R v Clancy - [2013] SASCFC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLANCY
[2013] SASCFC 63
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Kelly and The Honourable Justice Blue)
28 June 2013
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against sentence. The appellant was convicted after trial of aggravated causing serious harm with intent to cause serious harm. She was was sentenced to 14 years' imprisonment with a non-parole period of 10 years' imprisonment. The appellant contends that the sentencing Judge proceeded on a basis of fact not proved beyond reasonable doubt. The appellant contends that the sentence was manifestly excessive.
Held: Appeal allowed. The appellant's sentence is reduced to ten years' imprisonment with a non-parole period of six years' imprisonment (at [80]).
Per Sulan and Blue JJ (Kelly J dissenting):
1.   The factual basis on which the Judge proceeded to sentence included two findings which cannot be supported having regard to the evidence (at [39]-[53]).
2.    Those errors alone are not sufficient to interfere with the sentence (at [59]).
3.    The starting point imposed by the Judge is similar to that imposed for serious assaults involving multiple offending. The starting point was manifestly excessive (at [76]-[79]).
Criminal Law Consolidation Act 1935 (SA) s 23(1), referred to.
R v Stehbens (1976) 14 SASR 240; Makarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; R v McNamara [2009] SASC 227; (2009) 105 SASR 38; R v Wilkinson [2008] SASC 172; (2008) 101 SASR 21; R v Saunders [2011] SASCFC 37; (2011) 210 A Crim R 1; R v Martin [2007] SASC 336; (2007) 99 SASR 213; R v Campbell [2012] SASCFC 44, considered.

R v CLANCY
[2013] SASCFC 63
Court of Criminal Appeal: Sulan, Kelly and Blue JJ

SULAN AND BLUE JJ: This is an appeal against sentence. The defendant and appellant, Tanya Michelle Clancy, pleaded not guilty to the offence of aggravated causing serious harm with intent to cause serious harm contrary to section 23(1) of the Criminal Law Consolidation Act 1935 (SA). The aggravating features of the offence were that an offensive weapon was used, namely a chair, and that the offence was committed in company with one or more other persons.
Ms Clancy was convicted by a jury after a trial in the Supreme Court. She was sentenced to 14 years’ imprisonment with a non-parole period of 10 years.
Ms Clancy appeals against the sentence on the ground that it is manifestly excessive. It is further contended that the sentencing Judge erred in proceeding on a basis of fact which was not proved beyond reasonable doubt.
Background
On 29 July 2011, Ms Clancy was at her house at Elizabeth Park. She was there with the victim of the assault, Ms Christine Le. Ms Le and Ms Clancy were acquaintances. They were consuming alcohol. Whilst at the house, Ms Clancy was visited by her niece, Shyanna, and her friends who had come there to get cigarettes. Ms Clancy knew Craig, one of Shyanna’s friends.
Both Shyanna and Craig were 13 years old. Also present at Ms Clancy’s house was Sammy-Jo aged 11, Stacie (Sammy-Jo’s elder sister) aged 15, and Irvine aged 16. The youths are identified by first name only.
At one point during the evening, Ms Clancy and Craig left the house on foot to purchase cigarettes. Craig told Ms Clancy that on a previous occasion Ms Le had attempted to strangle him.
Upon returning to the house, Ms Clancy attacked Ms Le by kicking and punching her. A chair was used during the assault. The attack commenced in the kitchen. Ms Le was then dragged into the lounge room where the assault upon her continued. Craig and Shayanna then kicked and punched Ms Le, after seeking Ms Clancy’s permission to join in.
Ms Le became unconscious during the attack. Ms Clancy collected a shopping trolley from outside the house and brought it into the lounge room. With the assistance of Shyanna, Craig and Irvine, Ms Clancy placed Ms Le into the trolley on her back with her legs over her head. Ms Clancy and Craig then pushed the trolley through the backyard to a vacant house next door. Ms Clancy placed a piece of plywood over the top of the trolley and returned to her home.
As a result of an anonymous call to SA Ambulance, Ms Le was found by paramedics in the trolley. She was curled on her side in a foetal position. She was severely bruised on the left side of her face and had dried blood around her nose, mouth, right ear and left side of her head. Paramedics reported that she was making mumbling noises and was only able to tell them her name.
Ms Le was taken to the Royal Adelaide Hospital and placed on a ventilator. She suffered brain damage, multiple rib fractures, collapsed lungs and facial fractures. She was admitted to the intensive care unit for two days and then transferred to a ward, where she remained for approximately three weeks.
Due to the traumatic brain injury she suffered, Ms Le spent a further seven weeks in the brain rehabilitation unit at Hampstead Rehabilitation Centre, improving her orientation, memory, speech and limb weakness. She also needed assistance with activities for daily living, including walking.
Ms Le died before Ms Clancy’s trial. Her death was unrelated to the assault.
Sentencing Judge’s remarks
In sentencing Ms Clancy, the Judge considered the circumstances of the offending. The Judge concluded:
Upon returning back to your house, you went up to Ms Le and hit her in the head. At the time of this hit, witnesses heard you say something along the lines of ‘This is for hitting my nephew Craig’. Ms Le fell to the ground. You then grabbed a chair that was in the kitchen and put the chair to Ms Le’s throat. You then started jumping on the chair and pushing it into Ms Le’s throat. You began to get angrier. You dragged Ms Le into the lounge room and began kicking and punching her in the head.
Shyanna and Craig were encouraging you by saying ‘Bash her, Auntie’. Your niece asked you if she could join in and you said ‘Go for it’. Shyanna and Craig also started kicking, punching and jumping on Ms Le in the head. Whilst Shyanna and Craig were bashing Ms Le in the head, you were kicking her around the stomach area.
The witnesses describe Ms Le bleeding from the nose and right ear, and her eyes rolling back into her head. They said Ms Le was crying and you told her to shut up. She eventually became unconscious.
The Judge considered the role that Ms Clancy played in the offending:
You effectively blame that on the youngsters who were present at your home. Although two of them were involved, you were the ringleader and encouraged minors to commit a serious crime.
The Judge referred to the submission made by counsel for Ms Clancy regarding the factual basis on which she was to be sentenced. The Judge remarked:
Mr Lang, on your behalf, has asked me to sentence you on the most favourable version of events given by the witness Sammy-Jo. I have decided that the overall summary of events that I have just described is a reasonably accurate version of what happened, and I will proceed to sentence on that basis.
The Judge considered Ms Clancy’s personal circumstances. He discussed her prospects for rehabilitation and the seriousness of the offending. The Judge stated:
The sad fact of the matter is that I find it difficult to find that you have any realistic prospects of rehabilitation at the present time. You have lived a life of crime. You have repeatedly offended in matters involving violence. You have been imprisoned in the past, but it does not appear to have had any obvious deterrent effect upon your behaviour. You have never had the benefit of any programs to attempt to educate and rehabilitate you, and I hope that with a long period of imprisonment, you will be able to educate yourself in anger management and alcohol consumption. You may meet the eligibility for the program “Making Changes”. You will need to cooperate fully in any such program to gain any benefit.
This was a most brutal attack which you made on a defenceless woman. You attacked her and then encouraged minors to join in the beating you handed out to the victim. That was totally irresponsible. The victim’s family were devastated by your actions and the actions of the others responsible for the bashing.
I take into account the severe impact that your crime has had upon members of the victim’s family. You heard their statements read out in court. Your only excuse is alcohol. That is not an excuse in law. I accept that you were affected by alcohol, but it can be no excuse for your violent assault.
You have not accepted responsibility for this crime. There is no evidence of contrition or remorse. Your counsel blamed this incident on alcohol.
...
The sentence which I impose must reflect elements of both personal and general deterrence.
The maximum sentence for this crime is 25 years imprisonment. As I have said, it was a crime that was brutal and involved prolonged pain and suffering for the victim who, after the bashing was complete, was close to death, and then required extensive rehabilitation for many months. This type of senseless crime must be deterred. It is certainly a case that fits in at the higher range of sentencing for this type of offending.
In the circumstances, I impose a head sentence of imprisonment for 14 years. I will be as lenient as I can in the circumstances in imposing a non-parole period, with not much confidence that you will be rehabilitated. I hope I am wrong. I fix a non-parole period of 10 years.
Personal circumstances
Ms Clancy was born in Adelaide in 1979. She grew up in the Clare Valley with her mother until the age of five. Her parents were separated shortly after she was born and she did not have any contact with her father until her teenage years. Her father passed away in 2001. She has three elder half siblings on her mother’s side. She has contact with two of them. She also has half-siblings on her father’s side but has no on-going relationship with them.
Ms Clancy attended Clare Valley Primary School for a short period before she and her sister were removed from the family home and placed into foster care. The removal was as a result of reports of regular sexual abuse perpetrated by her step-father.
Ms Clancy and her sister were placed in several different foster homes for about two years. The two were then separated. Between the ages of 8 and 13, Ms Clancy resided in different foster homes and had no contact with her mother or siblings.
At the age of 13, Ms Clancy re-established contact with her mother and began seeing her regularly. Her mother was awarded custody and she resumed living with her mother and step-father again. During this time, her stepfather again sexually abused her. She did not report the sexual abuse to her mother out of fear that she would not be believed.
Ms Clancy’s early education was interrupted and disjointed due to her movements between different foster homes. She attended Kaurna Plains Primary School at Elizabeth South. After she was placed into foster care, she began experiencing difficulty engaging in school work and had behavioural problems. She attended Fremont High School where she was expelled three weeks into year eight for threatening someone’s life. She then spent three years at Bowden Brompton Behavioural School. She had no problems with literacy but struggled with attendance and behaviour.
Ms Clancy has never undertaken paid employment.
Ms Clancy’s substance abuse began in her early teenage years with glue sniffing. She sniffed glue on a daily basis for approximately four years. She commenced living on the streets from the age of 16, using drugs and consuming alcohol. Breaks from substance abuse only occurred when she was detained at Magill Training Centre, or living with her mother for short periods. By the age of 18, she was drinking two bottles of whiskey each day and smoking cannabis. She was addicted to methylamphetamine for about five years. She contracted hepatitis C as a result of sharing needles. She ceased using methylamphetamine and cannabis by the age of 24. Over recent years, she has mainly used alcohol.
Ms Clancy had a series of relationships, most of them in custody or on the streets.
Ms Clancy’s prior offending commenced when she was aged 12. Through her teenage years, she was frequently in trouble with the police. At the age of 14, she was convicted of robbery in company and detained for six months. From the age of 16, she had convictions for cannabis offences and further robberies, one with violence. By the age of 17, she also had committed a number of traffic offences, including illegal use of a motor vehicle.
As an adult, Ms Clancy’s antecedents include assaults, driving offences, disorderly behaviour and resisting police. In October 2000, she was sentenced to 15 months’ imprisonment with a non-parole period of seven months for a series of offences. In February 2003, she was sentenced to 18 months’ imprisonment with a non-parole period of nine months for non-aggravated serious criminal trespass. In June 2007, she was sentenced to 15 months’ imprisonment with a non-parole period of nine months for a further series of offences including common assault, serious criminal trespass, assaulting police and resisting arrest. Many of her previous offences resulted in non-custodial sentences.
Ms Clancy’s history of prior offending is not surprising, having regard to her dysfunctional upbringing. Her life has been disrupted from an early age. She has never received appropriate counselling or assistance to help her cope with life.
A report was prepared by a psychologist, Mr Broomhall. He states that Ms Clancy has multiple competing psychological disorders. She suffers from Chronic Post Traumatic Stress Disorder, Polysubstance Abuse and Addiction and Generalised Anxiety Disorder. She has an ongoing Antisocial Personality Disorder. Mr Broomhall observes that, while the current offending is serious, there seems to have been a decline in the frequency and seriousness of her offending behaviour in the years leading up to this offence. Mr Broomhall is surprised that, given her history, personal circumstances and frequent incarcerations, she has not been exposed to the opportunity for meaningful intervention and rehabilitation. He acknowledges that some of the motivation to attend such programs must come from Ms Clancy and recommends that while incarcerated she undertake suitable therapeutic programs.
Mr Broomhall’s observations demonstrate the difficulty faced by young offenders who have no family or other support in the community. They have little or no ability to cope with the stresses of ordinary life. Unless they receive intensive counselling and continuous follow up, their life is likely to spiral out of control. Unfortunately, adequate programs are not available within the prison system to assist people such as Ms Clancy.
The appeal
Counsel for Ms Clancy submits that three findings made by the sentencing Judge were not proved beyond reasonable doubt. It is contended that, by sentencing on these facts, the Judge came to a bleak and eclipsing view of Ms Clancy’s involvement which led to a manifestly excessive sentence being imposed.
A judge imposing sentence following a trial is obliged to come to his or her own view of the facts, consistent with the jury verdict. The view of the facts on which the judge proceeds must give the accused the benefit of any reasonable doubt held about the facts. The judge is not bound to impose a sentence on a version of the facts most favourable to the accused if he or she is satisfied beyond reasonable doubt of other facts.
In R v Stehbens,[1] the Court (Hogarth, Wells and Sangster JJ) considered the approach to sentencing an accused after a trial by jury. The Court stated:[2]
[1] (1976) 14 SASR 240.
[2] Ibid, 245-6.
...In this connection we adopt as correctly stating the law the judgment of the Full Court of the Supreme Court of Victoria in Reg. v. Harris. The Court said:
The responsibility of awarding punishment once a jury have convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts. ... He has presided at the trial and he has seen the witnesses and has seen how the trial has progressed, and he can form his own judgment of the seriousness or other character of the offence.
To the same effect see the judgments of the Full Court in Reg. v. Webb and Reg. v. Kane. In this Court, in Reg. v. Thompson Bray C.J. said:
Is the judge in sentencing still bound to act on the view of the facts most favourable to the accused and consistent with the jury's verdict? Or can he act on the version which he himself is satisfied beyond reasonable doubt to be true, provided that it is not inconsistent with the jury's verdict? ... (W)hen the view of the jury of the particular factual issue in question for the purpose of sentencing is unknown, and the judge is prepared to make a finding on it beyond reasonable doubt based on his own opinion of the sworn evidence before him, I am inclined to think that he is at liberty to act upon it.
We respectfully agree with the proposition, limited as it is to a sentence upon a jury's verdict. His Honour's views find support in Reg. v. Kane, where the Court said:
If the learned Judge, as may well have been the case, regarded it as his duty to take the view of the facts most favourable to the prisoner, it would deny his freedom to form his own view of the facts within the limits of the conviction, and it would be a wrong approach.
This does not mean, of course, that a judge is free to form his own opinion of the facts without regard to the general principles of proof in criminal cases. The judge must give the prisoner the benefit of any reasonable doubt when forming his view of the facts for the purpose of sentencing the prisoner, consistent with the verdict of the jury. But accepting these principles, we think that the learned trial Judge was fully entitled to form the view which he did form.
[References omitted.]
Counsel contends that the Judge was in error in concluding that Ms Clancy was jumping on the chair, thereby pushing it into the victim’s throat. Counsel also takes issue with the Judge’s conclusion that Ms Clancy kicked the victim in the stomach area whilst two of the youth offenders were bashing her in the head. Counsel further submits that Ms Clancy was not the “ringleader” of the assault on Ms Le and that the categorisation of her as such was not supported by the evidence.
The four prosecution witnesses who gave evidence at the trial were Sammy‑Jo, Stacie, Craig and Irvine. Neither Ms Clancy nor her niece, Shyanna, gave evidence.
Sammy-Jo and her elder sister, Stacie, had not consumed alcohol or drugs on the night in question and neither had any involvement in the offending. During the assault, Stacie suffered either an asthma or a panic attack and left the lounge room where the assault was taking place by that time.
Craig admitted that at the relevant time he had been on a two-week drug binge. He had taken valium, serapax, “speed”, “ice”, cannabis, spirits and wine that night. He admitted that he was falling asleep while at Ms Clancy’s house but maintained that he could remember “bits and pieces”.

Irvine had been granted immunity from prosecution for his involvement in assisting to move the victim in the shopping trolley after the assault. He admitted that he felt “sleepy and tired” due to taking a valium tablet on the night. He had also smoked cannabis earlier in the day. He denied consuming alcohol.
The finding that Ms Clancy jumped on the chair
Counsel contends that a finding beyond reasonable doubt that Ms Clancy jumped on the chair, thereby pushing it into Ms Le’s throat, is unreasonable and cannot be supported having regard to the evidence. It is conceded that a chair was used in the assault on Ms Le. However, counsel contends that the finding that Ms Clancy was jumping on the chair once it was placed on the throat of the victim is not sustainable.
We consider that there is substance in Ms Clancy’s complaint. No injuries to Ms Le’s neck were observed by the paramedics who attended. No evidence was adduced by the prosecution of any such injuries. If Ms Clancy had been jumping on the chair while it was placed on Ms Le’s throat, serious injuries would have been expected.
The evidence of the witnesses varied significantly. It appears that Sammy-Jo was the most reliable of all the witnesses. She had not consumed alcohol or drugs and was not involved in the offending. Stacie was clearly traumatised by what she saw, as she suffered an asthma or panic attack during the course of the incident. Both Craig and Irvine were affected by drugs and, in the case of Craig, alcohol at the time.
Sammy-Jo gave evidence that, when Ms Clancy and Craig returned to the house after purchasing cigarettes, Ms Clancy punched Ms Le in the face. The victim fell to the floor. Sammy-Jo gave the following account:
QOnce Christina was on the floor what happened.
ATanya grabbed the chair.
QWhich chair did she grab.
AThat chair that’s on 36, that page.
QOnce Tanya grabbed the chair what did she do.
APut it to her throat.
QWhich part of the chair did she put to Tanya’s throat.
ALike this (INDICATES), just the front bit, like the part your back goes on.
QNot the bit you sit on, the other bit.
AYeah, just the front bit, front.
QOnce Tanya had that bit to Christina’s throat what happened.
AChristina was, like, choking.
QWas Tanya doing something with the chair.
AYeah, like pushing it up against her throat.
QHad Tanya said anything to Christina since she’d arrived back at the house.
AI can’t remember.
QDid she say anything to Christina when she had the chair against her throat.
AShe said ‘If you touch Craig again I’ll kill ya’.
QWhat type of voice was Tanya using when she said that.
ALike, an angry voice.
QWhilst Christina was on the ground, did Tanya do anything else to her.
ANah, after that she let her get up. She sat back on the chair.
QWhich chair did Christina sit on.
AThe chair back at the table, the blue one.
She described Ms Clancy hitting Ms Le again. When the victim fell to the ground, Shyanna and Craig each jumped on the victim’s head a number of times. It was at that stage that Stacie commenced to have a panic attack and Sammy‑Jo and Stacie left the room.
Stacie gave evidence that, upon returning to the house with Craig, Ms Clancy and the victim argued about whether Ms Le had choked Craig on an earlier occasion. She said that Ms Clancy punched the victim in the face causing her to fall to the ground. She described what occurred:
QOnce Christina was on the ground what happened.
AThat’s when Tanya ended up grabbing the chair.
QWhich chair did she grab.
AThe orange one.
QThe one near the fridge.
AYes.
QWhat did she do with it.
AShe put it up to Christina’s throat.
QWhich part of it did she put up to Christina’s throat.
AThe bottom bit.
QDo you mean the bit that you would normally sit on or the bit that your back would go against.
AThe legs bit.
QOnce she had it against Christina’s throat what did she do.
AThen Christina was crying.
QWhat did Tanya do with the chair.
AShe then – after she put it up to her throat then she put it back down and then she was dragging Christina into the lounge room.
QWhen you say she put it back down, what do you mean by that.
AShe, like, chucked the chair near the fridge way.
QHow long did Tanya hold the chair against Christina’s throat.
AFor a couple of seconds.
Irvine gave evidence that, upon returning to the house with Craig, Ms Clancy approached Ms Le and asked her if she had assaulted Craig. The victim denied it. Ms Clancy then punched and kicked the victim. He described the next events as follows:
QDid she stay on the chair or did she fall from the chair, what happened.
AShe fell from the chair and then Tanya was kicking her and then – yeah, that’s right, she grabbed the chair, the chair the lady was sitting on and she put it on like the head bit – like, the backrest on the neck and she was standing on it, like standing on it, stepping on it, stomping on it.
...
QYou told us about a chair, what was Tanya doing with the chair.
AChair, she like put – like the back of it, the backrest, she put that bit there on her neck (INDICATES) and started stomping on it.
Craig described how he told Ms Clancy that Ms Le had choked him on an earlier occasion. When he and Ms Clancy returned to the house after purchasing cigarettes, he said that Ms Clancy hit the victim in the face. He described what occurred next:
QWhat did Tanya do with the chair.
AShe put one of the chair legs on her throat, like the bottom of the chair leg.
…
QWhat did Tanya do once she had the chair across or against Christine’s throat.
…
AShe stepped on top, she jumped on top of, on top of the chair, where you sit down on.
QWhereabouts was the part of the chair that you sit down on, was that on Christine’s body.
ANo, that was, that was (INDICATES) you put the leg on – the leg was on top of her throat and so she was standing on, actually on the chair.
The paramedic who attended the scene, Mr Clarke, described the injuries he observed to the victim as follows:
There was an ongoing assessment from the scene to the hospital. Certainly once we got her out of the trolley then we could do a full body examination, where it was noted that she had sort of extensive bruising around her face and eyes. There was some dried blood around the nose, the mouth, the right ear and right side of the head; and she had been fecally and urinally incontinent and, later on, during the transport stage I noted that there was possibly fractured ribs on the right-hand side.
The evidence of Sammy-Jo was not challenged. It flatly contradicted the evidence of Craig and Irvine to the effect that the defendant was standing and stomping on the chair while it was placed to Ms Le’s throat. If the evidence of Craig and Irvine in this respect had been correct, serious injuries to Ms Le’s throat would have been expected, but there was no evidence of any such injuries. Further, the evidence of Stacie supported Sammy-Jo’s evidence about the chair. In all of the circumstances, a finding that the defendant was standing and stomping on the chair was unreasonable and cannot be supported having regard to the evidence.
The finding that the defendant kicked Ms Le in the stomach
Counsel contends that a finding beyond reasonable doubt that, while Shyanna and Craig were kicking Ms Le in the head in the lounge room, Ms Clancy was kicking her in the stomach area is unreasonable and cannot be supported having regard to the evidence.
The only evidence that, at this point in the attack, Ms Clancy was kicking Ms Le in the stomach was evidence given by Stacie. Stacie’s evidence was as follows:
Q     How was Shyanna bashing into her.
A     Booting her in the head with her shoes.
Q     … whilst Shyanna was bashing into Christine with the white Vans you said that        Tanya was hitting Christine.
A     Yes.
Q     How was Tanya hitting Christine.
A     She was kicking her.
Q     Whereabouts on Christine’s body was Tanya kicking her.
A     In the guts.
…
Q     When Shyanna was hitting Christine in the face with the brush, where was Tanya.
A     In the kitchen.
Q     What was Tanya doing at that stage.
A     She was standing there at first, watching and swearing.
Q     And then what did she do after that.
A     Then she went up to Christine and started stabbing in the ribs a bit. …
Q     Did she do that once or more than once.
A     She done it three times.
Q     What happened after that.
A     And then I end up having an asthma attack.
No evidence was adduced that Ms Le suffered any stab wounds to the stomach. The evidence from the paramedic, doctor and crime scene examiner was to the contrary. Stacie’s evidence was inconsistent with the objective evidence concerning Ms Le’s injuries. It was also inconsistent with the evidence of Sammy-Jo and Irvine called by the prosecution. The evidence was that Stacie suffered an asthma attack at this stage, which may well have affected her perception and recollection.
Sammy-Jo gave evidence concerning this stage of the overall attack:
Q     Did Shyanna hit Christine once or more than once.
A     More than once.
…
Q     Where was Tanya when Shyanna was doing that.
A     She was on the chair …
Q     What did you do whilst Shyanna and Craig were jumping on Christine’s head.
A     I was helping Stacie because Stacie started having a panic attack.
Q     Before you went from where you had been in the lounge room to the room in photo 22, what was happening in the lounge room.
A     Craig was still jumping on the lady’s head.
Q     Where was Tanya when you left the lounge room.
A     Still on the chair.
Q     At the table.
A     Yep.
Irvine’s evidence concerning this stage of the overall attack was as follows:
Q     Once Tanya had punched her what happened to the lady.
A     Craig and Shyanna started punching her, kicking her and then Tanya told Shyanna     to get a trolley from somewhere …
Q     What did you see Shyanna do once the lady was on the ground.
A     Kicking her, punching her …
Q     What was Tanya doing whilst Shyanna was kicking and punching the lady.
A     Not really sure. I’m sure she was sitting at the table – at the table having a      cigarette …
Q     What about Craig, what did you see him do.
A     Craig took his shoes off and he put steel caps on and he turned her face like toward where his feet was and started kicking her in the face …
Q     What was Tanya doing whilst Craig was kicking her in the face.
A     Same thing.
Q     What do you mean when you say the “same thing”.
A     Like, sitting at the table having a cigarette.
In all of the circumstances, a finding beyond reasonable doubt that Ms Clancy was kicking the victim around the stomach area while Shyanna and Craig were bashing her in the head cannot be supported having regard to the evidence.
The finding that Ms Clancy was the “ringleader”
Counsel contends that the Judge’s categorisation of Ms Clancy as the ringleader was not supported by the evidence. Counsel contends that, although Ms Clancy was the initiator of the assault, the assault went much further than the initial physical altercation. Counsel refers to the evidence of Sammy-Jo in cross-examination:
QCraig and others told you that you should say Tanya was the ringleader, didn't they.
AYes.
QBecause they knew and you know that it would go easier for them if there was an adult involved in influencing them, isn't that right.
AYes.
Counsel contends that implicit in this exchange is that pressure had been put on Sammy-Jo to say that Ms Clancy was the ringleader.
Stacie gave evidence that Shyanna asked for Ms Clancy’s permission to join in the attack on Ms Le. Ms Clancy replied with words to the effect “go for it”. Shyanna then began to kick Ms Le in the head.
Craig was asked why he had kicked Ms Clancy in the head after she was unconscious. He said:
ABecause Tanya was forced - Tanya forced me to do it.
QWhen you say Tanya forced you, how did she force you, what actually happened.
AShe was like, she was like trying to put me down with words and that.
QCan you tell us what Tanya was actually saying to you.
AShe was like, she's like 'You're a little bitch', she was like saying all these different kind of words that I can't remember.
There was unchallenged evidence that Ms Clancy commenced the attack upon the victim, that she encouraged the others, who were much younger, to join in, and she was looked upon by the participants as the leader.
There is no challenge to the findings that Ms Clancy was involved in a most serious assault. She was the adult in the group. She instituted the violence and was involved throughout in a savage assault upon the victim. Ms Clancy initiated placing the victim in a trolley and abandoning her where, but for an anonymous telephone call, she would have been left suffering from serious injuries. The Judge was correct in concluding that Ms Clancy was the ringleader. We therefore reject the submission that the Judge was incorrect in concluding that this was a brutal attack on a defenceless woman, or that Ms Clancy encouraged the others to participate. He was also correct in concluding that Ms Clancy has not shown contrition or remorse.
Is the sentence manifestly excessive
Counsel for Ms Clancy has not identified any specific error of principle. Although there is substance in criticisms of the Judge’s factual conclusions, those criticisms alone are not of sufficient significance to interfere with the sentence.
However, the question remains whether the sentence is unreasonable or unjust, having regard to all the circumstances. In Makarian v The Queen,[3] Gleeson CJ, Gummow, Hayne and Callinan JJ observed:
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 sentence allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentence 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 offenders’ appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy”.
[References omitted.]
[3] [2005] HCA 25; (2005) 228 CLR 357, [25].
In considering whether the sentence in this case is manifestly excessive, a starting point is to have regard to the maximum penalty. The maximum penalty is 25 years’ imprisonment. The offence was aggravated because a chair was used and because it was committed in company. It therefore attracted the longer maximum penalty. If the offence had not been aggravated, the maximum penalty would have been 18 years’ imprisonment.
The maximum penalty provides an indication of how serious the legislature regards the offending. Further, it provides some yardstick against which to assess where the seriousness of the offence lies, having regard to other offences.
Although comparison with other cases is of limited assistance, some indication of the range of sentences for similar offending can be gleaned and can be a guide when considering whether the sentence in this case is manifestly excessive.
In R v McNamara,[4] Mr NcNamara pleaded guilty to the offences of serious criminal trespass, theft and aggravated causing serious harm with intent to cause serious harm. The aggravating feature of the offence of causing serious harm was that it involved an attack on a police officer who was directing the defendant to stop as he attempted to flee from the scene of his crimes.
[4] [2009] SASC 227; (2009) 105 SASR 38.
Mr McNamara broke into a residence at about 8.00 pm. He stole a number of items. As he was leaving, he was approached by two police officers. In attempting to avoid arrest, he hit one of the police officers over the head with a bottle. The officer suffered extensive injuries to his neck and face. He received 60 stitches. He was permanently disfigured and the scarring caused continuing discomfort. The officer was psychologically affected and required counselling. He was embarrassed and concerned about the scarring to his face, and he feared the reaction of others to his appearance.
Mr McNamara was 30 years of age at the time of the offence. His long-term relationship had broken down some months prior to the offending and, as a consequence, he began to abuse alcohol and drugs, which led to the commission of the offences. He had a number of prior convictions and had served periods of imprisonment. Just prior to the offending, he had completed a suspended sentence bond which had been imposed for the offences of theft, deception and receiving. The sentencing Judge imposed a sentence of four years and six months’ imprisonment for all the offences. The Director of Public Prosecutions appealed.
Vanstone J, with whom Kourakis J (as he then was) agreed, considered a starting point of eight years’ imprisonment was appropriate. The sentence was reduced to six years and nine months’ imprisonment, having regard to the plea of guilty. A non-parole period of four years’ imprisonment was imposed. Gray J considered an appropriate starting point for the offence of aggravated causing serious harm with intent to cause serious harm was eight to ten years’ imprisonment. Having regard to the reduction for the pleas of guilty, he would have sentenced Mr McNamara to seven years and six months’ imprisonment, with a non-parole period of five years’ imprisonment.
In R v Wilkinson,[5] Mr Wilkinson pleaded guilty to three offences. The first occurred in May 2006. He pleaded guilty to aggravated assault causing serious harm with intent to cause serious harm. The second and third offences occurred in August 2006. He pleaded guilty to aggravated assault causing harm and aggravated causing harm with intent to cause harm. The case involved domestic violence against his partner, who was then aged 17 years. Mr Wilkinson was 27 years of age at the time. There was a background of domestic violence.
[5] (2008) 101 SASR 21.
In May 2006, Mr Wilkinson was on bail for offences of assaulting his partner. He again assaulted his partner by kicking and punching her to the face and chest. She suffered severe head injuries. She was admitted to hospital and remained in the high dependency unit for four days. She suffered severe facial injuries. Gray J described the attack as a brutal attack.
Whilst Mr Wilkinson was on bail in respect of the May 2006 offending, and subject to a condition not to communicate with his partner, he breached that bail by assaulting his partner, kicking and punching her and throwing her against a wall. Whilst his partner was on the ground, he kicked and punched her. The assault continued for some time. The police were called by a person who observed the assault.
The sentencing Judge imposed one sentence for all the offending. He commenced with a notional head sentence of nine years’ imprisonment, reduced to seven years and eight months’ imprisonment for a plea of guilty. He imposed a non-parole period of four years and six months’ imprisonment. Gray J, with whom Sulan and White JJ agreed, considered that sentence to be a substantial sentence. Mr Wilkinson had not previously been in prison. His appeal against sentence was dismissed.

In R v Saunders,[6] Mr Saunders was charged with aggravated robbery, and two counts of aggravated causing serious harm with intent to cause serious harm. He was in the course of committing a robbery when an employee opened a door and saw him. At that stage, the employee was unaware that Mr Saunders intended to commit a robbery, and simply asked whether he could help him. He produced a machete, threatened the employee and then struck the employee in the face causing a deep cut from his left ear to his mouth. As a consequence, the employee had to have his teeth replaced and had ongoing medical and psychological problems.
[6] [2011] SASCFC 37; (2011) 210 A Crim R 1.
Another employee was then confronted by Mr Saunders who demanded that that employee open the cash register. As the employee was walking away, he struck the employee in the back with the machete. The Court of Criminal Appeal identified certain errors in the sentencing process and proceeded to re-sentence Mr Saunders. In sentencing, Gray J observed:[7]
Turning to the sentence to be imposed by this Court, it is to be observed at the outset that the defendant’s offending was grave. The aggravated robbery offence alone could be expected, given the defendant’s antecedents, to attract a sentence in the range of six to eight years. The offences of aggravated causing serious harm with intent to cause serious harm involved separate victims being struck by a machete. The violence perpetrated was gratuitous. There was no suggestion that the defendant’s defenceless victims were doing other than complying with his demands. As earlier noted, each attack was brutal, callous and violent. The injuries inflicted were severe, leading in the case of each victim to long term consequences. Although the three offences all formed part of one incident, that fact in my mind does not militate against the seriousness of each offence.
...
In my view, an appropriate starting point in respect of the three offences is a notional head sentence of 16 years imprisonment. In arriving at this notional head sentence, I have had regard to the circumstances of the offending, the personal and criminal antecedents of the defendant, the impact of the crime on his victims and the risk that the defendant poses to the community.
The defendant’s pleas of guilty came on the eve of trial. I would make a reduction of one year on account of the pleas. This leads to a reduced provisional head sentence of 15 years. I consider that the provisional non-parole period of 12 years to be appropriate. This equates to a proportion of four-fifths. For reasons to be discussed, further adjustment to these provisional periods is necessary.
[7] (2011) 210 A Crim R 1, [48] and [54]-[55].
Vanstone J agreed with Gray J as to the appropriate starting point. White J observed that the Director of Public Prosecutions had not argued that a starting point of 14 years’ imprisonment was inappropriate and he, therefore, would have imposed a sentence based on a starting point of 14 years’ imprisonment.
The cases referred to give an indication of the starting point for conduct amounting to a serious assault. In each of the cases, there was multiple offending. In Wilkinson, there were separate offences over a period of time and the latter offences were committed whilst Mr Wilkinson was on bail. In Saunders, the two serious assaults were committed in the course of committing a robbery. A weapon was used. The violence was gratuitous. Mr Saunders had a long record of criminal activity, including offences of violence, and offences involving dangerous weapons.
In our view, the starting point in this case of 14 years’ imprisonment was manifestly excessive. The offending involved a sustained attack upon a defenceless woman. The conduct of Ms Clancy in leaving her victim abandoned is an aggravating feature. The offence must attract a severe penalty
Nevertheless, Ms Clancy is a relatively young woman. There is no doubt that she requires counselling and assistance in an attempt to overcome the many personal problems to which reference has been made. If she does receive counselling whilst in custody, there is some chance that she may be rehabilitated and break the cycle of alcohol and drugs which have formed so much of her life. Much of her previous offending is of the nature of disorderly behaviour, resist arrest and minor assaults which is unsurprising, given her dysfunctional upbringing. She should be given hope that she can get some order in her life in the future.
All of her offending in the past was dealt with in the Magistrates Court or the Children’s Court. This is the first occasion upon which she has appeared in a superior court.
We consider 14 years’ imprisonment with a ten year non-parole period to be a crushing sentence. In our view, it is manifestly excessive.
We would allow the appeal and reduce the head sentence to ten years’ imprisonment with a non-parole period of six years’ imprisonment.
KELLY J: I have had the benefit of reading in draft the reasons of Sulan and Blue JJ. The factual circumstances are set out in their reasons I respectfully adopt them.
The principal issue on this appeal is whether the sentence is manifestly excessive. The appellant also pointed to alleged factual errors said to have been made by the Judge which led him to impose an unduly severe sentence.
The first alleged error was the Judge’s finding that the appellant jumped on a chair and pushed it into the victim’s throat. The second was the finding that whilst two others were bashing the victim in the head, the appellant was kicking the victim around the stomach area.
The critical findings are at page two of the sentencing remarks:
During the evening, you and Craig left your home to go and get some cigarettes. You were both gone for approximately 20 minutes. During the course of this walk, Craig told you that Ms Le attempted to strangle him. Upon returning back to your house, you went to up to Ms Le and hit her in the head. At the time of this hit, witnesses heard you say something along the lines of ‘This is for hitting my nephew Craig’. Ms Le fell to the ground. You then grabbed a chair that was in the kitchen and put the chair to Ms Le’s throat. You then started jumping on the chair and pushing it into Ms Le’s throat. You began to get angrier. You dragged Ms Le into the lounge room and began kicking and punching her in the head.
Shyanna and Craig were encouraging you by saying ‘Bash her, Auntie’. Your niece asked you if she could join in and you said ‘Go for it’. Shyanna and Craig also started kicking, punching and jumping on Ms Le in the head. Whilst Shyanna and Craig were bashing Ms Le in the head, you were kicking her around the stomach area.
The witnesses describe Ms Le bleeding from the nose and right ear, and her eyes rolling back into her head. They said Ms Le was crying and you told her to shut up. She eventually became unconscious.
I reject the submission that the Judge erred in making those factual findings.
It is true that the evidence given by the four principal eye witnesses who gave evidence at the trial, namely Stacie, Sammy-Jo, Irvine and Craig, varied in a number of respects. Each of those witnesses was present during the assault on the victim and two of them, namely Irvine and Craig, were to a greater or lesser extent involved. All of the four witnesses at the relevant time were children. One of them, Sammy-Jo, was as young as 11 years old.
It is not uncommon in cases of alcohol-fuelled violent episodes for witnesses to give disparate accounts of the same event. In this case, the assault on the victim commenced in one room of the house, continued in another and ended with the victim being placed in a shopping trolley and left in the backyard of a vacant house next door. Some of the witnesses were under the influence of drugs and/or alcohol and at least one of them, Stacie, had a panic or asthma attack during the course of the incident. In these circumstances it is hardly surprising that different accounts of the same incident were given by each witness. However, it does not follow that the Judge was not entitled to make up his own mind about the facts for the purpose of sentencing the appellant. His Honour was under no obligation to sentence on the version most favourable to the appellant, which was undoubtedly the account given by the youngest witness Sammy-Jo.
The Judge was in a uniquely advantageous position in that during the course of the trial he had the opportunity to hear and see each of the witnesses as they gave their evidence. His Honour was in a position to assess the relative maturity, intelligence, and level of sophistication of each of them.
It was open to the Judge to be satisfied beyond reasonable doubt of each of the factual findings he made. Indeed it is striking that two of the witnesses, Irvine and Craig, both gave similar accounts of the episode when the appellant placed a chair against the neck of the victim and started stomping on it, or, in the words of Craig, “She put one of the chair legs on her throat … She stepped on top, she jumped on top of … the chair, where you sit down on … the leg was on top of her throat and so she was standing on, actually on the chair”.
Trial judges regularly advise juries that they are free to either accept or reject the evidence of a particular witness; the whole of it, some of it, or none of it. There is no reason why a judge is not entitled to adopt the same approach when sentencing.
A further submission was raised during the appeal that the Judge somehow misunderstood the standard of proof to be applied during the fact finding exercise in sentencing. During sentencing submissions, a suggestion arose that the Judge ought to sentence in accordance with the evidence of Sammy-Jo. As a consequence of that submission, authorities relevant to the issue, namely, R v Martin[8] and R v Stehbens,[9] were forwarded to his Honour’s chambers. I cannot accept that his Honour overlooked those authorities, both of which make it plain that the burden of proof in relation to the finding of circumstances of aggravation upon sentence is beyond reasonable doubt. I reject the contention that the Judge misunderstood the standard of proof to be applied.
[8] [2007] SASC 336; (2007) 99 SASR 213.
[9] (1976) 14 SASR 240.
In my view the Judge made it clear the events he accepted for the purpose of imposing sentence. The fact that the Judge used layman’s language when summarising the evidence does not undermine that conclusion. He said:
I have decided that the overall summary of events that I have just described is a reasonably accurate version of what happened, and I will proceed to sentence on that basis.
The sentence was imposed after a trial. The Judge heard the evidence. I consider it plain that his Honour was there acknowledging the disparate accounts which had been given and that, to a certain extent, it was impossible to determine the exact chronology and sequence of events during the violent episode of violence upon the victim, nevertheless he was satisfied on the basis of the evidence which he had referred to in the preceding paragraphs of those facts. On the whole of the evidence his Honour was entitled to take that view.
This was, as Sulan and Blue JJ have observed, a brutal attack on a defenceless woman which continued even after the victim was rendered unconscious. The appellant, who was considerably older than the young protagonists who joined in, was undoubtedly the instigator of the attack. The injuries suffered by the victim were grave and required hospitalisation and intensive rehabilitation over a lengthy period. The conclusion reached by the Judge that the offending ought to be categorised at the higher range of sentencing for this type of offending was well justified.
The respondent’s concession that a sentence of 14 years is towards the higher end of the range imposed for this offence is correct. However this is not an offence in respect of which any tariff has ever applied. The maximum sentence for the aggravated offence is 25 years.
The respondent referred to a number of authorities in this Court including R v McNamara,[10] R v Campbell,[11] R v Wilkinson[12] and R v Saunders.[13] Some of these authorities have been referred to in the reasons of Sulan and Blue JJ. I do not consider there is much assistance to be gained by comparison with these cases, all of which involved relevantly different charges and markedly different factual circumstances. Each case must turn on its own facts.
[10] (2009) 105 SASR 38.
[11] [2012] SASCFC 44.
[12] (2008) 101 SASR 21.
[13] (2011) 210 A Crim R 1.
There are cases which call for a sentence at the upper end of the range. This case is one such case. The appellant’s offending was grave, the consequences to the victim were very serious and enduring, and there were few, if any, mitigating circumstances. The appellant did not demonstrate remorse or contrition.
The appellant has not demonstrated any error of fact or law which justifies the intervention of the appellate court. I would dismiss the appeal.