MATTHEWS-RUDOLPH v The King - [2025] SASCA 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MATTHEWS-RUDOLPH v THE KING
[2025] SASCA 60
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice Stanley)
5 June 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against conviction and sentence.

Following a trial by jury, the appellant was found guilty of recklessly causing serious harm contrary to s 23(3)(a) of the Criminal Law Consolidation Act 1935 (SA).
The offending arose out of an altercation between the appellant and complainant during which the appellant struck the complainant in the face while holding a glass of beer in his hand, causing her serious harm.
The appellant was sentenced to imprisonment for 2 years, 11 months and 1 day, with a non-parole period of 18 months. The judge declined to suspend the appellant’s sentence.
The grounds concerning conviction relate to the treatment of the evidence of recklessness, self-defence, intoxication and the alternative offences (Grounds 2, 4, 5 and 6). The appellant also complains that the verdict is unreasonable and cannot be supported having regard to the evidence (Ground 1).
The appellant seeks permission to appeal against his sentence on the basis that it was manifestly excessive (Grounds 1 and 6) and that the judge erred in failing to make proper allowance for the time spent in custody in fixing the non-parole period (Ground 2).
Held, per the Court, dismissing the appeal against conviction:
1.The judge did not err in her directions to the jury in relation to the evidence of recklessness, self-defence, intoxication and the alternative offences. In particular, the judge adequately addressed the issue of whether the appellant was aware of the glass in his hand when he deliberately swung his arm at the complainant, such that there was no realistic prospect of the jury overlooking its relevance.
2.The evidence justified a conclusion that the appellant was reckless as to causing serious harm. The verdict was not unreasonable.
Held, per the Court, allowing the appeal against sentence on Ground 2:
1.The complaint of manifest excess is not made out.
2.It is appropriate to set aside the sentence below and resentence the appellant on a basis which makes allowance for time served.
3.In resentencing the appellant, the head sentence and non-parole period identified by the sentencing judge were appropriate, but both should be reduced by 30 days for time spent in custody.
4.The appellant is resentenced to a head sentence of 2 years, 11 months and 1 days imprisonment, with a non-parole period of 1 year, 5 months and 1 day, both backdated to commence on 12 December 2024.

Criminal Law Consolidation Act 1935 (SA) ss 5, 5(b)(i), 23(3)(a), 23(3)(b); Sentencing Act 2017 (SA) ss 96(3)(b), 96(5), referred to.
Alford v Magee (1952) 85 CLR 437; Duffy v The Queen [1981] WAR 72; Hackett v The Queen [2021] SASCA 32; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Owens v The King [2024] SASCA 65; Pell v The Queen (2020) 268 CLR 123; R v Bond [2009] SASC 256; R v Dransfield [2016] SASCFC 68; R v Kestrell [2013] SASCFC 55; R v Musa (No 2) [2023] NSWSC 247; R v Parrott [2018] SASCFC 78; R v Williamson (1996) 67 SASR 428; Ribbon v The Queen [2022] SASCA 15, considered.

MATTHEWS-RUDOLPH v THE KING
[2025] SASCA 60
Court of Appeal – Criminal: Livesey P, S Doyle and Stanley JJA

THE COURT: The appellant was charged with the offence of aggravated recklessly causing serious harm, contrary to s 23(3)(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’). The charge related to an altercation at the Westland Hotel in Whyalla in which the appellant swung his arm and struck the complainant in the face with a glass which he was holding at the time. The aggravating circumstance relied upon by the prosecution was the appellant’s use of his glass as an offensive weapon.
The jury found the appellant not guilty of the aggravated offence, but guilty of the alternative offence of recklessly causing serious harm, contrary to s 23(3)(a) of the CLCA. For the reasons explained below, it is accepted that it can be inferred from this verdict that the jury were not satisfied beyond reasonable doubt that the appellant was aware that he was holding a glass at the time he struck the complainant.
The maximum penalty for the alternative offence of which the appellant was convicted is imprisonment for 15 years. The judge imposed a head sentence of imprisonment for 3 years, which was reduced to 2 years, 11 months and 1 day on account of 30 days spent in custody. The judge fixed a non-parole period of 18 months.
The appellant seeks permission to appeal against his conviction and sentence.
In relation to his appeal against conviction, the appellant seeks permission to appeal on grounds which contend that the judge failed to adequately direct the jury in relation to the issues of recklessness, self-defence, intoxication and the alternative offences. The overarching complaint in relation to the directions on each of these topics is that the judge failed to ensure that the jury appreciated that, in the event that they were not satisfied of the aggravated offence, each of these issues needed to be approached on the footing that the appellant was not aware that he was holding a glass at the time he swung his arm. The appellant also seeks permission to appeal on the ground that the verdict is unreasonable and unsupported by the evidence.
In relation to his appeal against sentence, the appellant seeks permission to appeal on the ground that the sentence imposed was manifestly excessive, both in terms of the length of the head sentence, and the judge’s refusal to partially suspend the sentence imposed. The appellant also contends that the judge erred in failing to make proper allowance for the time he had spent in custody in fixing his non-parole period.
For the reasons which follow, we grant the appellant permission to appeal against conviction and sentence.
We dismiss his appeal against conviction.
We allow his appeal against sentence, and reduce his non-parole period by the 30 days spent in custody.
Background
On the evening of 23 July 2022, the appellant and the complainant, Ms Saxby, were at the Westland Hotel in Whyalla. Late in the evening, whilst in a crowded area of the hotel referred to as the smoking area, they were involved in an altercation. During the course of this altercation, the appellant swung his arm whilst holding a glass of beer. His arm struck Ms Saxby in the face, causing her immediately to fall to the ground.
Ms Saxby sustained lacerations to her left eye and ear. It was not in dispute that she suffered serious harm as a result of the appellant’s action.
Nor was it in dispute that the appellant deliberately swung his arm in striking Ms Saxby to the face. The primary issue in dispute at trial was whether it could be proved beyond reasonable doubt that the appellant had the requisite state of mind to commit the charged act; that is, whether the prosecution could prove the appellant was reckless in that he was aware of a substantial risk that serious harm[1] would result from his conduct, but engaged in that conduct despite that risk and without justification. Related to this, there was a dispute as to whether the appellant was aware he was holding a glass at the moment he swung his arm.
[1] Or, for the alternative offence of (aggravated) recklessly causing harm, a substantial risk of harm.
The trial was a short one. The prosecution relied upon evidence from Ms Saxby, two additional women who were present at the hotel, and an investigating police officer. The prosecution also relied upon some agreed facts, photographs, CCTV footage from the hotel, and a record of the accused’s police interview.
Ms Saxby’s evidence was that she was at the hotel catching up with friends, in the context of a farewell dinner and drinks. She and her friends had dinner in the beer garden from around 6.30 pm and then later in the evening moved to the outdoor smoking area. Ms Saxby said that she had not consumed much alcohol.
Once in the smoking area, Ms Saxby and her friends were approached by the appellant, who introduced himself as ‘Vinnie’. The appellant told them where he worked, and that he was from New Zealand. Eventually, he was called away by one of his friends, and he left Ms Saxby and her friends.
Ms Saxby and her friends returned to the table where they had had dinner. Later again, Ms Saxby and her friends returned to the smoking area. As she entered this area, Ms Saxby observed the appellant arguing with another male.
Ms Saxby did not know what the appellant and the other man were arguing about. She noticed the appellant had a glass of beer in his hand. She approached the appellant in order to break up the argument or fight. She said to the appellant ‘come on, it’s not the time and place for a fight’, while raising her hands at chest level. The appellant immediately pushed Ms Saxby’s hands down with his left hand. She then raised her hands back up and asked the appellant ‘what was that for?’. The appellant pushed her arms down again. The male who had previously been arguing with the appellant walked away. Another male moved in between the appellant and Ms Saxby. This other male had his back to the appellant and was facing Ms Saxby.
In giving evidence, Ms Saxby was not able to recall what the other male said, but noticed that he had his arms raised. She said that the appellant then moved around the right side of the male between them and struck the left side of her face with his glass. She dropped to her knees, screaming in agony. She did not see where the appellant went after he struck her.
During cross-examination, Ms Saxby acknowledged the dynamic and chaotic context in which the incident occurred. However, she did not accept that the contact with her face was accidental, or simply a result of chaotic pushing and shoving. From her perspective, it appeared the appellant had ‘gone around’ the man between them ‘to strike [her] in the face with a glass’.
Ms Saxby was later taken to the Whyalla Hospital by ambulance for an assessment of her injuries. The following day she was evacuated by the Royal Flying Doctor Service to the Royal Adelaide Hospital. She sustained a complex laceration to the left upper and lower eyelids to the superficial aspect of her left eye and a laceration to the front of her left ear. She required plastic surgery.
On the evening of 24 July 2022, and so the day after the altercation, the appellant was arrested. He participated in a recorded interview, during which he gave the following account of what had happened the previous evening. He had been drinking in the smoking area with some mates. He was involved in an altercation at the bar with another male, whom he had not previously met. He did not know the female (Ms Saxby) and did not know how she got involved. He had consumed approximately six drinks and was ‘pretty drunk’ at the time. The altercation involved him swinging his arm around ‘with a glass in my hand’. He swung his arm in an attempt to get the male out of the way as he was ‘getting pushed’. He did not intend to hit the female. Although initially mentioning the glass in his hand, the appellant later said that he did not realise he had a glass in his hand at the time he swung his arm. He left the premises and went home.
As mentioned, the prosecution tendered the record of the appellant’s police interview. The prosecution also relied upon various excerpts from the CCTV footage obtained from the hotel. This included footage which captured the altercation, although it did not show the impact of the glass hitting Ms Saxby’s face.
Elements of the charged and alternative offences
In an aide-memoire provided to the jury (see below), the judge set out the seven elements the prosecution was required to prove beyond reasonable doubt in order to make out the offence of aggravated recklessly causing serious harm:
1.the accused performed an act;
2.the act was voluntary and deliberate, that is, not accidental;
3.Ms Saxby suffered serious harm;
4.the accused’s act caused that serious harm;
5.the accused was reckless as to causing serious harm;
6.the accused’s act was unlawful; and
7.the accused used an offensive weapon, namely a glass, when committing the offence.
The aide-memoire also included definitions of serious harm and recklessness, and a statement of the components of self-defence.
The jury were told that if element 7 (the aggravating feature) was not proved, but the other elements were, then the appellant would be guilty of the alternative offence of recklessly causing serious harm.
The jury were also provided with the elements of a further alternative offence of aggravated recklessly causing harm. The difference between this offence and the primary aggravated offence was that element 5 of the alternative offence required proof merely that the appellant was reckless as to causing harm, rather than reckless as to causing serious harm.
It was not in dispute that the appellant had a glass in his hand when he swung his arm, and that this made contact with Ms Saxby’s face. There was also no dispute at trial as to the serious harm sustained by the complainant, the evidence of which was reflected in a set of five agreed facts. Indeed, as will become clear from the extracts from the judge’s summing up set out later in these reasons, there was no dispute as to any of the first four elements.
Both counsel conducted the case on the basis that the issues in the case related to the ‘mental elements’. It is apparent from a consideration of the addresses and summing up that this was a compendious reference to the disputes between the parties as to the extent and effects of the appellant’s intoxication, as to whether the appellant was reckless in causing serious harm or harm, and as to whether the appellant was acting in self-defence.
Whilst the defence case accepted that the defendant voluntarily and deliberately swung his arm, he denied intending to hit the complainant. On the defence case, the appellant was not reckless because he had acted without thinking about the possible consequences. Whilst the act of swinging his arm was deliberate, the consequences to Ms Saxby were not, and he never turned his mind to those consequences. On the defence case, the appellant’s act or action in swinging his arm was effectively the product of being pushed and shoved by others nearby. Whilst self-defence was not squarely raised by defence counsel, it would appear that the prosecutor and judge treated it as arising for consideration on the hypothesis that the appellant’s action was a response to feeling threatened as a result of being pushed and shoved. Defence counsel disavowed any suggestion that self-defence might have arisen on the basis of any conduct by Ms Saxby.
The parties conducted the case on the basis that the act or action the subject of element 1, and underpinning consideration of the other elements, was the appellant swinging his arm. It was this act which the prosecution contended, and the defence did not dispute, was voluntary and deliberate for the purposes of element 2. The case was not run on the basis that the act involved striking with a glass, or that the appellant’s use of the glass was voluntary and deliberate. The parties have maintained this approach on appeal. In this way, the issues that have arisen in other cases[2] as to the content of element 2 were avoided at trial, and do not arise for this Court’s consideration. Element 2 did not involve any consideration of whether the appellant knew or was aware that he was holding a glass, or deliberately used the glass. It was on this basis that there was no dispute about elements 1 to 4.
[2] R v Williamson (1996) 67 SASR 428 at 433-434 (Doyle CJ), 445-447 (Matheson J), 452-454 (Duggan J); Duffy v The Queen [1981] WAR 72 at 80 (Wallace J), 82-84 (Jones J); distinguished in R v Bond [2009] SASC 256 at [15]-[16] (David J, Doyle CJ and Kelly J agreeing); not followed in R v Musa (No 2) [2023] NSWSC 247 at [20] (Button J).
Consideration of the appellant’s state of mind in relation to the glass in his hand was confined to elements 5 (recklessness), 6 (self-defence) and 7 (the aggravating feature).
Whether the appellant knew or was aware that he was holding a glass when he deliberately swung his arm was obviously relevant to recklessness in that it informed consideration of whether the appellant was aware of a substantial risk of serious harm.[3] It was also relevant to the subjective limb of self-defence, namely whether the appellant believed that swinging his arm was necessary and reasonable in his own defence.
[3] Or harm, on the second alternative offence of aggravated recklessly causing harm.
Whether the appellant knew or was aware that he was holding a glass when he deliberately swung his arm was also relevant to the aggravating feature the subject of element 7. This was so by reason of the definition of ‘offensive weapon’ in s 5 of the CLCA. Under the relevant limb of that definition (limb (b)(i)), an object or article is an offensive weapon if the person has it ‘for the purpose of causing personal injury’. In the context of the present case, proof that the appellant had the glass for the purpose of causing injury necessarily required proof that he was aware that he was holding the glass at the moment he swung his arm.[4]
[4] R v Kestrell [2013] SASCFC 55 at [21]-[24] (Gray, Sulan and Nicholson JJ).
Against this background, it is appropriate to now address the appellant’s complaints about the adequacy of the judge’s summing up.
Adequacy of the judge’s summing up
As described at the outset of these reasons, the appellant contends that the judge failed to adequately direct the jury in relation to the issues of recklessness, self-defence, intoxication and the alternative offences. The overarching complaint in relation to the directions on each of these topics is that the judge failed to ensure that the jury appreciated that, in the event that they were not satisfied of the aggravated offence (which turned upon the appellant being aware he was holding a glass at the time he swung his arm), each of these issues needed to be approached on the footing that the appellant was not aware that he was holding a glass at the critical time.
In addressing this submission, it is significant that the trial was a short one. It commenced on a Tuesday afternoon, with the evidence completed the following day. Counsel gave their closing addresses on the Thursday morning, followed immediately by the judge’s summing up.
It will be necessary to set out the relevant aspects of the judge’s summing up, and to do so in some detail. But it is useful to commence by mentioning some aspects of the parties’ addresses to the jury, particularly insofar as they focussed upon the potential significance of the appellant’s awareness of whether he was holding a glass at the moment he swung his arm.
The parties’ addresses

In his opening address, the prosecutor noted the appellant’s statement to police that he was not aware of the glass in his hand. He returned to this issue when addressing recklessness, saying that there would be a ‘hot dispute’ between the prosecution and defence about whether the appellant was reckless as to the serious harm caused to Ms Saxby. The prosecutor said that he would be inviting the jury to use their common sense in considering whether the appellant’s conduct could result in serious harm:
The size of him. The size of her. The strength of the blow. The roundhouse punch, with or without a glass, could cause serious harm, given their respective sizes …
Elaborating upon this reference to considering the position with or without the appellant being aware he was holding a glass, the prosecutor said:
Now, on the prosecution case, the glass actually doesn’t matter, because it’s not just a shove, and we all know, we’ve all heard of, king hits, and how a solid blow can cause serious harm. But it’s more than that here. It’s the involvement of the glass. So the prosecution doesn’t have to show that he anticipated that she would get hurt in a particular way; just that he realised that she could get seriously hurt, and that’s whether by the punch, or whether because he had that glass in his hand. Went ahead anyway.
Defence counsel made some opening observations. He emphasised that the trial would be about the appellant’s state of mind at the time he swung his arm. This would include consideration of whether he was aware of a substantial risk of serious harm; whether he turned his mind to this at all; and the extent to which intoxication played a role in his state of mind and hence the ‘mental elements’.
Moving to the parties’ closing addresses, the prosecutor commenced by summarising Ms Saxby’s evidence about the altercation. He then turned to the appellant’s police interview. Whilst noting that the appellant at times mentioned the glass in his hand, the prosecutor also noted the appellant’s claim that at the time he swung his arm he was not aware of the glass in his hand.
Without conceding the point, the prosecutor then proceeded to make submissions which acknowledged and allowed for a scenario in which the jury might accept that the appellant was not aware of the glass in his hand at the critical time (or might entertain a reasonable doubt about this). In particular, the prosecutor highlighted the taller, heavier appellant relative to the ‘much smaller lighter’ Ms Saxby, suggesting that it was common knowledge that ‘a single punch can cause serious damage’. After stating that the ‘question for you is what’s going through his head’, the prosecutor asked rhetorically ‘is he so drunk that he’s forgotten about the glass, that that’s impacted on him knowing where the glass is?’.
After noting that the CCTV footage appeared to show the appellant moving the glass from his left to right hand moments before swinging his right arm, the prosecutor asked again ‘did he not realise he had the glass?’ On the prosecution case ‘he’s changed hands to save his beer seconds before. He’s aware that he’s got a drink there. Well aware of it. He knows it’s there and then he’s come from behind and whop’.
The prosecutor then put submissions intended to negate self-defence as a reasonable possibility, before returning to the relevance of intoxication.
The prosecutor concluded by adverting to the alternative offences which he said the judge would explain, before reiterating the prosecution case that the appellant went after Ms Saxby, and did so with a blow of such force that it was clear to him that it had the potential to cause serious harm.
Defence counsel’s closing address commenced with a reference back to his opening, and a repetition of the importance of the accused’s state of mind at the time he swung his right arm. After addressing some aspects of the prosecution evidence, defence counsel emphasised the appellant’s statement to police that he was not aware of the glass in his hand at the moment he swung his arm. Defence counsel submitted that this was not unreasonable given that he was ‘pretty drunk’, that he had been holding the glass since before the altercation had begun, and that things had become ‘completely chaotic very quickly’.
Defence counsel then addressed the element of recklessness, suggesting that the jury should not be satisfied that the appellant turned his mind to the possibility of serious harm. He went on to submit that in light of his statement to the police that he did not turn his mind to the glass in his hand, they should not find the aggravating feature made out. He added that ‘if you come with me that far, you may well consider that he didn’t turn his mind in those circumstances to the possibility of causing harm and you will return a verdict of not guilty on that alterative charge also’. He concluded with a submission:
Ladies and gentlemen, the act of swinging his arm was deliberate, but the consequences to Ms Saxby were not, and he never turned his mind to that. If you find that to be a reasonable possibility, you will find [the appellant] not guilty of all charges.
The judge’s summing up
After orthodox introductory directions, the judge turned to the elements of the charged and alternative offences. Her Honour provided the jury with an aide-memoire which set out the elements, as summarised earlier in these reasons.
When addressing the elements in her oral directions, the judge commenced by addressing the first four elements of the aggravated offence:[5]
[1]Now, could I just draw your attention to the first offence that is listed there, and that is the offence of recklessly causing serious harm, which contains seven elements or ingredients, each of which must be proved by the prosecution beyond reasonable doubt.
[2]The first element is that the accused performed an act. The prosecution case is that the accused performed an act which struck Ms Saxby, and you [know] there is no dispute about that element and so I suspect that element will not cause you any difficulty.
[3]The second element is that the act was voluntary and deliberate. Again, there is no dispute that the accused act was deliberate.
[4]The third element is that Ms Saxby suffered serious harm. You know from the agreed facts the harm suffered by Ms Saxby and that the defence do not dispute that Ms Saxby did indeed suffer serious harm.
[5]Element four is that the accused's act caused the serious harm. Again, the defence do not dispute that the accused's act resulted in the serious harm that Ms Saxby suffered.
[5] Paragraph numbers inserted for ease of reference.
The judge then moved to the seventh element, being the aggravating feature of the offence:
[6]I will then jump to element seven, which is the aggravated feature of the offence, that is that in committing the act the accused used an offensive weapon, that is a glass.
[7]Now, you will recall from the submissions that you heard this morning from [defence counsel], that the accused in his record of interview said he didn't at the time turn his mind to having the glass in his hand, he wasn't aware of that at the time. If you accept that then this element of the aggravating feature, that is element seven, may not have been made out.
Having thus identified the dispute in relation to the aggravating feature of the offence, the judge explained the need to consider the first alternative offence (recklessly causing serious harm) in the event that they were not satisfied that the aggravating feature had been established:
[8]So, if you are satisfied of all of the elements, other than element seven, the offence in effect becomes a non-aggravated offence.
[9]In the event that you are not satisfied of this aggravating feature, the offence you would then need to deliver a verdict on becomes recklessly causing serious harm, rather than aggravated recklessly causing serious harm.
[10]I hope that makes sense, if it doesn't by all means you can ask me a question about that later, and I will address it a little further when I get to the other alternatives.
The judge then returned to consideration of the fifth and sixth elements. Commencing with element 5 (reckless as to causing serious harm), the judge directed the jury:
[11]We then go back to the two elements that I suspect will be the focus of your deliberations, that is that the accused caused the serious harm recklessly. That is element five, and element six, that the accused’s act was unlawful.
[12]Let's start with the fifth element, that is, that the accused in causing the serious harm was reckless.
[13]This element concerns the accused's state of mind. Recklessness has two parts, first the prosecution must show that the accused was aware of a substantial risk that his conduct could result in serious harm. Second, the prosecution must show that the accused engaged in the conduct despite the risk.
[14]As I said, this element concerns the accused's state of mind and requires more than negligence, carelessness, or lack of thought, rather it requires proof of an active thought process. It is not enough that you, or a reasonable person, would have realised that the accused's conduct could create a substantial risk of serious physical or mental harm, you can only find this element proved if the prosecution has proven that the accused was aware of the risk.
[15]The accused will have [been] reckless if it occurred to him that there was a substantial risk that his action could result in serious harm to Ms Saxby, and being aware of that risk went ahead and acted and did what he did.
[16]With respect to this element you will recall from the addresses you heard this morning that the prosecution says the accused has the presence of mind to put his drink in his other hand, he moves with purpose, the accused hasn't spilled his drink. He told the police that he came after “them” to get them out of the way, he is going from behind the man, in between, to get them out of the way.
[17]His movements, the prosecutor suggests, demonstrate that he is clear headed enough to know that a hit could seriously harm Ms Saxby, who was much smaller than himself.
[18]You know the defence case is that the accused acted without thinking of the possible consequences, he didn't even know that anyone had been injured. The rapidity of what was going on, his intoxication, the chaos, the pushing and shoving all show that the accused did not turn his mind to causing Ms Saxby to be seriously harmed, or even harmed.
The judge then addressed element 6 (unlawfulness, or the negation of self-defence). Her Honour said:
[19] We then come to the sixth element, and that is that the accused acted unlawfully.
[20]Here, as you know, the accused has raised a defence to the charge, and that is self-defence. For this element the prosecution must prove the accused did not act in lawful self-defence.
[21]Self-defence operates where an accused genuinely believes that his conduct was necessary and reasonable in order to defend himself, and his conduct was, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed to exist.
After explaining the mechanics of the prosecution negating self-defence, the judge addressed the substance of the offence:
[22] I turn now to the two parts of the element.
[23]The first way the prosecution can prove this element relates only to the accused's state of mind, in other words the prosecution can prove this element by showing that the accused did not genuinely believe his conduct was necessary and reasonable to defend himself.
[24]In determining this issue you will look at all of the circumstances, including what the accused did. If there is a reasonable possibility that the accused thought it was reasonable and necessary to act as he did in striking Ms Saxby, then the prosecution has not proved the first part of the element.
[25]The second way the prosecution can prove this element involves considering the accused's conduct from an objective view, you must decide whether his conduct was reasonably proportionate, you must determine this by reference to the threat the accused thought he faced. In other words it requires you to put yourself in the accused's shoes at the time, facing the situation and the threat he thought he was facing, and decide whether his actions were reasonably proportionate to that threat.
[26]There are a few principles you must take into account when deciding whether the accused's conduct was reasonably proportionate.
[27]First, a person can use more force than he was faced with, but there comes a limit where the force used is so much greater than the threat faced that it becomes excessive or disproportionate.
[28]Second, the person generally cannot be expected to calmly and carefully judge how much force to use when faced with violence.
[29]Third, you should consider what other options the accused had available, including whether he could have run or moved away or escaped, and you will know from the submissions that [defence counsel] gave this morning that he says the CCTV vision shows that the accused is indeed moving away, moving towards the door.
[30]The law does not say that self-defence must be a last resort, but the availability of other options might leave you to conclude that the accused's actions were excessive.
[31]So, just in summary, ladies and gentlemen, this sixth element requires the prosecution to prove the accused was not acting in self-defence, it does this by either by proving that the accused did not think it was reasonable and necessary to do what he did, or by proving that in the circumstances his actions were so excessive that they were not reasonably proportionate to the threat that he thought he had faced.
[32]The prosecution, you will recall this morning, submitted that this is not a case of self-defence by the accused. You would need to be satisfied that his act was necessary and reasonably proportionate. There was no threat here, the accused came from behind the male who intervened, the accused went in to get them out of the way.
[33]The defence case is that this was a chaotic scene. Before the incident there was pushing and shoving. [Defence counsel] suggests the CCTV, shows that the accused did not in fact go around the man between himself and Ms Saxby, it shows the accused backing away and not being violent. He is trying to get past the man between them by heading towards the door. He cannot get through and that is when the true chaos occurs. A man comes through the door and pushes the accused and that is when the arm is swung.
[34]I conclude my direction on this sixth element by reminding you that if the prosecution has not proved that the accused was not acting in self-defence then the accused is not guilty of the offence. On the other hand, if you are satisfied that the accused did not genuinely believe that it was necessary and reasonable to act as he did in his own defence, or if you are satisfied beyond reasonable doubt that the conduct was not reasonably proportionate to the threat as the accused saw it, then the question of self-defence disappears from the trial and the prosecution will have proven the element of unlawfulness, that is, element 6.
The judge next explained the process of drawing inferences, noting that this would inform the jury’s consideration of the states of mind in elements 5 and 6.
The judge then explained to the jury that, in the event that they were not satisfied that element 5 of the primary aggravated offence or first alternative offence (that is, recklessness as to serious harm) had been proved, they would need to consider the second alternative offence (recklessly causing harm):
[35]Can I add something here that is somewhat of a complication, and I have already begun to address you about this with respect to the offence becoming non-aggravated. Even though you know that it has been agreed that serious harm resulted from the accused's actions, if you are not satisfied that the accused was reckless in causing serious harm to Ms Saxby, which is the fifth element, you must then go on to consider a less serious offence where the accused was reckless in causing harm as opposed to serious harm, and I have set the elements of that offence out for you in the aide.
[36]As we have discussed, in the charged offence the prosecution must show that the accused was aware of a substantial risk that his conduct could result in serious harm and show that the accused engaged in that conduct despite the risk. If you are not satisfied that the accused was aware there could be serious harm, you must then go on to consider whether the accused was aware of a substantial risk of merely harm and engaged in the act regardless.
[37]So as I say, in the event you are not satisfied that the accused was reckless in causing serious harm you would need to consider whether he was reckless in causing harm. If you are satisfied beyond reasonable doubt that the accused was reckless in causing harm and satisfied of each of the other ingredients for that alternative offence then you would find him guilty of the lesser offence of recklessly causing harm.
[38]As I said earlier, if you are not satisfied of element 7, that is the use of the glass, or his knowledge of the glass, and satisfied of all other elements in relation to both serious harm and harm offences, you would find the accused guilty of the non- aggravated offence.
After describing the process by which the jury’s verdict would be taken, the judge then turned to the topic of intoxication. She directed the jury as follows:
[39]Let me turn to the topic of intoxication, which assumes importance in this case. Intoxication resulting from voluntary drinking does not of itself provide a defence to a criminal charge. A person must answer sober for what he does when drunk. It is no defence that the accused would not have done what he did if he had not been intoxicated. Nevertheless, the accused's intoxication, if you find that he was intoxicated, may affect your deliberation in a number of ways.
[40]The accused's intoxication at the time may affect your estimate of his credibility and reliability when he spoke to police. It may also affect your assessment of the accuracy of his perception at the time the events were occurring, and in that regard the same goes for Ms Saxby. As I am sure you know, alcohol can dull our senses. It can cloud or confuse our perceptions of our surroundings and of the behaviour of other people. You will need to bear in mind intoxication when considering whether or not the accused was reckless. That is, whether or not it occurred to him that by striking Ms Saxby with the glass as he did that he might cause serious harm, or harm in the alternative, but that he went ahead and did it anyway. The issue is not whether the accused now remembers what he did but whether at the time he was reckless about what he did.
[41]Let me remind you of some of the evidence of intoxication. Ms Saxby told you that she maybe had three drinks with dinner and one drink at the bar, a maximum of four the whole night. The accused in his record of interview said that at the time of the altercation he was drinking, he had a glass in his hand and thought that he had probably had six drinks. He told police that he did not drink often and when asked if six drinks would make him intoxicated he said no.
[42]He was then asked whether he did not feel intoxicated at the time, and he replied 'Oh yeah, I did' and then he said that he was 'pretty drunk'. As I said, you should consider the accused's intoxication when considering whether he was reckless in causing serious harm or harm in the alternative, that is, whether it occurred to him that he might cause serious harm or harm and then went ahead anyway.
[43]You should also take into account the evidence of intoxication when assessing the accused's reliability as a witness and his state of mind when considering self-defence. You will remember that I told you the accused would not have committed any offence if when he acted as he did, he genuinely believed that his action was necessary and reasonable to defend himself and, in the circumstances as he genuinely believed them to be, reasonably proportionate to the threat that he genuinely believed existed.
[44]When considering the accused's state of mind and the genuineness of his belief, you should take into account his state of intoxication and that his perception of any possible threat to him and his general perception of his surroundings may have been affected by his state of intoxication.

The judge told the jury that they would have the benefit of the CCTV footage during their deliberations, but explained some considerations they should bear in mind when viewing that footage.
The judge briefly summarised the addresses of counsel. She reminded them that the prosecutor had invited them to use their common sense, and to have regard to the relative sizes of the appellant and complainant. The prosecution had suggested that the appellant’s act, with or without a glass, could cause serious harm; and that he was not under any threat of attack when he swung his arm. The judge also reminded the jury of defence counsel’s emphasis upon the appellant’s state of mind at the critical moment, casting doubt upon whether he was aware of a substantial risk of serious harm, or even harm, as a result of his action. She explained that defence counsel had also cast doubt upon whether the appellant had turned his mind to the consequences of his action at all, bearing in mind his intoxication and the chaotic situation in which he found himself.
After reminding the jury of the applicable burden and standard of proof, and some other less significant matters, the judge invited the jury to retire to commence their deliberations.
Analysis
In analysing the appellant’s complaints about the judge’s summing up, the starting point is acceptance that a significant issue at trial was whether the appellant was aware that he was holding a glass at the moment he deliberately swung his arm. At the heart of the appellant’s complaints about the summing up is an argument that her Honour did not adequately address the significance of this issue to the jury’s approach to the various matters in issue, particularly recklessness, self-defence and intoxication.
It cannot be said that the jury overlooked the issue, because it is inherent in their verdicts of not guilty of the primary aggravated offence (aggravated recklessly causing serious harm) and guilty of the first alternative offence (recklessly causing serious harm) that they were not satisfied that the prosecution had proved the aggravating feature. In other words, they were not satisfied that the prosecution had proved that the appellant was aware he was holding a glass at the critical moment. At the very least, they entertained a reasonable doubt about whether that was so.
However, the appellant embraces this as demonstrating the importance of the issue. It was not just a theoretical issue, it was one which the jury ultimately determined in favour of the appellant when considering the aggravating feature (referred to as element 7). The appellant contends that this only serves to underscore the importance of the judge ensuring that the jury properly appreciated the significance of this issue to their determination of elements 5 and 6.
It can be accepted that the judge accurately directed the jury as to the law; that her Honour accurately identified the elements of each of the primary and alternative offences, and accurately summarised the principles governing consideration of serious harm, recklessness and self-defence, and the relevance of intoxication. It can also be accepted that, insofar as she addressed the application of the evidence and facts to these elements and principles, the judge did not make any mistakes or misstatements, or otherwise misdirect the jury.
The appellant’s complaint, however, is that the judge did not do enough in terms of assisting or guiding the jury in their application of these elements and principles to the evidence and facts of the case. The complaint is that the judge failed in her obligation not merely to state the law in general terms, but to provide ‘an explanation of how it applied to the facts of the particular case’.[6]
[6] Alford v Magee (1952) 85 CLR 437 at 466 (Dixon, Williams, Webb, Fullagar and Kitto JJ).
In contending that the judge failed in this obligation, the appellant relies upon R v Williamson.[7] In that case, the defendant was convicted of murder after striking the victim with a knife. The defence case had been that the defendant did not realise or remember, at the time he struck the fatal blow, that he had the knife in his hand. The defence case was that he intended only to strike a blow with his fist. In allowing the appeal, the Court identified several difficulties with the directions that were given.
[7] R v Williamson (1996) 67 SASR 428.
A fundamental difficulty with the directions was a failure to explain to the jury that, in the circumstances of that case, the relevant act was a blow with a knife, with the result that they needed to be satisfied the defendant’s use of the knife was voluntary and deliberate.[8] A further difficulty that arose in R v Williamson was that the judge’s directions tended to assume that the case turned on the issue of the defendant’s knowledge or awareness that he was holding a knife; that he was guilty of murder if he was aware of the knife, and guilty of manslaughter if he was not aware of the knife. As Doyle CJ explained, that was an oversimplification of the case. The directions were inadequate because they did not distinguish between knowledge of the knife and the specific mental states that needed to be proved.[9] Added to this was a failure to explain and distinguish between the relevance of intoxication to whether the defendant knew he was holding a knife, and its relevance to his state of mind in terms of the possible consequences that he foresaw.[10] In combination, these failures to direct the jury more closely on the application of the law to the facts of the case resulted in a miscarriage of justice.
[8] R v Williamson (1996) 67 SASR 428 at 433-435 (Doyle CJ), 445-448 (Matheson J), 452-454 (Duggan J).
[9] R v Williamson (1996) 67 SASR 428 at 430-432 (Doyle CJ).
[10] R v Williamson (1996) 67 SASR 428 at 432-433 (Doyle CJ).
Whilst this authority is a useful reminder and illustration of the importance of providing the jury with appropriate guidance in their application of the law to the facts of the particular case, we are not persuaded that it has any greater significance to the present case. As mentioned earlier, the parties are agreed that the difficulty in identifying the act which needed to be voluntary and deliberate does not arise for this Court’s consideration. Further, there is no equivalent suggestion in the present case that the judge’s directions inappropriately suggested that awareness of the glass was determinative of any issue in the case.
As a general proposition, it may be acknowledged that the judge in the present case did not provide the jury with much assistance in relating the law to the facts. She could have done more in this respect, and the summing up would have been better for it. However, the issue for this Court is whether the directions which were given were adequate to avoid a miscarriage. In our view, they were.
In our view, it was sensible for the judge to direct orally in the way she did. That is, having handed out an aide-memoire which stated the elements sequentially from element 1 to element 7, it was sensible for her Honour to orally direct the jury in terms which, after mentioning the first four elements (as to which, there was no dispute), directed their attention to element 7. As her Honour directed the jury, proof of this aggravating feature of the offending required proof of the appellant’s awareness that he was holding a glass at the critical moment. In paragraph [7] of her Honour’s directions, the jury were expressly reminded of the defence case on this issue, and in particular the appellant’s statement in his police interview that he was not aware he was holding the glass.
Whilst accepting that the jury had the issue of the accused’s awareness of the glass brought to their attention in this way, the appellant contends that the judge failed to adequately ensure that the jury retained its focus on this issue when considering the other elements and issues.
In developing this submission, the appellant contends that despite the approach suggested by the judge, the jury might ultimately have approached the elements sequentially, in accordance with the aide-memoire. If they did, they might not have considered the issue of the appellant’s awareness of the glass until element 7, and have therefore overlooked its relevance to elements 5 and 6. Alternatively, even assuming the jury accepted the judge’s approach of ‘jumping’ to element 7, the appellant contends that the jury might have overlooked the need, when going back to elements 5 (recklessness) and 6 (self-defence), to consider whether the appellant was aware he was holding a glass.
In our view, it is unrealistic to suggest that there was a risk of the jury overlooking, or misunderstanding, the relevance of the appellant’s awareness of whether he was holding a glass to elements 5 or 6, regardless of the order in which they approached the issues. Whilst repeating our observations that it would have been preferable for the judge to have been more explicit in this regard, the jury would have been well aware of the relevance of this issue to those elements.
The trial was a very short one, taking less than two days in total. The issues were narrow and clear. As set out earlier in these reasons, both prosecution and defence counsel made clear in their addresses that there was an issue as to the appellant’s awareness of the glass, and that this was relevant to their consideration of recklessness. This relevance was inherent in the prosecutor’s submissions to the effect that this element could be made out with or without awareness of the glass given the relative size and build of the appellant and Ms Saxby, and the nature and force of the appellant’s ‘roundhouse’ blow. The judge then adverted to the parties’ competing submissions as to recklessness in paragraphs [16] to [18] of her summing up, albeit not in terms that specifically referenced the appellant’s awareness of the glass.
The parties were not as explicit about the relevance of the appellant’s awareness of the glass to the issues of self-defence or intoxication. But the issues were clearly enough explained, and obvious enough in their application. There is no realistic prospect that the jury failed to appreciate the relevance of the appellant’s awareness of the glass to these issues.
In the context of her directions about self-defence, the judge made it clear that it was necessary to focus upon the accused’s state of mind in terms of what was necessary and reasonable (for example, in paragraphs [21] and [23]). And in summarising the defence case on this issue (paragraph [33]) the judge directed in terms of the relevant act being when the appellant swung his arm. She did not build in any assumption, or otherwise suggest, that the appellant was aware of the glass in his hand.
In the context of her directions about intoxication, the judge addressed the potential relevance of the appellant’s intoxication to whether or not it occurred to him that striking Ms Saxby with a glass might cause harm or serious harm (paragraph [40]). It is true that this assumed an awareness of the glass. But we do not think this would have lulled the jury into thinking that intoxication or recklessness fell only to be considered on this assumption. To the contrary, the first three sentences of paragraph [40] would have encouraged the jury to consider the credibility and reliability of what the appellant said to the police in light of his intoxication, and the impact this could have on one’s perception and senses. In our view, this was a reminder to bear in mind the effect of intoxication when considering the defence version of events, including the appellant’s statements to the police to the effect that he was not aware he had a glass in his hand at the relevant time, and was, in effect, just trying to defend himself against the chaotic pushing and shoving that was occurring.
Later in her summing up, the judge summarised the addresses of counsel in terms which reminded them of the need to focus on the appellant’s state of mind, including his awareness of the glass in his hand at the critical moment.
In summary, we do not accept that the judge’s directions were apt to isolate or confine the jury’s consideration of the appellant’s awareness that he was holding a glass to the issue of the aggravating feature (element 7). Whilst the summing up would have benefited from additional assistance in linking the judge’s general description of the law to the facts, we do not think, in the circumstances that we have described, that there was any realistic prospect of the jury overlooking or misunderstanding the relevance of the appellant’s awareness that he was holding a glass to the issues they were required to consider. The contended miscarriage of justice has not been established.
Unreasonable verdict
The principles governing a challenge to a verdict on the ground it is unreasonable are not in dispute, and need not be addressed in any detail. As reiterated by the High Court in Pell v The Queen,[11] the issue is whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[12] The question for the appellate court is whether the jury must have, as distinct from might have, entertained a doubt about the accused’s guilt.[13]
[11] Pell v The Queen (2020) 268 CLR 123 at 147 (the Court).
[12] M v The Queen (1994) 181 CLR 487 at 493 (Mason CJ, Deane, Dawson and Toohey JJ); see also The King v ZT [2025] HCA 9 at [6]-[11] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ).
[13] Libke v The Queen (2007) 230 CLR 559 at [113] (Hayne J, Gleeson CJ and Gummow JJ agreeing).
The issue in the present appeal is a narrow one. On the premise that the jury accepted that the aggravating feature had not been proved beyond reasonable doubt, the appellant contends that it was not open to the jury to be satisfied that the appellant was nevertheless reckless as to causing serious harm. Put differently, having entertained a doubt about whether the appellant was aware he was holding a glass at the critical moment, the jury, acting reasonably, must also have entertained a doubt about whether he was reckless as to causing serious harm.
We are not persuaded by this argument. As the prosecutor emphasised in his closing address, the evidence justified a conclusion that the appellant was reckless as to causing serious harm. He was a large man, and significantly larger in height and build than Ms Saxby. It is apparent from the CCTV footage that he swung his right arm with sudden and significant force, in a ‘roundhouse’ fashion. Even allowing for the chaotic environment in which he found himself, he must have appreciated there was a substantial risk that he would strike Ms Saxby in the head and cause her serious harm; that is, harm that would result in serious and protracted impairment or serious disfigurement. In our view, that was so even assuming the appellant overlooked that he had a glass in his hand.
We would reject this ground of appeal.
Conclusion on the conviction appeal
For the reasons given, we would grant permission to appeal against conviction but dismiss the appeal. It is thus necessary to turn to the appeal against sentence.
The sentence imposed
The judge commenced her sentencing remarks by noting that the alternative offence of recklessly causing harm, of which the appellant was convicted, carries a maximum of 15 years imprisonment.
Her Honour described the circumstances of the offending, as summarised earlier in these reasons. Her Honour explained that the appellant fell to be sentenced on the basis that whilst the jury accepted, probably because of his intoxication, that the appellant did not turn his mind to the glass in his hand, nevertheless he did turn his mind to, and was reckless as to, causing serious harm when he swung his arm as he did.
In addressing the seriousness of the appellant’s offending, the judge accepted that he was affected by alcohol, and was in a crowded and somewhat chaotic environment. However, she considered that he had exhibited a total loss of self-control. She explained that the CCTV footage depicted absolutely no need for him to have acted as he did and that, on any assessment, this was serious offending.
As to the appellant’s personal circumstances, he was 36 years of age at the time of sentence and had no criminal history.
The appellant was born and raised in New Zealand. He is the youngest of three children. His father died tragically when he was young, and he was brought up by his mother and stepfather. After leaving school, he undertook an apprenticeship, before moving to Australia for work in his early twenties. Since being in Australia, he has had consistent employment, except for a period during COVID. He has a six-year-old child from a previous relationship who lives in Perth with the child’s mother. He is in a long-term relationship with his current partner, who has two children from a previous relationship.
The judge noted that the appellant had earlier spent 30 days in custody for this offending. She said that since his release he had rarely drunk alcohol. He had acknowledged the role alcohol consumption played in his offending. He had recently been promoted to the position of superintendent, and was continuing to work to support his family.
The appellant’s stepfather died prior to sentencing, and it was distressing for the appellant that he had not been able to attend his funeral given his bail conditions. The appellant retains the support of his former partner, who said that the appellant regretted the incident and had worked hard to change mentally and emotionally, and to continue to play an important role in their child’s life. The judge had the benefit of other letters of support which spoke favourably of the appellant.
The judge addressed the victim’s injuries. As mentioned, not only did Ms Saxby experience excruciating pain and bleeding from her eye at the time of impact, but she was also required to have treatment for several lacerations in and around her eye. This has resulted in ongoing disfigurement and a reduction in function. The judge described the victim’s injuries as ongoing and life-changing. The victim had been playing squash at a state and national level, but has not been able to do so since she was injured. She was continuing to have issues with double vision and headaches. Her injuries as a result of the appellant’s actions had continued to impact her, and her relationship with her family, partner and friends. The compromise of her eyesight has meant that her hard work in getting to a position where she could compete at an elite level in sport was wasted. She had lost confidence, including in her safety. She suffers from nightmares. She had difficulty wearing make-up because of the irritation it causes to her scars and skin. Her employment had been interrupted by medical appointments, and she continues to suffer the indignity of people asking her what happened to her.
The judge noted, with apparent acceptance, the prosecution submission that, whilst the appellant had expressed remorse for what had happened, and had changed his approach to alcohol, he had not taken ownership of his conduct or accepted criminal responsibility. Whilst not aggravating the sentence to be imposed, this did limit the scope for leniency.
In sentencing the appellant, the judge imposed a head sentence of three years imprisonment. She reduced this by 30 days on account of the time the appellant had spent in custody, resulting in a sentence of 2 years, 11 months and 1 day imprisonment. The judge fixed a non-parole period of 18 months.
As the appellant was sentenced to a sentence of more than 2 years imprisonment for a prescribed designated offence, the judge was prohibited by s 96(3)(b) of the Sentencing Act 2017 (SA) from fully suspending the sentence. However, under s 96(5), the sentencing judge retained a discretion to partially suspend the sentence. In declining to exercise that discretion, the judge explained:
I have had careful regard to the submissions made by your counsel as to whether it would be appropriate to utilise the discretion available to me to partially suspend any sentence. I have had regard to the fact that you are still a relatively young man who is hardworking and relied upon both emotionally and financially and with good prospects for rehabilitation. Those considerations however must be balanced against the paramount consideration of the protection of the community and the secondary purposes of punishment, denunciation, the harm to the complainant and in this case, general deterrence in particular. Ultimately I am not persuaded that this is an appropriate case to exercise the available discretion ...
Manifest excess

The principles governing an appeal submission of manifest excess in a sentence are well known and not in dispute. They are as set out in the parties’ outlines and need not be restated.
The appellant’s submission of manifest excess in the present case challenges the reasonableness of both the length of the head sentence imposed, and the judge’s decision not to exercise her discretion to partially suspend the sentence she imposed.
In support of this submission, the appellant relied upon his favourable personal circumstances, as outlined above, and the spontaneous and fleeting nature of his criminal act.
It can be accepted that there is no standard penalty for the offence of recklessly causing serious harm. It can also be accepted that the appellant’s favourable circumstances, and the spontaneous and fleeting nature of his criminal act, provided some scope for leniency.
However, the strong need for deterrence in the context of alcohol-fuelled violence tell against a conclusion of manifest excess. Instructive in this regard is the Court of Criminal Appeal decision in R v Dransfield.[14] The respondent in that case intervened in a verbal disagreement over payment between a food van vendor and the victim. Whilst the victim did not physically confront the respondent, the respondent became involved in some pushing and shoving. After the altercation appeared to come to an end, and without warning, the respondent struck the victim in the head using his fist, and with a blow which was described as ‘extremely forceful and … skilfully administered’, rendering the victim unconscious. The victim suffered significant and ongoing injuries.
[14] R v Dransfield [2016] SASCFC 68.
The sentencing judge imposed a sentence of 5 months imprisonment, after a 40 per cent reduction for the respondent’s plea of guilty, but declined to suspend the sentence imposed. In allowing the Crown appeal against this sentence, Nicholson J (with whom Peek and Doyle JJ agreed) said:[15]
In my view, the sentence was egregiously low given the nature and circumstances of the offending and notwithstanding that the respondent’s personal circumstances, to be taken into account at all stages of the sentencing process including the setting of the head sentence, indicate that leniency is warranted. However, a lenient sentence must still be proportionate to the offence and its circumstances and must still fall within the discretionary range available to the sentencing judge when all the circumstances of the offence and of the offender are taken into consideration.
The respondent pleaded guilty to a very serious offence as is indicated by the maximum penalty of 15 years imprisonment. The circumstances of the offending render the respondent’s conduct a serious example of the offence. There was absolutely no excuse. The level of violence perpetrated was severe. There is strong community concern about this type of offending that often occurs late at night in the streets of our cities. It is not uncommon for serious injury or death to result from a single unexpected punch to the head. There has been abundant media coverage, over a number of years now, of such events and the risks to which innocent members of the community are exposed.
[15] R v Dransfield [2016] SASCFC 68 at [48]-[49].
Nicholson J emphasised that the offence involved recklessness as to causing serious harm, and not merely harm. In resentencing the respondent, his Honour used a starting point of 3 years imprisonment, which was reduced by 30 per cent for the respondent’s plea of guilty, resulting in a head sentence of 2 years, 1 month and 1 week imprisonment. His Honour fixed a very lenient non-parole period of 10 months, but did not suspend the sentence.
This Court’s attention was also drawn to the decisions in R v Parrott[16] and Hackett v The Queen.[17]
[16] R v Parrott [2018] SASCFC 78.
[17] Hackett v The Queen [2021] SASCA 32.
In R v Parrott, the appellant confronted the victim at his house about a workplace incident. He struck the victim’s head with an open hand (described variously as a forceful slap or a push), resulting in him hitting his head on a pillar and suffering serious and ongoing injuries. At first instance, the appellant was sentenced to imprisonment for 3 years and 4 months, reduced to 3 years after a 10 per cent reduction for his plea of guilty. Noting that the appellant pleaded guilty to recklessly causing harm, rather than recklessly causing serious harm, Lovell J (with whom Peek and Doyle JJ agreed) allowed the appeal. After mentioning R v Dransfield, his Honour resentenced the appellant, using a starting point of 2 years and 6 months imprisonment, reduced by 10 per cent to 2 years and 3 months. His Honour declined to suspend the appellant’s sentence or order that it be served on home detention.
In Hackett v The Queen, the appellant pushed the victim once to the chest outside a nightclub on Hindley Street, causing the victim to fall backwards and sustain severe head injuries including a fractured skull. The appellant pleaded guilty to a charge of recklessly causing harm, and was sentenced to a term of imprisonment for 2 years and 2 months, with a non-parole period of 14 months. The Court of Appeal (Kelly P, Lovell and Livesey JJA) dismissed the appeal.
The above decisions, particularly bearing in mind that the latter two involved convictions for recklessly causing harm, rather than recklessly causing serious harm, do not support the appellant’s submission of manifest excess. Whilst the appellant’s action in the present case was more spontaneous, and less skilfully administered, than the blow landed upon the victim in R v Dransfield, it was nevertheless a powerful roundhouse-style blow which had the potential to cause serious harm. The observations of Nicholson J in that case, and the consequential need for a strong sentencing response so as to provide an appropriate level of general deterrence and adequately protect the safety of the community, apply equally to this case.
In our view, the head sentence imposed in the present case was appropriate. Further, given the primacy of the concern for community safety, and the related need for general deterrence, we are satisfied that it was appropriate to decline to partially suspend the sentence imposed.
Time served
That leaves the appellant’s complaint that the judge does not appear to have made full allowance for his time served in fixing a non-parole period of 18 months.
The judge made an appropriate reduction of 30 days for time served from the appellant’s head sentence. There is no basis in the sentencing remarks for confidently inferring that the judge made an equivalent reduction in the non-parole period, or otherwise appropriately took that time served into account in fixing the non-parole period. Applying the recent authorities addressing this issue,[18] a process error has been established.
[18] Ribbon v The Queen [2022] SASCA 15 at [40] (Livesey P, Doyle and David JJA); Owens v The King [2024] SASCA 65 at [8]-[13] (Lovell, Doyle and David JJA).
The respondent argues that this Court might nevertheless dismiss the appeal on the ground that it would have imposed no lesser non-parole period. Putting to one side the time served, we are satisfied that the head sentence and non-parole period imposed by the judge were appropriate, and that on resentencing we would impose no lesser sentence. However, as we would reduce both the head sentence and the non-parole period by the 30 days already spent in custody, we consider it appropriate to allow the appeal so as to resentence the appellant on a basis that reflects this reduction.
Conclusion on the sentence appeal
We would allow the appeal against sentence on the limited basis set out above. Whilst we would resentence the appellant on the basis set out below, we would not partially suspend that sentence. Although the appellant has some favourable personal circumstances, the nature and seriousness of his offending demand a strong sentencing response which emphasises general deterrence and the safety of the community. A partially suspended sentence would not adequately achieve these sentencing objectives.
Orders
We grant permission to appeal against conviction and sentence.
We dismiss the appeal against conviction.
We allow the appeal against sentence. We set aside the sentence imposed below. In resentencing the appellant we start with the same head sentence and non-parole period; that is, a head sentence of 3 years imprisonment, and a non-parole period of 18 months. However, we reduce each by 30 days to reflect the time served in custody, resulting in a head sentence of 2 years, 11 months and 1 day imprisonment, and a non-parole period of 1 year, 5 months and 1 day. We backdate both to commence on the date of sentencing below, namely 12 December 2024.