Klosowski v The Queen - [2021] SASCA 85

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KLOSOWSKI v THE QUEEN
[2021] SASCA 85
Judgment of the Court of Appeal
(The Honourable President Kelly, the Honourable Justice Doyle and the Honourable Justice Livesey)
26 August 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD
The appellant was convicted of two counts of murder by fatally shooting his son and his son’s girlfriend after the appellant, in a state of intoxication, became enraged after a domestic argument.
On 1 April 2021, the appellant was sentenced to life imprisonment for each count of murder. The sentencing Judge identified that a starting point of 40 years non-parole was appropriate, which was reduced to 34 years on account of the appellant’s early guilty pleas. This represented a 15 per cent reduction.
The appellant appeals against the sentence on the basis that the non-parole period is manifestly excessive. In particular, the appellant contends that the starting point of 40 years was too high, and the 15 per cent reduction was inadequate in circumstances where the appellant was entitled to a reduction of up to 40 per cent under the Sentencing Act 2017 (SA).
Held per Kelly P and Livesey JA (Doyle JA agreeing), granting permission to appeal and dismissing the appeal:
1.      While the starting point of 40 years might be described as severe, it was not outside the range available to the sentencing Judge.
2.      The non-parole period was not manifestly excessive.
3.      No error has been established that would justify the intervention of this Court.
Sentencing Act 2017 (SA) s 40; Criminal Procedure Act 1921 (SA), referred to.
Hili v The Queen (2010) 242 CLR 520; Ndreka v The Queen [2021] SASCA 11; Munda v Western Australia (2013) 249 CLR 600; R v Peet [2018] SASCFC 91; R v Davey [2017] SASCFC 151; R v Bahrami (2020) 286 A Crim R 394, applied.
R v Bunting; R v Wagner (Supreme Court of South Australia (Sentencing Remarks), Martin J, 29 October 2003); R v Downie (Supreme Court of South Australia (Sentencing Remarks), Sulan J, 17 April 2012); R v Olsson (Supreme Court of South Australia (Sentencing Remarks), Bampton J, 5 April 2018; R v Rust (Supreme Court of South Australia (Sentencing Remarks), Nyland J, 30 April 2004); R v Shove (Supreme Court of South Australia (Sentencing Remarks), Kelly J, 4 October 2013); R v Stewart (1984) 35 SASR 477; R v Tran (Supreme Court of South Australia (Sentencing Remarks), Doyle CJ, 11 December 2009), discussed.
Hackett v The Queen [2021] SASCA 32; R v Hallcroft (2016) 126 SASR 415; WCB v The Queen (2010) 29 VR 483; Wong v The Queen (2001) 207 CLR 584, considered.

KLOSOWSKI v THE QUEEN
[2021] SASCA 85
Court of Appeal – Criminal: Kelly P, Doyle and Livesey JJA
Kelly P and Livesey JA:
Introduction

This is an application for permission to appeal against sentence.
On 30 November 2020, the appellant was convicted of two counts of murder for fatally shooting his biological son, Lukasz Pawel Klosowski, and Lukasz’s girlfriend, Chelsea Rose Ireland. The offending occurred on the night of 22 August 2020 at a rural property located between the townships of Kalangadoo and Mount Burr in the south east of South Australia. It was committed in the context of the appellant being in an intoxicated and enraged state.
On 1 April 2021, the appellant was sentenced to life imprisonment for each count of murder. In fixing a non-parole period, the sentencing Judge identified a starting point of 40 years. After applying a reduction of 15 per cent for the appellant’s pleas of guilty, a non-parole period of 34 years was imposed. The sentence was backdated to 23 August 2020, the date the appellant was taken into custody for the offending.
The appellant appeals against the sentence imposed on the basis that the non-parole period is manifestly excessive. In particular, it is contended that the starting point was, in all the circumstances, too high. It was also argued that the reduction of 15 per cent for the appellant’s guilty pleas was too low given the pleas were entered within the first four weeks of the appellant’s first court appearance.
In light of the Director’s concession that the single ground of appeal was appropriate to refer to the Court of Appeal, a Judge of this Court administratively referred the matter to the Court of Appeal on 11 May 2021. For the following reasons, permission to appeal should be granted but the appeal dismissed.
Factual basis of the offending
There was no dispute as to the factual basis for sentence. However, it is necessary to restate those facts for the purposes of the appeal.
Lukasz and Chelsea commenced their relationship in May 2018. At the time of the murders, they were both aged 19 years.
The appellant was married to Lukasz’s mother, Magda, from April 2000 until 2012. Following their divorce, the appellant’s contact with Lukasz was irregular and at times, strained, due to the appellant’s confrontational and intimidating behaviour towards Lukasz. Lukasz knew the appellant to be someone who got angry easily and who drank a lot of alcohol.
In the first half of 2020, Lukasz noticed that the appellant wanted to build a relationship with him and be in his life more. The appellant was living at Mount McIntyre with his second wife, Monica Klosowski, and three of her four children, who are from a previous relationship.
Lukasz and Chelsea arranged to visit the appellant in Mount McIntyre on the weekend of 22 August 2020. They had previously visited the premises in February 2020. During that visit, the appellant gifted Lukasz a car for his birthday to encourage him to visit more.
Prior to their visit on the weekend of 22 August 2020, Chelsea told her friends that she did not want to go, but that she wanted to be there to support Lukasz. She stated that the appellant was always drunk and would argue with, and make fun of, Lukasz, which would upset him.
On Friday, 21 August 2020, Lukasz and Chelsea arrived at the appellant’s house at Mount McIntyre at about 9:00pm. The appellant’s wife and children arrived at the house at around 10:30pm and the appellant arrived about 15 minutes later. They all stayed up chatting before going to bed at about midnight.
The following morning, on 22 August 2020, the appellant started drinking beer at approximately 9:30am. The appellant’s wife went to work and the rest of the household, including the appellant and Lukasz, went to a football game at Kalangadoo oval. The appellant drank about six beers at the football game and bought a carton of beer on the way home from the game. His wife purchased another carton of beer later that afternoon at the appellant’s request.
That evening, the household ate together around a fire pit and remained outside playing games, drinking and talking. The appellant and Lukasz were drinking beer. The appellant’s stepson went to bed at around 8:00pm as he was feeling unwell.
A short time later, Lukasz told the appellant that he was considering moving out of his mother’s house to live with friends. The appellant pressed Lukasz to discuss the matter further, which caused Lukasz to become upset. Chelsea intervened and told the appellant to “stop”. At 10:46pm, Chelsea sent a message to her friend saying that the night had “turned to shit” and that she and Lukasz were crying. The appellant’s wife told Chelsea that the appellant was “pissed as fuck” and said that “this happens every single week, if it’s not about Lukasz it’s about one of the other kids.” The appellant’s wife attempted to diffuse the situation and things calmed down. As it began to get cold, they all moved into the garage.
Once in the garage, it became apparent that the appellant was angry with Lukasz for not wanting to discuss the topic of moving out of home. An argument started between the appellant and Lukasz, which involved yelling and swearing. Chelsea and the appellant’s wife both told the appellant to leave Lukasz alone. The appellant’s stepson, who had been asleep upstairs, awoke to hear the appellant and Lukasz arguing.
At about 11:04pm, Lukasz sent a video to a friend, in which the appellant can be heard raising his voice and slurring his words. At 11:06pm, Lukasz sent two voice messages to his friends via Facebook Messenger. In the audio footage, the appellant could be heard swearing and referring to land in Point Turton owned by Lukasz’s mother.
Sometime after 11:06pm, the appellant told Lukasz and Chelsea to pack their bags and leave his property. Lukasz and Chelsea left the garage and, as he was leaving the garage, Lukasz said, “fuck this” and threw his can of beer on the ground. The appellant stormed after Lukasz as he walked up the stairs in the house. Chelsea attempted to block the appellant at the base of the staircase, but the appellant pushed past her and followed Lukasz upstairs. The appellant’s wife and Chelsea followed them upstairs.
The appellant and Lukasz came to be upstairs in the spare room. The appellant’s wife described seeing Lukasz on his back on a bed with his hands in the air, as if he had just been pushed by the appellant. There was further argument between Lukasz and the appellant. The appellant told Lukasz to pack his things and get out. Lukasz said he was trying. Chelsea became involved and said, “stop, stop, this is your son”. Lukasz was crying and the appellant said “cry, cry little baby”. As the appellant went to leave the room, Chelsea swore at him. He then pushed her onto the bed, held himself over her and yelled at her. Chelsea was heard to say, “let go of me, let go of me.” She attempted to push the appellant away. The appellant then said, “fuck this, where’s my gun”.
The appellant pushed past his wife, who was in the room, and retrieved the keys to the gun safe from the upstairs bedroom. He walked downstairs to the gun safe, which was stored in a cupboard underneath the stairs. The appellant’s wife followed him and pleaded with him not to get a gun. She returned upstairs and told her two children to get out of the house and hide. She then followed her children downstairs and watched them go outside before returning to the gun safe, where the appellant was standing. She could hear Lukasz telling Chelsea to grab her things and pack a bag.
The appellant unlocked the gun safe and retrieved a 12-gauge double barrel shotgun. He loaded a round of ammunition into each barrel and placed further rounds in his pocket.
Lukasz appeared at the top of the stairs. The appellant raised the gun and shot at him from around the base of the staircase. The appellant’s wife could hear that Chelsea was near Lukasz when the first shot was fired. She ran out of the front door to look for her children. On the prosecution case, the first shot did not hit Lukasz, but rather hit the brick wall of the staircase.
Lukasz attempted to escape into a bedroom immediately to the right of the staircase. Chelsea fled to the upstairs bathroom. The appellant walked up the stairs and fired a second shot, striking Lukasz in the upper right-hand side of his chest. Lukasz stumbled into the bedroom. Lukasz’s cause of death was attributed to being shot in the chest at close range. The firearm was between 120 centimetres and 130 centimetres from him when it was discharged.
Chelsea, having locked herself in the upstairs bathroom, made a desperate call to triple zero at 11:21pm. An audio recording of that call was listened to by the sentencing Judge. During the call, Chelsea told the operator that she was in a bathroom, that shots had been fired, that her boyfriend’s father was really angry and had just assaulted them, and that he was trying to shoot them.
Fifty-seven seconds into the call, the appellant can be heard reloading the firearm. He then shot at the locked bathroom door and entered the bathroom. Chelsea was in the bathtub on the phone to emergency services. She can be heard screaming and telling the operator that he is trying to shoot her. Another gunshot is then heard. This shot struck Chelsea in the upper right side of her shoulder.
Chelsea survived for several minutes and responded to the operator, before the line went silent. Her cause of death was attributed to a close-range shotgun wound of the right axilla and chest. The firearm was between 90 centimetres and 100 centimetres from Chelsea when it was discharged.
A short time after Chelsea was shot, the appellant called out to his wife. His wife approached the house and saw him walking out of the front door with the firearm in his hands. He said, “I’ve shot my son. I think I’ve shot my son.” He asked his wife to go and see if Lukasz was alive. She went upstairs and saw Lukasz lying face down on a bed. She told the appellant what she had seen. The appellant then asked about Chelsea, and his wife said that she did not know what had happened to Chelsea and refused to go back into the house. The appellant said that Chelsea had called the police. The appellant’s wife returned to where her children were hiding and waited for police.
The appellant reloaded his firearm and waited for the police to arrive. The police arrived at approximately 12:10am on 23 August 2020. They found the appellant seated on a couch in the lounge room with a black firearm on his lap. The firearm contained a shotgun shell in each chamber of the firearm. The shells were live rounds that had not been discharged. During a search of the appellant, police also located two live shotgun shells and the key to the gun safe in the right pocket of his pants. Police and paramedics were unable to detect a pulse on Lukasz or Chelsea.
The appellant’s wife and two children were found by police crouched in a small alcove at the rear of the property. They heard the gunshots from where they were hiding.
The appellant was arrested and taken to the Mount Gambier Police Station. He submitted to an alcotest at 1:53am on 23 August 2020 and returned a blood alcohol concentration of 0.176. In light of the results from a blood sample taken at 7:15am on 23 August 2020, the appellant was estimated to have had a blood alcohol concentration of 0.22 per cent at the time of the murders.
Sentencing of the appellant
The appellant was sentenced on 1 April 2021. He was aged 46 at the time of sentencing.
The sentencing Judge heard submissions on sentence on 22 March 2021. On that date, the appellant read an apology in Court, during which he expressed remorse for the offending.
The sentencing Judge had before her expert reports from psychiatrist, Dr Craig Raeside, neuropsychologist, Dr Emma Fitzgerald, psychologist, Mr Luke Broomhall and pharmacologist, Professor Jason White. It was accepted by the appellant’s counsel that the reports provided did not mitigate or excuse the appellant’s behaviour. The effect of those reports was that the appellant, at the time of the offending, had a history of anger management issues and consumed alcohol heavily on a regular basis, which exacerbated his anger issues. Whilst the appellant also had a history of seizures and head injury, the offending was predominantly caused by the appellant’s intoxicated state and his level of anger. Although the appellant’s behaviour was impulsive, Dr Raeside and Mr Broomhall characterised the appellant’s actions immediately leading up to the murders as “purposeful” and “deliberate”.
Having considered those reports, alongside the large number of victim impact statements provided to the Court, the sentencing Judge turned to sentence. The sentencing Judge imposed a mandatory sentence of life imprisonment for each offence of murder. The sentencing Judge then turned to the fixing of a non-parole period. She acknowledged that a discount of up to 40 per cent was available to the appellant, due to his early guilty pleas. The sentencing Judge correctly noted that “[t]he Full Court has stated there would need to be significant countervailing circumstances before a substantial part of the available reduction is denied.”
The sentencing Judge identified that the inherent seriousness of the offending and the strength of the prosecution case militated against the maximum discount of 40 per cent. The sentencing Judge told the appellant:
To reduce the non-parole period in the circumstances of your offending by close to the maximum of 40% would, in my view, result in a sentence that is so disproportionate to the seriousness of your offending such that it would affect public confidence in the administration of justice. The question of disproportion is measured against the mandatory minimum non-parole period, which has been set by parliament for an offence at the lower range of the range of objective seriousness. The circumstances of your offending are at the higher end of seriousness for the offence of murder. A substantial non-parole period is necessary, as you have committed two separate offences of murder involving the use of a firearm against two young people who presented no threat to you.
The sentencing Judge fixed a single non-parole period of 40 years, allowing for “some measure of concurrency”. This was reduced by 15 per cent on account of the appellant’s guilty pleas, resulting in a non-parole period of 34 years. The sentence and non-parole period were set to commence on 23 August 2020.
The appeal
The facts of this case do not give rise to any need to revisit the principles which apply to the application of the sentencing discretion afforded by virtue of ss 40 and 41 of the Sentencing Act 2017 (SA) (the Sentencing Act). This Court in R v Bahrami recently discussed the relevant considerations which apply.[1] The majority (Livesey J, with whom Bleby J agreed) rejected an approach that was too prescriptive when determining the reduction to be afforded to an offender, with specific reference to the provisions contained in s 40(5) of the Sentencing Act:[2]
The focus of the sentencing court under s 40(5)(a) is whether, having regard to these matters, the contemplated percentage is “so disproportionate” or “so inappropriate” that applying that reduction would or may “affect public confidence in the administration of justice”. If the contemplated reduction would or may have that effect, then that reduction ought not be made.
In less serious cases, particularly where there is laudable cooperation, genuine contrition, good rehabilitation prospects and no counter-veiling considerations, it may well represent an appropriate exercise of the discretion to allow the maximum reduction.
However, each case depends on its own circumstances. There is no entitlement to a reduction at or near the maximum.
By contrast, if the contemplated reduction may deleteriously affect “public confidence in the administration of justice”, the question will be whether any reduction, or a lesser reduction, should be made. Whilst the “utilitarian purpose” of early guilty pleas is important, as is the need for those operating within, or affected by, the criminal justice system to be able to confidently predict whether a case ought fit within a particular range, that cannot fetter the broad exercise of discretion involved. Strictly, as a matter of statutory construction, if the sentencing court forms the view that s 40(5)(a) is triggered the reduction, if any, will be at the discretion of the sentencing court. So, if the contemplated reduction is 25%, and this would or may deleteriously affect “public confidence in the administration of justice”, then that reduction will not be made and whether, or to what extent, a reduction is made is a matter for the exercise of discretion by the sentencing court.
Granted, in most cases, rejection of the contemplated reduction will be addressed by a lesser reduction, albeit probably still within the potentially applicable range. That occurs as a function of giving effect to the evident statutory purpose of promoting pleas of guilty which is revealed by the structure and content of s 40 of the Sentencing Act. However, one cannot exclude that there could be cases of extremely serious offending by wholly unmeritorious defendants where the utilitarian benefit of the early plea is completely outweighed. And, just as there could be the comparatively rare case where no reduction at all might be appropriate, a case might from time to time warrant a lesser reduction in a range applicable to a later plea of guilty.
Whether that is done will be dictated by whether what is contemplated deleteriously affects “public confidence in the administration of justice”. Each case must turn on its own, particular circumstances. The proper reduction, if any, to be made for a plea of guilty remains a matter for the exercise of discretion by the sentencing court, informed by the statutory language, purpose and context, together with the circumstances of the offence and the offender.
(citation omitted)
[1] R v Bahrami (2020) 286 A Crim R 394.
[2] R v Bahrami (2020) 286 A Crim R 394, [108]-[113].

The provisions of the Sentencing Act make it clear that there will be occasions when it is not appropriate to apply either the maximum reduction, or anywhere near the maximum reduction, to which a defendant is potentially entitled. Indeed, there may be rare cases where no discount at all is justified.
It is important to emphasise that the Court in that case agreed about the applicable principles. The real difference concerned the outcome, primarily whether it was necessary to exercise the discretion by reference to rigid “bands” of reductions, avoiding the range potentially available to pleas of guilty entered later in time. Emphasising the broad discretion involved, Livesey and Bleby JJ doubted that. However, all members of the Court agreed that, in certain cases, it was appropriate to fix a non-parole period in the range potentially available to pleas of guilty entered later in time. This case provides a very clear example of a case where it is appropriate to do so.
Suffice to say that the circumstances of this case also provide a stark illustration of how, in a particular case, the application of an approach that is too prescriptive about the extent of the reduction may lead to injustice.
The appellant’s case commenced with the well-known observations of King CJ in R v Stewart:[3]
I must say, however, that violent and terrible as the crime was, it does not fall into the category of the worst types of murder calling for the longest non-parole periods. Examples of categories of murder calling for longer non-parole periods than I will fix in the present case, would be multiple murders, terrorist murders, murders in the course of organised crime and certain other types of premeditated, cold-blooded murder, murders committed in the course of armed robbery and certain types of sexual crime, and murder of prison officials, police officers and other officials connected with law enforcement and the administration of justice.
[3] R v Stewart (1984) 35 SASR 477, 478.
The appellant accepted that this case of multiple murders did not fit within what King CJ had described as “the least serious category”:[4]
Examples of types of crimes in which shorter periods of non-parole should be considered are those committed by first offenders, and particularly by first offenders in compassionate circumstances, unpremeditated killings occurring in a sudden quarrel or emotional disturbance, and crimes in which the proved intent was not an intent to kill, but an intent to do grievous bodily harm.
[4] R v Stewart (1984) 35 SASR 477, 478-479 (King CJ).
The appellant’s contention was that a comparison with other recent cases before this Court demonstrated that the starting point, and the ultimate non‑parole period, were manifestly excessive.
As horrific as each of these cases was, and as will be seen, none provide any reason to challenge the approach of the sentencing Judge in this case.
In R v Tran,[5] the defendant was suffering from depression following the breakdown in his marriage. He went to the home of his estranged wife, taking with him a knife. He stabbed to death his wife and her 22-month child. Two other children of the marriage, aged six and ten, were present. The defendant contacted police following the killings. Dr Raeside expressed the view that the defendant seemed to lack remorse. The sentencing Judge proceeded on the basis that the pleas of guilty did not demonstrate contrition or remorse, but they had spared the defendant’s son and daughter the ordeal of giving evidence. The starting point was 32 years. This was reduced by around 15 per cent to a non-parole period of 27 years.
[5] R v Tran (Supreme Court of South Australia (Sentencing Remarks), Doyle CJ, 11 December 2009).
R v Downie[6] concerned a plea of guilty to three counts of murder. The victims were killed in their home. The defendant was 18 and, multiple times, stabbed a couple and their child, Chantelle, aged 16. The defendant had broken into the victims’ home in the early hours of the morning. When confronted by Chantelle’s father, the defendant stabbed or cut him at least 29 times. His wife was stabbed at least 50 times. The defendant then stabbed Chantelle multiple times and, thinking she was dead, removed her clothing. Chantelle then regained consciousness and asked the defendant what he was doing. The defendant ran to the kitchen, obtained another knife and stabbed her again, before raping her. The sentencing Judge described these murders as cold-blooded and merciless. The starting point for the non-parole period was 42 years. This was ultimately reduced to a non-parole period of 35 years, a reduction of around 16 per cent.
[6] R v Downie (Supreme Court of South Australia (Sentencing Remarks), Sulan J, 17 April 2012).
In R v Shove,[7] the defendant was 43 years of age when, whilst under the effects of methamphetamine, he shot and killed two men at close range. From a starting point of 33 years, the sentencing Judge fixed a non-parole period of 26 years, being a reduction of around 21 per cent.
[7] R v Shove (Supreme Court of South Australia (Sentencing Remarks), Kelly J, 4 October 2013).
In R v Omonte-Extrada,[8] the 19-year-old defendant drove from Quorn to Port Pirie, intending to kill Ms Rebecca Wild. He attacked her. She was stabbed 29 times. The second victim, Ms Jacinta Fullerton, happened to be driving past the scene and stopped to assist. Ms Wild was aged 16 and Ms Fullerton 22. Ms Fullerton was killed by repeated axe blows. Ms Wild was still alive. She then received multiple axe blows to the head. Ms Wild died of multiple wounds. The defendant returned to Quorn where he meticulously cleaned the vehicle and attempted to burn Ms Wild’s body, before dragging her body to the Quorn cemetery where he buried her.
[8] R v Omote-Extrada (Supreme Court of South Australia (Sentencing Remarks), Kelly J, 29 November 2013).
The sentencing Judge proceeded on the basis that the murder of Ms Wild was premeditated, but that the murder of Ms Fullerton was “an opportunistic and impulsive response”. The starting point appeared to be 44 years. The reduction made for the defendant’s plea and co-operation was “no more than 25 per cent”. The non-parole period was fixed at 33 years.
In R v Olsson[9] the defendant pleaded guilty to murdering his 62-year-old domestic partner and her 84-year-old mother. He was sentenced on the basis that he “engaged in an unprovoked, intentional, sustained and violent attack on Ms Pountney, who was asleep in her bed”. The sentencing Judge observed that the defendant, “having sat at [his] kitchen table, killed Mrs Phillips, an elderly, vulnerable woman”. Ms Pountney was killed by being beaten around the head with a steel bar. The defendant claimed that the deceased had talked of not wanting to live due to illness, whereas her mother, Mrs Phillips, had, according to the defendant, “been a regular pain in the arse” and “kind of got in the way”. The defendant beat and strangled Mrs Phillips. The defendant handed himself into police around three days after the murders. The defendant qualified for a reduction of up to 40 per cent on account of his plea of guilty. The sentencing Judge started with a non‑parole period of 35 years and, after a reduction of around 25 per cent, fixed a non-parole period of 26 years.
[9] R v Olsson (Supreme Court of South Australia (Sentencing Remarks), Bampton J, 5 April 2018).
In R v Peet,[10] after an argument, the defendant murdered his domestic partner, Ms Wilson-Rigney, striking her about the head at least six times with a crow bar before strangling her with a cable around the neck. The defendant then cleaned the scene and hid the body. Some hours later, after considerable deliberation, the defendant murdered her two children, aged five and six, using cables around their necks. The defendant also used plastic and wrapping tape around the head of one child. The defendant only contacted police after he was made to do so by a friend he had enlisted to assist in covering up his crimes. The sentencing Judge and Court of Criminal Appeal accepted that the initial murder was “not premeditated in the conventional sense”, but nonetheless his conduct was “brutal … cold and lacking in humanity”. The sentencing Judge accepted that the defendant had “suffered a degree of disassociation” at the time of the murder of the children. Whilst providing “some explanation, [it was] hardly mitigatory”.
[10] R v Peet [2018] SASCFC 91.
The Crown appealed against the non-parole period of 30 years. The Court of Criminal Appeal resentenced the defendant on the basis of a starting point of 39 years before reducing that by 10 per cent on account of the guilty plea to 36 years.
These cases were relied upon by the appellant for the conclusory submission that there was a relevant range and, having regard to that range, the starting point was manifestly excessive and the reduction made on account of the guilty plea manifestly inadequate. According to the appellant’s submission, the relevant range spanned starting points of between 32 and 44 years, and reductions on account of guilty pleas of between 10 and 25 per cent.[11] These ranges were said to support the conclusion that the sentence was manifestly excessive.
[11] Annexure PK 2 to the Appellant’s submissions.
In our view, this submission must be rejected. It is difficult to regard these cases as other than broadly indicative of the approach taken when exercising a very broad discretion in cases of multiple murders.[12] Regrettably, worse cases can always be imagined. In the pantheon of murder crimes committed by men and women against each other, there are any number of circumstances which may justify a particular crime being placed in the worst category of homicide. Each case must turn on its own facts. In some cases, no parole period at all should be set.[13]
[12] Hackett v The Queen [2021] SASCA 32, [27] (Kelly P, Lovell and Livesey JJA).
[13] See, for example, R v Bunting; R v Wagner (Supreme Court of South Australia (Sentencing Remarks), Martin J, 29 October 2003); R v Rust (Supreme Court of South Australia (Sentencing Remarks), Nyland J, 30 April 2004).
Whilst it may be accepted that the murders in this case were not in any conventional sense premeditated, that is counter-balanced by a number of features. The starting point is the necessity for the sentence to ensure that the criminal law meets “the long-standing obligation of the State” to “vindicate the dignity of each victim of violence”.[14] As was recognised in Munda v Western Australia:[15]
A failure on the part of the State to mete out a just punishment of violent offending may be seen as a failure by the State to vindicate the human dignity of the victim …
[14] Munda v Western Australia (2013) 249 CLR 600, [54] (French CJ, Hayne, Crennan, Kiefel, Gaegler and Keane JJ).
[15] Munda v Western Australia (2013) 249 CLR 600, [55] (French CJ, Hayne, Crennan, Kiefel, Gaegler and Keane JJ). See also R v Peet [2018] SASCFC 91, [82] (Kourakis CJ, Doyle and Hinton JJ).
That is done by expressing the community’s disapproval of the offending and by affording the community whatever protection can be achieved by the measures available to this Court.
Next, the sentence must meet the well-recognised objectives of sentencing, including the need for punishment and deterrence.
In cases of murder, the mandatory sentence is one of life imprisonment.[16] Whilst the selection of the non-parole period for murder is now regulated by the mandatory minimum non-parole period of 20 years imprisonment,[17] the traditional common law considerations relevant to setting an appropriate sentence remain relevant. Especially will that be so where, as in this case, a non-parole period significantly longer than the mandatory minimum is appropriate.
[16] Criminal Law Consolidation Act 1935 (SA), s 11. By s 5A capital punishment is abolished.
[17] See ss 47(5)(b) and 48 of the Sentencing Act 2017 (SA) and R v Hallcroft (2016) 126 SASR 415 (Kourakis CJ, Peek, Stanley, Lovell and Doyle JJ).
Not only was this a double murder, but it involved an extraordinary response to what many would consider a banal domestic disagreement. The appellant’s offending, affected by alcohol, can be seen to be characterised by determination, brutality and purpose.
The appellant’s murder of his son, to whom he owed duties of care and protection is difficult to comprehend. However, the sustained and purposeful brutality of the appellant’s conduct was demonstrated by his pursuit of Chelsea. As shocking and disturbing as the murder of Lukasz was, the pursuit and killing of Chelsea was simply senseless.
One of the most telling and chilling aspects of this crime is that the appellant’s wife, who plainly recognised the danger they were all in, asked her children to hide from the appellant and was later found with her two children, aged 15 and 11, hiding in a small alcove at the rear of the property.
These brutal, execution-style crimes warranted a severe sentence. The sentencing Judge was correct to find that the appellant committed these crimes in circumstances which place his offending in the most serious category of crimes of homicide including, we would add, the crime of filicide.
The victim impact statements in this case are difficult to read because they clearly describe the pain and loss experienced by the victims’ families. They reinforce why it is necessary for this Court to reaffirm the community’s condemnation of serious criminal wrongdoing, and vindicate the human dignity of Lukasz and Chelsea.
The very grave circumstances in which these crimes were committed justified the imposition of a severe punishment. While the starting point of 40 years selected by the sentencing Judge in this case might be described as high, it was not outside the range available to her.
Having correctly determined that allowing the full potential reduction triggered the operation of s 40(5)(a) of the Sentencing Act 2017 (SA), the appropriate reduction for the guilty plea was in the broad discretion of the sentencing Judge. In our view, nothing less than the non-parole period imposed by the sentencing Judge would have met the punitive, protective and rehabilitative purposes of fixing a non-parole period required in the circumstances.
When one has regard to the ultimate sentence, it cannot be said that the exercise of discretion miscarried. It follows that the non-parole period imposed was not manifestly excessive.
Role of the appeal court and sentencing court
These crimes attracted considerable media attention and community concern. That is understandable. Though it is entirely necessary and appropriate for the media to inform the community about matters such as these, it is important that those who choose to comment publicly do so with common sense and caution. In contrast to the comments made by members of the victims’ families, some of the public commentary associated with this case before the appeal was heard went so far as to suggest that the appellant had no right to seek permission to appeal, or worse, that the appeal was without any merit. Comments such as these are regrettable. Just as it is necessary for this Court to respect and vindicate the human dignity of the victims of violent offending, it is also necessary for this Court to respect and protect the legal rights of offenders. Those guilty of violent crime, including the appellant in this case, are entitled to look to the Courts to address their rights and responsibilities according to law. Any convicted person is entitled to exercise the rights conferred by the Criminal Procedure Act 1921 (SA) to appeal matters of law as of right or to seek permission to appeal in respect of matters of fact or sentence. To proceed in this way is not, as was suggested by some, an “outrage”, but merely a prisoner properly exercising the avenues of review conferred by our law.
The application for permission to appeal in this case was neither misconceived, nor wholly without merit. Permission to appeal has been granted because, though unsuccessful, the appeal was reasonably arguable.
It is to be hoped that public commentary and media coverage is made carefully, recognising these considerations. The dangers of doing otherwise are obvious. For example, if the appeal in this case had succeeded, the community might have the mistaken impression that this was somehow inappropriate or untoward. In fact, a successful appeal in a difficult case such as this would simply represent this Court’s judgment about the appropriate sentence having regard to the relevant common law and statutory considerations which govern the determination of sentence.[18]
[18] Such as where the sentence is affected by a specific error or is otherwise manifestly inadequate or manifestly excessive.
There has been considerable attention devoted to the question whether Courts should have an eye on community expectations when sentencing. Provided it is made clear that, for this purpose, the community comprises those who are well‑informed and apprised of all relevant circumstances, there is no error in doing so.[19] Recent studies reveal that members of the community are often critical of sentencing decisions until they are given access to the relevant principles, facts and circumstances.[20] These studies tend to show that when members of the community are properly informed, they will, at times, be more lenient than the sentencing court.[21]
[19] WCB v The Queen (2010) 29 VR 483, [12] (Warren CJ and Redlich JA): the “sentencing judge in referring to community expectations was making reference to the expectations of “informed” and objective members of the public… A judge may, in his or her sentencing remarks, refer to … community expectations and to the fact that the sentence involves a reaffirmation of society’s values… There is a pressing need for the community to be better informed about sentences imposed in all of the common areas of offending. Discussion about individual sentences can only be placed in a proper perspective if the sentences generally imposed for that type of offence are known by the public”.
[20] Kate Warner et al, ‘Measuring Juror’s Views on Sentencing: Results from the Second Australian Jury Sentencing Study’ (2017) 19(2) Punishment and Society 180.
[21] Kate Warner et al, ‘Public Judgment on Sentencing: Final Results from the Tasmanian Jury Sentencing Study’ (2011) Trends & Issues in Crime and Criminal Justice 407.
It is well-accepted that the process of sentencing offenders is one of the more difficult judicial tasks. That is so for a number of reasons. These include the need to observe an increasingly complex array of common law and statutory sentencing considerations,[22] to provide sentencing remarks which publicly and adequately demonstrate that these considerations have not been overlooked and, most of all, the need to synthesise an often complex and conflicting array of considerations when exercising a broad discretion so as to arrive at a just sentence according to law.
[22] Justice Virginia Bell AC, ‘The Role of a Judicial Officer – Sentencing, Victims and the Media’ (Speech, Magistrates’ Court of Victoria Professional Development Conference, 22 July 2015).
It is in the very nature of this discretionary process that sentences have the capacity to disappoint all concerned, whether it be the prisoner, the victims or their families, or those who follow and publicly comment on the work of sentencing courts. Inevitably, there is never only one “correct” sentence. Usually there is a range of appropriate sentences, marked out at one extreme by what is manifestly inadequate and, at the other, by what is manifestly excessive. Determining these is the daily task of the appeal courts, subject to the oversight of the High Court:[23]
… All discretionary decision-making carries with it the probability of some degree of inconsistency. But there are limits beyond which such inconsistency itself constitutes a form of injustice. The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner. The administration of criminal justice works as a system; not merely as a multiplicity of unconnected single instances. It should be systematically fair, and that involves, amongst other things, reasonable consistency.
Most sentencing of offenders is dealt with as a matter of discretionary judgment. Within whatever tolerance is required by the necessary scope for individual discretion, reasonable consistency in sentencing is a requirement of justice…
[23] Wong v The Queen (2001) 207 CLR 584, [6]-[7] (Gleeson CJ).

Ultimately, a judge must sentence according to law. Whether the sentence accords with the views of commentators or the media is of much less importance than whether the sentence meets the standards set by the appeal courts, including the High Court. In difficult and tragic cases, as in this case, it is particularly important that commentary be well-informed.
Conclusion
The appellant has not pointed to any error of law or fact made by the sentencing Judge that would justify the intervention of this Court. We would grant permission to appeal. However, we would dismiss the appeal.
DOYLE JA: The circumstances of the appellant’s offending, his personal circumstances, the impact upon the families and friends of the two victims, the sentencing Judge’s remarks, and several relevant decisions of this Court, have been summarised in the reasons of Kelly P and Livesey JA. Against that background, and bearing in mind that the determination of whether a sentence is manifestly excessive is often a conclusion that does not permit of much analysis or exposition,[24] I can be brief.
[24] Hili v The Queen (2010) 242 CLR 520 at [59]-[60]; Ndreka v The Queen [2021] SASCA 11 at [28].
The appellant’s offending was undoubtedly at the serious end of the spectrum of criminal behaviour that comes before the courts. His conduct in killing two young people was not planned or pre-meditated in the conventional sense, and occurred during an argument between the appellant and his son, and hence at a time of heightened emotions. However, the appellant was not provoked in any meaningful way by anything his son said or did. Further, while a product of his alcohol-fueled rage, and to an extent impulsive, the appellant’s offending did not reflect a spontaneous or momentary loss of control. Rather, it involved a sustained episode of shockingly brutal, yet deliberately and purposefully executed, violence.
Throughout the period of time during which the appellant sought out and loaded his shotgun, fired the first shot that missed his son (Lukasz), ascended the stairs and followed his son into a bedroom, fired the shot that killed his son, reloaded his shotgun, shot through the locked door to the bathroom in which his son’s girlfriend (Chelsea) was taking refuge, and then fired the shot that killed Chelsea, the appellant had ample opportunity to reflect and stop. But he did not do so. Instead he continued with his pursuit, and then brutal execution, of two defenceless young people.
The appellant’s conduct was so shocking and senseless that it transcends any ordinary understanding of human behaviour. And, as reflected in the victim impact statements received by the sentencing Judge, the appellant not only took the lives of two young people, and thereby extinguished all of the opportunities and possibilities that their lives represented, but also left their families and friends devastated by their loss and grief.
The gravity of the appellant’s offending warranted not only the sentences of life imprisonment that were (mandatorily) imposed, but also a very lengthy non-parole period. Having regard to the various considerations outlined by the sentencing Judge, the starting point of 40 years for the non-parole period was, in my opinion, severe but within the permissible range.
I turn now to the 15 per cent reduction in the appellant’s non-parole period. Under the legislative scheme in place at the time, and having regard to the timing of the appellant’s pleas of guilty, the prescribed maximum reduction was 40 per cent. Even for crimes as shocking and horrific as those committed by the appellant, it is important not to lose sight of the utilitarian value of a plea of guilty, and the weight it is to be afforded in the exercise of a sentencing judge’s discretion. That value and weight is reflected in the existence and structure of the legislative scheme.
All of that said, I agree with the sentencing Judge that, in the present case, public confidence in the administration of justice[25] required a reduction that was materially less than the available maximum. Despite the degree of co-operation and remorse inherent in the appellant’s early pleas, a reduction at or near the available maximum would have resulted in a sentence which did not properly recognise the loss of the lives of the appellant’s two young victims,[26] and which was disproportionately low given the mandatory minimum non-parole period that is legislatively benchmarked for a single offence of murder at the lower end of the range of objective seriousness.[27] While it would have been reasonably open to allow a greater reduction, I am satisfied that it was an appropriate exercise of her Honour’s discretion to confine the reduction to 15 per cent.
[25] Sentencing Act 2017 (SA), s 40(5)(a).
[26] Munda v Western Australia (2013) 249 CLR 600 at [53]-[55]; R v Peet [2018] SASCFC 91 at [82].
[27] R v Davey [2017] SASCFC 151 at [49]-[51].
In my view, the starting point of 40 years, and the reduction of (only) 15 per cent for the appellant’s pleas of guilty, did not, either individually or in combination, render the non-parole period fixed by the sentencing Judge manifestly excessive. To the contrary, the non-parole period of 34 years was within the permissible range.
I would grant permission to appeal. But I am not persuaded that the sentence imposed was manifestly excessive, and so would dismiss the appeal.