R v Davey - [2017] SASCFC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAVEY
[2017] SASCFC 151
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Hinton)
16 November 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
Appeal against non-parole period imposed upon the appellant’s pleas of guilty to murder, rape and theft.
The appellant raped and murdered a nurse in the Anangu Pitjantjatjara Yankunytjatjara Lands after tricking her into leaving her home. The appellant stole the ambulance parked at the victim’s house and used it in the commission of the offences and to flee.
The appellant has poor antecedents, including a number of similar offences, many of which were committed while on parole. According to s 10C of the Criminal Law Sentencing Act 1988 (SA) (the Sentencing Act), the appellant was entitled to a reduction of up to 40 per cent because he pleaded guilty to the charge of rape within four weeks of being charged, and up to 30 per cent for the charges of murder and theft because he pleaded guilty before his committal. Section 32(5)(ab) prescribes a mandatory minimum non-parole period of 20 years for an offence of murder. Section 10C(4)(a) provides that a Judge, when accounting for a guilty plea, may have regard to whether any reduction would be disproportionate to the offence or inappropriate in the case of the particular defendant.
The appellant was sentenced to a mandatory sentence of life in prison. The Judge commenced with a notional non-parole period of 35 years which was reduced by approximately 8.6 per cent to 32 years on account of the appellant’s pleas of guilty. The appellant appeals on grounds that the non-parole period is excessive, that the Judge should have applied a greater reduction on account of the guilty pleas and that the Judge placed too much weight on s 10C(4)(a) of the Sentencing Act.
Held per Kourakis CJ (Stanley and Hinton JJ agreeing), dismissing the appeal:
1. The mandatory minimum non-parole period for an offence of murder imposed by s 32(5)(ab) of the Sentencing Act does not have the effect that defendants must receive significantly less than the maximum available reduction for a plea of guilty pursuant to s 10C of the Sentencing Act.
2. The application of that reduction of a non-parole period pursuant to s 10C is discretionary and must be exercised on the facts of each case.
3. Section 10C(4)(a) of the Sentencing Act was enlivened and it was necessary to fix a very substantial non-parole period taking into account the seriousness of the offending, the protection of the community and personal deterrence for the appellant.
4. The non-parole period was not excessive.
Criminal Law Sentencing Act 1988 (SA) 10C, 32, 32A, referred to.
Veen v The Queen (No 2) (1988) 164 CLR 465, applied.
R v Hallcroft (2016) 126 SASR 415; R v McPhee [2014] SASCFC 107, discussed.

R v DAVEY
[2017] SASCFC 151
Court of Criminal Appeal: Kourakis CJ, Stanley & Hinton JJ

KOURAKIS CJ: This is an appeal against the non-parole period fixed with respect to the statutory sentence of life imprisonment imposed on the appellant’s conviction for murder and with respect to determinate sentences imposed on his convictions for the offences of rape and theft. The appellant was sentenced to two concurrent sentences of six years and two years on the convictions of rape and theft respectively. The Judge fixed a single non-parole period of 32 years commencing on 24 March 2016 which was when the appellant was taken into custody. The Judge fixed that period after commencing with a notional non-parole period of 35 years which was reduced by approximately 8.6 per cent for the appellant’s guilty plea.
The appellant appeals on the following grounds:
1.The non-parole period imposed is, in all the circumstances, manifestly excessive.
2.The Judge erred in not applying the full, or a greater, reduction for the defendant’s pleas of guilty pursuant to section 10C(2)(b) of the Criminal Law (Sentencing) Act 1988.
3.The Judge placed too much weight on the provisions of s 10C(4)(a) when calculating the reduction of the non-parole period.
I would dismiss the appeal. The Judge was right to conclude that s 10C(4)(a) of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) was engaged because a greater reduction would have resulted in a non-parole period which was disproportionate to the offending and inappropriately low in light of the appellant’s circumstances. The non-parole period was not manifestly excessive having regard to the objective seriousness of the offending, that is a murder committed to escape apprehension for rape, and to the appellant’s long history of sexual violence. My reasons follow.
The offending
Before her death, the victim, Ms Woodford, worked as a Community Health Nurse at a medical clinic in the remote indigenous community of Fregon in the Anangu Pitjantjatjara Yankunytjatjara (APY) Lands.
On 23 March 2016, probably sometime shortly after 8.40 pm, Ms Woodford retired to her home which was protected by a steel cage that wrapped around the front of the verandah. At about 11.25 pm, the appellant, Mr Davey, tricked Ms Woodford into leaving the security of that cage. The only account of just how Ms Woodford was persuaded to leave her home comes from the sentencing submissions made for Mr Davey. On that account Mr Davey told Ms Woodford that his grandmother needed Panadol for her pain. Ms Woodford told him that she would deliver the Panadol herself. She opened the gate of the cage and walked to the ambulance. Mr Davey overpowered her and drove away in the ambulance with Ms Woodford held in it.
The Judge was told that Mr Davey had not planned to rape Ms Woodford but had intended only to steal the ambulance to drive to Adelaide. The Judge rejected that submission and found that the appellant went to Ms Woodford’s home intending to entice her outside and to rape her.
Sometime between 9.40 pm on Wednesday 23 March 2016 and 12.50 am on Thursday 24 March 2016, the appellant raped and then murdered Ms Woodford. He drove the ambulance from Fregon to Mimili, to Marla and finally to Coober Pedy where he arrived at about 10.30 am that morning. In Coober Pedy Mr Davey was spoken to by the police. After he was apprehended, he told them that he had stolen the ambulance at about 8.00 pm on the night before when he found that the key had been left in the ignition. Mr Davey falsely denied any knowledge of Ms Woodford’s whereabouts.
On Saturday, 26 March 2016 at 11.00 am, Ms Woodford’s body was found under a mound of dirt covered with branches. The appellant was then interviewed again and said:
Sorry I hit the wrong spot (pointing to the left side of your head) accidentally to steal her car, and wrong spot and hit her… I hit the wrong spot.
That was something of an understatement.
The injuries to Ms Woodford included blunt force trauma to her head and face and an associated underlying brain injury. There was evidence of trauma to Ms Woodford’s ribs, lower lumbar region and limbs. A fractured right hyoid bone and bruising to Ms Woodford’s neck was probably caused by choking. The probable causes of death were the brain and neck injuries, together with the compression and bruising to other parts of the body. The Judge found that the appellant killed Ms Woodford in the hope of covering up the rape.
Mr Davey was binging on ice for about three days before the commission of the offences.
His insight into the wrongfulness of the offending appears, on what he told the psychologist Mr Balfour, to be limited. Although he said that he was ‘really sorry’, when asked to explain why his offending behaviour was wrong he said:
That’s really bad. I didn’t want to do that. I didn’t mean to hurt her. I don’t know. Something was stuck in my head, and just made me do it. Because somebody had done something to me, and they sing to me or something. I didn’t want to do it that way. Something singing to me, and it happened that way.
Personal and community loss
Ms Woodford was well regarded as a dedicated and experienced nurse in the strong and closely knit team of health professionals of the Fregon medical clinic. Her husband, children, wider family and colleagues were devastated by her death.
A community impact statement also described the grief of the Fregon Anangu community at the loss of Ms Woodford. The report revealed that Mr Davey has been ostracised by his community.
The appellant’s antecedents
Mr Davey was born in June 1981 in Alice Springs but his family moved to the APY Lands when he was six. He attended school there until age 16 but is illiterate and has only a rudimentary command of the English language. He was a keen sportsman. His only work experience has been helping an uncle with camels, in the CDEP Program, and in prison.
Mr Davey’s parents were dedicated Christians who did not abuse drugs or alcohol. Unfortunately they passed away in the year 2000 when he was 19. His parents were supportive of him and he enjoyed a good relationship with them. He has six siblings but he has no contact with them.
Mr Davey has been a heavy cannabis user from a young age. When not in custody he also abuses alcohol daily. The appellant commenced smoking ice in 2001 or 2002. He told Mr Balfour that it made him angry and caused him to yell.
Despite being an initiated man, Mr Davey has achieved few of the normal cultural milestones that other Anangu men of his age have achieved. According to Mr Balfour, who has studied the Pitjantjatjara language and culture, Mr Davey is acutely aware of his cultural failures as an initiated man and is culturally ashamed about his aimless and meaningless life. Mr Balfour assessed Mr Davey’s intellectual functioning at the lower end of the normal range.
Mr Davey has a long, frequent and serious criminal history. In 1997 Mr Davey’s parents brought him to Adelaide in an effort to break his petrol sniffing habit. On 2 May 1997, when aged 15, he indecently assaulted a 16 year old girl in a predatory attack as she was walking along a pedestrian walkway in Queenstown. The appellant attempted to remove his victim’s underwear and his own trousers whilst restraining her, but she was able to pull away and run off. For that offence, the appellant entered into an obligation to be of good behaviour for 12 months with conditions that he return to the APY Lands and obey the direction of his father, uncle and the elders was imposed in the Adelaide Children’s Court.
However, Mr Davey did not comply with the conditions of the bond and in the following year he committed the following offences:
·assault (committed on 11 December 1997, when the appellant was aged 16) – Mr Davey, whilst affected by alcohol, assaulted a young Aboriginal woman by punching and kicking her in the stomach;
·assault with intent to rape (committed on 1 September 1998, when the appellant was aged 17) – Mr Davey put his hands up the skirt of and applied a choking hold to the neck of a 57 year old locum nurse in Fregon. Mr Davey forced his way into his victim’s home after knocking on the door;
·attempted rape (committed on 28 October 1998, when the appellant was aged 17) – Mr Davey snuck up from behind a 22 year old woman in Bonython Park and placed his hands between her thighs while attempting to pull his own pants down; and
·armed robbery (committed on the same date shortly after he had attempted to rape the young woman) – Mr Davey confronted a young man in Bonython Park and demanded money.
For those offences, on 24 September 1999 in the Adelaide Children’s Court, Judge Jennings imposed a penalty of detention for one year and nine months. In his sentencing remarks, Judge Jennings observed that Mr Davey ‘becomes grossly disinhibited sexually when under the influence of mind-altering substances, be they petrol or marijuana’.
On 4 December 2002, in the District Court, Mr Davey was convicted and sentenced to two years and six months imprisonment, with a non-parole period of 22 months, on an offence of assault with intent to rape. He was aged 21 and affected by the ingestion of petrol when, whilst naked, he forced a woman to the ground on the Fregon airstrip and attempted to pull her shorts down. Mr Davey served the entire sentence in prison, without taking parole.
On 19 September 2003, Mr Davey was convicted in the Alice Springs Court of Summary Jurisdiction for a series of offences committed between 22 September 2000 and 25 November 2000. The offences included aggravated assaults and thefts. In total, Mr Davey was sentenced to two years and six months imprisonment with a non-parole period of 16 months. On appeal to the Supreme Court of the Northern Territory in Alice Springs, the sentence was reduced on 4 August 2004 to two years imprisonment, with a non-parole period of 12 months, resulting on his release on that day.
The offences of aggravated assault in Alice Springs were committed on two different women. One was clearly an attempt to rob the woman of her purse. The other was an aggravated unlawful assault in which:
·Mr Davey jumped on a woman from behind in the Alice Springs Hospital car park, placing both arms around her torso;
·in the course of the ensuing struggle, the woman fell to the ground with Mr Davey on top of her;
·Mr Davey placed both hands over her mouth to prevent her screams; and
·the victim believed that the assault was sexually motivated.
On 27 November 2007, Mr Davey appeared in the Port Adelaide Magistrates Court on various traffic offences but also for offences of serious criminal trespass, aggravated assault, and indecent assault. The offences were committed between April and September 2007. He was sentenced to imprisonment for 14 months and 13 days with a non-parole period of five months commencing on 4 September 2007. The sentence would therefore have expired on 16 November 2008.
However, on 5 June 2008 just two days after his release on parole, Mr Davey committed offences of serious criminal trespass and theft from a restaurant premises in Adelaide. He was sentenced to nine months imprisonment for those offences, which was statutorily required to be served cumulatively on the period of three months and one day of his parole period which had not expired. Mr Davey was therefore returned to prison on a head sentence of 12 months and one day, with a non-parole period of eight months.
Less than two months after his release on non-parole for the restaurant theft, Mr Davey again committed an offence of trespass in a residence and common assault. The victim of the assault was a woman. He was convicted and sentenced to 12 months imprisonment, to be served cumulatively on non-expired paroles of one month and 26 days. A non‑parole period of three months was fixed.
Mr Davey again appeared in the Adelaide Magistrates Court on 17 August 2010 on an offence of dishonestly taking property. He was sentenced to three months in addition to his unexpired parole, resulting in a head sentence of 12 months. A non-parole period of two months was set.
On 15 April 2011 while Mr Davey was again on parole, he confronted a woman who felt intimidated by the tone of his voice and his gross intoxication. When she turned to walk away, the appellant struck her with a rock. She lost consciousness and fell to the ground. On 24 November 2011, Mr Davey pleaded guilty in the Port Adelaide Magistrates Court to committing assault causing harm on that woman and was sentenced to nine months imprisonment.
On 27 September 2012, Mr Davey committed the offences of aggravated assault against a police officer by spitting. On 25 September 2013, he was sentenced to two months imprisonment for that offence but it was served concurrently with a much more serious offence described in the next paragraph which he had committed the day before and for which he was being detained by the police officer when he spat on him.
On 14 August 2013, Mr Davey appeared in the Adelaide Magistrates Court on an offences of assault and indecent assault. The offending was described by the sentencing Magistrate as follows:
I will summarise the allegations to say that the victim, at about 9.00pm on 26 September, was sitting with a group of friends on the banks of the River Torrens. It is fairly clear that everybody was drinking alcohol at that time and an Aboriginal male, the defendant, came up at one point and sat down in their location. The victim’s boyfriend sat down and fell asleep. The victim did not want to leave so she sat there and is of the view that she must have fallen asleep also. At one point she remembers being woken up by the Aboriginal male. She tried to wake her boyfriend but was unsuccessful and so she went back to sleep. The next thing the victim recalls is waking up in hospital. When she woke up the left-hand side of her face and neck were sore and she had a scratch on her neck. She also had a chipped tooth on the left-hand side of her mouth. She believe that she had been assaulted. Events were witnessed by a couple of civilian witnesses. One witness heard screams and saw the victim lying on her back with the defendant lying on top of her. The victim’s legs were up with her knees bent. He heard the victim trying to shout ‘stop, stop’ but it was muffled. She was also telling the Aboriginal male to get off several times. He could see that the Aboriginal male was making thrusting movements with his hips towards the victim’s groin. The witness clearly realised at the time that the two people he was observing were not friends based on how the victim was behaving. It is accepted for the purposes of the plea that the defendant remained fully clothed at all times. He was subsequently spoke to by the police in the early hours of Thursday 27 September. Some CCTV footage was viewed and some DNA swabs were taken. The defendant concedes by his guilty plea that he assaulted the victim in the manner that is alleged and that he clearly indecently assaulted the victim in the manner that is alleged.
The appellant was sentenced to three years imprisonment with a non‑parole period of 20 months. The sentence commenced on 26 September 2012, which is when Mr Davey was taken into custody. Including the time served on parole, this sentence expired on 26 September 2015. It was just six months and six days later that the subject offence was committed.
The sentencing
It is common ground that Mr Davey was entitled to a reduction in his sentence, including the non-parole period imposed on his conviction of rape, of up to 40 per cent pursuant to s 10C(2)(a) of the Sentencing Act because he pleaded guilty within four weeks of being charged with that offence.
With respect to both the theft sentence and the non-parole period fixed for the statutory sentence of life imprisonment imposed on his conviction of murder, Mr Davey was entitled to a reduction of 30 per cent because he pleaded guilty before his committal.
The Judge assessed the degree of the appellant’s contrition and the objective seriousness of the offences as follows:
I might say in relation to the issue of credit for your pleas of guilty, I do not see those pleas as resulting from contrition on your part. You attempted to hide what you had done to the deceased, and you denied any knowledge of what had happened to her. You maintained your innocence in relation to the deceased's death until it was obvious to you that your position was untenable. The injuries to the deceased's body and the finding of your semen in her body meant there was no prospect of you defending these charges. Nonetheless, your pleas certainly did something to ease the anguish of Ms Woodford’s family and have enabled the facilitation of the ends of justice. For that reason I shall give you credit for them. In fact, your pleas of guilty represent the only mitigating features of this offending, which I see as callous in the extreme and at the higher end of seriousness for offences of rape and murder.
Indeed, I see all three offences as extremely serious offences of their type. The rape followed some sort of cynical ruse to get the deceased out of her house. She must have been forced to go with you and taken to the place where she died. She was plainly chosen by you as an easy target, vulnerable because of her empathy for your community.
The murder is at the higher end of the range of such offences. The extensive injuries show a vicious attack. You intended to kill Ms Woodford. I am satisfied you killed and hid her to cover your tracks. Any one of several injuries she suffered could have killed her. This was a cold-blooded killing of a woman who had worked with skill and compassion in your community.

The Judge observed that in the circumstances of Mr Davey’s offending, protection of the safety of the community was the pre-eminent consideration. The Judge then proceeded to impose the following head sentences:
In relation to the offence of murder I impose the mandatory sentence of life imprisonment. In sentencing you for the other two offences, I fix a sentence only by reference to the facts which directly relate to each. For the offence of rape I impose a sentence of six years imprisonment, having reduced it from a sentence of 10 years. In relation to the theft offence I impose a sentence of two years and two months imprisonment, having reduced it from three years imprisonment. Those two sentences will be cumulative as between themselves but concurrent with the life sentence. That means there will be head sentences totalling eight years and two months for those two offences.
The Judge’s reasons for fixing the overall non-parole period of 32 years were as follows:
I turn to the non-parole period. The non-parole period I fix has to reflect, not only the murder offence, but also the sentences I have imposed for the rape and theft, which I have already reduced. Because, although interrelated and occurring over a short period, each involved a separate and distinct criminal incursion. Of course it also has to reflect your personal circumstances and your plea of guilty to murder. I shall fix the period which I see as the lowest possible, while reflecting the punitive, deterrent and protective purposes of punishment.
Although your plea to murder was an early one, having regard to the fact that I have categorised your crime at the higher end of the range of murder crimes and that there is a mandatory minimum for murder, the reduction I give you will not approach 30 per cent of my starting point. It could not, first because that would ignore the fact that Parliament has set a mandatory non-parole period for murder and that acts as a 'straightening' or limiting factor, and second because to give you such a reduction would in my view be so disproportionate to the seriousness of the offending and so inappropriate that it would shock the public conscience. With all those considerations in mind, I have started with a non-parole period of 35 years but reduced that by three years to 32 years. Therefore, I impose a non-parole period of 32 years.
The sentence will be backdated to 24 March 2016 when you were arrested for the theft and kept in custody.
Due to the concurrent sentences imposed for the theft and rape offences it is difficult to analyse the percentage reductions applied to that part of the non-parole period which is attributable to the sentence of life imprisonment imposed for the offence of murder. There is some force in the Director’s submission that about six years of the notional non-parole period of 35 years can be attributed to those offences, at least on the premise that the notional non-parole periods are wholly cumulative. On that premise, the reduction of three years from the Judge’s notional starting point can be taken to be a reduction of about 10 per cent from a notional starting point, for that portion the non-parole period attributed to murder, of 29 years.
However some degree of concurrency must be allowed for both because of the connection between the offences and because, ultimately, there could be only a single, albeit indefinite, sentence of life imprisonment.
Proper Application of s 10C
The appellant contends that s 10C of the Sentencing Act demanded a higher reduction. In particular the appellant contends that the Judge erred in concluding that the statutory minimum non-parole period of 20 years for an offence of murder has a ‘straightening’ effect on reductions for a guilty plea even when the reduction would not result in a non-parole period below the statutory minimum. The appellant contends that error was responsible for the very small percentage reduction from the Judge’s notional starting point.
Section 10C of the Sentencing Act relevantly provides:
10C—Reduction of sentences for guilty plea in other cases
(1)This section applies to a sentencing court other than where section 10B applies.
(2)If a defendant has pleaded guilty to an offence or offences—
(a)     not more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 40%;
(b)     more than 4 weeks after the defendant first appears in a court in relation to the relevant offence or offences but before the defendant is committed for trial for the offence or offences—the sentencing court may reduce the sentence that it would otherwise have imposed by up to 30%;
…
(4)In determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea made within a particular period, a court must have regard to such of the following as may be relevant:
(a)     whether the reduction of the defendant's sentence by the percentage contemplated would be so disproportionate to the seriousness of the offence, or so inappropriate in the case of that particular defendant, that it would shock the public conscience;
(b)     the stage in the proceedings for the offence at which the defendant indicated his or her intention to plead guilty (including whether it would, in the opinion of the court, have been reasonable to expect the defendant to have done so at an earlier stage in the proceedings);
(c)     the circumstances surrounding the plea;
(d)     in the case where the defendant has been charged with more than 1 offence—whether the defendant pleaded guilty to all of the offences;
(e)     if the defendant satisfies the court that he or she could not reasonably have been expected to plead guilty at an earlier stage in the proceedings because of circumstances outside of his or her control—that fact;
(f)    whether or not the defendant was made aware of any relevant matter that would have enabled the defendant to plead guilty at an earlier stage in the proceedings,
and may have regard to any other factor or principle the court thinks relevant.
Section 32(1) of the Sentencing Act imposes a duty on sentencing courts to fix a non-parole period but relevantly qualifies that obligation by s 32(5) as follows:
32—Duty of court to fix or extend non-parole periods
(5)The above provisions are subject to the following qualifications:
…
(ab) if fixing a non-parole period in respect of a person sentenced to life imprisonment for an offence of murder, the mandatory minimum non-parole period prescribed in respect of the offence is 20 years;
…
(c) a court may, by order, decline to fix a non-parole period in respect of a person sentenced to imprisonment if the court is of the opinion that it would be inappropriate to fix such a period because of—
(i)the gravity of the offence or the circumstances surrounding the offence; or
(ii)the criminal record of the person; or
(iii)the behaviour of the person during any previous period of release on parole or conditional release; or
(iv)any other circumstance.
In itself, the minimum non-parole period for murder established by s 32(5)(ab) of the Sentencing Act is not a reason not to give full effect to the statutory policy of s 10C of the Sentencing Act. Indeed, in R v Hallcroft,[1] (Hallcroft) this Court recognised that giving effect to reductions allowed by s 10C of the Sentencing Act generally militated in favour of a finding of special reasons to fix a non-parole period shorter than the prescribed period pursuant to s 32A of the Sentencing Act:[2]
[38]As to the first question, I would hold that if the application of s 10C of the CLSA to a notional non-parole period, fixed without reference to a defendant's guilty plea, would result in a non-parole period substantially less than 20 years, then subject to any countervailing circumstances, there are special reasons to fix a non-parole period less than 20 years. On the second question, I would hold that a finding of special reasons will not, again speaking generally, support reducing the notional non-parole period to the full extent of the applicable percentage. This is because the statutory minimum non-parole period for murder will tend to limit the reduction made pursuant to s 10C of the CLSA, of itself, and through the operation of s 10C(4) of the CLSA.
[1] R v Hallcroft (2016) 126 SASR 415.
[2] R v Hallcroft (2016) 126 SASR 415 at 424, [38] per Kourakis CJ.
In Hallcroft, I observed that the enactment of a statutory minimum will result in a crowding of non-parole periods around the minimum.[3] That statutory consequence is not a reason to deny offenders the reduction that they would otherwise be entitled to in order to smooth statistical results or to mitigate the ‘sense of grievance’ of offenders who did not plead guilty at an early stage.
[3] R v Hallcroft (2016) 126 SASR 415 at 428, [51].
The statutory policy of s 10C of the Sentencing Act is to encourage early pleas of guilty. There are many benefits to the community in resolving criminal proceedings quickly. They include, of course, the saving of public resources, but there are many other, at the very least, equally important benefits. Victims of the offences and their families can proceed to recover from their grief and loss uninterrupted by legal proceedings. The anxiety of witnesses and in particular victims of the crime over the stress of giving evidence is much relieved. The imposition of punishment is not complicated, and its effectiveness not diminished, by delay. Finally the community’s sense of security is enhanced by the speedy resolution of criminal offences.
Accordingly, I do not accept that the minimum non-parole period imposed by s 32(5)(ab) of the Sentencing Act has the effect that defendants convicted of murder must receive significantly less than the maximum available sentence reduction prescribed by s 10C of the Sentencing Act.
It can be accepted that s 10C of the Sentencing Act provides a discretion to reduce a sentence by a proportion up to the maximum proportion prescribed for each relevant stage of the proceedings but does not mandate it. However, in R v McPhee, Nicholson J (Vanstone and Blue JJ agreeing) explained why a robust approach to reductions should be taken:[4]
[46]I add one more observation. In my view, sentencing judges should take a robust view with respect to pleas which satisfy the various criteria set out in s10C relevant to the different maxima provided for. Ultimately, the actual discount provided remains discretionary and each case will need to be determined according to its own facts. Nevertheless, if guilty persons are to be encouraged to plead early so as to provide the utilitarian benefits to the administration of justice contemplated, they will need to be confident that their expectations of a substantial discount in accordance with the requirements of the legislative regime will be met. Related to this is the need for defence counsel to be in a position to advise their clients on this topic with confidence.
[4] [2014] SASCFC 107 at [46].
The burden of that observation is that the utilitarian purpose of the statute is a relatively weighty consideration which cannot be achieved unless there is a reasonable degree of certainty that a reduction approaching the maximum will be made. In particular, the statutory purpose would be substantially undermined unless, on pleading guilty in one period, a defendant could be reasonably confident that the reduction will be greater than the maximum reduction available for the subsequent statutory period.
Of course the statutory discretion must be exercised on the facts of each case. However, in order to satisfy the statutory purpose, which is in turn dependent on generating a reasonable degree of certainty in the generality of cases, one would expect there to be significant countervailing circumstances before a defendant would be denied the substantial part of the available reduction.
However the Sentencing Act itself expressly imposes a limit on the scheme of reductions it prescribes. Section 10C(4)(a) of the Sentencing Act shows that the public policy reasons favouring a reduction must, in some circumstances, give way to competing public policy considerations. For example, s 10C(4)(a) of the Sentencing Act recognises that there may be some offences in respect of which the utilitarian benefit must give way to the need to impose a sentence which is proportionate to the offence and which properly meets the need for the personal deterrence of a particular defendant. Section 10C(4)(a) of the Sentencing Act will more often apply to very serious offences and to murder in particular. In its application to the offence of murder the question of disproportion will be measured against the mandatory minimum non-parole which is legislatively benchmarked for an offence at the lower end of the range of objective seriousness.
True it is that particularly serious offences, especially when committed by a recidivist offender, will attract a higher starting point. The appellant contends that there is therefore no reason to decline to give the full reduction for a guilty plea. However, there are limits on the severity of a head sentence, and or non-parole period, that can be imposed on an offender who has pleaded not guilty. In some circumstances, therefore, it may also be necessary to limit the reduction made for an early guilty plea in order to fix a sentence which is proportionate to the offending and appropriate for the particular offender.
Moreover, in this case, at issue was the fixation of a non-parole period for an indeterminate sentence. Section 32(5)(c) of the Sentencing Act recognises that in some circumstances it may be inappropriate to fix a non-parole period at all. In such a case, the utilitarian benefit of s 10C of the Sentencing Act must give way. In between the two extremes of a full reduction for a guilty plea and not fixing a non-parole period at all, there will be cases in which the reduction for the guilty plea will be a relatively smaller proportion of the maximum available statutory reduction.
The minimum non-parole period of 20 years is expressed by s 32A of the Sentencing Act to be appropriate for an offence ‘at the lower end of the range of objective seriousness’. If a 30 per cent reduction were to be applied for Mr Davey’s guilty plea then the head sentence would be reduced to 24 years and six months from a notional starting point of 35 years. A reduction of that kind would be disproportionate to the seriousness of the offending. Even more so if that percentage reduction were applied to a notional starting point of 29 years, which arguably reflects the portion of the non-parole period attributable to the offence of murder. It would fail to impose proportionate punishment including condemnation for an offence which, as the Judge correctly observed, was at the ‘higher end of the range’. Moreover, the sentence would not apply the necessary personal deterrence for an offender with Mr Davey’s strong proclivity for dangerous offending.
In addition to the objective seriousness of the three offences, the appellant’s antecedents, his lack of remorse and his high risk of reoffending all bespoke of an unarguable need to give significant weight to the protection of the community in the sentencing process. It was within the sentencing Judge’s discretion to attach ‘great weight’ to the protection of society as a factor within the limits of proportionality. In Veen v The Queen (No 2), the High Court explained:[5]
… It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. …
The principle of proportionality is now firmly established in this country. It was the unanimous view of the Court in Veen [No.1] that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender: …
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible. …
The plea has been heard by the courts of this country, by adopting the principle of proportionality and by having regard to the protection of society as a factor in determining a proportionate sentence. It must be acknowledged, however, that the practical observance of a distinction between extending a sentence merely to protect society and properly looking to society’s protection in determining the sentence calls for a judgment of experience and discernment.
[5] Veen v The Queen (No 2) (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ.
Conclusion
This is a case in which a very substantial non-parole period is necessary to reflect the seriousness of the offending, to protect the community and to deter the appellant. Section 10C(4)(a) was enlivened in the circumstances of this case. There was good reason not to reduce the non-parole by close to the prescribed proportion. The non-parole period was not excessive.
I would dismiss the appeal.
STANLEY J: I would dismiss the appeal. I agree with the reasons of the Chief Justice.
HINTON J: I agree with the Chief Justice, for the reasons he gives, that the appeal should be dismissed.