R v Brougham (No 2)

[2015] SASCFC 127

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v BROUGHAM  (No 2)

[2015] SASCFC 127

Judgment of The Court of Criminal Appeal

(The Honourable Justice Peek, The Honourable Justice Stanley and The Honourable Justice Parker)

8 September 2015

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MANSLAUGHTER - SENTENCE - PARTICULAR CASES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

Appeal against sentence. The appellant was convicted of manslaughter after a trial by Judge alone on the charge of murder. The circumstances were that appellant and the deceased were together naked in a spa bath at the deceased’s house, both significantly affected by alcohol. After consensual sexual intercourse, the deceased grabbed the appellant’s foot and bit it, which may have caused the appellant to kick out at the deceased. The Judge found that the appellant then seriously assaulted the deceased by hitting her with a clenched fist in the head and face, and delivering deliberate blows to her ribs by either punches, kicks or stomps. After attempting to give CPR, the appellant fled the scene without seeking medical help. The deceased was found lying naked in the garden by her daughter the following day. The cause of death was a combination of blunt chest trauma and blunt head trauma. The appellant was sentenced to 15 years imprisonment with a non-parole period of 12 years.

In sentencing, the Judge held that the circumstances under which the appellant left the scene without summoning medical assistance for the victim was a factor aggravating the offence. The appellant contended that the Judge erred in that the prosecution had not disproven that the appellant may have left at a time when the deceased was already dead or that he may have left because of the combined effect of intoxication and panic.

The Judge was not satisfied that the circumstances surrounding the appellant’s offer to plead guilty to manslaughter at the committal stage, along with the manner in which the defence was conducted at trial, constituted special reasons pursuant to s 32A(3)(c), Criminal Law (Sentencing) Act 1988 to reduce the mandatory non-parole period. The appellant contended that the Judge erred in finding that the appellant’s offer to plead guilty to manslaughter did not constitute “co-operation” within s 32A(3)(c) and did not reduce the head sentence.

In addition, the appellant contended that the sentence imposed was manifestly excessive.

Held, per Peek J, dismissing the appeal (Stanley and Parker JJ agreeing):

1.       It is settled law that one is to assess whether conduct constitutes an aggravating factor in sentencing as a matter of degree and by reference to considerations of common sense and morality, rather than technical considerations.

2.       Even if the appellant thought that the deceased was apparently dead, such a belief would not prevent his departure from the scene without seeking medical help being treated as an aggravating feature.

3.       The essential conduct relied upon concerning the aggravating feature was clearly proven. A claim that the appellant panicked or was intoxicated does not prevent proof of an aggravating factor; it simply required the Judge to decide as to what degree, if at all, the conduct did aggravate the offending having regard to all the circumstances.

4.       The Judge was correct in considering this conduct to be reprehensible and a serious aggravating factor of the offence.

5.       The proposal to plead guilty to manslaughter was vague. If the appellant’s evidence at trial was to be treated as the underlying facts, a court could simply not have accepted a plea of guilty on the basis of those facts.

6. The Judge was not obliged to give any credit for the offer to plead in arriving at a head sentence or in the context of s 32A(3)(c) concerning the non-parole period.

7.       It has not been demonstrated either that the head sentence is manifestly excessive or that the Judge erred in not reducing the non-parole period to below the mandatory 80% of the head sentence.

Criminal Law (Sentencing) Act 1988 ss 10, 32A(3)(c); Criminal Law Consolidation Act 1935 s 5AA, referred to.
De Simoni v The Queen (1981) 147 CLR 383; R v Von Einem (1985) 38 SASR 207; R v Austin (1985) 121 LSJS 181; R v Schasko (1989) 43 A Crim R 301; R v Teremoana (1990) 54 SASR 30; R v Schultz and Another (1997) 68 SASR 377; DPP v England [1999] 2 VR 258; R v Olbrich (1999) 199 CLR 270; R v Foster (No 2) [2001] SASC 154; Bell v The Queen [2003] WASCA 216; Markarian v The Queen (2005) 228 CLR 357; R v Bangard (2005) 13 VR 146; R v Serrano [2007] VSC 231; Colledge v Western Australia [2007] WASCA 211; R v Spong (2008) 100 SASR 55; R v Ironside (2009) 104 SASR 54; R v Wilkinson (No 5) [2009] NSWSC 432; R v Cavkic (No 2) (2009) 28 VR 341; R v Jones (2010) 108 SASR 479; Tu v The Queen (2011) 205 A Crim R 566; R v Hansen (2011) 206 A Crim R 54; R v Narayan [2011] SASCFC 61; Neill-Fraser v Tasmania [2012] TASCCA 2; R v Franklin (2012) 114 SASR 206; R v B, TB; R v J-M, AM [2013] SASCFC 40; R v Tranter (No 2) (2014) 119 SASR 480; R v McPartland and Polkinghorne (2014) 120 SASR 69; R v Brougham [2014] SASC 196; R v Wheeler [2015] SASCFC 83, discussed.
R v Adami (1989) 51 SASR 229; Royall v The Queen (1991) 172 CLR 378; R v Chan (1994) 76 A Crim R 252; R v Marshall [1995] 1 Qd R 673; Inge v The Queen (1999) 199 CLR 295; R v Guiu (2002) 129 A Crim R 387; R v Yeo [2003] NSWSC 315; R v Cardoso (2003) 137 A Crim R 535; Knight v The Queen (2006) 164 A Crim R 126; R v Syrch and Burns (2006) 18 NTLR 160; DPP v Stevenson [2008] VSC 30; El-Ghourani v The Queen (2009) 195 A Crim R 208; R v Lane [2011] SASCFC 101; Muldrock v The Queen (2011) 244 CLR 120; R v Tran and Tran [2011] SASCFC 153; R v B, FG (2013) 115 SASR 499; Achurch v The Queen (2014) 253 CLR 141; R v Wakefield (2015) 121 SASR 569; R v Brougham [2015] SASCFC 75; R v Pennington [2015] SASCFC 98, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"aggravating factor", "co-operation"

R v BROUGHAM  (No 2)
[2015] SASCFC 127

Court of Criminal Appeal:  Peek, Stanley and Parker JJ

1. PEEK J.    Appeal against sentence.

   Introduction

2. Mr Brougham (the appellant) was tried by a Supreme Court Judge sitting alone, on the charge that he murdered Ms Dianne Rogan (the deceased).  On 17 December 2014, the Judge found him not guilty of murder but guilty of the offence of unlawful and dangerous act manslaughter.  His Honour was satisfied that the appellant had deliberately inflicted serious injuries upon the deceased, and that he had caused her death, but was not satisfied beyond reasonable doubt that the necessary specific intent to constitute murder rather than manslaughter had been proven.  A sentence of 15 years imprisonment with a non-parole period of 12 years was imposed.

3. The Director of Public Prosecutions applied for permission to appeal against the acquittal of the charge of murder.  That application was refused by this Court in a reserved judgment delivered on 20 May 2015.[1]

   [1]    R v Brougham [2015] SASCFC 75.

4. The appellant now appeals against sentence.  The grounds of appeal are:

   (1)     That the sentence was manifestly excessive;

   (2)The Honourable Sentencing Judge erred in finding that the Appellant left the victim and found that it was an aggravating feature;

   (3)Did not have due regard to the offer to plead guilty to manslaughter whilst the matter was still in the Magistrate’s Court.

   The facts and the prosecution and defence cases

5. A brief overview of the facts and of the respective prosecution and defence cases is as follows.

6. The appellant knew the deceased and his parents lived next door to her.  On the evening of Thursday, 11 July 2013, he was celebrating his brother’s birthday at his parents’ house.  While there, at about 6:40pm, he telephoned the deceased and shortly thereafter he went to her home.  He was the last person to see her alive.  On the morning of Friday, 12 July 2013, the deceased was found lying unclothed in the garden of her home at Whyalla by her daughter, Rebecca Rogan, who went looking for her mother when it was reported that she had failed to arrive at work.  The cause of death was a combination of blunt chest trauma and blunt head trauma. 

7. Police officers attended at the appellant’s home on Sunday, 14 July 2013.  He initially lied, telling them that he had been at his parents’ house on the evening of Thursday 11 July 2013, had left at about 7:00pm, and had gone to his home where he remained for the rest of the night. 

8. On Monday, 15 July 2013, police officers again spoke to the appellant and asked whether he knew the deceased and whether he had ever been in a relationship with her.  He changed his initial story but again lied.  He stated that he had telephoned the deceased and asked her for sex; that she had declined but had told him that her husband was away; that he had decided to go to her home to see “how things went”; that he had gone there at about 7:00pm and asked to have sex with her and that she refused.  He further stated to police that she had then driven him to his home which, of course, was entirely untrue.

9. The prosecution case at trial was that the accused and the deceased were together, naked in the spa bath in the deceased’s backyard, late in the evening of Thursday 11 July 2013; that the deceased rejected the appellant’s attempts to have sexual intercourse and that he had intercourse without her consent; that he killed her by various blows to the head and chest areas; and that he then departed, leaving her dead in the backyard of her house.

10. The defence case was that the appellant did not intend to do the deceased any harm, that sexual intercourse was consensual, that her death was entirely accidental and that he was innocent of both murder and manslaughter.  The appellant gave evidence that he and the deceased each consumed a large quantity of alcohol; that they engaged in consensual intercourse in the spa bath; that the appellant was then massaging the deceased’s upper body with his foot and while doing so he told her that he wished to terminate their relationship; that she then bit his foot to which he reacted by instinctively kicking out with his leg; that the deceased hit her head on the edge of the spa bath and lost consciousness; that the appellant then attempted to remove her from the spa bath, in the course of which she fell out of the spa; that he then dragged her on to the lawn area and she again fell from his grip; that he then applied forceful CPR but she did not respond; that he then left and walked to his home.

    The Judge’s reasons for conviction

11. In the Judge’s reasons for conviction,[2] the Judge positively accepted some parts of the appellant’s evidence; found other parts to be reasonable possibilities not disproven by the prosecution; and positively rejected still other parts.

    [2]     R v Brougham [2014] SASC 196.

12. Instances of positive acceptance of the appellant’s evidence include:

    ·that there was an ongoing sexual relationship between himself and the deceased at the time of her death;

    ·that consensual sexual intercourse between the deceased and the appellant occurred shortly prior to her death;

    ·that both the deceased and himself were significantly intoxicated at the time of the death of the deceased; and

    ·that the deceased grabbed the appellant’s right foot and bit it hard and that this may have caused the appellant to kick out at the deceased.

13. An important example of a possibility in favour of the appellant that the Judge found that he could not exclude was stated by his Honour as follows:

    … that at least some of the deceased’s chest injuries were caused by the accused performing CPR.  The injuries to the chest required considerable force.  I cannot exclude the possibility that the accused applied significant force to the deceased’s chest when performing CPR.

14. However, the Judge generally rejected the appellant’s evidence as to the events that followed the biting by the deceased (and the consequent kicking out by the appellant) including his evidence:

    ·that the kicking out by the appellant caused the deceased to become unconscious;

    ·that the deceased was dragged unconscious from the spa to the position where her body was later found;

    ·that all of the injuries to the chest and other parts of the deceased’s body were caused accidentally by the appellant attempting to remove the unconscious deceased from the spa and then applying CPR; and

    ·that the appellant did not seriously assault the deceased.

    The Judge’s findings as to the appellant seriously assaulting the deceased 

15. The Judge found that after consensual sexual intercourse had ended, the appellant seriously and unlawfully assaulted the deceased (although he did not accept all aspects of the prosecution case in this regard).  Thus his Honour stated:

    [210]  I do not accept the prosecution submission that the deceased rejected the accused’s sexual advances which resulted in him assaulting her.  How the altercation between them began is uncertain.  The disagreement may have been when the accused engaged in more vigorous intercourse than the deceased was prepared to engage.  The words, “Please do not hurt me” are likely to have been spoken during this sexual encounter.  The deceased may have become upset by something the accused said.  Whatever the reason, I am satisfied that the deceased bit the accused on the foot.  The injury to the accused’s foot and Dr James’ evidence supports a conclusion that the deceased had a firm grip on the accused’s foot and that the tearing injury was caused by him pulling his foot away.  The accused may have kicked out at the deceased.  I do not accept his evidence that she lost consciousness as a result of him kicking her.  The injuries suffered by the deceased were so extensive that the suggestion that they resulted in the manner described by the deceased is not credible.

    [211]  Professor Byard observed a focused collection of injuries around the face and the head of the deceased.  There was bruising to the left side of her face extending over the line of the jaw and up to the hairline and behind the ear, bruising over the right cheek and right side of the forehead, a gash above the right eyebrow, a blackened right eye and fractured right eye socket.  Due to the confluent nature of much of the bruising, Professor Byard was only able to ascribe a minimum of five impacts to cause those injuries.  I accept his evidence.  I find that it would be very unlikely, if not impossible, for the bruising to the left cheek to have been caused by a single blow.  I accept his opinion that it was due to a number of bruises running together and was the type of injury that typically results from a person being kicked or punched.  I accept Professor Byard’s opinion that the location, symmetrical nature and focused collection of bruising to the face and head is more characteristic of an assault than an injury associated with a fall.  I am satisfied that the facial and head injuries suffered by the deceased were as a result of numerous blows of blunt force. 

    [212]  I accept Professor Byard’s evidence that the injuries he observed were most likely to have resulted from an assault.  I am satisfied that the accused struck the deceased on numerous occasions causing injuries to her head, which substantially contributed to her death.

    [213]  Professor Byard accepted that certain events could result in consequential injuries.  However the extent of the injuries are such that I am satisfied that they were not caused by the deceased slipping or falling on a number of occasions.  I conclude that the injuries to the chest are such that CPR alone was not the cause.  It is possible that some of the rib fractures were caused by CPR, however the fact that there were fractures both to the front and the rear of the rib cage leads me to conclude that force other than simply CPR caused those injuries.  I am satisfied that there was some application of force by kicking or stomping the deceased in the front or rear of the chest.

    [214]  The extent of the bruising and other abrasions satisfies me that the deceased had been assaulted by a number of blows with a fist or that she had been kicked on a number of occasions.  In my view it stretches coincidence beyond belief that injuries such as those suffered by the deceased could have been as a result of her slipping or falling and sustaining further bruising when the accused attempted to remove her from the spa.

    [215]  The extent of the deceased’s injuries to the face are such that I am satisfied that the accused assaulted her by hitting her with a clenched fist in the head and face.  The injuries to her ribs are such that at least some of the factures were caused by deliberate blows either from punches, kicks or stomps.

    [216]  The accused’s evidence does not account for the nature and severity of the injuries to the deceased’s face and head.  I found his evidence unconvincing when he was being asked whether he observed any injuries to the deceased when she first entered the spa, after her slip from the steps, after he kicked-out at her or when they crashed against the side of the spa.  The deceased and the accused were sitting across from each other in a confined area for, on the accused’s evidence, around one hour before he brought up the topic of ending the relationship.  It is inconceivable that he would not have noticed any significant injuries to her face or head, had they been there at the time.  Similarly, if the deceased had sustained any serious injuries to the face or head when she slipped from the step, it is difficult to imagine that he would not have seen them when he was massaging her upper body with his feet.  I am satisfied that the injuries sustained to the face and head of the deceased were not caused by the events as described by the accused.

    [217]  I reject the evidence of the accused that the deceased became unconscious as a result of a single blow to the head caused by him kicking-out at her when she bit his foot.  Having found that the injuries were caused by repeated blows inflicted by the accused and not by the series of events described by the accused, I consider it inherently implausible that, if the deceased had been rendered unconscious by the initial kick, the accused would have continued to attack the deceased in a manner which resulted in the extensive injuries she sustained to her face and head.  It follows, and I find, that the deceased did not die as a result of the accused kicking out at her face after she bit his foot.

    [218]  I am satisfied that the injuries to the deceased’s face and head were caused by repeated blows inflicted by the accused.  I cannot be satisfied of the circumstances in which the assault occurred, whether it occurred in the spa only or whether it continued outside.  The position of the filter box and spa cushion as observed by the police after the deceased was found suggest that they had been dislodged during the altercation.  The exact circumstances of how that occurred are unclear.  I cannot be satisfied that the accused attacked the deceased by hitting her with the filter box.  The position in which those items were located and the dislodging of the spa cover are, however, indicative of a disturbance having occurred in the spa.

    [219]  I am satisfied that the plastic chair was broken during the events of the evening.  I do not exclude as a possibility that the chair broke when the accused stood on it.  I cannot conclude that the deceased was attacked using any part of the chair as a weapon.  I accept the evidence of Professor Byard that he would have expected to see evidence of tram-like bruising on the body of the deceased if she had been hit with the chair.  However I am satisfied that the injury to the accused’s eye was the result of a piece of the chair entering the accused’s eye when the chair broke.  I accept Ms Tat’s evidence.  I am satisfied that the matter removed from the accused’s eye by Ms Tat, the optometrist, was plastic and that the injury had been sustained during the events of the evening.  I reject the accused’s explanation that he irritated his eye when brushing it with a sleeve of a jacket at the Left Hand Club.

    [220]  The accused’s DNA was located in a blood-like stain on the right side of the spa.  The accused suffered an injury to his hand between the ring finger and middle knuckle.  The prosecution submit that it is open to me to conclude that the injury was a result of  the accused’s hand was the result of an injury he sustained earlier when dismantling the glass washer at the Left Hand Club.  I also cannot exclude the possibility that the blood-like staining on the right side of the spa was deposited there as a result of the wound on the accused’s hand opening or the scab being dissolved in the spa.  It follows that I draw no conclusion adverse to the accused from the injuries to his hands.      (Emphasis added)

1. Thus it can be seen that although the Judge did not accept all of the allegations made by the prosecution, it is certainly the case that his Honour found that the appellant gave yet a third lying version of the facts in his evidence at trial.

   GROUND 2 OF APPEAL

   (2)     The Honourable Sentencing Judge erred in finding that the Appellant left the victim and found that it was an aggravating feature

2. The wording of this ground of appeal is odd.  The Judge did not err “in finding that the appellant left the victim” since the appellant himself agrees that he did so.  I proceed on the basis that emphasis is intended to be placed on the second complaint that the Judge “found that it was an aggravating feature”, presumably meaning that it is contended that the circumstances under which the appellant left the homicide scene did not constitute a factor aggravating his crime of manslaughter. 

3. In Achurch v The Queen,[3] and Muldrock v The Queen[4] the High Court identified as the correct approach to sentencing generally that enunciated by McHugh J in Markarian v The Queen:[5]

   [T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.

   [3] (2014) 253 CLR 141, 148 [7] (French CJ, Crennan, Kiefel and Bell JJ).

   [4] (2011) 244 CLR 120, 131 [26] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

   [5] (2005) 228 CLR 357, 378 [51].

4. Thus all factors are to be considered by the Judge as part of the required process of instinctive synthesis sentencing; there certainly does not need to be a separate computation of a period to be added for each aggravating factor (or a separate computation of a period to be subtracted for each mitigating factor).

5. However, it may be accepted that “when a sentencing Judge refers to matters as aggravating factors, it is to be inferred that the matters have been taken into account for the purpose of imposing a sentence of greater severity than would have been the case if regard had not been had to those matters.  The crime is considered a more serious one because of them.”[6]

   [6]    Neill-Fraser v Tasmania [2012] TASCCA 2 at [209] (Crawford CJ, Tennent and Porter JJ agreeing).

   Aggravating factors generally

6. The Criminal Law (Sentencing) Act 1988 (the Act) does not specify what may be considered as aggravating factors. Rather, s 10 of the Act delineates some of the matters to which the courts should have regard, leaving the court to also consider “the circumstances of the offence” and “any other relevant matter.”[7]  As with other Australian jurisdictions, there remains very substantial reliance on common law sentencing principles.[8]  This conclusion has been reached by this Court in the recent decisions of R v B, FG[9] and R v Tran and Tran.[10]  Clearly, the categories of aggravating and mitigating factors at common law are not closed.[11]

   [7] Section 10(1)(a) and (o) respectively.

   [8]    In R v Adami (1989) 51 SASR 229, Legoe J observed at 231 that ‘the discretionary powers of the sentencing court are left to the general law as laid down in the cases enunciating numerous principles of sentencing’. Bollen J (with whom King CJ concurred) took the same approach. See generally Mirko Bagaric and Richard Edney, Sentencing in Australia (Lawbook, 2^nd ed, 2015), 219 and 225.

   [9] (2013) 115 SASR 499, 518 [78] (Sulan J, Anderson and David JJ agreeing).

   [10] [2011] SASCFC 153, [28] (Gray J, Sulan and David JJ agreeing). As Lovell J recognised in his dissenting judgment in R v Pennington [2015] SASCFC 98, at [90], the Court in R v Tran and Tran took into account the fact that the common law principles of sentencing stand alongside the Act and in particular s 10.

   [11]   Mirko Bagaric and Richard Edney, Sentencing in Australia (Lawbook, 2^nd ed, 2015), 225.

7. It may also be briefly noticed that s 5AA of the Criminal Consolidation Act 1935 creates a complicated regime of “aggravated offences”. However, the delineation there of various sets of aggravating circumstances that may be charged does not derogate from the application of the common law doctrine of mitigating and aggravating factors, at least when, as here, the circumstances relied by the Judge as an aggravating factor do not fall within any of the sets of circumstances referred to in s 5AA.

   The approach by the sentencing Judge in the present case  

8. The Judge dealt with the circumstances of the appellant leaving the dead or severely injured victim unclothed and alone in her back yard thus:

   In sentencing you, I do not need to go into the detail of that assault, save to say that consequent upon your assault upon the deceased, she sustained the injuries which I have described and which resulted in her death.  What is undisputed is that after your assault upon the deceased, knowing that she was either dead or severely injured, you left the scene and did not alert either the police or the ambulance.

   Mrs Rogan was discovered by her daughter the next morning when she went to the home after receiving information that Mrs Rogan had not turned up for work at the Whyalla Court where she was working as a deputy registrar.  I conclude that your conduct in leaving Mrs Rogan and not alerting at least the ambulance is an aggravating feature of your offending.

9. On the hearing of the appeal, senior counsel for the appellant claimed that the sentencing Judge had given no notice during sentencing submissions that he might treat the appellant’s leaving the scene as an aggravating factor with a consequent undertone that some unfairness had occurred.  Mrs Shaw QC stated:

   But can I raise at this point, first of all his Honour did raise with counsel the topic of leaving the scene.  It was never suggested by his Honour during argument that it was capable of being construed as a circumstance of aggravation, or that he was thinking about construing it.   (Emphasis added)

10. I cannot agree.  The Judge said this during the sentencing submissions:[12]

    HIS HONOUR:    What relevance does his conduct have after?  He walked away from this woman, he left her there.  He clearly understood that she had been severely injured because, on my findings, the likelihood was he did apply some CPR.  How much that had to do with the chest injuries or not is another issue.  He clearly understood that she was in deep difficulty.  He walked away and he left her there.  He made no attempt to seek assistance for her and he, in effect, hid his involvement in the whole affair until it was inevitable that the investigation would reveal that he had been there that evening.  That conduct is something to which is relevant to my considerations.  Even if he wanted to avoid his involvement he could have rung 000 from a phone booth.  He could have done a number of things to attempt to save this woman.  It may have been an attempt which was not going to be successful but there was no attempt.  He just left her there.  He left her there for her family to find her the following morning.  That conduct is really something that I would regard as relevant.

    MRS SHAW:      Certainly I agree with your Honour, nothing I could say could in any way mitigate that.

    HIS HONOUR:     I am not asking you to mitigate that but it is a relevant factor.

    (Emphasis added)

    [12]   Sentencing Submissions, 4 February 2015, AB 243.

11. It is obvious that the Judge was here expressing a provisional view that the stated conduct (in italics) was a factor relevant to sentencing.  It is also obvious that he was highly critical of that conduct and was definitely not approaching it as a mitigating factor, but rather as an aggravating factor.  Senior counsel, immediately following the above passage, went on to make submissions that the conduct should not be treated as part of the manslaughter offence for which the appellant was to be punished.  This was an attempt to dissuade the Judge from treating the conduct as an aggravating factor even though the words “aggravating factor” were not used.   

    Was the conduct of the appellant an aggravating factor?

12. As I understand it, the appellant contended that the conduct was not an aggravating factor at all because the prosecution did not disprove an hypothesis that the appellant may have left at a time when Ms Rogan was already dead or that he left because of the combined effect of intoxication and panic.

13. There are really two submissions here which were put together.  However, they need to be separately considered for the sake of clarity of analysis.

14. In overview, the first submission is that as a matter of law, the existence of an aggravating factor in a homicide case depends upon a strict temporal test of whether the relevant fact occurred before death; here there can be no aggravating factor if the appellant may have left at a time when Ms Rogan was already dead.  (Counsel also stressed more than once that the burden is upon the prosecution to prove an aggravating factor; however, that is a matter of onus of proof and must not be confused with the delineation of the aggravating factor itself.) 

15. In overview, the second submission is that even if (contrary to the first submission) actions performed after the moment of death can be aggravating factors, there still can be no aggravating factor here unless the prosecution negates beyond reasonable doubt the possibility that the appellant may have left because of the combined effect of intoxication and panic.

16. I consider that both submissions fail.  My reasons follow.

    The contention that there can be no aggravating factor if the appellant may have left at a time when Ms Rogan was already dead

17. As I understood it, the submission was that the prosecution could not negate beyond reasonable doubt the possibility that Ms Rogan was dead before the appellant left the scene; that the crime of homicide was therefore complete before he left; and that therefore the conduct of not calling an ambulance and leaving the scene with the body displayed naked could not be treated as an aggravating factor.

18. That submission was also made at the permission to appeal hearing.  In support of it, counsel for the appellant there relied upon only one authority, that of R v Spong,[13] a case involving belligerent conduct by the defendant after a motor vehicle accident caused by his dangerous driving.  There, Gray J (with whom David J concurred) stated:[14]

    [51]    The conduct of the appellant toward the victim after impact was appalling.  There was no occasion for the appellant to abuse the other driver or other persons at the scene.  However, as the Judge noted, the appellant was immature.  He was also in a state of shock.  As earlier observed he had obviously sustained a blow to the chest sufficient to fracture his sternum.  These matters may explain the appellant’s conduct.  However, more relevantly, these were not matters that aggravated the appellant’s offending.

    [52]    Even if either matter could be characterised as a matter of aggravation, questions of disputed fact arose on which, as earlier observed, the Crown carried the onus to establish those facts beyond a reasonable doubt.  The appellant’s case was that the manner of driving was admitted, but that it was out of frustration rather than aggression.  This was not an unreasonable hypothesis.  The Director did not attempt to discharge its onus.  The appellant’s case on the post-collision abuse was that it occurred in, and was explained by, the appellant’s resultant state of shock.  The behaviour did not continue once the appellant realised what had happened.  This was a reasonable hypothesis that had not been excluded by the Director.  Again, the Director did not attempt to discharge its onus.

    [13] (2008) 100 SASR 55.

    [14] (2008) 100 SASR 55, 66-67.

19. It is notable that at the permission to appeal hearing, Duggan AJ, observed that one might accept that in Spong the later conduct had nothing to do with the driving at all, whereas here the trial Judge was really drawing attention to the fact that the appellant left without calling an ambulance when there could really be no certainty as to whether medical assistance could help or not.  Duggan AJ went on to also observe that the submission that no aggravating factor could arise after the time of death was “a technical line to draw”.  The following question and answer in effect drew the battlelines for this appeal:

    HIS HONOUR:    I just take a case that is completely unrelated to this, but if a person commits the offence of murder and then burns the body so that to help evade conviction, is that a circumstance of aggravation?

    MRS SHAW:      That is the matter raised in Spong.  In my submission, it is not.

20. On the appeal, counsel for the appellant again placed principal reliance on R v Spong.[15]  I agree with Duggan AJ that Spong may easily be distinguished on the facts.  But more fundamentally, Spong is an example of the application of a principle, but it is not a repository of discussion of central principle for the simple reason that, in the circumstances of that case, it was unnecessary to undertake such discussion.  Having regard to the stance of the appellant here, it is necessary to survey briefly the authorities.

    [15] (2008) 100 SASR 55. Counsel also briefly alluded to R v Austin (1985) 121 LSJS 181 and R v Lane [2011] SASCFC 101. Additionally the authorities of R v Teremoana (1990) 54 SASR 30, 36-37 and R v Wakefield (2015) 121 SASR 569, 581 [47] were cited in the outline of argument. In response to a request by the Court during the hearing of the appeal for counsel to supply a note concerning relevant authorities, senior counsel for the appellant supplied after judgment was reserved references to R v Wilkinson (No 5) [2009] NSWSC 432, R v Cavkic (No 2) (2009) 28 VR 341, DPP v England [1999] 2 VR 258, and Neill-Fraser v Tasmania [2012] TASCCA 2.

    A brief survey of the authorities

21. In R v Austin, King CJ (with whom Zelling and Bollen JJ concurred) stated:[16]

    It is true that in imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation. 

    Just what surrounding circumstances are properly to be taken into account in a particular case is a matter of degree.   (Emphasis added)

    [16] (1985) 121 LSJS 181, 183.

22. This is a broad test, turning on whether the surrounding circumstances are “directly related to that crime” and is “a matter of degree”; it might be said to be rather reminiscent of the “common sense” approach taken to causation in the criminal law.[17]  However, the principle has boundaries.  One is a temporal boundary requiring as a matter of degree that the aggravating feature be relatively contemporaneous with the performance of the actus reus of the crime charged.  This boundary may in some cases tend to align with the accused’s right to silence and right to have a charge proven by the prosecution without his co-operation. 

    [17]   Thus in Royall v The Queen (1991) 172 CLR 378 and elsewhere, the High Court has stated that an accused’s act must be a substantial or significant cause of death, but need not be the sole cause of the death; the question is whether the connexion between the conduct of the accused and the death of the deceased was sufficient to attribute causal responsibility to the accused; this question is not a philosophical or a scientific question, but a question to be determined by the jury applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a very serious criminal matter.

23. Another important boundary to be emphasised is what is often now referred to as the De Simoni principle.[18] 

    [18]De Simoniv The Queen (1981) 147 CLR 383. This principle is considered below.

24. Thus in Austin, King CJ continued his statement of principle:[19]

    The courts have to be particularly cautious when the circumstances relied upon themselves may constitute crimes.  Often the circumstances amount to crimes of a similar character to that charged and can more readily be taken into account as circumstances of aggravation.  Likewise where the criminality of the aggravating circumstances is clearly subsidiary to as well as related to the criminality involved in the conduct constituting the crime charged.  Special care, however, is required when the circumstances relied upon as circumstances of aggravation themselves constitute crimes or may constitute crimes of a different character or crimes against different victims.

    If a person is to be punished for conduct which is said to be criminal, generally speaking justice requires that he be charged with it and have the opportunity of defending himself.  If he is not charged with it, generally speaking it should not be relied upon as a circumstance of aggravation of some other crime.  This, of course, is not a hard and fast rule; everything must depend upon the particular circumstances and, as I have said, it is very much a matter of degree.

    [19] (1985) 121 LSJS 181, 183.

25. In R v Teremoana the approach was stated in similar terms.  Cox J (with whom Jacobs J concurred) stated:[20]

    As a general rule, the judge who is sentencing a person who has been convicted of an offence will have regard to all of the circumstances surrounding the offence and this may include its impact upon other people.  Care must be taken, however, not to take into account actions of the defendant, however reprehensible they may have been, that were really irrelevant to the crime charged, and special caution is needed if the result of taking something into account will be to punish the defendant for an offence of which he was not been convicted.

    [20] (1990) 54 SASR 30, 36.

26. After reference to various cases (including De Simoni) his Honour stated:[21]

    However, it is certainly not a universal rule that the judge, when sentencing for the offence specifically charged in the information, may never have regard to relevant actions of the defendant that, strictly speaking, constituted separate offences.  If they were offences of lesser gravity than the offence of which the defendant has been convicted, then it will be a matter of degree and fairness whether they may properly be taken into account as a part of the circumstances surrounding the offence charged.  If a burglar is disturbed in the course of ransacking a house, and seriously assaults the victim, the assault should be separately charged and not regarded as a mere matter of aggravation of the burglary.  R v Parsell (1980) 28 SASR 369. On the other hand, relatively minor indecencies that are directly associated with an act of rape, though serious enough in themselves, are often not separately charged but are nevertheless taken into account by the sentencing judge as circumstances of aggravation. (Emphasis added)

    [21] (1990) 54 SASR 30, 37-38.

27. As will be referred to below, the italicised portion of his Honour’s statement here must be read in the light of the High Court decision in R v Olbrich.[22] 

    [22] (1999) 199 CLR 270.

28. Cox J later continued:[23]

    The harm that a crime causes the victim will usually be a relevant factor in sentencing the defendant, certainly where the harm was intended and sometimes where it was not, provided, of course, that to take it into account would not amount to punishing the defendant for some other serious crime.  So far as unintended or unforeseen consequences are concerned, it is not possible, I think, to generalise.  If a defendant foresaw that his criminal act would probably cause injury to another, obviously that circumstance might be taken into account when imposing sentence, even though he did not actually intend to cause the injury.  What of the consequence — physical harm, say, or fear — that was not foreseen?  That will depend on the particular circumstances.  Burglary is usually punished more severely than housebreaking, and one reason for that is that a house is likely to be occupied in the middle of the night.  A burglar who did not turn his mind to the matter of the house being occupied, and certainly did not expect to frighten anyone, might possibly have that taken into account in his favour, but it is improbable that the Judge would in such a case regard the actual presence and fear of a foreseeable occupant as irrelevant to the matter of sentence.  The Criminal Law (Sentencing) Act 1988 appears to assume the relevance of the victim’s situation to the matter of sentence.  See ss 7(1), 10(d) and (e).  Compare Heitanen (supra) — “Consequences of conduct are always a factor in assessing the gravity of crime” (per King CJ (at 517)).  I have noted that the old s 84 made it an offence to set fire to a house that was occupied.  It did not have to be proved that the defendant realised that it was occupied.  The fact that an offence of a certain type is sometimes accompanied by a particular serious result — death, say, or injury — will normally be taken into account in determining the proper sentence, at least as a measure of the inherent gravity of the offence, whether or not the risk was actually foreseen by the defendant himself.  It may be otherwise where the result was not reasonably foreseeable.

    [23] (1990) 54 SASR 30, 38-39.

1. The Australian state authorities largely speak with one voice in stating a flexible principle in accordance with common sense and moral sense.

2. DPP v England[24] is a central Victorian authority dealing with sentencing for homicide, in which many other authorities are captured.  The respondent murdered an elderly woman after breaking into her flat with the intention of stealing from her.  He brutally attacked her and strangled her with a belt, before having sexual intercourse with her dead body and then setting fire to the premises.  The sentencing Judge considered the post-death events could not be considered as possible aggravating factors.  The Victorian Court of Appeal allowed the Director’s appeal, and held that the Judge had erred in failing to characterise what immediately followed the murder as aggravating circumstances.  Brooking JA (Batt and Chernov JJA agreeing) stated:[25]

   [17]    Aggravating circumstances point towards greater severity of sentence.  What are the circumstances of the offence for this purpose?  May one look only to circumstances which, judged from the standpoint of strict contemporaneity, accompany the criminal act and at nothing which precedes or follows it?  It is absurdly artificial to draw a line and limit the circumstances of the offence to those which existed in the period of time (which may be a single second) between the coming into existence of the first and last elements of the offence.  Take the crime with which we are concerned — murder.  Where someone is beaten or hacked to death and mutilated, must the sentencer pause to determine the precise moment at which death supervened lest the cutting off of some other part of the anatomy be mistakenly treated as a circumstance of a crime which was complete once the head was hacked off?  If the criminal torments the victim with promises of what is about to come, are those threats to be left out of account because they precede by minutes the fatal assault?  But the insistence of common sense that the circumstances of a crime be regarded even though technically its commission has yet to begin or has already ended is not confined to cases of what might be called substantial as opposed to strict contemporaneity.

   [18] Long before the Sentencing Act rose above the horizon judges drew on their common sense and their moral sense, as representing that of the community, in deciding what things about a crime could be said to make it more or less serious. They still do; nothing in the Act stops them doing this. Common sense and moral sense, which are and must ever be the essential foundation of sentencing principles and practices, unite in rejecting the notion that “the circumstances of the offence”, for sentencing purposes, are neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime. What is premeditation, if not a circumstance of the offence? Yet by definition it precedes the crime. What is provocative conduct of the victim, viewed as palliating the crime, if not a circumstance of the offence? But again something cannot provoke unless it precedes. Similarly, it has long been recognised that the consequences of a crime (which by definition follow it) may form part of its circumstances for sentencing purposes: R v Boyd [1975] VR 168 at 172; R v McCormack [1981] VR 104 at 108. The courts treat the phrases “circumstances of the offence” and “surrounding circumstances of the offence” as interchangeable: R v Boyd at 172; R v Teremoana (1990) 54 SASR 30 at 36-7 and 50; R v De Simoni (1981) 147 CLR 383 at 396 per Wilson J; R v Newman and Turnbull [1997] 1 VR 146 at 152 per Winneke P. These and similar phrases do not look to some clearly defined period of time. …

   (Emphasis added)

   [24] [1999] 2 VR 258.

   [25] [1999] 2 VR 258, 263-264.

3. After reviewing numerous authorities, his Honour observed:[26]

   [35]    What should be regarded as the circumstances of an offence is best left to the good sense of sentencing judges, without any attempt to lay down principles or rules, which are all too common in the criminal law nowadays and which are particularly to be avoided in a matter of this kind.  I have no doubt that in this case the judge was wrong in failing to characterise as a circumstance of the crime the facts that the murderer had capped the homicide with a sexual assault upon the body from which life had just departed and then burnt what he had just defiled.  Cases may arise in which, for example, the murderer, who has allowed the victim’s body to lie concealed for a long time, then dismembers it with a view to disposing of it by some different means; and it may be argued that, having regard to all relevant matters, the dismemberment should not be regarded as so connected with the crime as to be viewed as one of its surrounding circumstances.  When such a case arises, it can be left to the good sense of the sentencing judge.  As was said in the South Australian decisions mentioned earlier, what is a surrounding circumstance may be a question of degree.

   …

   [37] … If conduct, notwithstanding that technically it follows the crime, is so connected with it as properly to be viewed as one of its circumstances, that conduct, if it aggravates the crime, must be placed in the scales.  …              (Emphasis added)

   [26] [1999] 2 VR 258, 267-268.

4. R v Wilkinson (No 5)[27] is a New South Wales authority dealing with sentencing for homicide, again capturing many other authorities.  The defendant killed his pregnant lover, whose body was never found.  A few weeks later he set fire to his home, pretending that intruders had tied him up and set the fire, but he had escaped.  Johnson J found that the defendant’s motive in setting the fire was to deflect police investigation into the woman’s disappearance.  His Honour stated:

   [61]    Care must be taken in considering whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself.  However, the circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime:  Director of Public Prosecutions v England [1999] 2 VR 258 at 263 [18]. Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime.  In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation:  Director of Public Prosecutions v England at 263-264 [18]. The dumping of a body by a murderer constitutes an aggravating circumstance of the offence itself, and such concealment of the body is not limited in its significance to the absence of remorse: Director of Public Prosecutions v England at 266 [27]; Bell v R [2003] WASCA 216 at [23]-[25]; Colledge v State of Western Australia [2007] WASCA 211 at [16]; R v Cavkic (No. 2) [2009] VSCA 43 at [134].

   [27] [2009] NSWSC 432.

5. His Honour then continued with a passage, which I would respectfully endorse, that highlights aspects of the boundaries of the principle of aggravating factors that have been referred to above:

   [62]    However, the Offender’s subsequent false statements to police and others concerning the whereabouts of the body cannot, in my view, be taken into account in an assessment of the objective seriousness of the murder itself.  Nor can his failure to reveal the true whereabouts of the body:  R v Cavkic (No. 2) at [134]. Undoubtedly, such post-offence conduct may bear upon the Offender’s lack of remorse and contrition and his prospects of rehabilitation: Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225 at 223-224 [37]-[40]; Douar v R (2005) 159 A Crim R 154 at 179 [131]; Weininger v The Queen [2003] 212 CLR 629 at 638-640 [25]-[32]. However, apart from the separate crime of arson for which the Offender is to be sentenced, I do not consider that his post-offence conduct can be taken into account in an assessment of the objective seriousness of the crimes themselves. (Emphasis added)

   Dumping or concealing the body of a victim

6. The comment by Duggan AJ during the permission application here as to the burning of a body was an apt one.  It is well established that the mere act of dumping the deceased’s body after the homicide may be an aggravating factor and, a fortiori, so may cases such as defilement and burning of the body.  

7. In R v Von Einem,[28] King CJ (with whom Jacobs and Olsson JJ agreed), listed the dumping of the body in a remote spot as part of his “recital of essential facts”, which, his Honour stated, amply justified the sentencing Judge’s view that the crime was of unique seriousness.

   [28] (1985) 38 SASR 207, 218.

8. In Bell v The Queen,[29] the defendant injected the deceased, who was heavily under the influence of illicit drugs, with further drugs which caused her death.  He then hid her body in bushland and her clothes and possessions in other places and subsequently lied about her disappearance to her friends and the police.  The body was discovered some three years later by a bushwalker.  The defendant subsequently pleaded guilty to a charge of manslaughter.  The sentencing Judge took into account the defendant’s actions of concealing the body as an aggravating factor.  Murray ACJ (with whom McKechnie and Hasluck JJ concurred) in dismissing the appeal, referred with approval to DPP v England[30] and stated:

   [25]    I would respectfully concur in those views and it follows, in my opinion, that the sentencing Judge in this case was right to have regard to the matters I have mentioned, both as adding an aggravating dimension to the quality of the act of killing the deceased which constituted the crime of manslaughter and as indicating, as his Honour said, a lack of remorse for the killing and empathy for the victim’s family.  As such, the matters to which I have referred, whilst they do not detract from the mitigation ultimately available to the applicant, do significantly increase the seriousness of the offence.

   [29][2003] WASCA 216.

   [30] [1999] 2 VR 258.

9. In Colledge v Western Australia[31] a case of manslaughter involving facts quite similar to those in Bell, the Judge treated that conduct as an aggravating factor and the Western Australian Court of Criminal Appeal dismissed an appeal, applying Bell and England.

   [31] [2007] WASCA 211.

10. In R v Serrano, the defendant pleaded not guilty to a charge of murder and was found guilty.  The body of the deceased was never found.  Kaye J said:[32]

    [15]    … I sentence the prisoner on the basis that the murder arose in circumstances involving a spontaneous and violent outburst of anger.  The blood stain evidence, and other forensic evidence, satisfies me beyond reasonable doubt that the prisoner struck Ms Trailovic a number of times with a chair or a chair leg.  He continued to strike her as she was falling, and after she had fallen, to the ground.  It was a vicious, brutal beating of a defenceless, innocent woman of mature years in what should have been the safety of her own home.

    [16]    The gravity of the conduct of the prisoner is aggravated by his conduct following the murder.  The prisoner removed Ms Trailovic’s deceased body from her home, and hid it in a location which has still not been discovered.  He took further elaborate steps to endeavour to remove and conceal evidence which would have implicated him in the murder of Ms Trailovic in her own home.  As I stated, he cut up a large section of the carpet, and managed to dispose of it.  He hid the chair leg with which he had beaten Ms Trailovic to death, and also hid her spectacles, which had been damaged in the assault.  He concocted and maintained a false account to friends, neighbours and acquaintances, and then to the police.  His conduct in doing so, and his demeanour during the three recorded interviews which he had with the police, demonstrates that he has no remorse at all for his crime.  Further, as the authorities indicate, his conduct in concealing the death and the body of Ms Trailovic, and endeavouring to lay a false trail in relation to her disappearance, aggravates the gravity of his wrongdoing.  That conduct was intimately connected with the murder by the prisoner of Ms Trailovic.  It was part and parcel of the offending, and as such added to the seriousness of the offence.  The prisoner’s implication in the murder of Ms Trailovic was only uncovered by thorough and resourceful detective work by the police responsible for the investigation of her disappearance.

    [32] [2007] VSC 231. An application for leave to appeal against conviction was dismissed: R v Serrano [2009] VSCA 140. There was no application in relation to sentence.

11. In Neill-Fraser v Tasmania[33] Crawford CJ (with whom Tennent and Porter JJ concurred) stated:

    [210]  The consequences of a crime are commonly taken into account.  Obvious examples are hurt caused to a victim or a victim’s family by a crime of violence.  Dumping or concealing the body of a victim has been regarded as an aggravating circumstance that may be taken into account when sentencing for murder.  Director of Public Prosecutions v England (supra) at 266; R v Von Einem (1985) 38 SASR 207 at 218; Bell v R (supra) at pars [23] – [25] and [61] – [62]; Colledge v Western Australia (supra) at par [16]; R v Cavkic (No 2) [2009] VSCA 43 at par [134]; R v Wilkinson (No 5) (supra) at par [61].

    [33][2012] TASCCA 2.

12. In R v Cavkic (No 2) the Victorian Court of Criminal Appeal stated:[34]

    [133]  It was contended on behalf of each applicant that the judge had erred in sentencing that applicant by treating as an aggravating circumstance that the applicant had not revealed the whereabouts of the deceased’s body.  It was submitted that the failure to disclose the whereabouts of the body could be no more than the absence of a mitigative factor, and thus that the judge’s sentencing discretion had miscarried.

    [134]  We accept that the failure to disclose the whereabouts of the deceased’s body was not properly to be regarded as an aggravating factor but rather should be seen as the absence of a mitigating factor.  A murderer’s destruction of the deceased’s body may be regarded as an aggravating circumstance.  So too may the mere act of dumping the deceased’s body after the murder.  But to treat an accused’s failure to reveal the whereabouts of the deceased’s body as an aggravating factor would be tantamount to treating the accused’s conduct of his or her defence as an aggravating factor; and, as counsel for Cavkic reminded us, it is no longer permitted to take that view.  An accused is entitled to conduct his or her defence within the bounds of the law and should not be prejudiced in the exercise of that right.  It follows that the judge in this case was in error in describing the applicants’ failures to disclose the whereabouts of the deceased’s body as aggravating factors.

    [135]  That said, however, it does not appear to us that the error was material to the sentences imposed.  As the High Court observed in Siganto, sometimes it is a matter of semantics to distinguish between denying the existence of circumstances of mitigation and asserting the existence of circumstances of aggravation, and judicial statements intended as the former may of occasion be misunderstood as intending the latter.  In our view, the distinction in this case is a matter of semantics.

    [136]  So to say is not to suggest that the judge conceived of the failure of the applicants to disclose the whereabouts of the deceased’s body as the absence of a mitigating factor.  But, in the circumstances of this case, the failure to disclose the whereabouts of the body was in reality the other side of the coin to the applicants’ having dumped the body in a place where it was not likely to be found.  And inasmuch as the failure of disclosure reflected the circumstance that the body had been dumped in a place where it would not be found, in reality it was not illogical even if inapposite to describe it as an aggravating factor.  In any event, for the judge in effect to refer to both the non-disclosure and the disposal of the deceased’s body compendiously as an aggravative factor did not result in any greater sentence than if each of the two components had been separately described.

    (Emphasis added; citations omitted)

    [34] (2009) 28 VR 341, 374-375 (Vincent and Nettle JJA and Vickery AJA).

    Defiling or mutilating a victim’s body

13. In R v Schasko,[35] O’Loughlin J held that a murder caused by a knife wound which severed the left carotid artery was significantly aggravated by the later infliction of “horrible facial injuries”, these “blows of tremendous force” being described as acts of gratuitous violence.

    [35] (1989) 43 A Crim R 301.

14. In R v Schultz and Another,[36] Schultz and Inge were each convicted of murder.  After the death of the victim, petrol had been poured on him and ignited, thereby burning the body.  Both appealed against sentence.  The matter was complicated at sentencing and on appeal by disputes between the two appellants as to facts and by other lines of appeal pursued by Inge.[37]  However, it is clear that the Court of Criminal Appeal treated the burning of the body as an aggravating feature.  Thus Perry J (with whom Cox J concurred) stated:[38]

    This was a brutal assault on a frail old man of 68 years, alone in his house late at night.  His life was battered out of him by the use of a piece of wood, which he had initially armed himself with in a futile attempt to defend himself, and a claw hammer.  The incineration of the body of the deceased was a circumstance of aggravation.

    (Emphasis added)

    [36] (1997) 68 SASR 377.

    [37]   Inge v The Queen (1999) 199 CLR 295.

    [38] (1997) 68 SASR 377, 384.

15. DPP v England,[39] referred to above, is itself a prime example of the courts’ treatment of defiling or mutilating a victim’s body as an aggravating factor.  Brooking JA (Batt and Chernov JJA agreeing) summarised a number of other similar Victorian decisions and I will gratefully adopt part of his Honour’s analysis:[40]

    [20]    …  Some of the cases in which regard has been had to acts inflicting injury on the body even though they were, or may well have been, committed after death, could be sought to be explained on this basis, although I doubt very much whether the final act by which the body was violated in R v Stone [1988] VR 141 ─ thrusting a stake into the vagina ─ could be described as part of a murderous attack. It was very likely committed after death and was a gratuitous violation of the body.

    …

    [22]    I have made passing reference to the case of Stone. I need not recount the acts perpetrated there. The Court records ─ [1988] VR at 143 ─ the fact that death was due either to the stab wounds or to asphyxiation. It seems to me highly likely that some of the acts recounted as having been done by the prisoner by way of further violating the body were done after death. The Court does not treat the question of the precise time of death in relation to those acts as relevant. They were acts of gratuitous violence and degradation. This case cannot be explained as one of a murderous assault constituted by a number of acts, each intended to kill, where it would, I imagine, be accepted by all that for sentencing purposes it would be absurd to ignore such of the acts as occurred after death. The case was plainly one of the depraved infliction of injury, which murderous intent was insufficient to explain. My impression from reading what appears at 142-3 is that the Court even viewed as an aggravating circumstance of the offence the miserable act of one offender in taking nine dollars from the victim's handbag after her death.

    [23]    Then there is the case of R v Hull (1969) 90 WN (Pt 1) (NSW) 488, where death was caused by manual strangulation.  After the death, the prisoner stabbed the victim twice and then inflicted a deep cut, which extended from breastbone to pelvis.  The judgment of the Court of Criminal Appeal records that the mutilation of the body after death was taken into consideration by the judge, Collins, J, in passing sentence and observes that he “obviously gave his attention to every consideration that was relevant and omitted those that were irrelevant” (492).

    [24]    In R v McRae (Unreported, Court of Criminal Appeal, 21 February 1990) the victim was killed instantly by a gunshot wound to the head in the kitchen of a house.  The offender then carried the body out to a shed, returned to the kitchen and obtained a knife, and then went back to the body, where he inflicted knife wounds upon it.  These events are recorded in the reasons of the Court of Criminal Appeal.  The trial judge was O’Bryan J, who passed sentence on 25 October 1989.  I have not been able to obtain a copy of the reasons for sentence, but a note in the Victorian Sentencing Manual, 2nd ed, para 28.103, suggests that the mutilation of the body with the knife was regarded by his Honour as an aggravating circumstance.

    [25]    Cummins, J has very recently had occasion to sentence a young man who murdered his grandmother by strangulation and then achieved ejaculation by having intercourse with her dead body: Director of Public Prosecutions v ADP [1999] VSC 120. The act of intercourse is referred to by his Honour a number of times, and described as an act of depravity, and it seems to me to have been treated as a circumstance of aggravation. In Director of Public Prosecutions v Giles [1999] VSC 118 the same learned judge had to sentence a man who had strangled his victim, raped her while she was unconscious and then, immediately after her death by strangulation, used a pair of scissors to mutilate her breasts, vagina and anus. The reasons for sentence make it plain that the mutilation of the body was treated as an aggravating circumstance. A few weeks later came Director of Public Prosecutions v McKee [1999] VSC 207, where Cummins J had occasion to sentence a murderer who had dismembered and otherwise mistreated the victim’s body. His Honour mentioned these acts as part of the circumstances which made the crime “especially serious”. The sequence of events in that case was that McKee killed the victim by shooting him in a house in Frankston North at about 8pm on 24 December and left the house; returned a few hours later and took the body to his own home in Langwarrin, where in the course of the day and night of 25 December he dismembered the body and burnt its parts on a barbecue; on 26 December sank the remains in a dam at Somers.[41]

    [39] [1999] 2 VR 258.

    [40] [1999] 2 VR 258, 264-265.

    [41]   Brooking JA referred to the decisions in R v Chan(1994) 76 A Crim R 252 and R v Haseloff (unreported, 10 April 1997) where it was decided that certain facts did not constitute aggravating factors.  I generally agree with his Honour’s comments concerning these cases.  I would only add that on my reading of Chan, the time between the murder and the conduct in question may have been more substantial than his Honour assumes, which may make the decision less unpalatable.

1. In R v Bangard, the appellant pleaded not guilty to a charge of murdering his female partner and, after a trial, was found guilty of manslaughter.  Very soon after her death he had removed her clothing below the waist and laid her on her back with her legs open, thereby suggesting a sexual motive for the attack.  The appellant told ambulance police officers that he had returned from the supermarket and found her dead; he suggested to police that a former boyfriend of Ms Hayes had “constantly bashed and raped” the deceased and had attempted to contact her a couple of weeks prior to her death.  Buchanan JA (Eames and Nettle JJA agreeing) said:[42]

   [16]    The false trail laid by the appellant after the commission of the crime was an aggravating factor, involving as it did the arrangement of the deceased’s body to suggest that she had been sexually assaulted and the attempt to cast suspicion on a number of entirely innocent persons.

   [42] (2005) 13 VR 146.

2. The approach to defiling or dismembering bodies adopted in DPP v England has been followed in Victoria in DPP v Stevenson;[43] in New South Wales in R v Yeo[44] and Knight v The Queen;[45] and in the Northern Territory in R v Syrch and Burns.[46]

   [43] [2008] VSC 30 at [18].

   [44] [2003] NSWSC 315.

   [45] (2006) 164 A Crim R 126.

   [46] (2006) 18 NTLR 160.

   Failure to assist or summon medical help for a victim

3. It has also been recognised in South Australia on a number of occasions that failure to summon immediate medical attention may constitute an aggravating factor to the charge of inflicting the injury in question.

4. In R v Ironside,[47] the appellant was convicted of the manslaughter of his wife who died from a subdural haemorrhage caused by two injuries to her head inflicted by him.  In sentencing Judge Barrett found that:[48]

   Your offence is aggravated by your failure to call for medical help promptly, after it must have been very plain to you that your wife was badly injured by what you had done.  Her injuries probably occurred in the late afternoon of 30 September, perhaps around 5 o’clock.  You did not call the ambulance until just before 2am the next day, some seven hours later ….  It is plain that you feared the consequences of what you had done and put off calling for medical help ….  Nevertheless, it is by no means certain that medical help would have saved your wife.  It may well be that injuries that she sustained were inevitably going to lead to her death.  She died three days after being taken to the hospital.     (Emphasis added)

   [47] (2009) 104 SASR 54.

   [48]   Taken from the sentencing remarks of Judge Barrett settled on 1 August 2008.

5. On appeal, counsel for the appellant submitted that the delay in calling an ambulance could not be considered an aggravating circumstance in that such conduct, or inaction, amounted to an offence of criminal neglect, contrary to s 14 of the Criminal Law Consolidation Act 1935 and that it was necessary for the prosecution to have charged the offence as such before the conduct could be taken into account.  Doyle CJ rejected that contention and stated:[49]

   [15] I am by no means convinced that the delay in calling an ambulance could give rise to an offence under s 14 of the CLCA. But even if Mr Tokley’s submission on this point is accepted, manslaughter was the appropriate charge in the circumstances. A charge under s 14 was not the appropriate charge. To charge the offence of manslaughter and an offence under s 14 would, even if technically possible, rightly be seen as oppressive. In those circumstances it was appropriate for the Judge to have regard to Mr Ironside’s inaction after he inflicted the injury.[50]

   [49] (2009) 104 SASR 54, 59.

   [50]   Gray J, at [105], consistently with his previous decision in R v Foster (No 2) [2001] SASC 154, referred to the course taken by Judge Barrett without demur, and Kourakis J (as he then was) did not aversely comment upon it. Given that the appeal was dismissed, one may take it that the view of Doyle CJ was the view of the Court.

6. In sentencing remarks in R v Foster (No 2), Gray J stated:[51]

   Your conduct is aggravated by a number of factors.  You are of mature years.  Peter was left in your care for a short time by his mother.  He was only three years old.  He was totally vulnerable.  You abused your position of trust and power.  Having struck Peter, you must have been aware of his distress.  The medical evidence established that he would have suffered immediate and profound symptoms.  His distress would have been obvious.  You failed to summon immediate medical attention.  Even if you had, it is unlikely that Peter’s life would have been saved.  However your conduct was cowardly and despicable.   (Emphasis added)

   [51] [2001] SASC 154.

7. In sentencing remarks in R v McPartland and Polkinghorne,[52] Kelly J held that the failure to seek medical assistance for the deceased for over eight and a half hours after she lost consciousness made the initial offending which led to the child’s injuries more serious.[53]

   [52]   Reproduced in part, in R v McPartland and Polkinghorne (2014) 120 SASR 69. The term “aggravating feature” was not used. The matter was not the subject of comment in the Court of Criminal Appeal.

   [53] It may be noted in conjunction with the remarks above at paragraph [22], that the aggravated offences regime in s 5AA of the Criminal Law Consolidation Act1935 was introduced from 6 May 2006 and had been in place well prior to the sentencing of each of the persons Ironside, Foster, McPartland and Polkinghorne, confirming that the common law doctrine of aggravating factors continues to apply in South Australia parallel with the s 5AA regime..

   The principle in R v De Simoni

8. In R v De Simoni, Gibbs CJ (Mason and Murphy JJ concurring) stated:[54]

   … [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 of which he has not been convicted.  … The combined effect of the two principles, so far as it 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.

   [54] (1981) 147 CLR 383, 389.

9. As a matter of prudence, it is noted that in the judgment of this Court in R v Tranter (No 2)[55] it was emphasised that the De Simoni principle has been formulated in slightly different terms by the High Court in R v Olbrich, where Gleeson CJ, Gaudron, Hayne and Callinan JJ stated:[56]

   [18]    Finally, inquiring about what was done or intended by a person who imported drugs into Australia (apart, that is, from the acts which constitute the importation) will not always be relevant to sentencing that offender for the crime of importation.  The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of other offences in this country.  But it would be quite wrong to sentence an offender for crimes with which that offender is not charged.[57]   (Emphasis added)

   [55] (2014) 119 SASR 480.

   [56] (1999) 199 CLR 270, 278-279.

   [57]   Their Honours cited R v De Simoni at this point.

10. In Tranter[58] this Court considered the effect of Olbrich upon the application of the principle in De Simoni and approved the view taken of that matter in the New South Wales decisions of R v Guiu,[59] El-Ghourani v The Queen[60] and most recently in Tu v The Queen where McCallum J stated:[61]

    [138]  The common law principle reiterated in De Simoni is that circumstances of aggravation not alleged in the indictment cannot be relied upon for the purpose of sentencing if those circumstances could have been made the subject of a distinct charge: per Gibbs CJ at 389.7; 333.  The principle was implicitly reaffirmed in R v Olbrich (1999) 199 CLR 270; 108 A Crim R 464 at [18], where De Simoni was cited as authority for the unexceptionable proposition that “it would be quite wrong to sentence an offender for crimes with which that offender is not charged.”

    [139]  The applicant noted that, contrary to what appeared to be suggested in the submissions of the Crown, the principle applies even where the crime charged and the crime not charged carry the same maximum sentence: R v Guiu (2002) 129 A Crim R 387 at [38] per Greg James J, Barr J agreeing at [7]; and see Hodgson JA at [3]. It was stated in that case that, to the extent that observations to the contrary made by Hunt CJ at CL in R v Lawless (1994) (unreported, Court of Criminal Appeal, NSW, No 60808 of 1992, 24 June 1994) do not accord with the approach of the High Court in Olbrich, they are no longer to be followed.

    …

    [142]  The Crown submitted that it was appropriate for the judge to have regard to “the entire transaction”.  As correctly noted on behalf of the applicant, however, that approach must yield to the principle stated in De Simoni.  To the extent that the entire transaction brought into consideration complicity in the importation by way of aggravation, such conduct could plainly have been made the subject of a distinct charge and accordingly ought not to have been taken into account.  When that conduct is excluded from consideration, what remains is recognisably outside the worst category.

    [58] (2014) 119 SASR 480, 488-500.

    [59] (2002) 129 A Crim R 387, 398 (Greg James J).

    [60] (2009) 195 A Crim R 208, 216 [27]-[30] (Spigelman CJ, James and Simpson JJ concurring).

    [61] (2011) 205 A Crim R 566, 587-588. McClellan CJ at CL agreed with his Honour.

11. Accordingly, some parts of the judgments in cases such as R v Teremoana[62] may need to be treated with some caution.  However, this matter does not arise here since it has not been suggested that the appellant committed any offence other than homicide and it is unnecessary to say anything further on the topic.

    [62] (1990) 54 SASR 30, 36.

    Application of the authorities to the present case

12. The appellant variously gave evidence that before he left, he thought that Ms Rogan was apparently dead, or may have been dead.[63]  Even if one accepts the former claim at face value, such a belief could not prevent his departure without calling an ambulance being an aggravating factor here for a number of reasons.

    [63]   Thus the appellant stated in answer to a question in cross-examination as to what was he panicking about: “I may have accidentally killed Dianne.” This passage appears below at paragraph [77].

13. First, and sufficient in itself, the authorities take a common and moral sense, rather than a technical, approach to drawing a line in these cases.

14. Second, as Duggan AJ noted, there could really be no certainty as to whether medical assistance could help or not.  The appellant himself had administered CPR to the deceased because he thought that that procedure might save her. 

15. Apart from some knowledge of CPR, the appellant had no medical qualifications and his evidence that he thought Ms Rogan was dead has very little bearing on the question of whether medical attention might have saved her.  Indeed, the appellant’s evidence concerning his attempt to perform CPR instils very little confidence at all in his expertise in the limited area of giving CPR, let alone any wider expertise:

    Q     Had you, yourself, had any training in CPR?

    A     Yes.

    Q     And in what circumstances?

    A     OneSteel.

    Q     You mean when you were working for OneSteel in the BHP period?

    A     Yes.

    …

    Q     Can you say for how long you attempted the CPR?

    A     It was a long time.  I couldn’t tell you exactly.

    Q     During this time were you yourself naked?

    A     Yes.

    QDid you make the attempt on just one side of her in terms of your location or on both sides?

    AIt was when I was checking for breath at one stage I thought I could feel her breathing on the cheek but it wasn’t, it was the breeze coming across from the lane side of the property, and so I move to the other side and it was also then I realised that I had my compression ratios wrong as well, it was meant to be 15 to 2, a single person, and I had to get - I had only been trained - or the way we all conducted our training was on the right-hand side of a mannequin and I was on the left, so I was all back to front.  And the other reason why I went on that side of her was to block the breeze with my body to see if I was feeling breath.

    Q     Is there an expression ‘the recovery position’?

    A     Yes.

    Q     Did you attempt to put her in that position?

    A     Yes, but I’d forgotten how.

    Q     So what in fact did you do, what position did you put her in?

    A     I don’t know.

    QIn terms of what you had been taught at work had you been taught a recovery position?

    A     Yes, but I couldn’t remember at the time.

    Q     So what position did you put her in?

    A     None.

    QYou’ve said that you continued or attempted CPR for a period of time.  Are you able to estimate how long that was?

    A.    No, not accurately.   (Emphasis added)

16. I consider that the first contention is wrong as a matter of principle and contrary to authority.  I move to the second contention.

    The contention that the appellant may have left because of the combined effect of intoxication and panic

17. The Judge accepted that the appellant was drinking a lot during that evening and that he was to some extent intoxicated.  But it was never suggested that his intoxication was such as to prevent him from making rational decisions and carrying out willed acts.  He gave evidence that he was rolling cigarettes and smoking them while in the spa; that he was talking with the deceased; that he had full sexual intercourse with the deceased; that he checked Ms Rogan’s vital signs when he got her out of the spa; that he gave CPR to the deceased over a lengthy period; and that he walked home.

18. The appellant gave the following evidence on the topic of why he left the scene in circumstances where he knew that his own family lived right next door and were certainly home that night:

    QYou’ve said that you continued or attempted CPR for a period of time.  Are you able to estimate how long that was?

    A     No, not accurately.

    QAre you able to say whether it was more than five or ten, or 20 minutes, what did it feel like?

    A     It felt like a really long time.

    Q     At some point did you stop?

    A     Yes.

    Q     Why did you stop?

    A     When I realised she wasn’t responding.

    Q     How did you feel at that stage?

    A     I was crushed.

    Q     So what did you do?

    A     I just got dressed and left.

    Q     Why did you get dressed and leave?

    A     I don’t know, I just panicked.

    Q     Where did you go?

    A     Home.

    Q     How did you get home?

    A     I walked.

    Q     How long did that take you?

    A     I don’t know.

19. The appellant gave the further evidence in cross-examination:

    QHow far away were your parents, do you think, at the time you were doing the CPR, in distance?

    A     40 m.

    Q     Any reason to think they weren’t at home?

    A     No.

    Q     Any reason to think they wouldn’t hear you if you called out?

    A     I don’t think they would have been able to hear me if I called out

    Q     Did you try?

    A     To call out?  No.

    Q     Why not?

    A     I never considered it.

    Q     Why not?

    A     I don’t know.

    …

    Q     You had a mobile phone, yes?

    A     Yes.

    QIt was near enough and available enough that you could pick it up when you left; yes?

    A     Yes.

    Q     You weren’t worried about being blamed for anything unfairly, were you?

    A     I don’t know.

    Q     Why didn’t you phone an ambulance?

    A     I don’t know, I just panicked.

    Q     What were you panicking about?

    A     That I may have accidentally killed Dianne.

    QBut it was an accident.  Why didn’t you pick up the phone, call 000 and say ‘There’s been an accident’?

    A     I don’t know.

    QIn all that time compressing her chest, do you say it never crossed your mind once to call 000?

    A     No, it never.

    Q     You have no explanation for that, apart from saying that you were panicked?

    A     I don’t know.

    Q     Did you calculate that she was already dead and there was no point?

    A     Yeah, after a while it became apparent, yes.

    …

    HIS HONOUR

    Q     When did you first think she might be dead?

    A     When I got her onto the lawn area and that’s why I started CPR.       

    (Emphasis added)

20. It is to be noted that the appellant did not attribute his decision to leave to intoxication but rather to “panic”.  Indeed, when asked why he told lies to police two days later on Sunday, 14 July 2013, he also gave as his reason that he then “panicked”.

21. As to this second contention, it may be accepted that the prosecution must establish the facts constituting an aggravating factor, but here the essential conduct relied upon was clearly proven: the accused left without summoning help in circumstances where his parents were literally next door; the appellant did not claim to be acting as an automaton or that he was unable to make decisions. 

22. If, as I have decided, the appellant’s first contention is to be rejected, and the conduct of the appellant can constitute an aggravating factor, a claim that the accused “panicked” or was intoxicated does not prevent proof of an aggravating feature.  It simply requires the Judge to decide as to what degree, if at all, the conduct did aggravate the offending having regard to all matters, including any effects of panic and intoxication.

    Conclusion as to ground 2 of appeal

23. It is settled law that one is to assess whether conduct constitutes an aggravating factor as a matter of degree and by reference to considerations of common sense and morality, rather than technical considerations.

24. Here, the appellant chose to abandon the deceased without any attempt to summon medical assistance in circumstances where he had a mobile phone and his parents lived just next door.  Rather, he “dumped” the deceased, not in the sense of concealment somewhere in the bush, but in the sense of defiling her.  He left a woman, with whom he had just had sexual intercourse, naked and at least unconscious, in circumstances where her body would likely be found by a family member causing serious distress.[64]

    [64]   That matter of likelihood at the time of the appellant leaving the scene in fact came to pass but, as the Judge appreciated, the aggravating factor only comprises the circumstances of leaving the scene but not later developments.

25. I consider that the Judge was correct in considering this conduct to be reprehensible and a serious aggravating factor of the offence of manslaughter.[65]

    [65]   There is a distinction between murder and manslaughter here.  A verdict of manslaughter may not, by reference only to the cause of death and accompanying mental intent, necessarily connote a high degree of moral culpability and the presence of aggravating factors may, in some cases, play an important part in sentencing.  By contrast, a verdict of murder connotes per se a high degree of moral culpability and the presence of aggravating factors may, in some cases, play a somewhat less important part in sentencing for that reason.

    GROUND 3 OF APPEAL

    (3)     Did not have due regard to the offer to plead guilty to manslaughter whilst the matter was still in the Magistrate’s Court.

26. The appellant here contends that an offer to plead guilty to manslaughter in satisfaction of the Information made prior to trial was “co-operation with the prosecution” amounting to a special reason under s 32A(3)(c) of the Act warranting a non-parole period less than 80 per cent of the head sentence as is otherwise required and also as a factor tending to reduce the head sentence itself.

    The need for specificity and proper recording of a plea proposal

27. In R v Hansen, White J stated:[66]

    [37]    I add that any offer to plead to a lesser offence which an accused wishes to have taken into account if convicted of that offence should be communicated in clear terms and preferably in writing.  A sentencing court should not have to resolve disputes about whether an offer was made or the terms of any offer.  In particular a sentencing court should not have to determine disputes between counsel as to the content or effect of their oral discussions.

    [38]    I emphasise also that these reasons are directed to offers to plead to a lesser offence.  Something less than a formal offer, such as a “sounding out” or an “invitation to treat” should not attract the allowance referred to in the authorities.

    [66] (2011) 206 A Crim R 54, 62-63.

1. I might say that I did not then envisage that one day it might be argued, in the stark context of a trial by Judge alone, that an appellant had in fact “co-operated” with the prosecution despite the trial Judge’s later findings of fact (upon which the verdict of manslaughter is based) that important parts of the defendant’s version given in evidence were deliberately false, which falsity had also been a central part of the factual proposal rejected by the prosecution.

2. However, that is what is now being argued here.  I accept that my words “general sentencing principles do require an allowance to be made …” were too general and would best be replaced by the words “general sentencing principles do require consideration of whether an allowance should be made …”.

3. I note that the same sort of difficulty, albeit less stark, has arisen in a group of three further South Australian cases: R v Hansen,[79] R v Franklin[80] and R v Wheeler[81] and I turn to consider those decisions.

   [79] (2011) 206 A Crim R 54.

   [80] (2012) 114 SASR 206.

   [81] [2015] SASCFC 83.

4. In the third decision of Wheeler, Stanley J summarised the previous decisions of Hansen and Franklin thus:[82]

   [82] [2015] SASCFC 83.

   [38]    In R v Hansen, White J, in a dissenting judgment, undertook a review of the authorities which support the principle that an unaccepted offer to plead guilty to the offence of which an accused is ultimately found guilty is to be regarded as mitigatory.[83]  However, his Honour considered the application of that principle to be subject to the existence of other relevant factors, including the timing of the offer (and, in particular, its proximity to the trial), any terms or conditions attached to the offer, the circumstances in which the offer is made and the conduct of the accused in the trial.[84] 

   [83] (2011) 206 A Crim R 54, 60 [26] – 62 [32].

   [84] (2011) 206 A Crim R 54, 62 [33].

   [39]    Vanstone J, with whom Sulan J agreed, considered that there was no reason why the sentencing judge was obliged to give credit for the applicant’s unaccepted offer to plead guilty.  Her Honour did so on the basis that the accused’s evidence at trial departed from the basis for the plea put by way of offer.[85]

   [85] (2011) 206 A Crim R 54, 56 [8] – 57 [10].

   [40]    In R v Franklin, Sulan J gave further consideration to this issue.  Referring to the court’s earlier reasons in Hansen, he said:[86]

   A reason for there being no rule of practice requiring a sentencing Judge to give credit for an offer to plead guilty to a lesser offence than that charged, or to plead guilty to some counts charged if other charged counts are discontinued, is that each case must be considered according to its circumstances.  In some cases, what counsel characterise as an offer to plead amounts to no more than a discussion between counsel sounding out the prosecutor as to a possible resolution.  In many case, the approach is made by defence counsel, without specific instructions.  In such circumstances, the sometimes described offer is no more than a general preliminary discussion.  There is no basis in such circumstances for a defendant to obtain a reduction of the sentence. 

   Another example is an offer to plead guilty, but on a factual basis which is unacceptable to the Director.  If, ultimately, the defendant is convicted after a trial, there may be circumstances where it is clear that the underlying factual position, as put by the Director in the defendant’s original offer, is the same.  Some credit for the defendant’s offer to plead will be appropriate in such a case.

   If the result of the trial is as was anticipated when the defendant offered to plead, then some credit should be given for cooperation and the offer.

   In order to ascertain whether a sentence should be reduced, the Court needs to know when the offer was made, the exact terms of the offer, the underlying factual basis to the offer, and any other relevant information.  Correspondence between the defendant’s legal advisers and the Director should be provided to the judge.  The preferred position is for the defendant to plead guilty and for the Director to indicate why the plea is not accepted.  The basis of the plea and the reasons for a refusal to accept it in answer to the information will be a matter of record.

   …

   In my opinion, in an appropriate case, a sentencing judge may take into account an unaccepted offer to plead guilty to a lesser offence which matches the verdict at the trial.  However, the preferable course for a defendant to take is to plead guilty before the judge.  There can then be no doubt about the basis of the plea and, if rejected by the Director, the judge will know why it was rejected.

   [41]    In R v Franklin, White J reaffirmed his reasons in Hansen that there will be circumstances in which unaccepted pre-trial offers by defendants to plead guilty to alternative offences may warrant a reduction in the sentence if they are the offences of which the defendants are found guilty.[87]  Nicholson J agreed with White J.[88]

   [86] (2012) 114 SASR 206, 212 [23] – 213 [29].

   [87] (2011) 114 SASR 206, 215 [43].

   [88] (2012) 114 SASR 206, 220 [72].

5. The matter of s 32A(3)(c) of the Act was raised only in R v Hansen. Vanstone J (with whom Sulan J concurred) considered that the sentencing Judge was correct in not giving any credit (either in reduction of the mandatory 80 per cent non-parole period as “co-operation” under s 32A(3)(c) or in computation of head sentence):[89]

   [9]     … The appellant went to trial claiming that, at the time he struck the deceased, he was not adverting to the fact that he was holding the scissors.  In other words, his defence was that he thought he was merely punching the deceased and that he was doing so in genuine self-defence.  Had that account been found by the jury to be reasonably possible, then he would have secured a complete acquittal.  The departure from the terms of the earlier offer tends to suggest that the offer was made as a matter of tactics, rather than being a demonstration of contrition and remorse.

   [10]    Particularly in circumstances where the appellant’s evidence at trial departs from the basis for the plea put in the letter of offer, I see no reason why a sentencing judge is obliged to give credit.  Indeed, I would tend to equate the weight which might be attached to the offer to plead guilty here to that which might be afforded a defendant who is frank in interview with police about his involvement in the relevant event, but yet goes on to defend the charge.  I do not consider that the judge was obliged to give any credit for the offer, or to mention it in his sentencing remarks in the context of arriving at a head sentence or non-parole period.   (Emphasis added)

   [89] (2011) 206 A Crim R 54, 57.

6. White J (dissenting) considered that the departure was not so serious as to entirely disqualify the appellant from a reduction of the head sentence but declined to reduce the mandatory 80 per cent non-parole period requirement under s 32A(3)(c).

7. In Franklin, White J (with whom Nicholson J concurred) considered that the appellant was entirely disqualified from receiving any discount.  His Honour stated:[90]

   [49]    The second relevant matter is the appellant’s post‑offer conduct.  At the trial the only issue concerning the two drug offences was the appellant’s assertion that he believed the child to be an adult.  A plea of guilty by the appellant to the offences of supplying cannabis to the child would have involved an acknowledgment by him that he did not have a reasonable belief that the person to whom he made the supply was an adult.  Yet, in his sworn evidence at the trial, the appellant asserted that at the time of the supply he had believed that person to be about 20 years old.  He continued that assertion after being convicted when being assessed by the psychologist, Dr White, in relation to the submissions to be made on his behalf on sentence.  Post‑offer conduct of this kind limits markedly the value of any pre‑trial offer.  That was the view which the sentencing judge took when he said:

   Your counsel further put that you had previously offered to plead guilty on certain terms but that that offer had not been accepted.  Whatever might be said about that, when the matter came to trial you maintained the firm belief that the child was an adult and you continued to maintain that view in your discussions with Dr White.

   [50]    It is implicit in this passage that the judge considered that whatever value the pre‑trial “offer” may have had was undermined by the appellant’s later conduct.  In my opinion, the judge’s conclusion in this respect was correct.

   [90] (2012) 114 SASR 206, 215.

8. In R v Wheeler, the jury acquitted the appellant of the charge of murder but found him guilty of manslaughter.  Shortly before the trial, the appellant had offered to plead to manslaughter on a certain basis of fact.  The trial Judge refused to give any credit for the appellant’s offer to plead to manslaughter and the court upheld that refusal.  Stanley J (with whom Gray and Peek JJ concurred) found that there was no error demonstrated on the part of the sentencing Judge in not giving any credit for the applicant’s offer to plead guilty to manslaughter just before the commencement of the trial.  His Honour stated:[91]

   [42]    In this matter the offer to plead guilty to manslaughter was made very late.  More importantly, it was made on the basis that the deceased was killed accidentally.  The basis of the offer to plead was that the deceased had advanced on the knife and walked into it.  The prosecution was not prepared to accept the plea on that basis.  The applicant gave evidence at trial on that basis. 

   [43]    In these circumstances, the exception to the sentencing principle identified by White J in Hansen and Sulan J in Franklin is established.  The terms of the offer, the circumstances in which the offer was made and the conduct of the applicant at trial deprive him of any credit for his offer to plead guilty to manslaughter. 

   [91] [2015] SASCFC 83.

9. Consonant with those three decisions, I consider that the Judge’s decision in the context of the s 32A(3)(c) argument was plainly correct and that that approach equally governed the situation pertaining to the head sentence. In my view, the present case is very much a fortiori to the case before the Court in Hansen and I consider that Vanstone J’s conclusion is entirely apt here:[92]

   I do not consider that the judge was obliged to give any credit for the offer, or to mention it in his sentencing remarks in the context of arriving at a head sentence or non-parole period.   (Emphasis added)

   [92] (2011) 206 A Crim R 54, 57 [10].

10. As a final word, it seems to me that when considering what “co-operation” actually means, much depends on the context.  It is quite possible to talk of a number of persons co-operating with each other in a criminal enterprise but when one speaks of co-operation with the police or prosecutorial authorities, one means truthful and proper co-operation.

11. A useful parallel is provided by the decision of this Court in R v B, TB; R v J-M, AM.[93]  The Court was there dealing with a sentence appeal by two co-accused who had common grounds of appeal, except that B had an additional ground.  B had given a statement to police implicating both himself and his co–accused (which statement was disclosed to the co–accused) and offered to give evidence against him.  That became unnecessary when the co–accused subsequently pleaded guilty.  B’s complaint was that the sentencing Judge had given him no credit for making the statement and the offer to give evidence.

    [93] [2013] SASCFC 40.

12. However, it was demonstrated that part of B’s proffered evidence was untrue, it being an attempt to lay an additional portion of the blame on the co-accused and to lessen that falling upon himself.  The judgment of the Court is fairly lengthy and refers to a number of authorities; I reproduce a short extract only:[94]

    [94] [2013] SASCFC 40.

    [44]    It is the usual practice of courts to make a reduction in the sentence for an offender who has cooperated with authorities.  The primary policies behind extending such leniency are twofold:  to encourage offenders to cooperate with authorities and acknowledge the contrition and remorse of the offender.

    …

    [48]    It is to be observed that an offender who cooperates with authorities may still receive a reduction in his or her sentence where there is no evidence of contrition or remorse.

    …

    [51]    We accept the principle that the discount given is to encourage co-operation with the authorities by offenders and that in general such co-operation should be seen as being rewarded even though the offer is entirely out of self-interest and in fact manifests no contrition at all.

    [52]    However, an offer to assist the prosecution and to give evidence must be an offer to give truthful evidence.  The statements in Cartwright, to which we have referred, must be considered in the context of the principle that the courts are not in the business of rewarding offenders for attempting to deceive the courts by deliberately falsifying the role of a co-accused so as to improve their own position.  This principle is reflected in the statement in Cartwright that what is to be encouraged is “full and frank cooperation” on the part of the offender.

    [53]    We also note the observations in Cartwright which prefaced the passage set out above:[95]

    Of course, the last thing that should be laid down by any appellate court in relation to the sentencing process is some cast-iron code to be applied to every one of the multitude of different situations with which sentencing judges are concerned in individual cases.  A sentencing judge has a very wide discretion indeed, and in no sense should any of the decisions of this Court be construed as intending to circumscribe the exercise of that discretion in the particular case.

    [54]    The consideration of the additional complaint by B on appeal must pay close attention to the above matters.

    …

    [62]    We conclude that B had gone through a very deliberate and active process of providing the police with a statement which contained a number of serious lies about the respective participation of himself and J-M.  In our view, B’s offer to give evidence was made out of self-interest alone and did not manifest genuine contrition.  The Judge was not obliged to treat B’s offer as evidence of his genuine contrition.         (Emphasis added)

    [95]   R v Cartwright (1989) 17 NSWLR 243, 252.

13. The Court also decided that, in all of the circumstances, B was not entitled to credit for the giving of his statement on a utilitarian basis.

14. Obviously, as the Court observed in a passage above, a “sentencing Judge has a very wide discretion indeed, and in no sense should any of the decisions of this Court be construed as intending to circumscribe the exercise of that discretion in the particular case.”  But as to the general matters that should be taken into account in assessing what “co-operation” means, and how credit for it should be assessed, the decision in R v B, TB; R v J-M, AM[96] may be of some limited use.

    [96] [2013] SASCFC 40.

    GROUND 1 OF APPEAL – MANIFESTLY EXCESSIVE

    (1)     That the sentence was manifestly excessive

15. The appellant referred to the recent decision of this Court in R v Wheeler.[97]  The Judge there imposed the same sentence as in the present case, 15 years imprisonment with a 12 year non-parole period and this Court refused to interfere with that sentence.  Stanley J (with whom Gray and Peek JJ concurred) stated: 

    [97] [2015] SASCFC 83.

    [30]    The maximum sentence for manslaughter is life imprisonment and/or a fine.  The maximum sentence prescribed for an offence provides a yardstick that allows a comparison between the worst possible case and the case under consideration.[98]  Further, as the sentencing judge correctly identified, there is no tariff for the crime of manslaughter.  The basis for findings of guilt of manslaughter and the circumstances of such crimes differ widely.  There is much room for the exercise of discretion in imposing a sentence for this offence.  That must be all the more so where a sentence is imposed following a trial in which all aspects of the offending have been explored in evidence.[99]

    [31]    The applicant put before the court a comparative table of sentences for manslaughter imposed in this State since 1999.  The court was invited to conclude, by reference to this material, that the head sentence was manifestly excessive.  Although in some appeals analyses of this kind may be useful,[100] they are of little assistance in cases of the present kind given the range of culpability involved in the offence of manslaughter.  In R v Lavender[101] Gleeson CJ, McHugh, Gummow and Hayne JJ said:[102]

    For more than 100 years, judges in all Australian jurisdictions, and in England, have observed that, of all serious offences, manslaughter attracts the widest range of possible sentences.  The culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder or … it may be such that a nominal penalty would suffice. 

    [32]    In R v Weinman[103] King CJ observed that the facts and circumstances of a crime of manslaughter are so varied that it is questionable whether decisions of an appellate court can establish any intelligible standards. 

    [33]    Consideration of the sentencing table indicates, in a general way, that the head sentence is relatively high.  But the Court does not interfere to reduce a sentence simply because it regards a sentence as high or severe, or on the basis that it would not have imposed as lengthy a term of imprisonment as the sentence under appeal.  It will only interfere where it is satisfied the sentence is so high as to be outside a reasonable range of sentences for the offence. 

    [34]    This offending occurred in the context of a violent, drunken rage.  The jury plainly had a reasonable doubt that the applicant had the requisite intention to kill or inflict grievous bodily harm upon the deceased.  Nonetheless, they must have accepted that in brandishing the knife in her direction he was committing an unlawful and dangerous act carrying with it an appreciable risk of serious injury.  This occurred in a context where the judge was entitled to find, as she did, that he was in a jealous rage and harboured a murderous intent towards Mr Gallagher who the deceased had been flirting with that night.

    [35]    In this case the applicant inflicted only the single fatal blow and this occurred in the context where he was heavily intoxicated and immediately remorseful.  Nonetheless, I consider that while the head sentence imposed was at the high end of the wide permissible range for sentencing for this offence, it was not manifestly excessive. 

    [98]   Markarian v The Queen (2005) 228 CLR 357, 372 [30]-[31].

    [99]   R v Hansen (2011) 206 A Crim R 54, 56 [7].

    [100] Yardley v Betts (1979) 22 SASR 108 (King CJ) at 110 – 111; R v McLachlan [2004] SASC 277 (Doyle CJ) at [30] – [31].

    [101] (2005) 222 CLR 67.

    [102] (2005) 222 CLR 67, 77 [22].

    [103] (1987) 49 SASR 248 (King CJ) at 248. See also R v Goulding [2007] SASC 60 (Gray J) at [18].

16. The appellant sought to point to differences between the present case and Wheeler in favour of the appellant, but equally it can be said that there are other differences pointing the other way.  This is a rather fruitless exercise.  The essential question here is whether it can be established that the decision of the sentencing Judge was outside the permissible range of discretion and, as emphasised in Wheeler and many other decisions, the range of sentence available in manslaughter cases is particularly broad.

17. I have had close regard to all of the matters relevant to this ground of appeal in both the written and oral submissions for the appellant.

18. I conclude that it has not been demonstrated either that the head sentence is manifestly excessive or that the Judge erred in not reducing the non-parole period to below the mandatory 80 per cent of the head sentence.

    Disposition of the appeal

1. I would dismiss the appeal.

2. STANLEY J:  I would dismiss the appeal.  I agree with the reasons of Peek J.

3. PARKER J:  I agree with the reasons of Peek J and would dismiss the appeal.