R v CORLETT - [2017] SASCFC 112

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CORLETT
[2017] SASCFC 112
Judgment of The Court of Criminal Appeal
(The Honourable Justice Parker, The Honourable Justice Lovell and The Honourable Justice Doyle)
4 September 2017
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - SENTENCE: PARTICULAR CASES - MINIMUM TERM, NON-PAROLE PERIOD
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENCE - CIRCUMSTANCES OF OFFENCE
This is an appeal against a non-parole period.
The appellant pleaded guilty to a charge of murder five days before the trial was to start. A life sentence with a non-parole period of 18 years was imposed following this plea.
The grounds of appeal are:
1. The non-parole period is manifestly excessive.
2. The learned sentencing Judge erred in finding that the offending was not at the lower end of the range of objective seriousness.
3. The learned sentencing Judge erred in failing to specify the reduction she made to the non-parole period by reason of the appellant’s guilty plea.
A Judge granted permission to appeal on ground 1, refused permission on ground 2 and granted leave to amend the application to add ground 3.
With respect to ground 3, the appellant submitted that because he was inadequately advised his sentence should be reduced by 30 per cent in accordance with s 10C(2)(d) of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Act'). Furthermore, the appellant submitted it was impossible to know whether the sentencing Judge proceeded on the basis that the maximum available reduction was up to 10 per cent (pursuant to s 10C(2)(f) of the Act) or up to 30 per cent (pursuant to s 10C(2)(d) of the Act).
With respect to ground 1, the appellant submitted that the circumstances of the offending meant a shorter non-parole period was warranted.
Held per Parker J (Lovell and Doyle JJ agreeing) dismissing the appeal:
With respect to ground 3:
1. There was no information before the Judge that could satisfy her Honour that the appellant was entitled to a discount under s 10C(2)(d) of the Act, nor was any submission made to that effect (at [47] to [48]).
2. The sentencing remarks made sufficiently clear that the sentencing Judge considered:
a. The appropriate starting point was a life sentence with the minimum non-parole period of 20 years (pursuant to s 32A(1) of the Act);
b. The sentence should be reduced by 10 per cent (i.e. from 20 years to 18 years) due to the appellant’s guilty plea (pursuant to s 10C(2)(f) of the Act); and
c. That special reasons, specifically her Honour’s conclusion that she “could not be satisfied [the appellant was] properly advised” warranted the reduction of the minimum non-parole period (pursuant to s 32A(2)(b) of the Act) (at [50] to [51] and [56]).
3. In light of the approach of the Full Court in R v Hallcroft (2016) 126 SASR 415 (which was not decided until after the sentencing remarks were delivered) her Honour incorrectly conflated the enquiries under s 32A and s 10C of the Act (at [41] to [44]).
4. Applying R v Niesen [2015] SASCFC 165, while it is always preferable for a sentencing judge to nominate a starting point, failure to do so in this case did not vitiate the exercise of her Honour’s sentencing discretion (at [56]). Further, the matter was distinguishable from R v Wakefield (2015) 121 SASR 569 where multiple offences were subject to different discount rates (at [54]).
With respect to ground 1:
1. In light of the findings in ground 3, it is unnecessary to consider whether the sentencing Judge erred in adopting a notional starting point greater than 20 years (at [58]).
2. The submission that the offending was at the lower end of the range of objective seriousness is inconsistent with the facts (at [62]). The sentencing Judge adopted a merciful approach and the non-parole period was not manifestly excessive (at [63]).
Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 32, s 32A, referred to.
R v Hallcroft (2016) 126 SASR 415; R v Niesen [2015] SASCFC 165, applied.
R v Wakefield (2015) 121 SASR 569, distinguished.
R v Dwyer (2015) 121 SASR 587; R v Stewart (1984) 35 SASR 477; R v Kreutzer (2013) 118 SASR 211, considered.

R v CORLETT
[2017] SASCFC 112
Court of Criminal Appeal: Parker, Lovell and Doyle JJ

PARKER J: This is an appeal against a non-parole period of 18 years imposed following a plea of guilty to a charge of murder. For the reasons that follow I would dismiss the appeal.
The grounds of appeal are:
1The non-parole period is manifestly excessive.
2The learned sentencing Judge erred in finding that the offending was not at the lower end of the range of objective seriousness.
3The learned sentencing Judge erred in failing to specify the reduction she made to the non-parole period by reason of the appellant’s plea of guilty.
A judge granted permission to appeal on ground 1, refused permission on ground 2 and granted leave to amend the application so as to add ground 3.
Background
On 25 April 2014 the appellant and the victim, Kane Bogner-Holmes, both attended a party at the home of a friend. The appellant and the victim had known each other since childhood. They were described as being drunk by witnesses who were present at the party. The victim recorded a blood alcohol level of 0.131 per cent at the time of his death. No alcohol was detected in the blood of the appellant when a sample was taken about 11½ hours after the stabbing of the victim. However, samples taken at that time recorded positive results for cannabis in his urine and blood and methamphetamine and amphetamine in his urine.
During the course of the party a series of altercations occurred between the appellant and the victim. The period over which those altercations occurred is unclear.
The first altercation occurred following disputation amongst other guests at the party that also involved the victim. During this altercation the appellant moved towards the victim with scissors in his hand but was easily disarmed by a female witness. The appellant head-butted the victim who responded by striking the appellant in the face with a beer bottle from which he was drinking. The two men then traded punches. The appellant placed the victim in a headlock while a female guest kicked the victim in the head, face and lower body. The two men were then separated by others.
The second altercation arose after the appellant insulted the partner of the victim. The victim jumped over some furniture and hit the appellant twice with a pool cue. The appellant took the pool cue from the victim and the latter then picked up a sack trolley. The victim put down the trolley when asked to do so by another guest.
The third altercation occurred when the appellant followed the victim into the bathroom after shouldering the door open. The victim was cleaning himself up after the earlier altercations. The two men began fighting again. The appellant suffered a fractured tooth when his head hit the side of the bath. He then left the bathroom and returned with a T-handled Allen key. During the course of the evening the appellant had been seen to pick up that object on at least five occasions.
The appellant struck the victim twice with the Allen key. This caused two relatively insignificant penetrating wounds to his back. The victim held a mirror that he had been using to clean his face in a way that suggested that he might use it as a weapon. He said that he would smash the mirror over the appellant’s head and stab him with it if he was not left alone. The victim also threatened the appellant with a towel rail but dropped it after witnesses asked him to do so. The appellant then left the bathroom. At that point he was heard to say: “I just buried my Mum”.
The appellant then went to the kitchen and opened a drawer to obtain a knife. He returned to the bathroom with the knife, cornered the victim and made several stabbing motions towards him. He then grabbed the victim by his T-shirt, pulled the victim towards himself and then stabbed him once to the chest. The knife cut the victim’s right coronary artery in half and penetrated his right atrium. That wound caused his death. The appellant was heard to say: “I hope you liked the knife in your ribs”.
The appellant then left the party and returned home. Before leaving, he was also heard to say: “I hope your mate enjoyed his stab wounds”. He was arrested later in the morning by the police at his home.
The appellant’s personal circumstances
The appellant was aged 30 years at the time of the murder. His personal circumstances were set out in considerable detail in a report from a forensic psychologist, Mr Oscar Williams, which was made available to the sentencing Judge. Mr Williams reported that the appellant had experienced difficulties at school and suffered from attention deficit disorder. He left school during year nine and was unable to read or write at that time. However, he later attended a youth project where he learnt literacy and numeracy.
Mr Williams reported that the appellant has never been employed and has always received social security payments. He had commenced, but not finished, a welding course. He writes and performs rap music, has released a couple of CDs and his music has been played on the radio. The appellant has never married but did have a long term relationship. An intervention order was issued against the appellant following the breakdown of that relationship.
Mr Williams reported that the appellant had an extensive history of substance use involving cannabis, alcohol, ecstasy (MDMA) and LSD. He had made two suicide attempts as a teenager and engaged in what was described as “para-suicidal” behaviour involving cutting and burning himself.
Mr Williams concluded that the appellant met the criteria for a severe alcohol use disorder, a severe cannabis use disorder and borderline personality disorder. At the time of the relevant offence, he was also in the midst of a grief reaction following the quite recent death of his mother. I note that the appellant’s mother had died from cancer two weeks before the murder.
Mr Williams indicated that as the appellant had dealt with a significant number of deaths and losses in his life, it is likely that his grief was complicated. Complicated grief is an intense and long lasting form of grief that takes over a person’s life and the person feels “stuck”.
Mr Williams also reported that the appellant has a limited capacity to manage his emotions due to his borderline personality disorder and was likely to feel very sensitive. On the day of the offence he had used cannabis and amphetamine and drank a large quantity of alcohol. It is likely that his cognitive processes, including problem solving skills, were compromised due to his intoxication. Mr Williams suggested that it was likely that the appellant had used his mother’s death as a form of “permission giving” to engage in a physical fight. It was likely that “he felt invalidated and this fed into his anger”. This made the fight more personal as the appellant had linked his feelings of loss of his mother to the motives of the victim, i.e. that the victim did not care about that matter. Mr Williams also added that while the appellant was under the influence of alcohol and other substances this did not excuse his behaviour. He knew that he had difficulties with managing his anger, especially when under the influence, therefore when he made the decision to consume alcohol and take drugs, he knew that there was a potential for him to become involved in violence.
The appellant has a reasonably substantial offender history, although most of the recorded offences had occurred when he was a juvenile and up until about the age of 21 years. The offences as a juvenile and young adult included multiple counts of larceny, cannabis offences, various forms of assault, resisting arrest, threaten life and one count of armed robbery. Apart from one conviction in 2012 for assault and carrying an offensive weapon, the appellant had no convictions after 2006.
Statutory provisions
Section 10C of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) establishes a detailed scheme governing the reduction of sentence where a defendant enters an early guilty plea. The provisions of s 10C that are relevant to this appeal are paragraphs (d) and (f) of s 10C(2). These provide as follows:
10C—Reduction of sentences for guilty plea in other cases
…
(2)     If a defendant has pleaded guilty to an offence or offences—
…
(d)     during the period commencing on the day on which the defendant is committed for trial for the offence or offences but before the commencement of a trial for the offence or offences and if the defendant satisfies the sentencing court that he or she could not reasonably have pleaded guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
…
(f)    in circumstances other than those referred to in a preceding paragraph—the sentencing court may, if satisfied that there is good reason to do so, reduce the sentence that it would otherwise have imposed by up to 10%.
Section 32(5)(ab) of the Sentencing Act provides that the mandatory minimum non-parole period for the offence of murder is 20 years. That provision must be read subject to s 32A which is as follows:
(1)If a mandatory minimum non-parole period is prescribed in respect of an offence, the period prescribed represents the non-parole period for an offence at the lower end of the range of objective seriousness for offences to which the mandatory minimum non‑parole period applies.
(2)In fixing a non-parole period in respect of an offence for which a mandatory minimum non‑parole period is prescribed, the court may—
(a)     if satisfied that a non-parole period that is longer than the prescribed period is warranted because of any objective or subjective factors affecting the relative seriousness of the offence, fix such longer non-parole period as it thinks fit; or
(b)     if satisfied that special reasons exist for fixing a non-parole period that is shorter than the prescribed period, fix such shorter non-parole period as it thinks fit.
(3)In deciding whether special reasons exist for the purposes of subsection (2)(b), the court must have regard to the following matters and only those matters:
(a)     the offence was committed in circumstances in which the victim's conduct or condition substantially mitigated the offender's conduct;
(b)     if the offender pleaded guilty to the charge of the offence—that fact and the circumstances surrounding the plea;
(c)     the degree to which the offender has cooperated in the investigation or prosecution of that or any other offence and the circumstances surrounding, and likely consequences of, any such co‑operation.
(4)This section applies whether a mandatory minimum non‑parole period is prescribed under this Act or some other Act.
Procedural history
The appellant pleaded not guilty at his arraignment on 22 December 2014. The trial was listed to commence on 4 May 2015. At a directions hearing on 6 February 2015 the solicitor then acting for the appellant informed the Court that he had only considered half to one third of the witness statements and counsel was yet to see the appellant to “give him his options”. The solicitor indicated that this might result in the appellant pleading guilty to manslaughter.
The appellant instructed the Legal Services Commission on 30 March 2015. It was suggested at a directions hearing on 10 April 2015 that mens rea may be an issue. The appellant pleaded guilty on 29 April 2015, five days before the trial was to start.
Sentencing Remarks
The Judge referred in her remarks to the circumstances of the offence and the personal circumstances of the appellant. Her Honour also referred to the profound sense of loss and heart wrenching anguish described in the victim impact statements provided by the partner, parents, aunt and uncle of the victim. Her Honour also stated that she was satisfied that the appellant was genuinely shocked to learn that the stabbing had caused the death of the victim. The Judge also accepted that the appellant had been wracked by sorrow and remorse ever since being told of the death. The appellant had written a letter of apology to the family and friends of the victim in which he expressed sincere sorrow for the pain and suffering that he had caused. He said that he had gone to the party to be with friends and to try to be happy after the death of his mother when a stupid fight got out of control and he had tragically stabbed his friend.
The Judge also referred to a number of character references. The appellant’s friends regarded him as a loyal and much loved friend who would do anything for a person in need. He had given support to them during difficult times in their lives.
Because the central issues in this appeal turn on the precise words used by the Judge, I will set out the relevant passages of her Honour’s sentencing remarks in full.
[56]…Your guilty plea can be regarded as evidence of genuine contrition which has saved those involved from the additional trauma of giving evidence and the cost of a trial.
[57] In deciding whether special reasons exist for the purposes of s 32A(2)(b) of the Criminal Law (Sentencing) Act I have had regard to the matters I must have regard to prescribed in subsection 3 of s 32A.
[58] You were represented by another solicitor until the end of March this year. You pleaded not guilty at your arraignment on 22 December last year. It is of particular concern that having gone through a committal process and an arraignment, your solicitor told a judge of this court at a directions hearing earlier this year that he had only gone through a half to one-third of the statements and that he ‘Still had a bit to do to side down with you’. The solicitor also said that counsel had ‘yet to go and see’ you to give you ‘your options’.
[59] I cannot be satisfied that you were properly advised prior to Legal Services Commission being instructed in circumstances where your solicitor informed the court the brief had not been read and counsel was yet to ‘give you your options’.
[60] The trial of the matter was listed for hearing on 4 May this year. You instructed the Legal Services Commission on 30 March and pleaded guilty on 29 April.
[61] I am satisfied the fact of the circumstances surrounding your plea are such that special reasons exist enabling me to consider whether a non-parole period shorter than the 20-year mandatory minimum should be fixed. In considering whether the special circumstances enable me to fix a shorter non-parole period I must bear in mind that a non-parole period of 20 years is a non-parole period for an offence of murder at the lower ends of the range of objective seriousness.
[62] I must also bear in mind the punitive, protective and rehabilitative services of fixing a non-parole period.
[63] The fact that your offending was not at the lower end of the range of objective seriousness is not a bar to the fixing of a non-parole period shorter than 20 years, but it is an important consideration in determining whether a shorter non-parole period can and should be fixed.
[64] In my view, as you are not properly advised you were deprived of the opportunity to plead guilty earlier. Having regard to circumstances of your offending I am satisfied that at the time of the stabbing you did not have an intent to kill but to cause grievous bodily harm. I sentence you on that basis.
[65] I am satisfied that special reasons supporting the fixing of a non-parole period less than the 20-year mandatory minimum.
[66] I sentence you to life imprisonment. I fix a non-parole period of 18 years. The sentence and the non-parole period will commence from the date that you were taken into custody on 26 April last year.
(footnotes omitted)
The Appellant’s submissions

The appellant pleaded guilty to murder five days before his trial was to commence. He had changed his legal representation about five weeks before the trial. The Judge had accepted that he had not been adequately advised by his first solicitors.
Whilst ordinarily a plea entered shortly before trial would attract a maximum reduction in sentence of 10 per cent, in the circumstances, it was open to the Judge to find that the appellant could not reasonably have pleaded guilty at an earlier stage because of circumstances outside of his control. Thus, it was submitted that he was entitled to a maximum reduction in sentence of up to 30 per cent in accordance with s 10C(2)(d) of the Sentencing Act.
The appellant points to the fact that the Judge did not state the percentage reduction that she was allowing in recognition of the guilty plea. Thus, it was not possible to know whether her Honour had proceeded on the basis that the maximum available reduction was up to 10 per cent or up to 30 per cent.
While it was not necessarily an error to fail to specify the reduction, it was necessary for her Honour to provide adequate reasons for departing from the maximum available reduction. That was necessary so as to enable defence counsel and defendants to have confidence in their expectations about the advantages of an early guilty plea.[1]
[1] R v Dwyer (2015) 121 SASR 587 at [35], Stanley J (Kourakis CJ and Gray J agreeing).
The appellant submits that if the Judge had approached the matter on the basis that the maximum reduction available to him was 10 per cent, she had erred by not allowing a reduction of up to 30 per cent in accordance with s 10C(2)(d) of the Sentencing Act. The appellant also submits, in the alternative, that if her Honour had proceeded on the basis that the maximum discount available was up to 30 per cent, and had allowed the full 30 per cent, the starting point for the sentence must have been 25 years and eight months.[2] In the circumstances of the offending, such a starting point was manifestly excessive regardless of whether or not the offending was correctly characterised as not being at the lower end of the range of objective seriousness.
[2] The written outline of argument filed on behalf of the appellant suggested that the starting point must have been 26 years and 6 months. Counsel conceded that this was an arithmetical error.
In the further alternative, the appellant submits that if the Judge had proceeded on the basis that the maximum available reduction was up to 30 per cent, but had allowed a lesser discount, her Honour had erred in view of her finding about the circumstances in which he had entered his plea, his genuine remorse and the communication of his regret and remorse to the family and friends of the victim.
The appellant also submits that the finding by the Judge that special circumstances existed to reduce the non-parole period below the statutory minimum of 20 years was consistent with s 32A of the Sentencing Act. In support of that contention the appellant refers to the policy objective of maintaining the utilitarian advantage gained from guilty pleas, the amelioration of the penalty in a case involving genuine contrition and the availability of scope for appropriate differentiation between an offender who pleads guilty and one who does not. The appellant draws support for those submissions from the decision of this Court comprising five judges in R v Hallcroft.[3] I note that Hallcroft was decided after the appellant was sentenced.
[3] (2016) 126 SASR 415 at [69], Kourakis CJ.
The appellant further submits that the offence could properly be described as an unpremeditated killing that occurred in a sudden quarrel. There was no intention to kill and the fatal wound was the culmination of a series of drunken altercations in which both parties had exchanged blows with fists and weapons. The appellant had not struck any other blow which caused grievous bodily harm or which was otherwise potentially fatal. These factors should have led to the conclusion that the offence was one for which a shorter non-parole period must be considered.[4]
[4] R v Stewart (1984) 35 SASR 477 at 478 – 479, King CJ.
The Respondent’s submissions
The respondent submits that it was always clear that the available discount on the non-parole period was up to 10 per cent. The appellant had not sought to persuade the Judge that a discount of up to 30 per cent under s 10C(2)(d) of the Sentencing Act was available. Moreover, the respondent contends that there was no factual basis upon which the Judge could have been satisfied that a discount of up to 30 per cent was available.
The respondent accepts that the Judge’s sentencing remarks do not state either the starting point of the sentence or the specific discount that was applied. The respondent submits that a failure to specify the intermediate mathematical process undertaken in order to arrive at the final sentence does not, of itself, reveal error.[5] Having regard to the manner in which the sentencing submissions proceeded, the respondent submits that the sentencing remarks of the Judge are sufficiently transparent. The sufficiency of the sentencing remarks cannot be decided without regard to the facts known to the parties and to the Judge.
[5] R v Niesen [2015] SASCFC 165 at [25], Nicholson and Lovell JJ (Stanley J in dissent).
The respondent further submits that it is apparent that the non-parole period of 18 years was arrived at after the Judge applied the full discount of 10 per cent that was available in recognition of the appellant’s late guilty plea, and also after her Honour had satisfied herself that the fact of the guilty plea, and the surrounding circumstances, amounted to special circumstances within the meaning of s 32A of the Sentencing Act. Thus, the respondent contends that it is clear that her Honour applied a discount of 10 per cent to a notional starting point of 20 years, being the mandatory minimum sentence.
In the alternative, the respondent submits that if the basis upon which her Honour had imposed sentence is not sufficiently transparent, and therefore reveals error, a non-parole period of less than 18 years could not be justified and the appeal should be dismissed.[6]
[6] R v Kreutzer (2013) 118 SASR 211 at [10], Kourakis CJ.
Consideration
I will first consider ground 3 of the appeal and then ground 1.
Section 32A(2)(b) of the Sentencing Act required that the Judge be satisfied that special reasons existed before her Honour could fix a non-parole period that was shorter than the prescribed period of 20 years. Section 32A(3) directs that when deciding whether special reasons exist for the purposes of s 32A(2)(b) the court must have regard to the matters listed in the three enumerated paragraphs of s 32A(3) and no other matters. Section 32A(3)(b) stipulates that the fact that the offender has pleaded guilty and the circumstances surrounding the plea are matters that must be taken into account in determining whether special circumstances exist.
Kourakis CJ (with Peek, Stanley, Lovell and Doyle JJ agreeing) held in R v Hallcroft that “[s]pecial reasons should not be conflated with the prescribed matters to which the Court’s consideration is confined by s 32A(3)”.[7]
[7] (2016) 126 SASR 415 at [58].
The Chief Justice also observed in Hallcroft (with the other four members of the Court agreeing) that:
… special reasons to reduce the statutory minimum non-parole period will not be established by the mere making of a guilty plea. It is a necessary condition for the reduction of the non-parole period below the statutory minimum, that the statutory minimum prevents the court from giving full effect to the reduction it would otherwise have made on account of the offender’s plea of guilty. However, the inability to give effect to that reduction will only amount to a special reason to depart from the statutory minimum if the failure to do so would result in a sentence so manifestly disproportionate to all of the circumstances of the case that the case should be treated as an exception to the rule.[8]
[8] Ibid at [70].
In determining whether special reasons existed for fixing a non-parole period less than the mandatory minimum the Judge was required by s 32A(3)(b) to take into account the fact of the guilty plea and the surrounding circumstances. Of course, because her Honour passed sentence before Hallcroft was decided, she was not guided by the observation of the Chief Justice in Hallcroft that special reasons will not be established by the “mere making of a guilty plea”.
In my view the Chief Justice’s use of the qualifying word “mere” was not intended to suggest that if there is some justifiable explanation for the delay in entering a guilty plea that might suffice to establish special reasons. The point being made by the Chief Justice was that the purpose and effect of s 32A(3)(b) is to define and confine the relevant considerations that must be taken into account in determining whether special reasons exist. However, those considerations are not, of themselves, special reasons. The suggested failure to provide appropriate or timely advice was no more than a circumstance surrounding the appellant’s plea in terms of s 32A(3)(b). Thus, even if the delay in entering the guilty plea was caused by inadequate or untimely advice, it could never be a special reason for setting the non-parole period below the mandatory minimum.
If the Court was satisfied that the delay in entering the guilty plea was caused by inadequate or untimely advice it would then have been necessary to determine whether that constituted circumstances outside of the control of the appellant so as to entitle him to a discount of up to 30 per cent under s 10C(2)(d) of the Sentencing Act. Once the extent of the discount was decided, in accordance with Hallcroft the further question would have been whether the inability to give effect to that discount because of the mandatory minimum non-parole period of 20 years would result in a sentence so manifestly disproportionate to all of the circumstances of the case that it should be treated as an exception to the 20 year rule.
The subsequent decision in Hallcroft establishes that it was not permissible for the Judge to conflate the finding that special reasons existed with the exercise of the discretion to set a non-parole period below the mandatory minimum.
The suggestion that the delay in entering the guilty plea was the product of inadequate or untimely advice was significant when it came to determine the extent of the discount to which the appellant was entitled under s 10C(2) of the Sentencing Act. Section 10C(2)(d) allowed a discount of up to 30 per cent if the appellant had satisfied the Court that he could not reasonably have pleaded at an earlier stage in the proceedings because of circumstances outside of his control.
At a directions hearing, counsel for the appellant (not being senior counsel who appeared on the appeal) informed the Court that the appellant had not been fully advised prior to the appointment of the Legal Services Commission to act for him in late March 2015. This issue was drawn to the attention of her Honour in support of the submission that special reasons should be found under s 32A(3)(b) of the Sentencing Act so as to empower the Court to fix a non-parole period less than the mandatory minimum of 20 years provided for in s 32(5)(ab).
There was no submission made by counsel who appeared for the appellant during the sentencing process that he was entitled to a discount of up to 30 per cent under s 10C(2)(d). Counsel informed the Judge that he did not have any knowledge of the circumstances prior to the Legal Services Commission being instructed. Thus, all that was known to the Judge is that on 6 February 2015 the appellant’s former solicitor had suggested that he may possibly plead guilty to manslaughter and that on 10 April 2015 it had been suggested that mens rea may be an issue.
The Judge was not informed as to whether the lateness of the guilty plea was due to a failure by his former legal advisers to provide appropriate and timely advice or, alternatively, whether the delay was somehow the product of the instructions provided by the appellant. Thus, there was no information before the Judge that might potentially have satisfied her Honour that the appellant could not reasonably have pleaded guilty at an earlier stage because of circumstances outside his control so as to permit a discount of up to 30 per cent on the non-parole period under s 10C(2)(d). At best, if the appellant satisfied the Court that there was good reason to do so, he was entitled to a discount of up to 10 per cent on his non-parole period.
I consider that the Judge’s comment that she could not be satisfied that the appellant had been properly advised prior to the Legal Services Commission being instructed related solely to her Honour’s conclusion that special reasons existed to justify reduction of the non-parole period below 20 years. I take that view for three reasons.
First, no submission had been made about the possible availability of a discount of up to 30 per cent on the non-parole period under s 10C(2)(d). Secondly, no information had been put before the Judge to suggest that the appellant was not responsible to a material extent for the delay in entering his guilty plea. Thirdly, the Judge’s initial observation at paragraph [59] that she could not be satisfied that the appellant had been properly advised served as an introduction to her Honour’s consideration as to whether special reasons existed so that the Court may fix a non-parole period of less than 20 years. Her Honour’s later finding at paragraph [64] that the fact that the appellant was not properly advised had deprived him of the opportunity to plead guilty earlier was also clearly linked to the fixing of a non-parole period less than 20 years. There is nothing in her Honour’s remarks that in any way suggests that her observation related to the question of whether a discount of up to 30 per cent was available.
The appellant was only entitled to a discount of up to 10 per cent if the Court was satisfied under s 10C(2)(f) of the Sentencing Act that there was good reason to grant such a discount. Given that her Honour fixed the non-parole period at 18 years (rather than the otherwise mandatory 20 years) it is plainly apparent that she must have been satisfied that there was good reason to do so in terms of s 10C(2)(f). While not expressly stated, it is implicit in her Honour’s reasons that the “good reason” was her finding that the appellant had not been properly advised prior to the Legal Services Commission being instructed.
I turn to the complaint that the Judge’s sentencing remarks did not indicate the discount that her Honour had applied and nor was the starting point disclosed.
In R v Wakefield a judge had applied one discount and imposed one sentence in a case that dealt with a number of offences to which different discount rates applied.[9] This Court held that while one sentence could be imposed under s 18A of the Sentencing Act, a judge was required to identify the notional starting points for the individual offences and the different discounts that were applied.
[9] (2015) 121 SASR 569.
I consider that the present matter is distinguishable from R v Wakefield. The need to identify the notional starting points and the discounts arose because there were multiple offences that were subject to different discount rates. That is not an issue in this case.
In R v Niesen this Court considered the failure of a sentencing Judge to nominate a starting point before applying a 30 per cent discount under s 10C of the Sentencing Act.[10] After allowing a discount of 30 per cent, the Judge had imposed a sentence of six years imprisonment. A mathematical exercise showed that the starting point must have been imprisonment for eight years, six months and 26 days. Nicholson and Lovell JJ held[11] (with Stanley J dissenting on this point[12]) that while it was preferable, and in many cases highly desirable, for a sentencing judge to nominate the starting point, a failure to do so does not vitiate the exercise of the sentencing discretion. Their Honours indicated that the policy underpinning s 10C of the Sentencing Act did not require mathematical precision in sentencing. That is because sentencing is not an exercise in addition or subtraction. A judge must reach the final sentence by balancing many different and conflicting features in the process of instinctive synthesis.
[10] [2015] SASCFC 165.
[11] Ibid at [80] – [85].
[12] Ibid at [39] - [40].
I consider it to be quite clear that the Judge determined that the starting point for the appellant’s non-parole period should be 20 years. For the reasons that I have already given, I also consider it to be quite clear that her Honour applied a discount of 10 per cent in recognition of the guilty plea so as to arrive at the non-parole period of 18 years. While it would clearly have been preferable for her Honour to state expressly both the starting point and the discount, as this Court held in R v Niesen, her failure to do so did not vitiate the exercise of the sentencing discretion. While her Honour’s reasoning was sufficiently transparent in the particular circumstances of this case, I nevertheless regard it as highly preferable to state the starting point and discount in any case where a mandatory minimum sentence applies and the Hallcroft principle operates. Failure to do so may lead to uncertainty as to whether that principle has been correctly applied.
I would dismiss ground 3.
I turn to ground 1, i.e. that the non-parole period of 18 years was manifestly excessive. In light of my conclusion that the notional starting point for the non‑parole period was 20 years, it is not necessary for me to consider the complaint by the appellant that the Judge erred by adopting a starting point greater than 20 years.
Although permission to appeal was refused in respect of the proposed second ground, being that the Judge erred in finding that the offending was not at the lower end of the range of objective seriousness, that issue is central to the complaint of manifest excess.
The appellant submits that the offence was clearly at the lower end of the range of objective seriousness. He had no intention to kill. The fatal wound was the culmination of several drunken altercations where both he and the victim had exchanged blows with fists and weapons.
The Judge found that the appellant did not intend to kill but that he did intend to cause grievous bodily harm.
I do not consider the submission that the offence was clearly at the lower end of the range of objective seriousness to be consistent with the facts. After striking the victim twice with the Allen key, the appellant went from the bathroom to the kitchen, opened a drawer, took a knife and then returned to the bathroom with that weapon. He cornered the victim in the bathroom, made several stabbing motions towards him and then pulled the victim towards himself while holding his T-shirt. He then stabbed the victim in the chest with sufficient force to cause the knife to penetrate his heart and coronary artery.
In my view, the actions I have described, and in particular the conduct of the appellant in leaving the bathroom to find a dangerous weapon, indicate that the offence was not at the lower end of the range of objective seriousness. Her Honour adopted a merciful approach by fixing the notional starting point at 20 years and imposing a non-parole period of 18 years. The non-parole period was not manifestly excessive. I would dismiss ground 1.
Conclusion
I would dismiss the appeal.
LOVELL AND DOYLE JJ: We agree that the appeal should be dismissed. We agree with the reasons of Parker J.
The sentencing remarks below did not expressly identify the notional starting point for the appellant’s non-parole period, or the discount that was applied on account of his guilty plea. While the circumstances do not always require that this be done, in a case such as the present where there was a mandatory minimum non-parole period, and a submission that incompetent advice might have affected the timing of the guilty plea, it would have been preferable to have done so.

But sentencing remarks do not exist in a vacuum. They must be read and understood in the context of the submissions made at the sentencing hearing. Further, the nature of sentencing remarks, and the desirability of brevity, mean that this context will not always be apparent on the face of the sentencing remarks.
In the present case, it is an important part of the relevant context that while the then counsel for the appellant did submit, or assert, that the timing of the plea was affected by incompetent advice, he did not ever submit that this entitled the appellant to something more than a 10 per cent discount under s 10C(2) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act). Further, the prosecutor appeared to accept in his submissions that her Honour might nevertheless take this factual matter into account in determining whether there were special reasons under s 32A(2) of the Act for fixing a non-parole period of less than the mandatory minimum of 20 years.
When her Honour’s sentencing remarks are read in this context, it is in our view sufficiently clear that her Honour considered that the appropriate notional starting point was a non-parole period of 20 years imprisonment; that it was appropriate to reduce that sentence by 10 per cent on account of the appellant’s plea of guilty (under s 10C(2)(f) of the Act); and that there were special reasons that warranted a non-parole period less than the mandatory minimum of 20 years (under s 32A(2)(b) of that Act). Her Honour thus fixed a non-parole period of 18 years, being 10 per cent less than her starting point of 20 years.
In circumstances where we thus consider that the sentencing process undertaken, and the discount applied, are sufficiently apparent from a proper understanding of the sentencing remarks, there is no merit in the third ground of appeal - which complains that her Honour failed to specify the discount that she applied.
In concluding that there were special reasons that warranted a non-parole period of less than the mandatory minimum of 20 years, it appears that her Honour relied upon the asserted inadequacy of the advice provided to the appellant, and an inference that this delayed the appellant’s decision to plead guilty. We agree with Parker J that, while a factual consideration of this nature was relevant to the determination of the appropriate discount for the appellant’s guilty plea under s 10C, it did not constitute special reasons to warrant a non‑parole period of less than 20 years.
In light of the approach to s 32A(2) and (3) required by the reasons of this Court in R v Hallcroft[13] (which was not decided until after her Honour had delivered her sentencing remarks in this matter), it was necessary to first determine the appropriate discount under s 10C(2), and then determine whether the inability to give effect to that discount by reason of the mandatory minimum non-parole period of 20 years would result in a sentence so manifestly disproportionate to all of the circumstances of the case that it should be treated as an exception to the 20 year minimum. Her Honour did not squarely address this second issue. Rather, it would appear that her Honour conflated the two stages of the enquiry, and consequently erred in concluding that there were special reasons to fix a non-parole period less than the mandatory minimum.
[13] (2016) 126 SASR 415.
In our view, there was no basis in this case to fix a non-parole period of less than 20 years. However, as there is no prosecution appeal, there is no occasion for this Court to consider interfering with the sentence imposed to correct this error.
As to the first two grounds of appeal, we also do not consider that they have merit. We do not agree that the sentence imposed was manifestly excessive. We consider that the starting point of 20 years was appropriate, and in circumstances where we do not accept that there were special reasons warranting a non-parole period of less than 20 years, it can hardly be said that the ultimate sentence was manifestly excessive.
We also do not accept, for the reasons given by Parker J, that her Honour erred in characterising the offending as not being at the lower end of the range of objective seriousness. But even if this was not an accurate characterisation of the offending, we would nevertheless dismiss the appeal on the basis that the sentence ultimately imposed was less than the sentence that we would have imposed (bearing in mind our observations as to the lack of any proper basis for fixing a non-parole period of less than 20 years).