R v Barnes - [2014] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BARNES
[2014] SASCFC 79
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Stanley)
18 July 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - OTHER PARTICULAR CASES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - SENTENCES ON TWO OR MORE COUNTS - GENERALLY
Appeal against sentence. The defendant was convicted following his pleas of guilty to two counts of aggravated assault causing harm. The complainant in relation to both offences was the defendant’s domestic partner. The offences occurred over a period of two days. Both offences occurred in the presence of the three year old son of the complainant and the defendant. The defendant was sentenced to separate terms of imprisonment of 18 months in relation to each offence. A non-parole period of 18 months was fixed in relation to this total head sentence. The Judge declined to suspend the total term of imprisonment.
Whether the sentences imposed were manifestly excessive. Whether the Judge erred in failing to incorporate an element of concurrency in the sentences relating to the two offences. Whether the Judge erred in failing to suspend the term of imprisonment.
Held per Gray J (Peek and Stanley JJ agreeing) (allowing the appeal):
1. The approach taken by the Judge in fixing a head sentence of 18 months imprisonment in respect of each offence was open and the terms imposed were within his sentencing discretion, subject to the issue of concurrency.
2. It was appropriate in this case to incorporate at least an element of partial concurrency having regard to what was an ongoing course of conduct, albeit separated by a short period of time. Partial concurrency of six months ordered.
3. It was within the discretion of the Judge to decline to suspend the terms of imprisonment. In the circumstances, this was an appropriate exercise of discretion.

R v BARNES
[2014] SASCFC 79
Court of Criminal Appeal: Gray, Peek and Stanley JJ
GRAY J.

This is an appeal against sentence.
Introduction
The defendant and appellant, Kym Derwyn Barnes, was convicted following his pleas of guilty to two counts of aggravated assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation in respect of each offence was that the victim was the defendant’s domestic partner. The defendant faced a maximum term of imprisonment on each count of four years.
On 24 October 2013, the defendant was sentenced in the District Court to a term of imprisonment in respect of each offence of 18 months. The Judge ordered the sentences to be served cumulatively, leading to a total head sentence of three years. The Judge indicated that in arriving at this sentence, he had made a reduction of about 25 percent on account of the defendant’s guilty pleas and remorse. The Judge fixed a non-parole period of 18 months. The Judge declined to suspend the sentence. The sentence and the non-parole period were backdated to commence on 14 May 2013, when the defendant was taken into custody on a bench warrant following his failure to attend court for sentencing submissions.
The complainant in relation to both offences was the de facto partner of the defendant. They had been living together for five years at the time of the offending. They had one child together, a son, aged three years at the time of the offending. The offences both occurred in the home that the defendant shared with the complainant and in the presence of their son. Both offences apparently occurred in circumstances where the defendant was distrustful of the complainant’s faithfulness to him. This led the defendant to search the text messages on the complainant’s mobile telephone, where he located messages from the complainant to a man who was the defendant’s cousin.
The First Offence
The first offence occurred on 1 July 2011. At about 3.00 am, the complainant was asleep on a couch in the lounge room of the home. She was awoken by the defendant, who said, “What the fuck’s this?” The defendant was holding the complainant’s mobile telephone in his hand. The defendant asked, “What’s with these messages to [the defendant’s cousin]?” Before the complainant had time to explain, the defendant hit her to the left side of her head. The complainant touched her head and saw that it was bleeding. The complainant put her arms around her head and the defendant hit her left arm. The defendant continued to hit her to the left side of her head. The son of the defendant and the complainant was also asleep in the lounge room at this time. He awoke and saw the defendant hitting the complainant. The complainant said, “Don’t do it in front of [our son]”. The complainant tried to break free from the defendant and run away but the defendant grabbed her and threw her onto a futon next to the couch. The defendant then lay on top of the complainant and pinned her down, squashing her and preventing her from breathing. The complainant told the defendant that she was hot and could not breathe and he got off of her. They then discussed the text messages to the defendant’s cousin. The defendant got the complainant a drink and some ice. He told her to put the ice on her head so that the swelling would go down and it would not look as bad.
The Second Offence
That evening, the complainant went to a friend’s house. The defendant’s cousin was also there and he walked the complainant home. They arrived home at about 3.45 am on 2 July 2014. The defendant’s cousin stayed for about half an hour and then left. The complainant invited a female friend over, together with a male acquaintance of that friend. At some stage, the complainant began to fall asleep in the lounge room. She awoke and saw the defendant standing in front of her and telling her guests to leave. After the guests had left, the complainant started screaming as she believed that the defendant was going to hit her again. The defendant punched her to the right side of her face with a closed fist. He then hit her again to her right eye. She tried to get up and the defendant grabbed her around her neck. He was standing behind her and trying to strangle her. The complainant could still breathe a little, but pretended to pass out. The defendant then threw her onto the floor. The defendant called out her name and, when she did not reply, kicked her to her left thigh. The defendant picked her up by her hair and threw her onto the futon. The complainant saw their son standing in the doorway. The defendant was holding the complainant’s telephone. He said, “You see this?” He put the telephone on a coffee table and stomped on it, causing both the telephone and the coffee table to break. The complainant said, “Do what you fucken want, just don’t do it in front of [our son]”.
The defendant told the complainant to go to their bedroom. She noticed that her right ear was bleeding. She saw the defendant carrying their son towards his bedroom. The defendant then returned and the complainant begged him not to hit her again. The defendant called the complainant a “worthless slut” and said that she did not deserve to be alive. He said, “Look at what you’re doing to our son.” He kicked the complainant on her lower back. The complainant saw their son standing in the doorway again and the defendant took him to the lounge room. The complainant followed them to the lounge room. The defendant told her to clean up the mess.
The complainant suffered cuts and bruises to her face, particularly her ears, as well as to her hands, arms, chest, thighs and buttocks. Photographs tendered to the sentencing Judge depicted the injuries suffered.
The Sentencing Judge
In the course of his sentencing remarks, the Judge said:
These are very serious offences of their type and are high up on the scale of offences of this type. I am prepared to accept that this was a volatile relationship with some limited degree of pushing and shoving. To that extent it was a violent relationship but, as I said during the course of submissions, it was obviously an unequal contest. I will proceed on the basis that this was the first time you became really physically violent to her.
The victim impact statement describes how [the complainant] became homeless and how she has had to rebuild her life and friendships free of you. She has ongoing security concerns and had to place her son with family to keep him safe. She does not suggest any long-term effects of her injuries. You are both in new relationships.
The Judge then addressed the defendant’s criminal antecedents as follows:
I turn to your previous offending. You are now aged 32 years. You have a variety of prior offences, some dishonesty and drug offences but mainly involving driving a car. You have been giving suspended sentences and immediate terms of imprisonment. You have breached a suspended sentence bond. You have done time for drive under disqualification. Although you cannot be punished again for anything that you have done previously, those matters are nonetheless relevant to the degree of leniency the Court may be able to extend to you and relevant to your prospects of rehabilitation.
A psychologist, Steven Wright, assessed the defendant and provided a report. The Judge summarised that report as follows:
I have taken into account the report of Mr Wright, psychologist, dated 25 July, 2013. It is a long report and it is unnecessary to refer to it in detail. It tells of the separation of your parents when you were aged about five years and then your exposure to physical violence to yourself and your mother at the hands of your stepfather. You were also exposed to alcoholism and drug use. You developed a tendency to physical aggression to combat physical abuse, bullying and teasing. Over time, you developed a tendency to a dependence on alcohol and illegal substances to attempt to manage negative effect. A back injury brought about chronic pain and other problems. Mr Wright considered that your risk of further domestic violence, if untreated, was regarded as being within the moderate range. With the appropriate treatment and your commitment to a rehabilitation programme, the risk of re‑offending will diminish in time.
The Judge then addressed the defendant’s employment history and prospects for rehabilitation as follows:
You have had a variety of jobs over the years, including as a deck hand on a prawn trawler. I mentioned earlier that you sustained a back injury and this was caused during one of your periods of employment.
Both general and personal deterrence apply in your case. I remain guarded about your prospects of rehabilitation, given some of the matters referred to by Mr Wright.
The Judge then imposed the earlier referred to sentences.
The Appeal
The Submissions
The defendant’s primary contention on the appeal was that the sentences imposed were manifestly excessive. In particular, it was submitted that the Judge failed to have adequate regard and accord adequate weight to matters raised in mitigation of penalty. The defendant further submitted that the Judge had erred in failing to incorporate an element of concurrency in the sentences relating to the two offences. The defendant also contended that the Judge erred in failing to find good reason to suspend the term of imprisonment.
Counsel for the Director of Public Prosecutions challenged each contention. Counsel noted that the starting point of two years for each offence before the discount on account of the guilty pleas was half of the applicable maximum of four years. It was submitted that the sentences could not be said to be wholly outside the range available to the Judge, having regard to the seriousness of the offending. Counsel further contended that the Judge had regard to all relevant matters in mitigation and that it was within the Judge’s discretion to take a guarded view of the defendant’s prospects of rehabilitation. In relation to the Judge’s failure to make the sentences concurrent, counsel submitted that the offences were not part of a continuing course of conduct and it would therefore not have been appropriate to order concurrent sentences. Counsel noted that the second offence occurred 24 hours after the first, giving the defendant ample time to “cool down” and to consider his behaviour.
Discussion
Both parties accepted that the defendant’s offending was serious. The offences occurred in circumstances where the defendant was woken from sleep by the defendant and was defenceless. The violence was unprovoked and extreme, resulting in severe bruising to the complainant. The three year old son of the defendant and the complainant witnessed the violence on both occasions and became distressed on the second occasion. Following the first offence, the defendant gave ice to the complainant and told her to put it on her head so that the swelling would go down and it would not look so bad. He then assaulted her again within 24 hours.
The courts have long recognised that personal and general deterrence have a heightened significance when sentencing for crimes of domestic violence. As King CJ observed in Banens:[1]
… The sentence which is imposed by the court for a crime of domestic violence is aimed, in large part, at deterring other people who may be involved in like situations. I think that, in a serious case of domestic violence, it is necessary for this Court to make clear, by actual intervention, to the public that the sentences imposed for this type of crime are calculated to provide effective deterrence to those who might be tempted to commit similar crimes. Not only must the penalties imposed operate, as far as such penalties can, as an effective deterrent, but it must be made clear to the public that the courts are imposing sentences having that effect. It is a question not only of actual deterrence but assurance to the public that deterrent penalties are being imposed.
[1] R v Banens (Unreported, Supreme Court of South Australia, King CJ, Legoe and von Doussa JJ, 18 November 1987), 7-8.
In Wiskich, Martin J, with whom Prior and Williams JJ agreed, observed:[2]
… The background circumstances preceding this crime involved the commonly encountered situation of a breakdown of a relationship arousing emotions and jealousy to the point of obsession. Unfortunately, crimes of violence are often preceded by such circumstances. Potential victims of such violence are frequently vulnerable to attack and are entitled to expect the criminal courts to impose sentences and fix non-parole periods that will act as a deterrent to others in similar situations. …
[2] R v Wiskich (2000) 207 LSJS 431, [69].
In McMutrie, I observed with the agreement of Perry and Williams JJ:[3]
Domestic violence is not just physical abuse but includes a range of violent and abusive behaviours perpetrated by one person against another. A high percentage of victims are women and children. Domestic violence has existed for centuries. However, over the last 30 years its prevalence has been increasingly recognised. This has caused considerable community and governmental concern.
Legislation has been introduced throughout Australia. In South Australia the Domestic Violence Act 1994 (SA) applies. The law seeks to protect the innocent and vulnerable. The legislative scheme is directed towards providing protection. This protection is primarily provided through the mechanism of restraining orders.
Restraining orders are the principal legal response to domestic violence. They can be obtained expeditiously from a magistrate's court. The standard of proof is on the balance of probabilities. Orders can be tailored to the particular conduct of the abuser and breaches are a criminal offence.
In this case the victim had obtained a restraining order. She had done all she could to protect herself. The breach of the restraining order is a matter of particular gravity. The use of the knife to engender fear and wound was an aggravating feature to the appellant's crime. The gravity of his conduct called for the imposition of an immediate custodial sentence.
[3] R v McMutrie (2002) 83 SASR 261, 264-5.
In Lennon, Doyle CJ re-affirmed these observations:[4]
The court has said consistently that it must do what it can to protect women from violence by men. This applies just as much to violence within a domestic relationship as it does to violence in other situations. In cases like this the community expects, and protection of women requires, that the court should impose a sentence that is likely to deter the individual offender and to deter other potential offenders. The fact that the violence occurs on the spur of the moment is a relevant factor, but this is often true in the case of domestic violence. The impulsive nature of such offences is often offset by the fact that, as here, there is a pattern of violence within the particular relationship, or on the part of the particular offender. Mr Lennon’s record makes it clear that he has not yet learned that violence towards women cannot be accepted.
[4] R v Lennon (2003) 86 SASR 295, 297.
In Parisi, Nyland J, with whom Debelle J and I agreed, observed:[5]
… Domestic violence of any kind is to be abhorred. The fact that the appellant's conduct took place in breach of a domestic violence restraining order is an aggravating factor. This means that general deterrence must play a significant part in the sentencing process to bring home to others who might be like-minded that the courts will not tolerate this type of behaviour. …
[5] R v Parisi (2003) 86 SASR 183, 188.
In M, AG, Sulan J, with whom Vanstone and Peek JJ agreed, observed:[6]
The fact a complainant of rape was once in a sexual relationship with the offender does not mitigate the seriousness of the offence. There is a need to have particular regard to general deterrence, where the crime is premeditated and the offending occurs following the breakdown of a relationship. …
[Footnote omitted.]
[6] R v M, AG (2013) 116 SASR 219, 226.
The causes of domestic violence are multiple. It has been recognised that relevant contributing factors include immaturity, mental illness, abnormal personality disorders, inhibition through drug abuse, poor anger management and lack of counselling and support. Courts have identified all of the above as common causative factors in modern times. Although imposing longer and longer terms of imprisonment does remove perpetrators from the community, domestic violence continues and its incidence increases. The imposing of sentences of imprisonment is a blunt instrument that does not adequately address the underlying causes of domestic violence in any real way.
Domestic violence is predominantly directed by men toward women. The community expects the law to protect women, to protect the weak from the strong, and to protect the vulnerable from the oppressor.[7] These are factors that have led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. Parliament has recognised that crimes involving violence and assault may be aggravated by a domestic situation.
[7] R v Wilkinson (2008) 101 SASR 21, 26-7.
Manifestly Excessive

The earlier referred to authorities of this Court addressing offences of domestic violence indicate the seriousness of such offending and the need for sentences to reflect both personal and general deterrence. It is to be accepted that the defendant’s antecedents do not include any offences of violence. Those antecedents, however, do indicate repeated conduct in defiance of the law, including offences of dishonesty and driving offences, namely driving without due care, driving with excess blood alcohol and repeated offences of driving while disqualified. The defendant has a history of failing to comply with orders of the court. The defendant’s antecedent history leads to the conclusion that he was not entitled to the leniency that would attach to a person without any prior record of offending.
It is to be acknowledged that the defendant had taken steps toward his rehabilitation in the period between the offending and the time of sentence. During this two year period, the defendant had formed a new relationship and had the support of his new partner. There has been no suggestion of any further acts of domestic violence.
In my view, the approach taken by the Judge in fixing a head sentence of 18 months imprisonment in respect of each offence was open and the terms imposed were within his sentencing discretion. No error of principle has been identified. Subject to one matter affecting an argument for concurrency or partial concurrency, no basis to interfere with the sentence imposed has been made out.
Concurrency
As earlier discussed, the two offences occurred over the course of two days. Clearly, the defendant’s conduct falls within the description of a course of conduct. The defendant was motivated by misconceived jealousy on both occasions. The sentencing Judge remarked that he proposed to impose separate sentences because, in his view, they were separate, vicious assaults with abundant time for the defendant to reflect on his initial conduct or withdraw from the relationship. The Judge did not discuss the issue of concurrency, partial or otherwise, of those separate sentences, other than to direct that the sentences be served cumulatively.
There are no fixed criteria in determining whether sentences must be made cumulative and a flexible approach is always open to a sentencing judge to fashion a sentence appropriate to the circumstances.[8] In Attorney-General v Tichy, King CJ commented:[9]
… The essential thing to be borne in mind is that if the sentences are made consecutive there must be no overlapping of the factors brought into account in determining the length of each sentence; similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence
[8] R v Simpson (2004) 236 LSJS 119.
[9] Attorney-General v Tichy (1982) 30 SASR 84, 85.
Wells J observed:[10]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community's right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[10] Attorney-General v Tichy (1982) 30 SASR 84, 92-3.
Generally, where there are truly two or more incursions into criminal conduct, cumulative sentences will be appropriate and, where a number of offences are one multi-faceted course of criminal conduct, concurrent sentences are likely to be appropriate.[11] Even where offences involve separate incursions into crime it may be appropriate to make the sentences at least partially concurrent.[12]
[11] Attorney-General v Tichy (1982) 30 SASR 84, 93.
[12] Attorney-General v Tichy (1982) 30 SASR 84; R v Caplikas (2002) 223 LSJS 46.
To my mind, it was appropriate in this case to incorporate at least an element of partial concurrency, having regard to what was, in substance, an ongoing course of conduct, albeit separated by a short period of time. I consider that partial concurrency of six months was appropriate.
The Failure to Suspend
In the course of sentencing submissions, counsel for the defendant submitted that the sentence of imprisonment should be suspended. In support of this submission, counsel drew attention to a number of the personal circumstances of the defendant and of the offending. At the time of sentencing, the defendant was aged 32 years. The psychologist’s report noted that the defendant had an unhappy childhood characterised by a distant relationship with his mother, domestic violence, distrust, bullying and drug use. As the Judge noted, the defendant had a number of criminal antecedents for offences of dishonesty, drug offences, motor vehicle offences and breach of a suspended sentence bond. However, the defendant had no prior convictions for offences of violence. Sentencing submissions occurred more than two years after the offending. The Judge was informed that, during that time, the defendant had fully complied with an intervention order imposed as a result of the offending and had refrained from having any contact with the complainant. The defendant had formed a new relationship which had been ongoing for one year at the time of sentencing submissions. His new partner was said to be supportive of the defendant and there was no suggestion of any domestic violence having occurred in that relationship. The defendant continued to pay child support in respect of his son with the complainant. It was said that the offending amounted to isolated incidents, confined to what was a volatile relationship.
As earlier mentioned, the Judge declined to exercise his discretion to suspend the sentence of imprisonment. However, the Judge failed to address the issue of suspension in his sentencing remarks and consequently gave no reasons for his decision not to suspend the sentence.
On the appeal, counsel for the Director submitted that even if the Judge did fail to consider suspension, the sentence should not be disturbed as it was entirely appropriate given the circumstances of the defendant and the nature of the offending.
In my view, it was well within the discretion of the Judge to decline to suspend the terms of imprisonment that he intended to impose. The offending was serious. The defendant attacked his de facto partner, causing personal injury. The offending took place in part in the presence of a child. The defendant’s offending was both cowardly and brutal, and directed toward a person little able to defend herself. I consider that, not only was it open to the Judge to decline to suspend the sentences, but, in the circumstances, this was an appropriate exercise of discretion.
Conclusion
I would allow the appeal for the limited purpose of ordering that the sentence of 18 months imposed on the second count of aggravated assault causing harm be served partially concurrent on the sentence imposed in respect of the first count. That partial concurrency is to be for a period of six months. As consequence, the defendant faces a total time in prison of two years and six months. I would fix a non-parole period of one year and three months. The sentence should take effect from the day when the defendant first went into custody, namely 14 May 2013.
PEEK J: I agree with the orders proposed by Gray J and substantially with his reasons.
STANLEY J: I would allow the appeal. I agree with the reasons of Gray J and the orders he proposes.