R v CEKANAUSKAS

[2024] SASCA 154

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

R v CEKANAUSKAS

[2024] SASCA 154

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice B Doyle)

24 December 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

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

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - ROBBERY - SENTENCE

The Director of Public Prosecutions seeks permission to appeal against the sentence imposed upon the respondent.

The respondent was sentenced for several offences, including offences of aggravated assault causing harm and aggravated robbery committed on the same occasion and involving the same victim. The assault was aggravated because it involved the use of a weapon (a multitool), and the robbery was aggravated because it was committed in company with another. 

In sentencing the respondent, the sentencing judge used a starting point of 2 years and 8 months imprisonment for the offences of aggravated assault causing harm and aggravated robbery. The respondent was also sentenced to 9 months imprisonment for an offence of threatening to cause harm.  After reductions for the respondent’s pleas of guilty, and for time served in custody and on home detention bail, the judge ultimately imposed a total sentence of imprisonment for 2 years, with a non-parole period of 8 months.

The Director seeks permission to appeal on the ground that the sentence imposed was manifestly inadequate, having regard to the sentencing standard for armed robberies in R v Place, and the sentences suggested for basic robberies in cases such as R v Gannon and R v Brant. The Director contends that intervention is required in order to maintain sentencing standards, and because the sentence was so low that to allow it to stand would undermine public confidence in the administration of justice.

Held, per the Court, refusing permission to appeal:

1.The starting point of 2 years 8 months for the offences of aggravated assault causing harm and aggravated robbery was too low, resulting in an overall sentence that was manifestly inadequate;

2.Granting permission to appeal would expose the respondent to considerable hardship due to her difficult personal background and circumstances; the imminence of her eligibility for parole; and the risk that resentencing the respondent would disturb the parity between her sentence and that of her co-offender;

3.Although the sentence was manifestly inadequate, it is not clear that the sentence was so low as to undermine public confidence in the administration of justice, or that intervention is required in order to maintain adequate sentencing standards; and

4.In these circumstances, after weighing considerations of double jeopardy against the public interest in appellate intervention, this is not an appropriate case in which to grant the Director permission to appeal.

Bail Act 1985 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) s 20(4)(c), 19(2)(a), 137(1)(b); Sentencing Act 2017 (SA) s 26, referred to.
Green v The Queen (2011) 244 CLR 462; House v The King (1936) 55 CLR 499; R v Ametovic [2024] SASCA 153; R v Berry [2024] SASCA 116; R v Brant [2018] SASCFC 72; R v Gannon (2012) 113 SASR 1; R v Kelly [2023] SASCA 22; R v Marrone [2024] SASCA 99; R v Nemer (2003) 87 SASR 168; R v Osenkowski (1982) 30 SASR 212; R v Place (2002) 81 SASR 395; R v Pokoina [2024] SASCA 132; R v Singh [2024] SASCA 81, considered.

R v CEKANAUSKAS
[2024] SASCA 154

Court of Appeal – Criminal:    S Doyle JA, Bleby JA and B Doyle AJA

1. THE COURT:    The Director of Public Prosecutions seeks permission to appeal against the sentence imposed upon the respondent.

2. The respondent was sentenced for several offences, including offences of aggravated assault causing harm and aggravated robbery committed on the same occasion and involving the same victim.  The assault was aggravated because it involved the use of a weapon (a multitool), and the robbery was aggravated because it was committed in company with another. 

3. In sentencing the respondent, the sentencing judge used a starting point of 2 years and 8 months imprisonment for these offences.  The respondent was also sentenced to 9 months imprisonment for an offence of threatening to cause harm.  After reductions for the respondent’s pleas of guilty, and for time served in custody and on home detention bail, the judge ultimately imposed a sentence of imprisonment for 2 years, with a non-parole period of 8 months.

4. The Director seeks permission to appeal on the ground that the sentence imposed was manifestly inadequate, having regard to the sentencing standard for armed robberies in R v Place,[1] and the sentences suggested for basic robberies in cases such as R v Gannon[2] and R v Brant.[3]

   [1]     R v Place (2002) 81 SASR 395.

   [2]     R v Gannon (2012) 113 SASR 1.

   [3]     R v Brant [2018] SASCFC 72.

5. Mindful of the need to establish an appropriate public policy reason for this Court’s intervention over and above manifest inadequacy in the sentence imposed, the Director contended that intervention was required in order to maintain sentencing standards, and because the sentence was so low that to allow it to stand would undermine public confidence in the administration of justice.

6. Whilst accepting that her sentence was low, the respondent did not accept that it was manifestly inadequate.  She further contended that even if error were established in the sentence imposed, the hardship associated with exposing her to double jeopardy outweighed any public interest in this Court’s intervention.  She relied in this respect upon aspects of her difficult personal background and circumstances, the imminence of her eligibility for parole, and that increasing her sentence would result in an unjustifiable disparity between her sentence and that of her co-offender in relation to the aggravated robbery offence.

7. At the conclusion of the oral hearing of this matter, the Court refused the Director’s application for permission to appeal.  The reasons for making that order follow.  As explained below, the sentence was too low and, indeed, manifestly inadequate.  However, the public interest in intervention was outweighed by the countervailing considerations relied upon by the respondent.

   The offending and sentence imposed

8. The respondent pleaded guilty to the following offences:[4]

   ·Count 1 – aggravated assault cause harm (with offensive weapon), committed on 8 April 2023, with a maximum penalty of imprisonment for 5 years;[5]

   ·Count 2 – aggravated robbery (in company), committed on 8 April 2023, with a maximum penalty of imprisonment for life;[6]

   ·Count 3 – threat to cause harm, committed on 27 June 2023, with a maximum penalty of imprisonment for 5 years;[7]

   ·Counts 4 and 5 – failures to comply with a bail agreement, committed on 11 August and 19 September 2023, with a maximum penalty of imprisonment for 2 years or a fine of $10,000.[8]

   [4]     Whilst charged on separate informations, it is convenient to refer to the offences as Counts 1 to 5.

   [5]     Criminal Law Consolidation Act 1935 (SA), s 20(4)(c).

   [6] CLCA, s 137(1)(b).

   [7] CLCA, s 19(2)(a).

   [8]     Bail Act 1985 (SA), s 17(1).

9. For Counts 1 and 2, the sentencing judge imposed a single sentence, with a starting point of 2 years and 8 months imprisonment which, after a 15 per cent reduction for the respondent’s pleas of guilty, resulted in a sentence of 2 years, 3 months and 7 days imprisonment for those two offences.

10. For Count 3, the judge used a starting point of 9 months imprisonment which, after a reduction of 30 per cent for the respondent’s plea of guilty, resulted in a sentence of 6 months and 10 days imprisonment for that offence.

11. For the breach of bail offences, the judge imposed convictions but without further penalty.

12. The judge ultimately arrived at a total sentence of imprisonment for 2 years, 9 months and 17 days, and fixed a non-parole period of 1 year and 5 months.  After reductions for time served in custody and on home detention bail, the judge ultimately imposed a sentence of imprisonment for 2 years, with a non-parole period of 8 months.  The sentence was backdated to commence from 11 July 2024, when the respondent was last taken into custody.

    Circumstances of the offending

13. The aggravated assault cause harm (with a weapon) (Count 1) and aggravated robbery (in company) (Count 2) were committed on the same occasion, involving the same victim (LB).

14. At the time of these offences, the respondent had known LB for about a week.  They had been living in the same property, in Murray Bridge.  At about 5.30 pm on 8 April 2023, LB was walking across a road in Murray Bridge.  She was carrying a backpack on her front with the straps over her shoulders.  LB heard someone call out to her.  She recognised the respondent as she got out of a car from the passenger seat and walked towards her.  LB also recognised the driver (Mr Phillips), who was the respondent’s partner at the time.

15. The respondent accused LB of taking her belongings.  The respondent was holding a multitool in her right hand, with the blade extended out but pointing behind her.  She folded the blade back into the tool and placed it in the right pocket of her pants before she then lunged at LB and tried to punch her with both fists.  LB blocked the punches.  The respondent then kicked LB several times to both of her legs.  LB saw Mr Phillips walking towards her, and was concerned that he and the respondent would steal her backpack.  She was holding the backpack tightly as she walked away, but fell to the ground.

16. The respondent tried unsuccessfully to pull the backpack away from LB.  She held LB down by sitting on her back, and hit her repeatedly.  During the assault, LB saw and felt the blade of the multitool puncture her jacket, causing it to tear.  It was accepted that this was not intentional.

17. While the respondent was on top of her, LB managed to knock the multitool from her hand.  It dropped to the ground, and LB was able to pick it up and throw it away.  She noticed that the blade was still extended.  This aspect of the incident was recorded in some dashcam footage obtained from a car which had stopped in the area.

18. The respondent then got up and kicked LB several times to the front of her head, causing her pain.  LB called for help, but the respondent put her hand over LB’s mouth.  That concluded the conduct encompassed within the Count 1 aggravated assault causing harm.

19. The respondent and Mr Phillips walked back to their car and drove off.  However, they drove only a short distance before turning around returning to park not far from LB.  The respondent got out of the car and approached LB for a second time.  She demanded money that she said LB owed her, saying that she would take it from her if she did not give it to her.  The respondent resumed hitting LB.  She tried to take the backpack from LB by kicking and pushing her, but LB did not release the backpack.

20. Mr Phillips then left the car and approached them.  He grabbed LB’s arms and held them behind her.  She fell to the ground on her knees.  The respondent then undid the straps over her right shoulder and took the backpack from her.  Both the respondent and Mr Phillips yelled at LB, threatening to hurt her while she was held down by Mr Phillips.  That concluded the conduct encompassed by the Count 2 aggravated robbery.

21. The respondent and Mr Phillips drove away, and LB walked to a nearby service station where she reported the offending.

22. LB sustained scratches to the left side of her chin and the front of her neck, bruising over her right eyebrow, red marks to her forehead and right forearm, a cut and swelling to her right eyelid and an injury to her left ankle.  There was also a horizontal cut approximately 3 cm in length to the outer lining of her jacket.

23. The contents of the backpack taken from LB included a purse containing $470 in notes and coins, a birth certificate, bank and Medicare cards, a mobile phone valued at about $300, two pairs of headphones valued at about $120, family photographs, and some toiletries.

24. Later that night, police arrested the respondent and Mr Phillips.  Upon being interviewed, the respondent said that she knew LB as she had been staying in a shed at the same premises as the respondent.  She claimed that LB had stolen almost $2,000 from her, and had left the premises with items belonging to LB, the keys to the premises and without paying the rent.  She said that LB had stolen from her, and that was why she had ‘kicked her arse’.  She had given LB a day to return the items, but she played dumb, and so she got angry at her.  She had located LB, and asked her for her things back.  LB had denied she had the things, and refused to show the respondent what she had in her backpack, and so then she had ‘lost it’, and hit LB.

25. The respondent said that her partner, Mr Phillips, had just come along for the ride.  She also told police that after they first left LB, they thought there must have been something in her backpack, and so they returned.  They tried to grab it from her, but LB would not let it go.  So she punched and kicked LB.  She said that after they left the second time, they went through the backpack, and discarded various of the items.  When asked about the multitool, the respondent said that she had it in her possession because she was ‘not a very strong person’ and it was her ‘best friend’.

26. Police subsequently located the backpack and most of its contents.

27. Turning to Count 3 (threatening to cause harm), this occurred a little over two months later, on 27 June 2023, while the respondent was on bail.  The victim of that offending, MB, was also known to the respondent.  MB and her partner had lived in a granny flat on the same property as the respondent, and the respondent came to believe that MB’s partner had sexually abused the respondent’s daughter, and that MB had acquiesced in this behaviour.  The respondent became angry and, upon locating MB, approached her at a premises where she was with her grandmother and grooming a horse.  She went to the front gate of the premises where she had found MB and yelled threats at her, including threats to kill her such as ‘I’m going to kill you and you’ll have a slow and painful death’.  She also threatened to kill MB’s quails and send her a video of it.  She told MB she would cut off her boyfriend’s penis and shove it down his throat.  The respondent told MB to come over to her three times, but when MB did not engage with her, she eventually left.  She later left a voicemail message for MB, abusing her and threatening to kill her.

28. MB reported these threats on 30 July 2023, and the respondent was arrested the next day.

29. The two breach of bail offences (Counts 4 and 5) relate to the bail agreement dated 9 August 2023 for the offence of threatening to cause harm.  The breaches both involved positive drug tests for amphetamine, on 11 August and then 19 September 2023.

    Personal circumstances

30. The respondent was 38 years of age at the time of sentencing.

31. The sentencing judge received a report from a psychologist, Ms Heinrich, which provided some detail in relation to the respondent’s personal background and circumstances. It included the following.

32. The respondent was born in Queensland, but moved to Adelaide when she was six months old.  Her parents separated around that time, and she since had only very limited contact with her father.  She had maintained regular contact with her mother, who was recently diagnosed with cancer and has commenced chemotherapy.  She described having a positive relationship with her mother.

33. The respondent found school difficult.  She told Ms Heinrich that she was a victim of persistent bullying, and also struggled academically.  She was diagnosed with attention deficit hyperactivity disorder (ADHD) and prescribed dexamphetamine.

34. The respondent also told Ms Heinrich that she had been sexually abused by her step-father when she was a teenager.  She had also suffered from poor mental health since her teenage years, including having engaged in suicidal and self-harm behaviour.

35. The respondent commenced a serious relationship in her late teens, and she has two children from that relationship; a daughter who is 18 years of age, and a son who is 10 years of age.  She described her partner as very controlling, and physically and mentally abusive.  The relationship ended about three years ago.

36. The respondent has had problems with alcohol since she was a teenager.  She had also used cannabis from a young age, and commenced using methamphetamine when she was about 18 years of age.  She continued to use methamphetamine throughout her relationship with her children’s father.  She described herself as addicted to methamphetamine. 

37. More recently, the respondent’s abuse of illicit drugs had forced her to surrender the care of her daughter to her mother.  She had planned to commence drug rehabilitation, but had delayed while she continued to prioritise her drug taking over her parental responsibilities.  She has recently resumed a positive relationship with her daughter, but she described her relationship with her son as more complicated.  She said that her son had several developmental conditions, including a reactive detachment disorder, ADHD and possibly autism spectrum disorder.  She said he is very physically violent, and currently lives with his father.

38. After separating from the father of her children, the respondent had had three further relationships.  However, she described each of these relationships as abusive.

39. The respondent told Ms Heinrich that she had continued to struggle with her mental health.  She had received counselling, and said she had been diagnosed with a range of conditions, including drug-induced psychosis, borderline bipolar disorder, borderline personality disorder, ADHD, anxiety and depression.  She described bouts of extreme anger, during which she would vent in various ways, including by hurting animals.  She said she was currently being supported by her community corrections officer and an OARS counsellor.

40. In her report, Ms Heinrich described the respondent’s challenging life, with exposure to sexual abuse as a child, and abusive and controlling relationships as an adult.  She diagnosed the respondent as suffering from a borderline personality disorder.  She explained that this disorder was characterised by a failure to learn key life skills, which contributed to maladaptive coping strategies and made it difficult for a person such as the respondent to appropriately integrate into the community.  Ms Heinrich described the respondent as experiencing a debilitating fear of abandonment, and also diagnosed her as suffering from ADHD.  Ms Heinrich concluded that the respondent had a long-standing polysubstance abuse disorder, which had resulted in multiple drug-induced psychoses.  She explained that the respondent’s difficulties had increased her propensity towards anger, aggression and impulsive behaviours, with substance abuse increasing the risk factor.

41. In her sessions with Ms Heinrich, the respondent described her offending against LB and MB.  She explained that her anger towards these women, fuelled by drug abuse, had led to her offending, but she accepted that she had no proper excuse for her actions.  She expressed shame and remorse for her behaviour.  Ms Heinrich linked this offending to the respondent’s mental health difficulties and consequential difficulty in controlling her emotions, particularly when combined with substance abuse.

1. The respondent has a criminal history which includes various dishonesty, violence, driving, and breach of bail offences over the period since 2005.  The respondent attributes her previous offending to her drug and alcohol abuse.

   Sentencing remarks

2. The sentencing judge described the respondent’s offending and personal circumstances in terms similar to the summary above.

3. The sentencing judge accepted that, at the time of her offending, the respondent had an honest belief that she had been wronged by her victims, and that this explained her conduct.  Whilst accepting that this explanation did not directly mitigate the seriousness of the offending, his Honour accepted that it was relevant in a limited way in assessing the likelihood of the respondent reoffending.  At the same time, his Honour acknowledged that the offending behaviour was not out of character, but rather was consistent with her previous offending and behaviour as outlined to Ms Heinrich.

4. The judge described the respondent’s difficult personal circumstances and mental health issues, as well as her substance abuse and the effect this had had on her judgment and impulse control, including at the time of her offending.  The judge described the respondent’s offending as arising out of ‘a complex nexus of circumstances relating to physical, sexual and emotional abuse, family violence, drug use and a variety of mental health conditions’, saying that he would ‘take those matters into account’.  The judge also acknowledged the submission to the effect that the respondent had demonstrated some insight into her behaviour and was prepared to undergo drug rehabilitation and mental health treatment to address her difficulties.

5. After mentioning the various sentencing objectives (including the protection of the community, general and personal deterrence, punishment, accountability and denunciation, whilst allowing for rehabilitation), the judge concluded that only a sentence of imprisonment would meet these sentencing objectives in the present case.

6. The judge described the offence of aggravated robbery (Count 2) as ‘moderately serious to serious’, adding that it was ‘a sustained attack and involved the actual and threatened use of force.  The victim’s vulnerability was increased because [her] co-offender was involved.’

7. The judge noted that the aggravated robbery had been preceded by an aggravated assault causing harm (Count 1) in which the victim suffered harm, and that both of these offences occurred against a previous history of offending.  He described the subsequent threat to cause harm offence (Count 3) as ‘moderately serious’.

8. At one point in his sentencing remarks the judge referred to the robbery offence as aggravated by the use of an offensive weapon, although it is plain from a reading of his remarks as a whole that he understood that it was aggravated by it being committed in company with another (Mr Phillips).  It was the assault occasioning bodily harm which was aggravated by the use of an offensive weapon (the multitool).

9. The judge decided to impose a single sentence for the aggravated robbery and assault causing harm pursuant to s 26 of the Sentencing Act 2017 (SA), given that they were committed on the same occasion against the same victim. His Honour then described and imposed sentences for the various offences in the manner described earlier in these reasons. As mentioned, the head sentence ultimately imposed, after reductions for the respondent’s guilty pleas and time served, was imprisonment for 2 years, with a non-parole period of 8 months. The sentence was backdated to commence from 11 July 2024, when the respondent was last taken into custody.

10. His Honour declined to suspend the sentence he ultimately imposed, given the seriousness of the respondent’s offences, and the background of offending against which they occurred.  Nor was his Honour satisfied that it was appropriate to order that the sentence be served on home detention.

    Relevant sentencing guidance

11. In contending that the sentence imposed was manifestly inadequate, the Director focussed his submissions upon the component of the sentence referable to the aggravated robbery offence.  He argued that a starting point of 2 years and 8 months imprisonment for that offence was too low, having regard to the maximum penalty for that offence (imprisonment for life), and the guidance provided by the sentencing standard for armed robberies in R v Place,[9] and by the sentences suggested for basic robberies in cases such as R v Gannon[10] and R v Brant.[11]

    [9]     R v Place (2002) 81 SASR 395.

    [10]   R v Gannon (2012) 113 SASR 1.

    [11]   R v Brant [2018] SASCFC 72.

12. The sentencing standard in R v Place may be described as indicating that a sentence of imprisonment for 6 to 8 years will generally be appropriate for armed robberies committed on premises such as a service station, pharmacy or retail store and involving the use of a weapon to threaten the immediate victim.[12]  The guidance provided by this standard was recently the subject of detailed consideration in R v Ametovic,[13] which was heard at the same time as the appeal in the present matter.  It is not necessary to repeat what was said in that case, save to observe that the decision emphasises the importance of the guidance provided by the standard in appropriate cases, whilst at the same time acknowledging the flexibility in its application having regard to the circumstances of the particular offending and offender.

    [12]   R v Place (2002) 81 SASR 395 at [100]-[101] (Doyle CJ, Prior, Lander and Martin JJ, Gray J agreeing).

    [13]   R v Ametovic [2024] SASCA 153 at [41]-[50] (S Doyle JA, Bleby JA and B Doyle AJA).

13. The discussion in R v Ametovic concluded with reference to the Court’s emphasis, in R v Gannon[14] and R v Brant,[15] of the importance of maintaining a substantial difference between the sentences for armed robberies (to which the standard in R v Place applies) and the sentences for basic offences of robbery.  For robberies from retail premises or individuals, either with or without some violence, but not involving a weapon, a starting point of about 4 years would generally be appropriate.  In making these observations in R v Brant, the Court noted the differing maximum penalties applicable to the offences; namely 15 years imprisonment for simple robbery and robbery with violence, and life imprisonment for armed robbery.

    [14]   R v Gannon (2012) 113 SASR 1 at [33] (Kourakis J).

    [15]   R v Brant [2018] SASCFC 72 at [30] (Kourakis CJ, Kelly and Blue JJ agreeing).

    Manifest inadequacy

14. The principles governing a submission of manifest inadequacy in a sentence are well-settled, not in dispute and need not be repeated.

15. The aggravated robbery in the present case was aggravated by reason that it was committed in company.  Indeed, the respondent’s partner, Mr Phillips, actively participated by holding the victim’s arms while the respondent took her backpack.  Whilst the maximum penalty of life imprisonment for a robbery aggravated by reason of it being committed in company is the same as the maximum penalty for a robbery aggravated by reason of the use of an offensive weapon, it does not follow they are always, or even generally, of comparable seriousness.  Similarly, it does not follow that the standard in R v Place – which was expressed in terms of armed robberies – has any direct application.  As always with sentencing, much will depend upon the circumstances of the case.

16. The robbery in the present case did not involve the use of any weapon.  Whilst the respondent had earlier been armed with a multitool with an extended blade, the victim knew that it had been thrown aside and was no longer available to the respondent when she returned and robbed the victim of her backpack.  Whilst the presence and assistance of Mr Phillips no doubt added to the victim’s sense of vulnerability, the absence of any weapon meant that the standard in R v Place was not directly applicable, and a sentence lower than the numerical guidance provided by that standard could be readily justified.  Indeed, the 4 years suggested for basic robberies, including where violence is used, in R v Gannon and R v Brant was of more assistance in determining an appropriate penalty in the present case.

17. All of that said, it must not be overlooked that the respondent had earlier had a weapon (the multitool) in her possession when assaulting the victim.  Not only did the earlier possession of this weapon inform the context for the robbery which followed, but it also retained some relevance in circumstances where the judge imposed a single sentence for both the aggravated assault causing harm and aggravated robbery.  The assault involved many blows, and the robbery involved a significant degree of physical force.

18. The offending in the present case occurred in a suburban street, rather than a retail premises of the type contemplated, for example, in R v Place.  However, as cases such as R v Kelly[16] illustrate, this may be of little significance in circumstances such as the present, where the victim is equally vulnerable.

    [16]   R v Kelly [2023] SASCA 22.

19. The offending was not sophisticated.  Whilst it was premeditated to the extent that the respondent intended to confront the victim, and by the time she did so for a second time, she intended to take her backpack to see what was in it, it was offending which seems to have been attributable to anger and a loss of emotional control.

20. Related to this, a potentially distinguishing feature in the present case is the consideration, accepted by the sentencing judge, that the respondent’s offending was motivated by a genuine belief by the respondent that she had been wronged by her victims.  In the case of the aggravated assault and robbery, she believed that the victim owed her money and had stolen items from her, and had not responded properly to her attempts to recover her money and items.  Although not a justification for her offending, the respondent’s state of mind in this respect does inform, and to some extent mitigate, the degree of criminality inherent in her actions.

21. Finally, the judge was right to acknowledge the link between the respondent’s offending and her difficult personal background and circumstances.  He was entitled to take into account Ms Heinrich’s explanation of the link between the respondent’s childhood and early adulthood experiences of abuse, her mental health difficulties, and her difficulty in regulating her anger and emotional responses, particularly when combined with her abuse of illicit drugs.  He was entitled to take into account that the respondent’s offending arose out of ‘a complex nexus of circumstances relating to physical, sexual and emotional abuse, family violence, drug use and a variety of mental health conditions’.

22. In these circumstances, and acknowledging the breadth of the sentencing judge’s discretion, there was scope for his Honour to extend a degree of leniency.  However, given the seriousness of the aggravated assault causing harm and aggravated robbery offences, and the background of the offending against which they occurred, a starting point of 2 years and 8 months imprisonment for these offences was too low.  The use of this starting point resulted in an overall sentence that did not properly reflect the criminality of the respondent’s offending, and was manifestly inadequate.  A starting point of at least 4 years imprisonment for the assault and robbery offences would have been required to ensure proportionality in the sentence ultimately imposed.

    Permission to appeal

23. As this Court emphasised in R v Ametovic,[17] establishing error is not sufficient to justify granting the Director permission to appeal against sentence.  Because granting permission to appeal would expose the respondent to the hardship associated with double jeopardy, and with the risk of being resentenced, it is necessary to identify a proper basis for this Court’s intervention.  There must be a public interest in intervention which outweighs the hardship to the respondent.

    [17]   R v Ametovic [2024] SASCA 153 at [60]-[62] (S Doyle JA, Bleby JA and B Doyle AJA).

24. The circumstances in which there may be a public interest in intervention are well known.  They were summarised in R v Singh:[18]

    The principles governing an application for permission to appeal against sentence by the Director are well established.  Where the Director’s complaint involves one of manifest inadequacy, there will only be a grant of permission in the ‘rare and exceptional case’ where principles of double jeopardy are outweighed by the need to determine a matter of principle, correct an error of principle, establish or maintain adequate standards of sentence, enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected or to correct a sentence which is so manifestly inadequate that it amounts to an error of principle.[19]  

    If a sentence falls so far below the appropriate standard that to allow it to stand would undermine public confidence in the administration of justice, or so low that the magnitude of the disparity itself reveals a misapplication of principle, it may also be appropriate to grant permission to appeal even though no general point of principle will be established by the case.[20]

    [18]   R v Singh [2024] SASCA 81 at [30]-[31] (Livesey ACJ, Doyle and David JJA); applied in several subsequent decisions of this Court, including R v Marrone [2024] SASCA 99 at [35] (Lovell, Doyle and Bleby JJA); R v Berry [2024] SASCA 116 at [10] (S Doyle JA, Bleby JA and Hall AJA); R v Pokoina [2024] SASCA 132 at [46] (Lovell JA, S Doyle JA and Stein AJA).

    [19]   R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ; House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.

    [20]   R v Osenkowski (1982) 30 SASR 212 at 213 per King CJ; R v Nemer (2003) 87 SASR 168 at [24] per Doyle CJ.

25. As explained earlier in these reasons, the sentence imposed in the present case was manifestly inadequate.  However, it is not clear that it was so low as to undermine public confidence in the administration of justice.  The sentencing task was sufficiently complex and nuanced that it is not clear that intervention by this Court is necessary to maintain adequate sentencing standards, or would provide much guidance which would assist in other cases.  Given the detailed explanation the judge gave for extending leniency to the respondent based upon circumstances peculiar to her and her offending, the case is not as clear or strong a case for intervention as, for example, R v Ametovic.

26. Further, and in any event, there are three features of this case which would tend to underscore, if not exacerbate, the hardship to the respondent were this Court to intervene.

27. The first is the respondent’s difficult personal background and circumstances.  The detail of these matters, and the psychologist’s explanation of their significance, have already been addressed at length. For the reasons explained, the sentencing judge was entitled to treat these matters as relevant to the respondent’s offending, and hence to the sentencing exercise.  Significantly for present purposes, it may also be said that the respondent’s personal difficulties and disadvantage detract from her suitability as a vehicle for giving effect to the broader public interest in maintaining adequate sentencing standards.  So far as personal and general deterrence are concerned, it is relevant that even if her sentence were not increased, the respondent will have served a significant period of imprisonment before she is eligible for release.

28. The second is the imminence of the respondent’s eligibility for parole.  After reductions for her guilty pleas and the significant period of time she had already served in custody and on home detention bail, the judge fixed a non-parole period of 8 months.  Through no fault of the respondent, by the time the Director’s application for permission to appeal came to be heard, she had already served 6 of those 8 months.  She has already applied for parole, with her application due for consideration within a few weeks.  As the respondent submitted, with potential release within sight, the burden of double jeopardy would weigh particularly heavily upon the respondent.

29. A third matter weighing against this Court’s intervention in the present case is that any significant increase in the respondent’s sentence will risk introducing an unjustifiable disparity between her sentence and that of her co-offender, Mr Phillips.  As the High Court explained in Green v The Queen,[21] a desire to avoid disturbing parity between sentences imposed upon co-offenders may be a powerful consideration against granting permission to appeal in a proposed Crown appeal against sentence.

    [21]   Green v The Queen (2011) 244 CLR 462 at [2], [40] (French CJ, Crennan and Kiefel JJ).

30. The context in which parity arises in the present case is that after the respondent had been sentenced, but before the Director’s application for permission to appeal had been heard, the respondent’s co-offender in relation to the aggravated robbery, Mr Phillips, was sentenced by another judge for that offence.  The judge was informed of the sentence imposed upon the respondent and had regard to it in adopting a starting point of 2 years and 3 months imprisonment for Mr Phillips’ sentence.  This was reduced by five per cent to reflect his plea of guilty and a further 167 days for time spent in custody, resulting in a head sentence of 1 year, 8 months and 6 days imprisonment, with a non-parole period of 10 months.  Bearing in mind various matters, including the significant period already served, the judge found good reason to suspend Mr Phillips’ sentence.

31. It appears that the judge sentencing Mr Phillips was not informed that the Director had sought permission to appeal the respondent’s sentence on the ground that it, and in particular the component referable to the aggravated robbery, was manifestly inadequate.

32. Even accepting that there were reasons for Mr Phillips to be treated more leniently than the respondent, to significantly increase the respondent’s sentence would be to introduce a marked disparity between their sentences.  There is a real prospect it would give rise to a justifiable sense of grievance on the part of the respondent.

33. In all of the above circumstances, there was not a sufficient public interest in this Court’s intervention to justify a grant of permission to appeal.  Whatever public interest did exist was outweighed by the hardship that would be associated with exposing this respondent to the hardship associated with double jeopardy.

    Conclusion

34. For the reasons set out above, the Director’s application for permission to appeal against sentence was refused.