Millwood v The King - [2024] SASCA 84

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MILLWOOD v THE KING
[2024] SASCA 84
Judgment of the Court of Appeal
(The Honourable Acting Chief Justice Livesey and the Honourable Justice Bleby)
28 June 2024
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
This is an application for permission to appeal against sentence pursuant to s 157(1) of the Criminal Procedure Act 1921 (SA). The appellant pleaded guilty to two counts of aggravated assault contrary to s 20(3) of the Criminal Law Consolidated Act 1935 (SA).
The offending was aggravated because it was directed to the appellant’s former domestic partner. The first count involved swinging a baseball bat into the bedhead, causing the victim to be fearful. The second count involved pushing the victim then grabbing her by the throat, causing bruising. The appellant was sentenced on the basis that the offending was isolated. He was 52 years when sentenced.
The sentencing judge imposed a sentence of 10 months and five days. The prosecution did not oppose suspension. The sentencing judge ordered partial suspension, directing the appellant to serve six months in custody.
HELD (the Court) granting permission to appeal, allowing the appeal and, on re-sentence, ordering that the appellant’s sentence be suspended:
1.Whilst the appellant’s offending was serious, it was fuelled by alcohol. The sentencing judge sentenced the appellant on the basis that he would likely remain abstinent from alcohol and that this was a “protective factor”. The appellant has remained abstinent from alcohol for well over two years.
2.This represented some insight into his offending. Not all offenders are articulate. Some may be articulate by their conduct rather than their words. It was an error to sentence on the basis that the appellant had shown no insight.
3.Secondly, on the basis the appellant had expressed no insight, the sentencing judge made the further finding that she was unable to conclude that the appellant posed no risk of re offending against future partners. Given that the appellant had never previously been involved in domestic violence and his decision to remain abstinent from alcohol was a “protective factor”, it was necessary to evaluate the risk of re-offending against the insight he had manifested. That was not done.
4.Thirdly, the sentencing judge sentenced the appellant on the basis that the second aggravated assault caused harm, consistently with s 20(4) though he had only pleaded to an offence under s 20(3) of the CLCA.
5.These errors were material. It is necessary to set aside the sentence and re-sentence. On re‑sentence, the same sentence is imposed. Whilst it is conceivable that the offending may not have been viewed as seriously in other contexts, the offending in this case occurred in a family or domestic setting and was deserving of sentences of imprisonment. There is good reason to wholly suspend the sentence on entry into a good behaviour bond for 18 months that includes a term that the appellant not consume drugs or alcohol.

Criminal Law Consolidation Act 1935 (SA) s 20; Criminal Procedure Act 1921 (SA) s 157; Sentencing Act 2017 (SA) ss 26, 40, 96, referred to.
Cherry v The Queen [2017] NSWCCA 150; Elliott v Harris (No 2) (1976) 13 SASR 516; Hassan v The Queen [2022] SASCA 56; Lee v The State of Western Australia [2022] WASCA 137; Mile v The King [2023] SASCA 33; Mlakar v The King [2024] SASCA 76; Munda v Western Australia (2013) 249 CLR 600; R v Bahrami (2020) 137 SASR 327; R v Burton [2008] NSWCCA 128; R v JD [2018] NSWCCA 233; R v Lennon (2003) 86 SASR 295; R v Locke (1973) 6 SASR 298; R v Mark [2019] SASCFC 48; R v Nedza [2013] SASCFC 142; R v Teremoana (1990) 54 SASR 30; R v Wilkinson (2008) 101 SASR 21; Skeates (A pseudonym) v The King [2023] VSCA 226; The Queen v Brown [1992] ABCA 132; The Queen v De Simoni (1981) 147 CLR 383; The Queen v Kilic (2016) 259 CLR 256; The Queen v Reiner (1974) 8 SASR 102; Trott-Dan v The King [2023] SASCA 2; Vanson v The King [2024] SASCA 62; Varnavides v Victorian Civil and Administrative Tribunal and Another (2005) 12 VR 1, considered.

MILLWOOD v THE KING
[2024] SASCA 84
Court of Appeal – Criminal: Livesey A/CJ and Bleby JA
THE COURT:
Introduction

This is an application for permission to appeal against a sentence[1] imposed on 3 May 2024 concerning two counts of aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), for which the maximum penalties were imprisonment for four years and three years, respectively.
[1] Criminal Procedure Act 1921 (SA), s 157(1).
The offending was aggravated because it was directed to the appellant’s domestic partner.
The appellant entered pleas of guilty to these charges on the day he was due to face a re-trial for six charges of aggravated assault and a charge of unlawfully choking, suffocating or strangling. There was a mistrial. Those charges did not proceed. As a result, and by reason of his pleas of guilty, the appellant qualified for a reduction of up to 35 per cent of his sentence under s 40(3)(a)(ii) of the Sentencing Act 2017 (SA) (the Sentencing Act).
The sentencing judge imposed one penalty of 12 months’ imprisonment pursuant to s 26 of the Sentencing Act. Had she proceeded on each charge separately, she would have imposed a sentence of six months’ imprisonment on count 1 and eight months on count 2. The sentencing judged determined not to allow the maximum reduction on account of the appellant’s guilty pleas but, finding that the pleas had utility, allowed a reduction of 15 per cent.[2] This resulted in a sentence of 10 months and seven days which was further reduced by two days spent in custody.
[2] Citing R v Bahrami (2020) 137 SASR 327.
The first issue on appeal concerned the basis on which the appellant was sentenced.
The second issue raised by the appellant was whether that sentence should have been wholly suspended. Though the prosecution did not oppose the sentence being wholly suspended, the sentencing judge was only prepared to partially suspend the sentence pursuant to s 96(4) of the Sentencing Act. She ordered that the appellant serve six months in prison. The balance was suspended upon entry into an 18‑month good behaviour bond.
For the following reasons, the sentencing judge made material errors which warrant the sentence being set aside. It is necessary for this Court to re-sentence the appellant.
The circumstances of the offending
The appellant and his former domestic partner – SG – were in a relationship for about two years which ended in early 2022. This followed the appellant’s long‑term relationship which had ended in 2019. He had remained on reasonably good terms with his former wife and her children.
The last 12 months of the appellant’s relationship with SG was characterised by alcohol fuelled altercations. In addition, SG had mental health difficulties, including a schizoaffective disorder and a bipolar affective disorder. She also had difficulties with cannabis use.
The appellant’s use of alcohol was problematic. He was drinking up to three cartons of beer each week.
In the course of what was described as a volatile relationship, on one night between 1 June and 31 December 2021 the appellant and SG had been drinking and there was an argument. SG called the appellant names and said words to the effect “No wonder your previous wife left you”. SG went to bed. The appellant was angry. Eventually, the appellant went into the bedroom, grabbed a baseball bat and swung it a number of times into the bedhead, causing three indentations to the bedhead. The appellant told SG to take her things and leave. She was cowering under the quilt. She feared being hit and could feel the breeze of the swinging bat above her.
SG said that she did not report the matter because she was scared, blamed herself and felt ashamed. This conduct comprised count 1.
On 7 February 2022, the appellant and SG had again been drinking heavily. The appellant, a keen fisherman, discovered that his fishing reels were missing, as was $350 in cash. SG had pawned the reels for money. The appellant pushed SG around the kitchen before grabbing her neck with one hand. This caused her bruising on the side of the neck. This conduct comprised count 2.
The appellant was soon arrested and, after spending two days in custody, he was released on supervised bail. His bail included a condition that he not consume drugs or alcohol.
An intervention order was issued for the protection of SG. This was not opposed by the appellant. This has since become a final order.
SG’s victim impact statement described her change from being a strong, independent woman to being frightened to walk around the neighbourhood for fear of running into the appellant. She experiences anxiety, panic attacks and occasional insomnia. She remains in fear of the appellant.
The circumstances of the offender
The appellant has convictions for minor traffic-related matters as well as a conviction for common assault concerning a person who was not a family member in 1998. That was dealt with without conviction in 2003. The sentencing judge rightly regarded these antecedents as being of limited relevance.
At the time of sentence, the appellant was 52 years and had fully complied with his bail conditions. The sentencing judge was told, and accepted, that it was likely that the appellant would abstain from alcohol in the future, even after his bail conditions lapsed.
The appellant had a good employment history. He was a heavy haulage driver, working six days each week. He produced very positive references from his employers and neighbour. The offending was thought to be out of character.
The approach of the sentencing judge
The sentencing judge emphasised the harm posed by domestic violence within the community. She acknowledged that the appellant was affected by alcohol on each occasion, though that did not reduce the seriousness of his offending. Each offence was characterised as impulsive which, though relevant, was often apparent in cases of domestic violence.[3] In addition, her Honour explained that the community expects the law to protect the vulnerable. Predominantly, it is women who are the victims of domestic violence.[4]
[3] R v Lennon (2003) 86 SASR 295.
[4] R v Wilkinson (2008) 101 SASR 21; R v Nedza [2013] SASCFC 142, [87] (Nicholson J).
Having observed that the appellant’s offending was a result of becoming enraged and wishing to punish SG, the sentencing judge found that it was concerning that the appellant had not expressed any remorse or insight. On this basis, the sentencing judge found:[5]
In the absence of any expression of remorse or insight for your offending against your former partner, I am unable to conclude there is no risk of you reoffending against future partners.
In sentencing, it is necessary to deter you from further offending and to reflect to others in the community the seriousness with which such offending is regarded.
[5] Sentencing remarks, 5.
The sentencing judge made these observations notwithstanding that there was no finding that the appellant had ever previously been involved in domestic violence, and he would likely remain abstinent from alcohol.[6] There had been no contact between the appellant and SG after they separated, and the intervention order protected SG against the risk of future harm.
[6] The submission was that the appellant “doesn’t use alcohol anymore, and probably will remain a teetotaller afterwards.”, Transcript of Proceedings, R v Millwood (District Court of South Australia, DCCRM-22-003022, Sutcliffe DCJ, 23 April 2024), 7.
The defence pressed for the suspension of any sentence of imprisonment. That course was not opposed by the prosecution. The sentencing judge was not convinced, for she was:[7]
… unable to find good reason to suspend the term, given the seriousness of the offences. A wholly suspended sentence would not adequately meet the purposes of deterrence. For the same reasons I consider serving a term on home detention would be inadequate.
… I consider there is good reason to order that you serve six months imprisonment and that the balance of four months and five days be suspended on you entering a bond for 18 months …
[7] Sentencing remarks, 6.
On this basis the sentencing judge imposed the sentence earlier outlined.
The grounds of appeal
The appellant’s proposed grounds of appeal were as follows:
1.The Learned Sentencing Judge sentenced on an erroneous factual basis, by finding that the conduct the subject of count 2 carried with it ‘a risk of impeding (the victim’s) breathing and/or blood flow through her neck’, and that it followed that the conduct involved a risk of ‘serious physical harm’.
2.The Learned Sentencing Judge erred by sentencing the applicant for count 2 on the basis he had committed a more serious offence.
Particulars
The applicant was sentence on the basis the assault caused physical and emotional harm to the victim, however that would amount to the more serious offence of assault that causes harm pursuant to s20(4) of the Criminal Law Consolidation Act, 1935.
3.The LSJ erred by sentencing the applicant on the basis that he had no remorse or insight for his offending, and that he was therefore at some risk of re-offending.
4.The order that the applicant spend 6 months of the sentence in prison was manifestly excessive.
The appellant contended that it was not suggested by the prosecution or the court, that the second offence caused physical and emotional harm.[8] That did not represent the agreed basis on which the appellant was sentenced. This, said the appellant, also involved a denial of procedural fairness and amounted to sentencing the appellant for conduct on which he was neither charged nor convicted, namely offending involving actual harm under s 20(4) of the CLCA.[9]
[8] Sentencing remarks, 4.
[9] R v Teremoana (1990) 54 SASR 30, 37 (Cox J, with whom Jacobs J agreed). See also The Queen v De Simoni (1981) 147 CLR 383, 389 (Gibbs CJ); Hassan v The Queen [2022] SASCA 56, [65]-[66] (Doyle JA, with whom Livesey P agreed); Mile v The King [2023] SASCA 33.
The appellant also contended that he had disclosed some insight into his offending and did not represent any significant risk of re-offending with any future domestic partners. As for manifest excess, the appellant contended that requiring him to spend six months in prison was inappropriate.
The Director submitted that no error had been made, though it was conceded that permission to appeal should be granted on what might be described as the De Simoni point, in so far as the judge did not emphasise the demarcation between the differing elements of the offences created by ss s 20(3) and 20(4) of the CLCA. On the question of the appellant’s insight, the Director submitted that it was “overly simplistic” to attribute the offending to the appellant’s drinking. The Director submitted:
At best it may be said that the applicant has some insight, but that did not translate to any greater contribution to his prospects of rehabilitation beyond the observation of the protective effect of abstinence.
The Director cited extensive authority, both in Australia and overseas, in support of the proposition that sentences for domestic or family violence should “strongly denunciate and deter” and that the decision to partially suspend was within the scope of the sentencing discretion.[10]
[10] Including, Munda v Western Australia (2013) 249 CLR 600, [54]-[55]; The Queen v Kilic (2016) 259 CLR 256, [21], [28]; R v Burton [2008] NSWCCA 128, [97]; R v JD [2018] NSWCCA 233, [92]; Skeates (A pseudonym) v The King [2023] VSCA 226, [61]-[62]; The Queen v Brown [1992] ABCA 132, [20]-[22] (Court of Appeal of Alberta).
The determination of the application for permission to appeal
Family and domestic violence has been described as violence that occurs within an intimate partner or family relationship. Family and domestic violence is rightly deprecated in the community. It is increasingly being recognised as a major national health and welfare issue in contemporary Australian society. It can have lifelong physical and mental impacts for victims, impacting their economic and social wellbeing. It occurs across all ages and backgrounds, but mainly affects women and children.[11] It may be no less destructive for those who witness it and must live with its consequences.
[11] See generally, Australian Institute of Health and Welfare (2019) Family, Domestic and Sexual violence in Australia; Continuing the National Story.
On 15 March 2023, the Australian Bureau of Statistics released the “Personal Safety Survey (2021-2022)”.[12] The survey revealed that an estimated 4.2 million people (2.7 million women and 1.5 million men) aged 18 years and over have experienced violence, emotional abuse, or economic abuse by a cohabiting partner in Australia. It has been suggested that “violence” in this context may take the form of threats, assaults, abuse, neglect or harassment, and that it is often used to intimidate, harm or control. In consequence, it is recognised that not all forms of violence are physical. Whilst the degree of physical injury sustained is relevant to sentencing, the gravity of family and domestic violence is not to be measured solely by the physical consequences of it. The offending ought not be divorced from the context in which it has occurred, particularly where there is evidence of degradation, control, threats, or the creation of an environment of fear and dread.
[12]Australian Bureau of Statistics, Personal Safety Survey (2012-2022).
In late 2023 the South Australian Government announced that a Royal Commission, chaired by Ms Natasha Stott Despoja AO, would examine prevention and early intervention, as well as “recovery and healing”, concerning family, domestic and sexual violence. The inquiry is scheduled to begin on 1 July 2024.[13]
[13] Royal Commission - Letters Patent (royalcommissiondfsv.sa.gov.au).
Against this growing awareness, the courts have responded with sentences that appropriately recognise the need for denunciation, punishment, and deterrence.[14] The courts have recognised that the protection of the safety of the community is particularly important, as the victims of this kind of offending are usually vulnerable.[15] In consequence, offenders in cases of family or domestic violence are likely to find that their sentences are appreciably harsher than when compared with similar offending in other contexts which do not involve vulnerable victims. Having said that, orthodox sentencing principles, whether arising under the Sentencing Act or at common law, must be observed and applied just as in all other cases of criminal wrongdoing in order to arrive at a just sentence, reasonably proportionate to the circumstances of the offending and the offender.
[14] R v Nedza [2013] SASCFC 142, [87] (Nicholson J); cited with approval in R v Mark [2019] SASCFC 48, [26]; Trott-Dan v The King [2023] SASCA 2, [43]; Mlakar v The King [2024] SASCA 76.
[15] Cherry v The Queen [2017] NSWCCA 150, [78].
It is likely to be a rare case where the reasons why an offender has resorted to criminal wrongdoing can be adequately or entirely explained by one cause. The many psychological and psychiatric reports tendered in the criminal jurisdiction each day routinely traverse the developmental and sociological reasons why an offender has engaged in criminal wrongdoing. Inevitably, an attempt is made to delineate the more significant causes, in so far as they can be identified, for the purposes of determining a sentence which is appropriately proportionate to the circumstances of the offender and the offending. Not infrequently, offenders will have an important, though perhaps incomplete, understanding of the causes of their offending. Often those causes are communicated through forensic expert reports and the submissions of counsel. The court looks to the offender’s understanding, the offender’s insight, in so far as it can be gleaned from these sources as a way of evaluating the risk of further offending and, as a result, consider the need to give weight to personal deterrence rather than rehabilitation in the case before it.

There are three issues of concern in this case. The first relates to the finding by the sentencing judge that the appellant had expressed no insight into his offending. The corollary of that finding was that the appellant was without insight into the causes of his offending. That is difficult to reconcile with the obvious role alcohol played in the appellant’s offending, and his decision to remain abstinent from alcohol. This demonstrated that there was, at least to an extent, some degree of insight. The Director’s submissions conceded this point. Whether the appellant’s decision to plead guilty was associated with some insight and remorse was not addressed in the sentencing submissions of his counsel to the judge. Accordingly, whilst it remains concerning that the appellant did not articulate insight and remorse through the submissions of his counsel, it is not accurate to find that the appellant had shown no insight.
Secondly, the further finding that the judge was unable to conclude that there was “no risk” of the appellant re-offending against future domestic partner was premised on this finding.[16] It was not suggested that the appellant had ever previously been involved in domestic violence. There is no suggestion that it featured in the appellant’s previous, long-term relationship. The sentencing judge was satisfied that the appellant’s “intention to remain abstinent” from alcohol was a “protective factor”.[17] Whilst the risk that the appellant may re-offend could not be eliminated, it was necessary to evaluate that risk against the insight that the appellant had manifested. That was not done.
[16] Sentencing remarks, 5.
[17] Sentencing remarks, 5.
Thirdly, the sentencing hearing did not proceed on the basis that the second offence involved physical and emotional harm, as the judge found. The sentencing judge made it clear that she was not sentencing for choking offending (within s 20A(1) of the CLCA), but her Honour failed to make it clear that she was only sentencing the appellant for offending under s 20(3) and not s 20(4) of the CLCA. Though sentencing remarks are not to be read as a set of reasons,[18] the remarks in this case demonstrate that the appellant was sentenced for an aggravated assault that caused harm, in a manner consistent with s 20(4) although he had only pleaded to an offence under s 20(3) of the CLCA.
[18] The Queen vReiner (1974) 8 SASR 102, 106 (Bray CJ), 114 (Wells J); Lee v The State of Western Australia [2022] WASCA 137, [54]-[55]; Vanson v The King [2024] SASCA 62.
These three findings were material to the exercise of the sentencing discretion. It follows that the sentencing discretion miscarried and the sentence must be set aside. Accordingly, permission to appeal should be granted and the appeal allowed.
It is not necessary to determine whether the sentencing discretion miscarried on the additional ground that the sentence is manifestly excessive.
Re-sentencing the appellant
It is necessary to re-sentence the appellant. He has now spent nearly eight weeks in custody.
The appellant must be sentenced for two offences which were serious. Whilst it is conceivable that the offending may not have been viewed as seriously in other contexts, such as in altercations between two grown men of similar stature, the offending in this case occurred in a family or domestic setting and was deserving of sentences of imprisonment. The offending had a dramatic impact on the victim who was already dealing with mental illness, no doubt exacerbated by her use of alcohol and cannabis. Nonetheless, it was not suggested that these offences were other than isolated, fuelled by alcohol in each case. Whilst the appellant’s conduct is rightly deserving of condemnation and denunciation, the offending in this case was not high on the scale of seriousness, with the second charge being more serious than the first.
The appellant must be sentenced on the basis that he will likely remain abstinent from alcohol. Not all offenders will be articulate. Some may be articulate by their conduct rather than their words. Here, the appellant’s decision to avoid alcohol reveals some insight into the causes of his offending. Indeed, the appellant must be sentenced on the basis that he has remained abstinent from alcohol for well over two years. This tends to demonstrate that the appellant has commenced to rehabilitate and will not pose the same degree of risk in the future. It is difficult to see how personal deterrence can assume the same importance as general deterrence in the circumstances of this case.
The appellant’s lack of relevant criminal antecedents, good work history and mature age suggest some scope for leniency. The appellant has never previously been subject to a term of imprisonment nor a suspended term of imprisonment. He is essentially a first offender, albeit facing two charges.
On re-sentence, we would impose the same sentence and apply the same sentencing reduction as the sentencing judge. Bearing in mind the matters already mentioned, there is good reason to wholly suspend the appellant’s sentence of imprisonment. A suspended sentence is a real and significant sentence.[19] That will be made subject to entry into a good behaviour bond that includes terms concerning supervision, attending family and domestic violence or anger management courses as directed, and that the appellant will not consume drugs or alcohol. The earlier intervention order remains unaffected.
[19] R v Locke (1973) 6 SASR 298, 301-302 (Bray CJ, Mitchell and Sangster JJ); Elliott v Harris (No 2) (1976) 13 SASR 516, 527-528 (Bray CJ, with whom Bright and Zelling JJ agreed); Varnavides v Victorian Civil and Administrative Tribunal and Another (2005) 12 VR 1, [31] (Vincent JA, Nettle JA, and Harper AJA).
Conclusion
The Court will make the following orders:
1.The appellant is granted permission to appeal.
2.The appeal is allowed, and the sentence is set aside.
3.On re‑sentence, the appellant is sentenced to a term of imprisonment of ten months and five days, backdated to 3 May 2024. That sentence will be wholly suspended on condition that the appellant enter into a bond to be of good behaviour for 18 months.