R v Campbell; R v Fowler - [2017] SASCFC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CAMPBELL; R v FOWLER
[2017] SASCFC 79
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Stanley)
7 July 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - FAILURE TO EXERCISE DISCRETION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
The appellants, Campbell and Fowler, appeal against their sentences.
Campbell was charged with aggravated unlawful detention, aggravated assault causing harm and aggravated blackmail. He pleaded guilty on the second day of trial to aggravated assault causing harm in satisfaction of those charges. In sentencing, the starting point adopted by the Judge was three years imprisonment. After discount for the plea of guilty that became two years, eight months and two weeks.
The same three charges were laid against Fowler. On the day trial was to commence she pleaded guilty to aggravated assault causing harm and aggravated blackmail in satisfaction of those charges. The starting point adopted by the Judge in sentencing her was four years and six months imprisonment. After discounts she was sentenced to imprisonment for three years and one month, with a non-parole period of one year and seven months.
During the course of the offending the appellants inflicted violence upon the victim over a considerable period of time as a result of a dispute regarding payment for methylamphetamine.
The appellants were sentenced by the same Judge. On appeal they submit that the sentences are manifestly excessive, that the sentencing Judge failed to have adequate regard to Campbell’s intellectual disability and Fowler’s mental disorders, and that the Judge erred in failing to suspend the sentences. Additionally Fowler submits that the Judge erred in not considering whether her sentence should be served on home detention and also erred in failing to allow the same discount as Campbell for her pleas of guilty.
Held (Vanstone and Kelly JJ) in relation to Campbell: Appeal allowed. The sentence is manifestly excessive having regard to the maximum penalty, the subsidiary role played by Campbell and his intellectual disability. A sentence of one year, 10 months and 21 days is imposed, with a non-parole period of one year.
Held (Vanstone, Kelly and Stanley JJ) in relation to Fowler: The appeal is dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 9A, s 10C(2)(f), s 18A, s 30, s 33BB; Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA), referred to.
Postiglione v The Queen (1997) 189 CLR 295; Lowe v The Queen (1984) 154 CLR 606; R v Dwyer (2015) 121 SASR 587; R v Lutze (2014) 121 SASR 144; Bugmy v The Queen (2013) 249 CLR 571, applied.
Kentwell v The Queen (2014) 252 CLR 601, distinguished.
Markarian v The Queen (2005) 228 CLR 357; Muldrock v The Queen (2011) 244 CLR 120; R v Mooney (Unreported, Court of Criminal Appeal (Vic), 21 June 1978); The Queen v Morse (1979) 23 SASR 98; Hili v The Queen (2010) 242 CLR 520; R v O’Toole [2013] SASCFC 18; R v Weatherill [2015] SASCFC 113; R v Filipponi (2016) 126 SASR 464; R v Dell (2016) 126 SASR 571; R v Hosking [2017] SASCFC 50; House v The King (1936) 55 CLR 499, considered.

R v CAMPBELL; R v FOWLER
[2017] SASCFC 79
Court of Criminal Appeal: Vanstone, Kelly and Stanley JJ
VANSTONE AND KELLY JJ.

These two appeals are against sentences imposed in the District Court after pleas of guilty.
Both appellants and a third defendant were jointly charged with and pleaded guilty to aggravated assault causing harm (maximum penalty five years imprisonment). The appellant Fowler pleaded guilty to a further count of aggravated blackmail (maximum penalty 20 years imprisonment).
The incident giving rise to the charges stemmed from the provision of drugs by the third defendant to the complainant. It extended over a significant period. The Judge accepted that Campbell was not a willing participant in the “extortion”. In relation to the charge common to both, the Judge found that Fowler was “clearly instrumental in initiating” the assault and that it was she who struck the complainant on the head with a can of beverage and threatened him with a knife.
The circumstances of the offending and the personal circumstances of each appellant are set out in some detail in the reasons of Stanley J, which we have had the benefit of reading. It is unnecessary for us to rehearse those matters.
For Campbell, the Judge took a starting point of three years. He deducted about 10 per cent to reflect Campbell’s plea of guilty. That left an effective sentence of two years, eight months and two weeks. It was reduced further to reflect nine days spent in custody. A non-parole period of one year and four months was set.
In sentencing Fowler the Judge used s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to impose one sentence for both offences. He took a starting point of four years and six months. He reduced that to four years, three months and three weeks to reflect her pleas, which were entered on the first day of her trial. This amounted to about five per cent. He made a small reduction for time on home detention bail and fixed a non-parole period of one year and seven months.
The appellant Campbell argues that the sentence imposed upon him is manifestly excessive, particularly when compared with the sentence imposed upon co-appellant Fowler. Counsel points particularly to the challenges facing the appellant in terms of his intellectual disability. Mr Balfour described that disability as being of borderline to mild severity, that is, in the bottom three per cent of the general population for the appellant’s age group. In addition, Campbell’s role in the offence was very much subsidiary to that of Fowler. We agree with Stanley J that the sentence is manifestly excessive. The sentence is more than half the maximum penalty, and does not recognise the two features of the offending we mentioned, namely the less significant role played by Campbell and his mental disability.
In Campbell’s case we would allow the appeal and resentence. We would take a starting point of two years imprisonment. We consider the reduction for the plea of guilty made by the Judge to be too generous. Campbell pleaded guilty on the second day of his trial. In our view a reduction of about five per cent from the starting point is more than adequate to recognise the facilitation of the ends of justice. This results in a head sentence of one year and 11 months. From that we would deduct nine days for time spent in custody, leaving a sentence to be imposed of one year, 10 months and 21 days. In recognition of the intellectual disabilities of the appellant we would fix a particularly low non‑parole period, being of the order of 50 per cent. That period is one year. For the reasons given by Stanley J the sentence should not be suspended.
In relation to the appellant Fowler we do not find force in any of the grounds of appeal. We agree in general terms with the reasons of Stanley J with respect to all grounds except the one dealing with the reduction for the pleas of guilty. In relation to that ground of appeal we consider that, for the reasons already expressed, a reduction of about five per cent from the starting point was quite adequate, having regard to the fact that Fowler’s pleas were entered on what was to be the first day of trial. It may be that the sentencing Judge made an arithmetical error in the reduction given for Fowler’s pleas of guilty. Perhaps he meant to give her a reduction of 10 per cent. Even so, the issue on appeal is whether the sentence is manifestly excessive and whether a different sentence should have been passed. We consider a reduction of more than five per cent for a plea on the day of trial or during trial to be unwarranted.
Therefore we would dismiss the appeal of Fowler.
Accordingly, the orders we make, in relation to Campbell, are,
1allow the appeal,
2set aside the sentence imposed in the District Court on the appellant Campbell,
3in its place, impose a sentence of one year, 10 months and 21 days imprisonment, with a non-parole period of one year.
In relation to the appellant Fowler we would,
1dismiss the appeal.
STANLEY J.
Introduction
These are appeals against sentence.
Mark Ian Campbell (Campbell) was charged with one count each of aggravated unlawful detention, aggravated assault cause harm and aggravated blackmail. Campbell pleaded guilty to aggravated assault cause harm at the commencement of the trial. The Director accepted that plea in full satisfaction of those charges. After discounts for the guilty plea and time spent in custody he was sentenced to imprisonment for two years, eight months, one week and five days with a non‑parole period of one year and four months, commencing on 20 September 2016.
The same three charges were laid against Kimberly Jane Fowler (Fowler). On the day trial was to commence, she pleaded guilty to aggravated assault cause harm and aggravated blackmail. The Director also accepted those pleas in full satisfaction of those charges. After discounts for the guilty pleas and time spent on home detention she was sentenced to imprisonment for three years and one month, with a non-parole period of one year and seven months, commencing on 23 December 2016.
The appellants were sentenced jointly. They submit the sentences are manifestly excessive. They submit the sentencing judge’s discretion miscarried because of a failure to have regard to the mental impairment each suffers. Further they submit that the judge erred in failing to find good reason to suspend their sentences. In addition Fowler submits the judge erred in not considering whether her sentence should be served on home detention, and erred in failing to reduce her head sentence by 10 per cent. A Judge of this Court granted permission to appeal on this last ground. Permission to appeal on all of the other grounds was referred to this Court.
Circumstances of the offending
The offending can be summarised shortly. A third defendant, Mr Refermat, arranged with the complainant the purchase of methylamphetamine on credit. They walked to Fowler’s residence. Campbell was present at her house when they arrived. The complainant did not know Fowler or Campbell.
Soon after, the complainant ingested approximately 0.1g of methylamphetamine in the bathroom. He had been supplied with the methylamphetamine by Mr Refermat. The complainant states that he agreed with Mr Refermat to pay $100 for the amount that was consumed.
Subsequently Fowler became angry as she thought too much powder had been consumed. She demanded that the complainant pay $400 immediately. Over the course of some hours all three defendants made demands that the complainant pay between $400 and $600 for the methylamphetamine.
To enforce those demands Fowler struck the complainant in the jaw. Campbell grabbed his throat and punched him on the face while leaning into his ribs with his knee. At one point Fowler threatened the complainant with a knife. Fowler and Campbell also demanded that the complainant fight Campbell. The complainant struck Campbell to the face, which caused all three defendants to push and punch the complainant. Fowler also struck the complainant to the head with a can of drink, which caused severe bleeding.
In order to meet the demands for money, the complainant sent text messages and made phone calls to various family members. Those family members arranged to meet the defendants at a car park on South Road, having agreed to bring money to satisfy the debt. However, upon meeting the defendants, those family members refused to provide money and took the complainant to hospital.
Personal circumstances of the appellants
Campbell
Campbell is now 54 years of age. He was born in Victoria and moved to Adelaide at a young age. He has two adult children with whom he enjoys a close relationship.
He was placed in a juvenile correctional facility at nine years of age. He left school at the age of 14. He had learning difficulties. From that time he frequently left home to live on the streets. His father was a violent alcoholic.
When he was younger, he found steady employment in the construction industry, but he is now medically unfit to work due to injuries sustained through more than a dozen motor vehicle accidents. He suffered a very serious head trauma in one particular accident in which a bone fragment penetrated the frontal lobes of his brain. It has now been several years since he was employed and his main source of income is a disability support pension. The limited compensation money he has received has been spent on alcohol and drugs.
Campbell is an alcoholic. He has been drinking since he was 13. In recent years he has been advised that if he continues to drink his life would be at risk. Despite this he continues to drink as he believes that the damage is already done. As a consequence he suffers from chronic liver disease. The damage to his liver renders him ineligible for treatment for his Hepatitis C.
In addition Campbell has on multiple occasions overdosed on drugs, including deliberately overdosing on heroin. He has spent time in intensive care as a result, and has had to be resuscitated more than once. He has been a heavy smoker of cigarettes since his adolescence, and previously also smoked cannabis. He says he has ceased drug use.
Campbell’s former circle of acquaintances involved him in taking drugs and frequent offending. He is now largely socially isolated.
He also suffers from mental health issues. He experienced a breakdown following the death of his brother who was killed in a motor vehicle accident. He has been admitted to hospital on various occasions due to suicidal ideation.
The judge received a number of medical reports. Dr Begg noted he had been assessed as having a low IQ in the range just above the threshold for intellectual disability. Dr Balfour assessed him as having an intellectual disability which, with his neurocognitive deficits, would satisfy the legal definition of “mental impairment”. Dr Mead also assessed him as having a cognitive impairment, reporting that there is evidence he would not have the mental capacity to make informed decisions as to his accommodation or the management of his own finances.
Campbell has a lengthy record of offending. Over some 40 years he has been convicted of offences including possession of cannabis, possession of heroin for sale, driving with excess blood alcohol, driving unregistered and uninsured, loitering, unlawful sexual intercourse, hindering, resisting and assaulting police, armed robbery, property damage, false imprisonment, assault, wounding with intent to do grievous bodily harm, larceny, serious criminal trespass, breaches of bond and failure to comply with a bail agreement.
Fowler
Fowler is now 31 years of age. At age nine she witnessed the death of her mother due to a heroin overdose which has had a profound impact on her life. She was taken into the care of relatives, but she was forced to move frequently due to the inability of aging relatives to continue caring for her. This instability led her to engage in disruptive behaviour, which made it all the more difficult to find a suitable carer.
By age 13 Fowler returned to her home town in Murray Bridge, where she commenced living with a friend. She entered a relationship with a male who was 10 years her senior. She subsequently became dependent on opioids.
Fowler is a methylamphetamine addict. She states that her amphetamine use, which originated in her youth, was to enhance her alertness when living vulnerably on the streets. While she has commenced treatment for her addiction, there is evidence she continues to use drugs; she returned two positive urine tests in February and June 2016 while on home detention bail.
She claims methamphetamine has a calming effect on her mood, rather than the stimulating effect which her friends experience. She also claims that her frequent use of marijuana has the same calming effect. However, she was dismissed from work due to her drug use.
She now receives the disability support pension for Post‑Traumatic Stress Disorder, Bipolar Disorder and Anxiety Disorder. The judge had a report from Dr Begg who described her exhibiting features of Attention Deficit Hyperactivity Disorder (ADHD), namely, frequent fidgeting, racing thoughts, easy distraction and infrequent completion of tasks.
Dr Begg also noted that drug-dependent individuals often struggle to combat their addiction until the age of 30, after which there is generally “considerable success” in rehabilitation. It is also common for offending behaviour to reduce beyond this age. Specifically in relation to Fowler, Dr Begg reported:
Obviously that she has continued to use illicit substances whilst on home detention indicates a continuing struggle with methamphetamine use. The trend, however, appears to be in a positive direction, as my understanding is that the last test was positive for marijuana, which is a less severe drug in terms of its impact on functioning, than methamphetamine. I therefore believe that she does have an ability to rehabilitate.
However, Dr Begg considered she is “not so disordered” that she would be unable to cope with a term in prison.
Fowler has convictions for numerous driving offences, trespass in a place of residence, unlawful possession, theft, property damage and breach of bond.
Sentencing remarks
The sentencing judge characterised the offending as “serious”, noting that both appellants inflicted significant injuries on the complainant and that he had “not provoked [the appellants] in any way”. The judge set out in extensive terms the particular circumstances of the offending and the personal circumstances of the appellants. The latter included their criminal antecedents, history of drug and alcohol abuse, and psychiatric and intellectual difficulties. He referred to the opinions of a psychiatrist Dr Balfour, who assessed Campbell, and a psychiatrist Dr Begg who assessed Fowler.
Dr Balfour considered that Campbell’s global intelligence is in the mild to borderline range of intellectual disability. Campbell suffers from very slow speed of information processing and exhibits impulsivity. Dr Balfour considered that Campbell understood the nature of the charges but did not acknowledge his participation in the commission of the offence.
Dr Begg diagnosed Fowler as suffering from Bipolar II Disorder and ADHD. He considered there was no direct connection between those disorders and the offending. This is because Fowler is unable to hold in her mind a range of solutions to problems and this means her problem solving capacity is reduced causing her to react in a hostile way. On this basis the judge rejected a submission that there was a clear link between Fowler’s mental impairment and her offending conduct.
The judge said:
Dr Begg has expressed the view that the more severe your disorder then the greater likelihood is that there would be a reduction in your moral culpability for these offences. This in turn means that your mental condition may have a bearing on the type of sentence that I would impose and, as a result, aspects of general deterrence have much less significance. The same would apply for specific deterrence because of the unique nature of your experience.

The judge noted Dr Begg’s opinion that Fowler’s mental health was not so disordered that she would be unable to manage a custodial sentence. The judge observed that Fowler had taken some steps in relation to rehabilitation, namely seeking stable accommodation and the cessation of her use of opioids.
In sentencing Campbell the judge said:
In sentencing you I have taken into account all the materials provided to me, and I have taken particular note of the report of Dr Balfour outlining the mental difficulties. I am to sentence you only for the offence of aggravated assault causing harm. I accept that general deterrence is of a lesser importance in accordance with the decision of Tsiaras, however the sentence imposed must address the need to deter you from committing similar offending in the future.
Were it not for you guilty plea I would have sentenced you to three years imprisonment. In accordance with s.10C(2)(f) of the Criminal Law (Sentencing) Act I reduce this to two years, eight months and two weeks. I do so in light of the entry of your guilty plea and the saving of time and expense in alleviating the need for the prosecution to have continued with the trial of this matter. I reduce this by a further nine days to two years, eight months, one week and five days to take into account the time spent in custody. I set a non-parole period of one year, four months.
I turn to the issue of suspension. Despite your mental difficulties outlined in the report of Dr Balfour, in considering your consistent antecedents and the seriousness of this offending I consider that no good reason exists to suspend the sentence. I backdate the sentence to commence on 20 September 2016, the date you were returned to custody.
In sentencing Fowler the judge said:
Your antecedent history illustrates that this is by far your most serious offending to date. By the obvious manifestation of your elevated level of anger you were clearly instrumental in initiating the aggravated assault causing harm, and you inflicted the most serious injuries on the complainant by striking him over the head with a can of beverage. You aggressively and menacingly threatened him with a knife and said that you would kill the complainant. This continued for some time.
During the same time you committed further assaults on the complainant. You threatened to use your bikie connections to harm the complainant. The striking with the can caused a serious laceration which I have said required him to have six staples placed in his left temple. You smashed the phone of the complainant when he said he could not pay for the drugs. You were instrumental in demanding that he make contact with someone, such as family, to bring money to pay for the drugs. You were then active with the other two defendants in keeping the complainant in your unit until he used Mr Refermat's phone to make contact for someone to bring money. The complainant understood that the assaults upon him would continue unless he provided the money that you and the others demanded to be paid.
I impose one penalty pursuant to s.18A of the Criminal Law (Sentencing) Act for both offences. Were it not for your guilty plea I would have sentenced you to four years, six months. In accordance with s.10C(2)(f) of the Criminal Law (Sentencing) Act, and taking into account the acceptance of guilt reflected by your plea and the benefit to the prosecution in not being required to prove its case in the comparatively long trial, I will reduce this to four years, three months and three weeks.
Despite the three recent breaches to your home detention bail, I exercise my discretion to further reduce your sentence to three years, one month to take into account the time spent on home detention bail. And I fix a non-parole period of 19 months to reflect the content of the reports of Dr Begg.
I turn to the issue of suspension.
Your counsel has submitted to me that due to the information contained in the two reports of Dr Begg there is good reason to suspend the sentence. I have addressed these reports at large the further written submissions made by your counsel.
However, when considering the seriousness of this offending, and your substantial role in it, I do not see good reason to suspend the sentence. The sentence is to commence today.
Approach on appeal
The approach from the appeal court when considering an appeal against sentence is explained by the High Court in Markarian v The Queen.[1] Gleeson CJ, Gummow, Hayne and Callinan JJ said:[2]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess” …
[Citations omitted.]
[1] [2005] HCA 25, (2005) 228 CLR 357.
[2] [2005] HCA 25 at [25], (2005) 228 CLR 357 at 370-371.
Sentencing intellectually disabled offenders
The principles relevant to the sentencing of intellectually disabled offenders have recently been re-stated by the High Court in Muldrock v The Queen.[3] Uninhibited by accusations of political incorrectness the Court observed that the assessment that the offender suffers from an intellectual disability should not obscure the fact that he is mentally retarded. That condition is classified according to its severity as borderline, mild, moderate, severe or profound.[4] The Court cited with approval the reasons of the Victorian Court of Criminal Appeal in R v Mooney where Young CJ said:[5]
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.
The High Court approved the explanation given for the principle by Lush J as follows:[6]
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.
[Citations omitted.]
[3] [2011] HCA 39, (2011) 244 CLR 120.
[4] [2011] HCA 39 at [50], (2011) 244 CLR 120 at 137.
[5] R v Mooney (Unreported, Court of Criminal Appeal (Vic), 21 June 1978) at 5.
[6] [2011] HCA 39 at [53], (2011) 244 CLR 120 at 138-139.
The High Court in Muldrock said:[7]
The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.
[7] [2011] HCA 39 at [54], (2011) 244 CLR 120 at 139.
Manifest excess
In The Queen v Morse[8] King CJ identified the factors to be considered in determining whether a sentence is manifestly excessive. He identified those factors as the maximum sentence prescribed by law, the standards of sentencing customarily observed for offences of that kind, the seriousness of the offence committed when compared to other offences of its kind, and the personal circumstances of the offender.[9]
[8] (1979) 23 SASR 98.
[9] (1979) 23 SASR 98 at 99.
To interfere with a sentence on the grounds of manifest excess the court must be satisfied that the sentence imposed was definitely above the highest end of the range of sentences that could be imposed on the facts before the sentencing judge. In Hili v The Queen[10] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[11]
… 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. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”.
[Citations omitted.]
[10] [2010] HCA 45, (2010) 242 CLR 520.
[11] [2010] HCA 45 at [59], (2010) 242 CLR 520 at 538 – 539.
In considering whether a sentence is manifestly excessive it is appropriate to consider the notional head sentence fixed by the sentencing judge before the application of the statutory discount for a plea of guilty.[12] To approach consideration of whether a sentence is manifestly excessive without regard to the application of the statutory discount would deprive the offender who enters the plea of part of the value of the incentive that the Parliament intended to confer for the plea, at least in the context of the exercise by the offender of an appeal against sentence on the ground of manifest excess, and would distort the application of the test of manifest excess. Generally, a sentence will be manifestly excessive if the notional starting point for fixing a sentence for imprisonment is beyond the range of sentences applicable to that offending.
[12] R v Weatherill [2015] SASCFC 113 at [6].
Suspension
The power to suspend a sentence of imprisonment is conferred pursuant to s 38 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). The exercise of the power is conditioned by the court finding good reason to suspend a sentence of imprisonment. In R v O’Toole[13] Peek J said:[14]
This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences. The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case. It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment. The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.
[Citations omitted.]
[13] [2013] SASCFC 18.
[14] At [50].
Home detention orders
Section 33BB of the Sentencing Act empowers a court to make an order that a sentence of imprisonment should be served on home detention. It provides:
33BB—Home detention orders
(1)Subject to this section, if—
(a)     a court has imposed a sentence of imprisonment on a defendant; and
(b)     the court considers that the sentence should not be suspended under Part 5; and
(c)     the court considers that the defendant is a suitable person to serve the sentence on home detention,
the court may suspend the sentence under this Division and order that the defendant serve the sentence on home detention (a “home detention order”).
(2)A home detention order—
(a)     must not be made—
(i)unless the court is satisfied that the residence the court proposes to specify in its order is suitable and available for the detention of the defendant and that the defendant will be properly maintained and cared for while detained in that place; or
(ii)if the defendant is being sentenced to a sentence of imprisonment that is to be served cumulatively on another term of imprisonment, or concurrently with another term of imprisonment then being served, or about to be served, by the defendant; and
(b)     should not be made if the court is not satisfied that adequate resources exist for the proper monitoring of the defendant while on home detention by a home detention officer.
(3)The paramount consideration of the court when determining whether to make a home detention order must be the safety of the community.
(4)The court must also take the following matters into consideration when determining whether to make a home detention order:
(a)     the impact that the home detention order is likely to have on—
(i)any victim of the offence for which the defendant is being sentenced; and
(ii)any spouse or domestic partner of the defendant; and
(iii)any person residing at the residence at which the prisoner would, if released, be required to reside;
(b)     any report ordered by the court from the CEO or any other person or body for the purpose of assisting the court in determining whether to make a home detention order;
(c)     any other matter the court thinks relevant.
Section 33BB provides an alternative sentencing option for service of a sentence on home detention. A sentence of home detention is an intermediate form of punishment between a suspended sentence and a custodial sentence. The court only considers whether to make a home detention order after it has already imposed a sentence of imprisonment on the defendant and determined that good reason does not exist to suspend the sentence.
The operation of s 33BB has been recently considered by the Court of Criminal Appeal in R v Filipponi,[15] R v Dell[16] and R v Hosking.[17]
[15] [2016] SASCFC 148, (2016) 126 SASR 464.
[16] [2016] SASCFC 156, (2016) 126 SASR 571.
[17] [2017] SASCFC 50.
In R v Filipponi[18] the Chief Justice, with whom Vanstone and Nicholson JJ agreed, discussed the operation of s 33BB. The Chief Justice said:[19]
Subparagraph (c) is directed towards the suitability of the person to serve a sentence on home detention. That criterion addresses primarily the subjective circumstances of the defendant, like his or her capacity to support himself or herself, or be supported by others in private accommodation, and whether he or she is likely to comply with the conditions of home detention.
Once enlivened, the discretion conferred by s 33B(1) of the Sentencing Act to make a home detention order must be exercised having regard to the purposes of sentencing and all relevant considerations. Those purposes importantly include punishment, community protection and both general and personal deterrence on the one hand, and the scope for rehabilitation on the other.
[18] [2016] SASCFC 148, (2016) 126 SASR 464.
[19] [2016] SASCFC 148 at [23] - [24], (2016) 126 SASR 464 at 471.
In Dell[20] Doyle J, with whom Kelly and Parker JJ agreed, considered s 33BB required a two-stage process of enquiry in order to determine whether a home detention order is appropriate. The court must consider whether the defendant is a suitable person to serve a sentence on home detention, and, if so, whether having regard to the full range of sentencing considerations, the sentence should be suspended and an order made that the defendant serve the sentence on home detention. The determination of whether the defendant is a suitable person involves a consideration of matters focussed upon the personal circumstances of the defendant. This involves consideration of matters such as the defendant’s capacity to support himself or herself in private accommodation, whether he or she is likely to comply with the conditions of home detention, and the extent to which the making of an order would support the defendant’s prospects of rehabilitation. In deciding whether the sentence should be suspended and a home detention order made, the court must consider the full range of sentencing considerations which include not only the rehabilitation of the offender but also the objectives of due punishment, denunciation and general deterrence. In deciding this issue, the safety of the community is the paramount consideration. The court must also take into account the impact on the victim, the defendant’s spouse / domestic partner, and any other resident of the premises. Otherwise the same factors that are relevant to determining the head sentence and whether good reason exists to suspend the sentence of imprisonment are relevant to determining whether to make a home detention order.
[20] [2016] SASCFC 156, (2016) 126 SASR 571.
In Dell in considering the paramount consideration of community safety, Doyle J said:[21]
By reason of s 33BB(3), safety of the community is the paramount consideration. There is no reason to take a narrow view of the safety of the community. A significant risk of reoffending will often present a threat to the safety of the community. While the risk of reoffending by those convicted of offences involving violent and sexual misconduct will present the most obvious, and perhaps most immediate and direct, threat to the safety of the community, the risk of reoffending by those convicted of other offences will also often present a relevant threat to the safety of the community. I include within these offences those which involve the production or trafficking of illegal drugs. A significant risk of reoffending by a defendant convicted of involvement in the distribution of illegal drugs presents a significant threat to the safety of the community.
I observe in relation to s 33BB(3) that while the existence of a threat to the safety of the community will often go close to foreclosing an exercise of discretion in favour of a grant of home detention, I do not consider that the converse proposition necessarily holds true. The mere fact that there is limited identifiable risk to the safety of the community may not mean there is a strong case for a home detention order. Put another way, while the considerations in favour of a home detention order will rarely outweigh a significant threat to the safety of the community (given the paramountcy of this consideration), considerations militating against a home detention order may more readily outweigh the absence of any identifiable threat to the safety of the community.
[Citation omitted.]
[21] [2016] SASCFC 156 at [51] - [52], (2016) 126 SASR 571 at 582.
In R v Hosking[22] Vanstone J, with whom Parker J agreed, held that the requirement for a two-stage enquiry did not require a particular sequence from which the relevant factors are to be addressed. The two-stage process involves consideration of separate matters and each must be addressed before a home detention order is made. However, cases will arise where the making of a home detention order will be quite out of the question without reference to the suitability of the defendant for such an order. That might be because of the necessity for general and personal deterrence, protection of the public or punishment. Where such a finding is appropriately made it is not necessary also to consider the suitability of the defendant for home detention.
Consideration
[22] [2017] SASCFC 50.
Campbell

Campbell submits that the starting point of three years is too high, both in itself and when considered against the starting point of the sentence for Fowler who had to be sentenced not only for the offence of aggravated assault case harm, but also for the offence of aggravated blackmail. The maximum penalty for aggravated assault cause harm is imprisonment for five years where an offensive weapon is involved. The maximum penalty for the offence of aggravated blackmail is imprisonment for 20 years.
The sentencing judge’s starting point for sentencing the co-accused was merely 18 months greater than the three-year starting point for Campbell’s sentence for one count of aggravated assault causing harm. Given the substantially greater maximum penalty and the seriousness of the offence of blackmail, it is possible that the judge, in fixing a single penalty pursuant to s 18A of the Sentencing Act for the co-accused’s offending might have attributed more than 18 months of the single term of imprisonment imposed to the aggravated blackmail offence. It is to be expected that in fixing a single sentence for both offences the more serious offence, measured by the maximum penalties, would form a greater proportion of the overall sentence. That suggests a degree of disparity between the sentences of the appellant on the one hand and the co-accused on the other,[23] particularly given the judge’s finding that it was Fowler rather than Campbell who initiated the assault, which would give rise to a justifiable sense of grievance on the part of Campbell.[24]
[23] Postiglione v The Queen (1997) 189 CLR 295 at 301.
[24] Lowe v The Queen (1984) 154 CLR 606 at 613.
In any event, notwithstanding the seriousness of the offending, I consider the starting point of three years, when the maximum penalty is five years, is too high given the mitigating factor of his intellectual disability and the judge’s finding that the aggravated assault cause harm was initiated by Fowler rather than Campbell. His intellectual disability diminishes the importance that deterrence would otherwise assume in sentencing for this offence. Further, his intellectual disability is also a factor to be weighed in assessing his culpability for the offending. He did not initiate the assault. His impulsivity meant he had a reduced capacity to appreciate the wrongfulness of his conduct in joining in the assault initiated by Fowler. These are considerations relevant to the retributive and punitive aspects of sentencing.
As the starting point is too high, the ultimate sentence imposed is manifestly excessive. In my view, the sentencing discretion miscarried and the court must re‑sentence Campbell.
Resentencing Campbell
Having regard to the circumstances of the offending, including the particular role Campbell played in the aggravated assault and Campbell’s personal circumstances, especially the mitigating factor of his intellectual disability, I would have sentenced Mr Campbell to imprisonment for a term of two years and four months but for the guilty plea and time spent in custody. In accordance with s 10C(2)(f) of the Sentencing Act, I would discount this by nearly 10 per cent for the guilty plea. While the plea was very late, it did save time and expense in eliminating the need for the trial and relieved the victim of the trauma of having to give evidence. I would allow close to the maximum discount of nearly 10 per cent, having regard to the underlying utilitarian purpose of the provision for the reasons I discussed in R v Dwyer.[25] That results in a sentence of two years, one month and one week. Like the judge, I further reduce this by an additional nine days to take into account time spent in custody. Accordingly, I would impose a head sentence of two years and four weeks. I fix a non-parole period of one year and two weeks. Both the head sentence and non‑parole period are to commence from 20 September 2016.
[25] [2015] SASCFC 12 at [34] – [35], (2015) 121 SASR 587 at 597-598.
Like the sentencing judge, I consider that good reason does not exist to suspend the sentence. Notwithstanding the appellant’s diminished responsibility, he was not incapable of appreciating the wrongfulness of his actions, he has a lengthy criminal history, and this was serious offending.
Fowler
There are nine grounds of appeal. They raise four issues. First, having regard to matters of the appellant’s mental impairment and rehabilitation, is the sentence manifestly excessive? Second, did the judge err in failing to find good reason to suspend the sentence of imprisonment? Third, did the judge err in failing to consider whether the sentence of imprisonment should be served on home detention? Fourth, did the judge err in failing to discount the head sentence by 10 per cent for the plea of guilty? Permission to appeal was granted on the fourth issue and the question of permission in relation to the other three issues was referred to this Court.
It is convenient to deal, first, with the grounds upon which permission is sought.
I commence with the submission that the sentence is manifestly excessive. This submission is predicated upon the appellant’s submission that the judge failed to have adequate regard to her mental impairment and rehabilitation.
In considering the submission based on mental impairment, it is necessary to have regard to the opinion of Dr Begg, who said:
In my opinion, she suffers from Bipolar II Disorder and Attention Deficit Hyperactivity disorder. Both disorders contribute to a poor capacity to tolerate emotions, maintain emotional stability, process information in an efficient manner, and delay impulses. It does not cause psychosis, a condition in which a person is unable to distinguish reality, characterised by the presence of delusions (a false idea unamenable to reason) and/or hallucinations (a false sensory perception). As psychosis significantly distorts the person’s perception of reality, it can directly lead to offending if the victim is falsely perceived in a negative way due to a delusion. Ms Fowler did not suffer from a psychosis. As such, there is not a direct connection between her disorder and the offending. Rather, her ability to hold in her mind a range of solutions to a problem, including morally appropriate solutions, is reduced, but not removed, by the presence of her mental disorders. When faced with a problem, she is more likely to react in a hostile manner, rather than tolerating the distress of the problem, and coming to an appropriate, morally acceptable, solution.
Fowler submits that the judge erred in rejecting a clear link between her mental impairment and the offending conduct. Fowler submits that the judge did so on the basis of a misunderstanding of Dr Begg’s opinion. She submits that Dr Begg, in opining that there was not a direct connection between her disorder and the offending, meant no more than that she did not suffer from a psychosis which would have rendered her unable to distinguish the reality of her actions from delusions. On the contrary, she submits that Dr Begg found her offending conduct was explained by her reduced ability to hold in her mind a range of solutions to a problem, which causes her to react in a hostile manner when faced with a problem.
The appellant submits that, in fixing sentence, the judge has failed to have regard to the effect of Dr Begg’s opinion that her offending was causally related to her psychiatric condition, or has failed to have adequate regard to this opinion in fixing sentence. As a result, the starting point is too high and the resulting sentence is manifestly excessive.
I do not accept this submission for a number of reasons.
First, it is clear from the judge’s sentencing remarks where he sets out extensively that particular passage from the report of Dr Begg that the judge properly understood the import of Dr Begg’s opinion. Second, in any event, Dr Begg does not expressly say that the particular factors he identifies as being symptomatic of the appellant’s psychiatric conditions provides the explanation for her criminal conduct on this occasion. The opinion does not provide the necessary causal nexus. Third, the judge expressly says that, in fixing sentence, he has taken into account all of the matters raised by Dr Begg in his reports.[26] Fourth, the judge expressly says that he fixes the non-parole of 19 months to reflect the content of the reports of Dr Begg. Fifth, a submission that a sentencing judge has failed to have adequate regard to a material factor does not disclose appealable error.[27] It is in the nature of the exercise of a discretion that individual judges will give varying weight to material considerations. A complaint that sufficient weight has not been given to a material consideration is not a complaint of specific error. At most, it could form part of a submission of manifest error. For reasons I will come to that submission is not made out. Finally, Dr Begg diagnosed the appellant as suffering from two psychiatric disorders, Bipolar II and ADHD. Those disorders leave the sufferer more likely to react in a hostile manner when confronted with a problem. They are to be distinguished from an intellectual disability which reduces a person’s capacity to form normative judgments in relation to his or her conduct.
[26] AB 116.
[27] R v Lutze [2014] SASCFC 134 at [47], (2014) 121 SASR 144 at 154.
Turning to the submission based on the appellant’s rehabilitation, she submits that the judge failed to have proper regard to the extent of her rehabilitation in fixing sentence. She submits that the judge confined his consideration of her rehabilitation to her finding stable accommodation and ceasing the use of opioids. She submits that the judge must have overlooked her attendance at drug counselling and a support group for people with drug-related problems as well as her attendance upon a psychologist.
I do not accept this submission. The judge clearly had regard to the fact that Fowler had taken steps that evidenced efforts at rehabilitation. His reference to her cessation of the use of opioids, in my view, encompasses the steps she has taken that enabled that result, namely, her attending a drug counselling service and support group and her treatment by a psychologist. In any event, it might be thought that the judge gave the appellant too much credit in this regard. There was evidence before the judge that on a number of occasions she had returned positive urine test results while on bail.
In my view, these were matters properly evaluated by the judge in undertaking the instinctive synthesis.
Ultimately, I consider that the appellant’s submission that her sentence is manifestly excessive cannot succeed. The starting point of four and a half years was well within the range of sentences that could be imposed for the serious offending for which she fell to be sentenced having regard to the circumstances of that offending, her prominent role in it and her extensive criminal antecedents. A starting point of four years and six months imprisonment is well within the range given the maximum sentences of five years and 20 years respectively.
I turn to the question of suspension. In order to succeed on this ground the appellant had to persuade the Court that the only conclusion the judge could have come to on the material before him was that good reason existed to suspend the sentence. I do not accept that submission. The judge declined to suspend Fowler’s sentence because of the seriousness of the offending. The appellant submits that in doing so he erred in failing to have regard to her psychiatric conditions. Plainly the judge did not overlook this matter. The judge clearly had regard to the appellant’s psychiatric conditions in considering whether good reason existed to suspend. Moreover, these were undoubtedly serious offences. For the reasons explained earlier it is not sufficient that the Court be satisfied that the judge gave more or less weight than this Court considers should be given to a material consideration. There was no error in the judge failing to suspend the sentence of imprisonment.
I turn to the issue of the judge’s failure to order that the appellant’s sentence be served on home detention.
While the judge did not specifically refer in his sentencing remarks to the question of home detention, it does not follow that it was not a sentencing option considered by him. The judge plainly discussed during sentencing submissions whether a home detention order was appropriate in the appellant’s case. The transcript discloses that the judge was of the view that, despite everything said on Fowler’s behalf, her conduct was so serious as to require an immediate custodial sentence.
That reasoning does not disclose error. As the reasons of Vanstone and Parker JJ in Hosking make clear, there will be cases where the court can be satisfied that the making of a home detention order will be quite out of the question without the necessity to consider the suitability of an offender for such an order that might be for a variety of reasons. Where such a finding is appropriately made it is not necessary to also consider the suitability of the offender for home detention.
In considering whether to make a home detention order the paramount consideration is the safety of the community. Notwithstanding the steps taken by the appellant by way of rehabilitation, the evidence before the court was that she continued to use illicit drugs. Having regard to the seriousness of her offending, which to a degree was attributable to her drug use, her continued drug use has the real potential to put the safety of the community at risk. As was pointed out by the High Court in Bugmy v The Queen,[28] the factors that explain an offender’s recourse to violence when frustrated, while reducing their moral culpability, may nonetheless require a sentence that recognises the importance of protecting the community from the offender’s inability to control that violent response to frustration.
[28] [2013] HCA 37 at [44], (2013) 249 CLR 571 at 595.
In the circumstances I am not persuaded that the sentencing judge fell into error in failing to make an order that the sentence of imprisonment be served on home detention. It is tolerably clear that the judge did consider whether that was an appropriate order. In any event, had I been persuaded that the judge failed to consider it, I would nonetheless have declined to make a home detention order if I had been exercising the sentencing discretion afresh.
Finally, I turn to the one ground of appeal upon which permission had been granted, namely, whether the judge erred in failing to reduce the notional head sentence by 10 per cent for the pleas of guilty.
The judge reduced Fowler’s sentence by approximately five per cent for the pleas of guilty. By contrast, the judge reduced Campbell’s sentence by approximately 10 per cent for his plea of guilty. At the same time, the judge was sentencing the other co-offender, Mr Refermat. The judge expressly indicated that he would reduce Mr Refermat’s notional head sentence by 10 per cent for his plea of guilty. Relevantly, his starting point in sentencing Mr Refermat, like Fowler, also was four years and six months. While the judge purported to reduce Mr Refermat’s sentence by 10 per cent, he actually came to a figure of four years, three months and three weeks by that process. This was the same end result the judge reached in reducing Fowler’s notional head sentence for her plea of guilty.
I am satisfied this indicates an arithmetic error in the approach taken by the sentencing judge. I am satisfied that the judge intended to reduce the sentence of each co-offender by 10 per cent for their pleas of guilty. He failed to achieve this in the case of Fowler and Mr Refermat. This is conceded by the respondent.
The appellant submits that in the circumstances the sentencing discretion has miscarried and the Court should intervene by setting aside the sentence and resentencing the appellant. By contrast the respondent submits that the Court should correct the arithmetic error pursuant to s 9A of the Sentencing Act, exercising the jurisdiction of the Court conferred by the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA), and a commensurate adjustment should be made to the non-parole period.
I do not accept the submission of the respondent. Section 9A(1) of the Sentencing Act provides:
A court that imposes, or purports to impose, a sentence on a defendant, or a court of co-ordinate jurisdiction, may, on its own initiative or on application by the Director of Public Prosecutions or the defendant, make such orders as the court is satisfied are required to rectify an error of a technical nature made by the sentencing court in imposing, or purporting to impose, the sentence, or to supply a deficiency or remove an ambiguity in the sentencing order.
While it is at least arguable that the arithmetic error made by the sentencing judge is an error of a technical nature within the meaning of s 9A(1), rectifying the sentence is not so easy. The judge intended to reduce the notional head sentence by 10 per cent for the plea of guilty. But the judge then exercised his discretion to further reduce the sentence to take into account time spent on home detention bail and then fixed a non-parole period by reference to that reduced head sentence. The rectification of the reduction of the guilty plea does not readily permit the court to make the consequential adjustments that the respondent concedes must be made. In the circumstances I would adopt the course for which the appellant contends. That calls for a consideration of the appropriate sentence to be imposed. In Kentwell v The Queen,[29] the plurality said that where a Court of Criminal Appeal identifies a House v The King error, the Court should exercise an independent sentencing discretion. Where the Court concludes that a lesser sentence is appropriate having regard to the offender and the offence, it should impose a lesser sentence. Where the Court concludes that the same sentence or a greater sentence is appropriate, the Court is not required to resentence.[30]
[29] [2014] HCA 37, (2014) 252 CLR 601.
[30] [2014] HCA 37 at [43], (2014) 252 CLR 601 at 618.
Resentencing Fowler
Like the sentencing judge I consider it appropriate to impose one penalty pursuant to s 18A of the Sentencing Act for both offences. But for the guilty plea and time spent in custody and on home detention, I would have imposed a sentence of four years and six months imprisonment. I would reduce that notional sentence pursuant to s 10C(2)(f) of the Sentencing Act by nearly 10 per cent to reflect the utilitarian purposes I discussed in Dwyer. This will result in a head sentence of four years, two weeks and three days. This notional sentence must be further reduced for time spent in custody and on home detention. I would not reduce the notional head sentence for time in custody and on home detention by as much as the sentencing judge. I would further reduce this sentence to three years and one month imprisonment to take into account 18 days in custody and two years, four months, three weeks and two days spent on home detention bail. I fix a non-parole period of 19 months.
For the reasons explained above, good reason does not exist to suspend the sentence and an order that it be served on home detention is not appropriate.
As the sentence I consider appropriate is the same sentence imposed by the sentencing judge, I am not required to resentence in accordance with the principle in Kentwell.
Conclusion
In relation to Campbell, I would grant permission to appeal and allow the appeal and set aside the sentence imposed. I would resentence the appellant to a term of imprisonment of two years and four weeks. I would fix a non-parole period of one year and two weeks. The sentence and the non-parole period are to commence on 20 September 2016.

In relation to Fowler, I would refuse permission to appeal on those grounds in respect of which permission was sought. As I have indicated, I accept that the sentencing judge erred in the arithmetic calculation to reducing the notional head sentence for the pleas of guilty. However, as I consider that the Court would nonetheless resentence Fowler to the same sentence imposed by the sentencing judge in the independent exercise of the sentencing discretion, the appropriate order is that the appeal be dismissed.