KB v The King; HB v The King; LB v The King
[2025] SASCA 73
•3 July 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KB v THE KING; HB v THE KING; LB v THE KING
[2025] SASCA 73
Judgment of the Court of Appeal
(The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice David)
3 July 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS
The offending involved the victim being attacked and restrained by family members at a shopping complex carpark. She was held on either side of her body by her mother, HB, and sister, when her father, KB, proceeded to stab her twice. She was then hauled into a vehicle driven by her brother, LB, and taken against her wishes to the family home.
The appellant KB pleaded guilty to the common law offence of false imprisonment and aggravated cause serious harm with intent to cause serious harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). The sentencing Judge imposed a cumulative sentence of 14 years and three months’ imprisonment, with a fixed non-parole period of nine years.
The appellant HB pleaded guilty to the common law offence of false imprisonment and aggravated cause harm with intent to cause harm contrary to s 24(1) of the CLCA. The sentencing Judge imposed a single sentence of five years, nine months and 25 days’ imprisonment, with a fixed non-parole period of three years and two months.
The appellant LB pleaded guilty to the common law offence of false imprisonment, aggravated cause harm with intent to cause harm contrary to s 24(1) of the CLCA, and aggravated serious criminal trespass in a place of residence contrary to s 170(1) of the CLCA. The sentencing Judge imposed a single sentence for the s 24(1) and false imprisonment offences and ordered the sentence for the s 170(1) offence be served cumulatively. A head sentence of nine years, five months and nine days’ imprisonment was imposed, with a fixed non-parole period of six years.
In reaching the final sentences imposed for each appellant, the sentencing Judge applied a five per cent discount on account of their guilty pleas for their applicable offences.
The appellants seek permission to appeal against sentence on the basis the sentencing Judge erred in her treatment of the discounts applicable for the guilty pleas entered for the ss 23(1) and 24(1) offences; and that the sentence imposed on each appellant was manifestly excessive. Additionally, the appellant HB advances a ground of appeal in relation to various factual findings which it is contended are erroneous; and the appellant LB contends the sentencing Judge erred in her approach to concurrency and the principle of totality.
The appellants also seek the admission of fresh evidence, namely, an affidavit of the victim prepared after sentencing stating she forgives the appellants, expresses her favourable views as to the appellants’ remorse, and the desirability of non-custodial sentence.
Held, per the Court, granting permission to appeal, allowing the appeals on Grounds 1 (KB), 5 (HB) and 3 (LB), dismissing appeal Grounds 1 and 6 (HB), setting aside the sentences and re-sentencing each appellant:
1.In relation to KB, it was not open to the sentencing Judge to award a five per cent discount for the appellants’ guilty pleas to the s 23(1) offence and applying such was inconsistent with the utilitarian statutory purpose of the scheme. The sentencing Judge provided inadequate reasons for awarding only a five per cent discount for the appellant’s guilty plea to the s 23(1) offence which was a significant departure from the applicable maximum discount of 25 per cent.
2.In relation to HB and LB, it was not open to the sentencing Judge to award a five per cent discount for the appellants’ guilty pleas to the s 24(1) offence and applying such was inconsistent with the utilitarian statutory purpose of the scheme. In relation to LB, the sentencing Judge provided inadequate reasons for awarding only a five per cent discount for the appellant’s guilty plea to the s 24(1) offence which was a significant departure from the applicable maximum discount of 35 per cent.
3.There was no error by the sentencing Judge as to the approach taken, or ultimate reduction, for the time served by the appellant HB on home detention bail.
4.In relation to HB, the sentencing Judge’s factual findings as to her cultural background, lack of assistance to the victim and demeanour, were not erroneous.
5.KB is re-sentenced as follows:
• For the offence of aggravated cause serious harm with intent to cause serious harm, a starting point of nine years’ imprisonment reduced by 18 months (or slightly more than 15 per cent) on account of his guilty plea to seven years and six months’ imprisonment.
• For the offence of false imprisonment, a starting point of five years’ imprisonment reduced by five per cent on account of his guilty plea to four years and nine months’ imprisonment, with one year and nine months to be served concurrently with the earlier sentence.
• This results in a head sentence of 10 years and six months’ imprisonment. A non-parole period of seven years and six months is fixed. The sentence is ordered to commence on 30 November 2021.
6.HB is re-sentenced as follows:
• For the offence of aggravated cause harm with intent to cause harm, a starting point of five years’ imprisonment reduced by one year and three months (25 per cent) on account of her guilty plea to three years and nine months’ imprisonment.
• For the offence of false imprisonment, a starting point of three years’ imprisonment reduced by five per cent on account of her guilty plea to two years, 10 month and seven days’ imprisonment, with one year and six months to be served concurrently with the earlier sentence. This results in a head sentence of five years, one month and seven days’ imprisonment. A non-parole period of three years and six months’ imprisonment is imposed.
• The head sentence and non-parole period are each reduced by 12 months for time served in custody and on home detention bail resulting in a head sentence of four years, one month and seven days’ imprisonment, with a non-parole period of two years and six months. The sentence is ordered to commence on 29 July 2024.
7.LB is re-sentenced as follows:
• For the offence of aggravated cause harm with intent to cause harm, a starting point of five years’ imprisonment reduced by one year and three months (25 per cent) on account of his guilty plea to three years and nine months’ imprisonment.
• For the offence of false imprisonment, a starting point of three years imprisonment, reduced by five per cent on account of his guilty plea to two years, 10 months and seven days’ imprisonment, with one year and six months to be served concurrently with the earlier sentence.
• For the offence of aggravated serious criminal trespass in a place of residence, a starting point of two years and six months’ imprisonment reduced by five per cent on account of his guilty plea to two years, four months and 17 days’ imprisonment to be served cumulatively on the earlier sentences.
• The suspended sentence of five months is revoked and ordered to be served cumulatively with the other sentences.
• This results in a head sentence of seven years, 10 months and 24 days’ imprisonment. A non-parole period of five years and six months is fixed. The sentence is ordered to commence on 30 November 2021.
Criminal Law Consolidation Act 1935 (SA) ss 23(1), 24(1), 85(2), 170(1); Criminal Law (Sentencing) Act 1988 (SA) s 10C; Sentencing Act 2017 (SA) ss 26, 40(3), 40(3)(a)(i), 40(3)(a)(ii), 40(3)(d), 40(3)(e), 40(5), 40(5)(b), 40(5)(c), referred to.
R v Bahrami (2020) 137 SASR 327; R v Davey [2017] SASCFC 151; R v Dwyer (2015) 121 SASR 587; R v McPhee [2014] SASCFC 107; R v Muldoon (2015) 123 SASR 1; R v Nguyen [2015] SASCFC 40; R v Palmer [2016] SASCFC 34; R v Tsonis (2018) 131 SASR 416, considered.
KB v THE KING; HB v THE KING; LB v THE KING
[2025] SASCA 73Court of Appeal - Criminal: S Doyle, Bleby and David JJA
THE COURT: On 30 November 2021 at approximately 7:50am, the victim attended a shopping complex carpark in Sefton Park, where she was attacked and restrained by family members. The victim was held on either side of her body by her mother, HB, and her sister, BB. Her father, KB, then proceeded to stab her twice: once to the right side of her back and once to her thigh. The victim was then hauled into a vehicle and driven against her wishes to the family home. Her older brother, LB, was driving the vehicle.
The incident was precipitated by the appellants’ disapproval of the victim’s romantic relationship with FM on the basis of their cultural differences. The victim and her family were from Afghanistan and are of Pashtun ethnicity, while FM was a Sri Lankan Christian.
Later that evening, police and emergency services attended the family home, and the victim was transported by ambulance to hospital. As a result of the attack, the victim sustained a 4 cm stab wound to her back which perforated her kidney and caused damage to her liver, and a 1 cm stab wound to her upper outer thigh.
Shortly before the commencement of the trial, the appellants entered pleas of guilty.
The appellant KB pleaded guilty to the common law offence of false imprisonment for which the penalty is at large, and the offence of aggravated cause serious harm with intent to cause serious harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) for which the maximum penalty is imprisonment for 25 years.
The appellants HB and LB pleaded guilty to the common law offence of false imprisonment and the offence of aggravated cause harm with intent to cause harm contrary to s 24(1) of the CLCA for which the maximum penalty is imprisonment for 13 years. In addition, LB pleaded guilty to the offence of aggravated serious criminal trespass in a place of residence contrary to s 170(1) of the CLCA for which the maximum penalty is life imprisonment.
The sentencing Judge imposed the following sentences.
In relation to KB, for the offence of aggravated cause serious harm with intent to cause serious harm, imprisonment for 10 years; and for the offence of false imprisonment, five years’ imprisonment ordered to be served cumulatively on the earlier sentence, resulting in a head sentence of 15 years’ imprisonment. This was reduced by five per cent on account of his guilty pleas resulting in a sentence of 14 years and three months’ imprisonment. A non-parole period of nine years’ imprisonment was fixed. The sentence was ordered to commence on 30 November 2021, when the appellant was taken into custody.
In relation to HB, the sentencing Judge imposed a single sentence for both offences pursuant to s 26 of the Sentencing Act 2017 (SA) (‘the Sentencing Act’). A starting point of seven years’ imprisonment was adopted which was reduced by five per cent on account of her guilty pleas to six years, seven months and 25 days’ imprisonment. A non-parole period of four years’ imprisonment was fixed. Both the head sentence and non-parole period were reduced by 10 months on account of time served in custody and on home detention bail, resulting in a head sentence of five years, nine months and 25 days’ imprisonment with a non-parole period of three years and two months. Her Honour declined to suspend the sentence or order that it be served on home detention. The sentence was ordered to commence on 29 July 2024.
In relation to LB, the sentencing Judge imposed a single sentence for both offences pursuant to s 26 of the Sentencing Act. Her Honour adopted a starting point of seven years’ imprisonment. For the offence of aggravated serious criminal trespass in a place of residence, a sentence of two years and six months’ imprisonment was imposed and ordered to be served cumulatively on the earlier sentence, resulting in a notional sentence of nine years and six months’ imprisonment. This was reduced by five per cent on account of his guilty pleas to nine years and nine days’ imprisonment. LB was also on a suspended sentence bond at the time of the offending and liable to serve a sentence of five months’ imprisonment which her Honour subsequently ordered he serve. A head sentence of nine years, five months and nine days’ imprisonment was imposed. A non‑parole period of six years was fixed. The sentence was ordered to commence on 30 November 2021.
All three appellants seek permission to appeal against sentence. There are two common categories of complaint: that the sentencing Judge erred in her treatment of the discounts applicable for the guilty pleas entered by each appellant to the offences contrary to ss 23(1) and 24(1) of the CLCA; and that the sentence imposed on each appellant was manifestly excessive.
In addition, the appellant HB advances a ground of appeal in relation to various factual findings which it is contended are erroneous; and the appellant LB complains, under a separate ground of appeal, that the sentencing Judge erred in her approach to concurrency and the principle of totality.
Each appellant also seeks the admission of fresh evidence, namely, an affidavit prepared by the victim, after sentencing, stating that she forgives the appellants and expresses her favourable views as to the appellants’ remorse, and the desirability of non-custodial sentences for each appellant.
For the reasons which follow, we allow each appellant’s appeal on the basis that the sentencing Judge erred in her application of s 40(3) of the Sentencing Act as to the discount for the guilty pleas. We set aside the sentences, and re-sentence each appellant.
Factual basis of the offending
As already mentioned, the appellants and the victim were related to each other: KB is the victim’s father; HB is her mother; and LB is her older brother. There were three other offenders (SB, BB and AK) who are also related to the victim but not the subject of this appeal. The victim was raised in a traditional Pashtun environment, and there were expectations that she would comply with Pashtun cultural norms. As such, she was expected to enter an arranged marriage. As at the time of the offending, and despite multiple attempts by her family to arrange such a marriage, she had refused to do so.
In 2020, the victim met her partner, FM, at university. They commenced a relationship in June or July 2021, when the victim was 21 years of age. The victim was aware that her family would not approve of FM due to his religious and cultural background. Her younger brother, SB, was studying at the same university campus and he began to suspect the relationship. He confronted the victim and threatened to tell her father, KB, and older brother, LB, if she persisted with the relationship. The victim’s mother, HB, also became aware of the relationship.
Over the following months, there were several confrontations between the victim and her family about her relationship with FM.
On one occasion, the victim’s mother, HB, and her sister, BB, met the victim at a laundromat. There, HB interrogated her about the relationship and telephoned FM instructing him that he could not continue the relationship. HB also told the victim that if her father found out, she would die. The victim agreed to end their relationship. The victim’s younger brother, SB, then installed a tracking application on her mobile phone. However, approximately three months later, when the victim believed she had regained her family’s trust, she deleted the application and secretly continued her relationship with FM.
On 28 November 2021, the victim received a phone call from her younger brother, SB, whilst she was at FM’s house. SB said that he had seen her car parked near where FM lived, and he angrily said words to the effect of ‘I’ll deal with you later’. The victim then received numerous phone calls from her mother wherein it became apparent that SB had told her of the victim’s whereabouts.
Next, the victim, her mother, HB, and sister, BB, met at the Churchill Shopping Centre. HB demanded the victim take her to FM’s house, and she agreed to do so. However, once they arrived on the relevant street, the victim refused to say which was FM’s house. Instead, she sent a message to FM and asked him to meet them on the street, which he did. HB and BB threatened to tell the victim’s father and older brother about the relationship. They also threatened to force her to go back to Pakistan. As the interaction became heated, HB appeared to faint and was taken to hospital by an ambulance. The victim initially accompanied HB to the hospital, but subsequently left with FM. Once the victim left, HB appeared to make an immediate recovery and was discharged from hospital.
That evening, the victim continued to receive constant phone calls from her family. Between 6:00pm on 28 November 2021 and the morning of 30 November 2021, the victim received more than 2,500 text messages and phone calls from various family members.
On 28 November 2021 at about 9:00pm, the victim’s brothers, LB and SB, arrived at a house in Prospect where they believed FM was living. LB was armed with knuckledusters. They confronted the occupant and demanded to know where the victim was, and when told by the occupant that he did not know who the victim was, SB responded, ‘don’t fuck with us, we know she is here’. The victim’s two brothers then forced their way into the house. LB conducted a search of the house, and they both continued to challenge the occupant about whether the victim was there. They eventually accepted she was not there and left. They then met with the victim’s mother and sister who were waiting at the front of the property. The appellant LB pleaded guilty to the offence of aggravated serious criminal trespass in a place of residence in relation to this incident.
On the morning of 29 November 2021, the victim’s father, KB, travelled to Prospect and drove around the streets near FM’s home. On the same day, the victim’s mother, HB, contacted the victim’s close friend, IJ, attempting to ascertain the whereabouts of the victim. HB told IJ that the victim’s family were willing to accept her relationship with FM. At HB’s request, IJ drove HB to the university to locate the victim. This was unsuccessful, and IJ agreed to help the family on the following day to find the victim.
Later that evening, IJ spoke to the victim. The victim asked IJ if she would help her retrieve equipment from her family that she needed for work. IJ agreed, and arranged for the victim, the victim’s mother, HB, and herself to meet at the Sefton Plaza shopping centre carpark. The victim made it clear that the only family member she was prepared to meet with was her mother and that she did not want any other family members to be present.
The day of the offending
On 30 November 2021 at about 7:20am, IJ and HB were at the Sefton Plaza shopping centre carpark waiting in a vehicle to meet with the victim. The victim’s older sister, BB, arrived and joined them. The victim’s father, KB, her older brother, LB, and BB’s husband, AK, had also been at the shopping centre earlier that morning. CCTV footage showed KB holding an item in his right pocket which the sentencing Judge found to be the knife subsequently used on the victim. They left the shopping centre before returning later that morning.
At about 7:50am, the victim arrived at the carpark. HB went to hug the victim, and as the victim attempted to withdraw from the embrace, HB would not let her go. The victim’s older sister, BB, then moved to the victim’s left-hand side and grabbed her arm. The victim attempted to escape the grip, telling them to back off. By this time, KB, LB and AK had returned to the shopping centre. As HB and BB continued to hold the victim, her older brother, LB, appeared to her left-hand side. LB told the victim to come home with them. They dragged her closer to the vehicle. The victim started yelling to let her go. The victim’s father, KB, then ran towards her with AK following behind. The victim had her back towards the vehicle as HB and BB attempted to force her inside. As the victim resisted, KB thrust a knife into her back and upper thigh.
At this stage, the victim’s friend, IJ, attempted to intervene by grabbing KB’s elbow as he continued to thrust the knife towards the victim.
The victim was forced into the back seat of the vehicle and was seated between her mother, HB, and her older sister, BB. While driving to their home, the victim screamed out in pain as her family continued to verbally and physically abuse her. At one stage, a family member put their hand over the victim’s mouth to stop her from screaming. Once at the family house, the victim was dragged inside by HB and BB. She was placed in the shower with the water running. A cloth was placed over her wounds. Her sister, BB, told the victim to tell the police FM had done this.
At about 8:12am, police arrived at the home and observed the victim still lying in the shower. The victim was then taken to hospital where she was treated for her stab wounds and the resulting injuries to her liver and kidney.
The appellants’ personal circumstances
As mentioned earlier, the appellants and the victim are Pashtun and are all members of the one family. Within Pashtun culture, men are considered dominant and female members are traditionally subservient. As a family they emigrated from Afghanistan to Australia.
KB
KB was about 59 years of age at the time of sentence. He had no prior convictions. He was born in Afghanistan and raised in a traditional Pashtun environment. He had four siblings with only one brother still alive. KB stopped attending school when he was about 15 years of age due to war and needing to help work on his parents farm. After the war commenced in Afghanistan, the Taliban attempted to kidnap the appellant to force him to fight for them. However, he managed to evade the Taliban and leave Afghanistan in 2000. By this stage, he had married and started a family with HB.
After leaving Afghanistan, KB travelled to Pakistan, then to Malaysia, and then by boat to Australia, where he was detained for about 18 months on Christmas Island as a refugee. He then was permitted to live in Australia.
In about 2007, he was successful in organising for HB and his family to emigrate to Australia. He initially worked at a farm in Virginia before opening a clothing shop with HB where he continued to work until this offending.
KB was arrested on 30 November 2021. During a record of interview with police, he denied the offending stating that he and other family members went to the shopping centre to try and ask the victim to come home and to arrange for her personal items to be collected. KB denied having a knife in his hand at the shopping centre.
HB
HB was born and raised in Afghanistan during the war.[1] She had a limited education due to growing up in poverty and was required to commence working from a young age. HB married KB in Afghanistan before he left to escape the Taliban. She later fled to Pakistan after their village was bombed.
[1] HB’s birthdate is unknown, predicted to be in the late 1960’s or early 1970’s.
In 2007, HB and her children emigrated to Australia to join KB. She and KB later opened a clothing shop which provided them with a livelihood. Once in Australia, HB continued to live according to traditional Pashtun norms, with her husband largely exercising social and financial control over her and their children.
On 30 November 2021, HB was arrested. During an interview with police, she denied the offending. She was remanded in custody until she was released on home detention bail on 1 April 2022. HB remained on home detention bail until sentencing.
While in custody, HB had limited access to appropriate cultural clothing and experienced conflict with other prisoners due to her background and the nature of her offending.
There were various positive character references tendered on her behalf as well as a letter of apology from HB to the victim.
LB
LB was 30 years of age at the time of the offending, and 33 years of age at the time of sentence. He was born and raised in Afghanistan before fleeing with his mother and siblings to Pakistan. Whilst living in Afghanistan and Pakistan, he witnessed considerable violence including on his own family. He also suffered corporal punishment at school. As mentioned earlier, his father, KB, left Afghanistan before the rest of the family, and there was a period of three years where LB did not know if his father was alive. In Pakistan, LB attended school, but he was required to work before and after school to financially support his family. LB and his family eventually emigrated to Australia where they joined KB.
Upon moving to Australia, LB completed years 11 and 12 before commencing a Bachelor of Business at Flinders University. However, he did not complete his degree because he returned to Pakistan to get married. After marrying, LB returned to Australia and worked in various jobs including at an animal processing plant, farming potatoes and with SA Premium Cement.
For many years, LB suffered from an addiction to methamphetamine which provided the catalyst for multiple criminal convictions for driving whilst disqualified, dishonesty offences, offences of damaging property and carrying an offensive weapon, as well as offences of failing to comply with bail agreements and breaching good behaviour bonds. At the time of this offending, LB was on a suspended sentence bond for the offence of damaging property[2] which involved smashing the windows of his family home with an axe while his mother, HB, and his wife were inside.
[2] Contrary to Criminal Law Consolidation Act 1935 (SA) s 85(2).
LB was arrested for the present offending on 30 November 2021. During an interview with police, he denied having committed the offences saying he was asleep during the day; had only seen the victim when she was lying in the shower; and did not know who stabbed her.
LB has remained in custody since his arrest. This has taken a significant toll on LB’s wife, who suffers from a lower back condition and is responsible for the care of their three young children as well as the children of LB’s sister, BB, and her husband, AK.
LB also suffers from poor mental health. However, since being remanded in custody, he has abstained from drug use which has had a positive impact on his mental health. He also indicated that he was prepared to undertake rehabilitative courses in custody.
The sentencing remarks
The sentencing Judge outlined the factual circumstances of the offending, and the personal circumstances of each appellant, in terms similar to above. Her Honour also set out the factual basis upon which each appellant was sentenced. There is no challenge to her Honour’s reasons in this regard.
As to the appellant KB, the sentencing Judge proceeded on the basis that he was party to a pre-meditated plan to kidnap the victim and force her home against her will, and it was only when the appellant observed the victim resisting the co-offenders’ efforts to restrain her, that he decided to stab her intending to cause her serious harm. It was accepted that the knife used in the attack was already in his vehicle (and not brought to the scene for that purpose). Her Honour rejected, as a reasonable possibility, that KB took the knife to the shopping centre due to his concerns over FM. Rather, she found that KB brought the knife to assist in threatening the victim and frightening her into compliance.
The sentencing Judge also had regard to KB’s conduct captured on police body worn camera footage as indicative of his lack of contrition but accepted that, by the time of sentence, KB was remorseful and took responsibility for his conduct.
As to HB, the sentencing Judge accepted that she was not the principal offender, and had no knowledge that KB was in possession of a knife until he stabbed the victim. HB was sentenced on the basis she engaged in a plan to take the victim home, against her will, and contemplated that KB may engage in conduct causing harm to the victim but not serious harm involving the use of a knife.
The sentencing Judge found that HB’s role in the offending was pivotal, noting that it was HB’s conduct which ‘set the wheels in motion that led up to a plan to physically manhandle [the victim] into a car and abduct her from a public place in broad daylight’. Her Honour also observed that HB was the only member of her family whom the victim trusted sufficiently to meet.
As to the level of HB’s moral culpability, the sentencing Judge considered it of significance that while KB repeatedly stabbed the victim, HB did not let go of her or assist her. Moreover, her Honour rejected the submission that HB was doing her best to help the victim when she was in the shower, noting that HB did not call an ambulance nor tend to the victim’s wounds. Further, HB was not honest to police about what had happened, creating the impression the victim had hurt herself. Her Honour also observed that police body worn camera footage showed HB as ‘composed, attempting to control the narrative of what had happened’ and that later HB attempted to persuade IJ to lie to police as to the events of that day. These factual findings were the subject of a ground of appeal.
The appellant LB was sentenced on the basis that he was party to a pre‑meditated plan to kidnap the victim and force her home against her will; and he contemplated that whilst the plan was on foot, KB might inflict harm upon her but not serious harm involving a knife.
As to LB’s remorse, the sentencing Judge observed that after the offending, LB telephoned FM and threatened to break his legs and shoot him.
As mentioned earlier, LB also pleaded guilty to the offence of aggravated serious criminal trespass in a place of residence. For this offence, he was sentenced on the basis that he and his younger brother, SB, unlawfully entered the premises for the purpose of locating the victim and forcing her home, and in doing so, it was contemplated that while carrying out that plan, an occupant of the premises might be assaulted.
Appeal grounds
KB appeals against his sentence on the following grounds:
1.The learned sentencing Judge erred in determining the amount of the reduction for guilty plea in relation to the appellant’s sentence for the offence of aggravated causing serious harm with intent to cause serious harm (the serious harm offence).
Particulars
1.1 The learned sentencing Judge erred by applying a global percentage reduction of 5% for all guilty pleas by the [appellant] and his co-offenders for all offences, rather than individually determining an appropriate percentage reduction for the sentence she imposed on the [appellant] for the serious harm offence.
1.2 The learned trial Judge erred by reducing the sentence she imposed on the [appellant], less than 4 weeks after his first court appearance in relation to the serious harm offence, by only 5%, when a reduction of up to 25% was permissible.
1.3 The learned trial Judge erred by failing to provide adequate reasons explaining why she reduced the sentence she imposed on the [appellant] for the serious harm offence by only 5%, when a reduction of up to 25% was permissible.
2.The learned sentencing Judge erred by imposing a sentence that is manifestly excessive.
Particulars
2.1 The sentences imposed for individual offences are manifestly excessive.
2.2 The total sentence of 14 years and 3 months imprisonment with a non-parole period of 9 years is inconsistent with a proper application of the totality principle to the circumstances of the [appellant’s] case and is, in any event, manifestly excessive.
3.The learned sentencing Judge erred in the orders she recorded in the Record of Outcome dated 29 July 2024, in that her orders purport to impose a total sentence of 14 years, 3 months and 10 days imprisonment on the [appellant], when the learned sentencing Judge intended to impose a total sentence of 14 years and 3 months imprisonment.
HB appeals against her sentence on the following grounds:
Ground 1 – manifest excess
1.The sentence is manifestly excessive.
Particulars
1.1 The learned sentencing judge (LSJ) erred in failing to have proper regard to the [appellant’s] antecedents and prospects of rehabilitation.
1.2 The LSJ erred in failing to have proper regard to the [appellant’s] role in supporting her grandchildren, and the importance to her grandchildren of her ongoing participation in that support.
1.3 The LSJ failed to have any or adequate regard to the cultural features that were relevant to an assessment of the gravity of her conduct, her role both past and present in the family, and potential hardship to her by serving a term of imprisonment.
1.4 The LSJ erred in finding that, and sentencing the applicant on the basis that, the seriousness of the [appellant’s] offending was greater because she was the victim’s mother.
1.5 The LSJ erred in her approach to fact-finding for the purposes of sentencing the [appellant] as set out in Ground 6.
Ground 2 – non-parole period
2.The non-parole period is manifestly excessive.
Particulars
2.1 As for Ground 1.
Ground 3 - suspension
3. The LSJ erred in failing to suspend the sentence of imprisonment.
Particulars
3.1 As for Ground 1.
Ground 4 – home detention
4. The LSJ erred in failing to order that the sentence be served on home detention.
Particulars
4.1 As for Ground 1.
Ground 5 – discount for guilty plea
5.The LSJ erred in her approach to considering and determining the sentencing discounts applicable to the [appellant] for her guilty pleas.
Particulars
5.1 The LSJ erred in determining a sentencing discount for the [appellant] and her co-offenders globally rather than determining the appropriate sentencing discount applicable to the [appellant].
5.2 The LSJ erred in failing to exercise the discretion to discount the sentences for the [appellant’s] guilty pleas in respect of each offence for which the [appellant] fell to be sentenced.
5.3 In consequence, the LSJ erred in failing to apply the discounts to which the applicant was entitled to the separate head sentences for each offence, and then accounting for time in custody and on home detention.
Ground 6 – factual findings
6.The LSJ erred in her approach to fact-finding for the purposes of sentencing the [appellant].
Particulars
6.1 The LSJ erred in finding that, and sentencing the [appellant] on the basis that, the [appellant] failed to respond to the victim’s requests to be taken to the hospital and ‘continued to falsely imprison’ the victim after the stabbing in circumstances where LB was driving the car and drove it to the family home.
6.2 The LSJ erred in failing to find that, and sentencing the [appellant] on the basis of the victim’s account that, the [appellant] was endeavouring to separate her from other family members when the [appellant] accompanied the victim into the shower.
6.3 The LSJ erred in finding that, and sentencing the [appellant] on the basis that, the [appellant] did not ‘step in to protect’ the victim and ‘get her out of harm’s way’.
6.4 The LSJ erred in finding that, and sentencing the [appellant] on the basis that:
6.4.1the apparent demeanour of the [appellant] on the body worn camera footage and its translation to English (BWC footage) was informative of the [appellant’s] culpability.
6.4.2the BWC footage evidenced that the [appellant] was ‘remarkably calm’, not ‘particularly concerned’ about the victim, and more interested in exculpating herself from the offending.
(Footnotes omitted.)
LB appeals against his sentence on the following grounds:
1.The sentence imposed was manifestly excessive.
2.The sentencing judge erred in failing to utilise either concurrency or totality to ensure that the aggregate sentence imposed was proportionate to the overall criminality and circumstances of the offending and the offender.
3.The sentencing judge erred in imposing only 5% discount in relation to the offence of aggravated causing harm with intent to cause harm when the maximum applicable discount was up to 35%.
The discount for the guilty pleas: Appeal Grounds 1 (KB), 5 (HB) and 3 (LB)
Each appellant complains that the sentencing Judge erred in her treatment of the applicable discount for the guilty pleas by only allowing a five per cent discount for the offence contrary to ss 23(1) and 24(1) of the CLCA (‘the negotiated offence’).
The appellants KB and LB also advance a ground of appeal which contends that the sentencing Judge provided inadequate reasons for her departure from the maximum discounts available.
By contrast, the respondent, while accepting that the appellants were entitled to some discount for the utilitarian benefit of their pleas, submits that the sentencing Judge was entitled to temper the applicable discounts in light of the appellants’ unwillingness to accept any criminality in the lead up to the trial, noting (as her Honour did) that KB’s offer to plead prior to charge determination was never a realistic resolution as it was contingent upon the withdrawal of the charges against all of the co-accused.
The respondent also submits that when the sentencing remarks are read as a whole, there is adequate explanation as to why there was a departure from the maximum applicable discounts.
Before considering this contention, it is necessary to set out the relevant procedural history of the matter leading up to the guilty pleas being entered.
On 16 March 2022, prior to a charge determination being made, KB offered to resolve the matter by pleading guilty to the offence of aggravated cause serious harm with intent to cause serious harm on the basis the charges against the other family members would be withdrawn. This offer was rejected by the Director of Public Prosecutions (‘the Director’).
An Information was laid in the Supreme Court which, inter alia, charged each of the appellants with one count of attempted murder and one count of false imprisonment. On 28 November 2022, the appellants were arraigned in the Supreme Court on that Information and entered pleas of not guilty.
On 16 January 2023, the matter was listed for trial to commence on 21 September 2023.
Prior to 5 September 2023, the appellant KB commenced negotiations with the Director and an offer was put by the Director on 5 September 2023, which was contingent on all offenders pleading guilty. That offer was ultimately rejected. However, there continued to be negotiations between the parties.
A fresh Information was laid on 5 September 2023 which alleged against all appellants, for the first time, the charge of aggravated cause serious harm with intent to cause serious harm, in the alternative to the offence of attempted murder.
A formal offer was made by the Director on 15 September 2023, on the basis that the offer was only available if the matter resolved globally against all appellants. As to KB, the Director agreed to accept guilty pleas to the offences of false imprisonment and aggravated cause serious harm with intent to cause serious harm (in the alternative to attempted murder); and as to HB and LB, guilty pleas to the offences of false imprisonment and aggravated cause harm with intent to cause harm (in the alternative to the offence of aggravated cause serious harm with intent to cause serious harm).
A resolution was then reached, and each appellant pleaded guilty to the offences on 21 September 2023.
Appellant Charges Applicable discount Relevant provision of the Sentencing Act KB Aggravated cause serious harm with intent to cause serious harm. Up to 25%. s 40(3)(a)(i) (a serious indictable offence). False imprisonment. Up to 5% if satisfied there is good reason to do so. s 40(3)(e). HB Aggravated cause harm with intent to cause harm. Up to 35%. s 40(3)(a)(ii). False imprisonment Up to 5% if satisfied there is good reason to do so. s 40(3)(e). LB Aggravated serious criminal trespass in a place of residence. Up to 5% if satisfied there is good reason to do so. s 40(3)(e). Aggravated cause harm with intent to cause harm. Up to 35%. s 40(3)(a)(ii). False imprisonment. Up to 5% if satisfied there is good reason to do so. s 40(3)(e).
Accordingly, the following provisions and discounts applied to the guilty pleas entered by the appellants:
Before the sentencing Judge, counsel for each appellant submitted that the maximum discount should be awarded on account of his or her guilty plea for the negotiated offence. The prosecution, however, submitted that it was appropriate in the circumstances to award a discount less than the maximum primarily due to the late stage at which genuine negotiations took place.
The sentencing Judge, after summarising the history of negotiations, afforded each appellant a discount of five per cent for the negotiated offence on account of the guilty plea. Her Honour said:
As a consequence of the manner in which the charges have evolved over time, there is a difference between the maximum discounts available for the guilty pleas for the various offences. There is, however, a degree of artificiality in apportioning different discounts for different offences when pleas were entered on a global basis on the same day.
The only offer to plead guilty to any offence came from KB during the committal. Whilst I accept the submissions made by [counsel for KB], that KB deserves some credit for being prepared to take ownership of his conduct at that earlier point in time, the offer was never realistic on the basis that it was contingent on all of the charges being dropped against the other accused. Further, the offer was made in circumstances in which eyewitnesses had observed KB stabbing his daughter in a public place in broad daylight. In my view, a fair and consistent approach would be to reduce the sentence for each offence by 5% to reflect that guilty pleas were entered.
On appeal, all appellants contend that the sentencing Judge adopted an erroneous approach to the discount to be awarded for the negotiated offence. More particularly, they submit there was no ‘artificiality’ in apportioning different discounts for the two different offences. Indeed, the legislative scheme expressly contemplates different discounts based on the timing of a guilty plea to an offence relative to when that offence or an alternative offence is charged.
While there is no challenge to the discount of five per cent for the guilty pleas to the false imprisonment offence, each appellant challenges the adequacy of the five per cent discount for the negotiated offence, and KB and LB also challenge the adequacy of the reasons, such as they are, for departing from the maximum applicable discount.
Consideration
Section 40(3) of the Sentencing Act relevantly provides:
40—Reduction of sentences for guilty pleas in other cases
…
(3) Subject to this section, if a defendant has pleaded guilty to an offence or offences—
(a) not more than 4 weeks after the defendant’s first court appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by—
(i) in the case of a serious indictable offence—up to 25%; or
(ii) in any other case—up to 35%; or
(b) more than 4 weeks after the defendant’s first court appearance in relation to the relevant offence or offences but on the day of, or before, the defendant’s committal appearance in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by—
(i) in the case of a serious indictable offence—up to 15%; or
(ii) in any other case—up to 25%; or
(c) during the period commencing on the day after the defendant’s committal appearance in relation to the relevant offence or offences and ending immediately before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by—
(i) in the case of a serious indictable offence—up to 10%; or
(ii) in any other case—up to 15%; or
Note—
See also section 110(3) of the Criminal Procedure Act 1921.
(d) during the period commencing immediately after the defendant is committed for trial for the relevant offence or offences and ending immediately after the first date fixed for the arraignment of the defendant in a superior court—the sentencing court may reduce the sentence that it would otherwise have imposed by—
(i)in the case of a serious indictable offence—up to 5%; or
(ii) in any other case—up to 10%; or
(e) during the period commencing immediately after the first date fixed for the arraignment of the defendant in a superior court in relation to the relevant offence or offences and ending at the commencement of the defendant’s trial for the relevant offence or offences—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 5%.
Of relevance, s 40(5) outlines the considerations that a court must have regard to when determining what discount should be applied for a plea of guilty. The section states:[3]
[3] Sentencing Act 2017 (SA) s 40(5).
(5) In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a) whether the reduction of the defendant’s sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would, or may, affect public confidence in the administration of justice;
(b) the stage in the proceedings for the offence at which the defendant indicated an intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c) whether the defendant was initially charged with a different offence in respect of the same conduct and whether (and at what stage in the proceedings) negotiations occurred with the prosecution in relation to the offence charged;
(d) in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
(e) if the defendant satisfies the court that the defendant could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of the defendant’s control—that fact;
(f) whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings;
(g) whether at any stage in the proceedings for the offence—
(i) the defendant disputed the factual basis of the plea; and
(ii) a hearing occurred in relation to the dispute; and
(iii) the dispute was not resolved in favour of the defendant;
(h) if the prosecution satisfies the court that the defendant intentionally concealed the commission of the offence to which the defendant’s sentence relates—that fact, and the period of time for which the concealment persisted;
(i) whether the prosecution’s case against the defendant (the assessment of which should ordinarily be made by reference to evidence in the form of an affidavit, or any other documentary evidence) is so overwhelming that a reduction of the defendant’s sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice;
(j) whether any genuine remorse on behalf of the defendant for the commission of the offence is so lacking that a reduction of the defendant’s sentence by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice,
and may have regard to any other factor or principle the court thinks relevant.
It is evident from a plain reading of the provisions that the available statutory discounts for a guilty plea are linked to key steps in criminal proceedings, and different discounts will be awarded based on the timing of a guilty plea relative to when the relevant offence (or alternative offence) was charged. It follows that the prescribed maximum discounts must operate as both limits and yardsticks.[4]
[4] R v Bahrami (2020) 137 SASR 327 at [52] (Kourakis CJ).
The utilitarian purpose of the legislative statutory sentencing reduction scheme encapsulated in s 40(3) of the Sentencing Act (and its predecessor, s 10C of Criminal Law (Sentencing) Act 1988 (SA)) has been emphasised by this Court in a series of judgments.[5]
[5] R v McPhee [2014] SASCFC 107 at [44]-[46] (Nicholson J); R v Dwyer (2015) 121 SASR 587 at [35] (Stanely J, Kourakis CJ and Gray J agreeing); R v Nguyen [2015] SASCFC 40 at [18]-[19] (Nicolson J, Sulan and Lovell JJ agreeing); R v Palmer [2016] SASCFC 34 at [19] (Stanley J, Kourakis CJ and Doyle J agreeing); R v Bahrami (2020) 137 SASR 327 at [23]-[50] (Kourakis CJ), [91]-[95] (Livesey J and Bleby J agreeing).
In R v Davey, Kourakis CJ explained:[6]
The burden of that observation is that the utilitarian purpose of the statute is a relatively weighty consideration which cannot be achieved unless there is a reasonable degree of certainty that a reduction approaching the maximum will be made. In particular, the statutory purpose would be substantially undermined unless, on pleading guilty in one period, a defendant could be reasonably confident that the reduction will be greater than the maximum reduction available for the subsequent statutory period.
Of course, the statutory discretion must be exercised on the facts of each case. However, in order to satisfy the statutory purpose, which is in turn dependent on generating a reasonable degree of certainty in the generality of cases, one would expect there to be significant countervailing circumstances before a defendant would be denied the substantial part of the available reduction.
[6] R v Davey [2017] SASCFC 151 at [47]-[48] (Kourakis CJ, Stanley and Hinton JJ agreeing).
Section 40(5) sets out the factors a sentencing judge must take into account when determining the discount to be awarded within a particular period. The section imposes limits on the scheme of discounts it prescribes and allows, in some circumstances, that the public policy reasons for the statutory sentencing reduction scheme (including the utilitarian benefit of guilty pleas) yield to competing public policy considerations.
It is, however, to be observed that the mandatory considerations in s 40(5) primarily relate to the stage of proceedings at which the guilty plea is entered, and for that reason, if a full reduction is not given, the court will generally exercise some caution before confining a defendant to a reduction which is less than maximum for the next percentage band.[7]
[7] R v Bahrami (2020) 137 SASR 327.
Having said that, the considerations set out in s 40(5) also include that a court ‘may have regard to any other factor or principle the court thinks relevant’, suggesting that a sentencing judge will nonetheless retain a wide discretion when applying the statutory criteria.
When departing from the applicable maximum discount available, a sentencing judge must provide adequate reasons for doing so to ensure that the utilitarian purpose of the statutory scheme is not undermined.[8] As Nicholson J explained in R v Nguyen:[9]
… There will be cases where a proper exercise of the discretion will result in something less than the maximum. However, the utility of the scheme will be seriously undermined if accused persons and their counsel do not understand the reasons why, in other cases and in their own case, the maximum might not have been and might not be, respectively, forthcoming. Given the greater emphasis under the statutory regime on the utility of an early plea as compared with the more amorphous remorse and contrition, reasons and an understanding of their role have become more important.
[8] R v Dwyer (2015) 121 SASR 587 at [35] (Stanley J, Kourakis CJ and Gray J agreeing); see also R v Nguyen [2015] SASCFC 40 at [18] (Nicholson J, Sulan and Lovell JJ agreeing); R v Palmer [2016] SASCFC 34 at [19] (Stanley J, Kourakis CJ and Doyle J agreeing).
[9] R v Nguyen [2015] SASCFC at [19] (Nicholson J).
The requirement to give reasons explaining the discount does not mean that the maximum discount should be awarded unless there is good reason not to do so. As was explained in R v Bahrami, such an approach would ‘bias the balancing process in a way not authorised by the text of the provision’.[10] However, generally speaking, there will need to be ‘significant countervailing circumstances before a defendant [is] denied the substantial part of the available reduction’.[11]
[10] R v Bahrami (2020) 137 SASR 327 at [46] (Kourakis CJ).
[11] R v Davey [2017] SASCFC 151 at [48] (Kourakis CJ, Stanley and Hinton JJ agreeing).
We turn now to applying those general principles and observations as to the operation of s 40 and the statutory sentencing reduction scheme to the present case.
In relation to KB, it is common ground between the parties that the appellant was entitled to a reduction of up to 25 per cent for the negotiated offence. When determining the applicable discount, the sentencing Judge was required under ss 40(5)(b) and (c) to have regard to the stage in the proceedings at which KB indicated an intention to plead guilty and whether (and at what stage in the proceedings) negotiations occurred with the prosecution in relation to the offence charged. Thus, the unrealistic nature of the offer put by KB before charge determination, and the fact that there were no further attempts to negotiate with the Director until September 2023, were material considerations capable of justifying an award of less than the applicable maximum discount.
Nonetheless, there would have been no ‘artificiality’ in apportioning different discounts for the two different offences. While it is true that the false imprisonment offence was factually linked to the negotiated offence, the Sentencing Act expressly contemplates different maximum discounts based on the timing of the guilty pleas relative to when the charges are laid.
Moreover, the circumstances in which the appellant KB entered guilty pleas for the two offences were distinctly different. The appellant was charged with the offence of false imprisonment from the outset of the criminal proceedings and on each Information laid. By contrast, the Director first charged the negotiated offence about two weeks before the appellant entered a plea of guilty to that charge. Prior to this time, the appellant was only charged with the offence of attempted murder, to which the offence of aggravated cause serious harm with intent to cause serious harm is not a statutory or common law alternative charge. As such, the appellant was not able to plead guilty to the negotiated offence until it was charged.[12]
[12] R v Muldoon (2015) 123 SASR 1.
In addition, there was a strong prosecution case in respect of the charge of false imprisonment with independent eyewitnesses to the relevant conduct. However, the realistic success of a prosecution on the attempted murder charge was doubtful. As the appellant submits, the relevant wounds were limited in number and did not bespeak an intention to kill, but rather, seriously harm the victim.
In those circumstances, and notwithstanding KB’s limited efforts to negotiate with the Director until a late stage in the proceedings, we do not consider that it was open to the sentencing Judge to award a five per cent discount for the appellant’s guilty plea to the negotiated offence. Her Honour’s decision to apply a five per cent reduction (equal to the maxima available under the fourth and fifth bands of percentage reductions),[13] was inconsistent with the utilitarian statutory purpose of the scheme. The utilitarian benefit from the appellant’s guilty pleas meant a lengthy, costly and difficult trial was avoided, and the victim was spared from giving evidence.[14] The discount afforded failed to properly account for the significant utilitarian benefit of the appellant’s guilty plea.
[13] See Sentencing Act 2017 (SA) ss 40(3)(d) and 40(3)(e).
[14] R v Bahrami (2020) 137 SASR 327 at [25] (Kourakis CJ), [92]-[94] (Livesey J and Bleby J agreeing).
Nor do we consider the sentencing Judge provided adequate reasons for awarding only a five per cent discount. While her Honour noted that the pleas were the subject of negotiations and entered on a ‘global basis’ on the same day, that is not a matter of any great significance. As explained earlier, the applicable discount will be awarded based on the timing of a guilty plea relative to when the relevant offence (or alternative offence) was charged. In addition, apart from referring to KB’s earlier offer to plead guilty as being unrealistic, her Honour did not refer, in terms or otherwise, to any of the relevant mandatory considerations enunciated in s 40(5) so as to adequately explain why significantly less than the maximum discount was awarded.
For those reasons, we allow KB’s appeal on this ground.
In relation to HB and LB, it was common ground that each appellant was entitled to a reduction of up to 35 per cent for every guilty plea to the negotiated offence. For the reasons given earlier, we do not consider that it would have been artificial to award different discounts on account of the guilty pleas entered by HB and LB to the two different offences. Indeed, in relation to both HB and LB, it was not open to the sentencing Judge to award only a five per cent discount for the guilty pleas in relation to the negotiated offence. The prosecution case on the attempted murder charge against each appellant was not strong; and the negotiated offence was not available as an alternative until the Information was laid charging the alternative offence about two weeks before each appellant entered guilty pleas.
While it is true that neither appellant initiated any negotiations with the Director, and their failure to do so was a relevant consideration under ss 40(5)(b) and (c), this did not justify such a significant departure from the maximum applicable discount of 35 per cent.
It must also be borne in mind that when all of the co-accused (and members of the same family) were permitted to speak to each other after their bail conditions were varied on 20 September 2023, there was a prompt willingness by both HB and LB to resolve the matter. As to HB, her failure to do so earlier, to some extent, reflected her cultural and familial subservience to her husband. As to both appellants, it could also be seen as a consequence of the Director’s intimation early on, and throughout the proceedings, that he was unlikely to accept an offer other than a global resolution of the charges (that is, guilty pleas from all accused).
The discount awarded also failed to properly account for the significant utilitarian benefit of the appellants’ guilty pleas. Their pleas spared the victim giving evidence and the State a long running trial. There was also no suggestion that the guilty pleas did not reflect the appellants’ remorse and contrition when they were entered and a willingness to facilitate the administration of justice.
As contended by LB, we are also satisfied that the sentencing Judge did not provide adequate reasons for allowing only a five per cent discount. While it is to be accepted that her Honour notes that, apart from KB, there were no earlier offers to plead guilty, this does not adequately explain such a significant departure from the applicable maximum discount.
For those reasons, we allow HB’s appeal on Ground 5 and LB’s appeal on Ground 3.
As to the appellant HB’s aligned complaint that the sentencing Judge allowed an inadequate reduction for time spent on home detention bail, we reject this contention. The appellant submits that given her Honour reduced the head sentence and non-parole period ‘by 10 months on the basis of the time that [HB] spent in custody [and] on home detention’, and assuming full credit of four months and one day for the time spent in custody was applied, her Honour reduced the sentence by about six months (or less than 25 per cent) for the time spent on home detention bail.
In support of this contention, the appellant emphasises that she was required to leave the family home for a period of time and could not travel more than five kilometres from her bailed address (except for particular purposes); she was not permitted to have contact with the co-accused (who were close family members); and she strictly complied with the conditions.
The sentencing Judge explicitly referred to the fact HB served 122 days in custody on remand and thereafter was subject to home detention bail. There exists a broad discretion as to the appropriate reduction in a sentence for time spent on home detention bail. This will vary depending on the circumstances of the case and the precise nature of the bail conditions and their impact upon a defendant.[15] There is no precise mathematical formula, or hard and fast rules, to be applied in the exercise of the broad discretion.
[15] R v Tsonis (2018) 131 SASR 416 at [86] (Lovell, Doyle and Hinton JJ).
In the present case, the appellant was still afforded some degree of liberty while on home detention bail, and while some judges may have afforded a greater reduction for the time spent on home detention bail, we do not consider that the approach taken, or the ultimate reduction, was erroneous.
Factual findings: Appeal Grounds 1 and 6 (HB)
Under appeal Grounds 1 and 6, the appellant HB complains that the sentencing Judge made four erroneous factual findings. As this is an appeal by way of re-hearing and we have determined that the appellant HB is to be re‑sentenced by this Court, it is appropriate to consider the complaints raised under this ground of appeal and whether her Honour made erroneous factual findings. We turn to consider each alleged factual error in turn.
First, the appellant complains that the sentencing Judge failed to take into account the appellant HB’s cultural background when assessing her moral culpability for the offending and when making other factual findings. In essence, the appellant contends that her Honour did not have regard to the appellant’s subservient role to her husband and males within her family when considering her actions on the relevant evening and her overall moral culpability.
Contrary to this submission, on a consideration of the whole of the sentencing remarks, it is apparent that the sentencing Judge had regard to the broader cultural context in which HB’s offending occurred. This issue was specifically addressed at the commencement of the sentencing remarks when referring to the subservient role of women within the Pashtun community, and again when outlining the appellant’s personal circumstances. It was also at the forefront of submissions before her Honour. As such, any suggestion that her Honour proceeded to ignore this consideration when making her factual findings and sentencing the appellant cannot be sustained.
Secondly, the appellant contends that the sentencing Judge erroneously found that the victim ‘begged [HB] to be taken to the hospital but that fell on deaf ears’. Upon our review of the materials and, in particular, the statements provided by the victim, we are not satisfied that finding was erroneous. The victim said that once she was detained inside the vehicle, and after she had been stabbed by KB and was visibly bleeding, she yelled out for an ambulance and to be taken to hospital. Yet, HB did not render first aid or tend to her wounds. Nor did HB ask LB (who was driving the vehicle) to take her to a hospital. Rather, the victim said that HB yelled at LB to take her home. The victim was then physically dragged inside by HB and her elder sister, BB. Given that evidence, there was no error by her Honour when finding that the victim’s request to be taken to a hospital was ignored by HB.
Thirdly, the appellant contends that the sentencing Judge erred when finding that HB was not ‘doing [her] best to help’ the victim. Whilst her Honour accepted that HB did provide some assistance to the victim, she ultimately considered that HB was not ‘doing her best’ or, in other words, any assistance was, to some extent, inadequate. It is true that there was evidence that upon their return to the home, HB handed the victim a cloth to put against her wounds, remained in the shower with the victim for a short period, and brought her a glass of water after police arrived. However, notwithstanding those matters, HB’s assistance fell short of HB ‘doing her best’ to help the victim, bearing in mind she is the victim’s mother, and the seriousness of the injuries sustained by the victim would have been obvious to her. That is so notwithstanding any cultural considerations and HB’s subservient role as a woman within the Pashtun community. Even accepting those cultural matters, we are not satisfied that her Honour’s finding as to the inadequacy of HB’s assistance to the victim was erroneous.
Fourthly, the appellant challenges the sentencing Judge’s findings that HB was ‘remarkably calm’, ‘[did] not seem particularly concerned about [her] daughter’ and ‘surprisingly composed, attempting to control the narrative of what had happened’. After reviewing all the materials before her Honour, we are satisfied that finding was not erroneous. The police body worn camera footage revealed HB repeatedly instructing IJ what to tell police, pressuring her not to say anything incriminating and urging her to provide a false account as to how the victim sustained her injuries. This revealed that the appellant’s focus was on the consequences of her actions rather than the victim’s injured state. While there were moments where the appellant appeared upset, the overwhelming impression was of a calm and composed demeanour as described by her Honour. Even considered through a cultural prism, as urged by the appellant, we are satisfied that her Honour’s findings were not erroneous.
For those reasons, we would dismiss this ground of appeal.
Re-sentencing
We have already outlined the circumstances of the offending, each appellant’s personal circumstances and the legal basis upon which they fell to be sentenced. We have had regard to those matters in re-sentencing each appellant. We have taken into account the ‘fresh evidence’ of the victim’s affidavit sworn on 9 February 2025.
KB
In relation to KB, the appellant committed the offence of false imprisonment against the victim by detaining her against her will in a public place in a calculated and brazen manner. Whilst the appellant’s decision to use the knife to inflict stab wounds on the victim was spontaneous and made in the heat of the moment, it was he who introduced a knife into the fray. KB caused serious mental and physical harm to the victim. The offending involved a gross breach of trust owed by a father to his child. Accordingly, principles of both general and personal deterrence must be emphasised in the sentence, as well as the denunciation of such serious unlawful conduct.
Notwithstanding those matters and having regard to the appellant’s age, lack of criminal history, disadvantaged background and remorse, we adopt a slightly lower starting point for the offence of aggravated cause serious harm with intent to cause serious harm. We also apply a degree of concurrency between the sentence for each offence, bearing in mind that there was a degree of overlap in time and circumstance between the commission of the offences.
For the offence of aggravated cause serious harm with intent to cause serious harm, we adopt a starting point of nine years’ imprisonment which we reduce by 18 months (or slightly more than 15 per cent) on account of his guilty plea to seven years and six months’ imprisonment. We have not awarded the maximum applicable discount because of the late stage at which the appellant engaged in realistic negotiations with the Director.
In relation to the offence of false imprisonment, like the sentencing Judge, we adopt a starting point of five years’ imprisonment which we reduce by five per cent on account of his guilty plea to four years and nine months’ imprisonment. We order that one year and nine months of that sentence be served concurrently with the earlier sentence of seven years and six months, resulting in a head sentence of 10 years and six months’ imprisonment. We fix a non-parole period of seven years and six months’ imprisonment.
We order the sentence be backdated to commence on 30 November 2021 when KB was taken into custody.
HB
In relation to HB, the offending was undoubtedly serious. Her decision to detain her daughter against her will was calculated and far from spontaneous. While she was not the principal offender and had no knowledge that KB was in possession of a knife until he stabbed the victim, she nonetheless contemplated that her husband may engage in conduct causing harm to her child. As the sentencing Judge found, HB’s role in the offending was integral to the plan to detain the victim as she was the only member of the family that the victim trusted sufficiently enough to meet. Her offending involved a gross breach of trust. It is necessary to impose a denunciatory sentence which meets the sentencing objectives of both general and personal deterrence.
For the offence of aggravated cause harm with intent to cause harm, we adopt a starting point of five years’ imprisonment which we reduce by one year and three months (or 25 per cent) on account of her guilty plea. We have not awarded the maximum applicable discount because of the late stage at which the appellant engaged in negotiations with the Director. This results in a sentence of three years and nine months’ imprisonment.
In relation to the offence of false imprisonment, we adopt a starting point of three years’ imprisonment which we reduce by five per cent on account of her guilty plea to two years, 10 months and seven days’ imprisonment. We order that one year and six months be served concurrently with the earlier sentence of three years and nine months, resulting in a head sentence of five years, one month and seven days’ imprisonment. We fix a non-parole period of three years and six months’ imprisonment.
We reduce the head sentence by 12 months and the non-parole period by 12 months for time served in custody and on home detention bail. This is slightly higher than the reduction made by the sentencing Judge. This results in a head sentence of four years, one month and seven days’ imprisonment, with a fixed non‑parole period of two years and six months’ imprisonment.
Having regard to the seriousness of the offending and the gross breach of trust involved, and notwithstanding the appellant’s lack of prior convictions and other positive personal circumstances, we do not consider there is good reason to suspend the sentence.
As to the question of a home detention order, we consider that, bearing in mind the seriousness of the offending, the need for the sentence to reflect principles of general deterrence and a denunciation of this type of familial unlawful conduct, such an order, in the circumstances of this case, would adversely affect public confidence in the administration of justice. We decline to order the sentence be served on home detention.
We order the sentence be backdated to commence on 29 July 2024.
LB
In relation to LB, the appellant’s conduct was pre-meditated and calculated in that he was party to a plan to kidnap the victim, force her home against her will and he contemplated that whilst the plan was on foot, KB might inflict harm upon her, but not serious harm involving a knife. Moreover, in the days earlier LB and his younger brother, SB, unlawfully entered another premises occupied by a person unconnected to the victim, for the purpose of locating the victim and forcing her home, and in doing so, contemplated that an occupant of the premises might be assaulted.
LB’s offending was aggravated by the fact he was subject to a suspended sentence bond at the time of the offending. He also did not immediately express any remorse for his offending. Indeed, shortly after the offending, he telephoned FM and threatened to break his legs and shoot him. Given LB’s antecedents and failure to comply with past court-imposed orders, we are guarded as to his prospects of genuine rehabilitation.
For the offence of aggravated cause harm with intent to cause harm, we adopt a starting point of five years’ imprisonment which we reduce by one year and three months (or 25 per cent) on account of his guilty plea. We have not awarded the maximum applicable discount because of the late stage at which the appellant engaged in negotiations with the Director. This results in a sentence of three years and nine months’ imprisonment.
In relation to the offence of false imprisonment, we adopt a starting point of three years’ imprisonment which we reduce by five per cent on account of his guilty plea to two years, 10 months and seven days’ imprisonment. We make one year and six months concurrent with the earlier sentence of three years and nine months resulting in a head sentence of five years, one month and seven days’ imprisonment.
In relation to the offence of aggravated serious criminal trespass in a place of residence, we impose a sentence of two years and six months, reduced by five per cent for his plea of guilty to two years, four months and 17 days’ imprisonment, to be served cumulatively on the earlier sentences. That results in a head sentence of seven years, five months and 24 days’ imprisonment.
There was also an application to revoke the suspended sentence of five months’ imprisonment. There has been no suggestion there are not proper grounds to do so. We revoke the sentence of five months and order that it be served cumulatively on the other sentences, resulting in a head sentence of seven years, 10 months and 24 days’ imprisonment. We fix a non-parole period of five years and six months’ imprisonment.
We order the sentence be backdated to commence on 30 November 2021 when LB was taken into custody.
Orders:
1. Permission to appeal is granted to each appellant.
2. The appeals are allowed on Grounds 1 (KB), 5 (HB) and 3 (LB), the sentences are quashed, and each appellant is re-sentenced.
3. In relation to KB, we order a head sentence of 10 years and six months’ imprisonment, with a non-parole period of seven years and six months’ imprisonment. We order the sentence commence on 30 November 2021.
4. In relation to HB, we order a head sentence of four years, one month and seven days’ imprisonment, with a non-parole period of two years and six months’ imprisonment. We order the sentence to commence on 29 July 2024.
5. In relation to LB, we order a head sentence of seven years, 10 months and 24 days’ imprisonment, with a non-parole period of five years and six months’ imprisonment. We order the sentence to commence on 30 November 2021.
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