R v Chalmers - [2012] SASCFC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CHALMERS & ANOR
[2012] SASCFC 128
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Sulan and The Honourable Justice Blue)
5 December 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - GRAVITY OF OFFENCE
Appeal against two sentences imposed in the District Court - appellants charged with aggravated causing harm with intent to cause harm - Chalmers sentenced to three years and six months' imprisonment with a non-parole period of 18 months' imprisonment - Bekirovski sentenced to three years' imprisonment with a non-parole period of 12 months' imprisonment.
Whether the sentencing Judge sentenced upon incorrect factual findings - whether the sentence ought to have been suspended.
Held: Appeal allowed.
Per Kourakis CJ: Head sentences imposed are not manifestly excessive – the Judge’s starting point is a reasonable one for the offence – satisfied that a lesser term of imprisonment should not have been imposed.
Despite the violence of the appellants’ conduct and their lack of contrition, their good character, reasonable prospects of rehabilitation and time spent in custody warrant the suspension of their sentence.
Per Sulan J (Blue J agreeing): The trial Judge's erroneous view of the facts was material to the sentence of both appellants and enlivens the Court's jurisdiction to resentence - nevertheless the sentence imposed was within the range for offending of this nature - the head sentence and non-parole period is not interfered with, other than to be reduced for time spent in custody.
Having regard to the appellants' antecedents, evidence of good character, contrition and remorse there is good reason to suspend the sentences - Chalmers is sentenced to three years and one month imprisonment with a non-parole period of 13 months' imprisonment, suspended - Bekirovski is sentenced to two years and seven months' imprisonment with a non-parole period of seven months' imprisonment, suspended.
Criminal Law Consolidation Act 1935 (SA) s 23, s 24, s 353; Criminal Law (Sentencing) Act 1988 (SA) s 7A; Victims of Crime Act 2001 (SA) s 10, referred to.
House v The King (1936) 55 CLR 499; R v Sarandoglou (2010) 107 SASR 396, applied.
Harris v The Queen [1967] SASR 316, discussed.
Birch v Fitzgerald (1975) 11 SASR 114; R v Hortsmann (2010) 269 LSJS 42; Forsythe v Police [2010] SASC 214; R v Harkin (2011) 109 SASR 334; R v Wacyk (1996) 66 SASR 530, considered.

R v CHALMERS & ANOR
[2012] SASCFC 128
Court of Criminal Appeal: Kourakis CJ, Sulan and Blue JJ

KOURAKIS CJ: By reason of the error of the Judge described in [47] – [53] of the reasons of Sulan J, this Court must resentence the appellants.
The maximum penalties provided for offences of violence by the Criminal Law Consolidation Act 1935 (SA) (CLCA) are substantial. The maximum penalty for a basic offence of causing harm with an intention to do so (s 24 CLCA) is imprisonment for 10 years, and for an aggravated offence is 13 years. The maximum penalty for a basic offence of causing serious harm with an intention to do so (s 23 CLCA) is 20 years, and for an aggravated offence is 25 years. Statutory maximum penalties are not merely a demarcation of the outer limit of the sentencing power, sentences approaching the maximum are reserved for the worst offending of the kind proscribed by the statutory provision. The principle of sentencing parity then orders sentences for other offending accordingly. It is plain then that Parliament has adopted a strong sentencing position for offences of violence. Not surprisingly, that position has wide community support. This Court has long been concerned about outbreaks of public violence, particularly between young men, and has recognised that, even in the case of short sentences imposed on first offenders, the need to deter violence may demand that those sentences of imprisonment be served immediately.[1]
[1] Birch v Fitzgerald (1975) 11 SASR 114 at 117 (sentence was suspended on appeal).
The offence committed by the appellants was a serious one of its kind. At about midnight on a side street off Jetty Road Glenelg, the appellants and another friend crossed paths with another group of three men which included the appellants’ eventual victim, Koritsa. An argument erupted, probably, on the evidence, after a derogatory remark directed at Bekirovski about the “garlicky” odour of his yiros. Bekirovski kicked out at his taunter who, simultaneously, struck him about the eye with a bottle. It was not Koritsa who struck Bekirovski with the bottle. Indeed, Bekirovski acknowledged in his evidence that he never believed that it was Koritsa who had bottled him.
The appellants and their friend chased the man who had bottled Bekirovski and another man west along Jetty Road but did not catch them. They were walking back along Jetty Road when they spotted Koritsa. They ran after him and caught him at the entrance to a convenience store on the southern side of Jetty Road.
Koritsa held his hands to his face and implored the appellants not to hit his face. He did so because he had recently undergone facial surgery and his jaw was wired. One of the appellants, probably Bekirovski, retorted “you think we care”. Bekirovski then punched Koritsa and both fell on to the floor of the convenience store. Bekirovski stood up and began stomping Koritsa about the area of his upper back and head. A photograph taken by the store’s security camera shows Chalmers shielding his face with his hand as he enters the store. Chalmers then proceeded to kick Koritsa around the legs and buttocks whilst Bekirovski continued to stomp his upper body for several seconds. Chalmers then pulled Bekirovski away and they left the store together. The assault occurred in the presence of a sales attendant and several customers. They are shown on several photographs looking on helplessly in the face of the appellants’ violence.
As a result of the assault, Koritsa suffered a subdural haemorrhage. Koritsa was admitted to the Royal Adelaide Hospital on the night of the assault and was discharged about a week later.
In his Victim Impact Statement Koritsa recorded that he was then placed in the care of the Hampstead Centre for about 18 months. He stated that his hearing acuity was permanently adversely affected by the assault and that he continued to suffer a speech impediment. Koritsa also explained that he continues to suffer from depression and the associated symptoms.
In his sentencing submissions, Bekirovski’s counsel read from some notes made in the records of the Royal Adelaide Hospital. Bekirovski’s counsel told the Judge that Koritsa had not complained of any hearing disturbance on his discharge from hospital and that a doctor had noted that there was no neurological motor-sensory or co-ordination disturbance. However, Bekirvoski’s counsel did not expressly challenge the contents of the Victim Impact Statement. The hospital records themselves were not placed before the Judge. For reasons, which are unnecessary to traverse, they were included in the Appeal Books but this Court can not have regard to them because no application was made to adduce further evidence on the appeal.
Not surprisingly, in the absence of any direct challenge, the Judge sentenced on the basis of Koritsa’s symptoms. He was entitled to do so.[2]
[2] Criminal Law (Sentencing) Act 1988 (SA) s 7A; Victims of Crimes Act 2001 (SA) s 10.
Bekirovski put in mitigation of his conduct that it was the product of either some concussion or a psychogenic dissociative state. The Judge received a psychiatric report of Dr Raeside which posited both conditions as possible explanations of Bekirovski’s conduct. I am not persuaded that either explanation accounts for Bekirovski’s conduct. It is to be remembered that mitigating circumstances such as these must be established on the balance of probabilities. A possibility that concussion contributed to the conduct is not sufficient. Bekirovski’s conduct was manifestly purposeful and calculated. The injury to his eye does not appear to have distracted him at all from his pursuit of revenge. Despite his injury he engaged in the purposive conduct of chasing two men towards the beach and was seen talking casually with Chalmers and another man as they walked back in an easterly direction along Jetty Road before he spotted Koritsa.
Chalmers put in mitigation of his conduct that his involvement was instantaneous, instinctive and shortlived. Chalmers’ earlier chase of the two men towards the beach and his attempt to hide his face as he entered the store tell strongly against that submission. It is more probable than not that Chalmers called off the attack and pulled Bekirovski away after a relatively short time because he feared apprehension if they remained in the store much longer.
On appeal, both appellants attempted to diminish the relative seriousness of their offence by directly challenging Koritsa’s claim that he had suffered long term hearing and speech impediments and the Judge’s acceptance of his claim. The law has never favoured those who are, forensically, willing to wound but afraid to strike. If a frontal attack had been made on the claims of injury made in Koritsa’s Victim Impact Statement before the sentencing Judge, the Hampstead Centre notes, or other supporting material, might have been produced in response to such a challenge. It is too late on appeal to find the courage to take a position which should clearly and forthrightly have been put before the sentencing Judge.
Chalmers’ counsel also put an alternative argument, the steps of which were as follows. First it was submitted that the speech and hearing impediments described by Koritsa constituted serious injury. Secondly, it was contended that it is impermissible on conviction for an offence of causing simple harm to have regard to any consequence of the offence which amounts to serious harm. The conclusion which follows, if the premises of the argument are accepted, is that the speech and hearing impediments must be ignored in sentencing the appellants for the offence of causing non‑serious harm with which they are charged. In my view, the first premise of the submission is factually mistaken and the second premise is wrong in law.
As to the first premise, Koritsa’s Victim Impact Statement gave no indication of the extent of either impediment. Speech and hearing impediments may constitute serious harm but it would be necessary to know much more about Koritsa’s condition before that conclusion could be drawn in his case.
As to the second premise, the consequences of an offence must always be taken into account whether or not they were intended and whether or not they are more serious than they needed to be to constitute the offence. There are many cases in which much more serious harm than the harm intended is caused to a victim. The objective consequences of criminal conduct were the primary concern and criterion for punishment of the early criminal law. The evolution of criminal legal principles has reflected the development of more civilised social attitudes and there is now much greater, but not exclusive, concern with subjective intent and culpability. However, it remains the case that all other things being equal, the sentence imposed on an offender who, for example, intends only to cause a black eye, and causes no more harm than that, will be less than the sentence imposed on an offender with the same intention who by misfortune causes serious brain injury. Sentences continue to reflect considerations which go beyond subjective culpability.
Nonetheless, the injury caused by an offence of violence is but one of many factors which must be weighed. Care must be taken to maintain a proper balance between penalties imposed for those offences which, by good fortune, result in relatively minor injuries and those which, by misfortune, result in more substantial injuries. Offences of a kind which have the capacity to cause very serious injury should attract substantial penalties irrespective of whether the injury caused in the particular case amounts to serious harm, because it is important to deter all offences which carry that risk. Recognition of the need to punish and deter conduct which is attended by a substantial risk that it will cause serious injury will tend to moderate the degree to which the chance consequences of offences affect the severity of the sentences imposed.
I turn to the appellants’ personal circumstances. The appellants are men of generally good character. Chalmers worked for many years in his father’s rigging business. In late 2009 his mother suffered a stroke and his father stopped working in order to care for her. Chalmers now runs the business himself. His parents remain dependent on the support he provides to supplement their pensions. The rigging is mostly in the entertainment industry and the work is seasonal. Bekirovski helps in the business occasionally. Bekirovski’s working and social life has been more unsettled because of family misfortunes. However, he has recently married. He also recently became a father and his wife is again pregnant.
The circumstances of the offence and the appellant’s personal antecedents pull strongly in opposing directions.
In my view the Judge’s starting point of three and a half years is a reasonable one for the offence. The appellants launched an open, brazen and vicious attack. It was neither provoked nor impulsive; the appellants’ victim was chased down and set upon. The appellants acted in callous disregard of Koritsa’s plea for mercy. Stomping on someone’s head and upper back creates a real risk of injury. It is the kind of offence which must attract a substantial penalty for the reason given in [16] above.
A head sentence of three years six months against a maximum of thirteen years places this offence at the lower end of offences of this kind. In my view, it is more serious than that. I would not differentiate between the conduct of Bekirovski and Chalmers. The essence of Chalmers’ culpability was his encouragement of Bekirovski as they stood side by side stomping and kicking Koritsa.
The sentence imposed by the Full Court of this Court in R v Harkin[3] should not be taken to have established a benchmark for head sentences for serious offences of violence. The question in Harkin was whether in suspending the sentences, the sentencing Judge’s exercise of discretion had miscarried. The Full Court held that in the case of Mr Harkin Senior, it had and the suspension was set aside. It therefore became necessary to re-sentence him. The sentencing Judge had fixed a head sentence of three years. Gray and Sulan JJ did not explain how they came to fix the same head sentence as the sentencing Judge. The maximum penalty for the offence of aggravated cause serious harm for which Mr Harkin was sentenced was 25 years. A head sentence of three years was, in my respectful opinion, a very merciful one. White J expressly adopted the head sentence imposed by the sentencing Judge because it was not challenged by the prosecution. I am, with respect, not sure that once an error has been identified, the duty to fix the sentence which should have been imposed by the sentencing Judge can be modified by the position taken by the prosecution. Be that as it may, it remains the case that the head sentence imposed by the Full Court in Harkin was fixed after a hearing in which it appears to have been accepted by the Director of Public Prosecutions that a head sentence of three years was appropriate.
[3] (2011) 109 SASR 334.
In this case, because the appeal is brought by the offenders on the ground that the sentence is manifestly excessive, I need not consider further the length of the head sentence I would have imposed. It suffices to say that I am satisfied that I would not have imposed any lesser term of imprisonment.
The only remaining issue, and the most difficult, is the question of suspension. The appellants must demonstrate that there is good reason to suspend the sentences of imprisonment.
The distinction between an absence of prior convictions and positive good character is particularly important on the question of suspension. The material provided by the appellants does demonstrate positive good character. The material provided by Bekirovski does so in a more substantial way. I refer here to the references from the soccer club in which he has been involved for many years and the references from his workplace which demonstrate an industrious approach to his work. I accept also that both appellants have reasonable prospects of rehabilitation.
Contrition and remorse are also important considerations when a court comes to consider the question of suspension.
Chalmers pleaded not guilty in order to take advantage of what his counsel had advised him were “irregularities and inadequacies” in the prosecution evidence of his identity, even though he knew, and had told his counsel, that he had taken part in the assault. He was of course entitled to do so and his penalty must not be increased beyond that which is otherwise proper for his decision to test the prosecution case.
However, his decision to take his chances on a not guilty plea is indicative of little contrition. Chalmers’ counsel submitted to the Judge that in Harris v The Queen[4] this Court had held that defending a criminal prosecution was not inconsistent with contrition. The Court in Harris decided no such thing. The Court, Bray CJ, Hogarth and Mitchell JJ, emphasised that defendants could not be penalised for the way in which they conducted their defence, but went on to explain:[5]
On the other hand there is a difference, perhaps more apparent in logic than in practical application, between adding something to what would otherwise have been a normal sentence for the particular crime and refraining from deducting something from what would otherwise have been such a sentence. Contrition, repentance and remorse have always been regarded as mitigating factors, leading in a proper case to some reduction, it may be a considerable reduction, of the normal sentence. One way of manifesting contrition, repentance and remorse is, of course, by a plea of guilty and a full confession. It may be doubted how many pleas of guilty really proceed from such motives. Those which do not, and in particular those which result merely from an acceptance of the inevitable, are not, in our view, entitled to any particular consideration.
[4] [1967] SASR 316.
[5] [1967] SASR 316 at 328.
After Chalmers was convicted, his counsel told the Judge that he was “very sorry for what happened”. Chalmers had also told the probation officer who had prepared his pre-sentence report that he wished the assault had “never happened”. He said that he accepted responsibility for his actions and that he recognised the impact and consequences of his offending.
Bekirovski pleaded guilty on the day of the trial. There was no doubt about his identity because, apart from anything else, he had attended at the Queen Elizabeth Hospital to have his eye treated. Bekirovski had initially pleaded not guilty because he did not have a recollection of the incident and because of the medical conditions postulated by the psychiatrist Dr Raeside. Apparently, it was thought that he might have a defence that he did not intend harm. Bekirovski’s conduct was redolent of an intention to harm. In my view, his psychiatric defence was weak.

Bekirovski instructed his counsel to negotiate a lesser charge whilst maintaining his not guilty plea. Only when those negotiations failed did he plead guilty. By his plea he accepted responsibility for his conduct. It is not obvious to me why there was any impediment to pleading earlier if he was truly contrite. The only thing that had changed was that the time to negotiate a deal had run out. Overall Bekirovski conducted the proceedings to advantage himself and in a way which showed little contrition. Nonetheless, in the course of sentencing, Bekirovski, through his counsel, offered to apologise directly to Mr Koritsa. Understandably, Mr Koritsa refused that offer.
I am left with the strong impression that neither Chalmers nor Bekirovski were truly remorseful. I understand that the natural fear of the sentences they faced may explain their delay in acknowledging their guilt. Nonetheless, in sentencing for offences of this kind, deep contrition and insight into the wrongfulness of resorting to violence and an appreciation of its sometimes catastrophic consequences are very important indicators that a suspended sentence is appropriate. Those indicators are lacking in both their cases. Their absence is a reason to be cautious about their prospects for rehabilitation.
I referred at the commencement of my reasons to the community’s concern for street violence and the need for strongly deterrent sentences. I am not persuaded that there is sufficient reason in the appellants’ personal circumstances alone to suspend the sentences which must be imposed. It is important that it be understood that claims of contrition will be carefully scrutinised but that the scope for leniency is much greater when it is demonstrated by conduct and not just paid lip service.
On the other hand, the appellants have now spent five months in custody pending the hearing and determination of this appeal. They have served a substantial proportion of the non-parole periods imposed by the Judge. The time spent in custody is a substantial punishment. If the sentences were to be suspended the appellants would remain liable to be returned to prison for a longer period under the bond than they would on parole. The suspension of their sentences would not detract much from the deterrent effect of their sentences because of the peculiar reason for the suspension and the fact that they have served a substantial period of imprisonment.
By a small margin I am persuaded that the appellants’ good character, their reasonable prospects of rehabilitation and, most importantly, the time spent in custody warrant the suspension of their sentences despite the violence of their conduct and their lack of contrition.
Conclusion
I would allow the appeal. I would reduce the sentences of imprisonment imposed by the sentencing Judge by five months to take into account the period of imprisonment served by the appellants pending this appeal. I would suspend the balance of the sentences.
The sentence in respect of Chalmers is that he be imprisoned for three years and one month with a non-parole period of 13 months. The sentence is to be suspended upon him entering into a bond in the sum of $500 to be of good behaviour. I would also order that he be under the supervision of a community corrections officer and that he undertake counselling as directed by that officer.
The sentence in respect of Bekirovski is that he be imprisoned for two years and seven months with a non-parole period of seven months. The sentence is to be suspended upon him entering into a bond in the sum of $500 to be of good behaviour.
SULAN J: This is an appeal against two sentences imposed in the District Court.
The appellants and defendants were charged with aggravated causing harm with intent to cause harm, following an incident occurring in Glenelg in the early hours of 7 September 2009. The maximum penalty for the offence is 13 years’ imprisonment. The defendant, Bekirovski, pleaded guilty on 20 February 2012, being the morning his trial was to commence. After a trial by Judge alone, the defendant, Chalmers, was found guilty on 1 March 2012.
The sentencing Judge considered that there was no reason to distinguish between the two insofar as the starting point for the head sentence. The Judge reduced Bekirovski’s sentence to three years from three and a half years on account of his guilty plea. The Judge imposed a non‑parole period of 12 months’ imprisonment. Chalmers was sentenced to three years and six months’ imprisonment, with a non-parole period of 18 months’ imprisonment. Both sentences commenced on 29 June 2012.
Background
Around midnight on 7 September 2009, the victim, Koritsa, and two of his friends, James and Pedler (‘the Koritsa group’), were walking along Durham Street, Glenelg. As they walked towards Jetty Road, they saw a group of three men approaching from the opposite direction. That group included the two defendants and a third man.
As the groups neared each other, there was an altercation between Bekirovski and a person in the Koritsa group. The circumstances of that altercation was the subject of a disputed facts hearing. At that hearing, the Judge heard evidence from Koritsa, James, Pedler and Bekirovski. The Judge concluded that one of the Koritsa group probably said something insulting to Bekirovski, which caused Bekirovski to kick James in the leg. The Judge found that James either threw a beer bottle at Bekirovski, hitting Bekirovski in the head, or directly hit Bekirovski over the head with a bottle. The bottle struck Bekirovski above the eye.
As a result, Bekirovski has little memory of the events that followed. Dr Raeside, a forensic psychiatrist, concluded that it is likely the strike to Bekirovski’s head caused either concussion or a psychological reaction amounting to a period of dissociation. According to Dr Raeside, this was coupled with a strong emotional reaction in Bekirovski caused by the fear that he may have suffered a severe eye injury.
Immediately after the bottle attack, the Koritsa group fled towards Jetty Road. The defendants’ group gave chase. On reaching Jetty Road, James and Pedler ran in a westerly direction towards the beach. Koritsa ran east. The defendants’ group chased Pedler and James. As they did, one of the defendants’ group said to Bekirovski “that’s them” or “that’s one of them”. Bekirovski did not know which of the three men had struck him. The defendant’s group eventually abandoned chasing Pedler and James.
As they were walking back in an easterly direction, they saw Koritsa walking westward along Jetty Road, looking for his two friends. Upon seeing the defendants’ group coming towards him, Koritsa doubled back and ran east.
The defendants’ group ran after Koritsa and accosted him on the footpath outside a convenience store on Jetty Road. Koritsa held his arms up over his head in a defensive stance. Bekirovski punched Koritsa in the face, causing Koritsa to fall to the floor inside the store. Bekirovski followed Koritsa inside the store. Chalmers then entered the store. Bekirovski stomped on Koritsa a number of times in the area of the upper body. Chalmers stomped on Koritsa’s legs and buttocks. Chalmers then grabbed Bekirovski, pulled him away, and the two ran away. The attack in the convenience store lasted less than five seconds.
The appeal
Counsel for Bekirovski and Chalmers submit that the sentencing Judge sentenced upon an incorrect factual premise. Counsel for Chalmers submits that the Judge erred in failing to give any or adequate weight to the role of Chalmers in relation to the conduct of Bekirovski. There were a number of submissions from both counsel contending that numerous errors had been made by the Judge. For reasons which are apparent later, it is not necessary to deal with a number of the complaints.
The Judge found that, having entered the convenience store with Koritsa, Bekirovski knelt astride Koritsa and punched him repeatedly in the direction of the head. CCTV footage, which was tendered at the hearing, shows that Bekirovski did not punch Koritsa while in the convenience store. Counsel for the Director of Public Prosecutions accepts that the Judge had inaccurately described the actions of Bekirovski in the convenience store. Counsel accepts that when viewing the CCTV coverage, it does not appear that Bekirovski punched Koritsa whilst he was lying on the ground in the convenience store.
The trial Judge’s erroneous view of the facts is repeated on two occasions in the sentencing remarks. The Judge stated:
... This was a sustained attack. You Bekirovski punched [Koritsa] such that he was knocked face down on the floor. You both then attacked him when he was on the floor, you Bekirovski punching and kicking him about the head, and you Chalmers, kicking him about the body ...
When referring to Chalmers, the Judge said:
So far as your part in the incident is concerned, it is true that you inflicted less blows on the victim than Bekirovski did. You stepped into the shop and just kicked him for a while, while Bekirovski was astride him and punching him in the head. ...
Counsel for the Director submits that the error which has been identified and conceded was not a material error. Counsel submits that the severity of the one punch outside the store, combined with the attack, that is, the kicking of Koritsa inside the store when Koritsa was lying on the ground, was such as to result in the error of describing Bekirovski as continually punching Koritsa whilst he was lying on the ground as immaterial.
The Judge described multiple punches, when there were none. The attack in the store was described as a sustained attack, and a vicious assault. The description of the attack as sustained and vicious was based on the totality of the conduct described by the Judge, which included Bekirovski punching the victim when he was lying on the ground. The error is a material error.
The well-known passage in House v The King is apposite. Dixon, Evatt and McTiernan JJ said:[6]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
In this case, a material factual error was made. It follows that the sentencing discretion miscarried.
[6] (1936) 55 CLR 499, 504-5.
Section 353(4) of the Criminal Law Consolidation Act 1935 (SA) provides that the Court will quash the sentence if it thinks that a different sentence should have been passed, and the Court may substitute such other sentence as the Court thinks ought to have been passed.
In R v Sarandoglou¸ Kourakis J (as he then was) said:[7]
Section 353(4) must be understood against the common law principle that an appeal against sentence will not be allowed unless there has been an error in the exercise of the discretion of the type identified in House v The King. In my view, it follows that subs (4)(a) applies only to those cases in which the court is of the view that a House v The King error has been made and that either it should impose a different sentence from the one imposed by the sentencing judge or it should remit the matter to the sentencing court to consider whether or not a different sentence should be passed.
[Citations omitted].
[7] (2010) 107 SASR 396, [41]. See also R v Horstmann (2010) 269 LSJS 42; Forsythe v Police [2010] SASC 214.
The trial Judge’s error was material to the sentence of both appellants and enlivens this Court’s jurisdiction to resentence. It is therefore unnecessary to consider the appellants’ other grounds.
The injuries suffered by the victim
In his victim impact statement, Mr Koritsa described his injuries:
The vicious unprovoked attack resulted in me being kept in hospital for several days with a brain haemorrhage and damage to my eardrums. This left me with very excruciating headaches/migraines that I still experience frequently three years later. On leaving hospital I was transferred into the care of the Hampstead Brain Trauma Centre and was under their care for approximately eighteen months because of the damage to my brain. The damage to my eardrums mean that my hearing is not as good as it was before and this will be a problem for the rest of my life and my speech impediment which also resulted from the attack makes it difficult for people to understand me and for me to communicate well with them.
He also stated that he suffers from deteriorating memory loss, and periods when he is depressed. His concentration is poor, he suffers headaches and experiences anxiety attacks.
Counsel for Chalmers submits that the speech and hearing impediments, as described by Koritsa, constitute serious harm and it is impermissible on conviction for an offence of causing simple harm to have regard to any consequence which amounts to serious harm. I reject the submission.
The consequences of an offence must always be taken into account whether or not they were intended and whether or not they are more serious than they needed to be to constitute the offence. There are many cases in which much more serious harm than the harm intended is caused to a victim. All other things being equal, the sentence imposed on an offender who intends only to inflict a minor injury, will be less than the sentence imposed on an offender with the same intention who by misfortune causes a very serious injury.
The personal circumstances of each appellant
The defendants are men of good character.
Mr Bekirovski is 30 years of age, married with a seven-month-old child. His wife is pregnant. Mr Bekirovski’s brother died in a motor car accident in 2006, which has severely affected him. His father suffered a debilitating stroke in 2004-2005. After that, Mr Bekirovski attempted to run the family business, but eventually found that he was unable to do so. The business was then sold at a loss.
He has no previous convictions for offences of violence. His only convictions relate to driving offences. His life has been unsettled because of family misfortunes. Personal references tendered on his behalf confirm that he is a dedicated employee, a good family man, and that this offending is totally out of character. He is involved in two sporting clubs and is regarded as a role model to other players and children at the clubs. On the night of the offence, he was at home and did not want to go out. He was convinced by his friends to join them.
Chalmers is 31 years of age. He has no previous convictions for violence, and his prior court appearances for relatively minor offending have resulted in the imposition of fines. He has worked for his father in the rigging industry for the ten years prior to his conviction and imprisonment. At the time of his imprisonment, he was running the business and was responsible for the business. His parents remain dependent on his support. His mother suffered a stroke in 2009 and his father became her carer.
A number of character references confirm that Mr Chalmers is a responsible and hard-working individual. Those references confirm that he is respectful of others and that this offending was totally out of character.
A probation officer who interviewed Mr Chalmers and provided a pre‑sentence report advised the Court that Mr Chalmers told him that this was an isolated occurrence and that, in the heat of the moment, he had supported his friend who had been assaulted and was bleeding from an injury to his head. The probation officer observed that, at the time, Mr Chalmers displayed an inability to effectively consider the consequences of his actions. The probation officer considered that Mr Chalmers would benefit from undertaking supervision and counselling to give him coping strategies to avoid further anti-social behaviour.
Contrition
Bekirovski attended at the police station and gave himself up. He admitted that he was involved. Although he did not admit the charge until the day of trial, he had always accepted that he was involved and caused the victim harm. He had contended his conduct was reckless rather than deliberate. His pre-trial conduct did not demonstrate a lack of contrition.
The pre-sentence report relating to Mr Chalmers refers to his lack of ability to effectively consider the consequences of his actions, as well as his lack of skills to remove himself from a potentially dangerous situation. Mr Chalmers should not be punished because he lacked those skills. He pulled Bekirovski away after a very short time. According to the pre-sentence report, he now realises the effect of his conduct. Mr Chalmers has expressed his regret for what occurred
The sentence
The Court was referred to the decision of the Court of Criminal Appeal in R v Harkin.[8] Harkin was a Crown appeal against sentence. The two defendants had each pleaded guilty to the offence of aggravated causing serious harm with intent to cause serious harm. John Harkin was the father of Brendan Harking. Both had no prior record of offending. On the day of the offending, the wife of John Harkin and the victim had been in a verbal altercation outside a restaurant. On returning home, Mrs Harkin told the defendants of the altercation. It was accepted that the defendants formed the belief that, not only was there a verbal altercation, but some significant physical contact had occurred.
[8] (2011) 109 SASR 334.
The defendants drove to the restaurant. They followed the victim into the toilet and assaulted him in a cubicle. They kicked and punched him in the head and ribs. It was a sustained attack, done with the intention of causing the victim serious harm. The victim suffered severe injuries, including fractures to the head, forehead and ribs. He was admitted to hospital and required extensive surgery. He was left with long-term emotional health issues.
In the case of John Harkin, he was sentenced to three years’ imprisonment with a non-parole period of 18 months’ imprisonment. Brendan Harkin was sentenced to two years and three months’ imprisonment with a non-parole period of 12 months’ imprisonment. The sentencing Judge suspended both sentences.
The Court observed that, in the case of John Harkin, the Director had accepted that the head sentence was at the lowest end of the appropriate range, but contended that it should not have been suspended. Gray and Sulan JJ observed that John Harkin and his son had sought out the victim and launched an unprovoked and vicious attack upon him. The assault was committed with the intention of causing the victim serious harm, which must be harm that endangers the victim’s life or consists of or results in serious disfigurement of the victim. The retaliating conduct was wholly disproportionate to John Harkin’s belief as to what had occurred. In the case of Brendan Harkin, the Court upheld the Judge’s decision to suspend the sentence, as the Court was of the view that he had acted under the influence of his father, and his culpability was less than John Harkin’s.
The offending in this case was less serious than in the case of John Harkin and Brendan Harkin. The maximum penalty in the Harkin case was 25 years’ imprisonment, as compared to 13 years’ imprisonment for this offending. In this case, the degree of violence was less, the injuries sustained were less serious, and the intention was to do harm, not serious harm.
The Judge fixed a starting point for each defendant of three and a half years’ imprisonment. He considered that, while Bekirovski was the principal offender, he was affected by the injury that resulted from the previous altercation. He concluded that Chalmers played a more minor role, but that there was insufficient reason to justify distinguishing between the conduct of the defendants.

In my view, Bekirovski was the principal offender. He punched Koritsa once in the head and then stomped on Koritsa’s upper body multiple times. There is a question as to whether the earlier altercation gives rise to mitigating circumstances. In R v Harkin, Gray and Sulan JJ stated:[9]
Attacks in revenge threaten the security of our community. That security depends upon respect for the police and proper policing practices. The apprehension of offenders should be left in the hands of the police. This is an important aspect of our democratic society. Taking the law into one’s own hands undermines the manner in which our criminal justice system operates.
[Citations omitted].
[9] (2011) 109 SASR 334, [42]. See also [91]-[95] per White J.
Bekirovski’s case differs in a critical aspect from the circumstances in Harkin. Bekirovski had been injured and possibly concussed by the earlier altercation. He feared he had received a serious eye injury. As Dr Raeside was not in the same position as a person who coolly considers an earlier altercation and then decides to seek retribution. The continuing effects of the previous altercation distinguishes the seriousness of his offending when compared to Harkin.
Chalmers played a lesser role in the offending. He stomped on Koritsa multiple times, but to the buttock and leg regions. Unlike Bekirovski, he was not labouring under the effects of concussion or fear. He pulled Bekirovski away from Koritsa.
In resentencing the defendants, I have considered the sentencing Judge’s remarks and conclusions. The sentences he imposed were within the range for offending of this nature. In the final analysis, I would not interfere with the head sentence and non-parole period that he imposed.
Suspension of the sentence
This leaves the question whether good reason exists to suspend the sentences of imprisonment. This remaining issue is most difficult.
Offences of violence, where serious injury results, will ordinarily attract an immediate custodial sentence. As Gray and Sulan JJ observed in Harkin, revenge attacks threaten the security of our community.[10] The Court will always consider such assaults seriously.
[10] R v Harkin (2011) 109 SASR 334, [42].
On the other hand, the circumstances of each case will differ. As Perry J, with whom Millhouse J agreed, observed in R v Wacyk:[11]
Those cases are examples of the fact that, notwithstanding indications given from time to time by this Court that certain offences ordinarily call for an immediate custodial term, there must always be room for the odd exception. Strictures that a given offence or class of offences will ordinarily deserve an immediate custodial term are nothing more than an indication that the need for general deterrence attaching to them will commonly outweigh idiosyncratic features attaching to the case, including considerations personal to the offender.
[11] (1996) 66 SASR 530, 536.
I am persuaded that there is good reason in the circumstances of the defendants to suspend the sentences of imprisonment. When considering the issue of suspension, a lack of prior convictions and evidence of good character are significant. Material provided by Bekirovski clearly demonstrates his good character, particularly the references from the soccer club with which he has had involvement. Further, material from his workplace demonstrates a conscientious manner in which he conducts himself. Bekirovski has demonstrated that he is a responsible person who has good family support. He is supportive of his family.
Mr Chalmers’ references are not quite so compelling. Nevertheless, he has no record of violence. The probation officer considers that he will be assisted by supervision and counselling. I am not prepared to distinguish between the two.
Aside from the factors I have already alluded to, one must consider each defendant’s contrition and remorse.
Bekirovski demonstrated his contrition and realisation of his unlawful conduct by voluntarily attending at the police station. He at all times accepted his involvement in the incident. He accepted that he had caused harm to Koritsa. The only issue that he contested, until he pleaded guilty, was whether his conduct was intentional or reckless. Given the fact that he had suffered a head injury and had an imperfect recollection of the incident, I do not consider his late plea demonstrates a lack of contrition on his part.
Chalmers had told his counsel of his involvement in the assault. Nevertheless, he pleaded not guilty in order to take advantage of what his counsel had advised him were “irregularities and inadequacies” in the prosecution evidence of his identity. His penalty is not to be increased beyond that which is otherwise appropriate.
After Chalmers was convicted, his counsel told the Judge that he was “very sorry for what happened”. Chalmers had also told the probation officer who had prepared his pre-sentence report that he wished the assault had “never happened”. He said that he accepted responsibility for his actions and that he recognised the impact and consequences of his offending. Despite his plea of not guilty, I am prepared to accept that he now appreciates the seriousness of his offending and is genuinely contrite.
In the case of each defendant, they have excellent prospects for rehabilitation and are unlikely to offend again in the future.
My decision to suspend the sentence has also been influenced by the period of five months which the appellants have spent in custody. That time will have had a salutary effect upon them.
The appeals are allowed. The sentences in each case are set aside. In each case, I would reduce the sentence and non-parole period by five months, to take account of the time each has spent in custody.
The sentence in respect of Chalmers is that he be imprisoned for three years and one month, with a non-parole period of 13 months. The sentence is to be suspended upon him entering into a bond in the sum of $500 to be of good behaviour for three years. Having regard to the probation officer’s report, I impose a condition of the bond that he be under the supervision of a community corrections officer and undertake any counselling that he is directed to undertake.
The sentence in respect of Bekirovski is that he be imprisoned for two years and seven months, with a non-parole period of seven months. The sentence is to be suspended upon him entering into a bond in the sum of $500 to be of good behaviour for three years.
BLUE J: I agree with Sulan J.