McKenzie v The King - [2023] SASCA 92

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MCKENZIE v THE KING
[2023] SASCA 92
Judgment of the Court of Appeal
(The Honourable Justice Lovell, the Honourable Justice Doyle and the Honourable Justice Kimber)
31 August 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The applicant was convicted by a jury of Aggravated Causing Serious Harm with Intent to Cause Serious Harm. From a starting point of 11 years, the applicant was sentenced to imprisonment for 10 years, seven months and 17 days with a non-parole period of five years, six months.
The applicant sought to appeal the sentence on two grounds. First, that the sentencing Judge erred in sentencing the applicant for an offence that was not charged. Second, that the head sentence was manifestly excessive. The application is out of time. The respondent filed a cross appeal with respect to the non-parole period, the complaint being one of manifest inadequacy.
Held (by the Court), allowing the appeal:
1.      The extension of time is granted.
2.      The first ground is without merit. The applicant was not sentenced for an offence not charged.
3.      The head sentence is manifestly excessive.
4.From a starting point of eight years and six months, the applicant is resentenced to a term of imprisonment for eight years, one month and 17 days with a non-parole period of four years, seven months and 17 days.

5. As the applicant has been re-sentenced, the cross appeal need not be determined.
Criminal Law Consolidation Act 1935 (SA) ss 21 and 23(1), referred to.
Hackett v the Queen [2021] SASCA 32; Hall v The Queen [2020] SASCFC 84; Hili v The Queen (2010) 242 CLR 520; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; Wong v The Queen (2001) 207 CLR 584; R v Chalmers [2012] SASCFC 128, applied.
R v De Simoni (1981) 147 CLR 383, distinguished.
Woodhart v The Queen [2022] SASCA 9; R v McNamara (2009) 105 SASR 38; R v Clancy [2013] SASCFC 63; R v Perdikoyiannis, Condo & Peabody [2011] SASCFC 82; R v Koch [2015] SASCFC 31; R v Burner [2015] SASCFC 133; R v Cekic & Ors [2016] SASCFC 26, discussed.

MCKENZIE v THE KING
[2023] SASCA 92
Court of Appeal — Criminal: Lovell and Doyle JJA and Kimber AJA
THE COURT:

After a trial before a jury, the applicant was convicted of Aggravated Causing Serious Harm with Intent to Cause Serious Harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The offence was aggravated as a knife was used. The maximum penalty is imprisonment for 25 years.
On 22 December 2021, from a starting point of 11 years’ imprisonment, the applicant was sentenced to imprisonment for 10 years, seven months and 17 days with a non‑parole period of five years, six months. The applicant seeks an extension of time to appeal the sentence and to advance two grounds. First, that the head sentence is manifestly excessive. Second, that the sentencing Judge erred in sentencing on the basis that the applicant had committed an offence not charged, namely, endangering life. The respondent has filed a cross appeal directed solely to the non-parole period.
We grant the extension of time and allow the appeal. From a starting point of eight years and six months, we re-sentence the applicant to imprisonment for eight years, one month and 17 days with a non-parole period of four years, seven months and 17 days. In the circumstances, the cross appeal need not be addressed. Our reasons follow.
The offending
The circumstances of the offending are not in dispute.
The victim was drinking with friends in the city and heard someone behind him whom he believed was being aggressive. When the victim turned around, he saw the applicant standing over a friend. The victim told the applicant to calm down. The applicant said, ‘I’ll fucking kill you’, but turned away as if to leave. The applicant did not leave. Instead, the applicant turned back and struck the victim while holding a knife about 20 centimetres long.
The victim was taken to hospital. The victim was left with what the sentencing Judge described as a ‘prominent scar 15 centimetres in length running form his jaw line down to his chest’. Consistent with the way the matter had been left to the jury, the sentencing Judge found the scar to be serious harm, but ‘towards the lower end of the scale of seriousness because of [the] location and size’. The injury and its treatment caused the victim to miss six weeks of university, fall behind in his studies and complete his degree six months later than planned. The victim has experienced significant stress and anxiety and has needed counselling. The scar makes him feel self-conscious.
Having struck the victim, the applicant left immediately and entered a taxi. Having listened to a recording made within the taxi, the sentencing Judge found the applicant was ‘well aware’ he may have caused significant injury and was displaying no regret or remorse. The absence of remorse was prolonged. The applicant was convicted at trial having given evidence the blow had been struck by a friend. That evidence was obviously rejected by the jury.
The personal circumstances of the applicant
At the time of sentence, the applicant was 44 years of age with limited criminal history. The applicant had never been sentenced to imprisonment. The only penalties imposed in the past were fines and licence disqualifications. The applicant had committed an offence of Assault Occasioning Actual Bodily Harm, but the sentencing Judge proceeded on the basis that offence was committed in 1992 when the applicant was a youth. The applicant had also been convicted of Assaulting or Obstructing a Police Officer, but the sentencing Judge placed no weight upon that offence as it was unclear whether it had involved violence.
The applicant is of Torres Strait Islander descent. He finished year 11 and completed an apprenticeship as an aircraft engineer. The applicant appears to have had a good work history, working for more than one employer. The applicant was in the Army Reserve for five years and served in East Timor and Papua New Guinea.
The applicant has two adult children with his ex-wife and two children from a current relationship. The applicant’s ex-wife and one of his adult children provided positive references to the sentencing Judge. The two younger children live interstate and the applicant has been separated from them because of these proceedings.
The sentencing Judge found the applicant provided no explanation for his offence other than he had been drinking heavily. The sentencing Judge found that it was difficult to determine the prospects of rehabilitation of the applicant and that she had seen little by way of remorse or insight.
Ground 2 — Error in sentencing for the offence of endangering life
It is appropriate to deal with this ground first. The applicant submits the sentencing Judge erred in sentencing for an offence not charged, namely endangering life. The applicant submits the sentencing Judge offended the principle stated by Gibbs CJ in R v De Simoni:[1]
[T]he general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence for which he has not been convicted. … The combined effect of the two principles, so far as is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence.[2]
[1] R v De Simoni (1981) 147 CLR 383.
[2] Ibid 389.
In evaluating this ground, it is necessary to understand the elements of the offence and how those elements were left to the jury. At trial, the prosecution had to prove both that the applicant caused serious harm and that he intended to cause serious harm. For the purposes of s 23 of the CLCA, serious harm is defined within s 21 to mean:
serious harm means—
(a)     harm that endangers a person's life; or
(b)     harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or
(c)     harm that consists of, or results in, serious disfigurement.
The jury were directed the serious harm alleged to have been caused was limited to serious disfigurement but that the prosecution relied on all limbs of serious harm in seeking to prove the intention of the applicant. The applicant made no complaint about that approach at trial. The jury having found the applicant guilty, the sentencing Judge found that the serious harm intended was to endanger life. In so finding, the sentencing Judge understandably placed importance on the weapon used and the applicant having said ‘I’ll fucking kill you’.
There is no merit in this ground of appeal.
There was no breach of the principle in De Simoni. The sentencing Judge was obliged to sentence on a basis consistent with the verdict of the jury. She did precisely that. The applicant was not sentenced for an offence not charged (i.e. – endangering life). The applicant was sentenced for intending to endanger life at the time of committing the act the subject of the charge. That intention was within the elements of the offence as left to the jury.
Ground 1 — the head sentence is manifestly excessive
Having adopted a starting point of 11 years and after a reduction of four months and 13 days for time in custody and a period on home detention bail, the sentencing judge imposed a head sentence of 10 years, seven months and 17 days. A non‑parole period of five years and six months was then fixed.
The submissions
In submitting the head sentence was manifestly excessive, the applicant directed particular attention to: the serious disfigurement being towards the lower end of the range of seriousness; the absence of planning; the applicant’s good work history; the applicant’s supportive family and his limited criminal history. Accepting the limits upon the utility of comparison with other cases, the applicant also directed attention to observations made by this Court in Woodhart v The Queen (Woodhart).[3] With some justification, the applicant submitted the offence committed by Mr Woodhart was more serious than his.
[3] [2022] SASCA 9 (Woodhart).
In Woodhart, the applicant had been convicted at trial of Aggravated Causing Serious Harm with Intent to Cause Serious Harm and Aggravated Causing Harm with Intent to Cause Harm. The offending was planned. The victim of the serious harm offence was Mr Brinias. Having been lured by the applicant and others to an isolated location, MrBrinias arrived in a vehicle with the second victim. The applicant approached Mr Brinias, squirted an accelerant into the car and onto Mr Brinias and the second victim. The applicant set the accelerant alight and reached into the car in an apparent attempt to stop Mr Brinias escaping.
Mr Brinias sustained third degree burns to 15 per cent of his body, including his face and hands. Mr Brinias was placed in an induced coma, spent four days in the intensive care unit and a further seven days in hospital. As a result of the offending, Mr Brinias found it difficult to use his hands, could not remain in sunlight for sustained periods, was susceptible to skin infections, required assistance with the activities of daily living, suffered nerve damage to his fingertips and lost his employment. He experienced recurring nightmares, a lack of trust in others and claustrophobia in crowds.
For the serious harm offence, the sentencing Judge imposed a sentence of 12 years. The applicant sought leave to appeal that sentence on the ground that it was manifestly excessive. The Court dismissed the appeal, but observed:
It is true that the sentence of 12 years imprisonment for count 1 was high, relative to the sentences in many of the other cases to which the Court was referred. However, in our view the sentence was justified given the significant degree of pre-meditation and violence in the applicant’s offending. The offending in the present case was not spontaneous or in the heat of the moment. Rather it was the product of a carefully devised and executed plan to inflict harm of a most horrific kind upon the victim of count 1 by using accelerant to set fire to him while he was physically confined within a vehicle. The sentencing Judge properly recognised the potential for offending of this kind to cause death.
Given these features of the offending it must be recognised that, on the scale of seriousness of crimes of this type, the applicant’s offending was at the highest end, and was properly described by the sentencing Judge as both “sinister” and “very serious”.
The respondent submits the sentence imposed upon the applicant was within the appropriate range. The respondent directed particular attention to the maximum penalty; the use of the knife; the unprovoked nature of the attack; and the failure of the applicant to explain why he was carrying a knife in the city giving rise to a concern about rehabilitation.
Principles on appeal
The relevant principles are well settled. In Hackett v the Queen, this Court held:
The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case. The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence. Absent a specific error it is only if the sentence is found to be ‘unreasonable or plainly unjust’ that a challenge of manifest excess will succeed. A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice. It is not sufficient for this court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.[4]
[footnotes omitted]
[4] [2021] SASCA 32, [8] (the Court).
Discussion
This Court has not sought to establish a sentencing standard for Aggravated Causing Serious Harm with Intent to Cause Serious Harm.[5] As just examples of the reasons why it would be inappropriate to do so, the offence can be aggravated in more than one way; the definition of serious harm has more than one limb; the personal circumstances of offenders will always vary.
[5] Hall v The Queen [2020] SASCFC 84.
Although comparison with other cases is of limited assistance, this Court has held that some indication of the range of sentences for similar offending can be gleaned and may be a guide to whether a sentence is unreasonable or plainly unjust.[6] This is not to overlook that absent some articulation of unifying principle, a mere history of sentences that have been imposed, while identifying a range that has been imposed, does not necessarily establish that this is the correct range or that its limits are correct.[7]
[6] R v Clancy [2013] SASCFC 63, [63].
[7] Hili v The Queen (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, 70–71 [303]–[305] (Simpson J), Wong v The Queen (2001) 207 CLR 584, 606 [59] (Gaudron, Gummow and Hayne JJ).
With the above in mind, it is nonetheless instructive to refer to some sentences other than that the subject of appeal in Woodhart.
In doing so, the following should be noted. First, having reviewed the submissions provided to the Court in Woodhart, it appears that only one of the cases below was brought to the attention of that Court. The one case is R v Clancy.[8] That gives additional and relevant context to the significance to be placed on the observation in that case that the sentence imposed at first instance was high relative to many of the other cases to which the Court was referred. Second, in the cases below which resulted in a respondent being re-sentenced after a prosecution appeal on the ground of manifest inadequacy, R v McNamara[9] is the only case in which the former approach of imposing a sentence at the lower end of the range of sentences available had application.
[8] R v Clancy [2013] SASCFC 63.
[9] (2009) 105 SASR 38.
We commence with sentences imposed by this Court on appeal.
R v McNamara[10]
[10] Ibid.
Mr McNamara pleaded guilty to the offences of Serious Criminal Trespass, Theft and Aggravated Causing Serious Harm with Intent to Cause Serious Harm. The offence of Aggravated Causing Serious Harm with Intent to Cause Serious Harm involved an attack on a police officer. At first instance, Mr McNamara was sentenced for all three offences to four years and six months’ imprisonment. The prosecution appealed on the ground of manifest inadequacy.
On the eve of the offending, Mr McNamara was leaving an address at which the Theft and Trespass offences had been committed. During a chance encounter with a policeman, he was directed to stop. In response, Mr McNamara attacked the police officer with a glass bottle. It shattered on impact. The police officer sustained serious lacerations to the left side of his face and neck along with a deep cut to his right shoulder. These injuries required surgeries and ongoing treatment. The incident left the victim with prominent, raised scarring on his neck that was expected to be permanent, along with reduced movement and loss of sensation. As a result of the disfigurement associated with the facial scarring, the police officer experienced social difficulty that placed strain on his relationships and caused him to question whether his employment as a police officer remained tenable.
At the time of the offending, Mr McNamara was 30 years of age. Two months prior to the offending, his long‑term relationship had broken down leading to his abuse of alcohol and drugs and the subject offending. He had previously spent time in prison for past offending. Just prior to the subject offending, he had completed a two‑year good behaviour bond from a suspended sentence imposed for offences of theft, deception and receiving.
In re‑sentencing, this Court adopted a single starting point of eight years for all three offences. After a reduction of 15 per cent for the guilty plea, a head sentence of six years nine months was imposed.
Before adopting the single starting point of eight years, Vanstone J, with whom Kourakis J (as he then was) agreed, considered the Causing Serious Harm offence to be particularly serious given it was an attack on a police officer. It was held that, in the circumstances, that offence alone should ordinarily attract a starting point of six to nine years.
R v Perdikoyiannis, Condo & Peabody[11]
[11] [2011] SASCFC 82.

Each of the respondents in this case pleaded guilty to offences of Aggravated Causing Serious Harm with Intent to Cause Serious Harm, Theft and Attempted Theft. At first instance, Messrs Perdikoyiannis, Condo and Peabody each received a single sentence of four years and eight months’ imprisonment for all three offences. The prosecution appealed on the ground of manifest inadequacy.
The three offences occurred during a single incident in May 2009.[12] Each respondent attacked the victim at his home. The offence was apparently related to the victim’s alleged involvement in manufacturing methamphetamine. The incident was planned and commenced with Mr Perdikoyiannis approaching the victim’s home alone, drawing the victim out and Mr Condo and Mr Peabody then joining in the assault. The attack was described as a vicious one involving kicking and stomping on the head, face, legs, ribs and arms of the victim.
[12] Mr Condo also pleaded guilty to offences of Causing Harm with Intent to Cause Harm and Threatening to Cause Harm, those offences occurring six months earlier. The earlier offending occurred by Mr Condo punching the victim with a blow that broke his jaw and chasing the victim in his car.
The victim sustained injuries that would have been life threatening had he not been promptly treated at hospital. The victim was in hospital for ten days. He suffered a broken jaw which required surgery, fractured eye socket, fractured nose, broken ribs, a collapsed lung and bruising.
The three respondents were re-sentenced by this Court.
At the time of sentencing, Mr Condo was 41 years of age. He had extensive criminal antecedents which included firearms offences, driving offences and Preventing a Person from Attending as a Witness. In re-sentencing Mr Condo for all three offences in May 2009, Gray J, with whom Anderson J agreed, imposed a sentence of seven years after reducing the notional starting point by one fifth on account of his guilty pleas.
Mr Perdikoyiannis was 31 years of age at the time of sentencing. He had extensive criminal antecedents with convictions for Burglary, False Imprisonment, Armed Robbery and Wounding with Intent to Cause Grievous Bodily Harm. At the time of the subject offending, he was on parole, serving a sentence of nine years for previous offending involving ‘very serious offences of violence’. For the three offences in May 2009, White J, with whom Anderson J agreed, started with a period of nine years, reduced to seven years on account of the guilty plea.
Mr Peabody was in his mid-late thirties at the time of sentencing. He had antecedents extending over a period of almost twenty years with all but one occasion resulting in the imposition of a fine. On that single occasion, Mr Peabody had been charged with offences of Assault Police and Resist Arrest for which he was released on a good behaviour bond. For the three offences in May 2009, having reduced the starting point by one fifth on account of contrition and remorse, Gray J, with whom Anderson J agreed, imposed a head sentence of six years’ having regard to the fact that Mr Peabody had not faced imprisonment on any prior occasion and his strong family support evidencing strong prospects of rehabilitation. Writing separately, White J reached the same result for Mr Peabody.
Clancy v R[13]
[13] [2013] SASCFC 63.
Ms Clancy was found guilty at trial of an offence of Aggravated Causing Serious Harm with Intent to Cause Serious Harm. She was sentenced to 14 years’ imprisonment with a non-parole period of 10 years. Ms Clancy appealed on the ground of manifest excess.
The victim was an acquaintance of Ms Clancy. On the night of the assault, the victim was at Ms Clancy’s house. Ms Clancy attacked the victim with kicks and punches and invited others who were present to join in. A chair was used by Ms Clancy. She placed it on the victim’s neck and stomped on it.
The victim became unconscious during the attack, was subsequently placed in a shopping trolley and left at a vacant property next door where she was found by paramedics a short time later. The victim suffered brain damage, multiple rib fractures, collapsed lungs and facial fractures. She remained in hospital for approximately three weeks before spending a further seven weeks at the brain rehabilitation unit.
At the time of the incident, Ms Clancy was 32 years of age. She had substantial antecedents extending back to the age of 12. Those antecedents included Assaults, Resisting Police, Serious Criminal Trespass and Assaulting Police. A psychological report revealed she suffered Chronic Post Traumatic Stress Disorder, Polysubstance Abuse, and Addiction and Generalised Anxiety Disorder with ongoing antisocial personality disorder.
Justices Sulan and Blue found the trial Judge’s starting point of 14 years’ imprisonment to be manifestly excessive. Justice Kelly dissented. In re‑sentencing the appellant, Sulan and Blue JJ considered the age of Ms Clancy and the prospect of rehabilitation should she receive proper counselling and assistance while in custody. Her previous offending was attributed to her dysfunctional upbringing and resulting psychological conditions. Ms Clancy was re-sentenced to a head sentence of ten years.
R v Koch[14]
[14] [2015] SASCFC 31.
Mr Koch pleaded guilty to offences of Aggravated Serious Criminal Trespass in a Place of Residence, Causing Serious Harm with Intent to Cause Serious Harm and Using a Motor Vehicle without Consent. At first instance, Mr Koch was sentenced to four years and six months’ imprisonment for all three offences. The prosecution appealed on the ground of manifest inadequacy.
The three offences occurred on a single occasion and in the context of a domestic relationship which had broken down six months before. After an altercation with his ex-partner at a hotel, Mr Koch went to her house. Present at that house were the mother of the ex-partner (the victim) and two children. Having entered through the back door, Mr Koch found the victim reading. After discussing the breakup with her, Mr Koch became enraged. As the victim attempted to leave the room, he restrained her and punched her to the side of the head. While the victim was lying on the ground, Mr Koch kicked her in the head with the intention of causing her to become unconscious.
The victim suffered an acute subdural haematoma and required an emergency craniotomy and tracheostomy with a peg inserted for feeding. The surgeon opined that had she not received this emergency treatment, there was potential for her to have been left in a severe vegetative state, to have suffered profound morbidity or death. After surgery she underwent four months of rehabilitation. At the time of sentencing, she was unable to function independently and continued to suffer neurological deficits, visual field loss and poor cognitive function. Her cognitive impairment was likely to improve slightly while her visual field deficit was likely to be permanent.
In re‑sentencing, the Court accepted the attack was particularly cruel which undermined the weight to be given to previous good character, made it difficult to extend mercy and made punishment important. It was accepted that the most serious offending was Causing Serious Harm with Intent which had a maximum penalty of 20 years’ imprisonment, lower than applicable in this case. For that single offence, a sentence of eight years and four months was identified as the starting point, reduced by 20 per cent on account of the guilty plea to a head sentence of six years and eight months.
R v Burner[15]
[15] [2015] SASCFC 133.
Mr Burner pleaded guilty to Aggravated Causing Serious Harm with Intent to Cause Serious Harm. He and a co-accused attended the home of the victim attempting to recover an alleged debt. They assaulted the victim with a hammer and a large pair of scissors. At first instance, Mr Burner was sentenced to a period of two years, six months’ imprisonment with a non‑parole period of one year, three months. The prosecution appealed on the ground of manifest inadequacy.
The victim sustained traumatic brain injuries and skull damage which left an obvious contouring defect. At the time of sentencing, the victim had ongoing memory problems and suffered a degree of cognitive impairment and fatigue. During the incident, he also suffered lacerations and bruising to the head along with fractures to his ribs, spine and lungs.
At the time of sentencing, Mr Burner was 39 years of age with a poor employment history due to drug use. He had substantial antecedents including assault Occasioning Actual Bodily Harm, Assault Against a Police Officer, and offences of Dishonesty.
In re‑sentencing, Gray ACJ, with whom Kelly J and David AJ agreed, considered a notional head sentence in the range of eight to 10 years to be appropriate for offending of the type engaged in by Mr Burner. However, having regard to the circumstances of Mr Burner’s early guilty plea, expressions of remorse, cooperation with the authorities and the fact that he had not spent time in custody in relation to his previous offending, a head sentence of four years and six months was imposed.
R v Cekic & Ors[16]
[16] [2016] SASCFC 26.
This case does not involve sentences imposed by this Court but is nonetheless instructive. Messrs Cekic, Ciantar, Dettman, Neimann and Paunovic were found guilty at trial of Aggravated Causing Serious Harm with Intent to Cause Serious Harm. The attack was part of a joint enterprise to cause the victim serious harm. Each of the defendants appealed the sentences imposed at first instance by the Chief Justice on grounds which included manifest excess. The appeals were dismissed.
At the time of the offence, each defendant and the victim were associated with the Finks motorcycle gang. The assault occurred at the Finks clubhouse and was carried out by Messrs Cekic, Dettman and Paunovic while Messrs Niemann and Ciantar remained outside to keep watch. As a result of the attack, the victim suffered collapsed lungs, rib fractures, a fractured fibula, facial lacerations and a serious head injury. He suffered permanent damage to his brain function.
The three defendants who carried out the assault were treated as equally culpable. The two defendants who remained outside were treated as less culpable.
Mr Dettman was declared a serious repeat offender due to his extensive criminal history. The Chief Justice imposed a head sentence of 15 years. The Chief Justice found that Mr Dettman had ‘no realistic prospect of rehabilitation’ and that ‘a period of preventative detention, over and above the period of imprisonment which a proportionate sentence would give is necessary to protect the community’.
Mr Paunovic received a head sentence of 12 years’ imprisonment. Despite recognising he had good prospects of rehabilitation, the sentence imposed reflected his culpability in the offending and the fact that the offending occurred in circumstances where Mr Paunovic had about two years and eight months of unexpired parole.
Mr Cekic was on a bond at the time of the offence and received a head sentence of 10 years and four months’ imprisonment. In arriving at this sentence, the Chief Justice weighed Mr Cekic’s relative youth, personal circumstances and his reasonable prospects for rehabilitation against his culpability in the offending, his involvement with an outlaw motorcycle gang, his criminal history, his lack of contrition and the need for specific deterrence.
Mr Ciantar received a head sentence of nine years imprisonment. His late arrival and limited role in the offending was balanced against his serious criminal history and limited prospects of rehabilitation. Like Mr Ciantar, Mr Niemann received a lower head sentence due to his more limited role in the offending. Adding to this his positive personal references, good prospects of rehabilitation, previous compliance with home detention conditions and less serious criminal history, he was sentenced to seven years and 10 months’ imprisonment.
Extension of time
Before proceeding to determine the appeal, it is necessary to acknowledge that the application is out of time. The applicant was sentenced on 22 December 2021. The notice of appeal was not filed until 31 January 2023. The affidavit of the applicant in support of the extension of time sets out his explanation for the delay. It is not necessary to examine that explanation nor the principles relevant to whether an extension of time should be granted. The respondent conceded that if this Court concluded the sentence was manifestly excessive, an extension of time would be appropriate. We agree with that concession.
Conclusion
In considering whether the sentence imposed in this case is manifestly excessive, a starting point is to have regard to the maximum penalty. The maximum penalty provides an indication of how serious the legislature regards the offence. As set out above, the maximum penalty is 25 years.
The offence was a serious one. The attack was unprovoked, committed with a knife and the blow was to a vulnerable part of the body. The potential for even more serious harm was real. The finding of an intention to endanger life was open and we would not reach a different conclusion bearing in mind the advantage the sentencing Judge enjoyed in hearing the evidence. General deterrence was an important consideration in sentencing. The community is rightly concerned about crimes involving weapons. As the sentencing Judge pointed out, this Court has long been concerned with outbreaks of public violence, particularly between young men.[17] The applicant also needed to be deterred. We agree with the sentencing Judge that the failure of the applicant to explain why he was carrying the knife and to explain the offence other than that he was drinking heavily makes it difficult to estimate his prospects of rehabilitation.
[17] R v Chalmers [2012] SASCFC 128, [2] (Kourakis CJ).
At the same time, the serious harm caused was towards the lower range and the applicant had a good work history, limited past offending and family support. Further, recognising the limits in the utility of comparing sentences imposed in other cases, the review of the sentences set out above suggests that sentences of more than 10 years have been imposed where the harm caused was more serious than that suffered in this case and/or where the antecedent history reduced the basis for leniency to a more significant extent than is so for this applicant.
In all the circumstances, we are satisfied that the head sentence was beyond the range appropriate for this offence and this offender. We grant the extension of time, grant permission to appeal and quash the head sentence and non‑parole period.
Re-sentencing
In re-sentencing, we adopt a starting point of eight years, six months with a non-parole period of five years. The non-parole period is a greater proportion of the head sentence than that chosen by the sentencing Judge. That is appropriate given the absence of remorse, the failure of the applicant to explain his possession of the knife and the need to be cautious about the applicant’s prospects of rehabilitation. We reduce both the head sentence and non‑parole period by four months and 13 days for time spent in custody and on home detention bail.
We impose a head sentence of eight years, one month and 17 days’ imprisonment, with a non‑parole period of four years, seven months and 17 days. That sentence will commence on 14 February 2020.
Cross appeal
Given we have quashed the head sentence and non-parole period, it is not necessary to consider the cross appeal.