Lowe v The King
[2025] SASCA 24
•20 March 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
LOWE v THE KING
[2025] SASCA 24
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice B Doyle)
20 March 2025
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 - ATTEMPTED MURDER
Application for permission to appeal against sentence on the ground that it is manifestly excessive. The applicant requires an extension of time of around nine years.
The offending involved a vicious attack on the victim who was home alone. The applicant was wearing a balaclava and rubber gloves and wielding an aluminium bar. The victim sustained serious brain and other injuries. The attack was only interrupted when her domestic partner and son returned home unexpectedly early from a fishing trip. Had they not done so it is likely that the victim would have been murdered.
The applicant was not identified as a suspect until nearly a decade after the offending, when his DNA was entered into a police database and linked to the crime scene. It emerged that the applicant was living with the daughter of the victim’s domestic partner at the time of the attack. After two trials the applicant was convicted, by a unanimous jury verdict, of attempted murder contrary to ss 11 and 270A of the Criminal Law Consolidation Act 1935 (SA).
At the time of sentencing, the applicant was already serving a sentence of imprisonment for 10 years, with a non-parole period of seven years, for 26 counts of dishonesty involving a scheme in which fraudulent Victims of Crime claims caused a loss of over $1 million.
The sentencing judge, Blue J, sentenced the applicant to 20 years’ imprisonment, imposed cumulatively on the existing sentence, leading to a combined head sentence of 30 years’ imprisonment and an extended non-parole period of 20 years, backdated to when the applicant was first taken into custody for his fraud offending.
Held (the Court), dismissing the application for an extension of time in which to seek permission to appeal against sentence:
1.Acknowledging that each case must depend upon its particular facts and circumstances, sentences for crimes that include serious examples of attempted murder are not capped at a ceiling of 14 or 15-years’ imprisonment.
2.The appellant’s pre-meditated, violent attack was not mitigated by any favourable circumstances. No motive for the offending has ever been offered. A severe sentence was an appropriate response. It cannot be said that this heavy sentence was unreasonable or unjust.
3.Having regard to all of the circumstances before the Court, including the lack of merit in the proposed sentence appeal, the inadequate explanation for the applicant’s delay, and the public interest in the finality of litigation, no proper basis has been laid for the favourable exercise of the discretion to extend time.
Criminal Law Consolidation Act 1935 (SA) ss 11 and 270A; Criminal Law Consolidation Act Amendment Act (No 107 of 1981) (SA); Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
R v Glen (Sentencing remarks, Kelly J dated 24 February 2014); R v Grosser (No 2) [2003] SASC 341; R v Holder [2019] SASCFC 73; R v Humbles [2014] SASCFC 91; R v Lange [2007] SASC 243; R v Postolovski [2016] SASCFC 69; R v Tilmouth [2013] SASCFC 107; R v Weetra (Sentencing remarks, McDonald J dated 14 March 2023), discussed.
Barbaro v The Queen (2014) 253 CLR 58; Brooker v The King [2024] SASCA 135; Gassy v The King [2023] SASCA 90; Gikas v Police (1999) 202 LSJS 301; House v The King (1936) 55 CLR 499; Jackamarra v Krakouer (1998) 195 CLR 516; Kentwell v The Queen (2014) 252 CLR 601; R v Balchin (1974) 9 SASR 64; R v Beaumont [2023] SASCA 128; R v Brown [1963] SASR 190; R v Lowe [2016] SASCFC 118; R v Lowe (Sentencing remarks, Blue J dated 14 September 2015); R v Lowe (Sentencing remarks, Judge Muscat dated 5 December 2014); R v Mieglich (Sentencing remarks, David J dated 14 May 2014); R v Morse (1979) 23 SASR 98; R v Parenzee (2008) 101 SASR 469; R v Perre (Sentencing remarks, Nicholson J dated 7 October 2022); R v Osenkowski (1982) 30 SASR 212; R v Valesic (2018) 132 SASR 250; Veen v The Queen (No 1) (1979) 143 CLR 458; Veen v The Queen (No 2) (1988) 164 CLR 465, considered.
LOWE v THE KING
[2025] SASCA 24Court of Appeal – Criminal: Livesey P, David JA and B Doyle AJA
THE COURT:
Introduction
This is an application for permission to appeal against sentence on the ground that it is manifestly excessive.
On 30 July 2015, the applicant was convicted, by a unanimous jury verdict, of the attempted murder of Ms Nanette Clarke in 2003, contrary to ss 11 and 270A of the Criminal Law Consolidation Act 1935 (SA) (CLCA), for which the maximum penalty was life imprisonment.
The applicant was already serving a sentence of imprisonment of 10 years, with a non-parole period of seven years, for 26 counts of dishonesty, imposed on 5 December 2014.[1] Those offences were committed some years after the attempted murder offending.
[1] Sentencing remarks of Judge Muscat dated 5 December 2014.
On 14 September 2015, the sentencing judge sentenced the applicant to 20 years’ imprisonment, imposed cumulatively on the existing sentence, resulting in a combined head sentence of 30 years’ imprisonment. The sentencing judge fixed a new non-parole period of 20 years, backdated to commence on 5 September 2012.
The applicant requires an extension of time of around nine years.
For the following reasons, the application for an extension of time should be dismissed.
The circumstances of the offending
At around 10.00pm on 19 August 2003, Ms Clarke was at home alone in her house in Port Lincoln. The applicant entered the home armed with a length of thick-walled aluminium pipe, about 50 mm in diameter. A handle was formed with foam wrapped around one end of the aluminium pipe and secured by duct tape. He wore a balaclava and disposable gloves.
The applicant hit Ms Clarke over the head with the aluminium pipe. Ms Clarke fell to the floor and lost consciousness. Whilst she was on the floor, the applicant repeatedly hit Ms Clarke in the head. She lost a lot of blood. The applicant then dragged Ms Clarke into the carport and lifted her into her own car.
At this point, Ms Clarke’s domestic partner, Mr Neil Evans, and her son, Mr Damien Clarke, arrived home unexpectedly early. They had called off their fishing trip because of bad weather. The applicant fled. He returned to the house where he was living with Ms Jodi Evans, the daughter of Mr Neil Evans.
Ms Clarke was airlifted to the Royal Adelaide Hospital. She suffered brain injuries, which the sentencing judge said explained her failure to recognise the applicant as her assailant.
Ms Clarke was left with reduced information processing speed, together with impaired decision-making, verbal fluency and memory functions. She also suffered a compound fracture of the lower right arm, a dislocated elbow, a neck injury similar to whiplash, multiple lacerations to her scalp and a swollen eye. Ms Clarke suffered an injury to her left ear, which resulted in a permanent 80% loss of hearing, tinnitus and difficulties with balance. She spent five weeks in the Royal Adelaide Hospital and the Hampstead Centre.
The victim impact statement from Ms Clarke disclosed the very serious ongoing effects of the offending. She described headaches, pain and stiffening in her right arm, a loss of taste and smell, and she needed treatment for her neck and right arm injuries.
Ms Clarke sustained substantial financial loss due to her large medical expenses, combined with a reduced ability to work. The most significant effects of the attack were, however, psychological. Ms Clarke was unable to continue living in her own home. She sold it. Even so, she continued to suffer sleepless nights, nightmares and flashbacks.
As the Port Lincoln Community Impact Statement demonstrated, news of the unprovoked and vicious attack on Ms Clarke caused fear and dismay amongst the community. This was exacerbated by the failure to detect the offender for some years.
The applicant avoided detection for nearly a decade. He was only suspected once a sample of his DNA, taken in connection with his fraud offending, was entered into a police database. It linked him to the Port Lincoln crime scene. The applicant was arrested in connection with the subject offending on 5 April 2013.
The case against the applicant was circumstantial. It included very high probability DNA matches linking the applicant to deposits of blood located on the kitchen floor, hallway carpet and bi-fold doors of Ms Clarke’s home. There were also very high probability DNA matches linking the applicant to items found at the crime scene, including a balaclava, grey duct tape attached to the weapon, two pieces of disposable glove, and the handle of a bucket found in the kitchen/dining room.
There was also expert evidence led at the applicant’s trial about the behaviour of Ms Clarke’s dog, “Rusty”, concerning the torn pieces of disposable glove containing DNA matches to the applicant, Ms Clarke and Rusty. The prosecution case was that Rusty bit the applicant, tearing the glove and causing the applicant to bleed. There was also lay evidence putting in doubt the applicant’s suggested alibi, and evidence that material similar to that found at Ms Clarke’s home, but foreign to it, was also in the applicant’s house. This included the duct tape.
There were two trials before the applicant was convicted following a finding of guilt by a jury in 2015. The applicant’s appeal against conviction was dismissed by the Court of Criminal Appeal in 2016.[2]
[2] R v Lowe [2016] SASCFC 118 (Peek and Doyle JJ, with whom Nicholson J agreed).
The circumstances of the offender
The applicant was born in December 1981 and is now 43 years. He appears to have enjoyed a happy childhood. At the time of sentence, he retained the support of his family, including his parents, wife and infant son.
At the time of the offending, the applicant was working as a chef and living with Ms Evans, in a house owned by Mr Evans. The applicant had been welcomed into the Clarke-Evans homes and treated as a member of their family. In the aftermath of the offending, he continued to interact with the family. They later described feeling bewildered and betrayed by the applicant’s offending.
Later, the applicant was employed in the Attorney-General’s Department as a law clerk and studied law part-time. He moved to the Victims of Crime Unit and became responsible for assessing and negotiating applications for compensation made by victims of crime. There he embarked upon an extensive fraud involving fictitious compensation claims.
The applicant involved a number of other people in a fraudulent scheme which cost the Victims of Crime Fund just over $1 million over four years. Of this amount the applicant obtained around one half. His motive was greed. One of the offenders fled overseas whilst the others made early admissions.
The applicant was first sent to gaol in connection with his fraud offending on 5 September 2012. Although sentenced for the fraud offending before the subject offending, the sentencing judge treated the applicant as a first offender.
A feature of the sentencing process for the subject offending was the paucity of material put before the sentencing judge. The applicant’s conviction appeal had not yet been heard. The applicant denied the offending, made no admissions and has never explained his offending or what motive he may have had for attempting to murder Ms Clarke.
The approach of the sentencing judge
In commendably concise sentencing remarks, Blue J explained that it was common ground that the applicant’s offending was “particularly serious”:[3]
The offence of attempted murder for which you now stand to be sentenced is, as the prosecutor submitted and your counsel frankly acknowledged, a particularly serious version of attempted murder. The preparation of the aluminium pipe weapon and the taking to the scene of the gloves and other implements found by the police shows that this was a premeditated offence. Your motive for committing the offence has not been identified.
I am required by the Sentencing Act to have regard to various considerations, and in particular to give proper effect to the need to protect the safety of the community and the security of the lawful occupants of their homes from intruders. This consideration is particularly important given the seriousness and circumstances of the offence.
[3] Sentencing remarks, Blue J dated 14 September 2015, 6-7.
In arriving at his sentence, the sentencing judge explicitly considered totality because the sentence he imposed was ordered to be cumulative upon the existing sentence for fraud.
Pursuant to the terms of the Sentencing Act, the sentencing judge reviewed the existing non-parole period of seven years and extended it by 13 years. The sentencing judge backdated the combined head sentence of 30 years and the extended non‑parole period of 20 years to 5 September 2012.
The extension of time
The applicant requires an extension of time of around nine years.
In his affidavit sworn on 18 September 2024, the applicant explained that he was represented by senior counsel and a different firm for his conviction appeal in 2016. He says that he did not lodge an appeal against sentence because he did not then have the financial means to fund “another ground of appeal”.
That assertion is difficult to accept. For the fraud offending, the applicant had applied for permission to appeal against sentence, which was dismissed by Justice Peek on 5 June 2015. The applicant was sentenced by Blue J for the attempted murder offending in September 2015. After the conviction appeal for the fraud offending was dismissed in October 2016, an application for special leave to appeal was filed but dismissed by the High Court in 2017. It would appear that the applicant was well represented and aware of his appeal rights in the period June 2015 to 2017.
During 2017, the applicant says he was assaulted and then placed into protective custody. He said that he went into a deep depression for about a year. He had suicidal ideation, and he had difficulty focussing on his “appeal matters”.
No medical or psychiatric or other evidence has been adduced in support of these assertions.
The applicant wrote to a former solicitor in early 2019 and 2020 but says he received no response. In early 2021, the applicant says he wrote to a different solicitor but was told he needed to put $15,000 into trust and he could not afford to do that.
It was not until late 2021, early 2022 that the applicant commenced contacting the Legal Services Commission.
In an affidavit provided by Ms Sarah Graham from the Legal Services Commission, affirmed on 13 September 2024, she explains that between late 2021 and April 2023 the applicant made contact with the Commission on six occasions, seeking funding for an appeal against sentence.
It was not until late April 2023 that approval was given to provide an advice on the merits of a sentence appeal. Legal aid was not granted until April 2024. Thereafter, it would appear that the application for permission to appeal against sentence has been diligently prosecuted.
The principles concerning an application for an extension of time have been addressed on a number of occasions.[4] The Court will consider the length of the delay, the reasons for the delay, the impact upon the public interest in re-opening the Court’s decision in the time since conviction or sentence, and the merits of the proposed grounds. Where there is a reasonable explanation for the delay, and the delay is short, the Court will readily grant an extension of time.[5]
[4] R v Parenzee (2008) 101 SASR 469, 482-483 (Doyle CJ, with whom Bleby and Anderson JJ agreed); Gassy v The King [2023] SASCA 90, [97]-[100] (Livesey P, David JA and Stein AJA).
[5] Gikas v Police (1999) 202 LSJS 301, 306 (Lander J); R v Brown [1963] SASR 190, 191 (Napier CJ, Millhouse and Hogarth JJ).
The applicant seeking an extension must demonstrate that there is a real possibility of a miscarriage of justice or that there are substantial grounds warranting serious consideration of the merits of the proposed appeal.[6] The Court will usually insist that the time for an appeal will not be extended unless the proposed appeal has real prospects of success.[7] In Kentwell v The Queen, the High Court explained:[8]
… The principle of finality finds expression in the prescription of the time limit within which an appeal or an application for leave to appeal may be brought. The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re-opening a concluded criminal proceeding. However, at least in the case of an out-of-time challenge to a sentence that is being served, the principle of finality does not provide a discrete reason for refusing to exercise the power.
[6] R v Brown [1963] SASR 190, 191 (Napier CJ, Millhouse and Hogarth JJ); R v Balchin (1974) 9 SASR 64, 65-66 (Hogarth ACJ, Bright and Walters JJ).
[7] Jackamarra v Krakouer (1998) 195 CLR 516, 521 (Brennan CJ and McHugh J); R v Valesic (2018) 132 SASR 250, [14] (Peek J, with whom Stanley and Hinton JJ agreed).
[8] Kentwell v The Queen (2014) 252 CLR 601, [32] (French CJ, Hayne, Bell and Keane JJ).
The Court reiterated the relevance of the prospects of success in the determination of the interests of justice on an application to extend time to appeal.[9]
[9] Kentwell v The Queen (2014) 252 CLR 601, [33] (French CJ, Hayne, Bell and Keane JJ).
However, where the delay is substantial, and inadequately explained, it will usually be necessary to demonstrate more than that the proposed grounds are reasonably arguable.
It is a matter for the Court of Appeal whether it permits the appeal to be argued in connection with an application for an extension of time. In this case, the Court determined to hear the application for an extension together with the application for permission to appeal because it took the view that it was not possible to determine the extension application without a full understanding of the merits.
The applicant’s contentions on the sentence appeal
The applicant’s principal contention was that the head sentence of 20 years’ imprisonment, together with a non-parole period of 13 years, was manifestly excessive and amounted to a miscarriage of justice.
Though the applicant acknowledged that there was no tariff or sentencing standard for attempted murder, and that this was “a particularly serious version of attempted murder”, he submitted that this sentence was comparatively higher than sentences imposed in other matters where the circumstances also represented serious examples.
For example, in R v Tilmouth,[10] the defendant was 19 years at the time of offending. He was engaged in a “bondage session” with the victim. After the victim was handcuffed with a gag in his mouth and wearing a blindfold, the defendant stabbed him twice to the chest and cut his neck. The victim collapsed from blood loss and was taken to hospital. The offending was described as serious and premeditated. It had a devastating effect on the victim. No explanation for the offending was given by the defendant.
[10] R v Tilmouth [2013] SASCFC 107 (Kelly J, with whom Kourakis CJ and Peek J agreed).
The Court of Criminal Appeal found that the sentencing judge was correct to categorise the offending as “violent, serious and premeditated”,[11] but rejected a complaint of manifest excess concerning a sentence of imprisonment for 14 years.[12]
[11] R v Tilmouth [2013] SASCFC 107, [18] (Kelly J, with whom Kourakis CJ and Peek J agreed).
[12] The sentence was reduced to 10 years after allowance was made for the defendant’s plea of guilty on the morning of trial, and a non-parole period of seven years was fixed.
In R v Postolovski,[13] the offending occurred in the context of a prolonged period of domestic violence. The defendant stabbed his wife repeatedly with a knife, causing permanent nerve damage to her hand. The Court described the attack as vicious and concerted,[14] agreeing with the sentencing judge that it was at “the higher end of the scale of seriousness”.[15] Again, the complaint of manifest excess was rejected in connection with a sentence of imprisonment for 14 years.[16]
[13] R v Postolovski [2016] SASCFC 69 (Parker J, with whom Blue and Doyle JJ agreed).
[14] R v Postolovski [2016] SASCFC 69, [48] (Parker J, with whom Blue and Doyle JJ agreed).
[15] R v Postolovski [2016] SASCFC 69, [23] (Parker J, with whom Blue and Doyle JJ agreed).
[16] The starting point of 14 years was reduced by 30 per cent for the early guilty plea to nine years and eight months. A non-parole period was fixed at six years.
Finally, the applicant relied on R v Holder,[17] where the defendant attacked a pharmacist with a knife. The Court described the attack as carefully planned and carried out for vengeance.[18] The sentencing judge in that case found that there was no hint of remorse, and she could not quantify the risk the defendant posed in the future. She found that the defendant was and would remain a dangerous man. The Court of Criminal Appeal rejected the complaint of manifest excess concerning a sentence of imprisonment for 15 years with a non-parole period of 10 years.
[17] R v Holder [2019] SASCFC 73 (David AJ, with whom Stanley and Parker JJ agreed).
[18] R v Holder [2019] SASCFC 73, [41] (David AJ, with whom Stanley and Parker JJ agreed).
Considering the merits of the proposed sentence appeal
Were it not for the unexpected return of Mr Neil Evans and Mr Damien Clarke from their fishing trip, the applicant’s attack on Ms Clarke would likely have continued, resulting in her death. This was an extremely serious example of attempted murder.
The essence of the applicant’s case on sentence is the apparent disparity between the sentences in the cases on which he relied and the sentence imposed in this case.
The difficulties associated with comparing sentences are well-known and were acknowledged by the applicant. There is no sentencing standard for cases of attempted murder.[19] The facts and circumstances tend to vary markedly, as do the sentences. Of the three cases relied on by the applicant, only R v Holder concerned a finding of guilt following a trial. The others involved guilty pleas. In this case, there was no scope for leniency where the applicant avoided detection for nearly a decade and then, following conviction, provided no explanation or motive for his vicious attack.
[19] R v Tilmouth [2013] SASCFC 107, [20] (Kelly J, with whom Kourakis CJ and Peek J agreed).
Following a request from the Court, the parties prepared a helpful summary of sentences imposed for attempted murder, dating back to the mid-1990’s.[20] There are a number of cases involving what might be thought high sentences for offending involving attempted murder. Some are more serious and are of little assistance, especially where life imprisonment was imposed for offending that was not confined to attempted murder.[21]
[20] See list of cases set out in Annexure A. Care is required as in a number of cases attempted murder was not the only offence for which the sentence was imposed.
[21] See, for example, R v Mieglich (Sentencing remarks, David J dated 14 May 2014), where life imprisonment was imposed with a 26-year non-parole period; and R v Perre (Sentencing remarks, Nicholson J dated 7 October 2022), where life imprisonment with a 30-year and seven-month non-parole period for murder and attempted murder were imposed. In that case the sentencing judge said that, if it had been the only charge, he would have imposed a 15-year sentence for the attempted murder charge. Under the CLCA, s 270A addresses the penalties for attempts and, under s 270A(3)(a), “in the case of attempted murder or attempted treason, the penalty shall be life imprisonment or imprisonment for some lesser term”. Section 270A commenced in its current form on 11 February 1982, Criminal Law Consolidation Act Amendment Act (No 107 of 1981).
For example, in R v Humbles,[22] following an altercation, the defendant left a party carrying a pistol. He encountered three young men. He fired the pistol at the three men, hitting one and causing his death. The only issue at trial was whether the defendant was so affected by alcohol and drugs that the prosecution could not prove the requisite specific intention beyond reasonable doubt. The defendant’s blood alcohol reading would have been in the range of 0.252 to 0.284 grams of alcohol per 100 millilitres of blood. The court found that the defendant had the intention to kill all three young men.
[22] R v Humbles [2014] SASCFC 91 (Gray and Stanley JJ, with whom Peek J agreed).
The defendant was sentenced to one sentence of life imprisonment for the conviction for murder and the two convictions for attempted murder. A non-parole period of 23 years was set aside, and an 18-year and two-month non-parole period was substituted. That was reduced by 14 months for time spent in custody. The Court of Criminal Appeal allowed the appeal against sentence on the basis that, though he was sentenced as an adult, the defendant was only seventeen at the time of offending, and nineteen at the time of sentence. Apart from his youth, the Court had regard to factors such as the absence of any relevant prior convictions, the defendant’s degree of remorse and contrition, his lack of pre-meditation, together with his cooperation in the administration of justice by his admissions.
In R v Grosser (No 2),[23] the defendant was involved in a lengthy siege, and fired on a police officer, intending to kill him. He continued firing during the attempts made to rescue the injured officer. A jury found the defendant guilty of attempted murder and guilty on five charges of endangering the lives of other police officers. The Court of Criminal Appeal rejected the contention that a sentence of 22 years with a non-parole period of eighteen years was manifestly excessive.[24]
[23] R v Grosser (No 2) [2003] SASC 341 (Prior J, with whom Doyle CJ and Vanstone J agreed).
[24] R v Grosser (No 2) [2003] SASC 341, [21]-[22] (Prior J, with whom Doyle CJ and Vanstone J agreed).
Some cases in the list are of a little more assistance, though still clearly distinguishable. For example, one could point to a case such as R v Lange,[25] where, following a trial of the defendant’s mental competence, the defendant was found mentally competent and he then pleaded to four offences, including attempted murder.[26] The sentencing judge commenced with a sentence of imprisonment for 19 years. After allowance for the pleas of guilty, the sentence became 17 years and six months. The sentencing judge fixed a non-parole period of 12 years and six months.
[25] R v Lange [2007] SASC 243 (White J); on appeal, R v Lange [2007] SASC 359 (Doyle CJ, with whom Debelle and Nyland JJ agreed).
[26] Aggravated serious criminal trespass in a place of residence, contrary to s 170(2) of the CLCA; unlawful wounding, contrary to s 23 of the CLCA; and aggravated robbery, contrary to s 137(2) of the CLCA.
R v Lange involved other offences, where the principal point of difference was the element of robbery. However, the offending was violent, serious and sustained. The defendant entered the victim’s home through an unlocked door, carrying a knife. He demanded money for alcohol and, after he obtained money, he told the victim that because she had seen his face, he had to kill her. Showing great courage, the victim resisted and eventually escaped. These very serious crimes had grave consequences for the victim and her family. The defendant was sentenced on the basis that he was a first offender. On the material before the sentencing judge, the defendant had been a good and productive member of the community for many years but a combination of alcohol abuse and motor accident injuries, combined with aggravated pre-existing PTSD, caused impaired functioning and a need for money to purchase alcohol.
After the sentencing judge granted permission to appeal against sentence, the Court of Criminal Appeal dismissed the complaint of manifest excess, which was based, at least in part, on the appellant’s deteriorating mental condition at the time of his offending.
Similarly distinguishable is R v Glen, [27] where the defendant was sentenced to imprisonment for 18 years (reduced to 16 years on account of the guilty pleas) and a non-parole period of 11 years. This sentence was imposed for two offences of causing harm with intent to cause harm to a female victim (a former partner of the defendant), one offence of attempted murder of the male victim (who had been in a relationship with the female victim), and an offence of stealing the motor vehicle of the male victim.
[27] R v Glen (Sentencing remarks, Kelly J dated 24 February 2014).
The defendant was drinking alcohol heavily and using amphetamine in the days before 23 December 2012 when, during an argument with the female victim, the defendant punched her multiple times to the head and body, and then pushed her into an oven. The defendant told the female victim that he intended to kill the male victim. When the male victim arrived, the defendant embarked on a frenzied attack, stabbing him multiple times, causing serious injuries. Without surgery he would have died. The male victim suffered permanent damage, including damage to his kidney and to his hands.
The defendant then stole the male victim’s car, with the child of the victims still in the backseat. After frantic attempts to get the defendant to stop the vehicle, the child was retrieved from the vehicle before the defendant again drove off. The car was never seen again. The defendant was aged 25 at the time of sentencing and had “an appalling” criminal record. The defendant’s pleas were entered on the day of trial, and he admitted the important and essential matters, particularly that he intended to kill the male victim. There does not appear to have been any appeal.
Finally, in R v Weetra the defendant was found guilty by a jury of the attempted murder of a female victim, with whom the defendant had been in a brief domestic relationship.[28] After the victim announced her intention to leave the relationship, the defendant splashed petrol onto her and ignited the fumes with a cigarette lighter. The victim and the defendant both suffered burn injuries as a result of the offending. One week before the offending, there had been a previous incident during which the defendant doused the victim with petrol.
[28] R v Weetra (Sentencing remarks, McDonald J dated 14 March 2023).
The victim’s injuries were life threatening. She sustained burns to 40% of her body. Most were characterised as full thickness burns, and most of these required skin grafts. These required the surgeons to use undamaged areas of skin. The victim also suffered inhalation and upper airway injuries, lower airway injuries and systemic toxicity. As a result, she spent many months in hospital. She underwent surgery on seven occasions and, if there were no complications, she required six further operations. She lost her independence and required assistance in the home and getting to appointments.
At the time of sentence, the defendant was 45 years and had a long history of criminal offending. The sentencing judge was critical of the defendant’s lies to the jury to the effect that the victim had harmed herself. She found that there was an “absence of any contrition or remorse” and imposed a sentence of imprisonment for 18 years, together with a non-parole period of 14 years, backdated to when the defendant was first taken into custody on 22 March 2021.
Acknowledging that each case must depend on its particular facts and circumstances, these cases and those set out in the table suggest that, contrary to the implication in the applicant’s case, sentences for crimes which include serious examples of attempted murder are not capped at a ceiling of 14 or 15 years’ imprisonment.
When evaluating a complaint of manifest excess, the Court will, amongst other considerations, have regard to the prescribed maximum penalty, as King CJ explained in the well-known passage in R v Morse:[29]
This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender …
[29] R v Morse (1979) 23 SASR 98, 99 (King CJ, with whom White and Mohr JJ agreed).
As the sentences for the offence of attempted murder disclose such a marked disparity in circumstances and sentences, the only real yardstick is that the legislature has specified a sentence of life imprisonment as the maximum sentence. Again, as King CJ explained in R v Morse:[30]
The maximum is, however, for the worst type of cases and sentences approaching the maximum should be reserved for cases approaching the worst type in seriousness.
[30] R v Morse (1979) 23 SASR 98, 99 (King CJ, with whom White and Mohr JJ agreed).
Whilst it is necessary to put this case into perspective by considering the sentence against “the standards of sentence customarily observed”, and “the place [this crime] occupies in the scale of seriousness”,[31] the evaluation of the available range cannot be reduced to a merely “mathematical exercise”.[32] That is because this Court must recognise that it was necessary for the sentencing judge to properly apply the common law principle of proportionality, as recognised by Veen v The Queen (No 1),[33] affirmed in Veen v The Queen (No 2),[34] and the applicable sentencing legislation.
[31] R v Morse (1979) 23 SASR 98, 99 (King CJ, with whom White and Mohr JJ agreed).
[32] Barbaro v The Queen (2014) 253 CLR 58, [34]-[35] (French CJ, Hayne, Kiefel and Bell JJ).
[33] Veen v The Queen (No 1) (1979) 143 CLR 458, 467 (Stephen J), 467-468 (Mason J), 482-483 (Jacobs J).
[34] Veen v The Queen (No 2) (1988) 164 CLR 465, 472 (Mason CJ, Brennan, Dawson and Toohey JJ): “a sentence should be “proportionate to the gravity of the offence” unless, perhaps, the applicant's history warrants some departure from the principle … the appropriate … sentence [is determined] by reference to all the circumstances of the case”.
As has been observed on many occasions, the relevant sentencing considerations in cases of serious offending will not generally point in the same direction.[35] However, a marked difficulty with this case is that the applicant’s pre‑meditated, violent attack was not mitigated by any favourable circumstances.[36]
[35] Brooker v The King [2024] SASCA 135, [72] (Livesey P, David JA and Bond AJA); R v Beaumont [2023] SASCA 128, [51]-[53] (Livesey P, Lovell and Bleby JJA).
[36] Cf R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ).
Whilst the applicant was only aged in his early twenties at the time of the offending, he avoided detection for nearly a decade until his DNA was entered into a police database. As was his right, he refused to admit his involvement during two criminal trials. At the time of sentence his counsel was able to offer no explanation or motive for the offending. The applicant’s rehabilitation prospects must have appeared bleak.
The sentencing judge was presented with a case where the protection of the safety of the community was rightly regarded as an important sentencing consideration, as must have been punishment and personal and general deterrence.[37] It was also necessary for the sentencing judge to bring to account the very serious and ongoing harm caused to the victim, her family and the Port Lincoln community.
[37] See the Criminal Law (Sentencing) Act 1988 (SA) (as in force on 14 September 2015), ss 10(1)(j), 10(2)(a)-(b), see also ss 10(1)(a), (d), (e), (g), (h), (i), (l), (m) and (n).
Indeed, the corrosive sense of betrayal associated with the applicant’s pre-meditated, vicious offending in Ms Clarke’s own home is not difficult to appreciate. A severe sentence was an appropriate response. To describe a sentence as severe does not, however, mean that it is necessarily manifestly excessive.[38]
[38] House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ); R v Morse (1979) 23 SASR 98, 99 (King CJ).
It cannot be said that this heavy sentence was unreasonable or unjust.
Determining the application for an extension of time
Having considered the merits of the application to seek permission to appeal against sentence, it is appropriate to return to the application for an extension of time.
The applicant conceded that the explanations provided in his affidavit and the affidavit of his solicitor were not sufficient to explain the inordinate delay of around nine years in this case. That concession was appropriate.
In particular, it defies belief that the applicant only failed to commence a sentence appeal in the first few years following sentence because he could not fund another ground of appeal. At that stage, the applicant must have been aware of his rights and he was represented by senior counsel and a firm of solicitors who took his case to the Court of Criminal Appeal and then to the High Court. In addition, and at least until contact commenced with the Legal Services Commission, the applicant appears to have made only desultory and sporadic attempts to press any appeal against sentence.
Given the views earlier expressed about the lack of merit in the proposed sentence appeal, and the inadequate explanation for the delay in this case, the public interest in the finality of this criminal litigation becomes an important consideration. As an aspect of finality, the Court may take into consideration, at least in a broad way, the likely adverse effects on the victim, her family and on the community generally, were this concluded criminal proceeding to be re-opened.[39]
[39] Kentwell v The Queen (2014) 252 CLR 601, [32] (French CJ, Hayne, Bell and Keane JJ).
Having regard to all of the circumstances before the Court, no proper basis has been laid for the favourable exercise of the discretion to extend time within which to commence the application for permission to appeal against sentence.
Conclusion
The application for an extension of time in which to seek permission to appeal against sentence must be dismissed.
ANNEXURE A
TABLE OF SENTENCES – ATTEMPTED MURDER
NO.
CASE
HEAD SENTENCE
NON‑PAROLE
1
R v Peake (1996) 67 SASR 297
12 years
8 years
2
R v Suckley
(SCCRM-97-4)(Sentencing Remarks of the Honourable Justice Matheson, 24 October 1997)
9 years
3 years
3
R v M, D V And T, K F [2003] SASC 154
11 years
7 years and 6 months (each defendant)
4
R v Grosser (No 2) [2003] SASC 341
22 years
18 years
5
R v Truong [2004] SASC 106
10 years
7 years and 6 months
6
R v Cronin
(SCCRM-05-338)(Sentencing Remarks of the Honourable Justice Nyland, 12 October 2006)
8 years and 2 months (taking into account time served and home detention bail)
3 years
Found to be a rare and exceptional case and a merciful approach was taken. Sentence suspended upon the entering of a good behaviour bond for 2 years.
7
R v Le [2007] SASC 251
13 years
9 years
8
R v Francis
(SCCRM-06-12)(Sentencing Remarks of the Honourable Justice Gray, 12 April 2007)
11 years and 3 months (taking into account time served and home detention bail)
6 years
9
R v Lange
(SCCRM-05-194)(Sentencing Remarks of the Honourable Justice White, 5 July 2007); R v Lange [2007] SASC 359
17 years and 6 months
12 years and 6 months
10
R v Cutting
(SCCRM-06-318)(Sentencing Remarks of the Honourable Justice White, 7 November 2007)
11 years and 8 months (after reduction for guilty pleas and time in custody)
7 years and 9 months
11
R v Carroll
(SCCRM-07-159)(Sentencing Remarks of the Honourable Justice Nyland, 2 May 2008)
8 years and 6 months (after reduction for guilty plea, time served and home detention)
3 years
12
R v Ackoski
(SCCRM-08-154)(Sentencing Remarks of the Honourable Justice Kelly, 22 December 2008)
14 years
9 years
13
R v Laslovary
(SCCRM-09-76)(Sentencing Remarks of the Honourable Justice Anderson, 4 June 2010)
8 years (after reduction for cooperation, admissions and offer to plead guilty to a lesser charge)
4 years
14
R v Wright
(SCCRM-12-23)(Sentencing Remarks of the Honourable Justice Sulan, 10 October 2012)
10 years and 6 months (after reduction for contrition, guilty plea and cooperation)
7 years
15
R v Scott
(SCCRM-12-57)(Sentencing Remarks of the Honourable Justice David, 2 November 2012)
10 years (home detention was factored into sentence)
8 years
16
R v Tilmouth [2013] SASCFC 107
10 years (after reduction for guilty plea and early acknowledgement of guilt)
7 years
17
R v Glen
(SCCRM-13-160 & SCCRM-13-335)(Sentencing Remarks of the Honourable Justice Kelly, 10 February 2014)
16 years (after reduction for guilty plea)
11 years
18
R v Humbles [2014] SASCFC 91
Life imprisonment
23 years (after reduction of 14 months on account of time spent in custody)
19
R v Mieglich
(SCCRM-13-316)(Sentencing Remarks of the Honourable Justice David, 14 May 2014)
Life imprisonment
26 years (after reduction for guilty plea)
20
R v Anderson
(SCCRM-13-333)(Sentencing Remarks of the Honourable Justice Sulan, 16 February 2015)
14 years
8 years
21
R v (Name suppressed)
(SCCRM-14-182)(Sentencing Remarks of the Honourable Justice Sulan, 10 July 2015)
12 years
6 years
22
R v Ietto
(SCCRM-15-174)(Sentencing Remarks of the Honourable Justice Vanstone, 18 August 2015)
7 years and 6 months (after reduction for guilty pleas)
3 years and 6 months
23
R v Lowe
(SCCRM-13-310)(Sentencing Remarks of the Honourable Justice Blue, 14 September 2015)
20 years (to be served cumulatively upon sentence of 10 years defendant was serving at the time)
20 years imposed (after previous non-parole period was reviewed)
24
R v Gardi
(SCCRM-15-89)(Sentencing Remarks of the Honourable Justice Lovell, 18 December 2015)
11 years and 6 months
6 years
25
R v Postolovski [2016] SASCFC 69
9 years and 8 months (after reduction for guilty pleas)
6 years
26
R v Kasehagen
(SCCRM-16-15)(Sentencing Remarks of the Honourable Justice Lovell, 1 August 2016)
12 years imprisonment (after reduction for guilty pleas)
7 years
27
R v Chattaway [2016] SASC 195
Limiting term of 10 years
(Part 8A - mental incompetence)
-
28
R v Holder
(SCCRM-18-216)(Sentencing Remarks of the Honourable Justice Vanstone, 14 November 2018)
15 years
10 years
29
R v McEvoy
(SCCRM-18-169)(Sentencing Remarks of the Honourable Justice Doyle, 19 November 2018)
9 years and 11 months’ imprisonment (after reduction for guilty pleas)
8 years
30
R v Pearce
(SCCRM-18-341)(Sentencing Remarks of the Honourable Justice Doyle, 16 April 2019)
11 years
6 years
31
R v Freeman
(SCCRM-19-126)(Sentencing Remarks of the Honourable Justice Doyle, 16 April 2019)
14 years (reduced to 9 years and 10 months for guilty plea)
5 years and 6 months
32
R v Male [2020] SASC 98
Limiting term of 8 years and 6 months
(Part 8A - mental incompetence)
33
R v Lado [2021] SASC 33
Limiting term of 9 years reduced to 7 years and 8 days for time in custody
(Part 8A - mental incompetence)
34
R v Smailes (No 2) [2021] SASC 118
Limiting term of 9 years reduced to 7 years, 7 months and 10 days for time in custody
(Part 8A - mental incompetence)
35
R v Perre
(SCCRM-20-57)(Sentencing Remarks of the Honourable Justice Nicholson, 7 October 2022)
Life imprisonment
30 years and 7 months
36
R v Weetra
(SCCRM-22-103)(Sentencing Remarks of the Honourable Justice McDonald, 14 March 2023)
18 years
14 years
37
R v Mate
(SCCRM-21-141)(Sentencing Remarks of the Honourable Auxiliary Justice Davison, 12 August 2022)
14 years and 3 months
9 years
38
R v Childs [2023] SASC 103
Limiting term of 14 years reduced to 8 years and 11 months for time in custody
(Part 8A - mental incompetence)
39
R v Murphy [2024] SASC 5
Limiting term of 10 years, 7 months, and 15 days
(Part 8A - mental incompetence)
25
0