R v Dransfield - [2016] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DRANSFIELD
[2016] SASCFC 68
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Nicholson and The Honourable Justice Doyle)
2 June 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE
Appeal against sentence. The respondent was charged with the offence of recklessly causing serious harm to another, contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA). The circumstances of the offending were that the respondent had intervened in a disagreement between a food van vendor and the victim and, despite the victim not acting aggressively, the respondent punched the victim in the head. The victim lost consciousness and was severely injured. The respondent pleaded guilty and the Judge sentenced the respondent to imprisonment for five months, commencing on 14 April 2016.
The Director of Public Prosecutions has sought leave to appeal against the sentence on four grounds: first, that the sentence imposed is manifestly inadequate; second, that the Judge erred in imposing a discount of 40 per cent for the guilty plea; third, that the Judge erred in giving a separate discount or allowance as a consequence of the respondent making a payment towards compensation; and fourth, that the Judge erred by failing to sentence on the basis that the respondent was reckless as to causing serious harm.
Held per Nicholson J (Peek and Doyle JJ agreeing):
1. The Judge erred in the approach adopted with respect to the question of recklessness.
2. The Judge erred in imposing a discount of 40 per cent for the guilty plea and by providing a separate discount or allowance for the making of a payment towards compensation.
3. In the circumstances, the sentence imposed by the Judge is manifestly inadequate.
4. Application for permission to appeal is granted and the appeal is allowed. The District Court sentence is set aside. The respondent is resentenced to a head sentence of two years, one month and one week, with a non-parole period of ten months, both backdated to commence on 14 April 2016.
Criminal Law Consolidation Act 1935 (SA) s 21, s 23, s 24, s 340; Criminal Law (Sentencing) Act 1988 (SA) s 10A, s 10B, s 10C, referred to.
Markarian v The Queen [2005] HCA 25, (2005) 228 CLR 357; R v Place [2002] SASC 101, (2002) 81 SASR 395; R v Nemer [2003] SASC 375, (2003) 87 SASR 168; R v Harkin [2011] SASCFC 24, (2011) 109 SASR 334; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Reed [2013] SASCFC 16; R v McPartland and Polkinghorne [2014] SASCFC 84, (2014) 120 SASR 69; R v O’Connor [2012] SASCFC 15; R v Ivic [2006] SASC 8; R v Randall-Smith and Davi (2008) 100 SASR 326; R v Harkin (2011) 109 SASR 334; R v Fowler [2014] SASCFC 16, considered.

R v DRANSFIELD
[2016] SASCFC 68
Court of Criminal Appeal: Peek, Nicholson and Doyle JJ
PEEK J.

I would grant permission to appeal and allow the appeal. I agree with the orders proposed by Nicholson J and with his reasons.
NICHOLSON J.
Introduction
Mark Rawa Dransfield (the respondent) was sentenced in the District Court to a term of imprisonment for five months, not suspended, after pleading guilty to the offence of recklessly causing serious harm to another.[1] According to the Judge’s sentencing remarks the term of five months reflected a sentence that “has been reduced by 40 per cent to take into account [the] plea of guilty and further reduced because of [the respondent’s] payment of compensation”. The sentence of imprisonment commenced on the day of sentencing, 14 April 2016. The maximum penalty for this offence is imprisonment for 15 years. The Director of Public Prosecutions (the applicant) has applied for permission to appeal against that sentence on the following grounds.
1.The sentence imposed is manifestly inadequate.
2.The learned sentencing judge erred in imposing a discount of 40 per cent for the guilty plea.
3.The learned sentencing judge erred in giving a separate discount as a consequence of the payment of compensation.
4.The learned sentencing judge erred by failing to sentence on the basis of the respondent was reckless as to causing serious harm.
[1] Contrary to section 23(3) of the Criminal Law Consolidation Act 1935 (SA).
Circumstances of the offending
The declarations by eye-witnesses and the closed circuit television (CCTV) footage which captured the whole of the incident, including the lead-up to it and its aftermath (although without sound) tell a consistent story. At about 3.45am on Sunday 25 January 2015, the victim and the respondent were standing near a takeaway food van in the city. A disagreement, apparently over payment, occurred between the victim and the vendor. It can be inferred that the victim who had ordered a yiros for himself and one for his male companion was upset about the price he had been charged. The confrontation was solely verbal between the vendor in the van and the victim on the footpath.
The respondent was nearby and waiting to make a purchase. He decided to intervene. Again, only a verbal altercation at first took place and it is clear from the evidentiary materials including, in particular, the CCTV footage, that at no time did the victim physically confront or appear to physically intimidate the respondent in any way whatsoever. There was some posturing of an intimidatory nature from the respondent which led to some pushing and shoving by the respondent. This altercation lasted some seconds until the vendor left his van to shake the respondent’s hand and to tell him not to worry about the issue.
The vendor whilst outside the van asked the victim if he wanted the yiros which had been ordered. When the victim said that he did not, the vendor asked the victim to leave the area which he proceeded to do. The respondent still was in close proximity. At this point, I adopt the summary provided by the applicant in its written outline which summary, I am satisfied, is supported by the evidentiary material.
After pointing in a direction away from the area the vendor turns away from the victim and takes a step away. The respondent is by then facing the victim. The victim’s arms are down by his side. He raises both arms slightly in a shrugging motion and it appears his palms are facing toward the respondent. No act of aggression by the victim is seen by any witness or in the CCTV footage. Immediately before the blow was struck the respondent was being abusive to the victim. The respondent then punched the victim in the head. The blow was struck with “a lot of force”. There was no forewarning. Both the witness and the CCTV footage suggest the victim was unconscious before he hit the ground. The respondent was immediately restrained by the vendor and a crowd controller.
My review of the CCTV footage shows that without a hint of warning, for example, there was no “shaping up” as a boxer might, the respondent’s arm shot out with a straight arm, closed fist punch flush to the face of the victim. It was all over in a split second. From the moment of the punch the victim did not move other than to involuntarily fall to the ground. The blow was extremely forceful and was skilfully administered.
The victim lost consciousness and was severely injured. He was admitted to hospital that night and spent four days in the intensive care unit and five days in a neurological ward. He suffered extensive fractures of the right eye socket, nose, base of skull and the right temporal bone and had to undergo facial reconstructive surgery. Metal plates had to be inserted into his face. He suffered contusions of the brain (right frontal and right temporal lobes) and bleeding over the surface of the brain (left subdural haematoma). The victim suffered a grand mal seizure and when admitted to the intensive care unit required anti-convulsant medication.
Sequelae have included ongoing anxiousness when in crowded areas, an inability to drive for at least six months because of the seizure, the need to take anti-seizure medication, headaches, dizzy spells, pain and discomfort as a result of the injuries themselves and the consequential surgery, an inability to return to full time work for approximately four months, ongoing restrictions at work with consequential loss of income and loss of capacity to engage in sporting activities to the extent and at the standard previously enjoyed. The nature and extent of any permanent incapacities likely to be suffered was not made clear on the evidence before the Judge.
The respondent’s personal circumstances
The respondent was 22 when he committed the offence. He was born whilst his parents were visiting in Queensland but grew up with his parents in Papua New Guinea. A search of all Australian Police Services discloses that he has no record of prior offending in Australia. The respondent is a private in the Australian Army and various referees from within his regiment have spoken extremely highly of him as a soldier and have described him, according to their understanding, as a person of good character. The sentencing Judge was provided with a number of references to this effect. After committing the offence the respondent started to see an Army chaplain and an alcohol counsellor. The respondent, at the time of the offending, was well positioned to enjoy a good career with the Australian Army.
The Judge was impressed with the evidence of the respondent’s good character, his apparent contrition and his prospects for rehabilitation. His Honour accepted that the respondent was remorseful.
Whilst alcohol no doubt played some part in the offending, there really was no explanation for what might be seen as an out of character overreaction to that which the respondent perceived as unfair or offensive behaviour by the victim.
There was evidence before the Judge that, if the respondent were to receive a sentence of imprisonment to be served, he would lose his position in the Armed Forces. This was seen by the Judge to be a significant consideration.
This will be a great loss to you as you might have expected to have had a lengthy and successful career in the Army, given the information that I have been provided, and you do not have any other training that will readily translate into employment in the civil sector.
The fact that you will lose your job is a matter that I am required to take into account.
It was not clear on the evidence whether or not the respondent might lose his position in any event, that is, even if an immediate term of imprisonment were not to be imposed.
The Judge’s approach to sentence
The Judge in his sentencing remarks addressed and, it would appear, paid particular regard to:
(i)the circumstances of the offending and the risks and dangers inherent in offending of this nature;
(ii)the very serious consequences for the victim;
(iii)the respondent’s lack of prior criminal convictions;
(iv)the respondent’s good character, the positive personal references and his involvement and expected future with the Australian Army;
(v)the extremely dangerous nature of the offending – “it is not unknown for such a blow to cause a person to fall and hit his head and die”, the expectation in the community that its members should be able to feel safe in public places, the apparent increasing frequency of this type of behaviour and its potential for “grievous damage” such that the issue of general deterrence is an important principle in the sentencing process;
(vi)the fact that the respondent stood to lose his career in the Armed Forces, this being, itself, a significant punishment and one that must be taken into account; and
(vii)the fact that the respondent voluntarily paid the victim the sum of $5,000 by way of part compensation.
His Honour weighed the various countervailing factors and, ultimately, reached the view that he was not prepared to suspend the sentence of five months imprisonment that he had decided to impose.
Did the Judge err by failing to sentence on the basis that the respondent was reckless as to causing serious harm (ground 4)?
The offence under section 23(3) of the Criminal Law Consolidation Act 1935 is in these terms.
A person who causes serious harm to another, and is reckless in doing so, is guilty of an offence.
There is also an offence pursuant to section 24(2) in these terms.
A person who causes harm to another, and is reckless in doing so, is guilty of an offence.
The maximum penalties for these two offences are, in the absence of aggravating circumstances, imprisonment for 15 years and imprisonment for five years respectively.
There are two differences between the two offences which render one significantly more serious than the other and which justify the parliament’s decision to provide for such a substantial difference in the maximum penalties. First, under section 23(3) the injuries caused must, in fact, amount to “serious harm”, whereas under section 24(2) they need only amount to “harm”. Second, as far as the necessary mental element for each offence is concerned, under section 23(3) the offender must be found to have been reckless with respect to the causing of serious harm rather than merely reckless with respect to the causing of harm. If only the latter were to be established, then only an offence under section 24(2) of recklessly causing harm will be made out even if, as a matter of fact, “serious harm” resulted.
Section 21 of the Criminal Law Consolidation Act 1935 contains definitions for “harm” and “serious harm”. They are, as would be expected, defined differently and significantly so.
The term “harm” is defined to mean “physical or mental harm (whether temporary or permanent)”. The term “physical harm” is defined to include: unconsciousness, pain, disfigurement, and infection with a disease.[2] It can be seen that “harm”, insofar as physical injury is concerned, can embrace anything from mild pain to unconsciousness and disfigurement.
[2] No issue of mental harm arises in the present case.
The term “serious harm” is defined so as to extend the notion of harm to embrace significantly more serious bodily injury. It means:
(a)harm that endangers a person’s life; or
(b)harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or
(c)harm that consists of, or results in, serious disfigurement.
By his plea of guilty, the respondent admitted that when he assaulted the victim so as to cause him serious harm he was reckless in so doing. According to the definition in section 21:
A person is reckless in causing ... serious harm to another person if the person―
(a)is aware of a substantial risk that his or her conduct could result in ... serious harm ...; and
(b)engages in the conduct despite the risk and without adequate justification.
By his plea, the appellant admitted that he was aware that the striking of the victim in the way he did carried with it a substantial risk that this could result in serious harm, that is, harm that endangered the victim’s life or that could result in serious and protracted impairment of a physical or mental function or that could result in serious disfigurement of the victim. Being so aware, the respondent engaged in the conduct notwithstanding that risk (and without adequate justification). Recklessness is more than mere negligence or mere carelessness or acting or omitting to act merely without thinking about the consequences; an active thought process is engaged.
Counsel for the respondent submitted that the respondent’s actions were not premeditated or, as the Judge put it, were committed on “the spur of the moment” and “without mature reflection on the possible consequences ...”. This was so up to a point. There was a substantial lead-up to the blow that was struck during which the respondent involved himself in the verbal altercation between the vendor and the victim, uninvited and without justification. When the vendor ceased to interact with the victim, the respondent continued. According to the CCTV footage, the time that elapsed between when the respondent first verbally interacted with the victim and when he punched him was approximately 45 seconds. The respondent had time to reflect and to walk away. At the time of the blow, the victim had started to move off but the respondent followed after, continued with the verbal abuse and then lashed out. Notwithstanding the respondent’s initial claim of self-defence in the record of interview with the police on the morning of and soon after the incident, the evidence establishes that there was no physical provocation or any perceived threat of danger to which the respondent reacted.
The relatively short period of time over which the events unfolded does not undermine or detract from the respondent’s plea to the effect that he was aware that he could cause serious harm but proceeded in any event and that his actions were without adequate justification.
Against this background and understanding of the respondent’s plea, I turn now to consider the Judge’s sentencing remarks insofar as they bear on this issue.
I start with the observation that the sentencing remarks in the appeal book are in the form endorsed by the Judge as having been “settled” by his Honour and available for publication on the internet. The document was settled on the day the sentence was delivered and the Court can be confident that it is an accurate record of his Honour’s oral sentencing remarks.
His Honour dealt with the basis for the respondent’s culpability principally in the first three paragraphs of the sentencing remarks.[3]
You have been committed to this court for sentence for the offence of Recklessly Causing Harm to Another contrary to s 23(3) of the Criminal Law Consolidation Act. The maximum penalty is imprisonment for 15 years.
You say you did not intend to cause these injuries. I accept that. Most people do not intend to cause injuries as serious as the injuries you caused to your victim to another individual they do not even know. You are not to be sentenced on the basis that you intended to cause the injuries. The offence is one of recklessness and your blameworthiness is that you caused an unlawful blow to your victim while realising that there was a real risk that he would suffer harm as a consequence.
As a matter of common sense, it is not difficult to see that a hard blow to the face of an unsuspecting victim would be likely to cause serious harm. Unfortunately, recently there have been a significant number of instances of such single blows causing serious harm, even death, to the individual that has been struck that we have read about in the media. It is a serious offence to unlawfully strike an unsuspecting member of the public in a public place in circumstances where you realised there is a real risk of causing harm to that person. It is even more serious if actual harm of a very serious kind is the result, even if the actual harm is the fortuitous result of the offending, as in your case.
[3] The emphasis (bold) has been added.

In the opening sentence, his Honour incorrectly described the offence committed as “recklessly causing harm to another contrary to s 23(3) of the Criminal Law Consolidation Act”. The Judge identified the correct section for the offence of recklessly causing serious harm but stated the lesser offence as provided for by section 24(2). His Honour identified the correct maximum penalty of imprisonment for 15 years.
In the second paragraph of the remarks, the Judge observed, correctly, that the respondent is not to be sentenced on the basis that he intended to cause the injuries suffered by the victim.
The offence is one of recklessness and your blameworthiness is that you caused an unlawful blow to your victim while realising that there was a real risk that he would suffer harm as a consequence.
(emphasis added)
Here the Judge has directly attended to the question of recklessness as an important element of the offence and as one that underpins “blameworthiness” or culpability. However, his Honour has characterised the recklessness as involving a realisation that there was a real risk that the victim would suffer (merely) harm.
In the third paragraph of the sentencing remarks his Honour first addressed the general understanding of the community – “as a matter of common sense, it is not difficult to see that a hard blow to the face of an unsuspecting victim would be likely to cause serious harm”. His Honour used the term serious harm but, at this point, only in the context of describing that which, in fact, happened to this victim as being objectively foreseeable. His Honour was not here addressing the state of understanding of (the mental element for) the offender being sentenced in this case. His Honour proceeded to observe, correctly, that there has been a significant number of instances of single blows “causing serious harm, even death, to the individual ... that we have read about in the media”. Again, his Honour was addressing the common understanding in the community of that which might result from such conduct. However, when the Judge then turned to this respondent’s state of mind, he observed:
It is a serious offence to unlawfully strike an unsuspecting member of the public in a public place in circumstances where you realised there was a real risk of causing harm to that person. It is even more serious if actual harm of a very serious kind is the result. Even if the actual harm is a fortuitous result of the offending, as in your case.
(emphasis added)
This approach serves to undermine and fails to attend to the essential mental element for the offence in question, that is, recklessly causing serious harm. His Honour has again focussed on the realisation of a real risk of causing harm, itself a “serious offence” and then proceeded to characterise such a serious offence as “even more serious” if actual harm of a very serious kind in fact resulted, even if fortuitously so. In other words, the offence is “even more serious” according to the nature of the harm which resulted but not, it would appear, according to the nature of the harm with respect to which the respondent has been reckless.
The use of the word “fortuitous” was unfortunate because it suggests that the serious harm that, in fact, resulted was unrelated to the respondent’s mental state of recklessness. At no point has his Honour addressed culpability in terms of the respondent’s recklessness vis-à-vis the causing of serious harm.
It is likely that his Honour correctly identified the relevant offence as being recklessly causing serious harm with a maximum penalty of 15 years imprisonment. It is certainly the case that his Honour was very much alive to the fact that the respondent’s conduct resulted in “serious harm”. But what is not at all clear from the sentencing remarks is that his Honour properly attended to the requisite mental element to the effect that the respondent was reckless with respect to the causing of serious harm, that is, was aware of the risk of causing serious harm but proceeded in any event. This involves much greater culpability than being reckless in the sense of being aware that harm might result and proceeding in any event (and even if serious harm were to follow).
What is apparent from the sentencing remarks is that the Judge, whilst satisfied that serious harm resulted, sentenced on the basis that the respondent was reckless with respect to the causing of harm simpliciter. In my view, this is what has happened and it constitutes a significant error. It may go some way to explaining the very low starting point for the head sentence imposed. The starting point (to be discussed further below) was probably something less than 12 months. The fact that his Honour imposed such a low sentence can, in part, be explained by the erroneous approach adopted to the question of recklessness and is a factor which supports my finding that such an approach was in fact adopted.
Did the Judge err in imposing a discount of 40 per cent and by giving a separate discount with respect to the payment of compensation (appeal grounds 2 and 3)?
There was evidence before the Judge from the victim impact statement that the victim had suffered substantial financial loss as a consequence of his injuries. That loss was not particularised or quantified other than in most general terms. Nevertheless, his Honour was satisfied and with justification that there had been a substantial financial cost to the victim. During sentencing submissions, his Honour introduced the issue of compensation and, evidently, was concerned to give the respondent an opportunity to negotiate with the applicant the payment of a lump sum by way of compensation. I do not understand that this was, in any way, intended to preclude the victim from pursuing any legal rights he might have pursuant to the Victims of Crime Compensation Scheme or at common law, only that the respondent, as a genuine act of contrition, wished to make a contribution.
The Judge introduced the question of compensation during submissions on 12 November 2015. The matter was adjourned, part heard, to 14 January 2016 for the purpose of, inter alia, discussions about compensation to be continued. Submissions were adjourned again to 9 March 2016 and sentence was delivered on 14 April 2016. During the submissions on 9 March 2016, the respondent’s counsel advised the Judge that the respondent still was not in a position to make a payment by way of compensation although it would appear that an amount of $5,000 had been agreed upon. The matter was adjourned to the sentencing date, Thursday 14 April 2016. However, two days before the sentence was due to be delivered, counsel for the respondent provided to the Judge’s chambers a short set of “supplementary sentencing submissions” which included an advice that the amount of $5,000 compensation had by then been paid. This was drawn to his Honour’s attention on the morning of the day of sentencing, minutes before sentence was delivered and his Honour acknowledged that he was aware of the payment.
The matter of payment of compensation was of some importance to the Judge. However, in the body of his Honour’s sentencing remarks he referred only to the “significant financial loss” suffered by the victim and the difficulty of estimating the extent of that loss but that “something like $25,000 would not be an unreasonable estimate”. There is no mention in the sentencing remarks of the payment of the $5,000. The explanation for this might be that his Honour was only informed of the actual payment (as opposed to an intention to make a payment) some two days before the date for delivery of sentence. It may be that the draft sentencing remarks had been prepared in advance and had not been amended to refer to the actual payment of $5,000. This might explain the unfortunately expressed comment given, perhaps as a departure from the draft remarks, when his Honour at the end of his remarks came to explain how he structured the prison sentence imposed.
The sentence that I impose has been reduced by 40 per cent to take into account your plea of guilty, and further reduced because of your payment towards compensation.
The sentence of the court is that you be imprisoned for five months to commence forthwith. That is the sentence of the court.
On a literal, that is a grammatically and syntactically correct, reading of the first sentence, the Judge has allowed 40 per cent discount on account of the guilty plea and, after having done so, has “further reduced” the resultant figure because of the payment towards compensation (meaning A). This is the ordinary and natural meaning and the one that I prefer and adopt. However, during the argument on appeal, other ways in which that sentence could be interpreted were suggested.
It may be that what was intended was that, in order to take account of the payment of compensation, the starting point that otherwise would have been adopted by the Judge but for that payment was “further reduced” and the resultant starting point was discounted by 40 per cent on account of the plea of guilty (meaning B).
A third possibility is that the Judge had in mind a notional starting point after taking account of all factors relevant to sentence, apart from the plea of guilty and apart from the payment of compensation, and has reduced that starting point by 40 per cent to take account of both the plea of guilty and the payment of compensation (meaning C).
In my view, meaning B and meaning C are not supported by the settled text. Each of the three possible meanings discloses error and there is no reason to prefer meaning B or meaning C as being an available meaning which would allow the words used to be construed in a way that avoided the finding of error.
The parties were in agreement during the sentencing submissions and during the appeal that the respondent’s plea of guilty came about at a time and in circumstances which justified a discount of up to 30 per cent in accordance with section 10C of the Criminal Law (Sentencing) Act 1988. The Judge was advised of this by defence counsel during submissions on 12 November 2015 and again on 14 January 2016.
On the basis that meaning A is to be adopted, there has been an error in allowing the 40 per cent discount for the plea of guilty when the maximum available by statute was 30 per cent. In addition, and leaving aside specified discretionary reductions for a plea of guilty[4] or statutory mandated discounts for certain types of cooperation with the authorities,[5] it is an error to isolate one or more particular considerations relevant to the setting of a head sentence and to give it a specified mathematical allowance, whether by way of a percentage discount or a specific reduction in the period otherwise to be served. In Markarian v The Queen,[6] the plurality said this.
[4] These have always attracted a specified discount notwithstanding Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, see R v Place [2002] SASC 101; (2002) 81 SASR 395. See now sections 10B and 10C of the Criminal Law (Sentencing) Act 1988.
[5] Section 10A Criminal Law (Sentencing) Act 1988.
[6] [2005] HCA 25; (2005) 228 CLR 357 at [37]-[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ) (citations omitted).
In general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed. As Gaudron, Gummow and Hayne JJ said in Wong:
“Secondly, and no less importantly, the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing, not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted.
It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.
In R v Thomson, Spigelman CJ reviewed the state of the authorities in Australia that deal with the 'two-stage' approach of arriving at a sentence, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal, the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this Court, McHugh and Hayne JJ, in dissenting opinions in AB v The Queen expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the Court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to 'discount' a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher when he said that:
'It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.'
So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform." (emphasis in original)
Following Wong benches of five judges in New South Wales in R v Sharma and R v Whyte and in South Australia in R v Place, have sought to state general sentencing principles to be applied in those States. In the first two of these cases the Court of Criminal Appeal of New South Wales endorsed an approach of instinctive synthesis as a general rule but also accepted as a qualification that departure from it may be justified to allow for separate consideration of the objective circumstances of the crime. On occasions intermediate courts of appeal have however refused to find error where a staged approach has been undertaken. In Place the Court of Criminal Appeal of South Australia (Doyle CJ, Prior, Lander, Martin and Gray JJ) although it rejected a staged approach in general, made it clear that a reduction of penalty for a plea of guilty should be identified. This approach, their Honours held, was in conformity with the relevant sentencing legislation of South Australia.
Following the decision of this Court in Wong it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison. That is not to say that in a simple case, in which, for example, the circumstances of the crime have to be weighed against one or a small number of other important matters, indulgence in arithmetical deduction by the sentencing judges should be absolutely forbidden. An invitation to a sentencing judge to engage in a process of "instinctive synthesis", as useful as shorthand terminology may on occasions be, is not desirable if no more is said or understood about what that means. The expression "instinctive synthesis" may then be understood to suggest an arcane process into the mysteries of which only judges can be initiated. The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts, and the public. There may be occasions when some indulgence in an arithmetical process will better serve these ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.
Each of meanings A, B and C would involve an erroneous departure from the instinctive synthesis described above by the plurality in Markarian. Although this is less clear with respect to meaning B, it still suggests an interim stage by which a specific reduction is allowed for the payment of compensation before proceeding to apply a 40 per cent discount for the plea.
A further difficulty with meaning A is that the Judge has not fully disclosed his reasoning. It is not possible to ascertain the Judge’s starting point. For example, if the Judge’s starting point were to have been nine months imprisonment a 40 per cent discount for the plea would result in a term of 5.4 months, which would suggest that the “further” reduction on account of the compensation payment was 0.4 of a month so as ultimately to result in the term of five months imprisonment imposed. However, if the Judge had started at 12 months imprisonment a 40 per cent reduction for the plea of guilty would lead to a term of 7.2 months from which a “further” reduction of 2.2 months would need to be allocated with respect to the compensation payment, again, to result in a term of five months imprisonment. The possibilities between a starting point of nine months and a starting point of 12 months and indeed employing starting points greater than 12 months are endless.
Meaning B involves the error of applying a 40 per cent discount where only a maximum of 30 per cent was available in accordance with statute. Meaning C involves the error of making a specific or mathematical allowance for the payment of the compensation, contrary to Markarian. The error is compounded because it is not possible to know the amount of the allowance nor the amount of the allowance given for the plea. If meaning C were to be adopted, all that could be discerned is that the total of the two discounts given was 40 per cent. As this Court has said on many occasions now, an offender is entitled to know the discount given for his plea and, if it is less than the maximum available, reasons should be given explaining why the available maximum has not been given.
On the basis of my adoption of meaning A, I am satisfied that appeal grounds 2 and 3 are made out.
Was the sentence imposed manifestly inadequate (appeal ground 1)?
In Markarian v The Queen[7] the plurality summarised the well accepted approach by an appellate court when deciding a sentence appeal.
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 sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer 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 offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[7] [2005] HCA 25; (2005) 228 CLR 357 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ) (citation omitted).

In my view, the sentence was egregiously low given the nature and circumstances of the offending and notwithstanding that the respondent’s personal circumstances, to be taken into account at all stages of the sentencing process including the setting of the head sentence, indicate that leniency is warranted. However, a lenient sentence must still be proportionate to the offence and its circumstances and must still fall within the discretionary range available to the sentencing judge when all the circumstances of the offence and of the offender are taken into consideration.
The respondent pleaded guilty to a very serious offence as is indicated by maximum penalty of 15 years imprisonment. The circumstances of the offending render the respondent’s conduct a serious example of the offence. There was absolutely no excuse. The level of violence perpetrated was severe. There is strong community concern about this type of offending that often occurs late at night in the streets of our cities. It is not uncommon for serious injury or death to result from a single unexpected punch to the head. There has been abundant media coverage, over a number of years now, of such events and the risks to which innocent members of the community are exposed.
A summary of the purposes and objectives of the sentencing process was provided by Doyle CJ (with whose remarks, in this respect, Prior and Vanstone JJ agreed) in R v Nemer.[8]
The sentencing of offenders who have committed serious crimes is difficult.
The judge must impose a sentence arrived at by following the requirements of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”). This requires consideration, putting things generally, of the penalty fixed by Parliament (usually a maximum only is specified), of the circumstances of the offence and of all of the matters affecting the sentence that are found in the Sentencing Act.
The sentence imposed in a particular case should reflect certain broad objectives of sentencing. These do not replace the provisions of the Sentencing Act. They describe in broad terms the main objectives of the various requirements in the Sentencing Act. These objectives are the punishment of the offender or retribution (to reflect society’s disapproval and rejection of the conduct in question); deterrence of the offender from further offending; deterrence of other persons from offending, and rehabilitation or reform (that is, encouraging the offender to reform and to behave in accordance with the law). Sometimes it is said that these are the means by which the court protects the community.
In different cases these considerations will operate in different ways and to differing degrees. As has been said, these considerations are no more than guideposts to the appropriate sentence, and sometimes they point in different directions: Veen v The Queen [No 2] (1988) 164 CLR 465 at 476. In a given case considerations of deterrence might point towards a heavier sentence, while considerations of reform might point towards a lenient sentence. Arriving at a sentence in a particular case involves a balancing of all of the matters identified in the Sentencing Act, and the exercise of a judgment in the light of all relevant matters.
[8] [2003] SASC 375; (2003) 87 SASR 168 at [4]-[7].
The respondent was remorseful and on any analysis will pay a high price for his conduct. The second and fourth factors noted by the Chief Justice might be seen as assuming less significance in this case than in other cases. However, and notwithstanding this, the first and third factors are such as, on the facts of this case, to require condign punishment for this offence.
This is an area where the consideration of general deterrence must loom large. Furthermore, this is an area where “punishment of the offender or retribution” as an important objective of sentencing is also of particular significance. The focus of retribution in this sense is the community’s denunciation of the conduct in question.
I agree with the submission of counsel for the applicant that a sentence of five months imprisonment after plea is broadly commensurate with a sentence imposed for an assault causing harm contrary to section 20(4) of the Criminal Law Consolidation Act for which the maximum penalty (basic offence) is three years imprisonment. It may be commensurate, in appropriate circumstances, with the offence of recklessly causing harm contrary to section 24(2) of the Criminal Law Consolidation Act for which the maximum penalty (basic offence) is five years imprisonment. However, for the offence of recklessly causing serious harm, the sentence was “plainly unjust” and “unreasonable”.[9] It fell outside the discretionary range available to the Judge. I am satisfied that it was manifestly inadequate.
[9] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 337 at [25].
Prosecution applications for permission to appeal
The principles relevant to the question of whether or not the Director of Public Prosecutions ought to be given permission to appeal against a sentence are well understood.[10] Permission should be granted only in rare and exceptional cases. The mere demonstration of error, alone, is insufficient to justify permission. Permission should be granted only where it is necessary to enable the Court to establish and maintain adequate standards of punishment, to enable idiosyncratic views of individual judges concerning particular crimes or types of crime to be corrected or if a sentence is so far below the appropriate range that it reflects an error of principle. Where there is an egregious departure from the appropriate range such that to allow the sentence to stand would shake public confidence in the administration of justice permission might be given even if no general point of principle arises.[11]
[10] See, generally, Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227, Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, R v Osenkowski (1982) 30 SASR 212, R v Nemer [2003] SASC 375; (2003) 87 SASR 168, R v Koch [2015] SASCFC 31, R v Cleaver [2016] SASCFC 43.
[11] For a summary of the applicable principles broadly in these terms see R v Cleaver [2016] SASCFC 43 at [17]-[18] (Kourakis CJ with whose reasons Kelly and Nicholson JJ agreed).
Doyle CJ observed the following in R v Nemer.[12]
Deeply entrenched in our system of criminal justice is a principle that the accused or the offender should not be exposed to double jeopardy. The principle is not a precise one. It manifests itself in various ways. ... In the area of sentencing it manifests itself in the restriction ... on appeals by the Director with a view to increasing a sentence. Exposure to the risk of having a sentence increased, and in particular to the risk of facing a sentence of imprisonment on appeal for the first time, is said to be a form of double jeopardy.
The application of this principle in this State has been confined by section 340 of the Criminal Law Consolidation Act 1935. Section 340 has been interpreted such that the principle of double jeopardy continues to apply with respect to the questions of whether permission to appeal should be allowed and whether the appeal itself should be allowed but the principle is no longer to apply at the stage of any resentencing by the Court of Criminal Appeal. For example, in R v Harkin[13] Gray and Sulan JJ said this.
The Second Reading Speech indicates that s 340 was designed to remove the issue of double jeopardy from consideration by the appeal court. However, the words of the section make it clear that s 340 only imposes a duty on the court at the point after the question of the grant of permission to appeal and the question of whether the appeal should be allowed have been decided.
Section 340 precludes the court from having regard to the “rule of law”, known as double jeopardy when resentencing. The words “Despite any other rule of law” should be presumed to have some work to do and should be given some meaning and effect.[14] In our view, the effect of s 340 is to remove from consideration any rule of law enabling a court to impose, when resentencing, a sentence other than the sentence which the court thinks ought to have been imposed at first instance.
If ss 340 and 353(4)(a)(i) are read together, and given that it is to be presumed that s 340 has some work to do, that work, in our view, is to remove the court’s ability to temper a sentence in recognition of the element of double jeopardy involved in twice standing for sentence.
White J in a separate judgment concurring in the result arrived at the same construction of section 340.[15]
[12] R v Nemer [2003] SASC 375; (2003) 87 SASR 168 at [26].
[13] R v Harkin [2011] SASCFC 24; (2011) 109 SASR 334 at [35]-[37].
[14] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
[15] R v Harkin [2011] SASCFC 24; (2011) 109 SASR 334 at [98]-[106]. See also, for example, the discussion in similar terms by Sulan J in R v Reed [2013] SASCFC 16 and by Peek J (with whose reasons Stanley and Nicholson JJ agreed) in R v McPartland and Polkinghorne [2014] SASCFC 84 at [16].
Conclusions as to disposition of the appeal
I am satisfied that each of the appeal grounds 1 to 4 has been established.[16] I agree with the applicant’s submissions that permission to appeal should be granted and the appeal allowed:
(i)to correct and maintain proper sentencing principles; and
(ii)to correct a sentence which is so far below the appropriate range that to allow it to stand would shake public confidence in the administration of justice.
[16] Grounds 2 and 3 follow from my adoption of meaning A as discussed earlier.
That there is or may be a residual discretion to dismiss a prosecution appeal, even where permission to appeal is granted, has been recognised by various differently constituted Courts of Criminal Appeal in this State, although it may be that the issue has not been definitively determined.[17] I will assume for present purposes the existence of a residual discretion. The applicant filed its application for permission promptly (within 19 days of sentence delivery). The Full Court was able to hear the matter on 16 May 2016 (13 days after the filing of the application). The respondent has not been further prejudiced by any delay and, as indicated, I have taken into account double jeopardy considerations when considering whether or not to grant permission and whether or not to allow the appeal. The nature of the errors and the inadequacy of the sentence are such that I would not exercise any available residual discretion to refuse the appeal.
[17] See, for example, R v O’Connor [2012] SASCFC 15 at [21], R v Ivic [2006] SASC 8 at [40], [49] and [58], R v Randall-Smith and Davi (2008) 100 SASR 326 at [115], R v Harkin (2011) 109 SASR 334 at [36], cf; R v Fowler [2014] SASCFC 16.
Resentencing
Like the Judge, and notwithstanding the many favourable considerations personal to the respondent, I am not satisfied that there is good reason to suspend the prison term I would impose.
When imposing sentence there are a number of personal considerations which encourage a lenient approach. One that I need to say something more about is the fact that the respondent will suffer the loss of his career in the army. This is an important consideration but it is to be tempered by two other considerations. First, a prison term, particularly a lengthy one, inevitably will be severely disruptive of the lifestyle and work or career potential for almost any offender. Such is inherent in the punishment of most if not all offenders sentenced to imprisonment. Second, were the respondent to lose his career in the armed forces that will be because he has revealed a character feature that that institution sees as not sitting well with the responsibilities and challenges to be met as a member of the armed forces. Nevertheless, it is not to be overlooked that this one foolish action will have caused a person of otherwise good character to suffer significant extra-curial punishment.
Allowing for some leniency, I would start with a term of imprisonment for three years. This gives rise to a head sentence, after allowing a 30 per cent discount for the plea of guilty, of two years, one month and one week. Given the respondent’s contrition, previous good character, likely loss of career and good prospects for rehabilitation, a significantly lower than usual non-parole period is warranted. I would fix a non-parole period of ten months. Both the head sentence and the non-parole period should be backdated to commence 14 April 2016 when the respondent was first taken into custody.
Orders
I would make the following orders.
1.The Director of Public Prosecutions’ application for permission to appeal be allowed.
2.The appeal be allowed.
3.The District Court sentence be set aside.
4.The respondent be resentenced to a head sentence of two years, one month and one week with a non-parole period of ten months, both backdated to commence 14 April 2016.
DOYLE J.
For the reasons which he gives, I agree with Nicholson J that leave to appeal should be granted, and the appeal allowed. I agree with the fresh sentence he would impose.