Loleit v The Queen - [2020] SASCFC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
LOLEIT v THE QUEEN
[2020] SASCFC 51
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Parker and The Honourable Justice Bleby)
11 June 2020
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCING
Appeal against sentence.
The appellant and the victim were good friends. On 21 February 2018, the appellant and the victim had been drinking alcohol. They drove to a camping place where they intended to spend the night. Late in the evening and early in the morning on 22 February 2018 the two men argued. The argument developed into a physical fight. When the fight finished the two men fell asleep in their tents. When the men woke later that morning, the appellant asked the victim whether he wished to return with him to Port Pirie. The victim said that he was feeling unwell and would stay at the campsite. The appellant returned to the campsite in the evening. In the meantime, the victim died. The evidence established that the cause of death was blunt force trauma to the chest and abdomen resulting in the rupture of a pre-existing cyst on the spleen and the loss of 1.3 litres of blood into the abdominal cavity.
The appellant pleaded guilty to and was convicted of manslaughter. The sentencing Judge adopted a starting point of imprisonment for nine years and reduced that by 20%, on account of the appellant’s guilty plea, to a head sentence of seven years, two months and two weeks. The non-parole period was set at four-fifths of the head sentence, being five years, nine months and one week.
The appellant agitates four grounds of appeal:
1. The head sentence and the non-parole period were manifestly excessive given the unique circumstances of the cause of death and the genuine contrition and remorse of the appellant.
2. The Judge sentenced on a materially incorrect factual basis.
3. The Judge erred as a matter of law in the manner in which he construed the word “condition” in s 48(3)(a) of the Sentencing Act 2017 (SA).
4. The Judge erred in not finding that the plea of guilty to the charge and the circumstances around that plea were sufficient to amount to special reasons in accordance with s 48(3)(b) of the Sentencing Act 2017 (SA).
Held, Parker J (with Kourakis CJ and Bleby J agreeing), refusing permission to appeal on Grounds 1 and 2, dismissing the appeal on Ground 3, and refusing permission to add Ground 4:
1. The sentence was well within the range reasonably available to the Judge.
2. The Judge was correct to conclude that it was not possible to know for certain which of the appellant’s actions had caused the victim’s fatal injury but that it was most likely when the appellant fell on top of the victim during the fight. That was as far as his Honour could properly go on the material before him. The approach adopted by the Judge to fact finding was entirely consistent with the observations of King CJ in R v Perre (2001) 80 SASR 550.
3. The reference in s 48(3)(a) of the Sentencing Act 2017 (SA) to the “condition” of a victim is directed at cases where the condition of the victim influences, in a real and substantial way, the conduct of the defendant in a fashion that can properly be regarded as mitigating the gravity of their offending.
4. By engaging in an unlawful and dangerous act, the appellant necessarily accepted the accompanying risk to the victim. The fact that the victim’s unknown medical condition rendered him particularly vulnerable did not mitigate the appellant’s conduct of engaging in a violent and persistent assault.
5. The Judge found that the circumstances surrounding the appellant’s guilty plea did not amount to special reasons. His Honour was plainly correct. The Judge also found that, even if he was wrong in that respect, he would not exercise the discretion conferred by s 48(3)(b) to reduce the non-parole period below the mandatory four-fifths of the head sentence. The Judge did not err in this respect. This was a serious instance of manslaughter that warranted condign punishment.
Sentencing Act 2017 (SA) s 48, referred to.
R v Perre (1986) 41 SASR 105, applied.
Hili v The Queen (2010) 242 CLR 520; R v Dawes [2004] NSWCCA 363; R v Lavender (2005) 222 CLR 67; R v Lobban (2001) 80 SASR 550; R v Wheeler [2015] SASCFC 83, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Condition"

LOLEIT v THE QUEEN
[2020] SASCFC 51
Court of Criminal Appeal: Kourakis CJ, Parker and Bleby JJ

KOURAKIS CJ: I would refuse permission and dismiss the grounds of appeal for the reasons given by Parker J.
On the question of the ‘accidental fall’, I make this observation. The substantial point lessening culpability was that the trauma rupturing the spleen was not a punch or kick to the abdomen. If the appellant accidentally fell in the course of the assault, his culpability was not much reduced. It might be otherwise if he had accidentally fallen while trying to give assistance. However, no further explanation was given by the appellant in evidence on the sentencing hearing. The Judge’s findings were measured and entirely in accord with the sentencing material on which his Honour was entitled to act.
PARKER J: This is an appeal against the sentence imposed after the appellant pleaded guilty and was convicted of manslaughter. The Judge adopted a starting point of imprisonment for nine years, and reduced that by 20 per cent, on account of the appellant’s early guilty plea, to a head sentence of imprisonment for seven years, two months and two weeks.[1] The non‑parole period was set at four-fifths of the head sentence. Thus, the non-parole period is five years, nine months and one week.
[1] Strictly speaking, for reasons that will become apparent, Mr Loleit is the applicant in relation to grounds 1, 2 and 4 and the appellant on ground 3. However, I will refer to him as the appellant throughout.
For the reasons that follow, I would refuse permission to appeal on Grounds 1 and 2 and refuse permission to add Ground 4. I would dismiss Ground 3.
The grounds of appeal
The grounds of appeal may be briefly stated as follows:
1The head sentence and the non-parole period were manifestly excessive given the unique circumstances of the cause of death and the genuine contrition and remorse of the appellant.
2The Judge sentenced on a materially incorrect factual basis.
3The Judge erred as a matter of law in the manner in which he construed the word “condition” in s 48(3)(a) of the Sentencing Act 2017 (SA).
Grounds 1, 2 and 3 were referred to this Court to decide whether permission to appeal should be granted. However, the referring judge noted that permission may possibly not be required on Ground 3 as it purports to raise a question of law. The appellant has sought permission to add an additional ground as follows:
4The Judge erred in not finding that the plea of guilty to the charge and the circumstances around that plea were sufficient to amount to special reasons in accordance with s 48(3)(b) of the Sentencing Act.
Section 48 of the Sentencing Act
Ground 3, and also the proposed Ground 4, involve the proper construction and application of s 48 of the Sentencing Act. If the requirements of s 48 are met in a case that would otherwise be subject to a mandatory minimum non‑parole period, the sentencing court is not required to set the non-parole period in accordance with that mandatory minimum. Because the appellant has been convicted of a serious offence against the person, his non-parole period was set in accordance with s 47(5)(d) of the Sentencing Act. This requires that the non‑parole period be at least four‑fifths of the head sentence unless the circumstances come within s 48.
Section 48 of the Sentencing Act provides as follows:
48—Mandatory minimum non-parole periods and proportionality
(1) If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non-parole period applies.
(2) In fixing a non-parole period in respect of an offence for which a mandatory minimum non-parole period is prescribed, the court may—
(a)     if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b)     if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3) In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)     the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b)     if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c)     the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such cooperation.
(4) This section applies whether a mandatory minimum non-parole period is prescribed under this Act or some other Act.
Background
On 21 February 2018 the appellant, his father and his close friend Rory Elliott, spent most of the day removing the appellant’s possessions from the house that he had occupied at Port Pirie with his domestic partner. The appellant had been required by an interim intervention order to move out of the house. After the three men had finished moving the appellant’s property, they went to his father’s house, where they drank some beer. Subsequently, the appellant and the victim, Mr Elliott, drove to a camping place at Telowie Beach where they intended to spend the night and do some fishing.
Over the course of the evening the appellant and the victim consumed a large amount of alcohol. Between them, they drank 30 cans of beer and half a bottle of whiskey. Late on 21 February and early on 22 February 2018 the two men argued. The argument developed into a physical fight.
After the fight finished, the two men fell asleep in their tents in the early hours of 22 February 2018. Later that morning, they awoke. The appellant asked the victim whether he wished to return with him to Port Pirie. However, the victim said that he was feeling unwell and would remain at the campsite. The appellant left two large bottles of water for the victim but did not return to the campsite until the evening. In the meantime, the victim died. By the time the appellant had returned to the campsite, there was nothing that he could do to assist the victim although he did attempt resuscitation.
The post-mortem report
Dr Neil Langlois, a forensic pathologist with Forensic Science SA, performed a post-mortem examination on the body of the victim. Dr Langlois reported that the victim had survived for some hours after the injuries were inflicted upon him. Dr Langlois reported that the cause of death was blunt chest and abdominal injuries resulting in a rupture of the spleen. The loss of 1.3 litres of blood into the abdomen from the spleen accounted for death in the presence of other injuries and ischaemic heart disease.
Dr Langlois reported that the victim’s spleen was abnormal with a simple cyst being present. In the opinion of Dr Langlois, the pre-existing cyst may have rendered the spleen susceptible to rupture due to the blunt force trauma applied to the body. That resulted in haemorrhaging to the abdomen. Dr Langlois specifically rejected the suggestion that there had been a spontaneous rupture of the spleen. He further stated:
[T]he rupture of the spleen resulted from trauma to the area where it is located, such as a blow, kick or strike from a weapon. Local trauma could also result from a fall, or being propelled backwards, onto a hard object. It can also be suggested rupture could have resulted from indirect force, such as a compressive force across the chest and abdominal region, which could have occurred while lying face-up (supine) or facedown (prone) on the ground.
Dr Langlois also identified many other injuries to the body of the victim. There were multiple injuries to the head and face, although some may have been attributable to insect activity. He reported that expert examination of the brain conducted by another specialist had “revealed the presence of APP positive axonal changes in keeping with blunt force head injury (or injuries).”[2] It was not possible to predict the functional effect from these neuropathological changes. In total, Dr Langlois identified 55 separate injuries to the body. Most of these comprised areas of bruising or abrasion. However, included amongst the injuries were 14 fractures of the ribs. These fractures could not be attributed to the attempt that the appellant said that he had made to resuscitate the victim. This was because the inflammatory reaction indicated that the fractures had occurred some hours before death.
[2] Dorland’s Illustrated Medical Dictionary (30^th edn) defines “axonal” to mean “pertaining to or affecting an axon”. An “axon” is defined to be “that process of a neuron by which impulses travel away from the cell body”. Thus, in the context of Dr Langlois’ report, I understand “axonal changes” to be neurological changes.
Dr Langlois reported that the ischaemic heart disease suffered by the victim in the form of narrowing of the coronary arteries may have rendered his heart vulnerable to failure due to the blood loss into the abdomen. While the presence of heart disease may have hastened the victim’s death, Dr Langlois considered it unreasonable to suggest that heart disease was responsible for his death given that there were 1.3 litres of blood in the abdomen and injuries consistent with a physical assault.
Personal circumstances
Dr Loraine Lim, a forensic psychologist, provided a comprehensive report to the Court. The information that follows is drawn from that report. The appellant was aged 41 years at the date of sentencing. He is a qualified chef and has worked in that trade for most of his adult life but has also worked in viticulture.
The appellant had an unstable and dysfunctional upbringing, where he was regularly exposed to alcohol abuse by his parents and their loud and aggressive arguments. His life had been destabilised by extended periods of separation from his mother after the divorce of his parents and by his father’s ongoing emotional neglect. For that reason, Dr Lim was not surprised that the appellant had developed problems with alcohol and substance abuse from an early age. He had been self-medicating his depression with alcohol and unlawful drugs for many years. The abuse of alcohol tended to amplify his underlying anger and irritability so as to cause an increase in the risk of disinhibition, recklessness and physical aggression.
Dr Lim reported that the appellant appeared to satisfy the diagnostic criteria for a severe alcohol use disorder, a moderate cannabis disorder, a moderate stimulant use disorder and a persistent depressive disorder with intermittent major depressive episodes. In the opinion of Dr Lim, the appellant was genuinely left in shock and distress by his role in the death of Mr Elliott. He continued to be guilt ridden and to display behavioural signs and emotional symptoms consistent with a complicated grief disorder.
Dr Lim also considered that the appellant remained at an average risk of general or violent offending, due to his untreated and unresolved mental health difficulties and lack of access to targeted substance abuse counselling.
Sentencing remarks
The Judge noted that the effect of the guilty plea to the offence of manslaughter was that the appellant had admitted engaging in an unlawful and dangerous act which caused the death of the victim. His Honour observed that the appellant had by far the better of the fight from its beginning and throughout. The victim had received quite a severe beating. The appellant’s counsel had conceded that he must have been aware from early in the fight that he was inflicting a severe beating and should have stopped his attack. Nevertheless, while the victim had suffered a severe beating, none of his injuries were fatal or would have been likely to cause death in the absence of the rupture of the pre‑existing cyst on the spleen resulting from blunt force trauma to the chest and abdomen.
The Judge also stated:
There were no external signs of the fatal injury evident either to you or Mr Elliott. Whilst there is no doubt that your assault of Mr Elliott was a substantial cause of death, it is not possible to know for certain which of your actions was the cause. It is most likely that the fatal injury occurred when you fell on top of the deceased during the fight. I accept that you did not inflict the fatal injury with the intention of killing Mr Elliott or with the intention of causing Mr Elliott grievous bodily harm. Nevertheless, the death of Mr Elliott occurred during the course of your deliberate unlawful assault of Mr Elliott.
The Judge also observed:
Plainly, the full circumstances surrounding the fight and what took place the next day, prior to and after the death of Mr Elliott, cannot be known with any certainty given the state of the objective evidence and the nature of the account given by you to the police.
Nevertheless, I do accept that at no stage were you aware of the nature of the injury suffered by Mr Elliott that ultimately caused his death, that is the rupture of the unknown cyst on his spleen. I accept that at the time the altercation came to an end there was no external indication to you of any life-threatening injuries having been suffered by Mr Elliott and that when you left the next morning there was still no indication of any life‑threatening injury.
The Judge observed that it is not uncommon in cases of manslaughter, particularly where a brutal alcohol fuelled fight is involved, that the perpetrator does not expect nor understand the way in which an opponent might die. His Honour referred to the example of drunken fights where a person hits their head on the ground. His Honour further stated that the fact that the appellant had no understanding of the precise manner in which the victim came to die did not significantly lessen his culpability for the offence of manslaughter. His Honour stated, “[t]he fact that someone might die in an unexpected manner is intrinsic to the offence of manslaughter by engaging in an unlawful and dangerous act.” His Honour also added that because of the sustained and violent assault, he regarded the offence more seriously than one-punch manslaughters.
The Judge referred to the victim impact statements from two sisters and the son of the victim. His Honour referred to their grief, ongoing stress and continuing distress. The circumstances had been unbearable for them because of the way in which the victim died and the fact that he was alone. The victim’s son had been badly affected and felt that he had been robbed of the chance of reinstating and developing his relationship with his father.

The Judge referred to the appellant’s personal circumstances and the very comprehensive psychological report prepared by Dr Lim. The Judge noted that the appellant had a criminal record but it consisted predominantly of driving, alcohol related and public disorder offences. He had no significant history of violent offending. The Judge concluded that, as the appellant did not appear to have a severe personality disorder, if his mental health, alcohol and substance abuse problems could be addressed his prospects for rehabilitation were reasonable.
The Judge also noted that the appellant had participated in a restorative justice conference with members of the victim’s family. He had spoken directly to the family members, apologised and expressed deep regret for the pain he had caused them. They made clear that they did not accept his apology and did not regard him as being sincere or genuinely upset. His Honour observed that he completely understood the attitude of the family, which was genuine and heartfelt. However, in light of the report from Dr Lim, the appellant’s plea of guilty and the fact that he had worked hard to achieve a restorative justice conference, and the fact that the victim was a very good friend, his Honour was satisfied that the appellant’s distress and contrition was genuine.
The Judge considered whether the appellant was entitled to a discount of 20 per cent or 30 per cent on account of the timing of his guilty plea. The appellant has submitted that he would have pleaded guilty at an earlier stage so as to attract the 30 per cent discount, but for the fact that he had been unable to gain access to an independent forensic pathologist to provide him with an opinion as to the accuracy and reliability of Dr Langlois’ report.[3] The Judge concluded that in light of Dr Langlois’ report there was only a fanciful possibility that the victim’s cyst had erupted quite independently of, and unrelated to, the fight. Thus, he really had no choice but to plead guilty to manslaughter. On that basis, his Honour concluded that there was no justification to apply a discount greater than 20 per cent.
[3] Ultimately, legal aid funding for this purpose was refused.
Counsel for the appellant also submitted to the Judge that there were proper grounds to impose a non-parole period less than four-fifths of the head sentence, if his Honour was satisfied that “special reasons” existed. Counsel submitted that there were two bases upon which the finding of special reasons might be made. The first was that the condition of the victim had substantially mitigated the appellant’s conduct. The basis for this contention was that death occurred because of a medical condition that was unknown at the time of the unlawful and dangerous act.
The Judge rejected that contention. His Honour stated that where manslaughter occurs by an unlawful and dangerous act, it will typically be the case that death is not contemplated and the manner of death is not foreseen. However, death by some means is a significant risk that is voluntarily assumed when a person engages in an unlawful and dangerous act of the type involved in this case. The fact that the victim suffered from an unknown medical condition which ultimately resulted in his death did not reduce the culpability of the appellant’s conduct. For the victim’s medical condition to qualify as a special reason, it was necessary that it substantially mitigate the conduct or behaviour of the appellant. His Honour did not accept that the appellant’s conduct had been substantially mitigated simply because the victim suffered from an unknown medical condition.
The second ground advanced for a finding of special reasons was that the appellant would have pleaded guilty at an earlier time but for circumstances out of his control. Those circumstances were said to be the delay he experienced in identifying an alternative forensic pathologist who could review and provide a second opinion on the report of Dr Langlois. His Honour rejected that submission. As I have already noted, his Honour observed that the appellant really had little choice but to plead guilty to manslaughter. It was a fanciful notion to suggest that an alternative report might have established that the death of the victim was caused by the rupture of the cyst for reasons not connected with the violent assault he had suffered.
While the plea was accompanied by genuine remorse and contrition, for the preceding reasons his Honour was not persuaded that the fact of the guilty plea and the surrounding circumstances gave rise to special reasons. His Honour added that even if there were special reasons, he would not exercise the discretion to reduce the non-parole period below the mandatory term of four‑fifths of the head sentence.
Earlier in the judgment, his Honour rejected the contention that the discount for the guilty plea should be fixed at higher than 20 per cent. His Honour found that there was no merit in the appellant’s assertion that the delay in entering his guilty plea was due to the unavailability of an alternative forensic pathologist to review the report of Dr Langlois.
The Judge observed that penalties for the offence of manslaughter vary greatly because the circumstances of the offence and of the offender may greatly vary. However, this was a serious example of manslaughter. While it was not premeditated and no weapon was involved, it was not an offence at the lower end of the scale. In view of the appellant’s problems with alcohol, drugs and anger, personal deterrence was an important consideration. Because of the all too common occurrence of alcohol fuelled violence, which can result in serious physical harm and death, general deterrence was also a very important consideration.
His Honour further observed that the assault upon the victim had been sustained with all the risks that this entailed, including death by some means not outwardly apparent to the appellant. While there had been no intention to kill or cause grievous bodily harm, and the appellant was genuinely contrite and did not have a recorded history of violent offending, he was always at risk of violent offending given his mental health, alcohol and substance abuse problems.
The Judge adopted a starting point of imprisonment for nine years. After applying a discount of 20 per cent, the head sentence was reduced to seven years, two months and two weeks’ imprisonment. The non-parole period was fixed at five years, nine months and one week.
The Judge also rejected a submission that part of the sentence should be suspended under s 96(5) of the Sentencing Act. After taking account of all the circumstances of the offence and the personal circumstances of the appellant and the importance of deterrence, particularly general deterrence, his Honour considered that condign punishment was required. Accordingly, he could not find good reasons for partial suspension of the sentence. That conclusion is not challenged.
The appellant’s submissions
The appellant submitted that if the victim had not died of a unique medical condition that was unknown and incapable of being known, the outcome would have been no more than an assault causing harm, if in fact charges would have been laid. The appellant had suffered enormously by way of remorse, stress and guilt due to the fact that his actions had caused the death of a very good friend. That had led him to plead guilty. For these reasons, quite apart from the application of the four-fifths rule, the appellant submitted that the sentence was manifestly excessive.
The appellant provided a detailed table summarising the facts and sentences of a great many, if not all, the manslaughter cases in this State since 1999. The sentencing remarks for five relatively recent cases were also provided. The appellant submitted that the facts in R v Watson were reasonably close to the present matter.[4] However, in that case a substantially lesser sentence was imposed.
[4] SCCRM-18-114, sentenced by Hinton J on 7 September 2018.
In support of Ground 2, the appellant referred to an email message dated 28 February 2018 (i.e. prior to a plea being entered) that was sent to counsel for the appellant by the Office of the DPP in the following terms:
Yes, the prosecution accepts that fatal injury was caused by the accidental fall and the fight itself was the unlawful and dangerous act.
In light of that message, the appellant contended that the Judge had erred by stating that:
It is not possible to know for certain which of your actions was the cause. It is most likely that the fatal injury occurred when you fell on top of the deceased during the fight. I accept that you did not inflict the fatal injury with the intention of killing Mr Elliott or with the intention of causing Mr Elliott grievous bodily harm. Nevertheless, the death of Mr Elliott occurred during the course of your deliberate unlawful assault of Mr Elliott.
The appellant’s particular complaint lies with the use by his Honour of the words “it is not possible”. Those words are said to be inconsistent with the concession made by the prosecution in the email message. The concession was consistent with the finding by Dr Langlois that the cause of death was “blunt chest and abdominal injuries resulting in a rupture of the spleen” and also his earlier observation that the cyst may have rendered the spleen susceptible to rupture as a consequence of blunt force trauma.
The appellant also submitted that the Judge had erred by comparing the facts of this case to other instances of manslaughter where the victim had been punched and fallen, hitting their head on a rock or a kerb. The presence of such a danger would have been known to the assailant. In contrast, death had been caused by an accidental fall that caused the cyst on the spleen to rupture. That vulnerability due to a pre-existing injury was unknown and unknowable. The Judge erred by making a comparison with “one punch” cases. The appellant contends that the Judge made a material error of fact that amounts to a process error. It could not be said that this error did not affect the sentence imposed.
The appellant submits in support of Ground 3 that the fact that the victim suffered from an unknown medical condition that caused his death is a “condition” that substantially mitigated the appellant’s conduct for the purposes of s 48(3)(a) of the Sentencing Act. While the Judge dealt with this issue, his Honour did not indicate any basis for the finding that the presence of the unknown cyst was not a condition that substantially mitigated the appellant’s conduct.
The appellant submits that the Parliamentary Debates show that the reference to the condition of the victim was intended to cover the presence of a terminal illness or some other serious debilitating condition. That is precisely the position in this case. If it were not for the presence of the unknown cyst, the conduct of the appellant would have amounted to an assault occasioning harm. It was the condition of the victim that caused him to die due to the bursting of the cyst.
To the extent that the Judge provided any explanation for rejecting the appellant’s submission, it was that the condition of the victim cannot amount to a special reason or have any work to do in the case of an unlawful and dangerous act of manslaughter. That interpretation is contrary to the statutory intention.
If the Court finds that special reasons exist under s 48(2)(b), then the requirement that the non-parole period be four-fifths of the head sentence will not be relevant. The non-parole period could then be set in the ordinary way.
The appellant submitted in relation to the proposed Ground 4 that the Judge should have found that “special reasons” existed for the purposes of s 48(2)(b) of the Sentencing Act so as to allow the non-parole period to be less than the prescribed period of four-fifths of the head sentence. The special circumstances were that the appellant had killed his best friend in circumstances where his sustained violent assault in the course of a fight would not have led to the victim’s death but for the unique circumstance of the unknown cyst. In view of that fact, and his contrition and remorse, the non-parole period was extraordinarily high for a manslaughter committed in these unique circumstances. Thus, the Court should find that the non-parole period was manifestly excessive.
The respondent’s submissions
The respondent elected to deal first with Ground 2, which alleges that the Judge sentenced on a factual basis that was materially incorrect.
The respondent noted that s 12 of the Sentencing Act provides that, when sentencing, a court is not bound by the rules of evidence and may inform itself in any way it thinks fit. The principles to be applied in finding facts for sentencing purposes were set out in detail by King CJ in R v Perre[5] and by Martin J (with Mullighan and Bleby JJ agreeing) in R v Lobban.[6]
[5] (1986) 41 SASR 105 at 105-106.
[6] (2001) 80 SASR 550 at [17]-[18].
An agreed factual basis had not been provided to the Court in substitution for the evidentiary material. Written and oral submissions made by the parties were directed at factual findings and conclusions that the parties considered to be open to the Judge on the material before the Court.
The prosecution had provided the Court with a summary taken from the evidentiary material that had been filed and served. The summary indicated that the fatal injury was as described at page 4 of the post‑mortem report prepared by Dr Langlois. At that point Dr Langlois stated that the cyst may have rendered the spleen susceptible to rupture resulting in haemorrhage into the abdomen due to blunt force trauma to the body. The summary also indicated the acceptance by the prosecution that “the fatal injury was caused when the defendant fell on top of the deceased during the fight” and also acceptance that “the defendant fell on the deceased during the course of his voluntary and deliberate participation in the fight with the deceased”.
While the prosecution accepted that the fatal injury was caused by the appellant falling onto the victim while they fought, the prosecutor had taken issue with the repeated references by defence counsel in his written and oral submissions to an accidental fall within the context of an assault.
During the submissions in reply by the prosecution, the Judge summarised the submissions of defence counsel in support of his contention that s 48(3)(a) of the Sentencing Act was engaged. The summary by the Judge was to the effect that the defence contended that the unlawful and dangerous act engaged in by the appellant would ordinarily have led to injuries consequential upon an assault but, because of the very unfortunate circumstance of the cyst, it led to death. The Judge indicated that while he would need “to go back and study Dr Langlois’ report carefully” his initial impression, or what he had to accept on the evidence as a reasonable possibility, was that death was caused by the fall rather than a conscious blow with foot or hand. Counsel for the appellant did not dispute that characterisation.
For these reasons, the respondent submits that the appellant cannot contend that the matter proceeded on an agreed basis and nor can he contend that he had no notice that it was ultimately a matter for the Judge to decide what conclusion he should draw after taking into account the parties’ submissions. Both parties had made submissions concerning the factual findings that might be made. However, the Judge was not bound to accept either.
Against that background, and having regard to the report of Dr Langlois, the Judge had concluded that although there was no doubt that the assault by the appellant was a substantial cause of death of the victim, it was not possible to know for certain which of his actions was the cause. The respondent submits that the Judge was correct to reach the conclusions set out at [53] above. The respondent submits that the application of force which caused the victim’s spleen to rupture could not be known because of the duration of the assault, the number of injuries and blows, the location of the spleen and the fact that the fall as described by the appellant was not necessarily onto a hard object localised to the spleen as opposed to the flat ground.
For these reasons, the respondent submits that Ground 2 is not reasonably arguable and permission to appeal should be refused.
After referring to the principles stated by the High Court in Hili v The Queen[7] that a sentence will be manifestly excessive if it is unreasonable or plainly unjust after considering all of the matters that are relevant to the fixing of a sentence, the respondent submits that the sentence is not manifestly excessive. As the High Court recognised in R v Lavender, of all serious offences, manslaughter attracts the widest range of possible sentences.[8] Because the spectrum of culpability is so wide, it is not possible to use sentences in other cases as a yardstick against which to examine a manslaughter sentence.[9] However, the authorities have stressed that manslaughter constitutes the felonious taking of a human life and is always a most serious offence.[10]
[7] (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[8] (2005) 222 CLR 67 at [22] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[9] R v Wheeler [2015] SASCFC 83 at [31]-[33] (Stanley J, with Gray and Peek JJ agreeing).
[10] R v Dawes [2004] NSWCCA 363 at [31] (Dunford J).
While the respondent accepts that the cause of death was the bursting of the cyst on the spleen, that injury was caused by the application of force in the context of a prolonged assault where the victim sustained multiple injuries. The culpability of the appellant should not be evaluated merely on the basis of a single application of force resulting in the rupture, without regard to the broader attack during which that application of force occurred. In that respect, the respondent notes that Dr Langlois reported that a number of injuries sustained by the victim were defensive in nature. In light of these matters, the Judge was correct to characterise the case as involving the application of force in the course of a “sustained and violent assault” and to conclude that it was more serious than a “one‑punch manslaughter”. The sentence necessarily had to reflect those circumstances.
The respondent submits that the Judge appropriately took account of the appellant’s personal circumstances and the matters referred to in the report provided by Dr Lim. The Judge found that the offence was not at the lower end of the scale for manslaughter but involved a “severe beating” that warranted condign punishment. The starting point of nine years adopted by the Judge for a violent and prolonged assault which caused death, albeit unintentionally, was not manifestly excessive. Ground 1 is not reasonably arguable and permission to appeal should be refused.
In relation to Ground 3 the respondent submits that the victim’s condition must have substantially mitigated the conduct of the offender to attract the operation of s 48(3)(a) of the Sentencing Act. The condition of a victim will substantially mitigate the conduct of an offender where it has substantially lessened the offender’s culpability. In this case, it must be established that the condition of the victim has somehow lessened the responsibility of the appellant for deliberately engaging in conduct that carried with it an appreciable risk of serious injury. By entering a plea of guilty the appellant had accepted that his conduct was dangerous in the sense that it carried an appreciable risk of serious injury. It was open to the Judge to conclude on the evidence that the level of risk was more than appreciable and was significant. The Judge stated that “death by some means is a significant risk voluntarily assumed when a person engages in an unlawful and dangerous act of the type that you engaged in”.

The respondent submits that it was plainly open to the Judge to conclude that the particular susceptibility of the victim did not substantially lessen the culpability of the appellant in light of the duration and the ferocity of his attack upon the victim and the risk to life that it entailed. For these reasons, the respondent submits that permission to appeal on Ground 3 should be refused.
The respondent submits that the proposed Ground 4 is misconceived. The non‑parole period proposed by the Judge constituted four-fifths of a head sentence that had already been discounted by the permissible maximum of 20 per cent. As the appellant was awarded the maximum discount to which he was entitled, there was no special reason. The respondent contends that the appellant should be refused leave to add Ground 4 to the Notice of Appeal.
Consideration
Ground 2
As Ground 2 concerns the factual basis upon which the appellant was sentenced, I will adopt the same approach as the respondent and consider that ground first.
The principles governing findings of fact for sentencing purposes were, as the respondent has noted, stated by King CJ in R v Perre. King CJ stated the following principles:[11]
The sentencing judge is required ordinarily to sentence upon the basis of the sworn depositions or statements. If the defendant wishes to dispute any of the primary facts deposed to therein, he must do so by sworn evidence either at the preliminary hearing or before the sentencing judge. Where a defendant, while not disputing the primary facts deposed to, wishes the sentencing judge to sentence about the basis of a certain interpretation of those facts or upon a version of the defendant's role in the matter which may be in conflict with inferences from the primary facts which are open to the judge, he must make a decision as to the course which he wishes to follow. The defendant may give evidence or call evidence in support of his interpretation or version, or he may put it before the judge by way of submissions by his counsel asking the judge to act upon that interpretation or version. The prosecution may or may not make submissions accepting or opposing the interpretation or version put forward. The decision as to the basis upon which sentence is to be imposed is not, however, a matter for the prosecution but for the judge. I reject completely the suggestion which surfaced faintly on this appeal and has been made to the Court of Criminal Appeal in other cases, that the judge is bound to act upon the interpretation or version put forward by the defence unless it is disputed by the prosecution. It is for the judge to decide what inferences he will draw from the primary facts and to decide the basis upon which he will impose sentence. Even in cases in which the prosecution joins with the defence in asking for sentence to be imposed upon an agreed basis which differs from the depositions or from inferences which the judge may be disposed to draw from the depositions, it is for the judge to decide whether he is prepared to act upon that agreed basis.
There seems to be a misunderstanding abroad as to the respective roles of the judge and counsel in relation to the basis upon which sentence is imposed. It is for counsel to decide whether or not to call evidence. If counsel relies upon submissions from the bar table, it is not part of the ordinary role of the judge to indicate that he is not prepared to act upon those submissions so that counsel may decide whether to call evidence. A judge may do so, but he is not bound to do so. He may, and generally will, simply consider the depositions and the submissions and make his decision as to the basis of sentence. There will, of course, be exceptions. If counsel for the defence were to indicate that he refrains from calling evidence because he has reached agreement with the prosecution as to the basis upon which sentence should be imposed, the judge would be bound, generally speaking, to indicate that he is unwilling, if such be the case, to proceed upon the agreed basis, and to give counsel the opportunity of calling evidence. There may be other circumstances in which the defence can validly claim to have been misled. In general, however, neither the silence, or even concurrence, of counsel for the prosecution, nor the silence of the judge, will entitle counsel for the defence to assume that the judge will sentence upon the basis of his submissions.
[11] (1986) 41 SASR 105 at 105-106
By accepting the appellant’s guilty plea to manslaughter, the prosecution accepted he had not inflicted the fatal injury with the intention of killing the victim or causing him grievous bodily harm. However, although the appellant contended that he had accidentally fallen onto the victim during their fight, that fact was disputed by the prosecution and he did not give evidence in support of his claim. The prosecutor submitted that the fatal injury was only accidental in the sense that the appellant may not have intended to fall on the victim in the way that he did.
By his guilty plea the appellant accepted that his actions exposed the victim to an appreciable risk of serious injury. He conceded that the fight went on for a substantial time and he quickly gained the better of the victim and should have desisted at that point. In contrast to the great many injuries suffered by the victim, the appellant suffered minimal harm during the fight. His injuries were apparently confined to some swelling of the hands and what he acknowledged was a tooth gouge to his knuckle.
As King CJ observed in Perre, in circumstances such as those of this case, “it is for the judge to decide what inferences he will draw from the primary facts and to decide the basis upon which he will impose sentence”. As the only relevant evidence was the report of Dr Langlois, and in light of the positions expressed by the parties, the Judge was correct to conclude that it was not possible to know for certain which of the appellant’s actions had caused the fatal injury. The Judge concluded that it was most likely that the fatal injury was inflicted when the appellant fell on top of the victim during their fight.
That was as far as his Honour could properly go on the material before him. The important point was that the fatal injury occurred during the appellant’s deliberate and prolonged unlawful assault on the victim. That point is not disputed by the appellant.
I do not consider that the Judge erred in finding that it was not possible to know for certain which of the appellant’s actions had caused the death of the victim. It was most likely that the death was caused by the appellant falling on the victim as they fought. However, there was not enough information to decide whether the fall was accidental. The important point was that the application of blunt force to the area of the spleen occurred during the brutal assault by the appellant. I consider that the approach adopted by the Judge to fact finding was entirely consistent with the observations made about that question by King CJ in Perre.
I would refuse permission to appeal on Ground 2.
Ground 1
The summary of some 113 cases, several involving multiple offenders, provided to the Court by the appellant, simply bears out the well understood point that the circumstances involved in the offence of manslaughter vary enormously, thereby resulting in a wide range of sentences. While this is not the most egregious case of manslaughter to come before the courts in this State over the past 20 or so years, it is a serious example of the offence. That is because of the duration and brutality of the assault and the failure to desist even though the appellant quickly gained the upper hand.
The appellant has suggested that this case is analogous to Watson. In that case, two couples who were long term friends were holidaying at a coastal caravan park. During the evening, they sat around a campfire chatting and drinking. The defendant became very angry at something said by the victim. He struck the victim, while he was seated, several times in the head with a clenched fist. The victim did not have time to raise his hands to protect himself and his head took the full force of the blows. The next day the defendant apologised for his conduct. He acknowledged that he had had too much to drink. Two days later the victim sustained a subarachnoid haemorrhage caused by the punches to his head. He had also suffered a broken jaw. Life-support was withdrawn after a few days.
The defendant in Watson was a self-employed electrician with no criminal history. The Judge accepted that his behaviour was out of character. His guilty plea was accompanied by profound remorse and contrition and his mental health had deteriorated after the incident. The Judge considered that his prospects of rehabilitation were very good. After noting the importance of general deterrence and community abhorrence with such conduct, the Judge adopted a starting point of six years imprisonment which was reduced by 30 per cent on account of the early guilty plea. The head sentence was thus four years, two months and two weeks imprisonment. The non-parole period was set at three years, four months and nine days. The Judge ordered that the defendant be released after eight months subject to entry into a good behaviour bond for three years.
The circumstances in Watson are materially different to this matter. While in both cases the fatal injury was inflicted in an alcohol fuelled incident, Watson was tantamount to a “one-punch” manslaughter, albeit that several punches were thrown in quick succession. That is quite different to the protracted violent onslaught where the appellant quickly gained the better of the victim but persisted in his assault. The rehabilitation prospects of the defendant in Watson were also very good as opposed to merely reasonable.
While the appellant has been sentenced on the premise that his fall onto the victim led to the rupture of the cyst, this occurred during a very uneven battle over a significant period of time where a great many injuries were inflicted on the victim. The report of Dr Langlois leaves no doubt about that matter, in particular, his finding that the victim suffered 14 fractures to the ribs, axonal changes revealed by expert examination of the brain and a multiplicity of bruises. By engaging in such a savage assault, the appellant ran the risk that the victim may be killed even though it was not his intention to kill or to inflict grievous bodily harm. That is not changed because death occurred in a way that could not be anticipated.
For the preceding reasons, I consider that the Judge correctly concluded that this case is more serious than a “one punch” manslaughter. Also for these reasons, I consider that his Honour was correct in his conclusions that the offending was serious and condign punishment was warranted. His Honour also gave appropriate recognition to the appellant’s unfortunate upbringing and substance abuse issues, his sound employment history and reasonable prospects of rehabilitation.
I consider that the sentence was well within the range reasonably available to the Judge. I would refuse permission to appeal on Ground 1.
Ground 3
Ground 3 turns upon the proper construction of s 48(3)(a) of the Sentencing Act. Special reasons will exist so as to permit departure from the four‑fifths rule if the offence was committed in circumstances in which either the conduct of the victim or their condition substantially mitigated the conduct of the offender. It has not been suggested that the conduct of the victim in any way mitigated the conduct of the appellant.
The appellant contends that the victim’s unknown medical condition mitigated his conduct. I reject that contention. The relevant conduct of the appellant was engaging in, and persisting with, a violent assault where he quickly gained the upper hand and inflicted a multiplicity of injuries upon the victim. By engaging in an unlawful and dangerous act of this nature, the appellant necessarily accepted the accompanying risk to the victim. The fact that the victim’s unknown medical condition rendered him particularly vulnerable did not mitigate the appellant’s conduct of engaging in a violent and persistent assault.
In my view, the reference in s 48(3)(a) to the “condition” of a victim is directed at cases where the condition of the victim influences, in a real and substantial way, the conduct of the defendant in a fashion that can properly be regarded as mitigating the gravity of their offending.
The appellant has referred to a passage in the Parliamentary Debates where the Hon Paul Holloway MLC, the Minister representing the Attorney General in the Legislative Council, explained in response to a question at the Committee stage the intended operation of the amendment proposed by the Government to the Criminal Law (Sentencing) Act 1988 (SA) that became what is now s 48(3)(a) of the Sentencing Act.[12] The Minister stated that “[t]he victim’s condition may include a terminal illness or other serious debilitating condition”.[13]
[12] It is permissible to refer to relevant Minister’s speech in the Parliamentary Debates at the Committee stage where the meaning of a provision is unclear – see Moloney v Motor Accident Commission (2013) 117 SASR 189 at [32]-[35] (Kourakis CJ) and, more particularly at [89]-[91] (White J) and also State of South Australia v van Hattem [2020] SASCFC 45 at [61] (Parker J with Kourakis CJ and Tilmouth AJ agreeing).
[13] South Australia, Parliamentary Debates, Legislative Council, 21 June 2007 at 406.
The facts in R v Puhle provide a clear example of the situation contemplated by the Minister.[14] In that case the defendant was described as a loving and devoted mother who had done everything possible over close to 30 years to care for her profoundly physically and intellectually disabled daughter. The defendant had suffered physically and emotionally at the hands of her husband throughout their marriage. He took his own life soon after the couple were jointly charged with causing the death of their daughter. The mother had failed to observe that her daughter’s health was deteriorating and that she required medical care and attention. She was sentenced to imprisonment for five years, but the Court found that, due to the condition of the victim, special reasons existed to set a lower non‑parole period than the mandatory four-fifths.[15]
[14] SCCRM-12-310, sentenced by Sulan J on 22 August 2013.
[15] The sentence was also suspended.
The facts in Puhle were very different to the present matter. In that case the condition of the victim clearly had a profound influence on the conduct of the defendant and was, on any view, a powerful mitigating factor. Plainly, a merciful approach was required. In the present case, as I have said several times, the appellant engaged in a brutal assault and persisted well after he had clearly gained the upper hand. That resulted in multiple injuries to the victim, one of which resulted in his death. While the appellant clearly could not have anticipated the way in which death occurred, that was always a possibility. In those circumstances, I do not consider that it can properly be said that the unknown medical condition of the victim mitigated the conduct of the appellant.
While I do not consider that permission is required for Ground 3 as it involves a question of law, I would dismiss this Ground.
Ground 4
The appellant contends in the proposed Ground 4 that the circumstances surrounding the plea of guilty were sufficient to amount to “special reasons” under s 48(3)(b) so as to warrant departure from the four-fifths rule.
This contention fails to have proper regard to the fact that the appellant received the discount of 20 per cent that he was entitled to under the former s 10C of the Criminal Law (Sentencing) Act.[16] The non-parole period was then set by reference to the already discounted head sentence. Thus, the non-parole period necessarily took account of the 20 per cent discount.
[16] The offence occurred when the former Criminal Law (Sentencing) Act 1988 was still in force. Thus. by virtue of the transitional provision in clause (2)(a) of Schedule 1 to the Sentencing Act 2017 (SA), the “old sentence reduction provision” continued to apply.
As I understand the appellant’s submissions, he is contending that the Court should go further and find that the circumstances relating to the timing of his guilty plea were “special reasons” and thereby warranted departure from the four-fifths rule. I do not consider that the interaction between s 48(3)(b) and what is now s 40 of the Sentencing Act needs to be decided in this case. I hold that view for two reasons.
First, the Judge found that the circumstances surrounding the appellant’s guilty plea did not amount to special reasons. I have referred to his Honour’s reasons for this finding at [28] to [31] and need not repeat that material. In my view, his Honour was plainly correct. Secondly, the Judge found that, even if he was wrong in that respect, he would not exercise the discretion conferred by s 48(3)(b) to reduce the non-parole period below the mandatory four-fifths of the head sentence. I am also not persuaded that the Judge erred in respect of this second point. As his Honour correctly said, this was a serious instance of manslaughter that warranted condign punishment.
I would refuse permission to add Ground 4 to the Notice of Appeal.
Conclusion
I would refuse permission to appeal on Grounds 1 and 2 and refuse permission to add Ground 4. I would dismiss Ground 3.
BLEBY J: For the reasons given by Parker J, I would refuse permission to appeal on Grounds 1 and 2, and refuse permission to add Ground 4. I would dismiss Ground 3.