R v Brusnahan - [2017] SASCFC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BRUSNAHAN
[2017] SASCFC 117
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)
8 September 2017
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - APPROACH TO SENTENCING PROCESS - SENTENCING METHODS
CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF GUILTY - EFFECT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Application for permission to appeal against sentence by Director of Public Prosecutions. The respondent was sentenced for eight offences (counts 1 to 8) namely three counts of assault, two counts of aggravated assault, and a single count each of property damage, aggravated affray and recklessly causing serious harm to another. The charges arose from a course of alcohol fuelled violence committed on one evening.
The respondent pleaded guilty to counts 1 to 7 in the Magistrates Court on 3 July 2015. Count 8 was originally charged as an offence of causing serious harm with intent to cause serious harm. The respondent was arraigned in the District Court on count 8 on 3 August 2015 and pleaded not guilty. However, on 23 August 2016, the day after the trial was due to commence, he pleaded guilty to the alternative offence of recklessly causing serious harm. The plea was accepted by the Director in full satisfaction of the District Court Information filed on 3 August 2015.
For count 8, the Judge imposed a sentence of three years and six months, reduced by 30 per cent from five years for the respondent’s plea of guilty. His Honour set a non-parole period of 12 months for this offence. For counts 1 to 7, the Judge imposed a single sentence of eight months, one week and four days, reduced by approximately 30 per cent from a starting point of 12 months on account of the pleas, to be served wholly concurrently with the sentence imposed for count 8. The Judge declined to set a non-parole period in relation to counts 1 to 7 because the sentence was less than 12 months.
The Director of Public Prosecutions has applied for permission to appeal on the grounds that: the Judge erred in discounting the head sentence for count 8 by 30 per cent for the respondent’s plea of guilty; the non-parole period of 12 months is manifestly inadequate; the sentence for counts 1 to 7 is manifestly inadequate; and the Judge erred in ordering that the sentence for counts 1 to 7 be served wholly concurrently with the sentence imposed for count 8.
Held per Nicholson J (Kourakis CJ and Vanstone J agreeing), granting permission to appeal and allowing the appeal:
1. With respect to count 8, the respondent was only entitled to a maximum discount of 10 per cent as provided for in paragraph (f) of subsection 10C(2) of the Criminal Law (Sentencing) Act (1988). When the respondent was arraigned on 3 August 2015 on the Information charging the offence of causing serious harm with intent, it had been open to him to plead to the statutory alternative of recklessly causing serious harm.
2. Notwithstanding the respondent’s young age and positive personal circumstances, a non-parole period of 12 months was manifestly inadequate given all the circumstances.
3. Whilst not a ground of appeal, the correct approach to the fixing of a non-parole period where section 18A(2) applies is to impose a separate head sentence with respect to the prescribed designated offence but for the sentencing Judge to impose a single non-parole period with respect to the total period to be served and after having regard to all of the circumstances, including all of the offending.
4. A starting point of 12 months imprisonment for counts 1 to 7 was manifestly inadequate. These offences, considered in isolation from count 8, comprised a very serious course of criminal conduct.
5. Some scope for concurrency as between the sentences was warranted. However significant concurrency had already been effected by imposing a single sentence of 12 months for counts 1 to 7 pursuant to section 18A. To also allow this sentence to be served wholly concurrently with that for the count 8 offence was not justified. The order for total concurrency had the effect that the primary term did not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
6. The sentences imposed in the District Court are set aside and the respondent resentenced in the manner set out in paragraph [64] of the judgment.
Criminal Law Consolidation Act 1935 s 5AA, s 20, s 23, s 25, s 83C, s 85, s 274, s 285B, s 340, s 354; Criminal Law (Sentencing) Act 1988 s 10C, s 18A, s, 32, s 38; Juries Act 1927 s 7, referred to.
R v Wakefield [2015] SASCFC 10; (2015) 121 SASR 569; R v D, WD [2013] SASCFC 32; (2013) 116 SASR 99; R v Muldoon [2015] SASCFC 69; (2015) 123 SASR 1; R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, considered.

R v BRUSNAHAN
[2017] SASCFC 117
Court of Criminal Appeal: Kourakis CJ, Vanstone and Nicholson JJ
KOURAKIS CJ.

I would allow the appeal and join in the sentencing orders proposed by Nicholson J. I agree with the reasons.
VANSTONE J.
I agree.
NICHOLSON J.
Introduction and background
On 11 May 2017, Michael Brusnahan (the respondent) was sentenced in the District Court to imprisonment for three years and six months with a non-parole period of 12 months for eight offences committed on 19 September 2014. The Director of Public Prosecutions has sought permission to appeal against this sentence.
The offences comprised: counts 1, 2 and 7, being three counts of assault;[1] counts 3 and 5, being two counts of aggravated assault;[2] count 4, being one count of property damage;[3] count 6, being one count of aggravated affray;[4] and count 8, being one count of recklessly causing serious harm to another.[5] The aggravating factor in relation to counts 3, 5 and 6 was the respondent’s knowledge that, at the time of each offence, the victims were people of a particular vulnerability due to their employment as security officers.[6]
[1] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935, the maximum penalty for each of which is imprisonment for 2 years.
[2] Contrary to section 20(3) of the Criminal Law Consolidation Act 1935, the maximum penalty for each of which is imprisonment for 3 years.
[3] Contrary to section 85(3) of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for 10 years.
[4] Contrary to section 83C(1) of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for 5 years.
[5] Contrary to section 23(3) of the Criminal Law Consolidation Act 1935, the maximum penalty for which is imprisonment for 15 years.
[6] In accordance with section 5AA(1)(k)(i) of the Criminal Law Consolidation Act 1935.
The respondent entered pleas of guilty in relation to counts 1 to 7 in the Magistrates Court on 3 July 2015. However, the respondent was committed for trial in the District Court in relation to count 8. Count 8 was originally charged as an offence of causing serious harm with intent to cause serious harm.[7] The respondent was arraigned on this original charge and pleaded not guilty in the District Court on 3 August 2015.
[7] Contrary to section 23(1) of the Criminal Law Consolidation Act 1935.
On 23 August 2016, the day after the trial on count 8 was due to commence, the respondent entered a plea of guilty to the alternative offence of recklessly causing serious harm. The plea was accepted by the Director in full satisfaction of the Information filed in the District Court on 3 August 2015.[8]
[8] See sections 25 and 285B of the Criminal Law Consolidation Act 1935.
In relation to the offence of recklessly causing serious harm (count 8), the sentencing Judge imposed a sentence of three years and six months, reduced by 30 per cent from a starting point of five years on account of the respondent’s plea of guilty.[9] A “shorter than usual” non-parole period of 12 months was fixed with respect to this sentence.
[9] Purportedly in accordance with section 10C of the Criminal Law (Sentencing) Act 1988.
For counts 1 to 7, the Judge made use of the discretion available under section 18A of the Criminal Law (Sentencing) Act 1988. His Honour imposed a single sentence of eight months, one week and four days, reduced by approximately 30 per cent from a starting point of 12 months on account of the pleas. His Honour then observed that because this sentence was less than 12 months there was no need to set a non-parole period in relation to these offences. His Honour ordered that this sentence was to be served wholly concurrently with the sentence imposed for count 8. The period of imprisonment was not suspended and was backdated to commence 7 April 2017 when the respondent had been remanded in custody.
The Director has applied for permission to appeal on the following grounds:
1.   The Judge erred in discounting the head sentence for [count 8] by 30 per cent.
2.   The non-parole period of 12 months is manifestly inadequate.
3.   The sentence of eight months, one week and four days is manifestly inadequate.
4.   The Judge erred in ordering that the sentence for counts 1 to 7 be served wholly concurrently with the sentence imposed for count 8.
For the reasons that follow, I would grant permission, allow the appeal, set aside the District Court sentence and resentence the respondent.
Circumstances of the offending
The offending took place on 19 September 2014 at the Semaphore Palais Hotel. The respondent was present at the hotel with a companion.
The first two counts of assault arose from an incident in a bathroom at the hotel. The respondent, without apparent provocation, punched the first victim in the jaw after engaging in conversation. He then punched the second victim, who was the father of the first victim, near the left eye. Both victims were left bleeding. Security officers wearing body cameras attended at the bathroom. Footage from the body cameras captured the subsequent conduct of the respondent.
The footage shows the respondent and his companion being escorted from the hotel. As the security officers escorted the two men out the rear doors of the hotel, the respondent punched a security officer to the left cheek, breaking his earpiece. The respondent then kicked another security officer in the leg. This conduct was the subject of counts 3, 5 and 4, being the two offences of aggravated assault and the property damage offence.
The respondent and his companion left the area but shortly after returned to the front door of the hotel. Security officers approached the two men to prevent them from entering the hotel. The respondent yelled threats and abuse towards the security officers and acted in an aggressive manner. He adopted a boxing stance with closed fists and threw punches at the security officers who continued to block his movement towards the hotel entrance. The security officers did not engage in any acts of aggression towards the respondent.
A man, Mr L, came to stand between the respondent and the security officers. Mr L and the respondent were members of the same football team and it appears that Mr L was attempting to calm the situation. Mr L had his back to the respondent while he was speaking to the security officers when the respondent without warning ran up to Mr L and with a round arm punch hit him to the side of the head. Mr L spun around and fell backwards from the force of the punch hitting his head on the pavement. This gave rise to the third count of assault.
The respondent continued to yell aggressively at the security officers and tore off his shirt. The security officers tried to prevent the respondent and his companion from again moving towards Mr L and the hotel. The respondent and his companion moved away from the hotel and the security officers.
By this time, Mr G had approached and was bent over trying to offer assistance to Mr L who remained lying on the ground. The respondent, having walked some distance away, turned and walked back towards the group. He then strode purposefully towards Mr G and kicked him to the face with what the Judge described as a football style kick with full force. Mr G was not looking or protecting himself in any way and there was no forewarning. Mr G’s head snapped backwards and he fell to the ground, striking his head on the pavement. This act was the subject of the original count 8 charge of causing serious harm with intent to cause serious harm and the respondent’s later plea to the alternative offence of recklessly causing serious harm.
The eyewitness evidence and the body camera footage of the incident suggest that Mr G was unconscious before he hit the ground, giving some indication of the force behind the kick. In any event he made no attempt to protect himself from the fall. Mr G lay on the ground for a number of minutes before regaining consciousness. The respondent moved away from the area bragging about the kick as he left the scene.
Mr G was admitted to and released from hospital that night. However, he was readmitted when his condition deteriorated approximately one week later. He suffered three fractures to the base of his skull and bleeding into his brain cavity. He received a moderate to severe traumatic brain injury which required monitoring by a neurosurgical team and ongoing rehabilitation.
Mr G suffered post traumatic amnesia and has no memory of the incident or its aftermath. He continues to suffer from memory loss and from a change to his personality. He was unable to work, drive a car or ride a motorbike for a long period as a result of his injuries. The victim impact statements of Mr G and his mother set out in detail the significant ongoing consequences of the offending for Mr G and his family.
The respondent’s personal circumstances
At the time of sentencing, the respondent was 23 years of age. He was 20 at the time of the offending. He has no prior convictions of any consequence.
The respondent was born in Adelaide and grew up in a supportive family with his parents and two brothers. His parents and extended family encouraged him in his education and his engagement with his Aboriginal heritage.
The respondent excelled at sports from a young age, in particular athletics and football. He is a talented sprinter and has represented South Australia at national level on numerous occasions. Character references before the Judge describe the respondent as showing great dedication to his training and to his support for and mentorship of other young athletes.
After leaving high school, the respondent secured a carpentry traineeship and then a full time carpentry apprenticeship. As at the time he was remanded in custody, the respondent had only five months remaining before completing his apprenticeship.
In October 2012, the respondent’s parents separated and his mother left the family home. The separation was acrimonious and the respondent was the only source of communication between his parents.
In the week preceding the offending, the respondent was told that his grandfather, who was suffering from a terminal illness and with whom the respondent was very close, was likely to pass away in the near future. Earlier on the night of the offending, the respondent’s mother had informed him that she would not be attending a party to celebrate his twenty first birthday the following evening. These incidents were said to have distressed the respondent and to have contributed to his very unsettled state of mind on the night.
The character references emphasised the respondent’s commitment to his family, in particular during the period following his parents’ separation, to his employment and to his athletics pursuits. A number of the references described his behaviour on the night of the offending as being out of character. Counsel had submitted to the Judge that the respondent generally abstained from alcohol because of his athletics training commitments. The Judge accepted that the respondent “deeply [regretted]” his offending.
The Judge’s approach to sentence
The Judge in his sentencing remarks summarised the circumstances of the offending and had particular regard to it having been unprovoked and directed at wholly innocent members of the public, security officers and a man who had come to the aid of another.
His Honour acknowledged the very positive personal circumstances of the respondent, his genuine regret and that the offending behaviour was aberrant. The Judge emphasised the seriousness of alcohol-fuelled violence and the importance of both personal and general deterrence in relation to offending of this nature.
The offence of recklessly causing serious harm is a prescribed designated offence.[10] As such, the Judge was unable to include this offence in any exercise of the discretion under section 18A of the Criminal Law (Sentencing) Act to impose a single sentence for the entirety of the offending.[11] The Judge was alive to this and, as earlier explained, sentenced for the count 8 offence separately from all of the other offences.
[10] Section 38(4) of the Criminal Law (Sentencing) Act 1988.
[11] Section 18A(2) of the Criminal Law (Sentencing) Act 1988.
The approach to a Crown application for permission to appeal
The principles relevant to the determination of a Crown application for permission to appeal against sentence are well understood. Permission to appeal will be granted only in rare and exceptional circumstances;[12] it is insufficient to demonstrate merely that an error has occurred. Permission should only be granted in order to establish some matter of principle, or where it is necessary to establish and maintain adequate standards of punishment for a crime, or to correct a sentence that is so disproportionate to the seriousness of the crime such that intervention is required to maintain public confidence in the administration of justice.[13]
[12] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299-300.
[13] R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [24], R v Payne [2004] SASC 160; (2004) 89 SASR 49 at [86].
Permission to appeal against sentence might still be granted where a particular sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, even though no general point of sentencing principle, or need to establish or maintain an adequate standard of sentencing for a particular offence or kind of offence, arises.[14]
[14] R v Osenkowski (1982) 30 SASR 212 at 212-213, R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [24], R v Cleaver [2016] SASCFC 43 at [17]-[18].
The issue of double jeopardy is a consideration relevant to the permission stage of a prosecution application. However, where permission is granted, double jeopardy considerations are no longer relevant at the resentencing stage.[15]
Consideration
[15] Section 340 of the Criminal Law Consolidation Act 1935,R v Harkin [2011] SASCFC 24; (2011) 109 SASR 334 at [35]-[37].
A preliminary issue
Whilst not a ground of appeal, the manner by which the Judge structured the sentence calls for comment. His Honour completed the sentencing process for count 8 including the fixing of a non-parole period before using section 18A to sentence for the other counts. In this latter respect, the Judge arrived at a sentence of less than one year and for this expressed reason declined to fix a non-parole period with reference to this separate sentence.

Section 18A is in these terms.
(1)If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
(2)However, if any of the offences for which the person is being sentenced is a prescribed designated offence, subsection (1) does not apply to the sentencing of the person for that offence (but nothing in this subsection affects the operation of subsection (1) in respect of the other offences).
(3)In this section—
prescribed designated offence has the same meaning as in section 38.
The offence of recklessly causing serious harm is a prescribed designated offence in accordance with section 38(4) of the Criminal Law (Sentencing) Act. By virtue of subsection 18A(2) it could not be included when imposing a single penalty for all or a number of the offences committed. A separate penalty for count 8 had to be imposed. However, this did not require the judge to set a separate non-parole period. Section 18A says nothing about fixing a non-parole period and section 32 militates against the fixing of separate non-parole periods. Whether, for multiple offences, a single sentence using section 18A is imposed or multiple sentences with orders for concurrency and accumulation are imposed, only a single non-parole period is to be fixed relevant to the total period of imprisonment ordered.
Section 32(1) of the Criminal Law (Sentencing) Act provides as follows.
(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a)     if the person is not subject to an existing non-parole period—fix a non-parole period; or
(b)     if the person is subject to an existing non-parole period—review the non-parole period and extend it by such period as the court thinks fit (but not so that the period of extension exceeds the period of imprisonment that the person becomes liable to serve by virtue of the sentence, or sentences, imposed by the court); or
(c)     if the person is serving a minimum term imposed in respect of an offence against a law of the Commonwealth or is liable to serve such a term on the expiry of an existing non-parole period—fix a non-parole period in respect of the sentence, or sentences, to be served upon the expiry of that minimum term.
In a case such as the present where section 18A(2) requires a separate penalty to be imposed for one of a number of offences, there are two potential approaches to the fixing of the non-parole period. In practical terms each approach should lead to the same result.
First, the two provisions, read together, might be construed as requiring a separate head sentence to be imposed with respect to the count 8 offence but to permit the sentencing Judge to impose a single non-parole period with respect to the total period to be served and after having regard to all of the circumstances, in particular, all of the offending. The second approach is, initially, to do what the Judge did and set a non-parole period solely with respect to the count 8 offence pursuant to section 32(1)(a) but to go on and, after using section 18A to sentence separately with respect to counts 1 to 7, to consider whether, in all the circumstances, that initial non-parole period should be extended pursuant to section 32(1)(b).
The first approach accords with longstanding sentencing practice in this State when sentencing on the one occasion for more than one offence but without using section 18A. In my view, there is nothing in section 18A(2), when construed in conjunction with section 32, to require that this longstanding sentencing practice be departed from in cases where section 18A(2) is to be applied. This is particularly so given that, as earlier indicated, each approach should lead to the same result in any event.
Returning to the Judge’s approach in this case, when fixing a single non-parole period it is important that all of the offending is taken into account when determining the minimum period necessary to be served in order to satisfy the purposes of punishment and the broad objectives of sentencing, having regard to the offender and the offending in question.[16] The Judge appears to have ignored counts 1 to 7 when undertaking this exercise. Given that his Honour ordered the sentence for counts 1 to 7 to be served wholly concurrently with the sentence for count 8, his Honour may not have seen fit to impose a non-parole period greater than the 12 months initially indicated in any event. However, such a conclusion does not necessarily or automatically follow and was excessively lenient in the circumstances of this case.
[16] For a summary of these purposes and objectives see generally, R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [4]-[7] (Doyle CJ).
Ground 1 – Reduction in sentence for plea to count 8
Subsections 10C(1) and (2)[17] of the Criminal Law (Sentencing) Act are in these terms.
[17] Subsections (3) to (6) do not arise for consideration on the facts of this case.
(1)This section applies to a sentencing court other than where section 10B applies.
(2)If a defendant has pleaded guilty to an offence or offences—
(a)     not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b)     more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(c)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending 12 weeks after the first date fixed for the arraignment of the defendant (other than in the circumstances referred to in paragraph (d))—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 20%;
(d)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
(e)     within 7 days immediately following—
(i)an unsuccessful application by or on behalf of the defendant to quash or stay the proceedings; or
(ii)a ruling adverse to the interests of the defendant in the course of a hearing of the proceedings,
determined during the period commencing on the day on which the defendant is committed for trial for the offence or offences and ending not less than 5 weeks before the commencement of the trial—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 15%;
(f)    in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
The applicant, contrary to the position put to the Judge,[18] now contends that the Judge erred in allowing a 30 per cent reduction rather than a maximum of 10 per cent on account of the plea to the offence of recklessly causing serious harm.
[18] The Judge was not assisted by the counsel below who were not counsel on appeal. In response to a direct query both counsel, without explanation, advised his Honour that a maximum discount of 30 per cent applied for all offences.
The applicant contends that it had been open to the respondent to enter a plea to the alternative offence upon his arraignment on 3 August 2015 and it followed, in accordance with section 10C(2)(f) of the Criminal Law (Sentencing) Act, that the maximum discount available for the plea nearly a year later was limited to 10 per cent.
The respondent contended that, pursuant to section 10C(2)(a) of the Criminal Law (Sentencing) Act, he was entitled to a discount of up to 40 per cent having entered a plea of guilty within four weeks of the new charge having been agreed to by the Director in place of the original charge. However, the Judge may have reduced the discount to 30 per cent given the lateness of the respondent’s guilty plea and by having regard to the discretionary considerations in section 10C(4). It was submitted, in the alternative, that a 30 per cent discount was available on the basis that the respondent’s first appearance on the offence for which he was sentenced was the date of his plea. Counsel submitted that, prior to this date, there had been no Information available either in the Magistrates Court or the District Court upon which the respondent could have entered a plea to the offence of recklessly causing serious harm.
I agree with the applicant’s submission to the effect that the respondent was only entitled to a maximum discount of 10 per cent.
In the Magistrates Court, the respondent was committed to the District Court for trial on the offence of causing serious harm with intent. He first appeared in the District Court on 3 August 2015 in answer to a fresh District Court Information of that date charging the respondent with this offence. By operation of sections 25 and 285B of the Criminal Law Consolidation Act, the respondent’s appearance in the District Court in relation to the fresh Information also marked his first appearance in relation to the alternative offence of recklessly causing serious harm contrary to section 23(3).[19]
[19] R v Wakefield [2015] SASCFC 10; (2015) 121 SASR 569, R v Muldoon [2015] SASCFC 69; (2015) 123 SASR 1.
It was not until more than 12 months later that a guilty plea to recklessly causing serious harm was entered and accepted by the Director.
This Court in R v Wakefield[20] explained why the offence of recklessly causing harm is not a common law alternative to the offence of causing harm with intent. The same reasoning applies where causing serious harm is an element of the two offences, as is this case. Section 25 of the Criminal Law Consolidation Act does provide for recklessly causing serious harm as a statutory alternative to causing serious harm with intent but its operation is confined to verdicts reached after trial, given by a jury or by a judge sitting alone, and to verdicts entered by the Court of Criminal Appeal.[21]
[20] [2015] SASCFC 10; (2015) 121 SASR 569 at [63] (Blue J with whose reasons Kourakis CJ and Peek J agreed).
[21] R v Wakefield [2015] SASCFC 10; (2015) 121 SASR 569 at [64]-[66], section 7(4) of the Juries Act 1927 and section 354 of the Criminal Law Consolidation Act 1935, R v D, WD [2013] SASCFC 32; (2013) 116 SASR 99 at [43]-[55] and [56]-[99] (Nicholson J with whose reasons Anderson and Peek JJ agreed).
It follows that, whilst the matter remained in the Magistrates Court, any plea to the statutory alternative could not have been accepted by the Director unless a fresh Complaint and Information charging that very offence was first filed. And this is so notwithstanding section 285B of the Criminal Law Consolidation Act which is in these terms.
Where a person arraigned on an information pleads not guilty of an offence charged in the information but guilty of some other offence of which he might be found guilty upon trial for the offence charged, and the plea of guilty is accepted by the prosecution, then (whether or not the two offences are separately charged in distinct counts)—
(a)the person may be convicted on the plea of guilty and his conviction shall operate as an acquittal of the offence charged; and
(b)if he has been placed in the charge of the jury, the jury shall be discharged without being required to give a verdict (unless the trial is to continue in respect of further counts that are unaffected by the plea); and
(c)he shall be liable to be punished for the offence of which he has been convicted in the same manner as if he had been found guilty of the offence upon trial for the offence charged.
The reasons why section 285B does not apply with respect to a Complaint and Information filed in the Magistrates Court were explained in R v Muldoon[22] by Kourakis CJ (with whose reasons Gray and Stanley JJ agreed). In short, the first reason is that the notion of an “Information” as used in the chapeau to section 285B is, in effect, confined by section 274(2) of the Criminal Law Consolidation Act to criminal Informations presented to the Supreme or District Courts. The second reason is that section 285B is confined to the situation where a person is “arraigned” and it is only in the Supreme and District Courts that a person is arraigned.[23]
[22] [2015] SASCFC 69; (2015) 123 SASR 1 at [28]-[39].
[23] A person appears in the Magistrates Court and may be asked to plead or answer a charge but is not arraigned.
To return to the facts of the present case, when the respondent was arraigned on 3 August 2015 on the fresh District Court Information charging the offence of causing serious harm with intent, it was open to him to plead to the statutory alternative of recklessly causing serious harm. Such a plea could have been accepted by the Director in full satisfaction of the information.[24] The respondent in fact pleaded to this alternative offence which plea was accepted, but only some 12 months or so later. It follows that none of the circumstances provided for in paragraphs (a) to (e) of section 10C(2) of the Criminal Law (Sentencing) Act applied and the maximum discount available was that provided for in paragraph (f).
[24] Section 285B of the Criminal Law Consolidation Act 1935.
Ground 2 – Manifest inadequacy of non-parole period
I have already commented on the unorthodoxy of setting a non-parole period solely by reference to the recklessly causing serious harm offence. However, the effect of the sentences imposed was that the respondent was sentenced to three years and six months imprisonment with a non-parole period of 12 months. The applicant contends that this non-parole period is so low as to be manifestly inadequate.
The applicant contends that the non-parole period, when viewed against the totality of the offending, fails to reflect the gravity of the offence, the maximum penalties available in relation to each offence, the need to protect the community, general deterrence and appropriate standards of punishment for alcohol-fuelled violent offending. Counsel for the applicant emphasised the importance of deterrence when sentencing for offending of this nature.[25]
[25] See, for example, R v Lutze [2014] SASCFC 134; (2014) 121 SASR 144 (Gray J), Donnelly v Police [2014] SASC 193 (Kourakis CJ).
The respondent contends, inter alia, that the non-parole period set by the Judge is appropriate in the context of the respondent’s youth, his lack of prior offending and his familial and community support.
In Hili v The Queen,[26] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed:
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”.
Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition ... .
[citations omitted]
Notwithstanding the respondent’s young age and very positive personal circumstances which call for a lenient approach, a non-parole period of 12 months was manifestly inadequate given all the circumstances.
[26] [2010] HCA 45; (2010) 242 CLR 520 at [59]
The number of offences, their serious nature, the fact that the respondent had opportunities to desist but chose to return, the sheer brutality and dangerous nature of the unprovoked attacks on Mr G and Mr L which took place without warning and whilst they had no means to protect themselves, and the now well understood risks of serious injury or even death associated with such attacks, all indicate that considerations of appropriate punishment, protection of the community, and both personal and general deterrence must assume significant weight when fixing not just the head sentences but also the non-parole period. A non-parole period of 12 months was below the range available for the offending with respect to this offender.
Grounds 3 and 4 – Counts 1 to 7, manifest inadequacy and concurrency
The respondent contends that the sentence imposed with respect to counts 1 to 7 is appropriate in the context of a head sentence of five years imprisonment imposed for the most significant offence committed during the course of conduct, the offence of recklessly causing serious harm. The respondent also contends that the fact that the Judge had to sentence for the recklessly causing serious harm offence separately from the other offending resulted in an artificiality such that the adequacy of the sentence imposed for counts 1 to 7 should not be considered in isolation.
Counsel for the respondent also submitted that it was appropriate to order that the sentences be wholly concurrent on account of the respondent’s youth and his lack of prior offending and having regard to principles of totality.
I agree with the respondent that the fact that a substantial sentence (five years) was imposed for the most significant component of the course of criminal conduct that night is a relevant consideration. However, I take the view that it is relevant to the question of whether permission to appeal should be granted after having regard to the sentencing outcome as a whole. It is not relevant to the question of whether the penalty imposed for counts 1 to 7 is manifestly inadequate.
Counts 1 to 7, considered in isolation from count 8, also comprised a very serious course of criminal conduct. For reasons similar to those already identified, a starting point of 12 months imprisonment was manifestly inadequate. This was exacerbated by the order for full concurrency. In Attorney-General v Tichy,[27] Wells J in a well known and well accepted passage said this.
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively. According to an inflexible Draconian logic, all sentences should be consecutive, because every offence, as a separate case of criminal liability, would justify the exaction of a separate penalty. But such a logic could never hold. When an accused is on trial it is part of the procedural privilege to which he is entitled that he should be made aware of precisely what charges he is to meet. But the practice and principles of sentencing owe little to such procedure; what is fitting is that a convicted prisoner should be sentenced, not simply and indiscriminately for every act that can be singled out and brought within the compass of a technically identifiable conviction, but for what, viewing the circumstances broadly and reasonably, can be characterised as his criminal conduct. Sometimes, a single act of criminal conduct will comprise two or more technically identified crimes. Sometimes, two or more technically identified crimes will comprise two or more courses of criminal conduct that, reasonably characterized, are really separate invasions of the community’s right to peace and order, notwithstanding that they are historically interdependent; the courses of criminal conduct may coincide with the technical offences or they may not. Sometimes, the process of characterization rests upon an analysis of fact and degree leading to two possible answers, each of which, in the hands of the trial judge, could be made to work justice. The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration.
[emphasis supplied]
[27] (1982) 30 SASR 84 at 92-93.

The respondent’s actions on the night can be viewed as one extended course of drunken violence. As such and given that a large number of individual offences resulted, some scope for concurrency was warranted. However, significant concurrency had already been effected by using section 18A to order the single penalty of 12 months in total for all seven offences. To also allow this sentence to be served wholly concurrently with that for the count 8 offence was not justified. Further, in this case, and as counselled against by Wells J, the primary term did not “adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration”.
Permission to appeal – Conclusion
Each of the applicant’s grounds of appeal has been made out. Each one considered in isolation might not be sufficient to justify a grant of permission. However, in combination they have led to a sentencing outcome that is so disproportionate to the seriousness of the crime committed such that this Court should intervene. Further, taken together they demonstrate a need for this Court to intervene in order to establish the correct principles on which the sentence in this case should be based. I have reached this conclusion notwithstanding that the respondent will be exposed to the double jeopardy of being twice sentenced for his offending.
I would grant permission to appeal, allow the appeal, set aside the District Court sentences and resentence the respondent.
Resentence
With respect to the offence of recklessly causing serious harm (count 8) and recognising that because of the respondent’s personal circumstances some leniency is warranted, I would start at imprisonment for five years, as did the Judge. I would reduce that by 10 per cent to four years and six months on account of the plea.
For counts 1 to 7 and using section 18A of the Criminal Law (Sentencing) Act, I would impose a single penalty of imprisonment for 15 months. I have arrived at that single penalty in the following way. For counts 1 to 6, I would start at 12 months and reduce that by approximately 30 per cent to eight months and two weeks on account of the pleas. For count 7, I would start at nine months and reduce that by approximately 30 per cent to six months and two weeks on account of the plea. The accumulation of these two components results in the section 18A penalty of 15 months for counts 1 to 7.
In order to accommodate the need for some further concurrency across all of the offences, I would order that six months of the section 18A sentence be served cumulatively on and to commence at the expiration of the sentence imposed for count 8. The balance of the section 18A sentence (nine months) is to be served concurrently with the sentence for count 8. With respect to the total period of imprisonment of five years, I would fix a non-parole period of two years and six months. I would backdate the sentence for count 8 so as to commence on 7 April 2017.
Final orders
I would make the following orders.
(i)Permission for the Director to appeal allowed.
(ii)Appeal allowed.
(iii)Set aside the District Court sentences.
(iv)The respondent is resentenced for the offence of recklessly causing serious harm (count 8) to imprisonment for four years and six months commencing from 7 April 2017.
(v)The respondent is resentenced for counts 1 to 7 inclusive to the one term of imprisonment for one year and three months.
(vi)The sentence in (v) is to be served as to nine months thereof concurrently with the sentence in (iv) but as to six months thereof cumulatively on and to commence at the expiration of the sentence in (iv).
(vii)A non-parole period of two years and six months is fixed commencing on 7 April 2017.