the victim’s home, the defendant said words to the effect that the victim had betrayed him and then struck the victim to the head with a very forceful slap or push. It was accepted that the blow was struck with an “open hand”; it was not a case of a “coward’s punch”. The application of force caused the victim to hit his head on a brick pillar and then fall to the ground, hitting his head again. The victim suffered a fractured skull and intracranial bleeding.
Turning to the factual circumstances in the present case, the appellant and victim were not known to one another, save for their brief interaction in the stairwell of the nightclub. The appellant reacted to the victim’s verbal pestering by forcefully pushing him, once, in the upper chest. The victim fell backwards and hit his head on the pavement; he did not break his fall in any way. It is unclear whether the push was occasioned with one hand or two hands,[8] but nonetheless it was sufficient to force the victim backwards. The victim suffered severe head injuries because of the fall. The incident can be classified as the appellant acting on the “spur of the moment”. The appellant was intoxicated, and knew the victim was highly intoxicated. The appellant admitted that the victim was so intoxicated as to not be a threat to him.
[8] Statement of Polklaser says two hands were used; the CCTV footage is unclear.
The appellant submitted that there were significant differences between the case at bar and Parrott’s case. In particular, Mr Wickens, counsel for the appellant emphasised that the defendant’s actions in Parrott could not be described as “spur of the moment”. Further, Mr Wickens submitted that the defendant in Parrott struck the victim in the head rather than the chest. The likelihood of serious injury was greater with a strike to the head.
Respondent’s submissions
The respondent submitted that the Sentencing Judge correctly weighed the outcome of the offending and the offending conduct to arrive at a sentence within the permissible range. The respondent submitted that the Sentencing Judge clearly accepted he had to sentence the appellant on the charge of recklessly “causing harm”, not “causing serious harm”. The Sentencing Judge was entitled to have regard to the consequences to the victim when considering the seriousness of the offending. Whilst conceding the push could be categorised as occurring on the “spur of the moment”, the respondent contended that the appellant took a number of steps leading up to the forceful push, rendering the victim unprepared for the force applied.
The respondent further submitted that the Sentencing Judge was entitled to have regard to Parrott’s case as there were sufficient similarities between the two cases. While there were points of difference between the two cases, the respondent submitted that it is clear from the Sentencing Judge’s remarks that he sentenced the appellant on the facts established before him using the judgment in Parrott only as a guide.
Discussion
When sentencing the appellant, the Sentencing Judge stated:
This is a very serious offence. You assaulted a drunk and helpless man by shoving him backwards, such that he fell straight backwards onto a concrete pavement with you reckless to the harm you might cause in doing that. The risk of harm was obvious in shoving a defenceless person over backwards onto a concrete street without warning. Whilst you only contemplated causing harm, the fact is that he was very seriously injured and now has an ongoing impairment which he believes will be with him for the rest of his life. You did that simply because you were annoyed with what he was saying to you.
(emphasis added)
The Sentencing Judge had regard to the objective seriousness of the offending. He took into account the factual circumstances of the offending and the appellant’s personal circumstances. Importantly, the Sentencing Judge recognised that the appellant only contemplated causing harm not causing serious harm. The Sentencing Judge had regard to the need for general deterrence in particular for this type of offending.
The Sentencing Judge was entitled, and indeed required, to have regard to the consequences of the appellant’s offending. It is a general principle of sentencing that the consequences of a defendant’s conduct “are always a factor in assessing the gravity of crime”.[9] In R v Teremoana, Cox J explained:[10]
The harm that a crime causes the victim will usually be a relevant factor in sentencing the defendant, certainly where the harm was intended and sometimes where it was not ...
[9] R v Hietanen (1989) 51 SASR 510 at 517 (Prior J).
[10] R v Teremoana (1990) 54 SASR 30 at 38 (Jacobs J agreeing).
As Kourakis CJ observed in R v Chalmers:[11]
… the consequences of an offence must always be taken into account whether or not they were intended and whether or not they are more serious than they needed to be to constitute the offence. There are many cases in which much more serious harm than the harm intended is caused to a victim. The objective consequences of criminal conduct were the primary concern and criterion for punishment of the early criminal law. The evolution of criminal legal principles has reflected the development of more civilised social attitudes and there is now much greater, but not exclusive, concern with subjective intent and culpability. However, it remains the case that all other things being equal, the sentence imposed on an offender who, for example, intends only to cause a black eye, and causes no more harm than that, will be less than the sentence imposed on an offender with the same intention who by misfortune causes serious brain injury. Sentences continue to reflect considerations which go beyond subjective culpability.
[11] (2012) 115 SASR 150 at [15].
The Sentencing Judge appropriately had regard to the consequences of the offending and the objective circumstances of the offence. He cannot be criticised for setting out in broad terms the entirety of the victim’s injuries. The plea of guilty to the lesser charge of recklessly causing harm as opposed to recklessly causing serious harm did not change the nature of the injuries actually sustained, or their categorisation.[12] The Sentencing Judge did not sentence the appellant on the basis that he was guilty of causing serious harm. It cannot be said that the sentence imposed is indicative of the Sentencing Judge giving too much weight to the victim’s injuries. No error in the approach of the Sentencing Judge has been demonstrated.
[12] R v Marrone [2011] SASCFC 78 at [12] (Vanstone J).
In relation to the Sentencing Judge’s reference to the decision in Parrott, in seeking consistency, sentencing judges should have regard to what has been done in other cases. Other cases may well establish a range of sentences which have been imposed. However, such cases do not establish that the sentences imposed mark the outer bounds of the permissible discretion. That is, a mere history of sentences that have been imposed for an offence, while identifying a range that has been imposed, does not necessarily establish that this is the correct range, or that its limits are correct.[13] Consistency in sentencing means consistency in the application of relevant legal principles, not numerical equivalence.[14] Of course, Parrott’s case by itself, does not establish a range. However, a sentencing judge ought to have regard to comparable cases unless there is a compelling reason not to do so such as if the objective circumstances of the crime or subjective circumstances of the offender are so distinguishable as to render the decision irrelevant.[15] A case such as Parrott can be used as a yardstick against which to examine a proposed sentence.[16]
[13] Wong v The Queen (2001) 207 CLR 584 at [59] (Gaudron, Gummow and Hayne JJ).
[14] R v Pham (2015) 256 CLR 550 at [28] (French CJ, Keane and Nettle JJ).
[15] R v Pham (2015) 256 CLR 550 at [29] (French CJ, Keane and Nettle JJ).
[16] R v Barbaro (2014) 253 CLR 58 at [41] (French CJ, Hayne, Kiefel and Bell JJ).
There are similarities and, of course, dissimilarities between Parrott’s case and the offending in this matter. Clearly the Sentencing Judge was aware of those differences. The Sentencing Judge was required to take account of all the relevant factors and arrive at a single result taking due account of all of them. The extent to which each factor bears upon the case is inevitably a matter of judgment. The mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.
It is clear from the Sentencing Judges remarks that he determined the appellant’s sentence on the facts and circumstances before him having regard to Parrott’s case as a guide. His approach was orthodox. Appellate intervention on the ground of manifest excessiveness is not warranted unless, having regard to all the relevant factors, including the degree to which the impugned sentence differs from a comparable case, the appellate court concludes there must have been some misapplication of principle.[17] Even allowing that the sentence in this case may be seen to more severe than that imposed in Parrott, this alone does not establish manifest excess.
[17] Wong v The Queen (2001) 207 CLR 584 at [58] (Gaudron, Gummow and Hayne JJ).

As the Sentencing Judge stated, the offending was very serious. General deterrence plays an important role when sentencing for this type of offence. The sentence imposed is within the available range and therefore not manifestly excessive. We would grant permission to appeal on Ground 1 but dismiss this ground of appeal.
Ground 2
The respondent, before the Sentencing Judge, submitted that it was open to him to suspend any sentence of imprisonment imposed. That submission, of course, did not bind the Sentencing Judge. However, on the facts before him, the Sentencing Judge was unable to find that “good reason” existed to suspend the term of imprisonment. Again, considering whether to suspend a sentence of imprisonment is to exercise a discretionary judgment. The appellant must show either a specific error in the sentencing process or establish that the refusal to suspend the sentence was “unreasonable or plainly unjust”.
The appellant performed poorly on bail while awaiting sentence. On three occasions, the appellant did not attend as requested for drug testing and on one occasion he returned a positive test to the presence of methylamphetamine. The appellant did not engage properly with his home detention supervising officer such that it was noted he was resistant to supervision. The appellant demonstrated an improved attitude leading up to the sentencing hearing. The Sentencing Judge took into account all the personal circumstances of the appellant when considering whether good reason existed to suspend the sentence. In our view, the appellant has been unable to establish any error in the approach of the Sentencing Judge. We would dismiss Ground 2.
Order
1.Permission to appeal on Ground 1 is granted.
2.The appeal is dismissed.